And at p.102:
"HIS HONOUR: … The question in my mind is this: what commercial sense would it make for a bank which had a right to continue charging interest on an account to vary its contract with the customer by giving up its right to charge interest and accepting instead a right to receive whatever, if anything, some new and future arrangement with the customer might produce, why would a bank do that?
PLAINTIFF: Well I was surprised and I told Bob Evans that I thought he had been very generous and I grabbed it with both hands. But I wasn't given, the bank weren't giving up their right. The representations said that we would negotiate.
HIS HONOUR: What if you negotiated until the cows came home and nothing eventuated?
PLAINTIFF: Well I think that had it been put in writing that would have been looked at and dealt with. As it wasn't put in writing, the bank at any time had the right to sort of, not the right, if you look at it from a point of view of a promise, but legally probably had the right to sort of do what they did. They hadn't really given that up, I just thought I was treating them fairly, they were being helpful, some of them, were being as helpful, the branch was being as helpful as they could. They were making sure they got their pound of flesh but they were trying to make sure I got something to eat as well."
68 I am satisfied that, at the time he says the 1991 Representations were made, Mr Clarkson was well aware that any position of the kind he says was represented was, because of the generosity of the terms and their abnormality, as well as the lack of written acknowledgement, unlikely to have represented the official position of the Bank. It is clear that, insofar as he "relied" on what he says he understood Mr Evans as saying, that reliance was not a reasonable one in all the circumstances. Mr Clarkson harboured a fear that Mr Evans, in spite of his authority as a bank manager, would be overruled at a higher level of management and that the Bank would be able to withdraw from the arrangement. Rather than acting to consolidate the reality of the representations, he chose not to agitate the issue. He did not, in short, believe what he says Mr Evans had said to him.
69 As for the letter of 21 April 1992 from Mr Pye, Mr Clarkson says that he understood it to "reconfirm" the 1991 Representations. If that were so, it is, so far as I can see, the only action taken on the part of the Bank that could be construed as any kind of confirmation. But it is highly significant that the letter makes no mention of the arrangement that Mr Clarkson alleges he had made with Mr Evans, either explicit or implied. The likelihood of the letter being an intentional representation decreases further when the letter is read in conjunction with the subsequent letter of 10 June 1992, also from Mr Pye, which accorded in substance with the previous letters of demand from Willis & Bowring and Bruce A Swane & Co and in fact notified of an increase in the total debt owing. This subsequent letter, and indeed all subsequent communication from the Bank to Mr Clarkson, consistently maintained that the Representations had not occurred or that Mr Clarkson had misunderstood the substance of the discussions with Mr Evans. This conduct must, I think, operate to negative any "reconfirmation" of the Representations as Mr Clarkson understood them.
70 I am also conscious of an inconsistency in Mr Clarkson's testimony concerning those initial letters of demand. In his affidavit, he deposed that the letter from Willis & Bowring alarmed him because it was inconsistent with the 1991 Representations. However, Mr Clarkson was asked in the witness box why, if that were the case, he did not, upon receipt, immediately challenge the totals as they appeared on the letters. He said then that it was because the totals "looked right" to him. The inconsistency renders Mr Clarkson's true state of mind at that time impossible to ascertain. It certainly does not tend to indicate that Mr Clarkson had at all material times a firm belief that he was being treated unfairly with respect to the 1991 Representations.
71 In light of all the evidence, I cannot be satisfied on the balance of probabilities that the 1991 Representations were made in the form and with the significance for which Mr Clarkson contends. At most, I think, there may have been some discussion between Mr Clarkson and Mr Evans about the Bank's practices in relation to treating loans as non-accrual for internal purposes. But that could not ground a claim in estoppel. The threshold requirement for such a claim is, as was canvassed by Branson J in Murphy v Overton Investments Pty Ltd [2001] FCA 500 with reference to the trend of authority begun by Waltons Stores v Maher (above) and Commonwealth v Verwayen (1990) 170 CLR 394, that there be a finding of "induced assumption". I do not think that the Bank's conduct reaches that threshold.
72 That being so, I do not need to consider the question whether Mr Clarkson changed his position on the strength of the 1991 Representations. However, I note that on this point Mr McCulloch and Mr Villa submitted that no evidence exists that any alternative finance was available or would have been provided to Mr Clarkson either at the time the 1991 Representations were allegedly made or subsequently. I agree.
73 As for the claim that the subdivision itself was undertaken in consequence of the 1991 Representations, that is plainly not the case. Mr Clarkson had informed the Bank of his intention to subdivide the property within days of his initial application for the bill facility. He did this simply in order to repay that loan. That had been his intention at all material times. He would have incurred expenses in the subdivision and marketing of the Oyster Bay property, whether or not the 1991 Representations were made. It was his inability to complete that process in the time stipulated that gave rise to the circumstances surrounding the alleged 1991 Representations, not the other way around.
74 Insofar as it may be claimed that Mr Clarkson incurred more expenses in that subdivision process than he otherwise would have (and that interpretation is not apparent on the pleadings), then I also do not accept that claim. That outcome would necessitate a finding that Mr Clarkson was induced to assume that he could take a great deal more time to complete the subdivision than he otherwise would have if subject to interest on his loans - indeed, an indefinitely long time. Even if the 1991 Representations had occurred as alleged (and as I have said, I find that they did not), they cannot have carried such a connotation.
Alleged unconscionable conduct - the 1991 Representations
75 Mr Clarkson claims that various instances of conduct of the Bank should be viewed as unconscionable in a way that attracts an equitable remedy. The first of these is, again, the Bank's alleged departure from the 1991 Representations. This particular claim was not advanced in either the pleadings or in Mr Clarkson's submissions as being distinct in any way from the claims of estoppel that I have already considered. The unconscionability simply appears to inhere in the alleged fact that the Bank broke an oral promise to Mr Clarkson to behave in a certain way and that Mr Clarkson was relying on that promise. That ground has already been covered and this claim must be rejected.
Alleged unconscionable conduct - first period of delay
76 The next claim concerns the first period of delay, that is, the period between August and October 1992. The basis for the claim is that the Bank allegedly "advised and required" Mr Clarkson to undertake a three-lot subdivision in August 1992 and then reverted to an earlier preference for a two-lot subdivision, in consequence of which, Mr Clarkson says, he incurred more interest and fees during the intervening months while he attempted to pursue the Bank's initial preference for the three-lot proposal. This is also said to have delayed his ability to discharge his liabilities to the Bank. In those circumstances, Mr Clarkson says, it is unconscionable for the Bank to have continued charging interest and fees for that period.
77 The conduct that is said to constitute the initial "requirement" by the Bank is that outlined at paragraph [25] above, that is, the recommendation by Mr Bolewski that Mr Clarkson should subdivide his property to its maximum potential "in one go". The actual words that were said are not in dispute. It is the attribution to them of some kind of imperative quality that is in question.
78 The answer emerges from the context in which that statement was made. A letter from Mr Clarkson addressed to Mr Noble and sent on 22 October 1992 contains the following passage:
"However following a letter from Mr. Pye indicating some subdivision money would still be owing to the Bank I suggested a meting which was held in August, 1992 at which Mr. Pye, the Bank's Valuer and one other Bank representative attended I outline my plans for subdivision of my property into 4 blocks, 3 of which would be sold for a nett return of between $360,000 and $400,000. As I received no advice to the contrary at this meeting or in the period up to earlier this week I assumed that this was the strategy the Bank wished me to pursue as this would clear the total debt sooner than completing the subdivisions in series. You have now indicated that you want the original single subdivision to proceed as quickly as possible and I shall do as you request. However I must point out that about two months have been lost because of the changes in direction." [Emphasis added.]
79 I also quote from the transcript at p.48:
"Q. The valuer didn't provide any advice to you, did he?
A. At the meeting he did but it was a discussion, he didn't sort of, no formal advice, we just, I don't even know, it was very informal. They look around, I think Mr Pye hadn't seen the property before, the valuer'd seen so many of the properties he was yawning and I don't know about the other bank fellow who was there.
Q. What I want to suggest to you was that at the meeting which you had with Mr Pye which the valuer, whose name I have trouble pronouncing?
A. Bolewski.
Q. Bolewski was present. The meeting was called by you on site so that you could try and point out to each of them and to Mr Pye in particular what you hoped to do on the land so as to persuade the bank to give you more time to pay?
A. That's right. I wanted to point out that there was potential there and I could sort of sub-divide again at least once, I was hoping originally when we went out there I could have got two [more], but things cropped up that made that impossible.
Q. And the fact is that the bank did not give you any advice via Mr Pye or the valuer at that meeting that you should undertake one sort of sub-division or another, did it?
A. Well, it certainly told me that the way I was doing it at that stage wasn't working. I had to do something and they suggested what about doing all the sub-division at the time, full sub-division. Now that was a suggestion, I don't think they told me to do anything. It was my decision eventually.
Q. Thank you. Isn't the fact that at the meeting you outlined your plans for sub-division of the property into four blocks, three of which would be sold for a net return of between 360 and 400,000 dollars?
A. Eventually, yeah.
Q. And you received no advice to the contrary, that is that that sort of sub-division should not be pursued from anyone else who was present at the meeting, that's the fact, isn't it?
A. Yeah, the advice was on timing not on what should be done.
Q. That caused you to make an assumption, from the silence of those two persons, that somehow the strategy which you had in mind was the one that the bank wanted you to pursue?
A. Well, they wanted me to pursue it immediately, not eventually."
80 The letter and the cross-examination leave the matter in no doubt. Mr Clarkson was not instructed in an imperative way by the Bank to pursue the three-lot subdivision; nor was the Bank's subsequent "silence" an inducement towards that same end. It was, rather, Mr Clarkson's own plan to attempt to maximize his returns from the development of his property. Mr Clarkson was free to do so or not to do so as he chose. Inasmuch as it may be said that the Bank "wanted" Mr Clarkson to take this course, it was only because the Bank recognised the potential benefit of Mr Clarkson's efforts to realize the maximum value of his property and thereby to discharge his debt to the Bank more quickly. The proper characterisation of Mr Bolewski's suggestion is precisely that: it was a suggestion made for the sole purpose of pointing out for Mr Clarkson's own benefit an efficient solution to the situation, at least in theory. The essence of that solution was, as submitted by the Bank, simply that if Mr Clarkson intended to further subdivide his property then he ought to undertake one process that would result in the maximum potential number of lots instead of subdividing progressively.
81 It is also clear that the Bank never exerted any kind of unfair pressure on Mr Clarkson in order to procure or force this "preferred" result over and above what their legitimate right to give notice of the exercise of their power of sale over the property. Whatever pressure Mr Clarkson may have experienced can only have been due to the simple facts that he was indebted to the Bank, that that debt was increasing and that he had no way out except, as he saw it, through subdivision and sale.
82 Mr Clarkson appears to have been under a misapprehension that the Bank was committed in some manner to the particular solution. The true position is that the Bank was committed to recouping whatever it could of the moneys lent to Mr Clarkson in the shortest time reasonably practicable. When it later became obvious that Mr Clarkson was going to take far longer to complete the three-lot subdivision than it would for him to complete the two-lot subdivision, the Bank simply reiterated its preference for the faster option, that is, the completion of the two-lot subdivision. That was not unconscionable, particularly in circumstances where Mr Clarkson adduced no substantial evidence as to why it was necessary for him to completely cease work on the two-lot subdivision for such a length of time and also where the Bank had repeatedly foregone on carrying through on its notices of intention to exercise its power of sale. It follows then that the continued accrual of interest cannot be unconscionable. That claim should be rejected.
Alleged unconscionable conduct - second period of delay
83 The next claim is directed towards the second period of delay, that is a 55-week period from August 1994 to September 1995. The delay is alleged to have been caused by the failure by the Bank to advance the moneys required for the completion of the second subdivision that were the subject of an agreement between Mr Clarkson and Ms Cole on behalf of the Bank on 21 April 1994. That agreement is summarized in the letter of 14 December 1993 addressed to Mr Clarkson from Ms Cole. The alleged failure dates from 26 August 1994 when the Bank informed Mr Clarkson by letter that, because it had received notice that the CBA intended to register a second mortgage on the Oyster Bay property, it would not provide any further financial assistance to him until the question of priority was settled.
84 There is a question of interpretation concerning item C of the December 1993 letter, which reads as follows:
"15% of net sale proceeds of 1st property will be advanced, for completion of 2nd subdivision, on production of invoices with Bank cheques made payable to the creditor, as per schedule accompanying this."
85 Two points of construction arise in relation to this clause. First, the immediately preceding clause stipulates that the finance was conditional upon the sale of at least one property by 30 June 1994. This is also recorded in a file note of Ms Cole's dated 21 April. The evidence discloses that the sale of the first lot did not occur until 23 September 1996 and therefore the Bank cannot be said, as at August 1994, to have become subject to any enforceable obligation to provide finance from which it then unconscionably resiled. Secondly, the plain words of the clause stipulate that the advance was to consist of 15% of the "net sale proceeds". Absent the sale of the property, there would obviously not have been any actual proceeds from which the Bank would have been able to advance money pursuant to such a construction of the agreement. Mr Clarkson acknowledged this construction in cross-examination (transcript, p.66):
"Q. Right. And you thought, therefore, that you could agree with the bank to sell one of the properties by 30 June because you already held an exchanged contract which required settlement by that date; that meant that on settlement on 30 June, the bank could then advance you 15 percent of the net proceeds towards the stage two subdivision?
A. Not quite as simple as that but, yes, that's [it] basically."
86 If that is accepted, there is then some confusion evident as to how that arrangement was carried out in practice. It appears from the documentary evidence that a number of cheques were forwarded by the Bank to Mr Clarkson in the period prior to September 1994, totalling approximately $13,571.61 as at 25 August 1994, in order to finance the remaining work. These moneys must have been provided on the understanding that they formed part of an advance calculated by reference to 15% of the projected (rather than actual) sale proceeds (in effect creating a loan ceiling of $19,500, that being 15% of $130,000), but they were not strictly an advance from those (then non-existent) proceeds themselves. In that circumstance the only conclusion is that, as the result of some mutually varied understanding, the Bank was providing funding to Mr Clarkson not strictly on the stated terms. Cessation of funding therefore cannot be taken to be a breach of the agreement of 21 April.
87 I also do not think there can be any criticism of the Bank's conduct with regard to the priority issue. Again, Mr Clarkson acknowledged as much in cross-examination (transcript, p.70):
"Q. You understood, didn't you, that the State Bank declined to write those cheques once it became aware of the mortgage to the Commonwealth Bank because it was unsure of its priority with respect to any further advances which it made to you?
A. Correct, yes.
Q. Do you contend that was an unreasonable position for it to take?
A. No.
Q. What then is the complaint you make about the second period of delay between August 1994 and September 1995?
A. When they told me that I wrote out a very simple priority deed that would have been adequate and said I got the Commonwealth Bank to sign it and give it to the State Bank and said, there's your priority deed.
Q. When was that done?
A. Right at the very beginning but, you know, off the top of my head I would say about, within a month or two weeks of or so [sic], certainly within a month of this happening, they stopped writing cheques.
Q. Where is this document Mr Clarkson, this priority deed?
A. It's in the file somewhere because I saw it the other night, I thought I was pretty clever to have written that.
Q. Do you accept though that it was not unreasonable for the State Bank to decline to issue cheques by way of further advance until it had the position of its priority cleared up?
A. It would be foolish for them to have not done that, of course it was reasonable, what was unreasonable was that they took so long to, because the Commonwealth Bank right from the start I must say that they didn't behave very well when they told me one thing and did another but they did say that they would sign any priority agreement, they knew about the 15 per cent.
Q. Do you accept that there needed to be communications between the Commonwealth Bank and the State Bank so that each of those organisations on their own could satisfy themselves that any deed of priority was suitable or do you say they were bound to accept your draft?
A. No, no, no, in fact I was not surprised that they didn't accept mine but I thought they would get on with it and do it within a month."
88 The deed as prepared by Mr Clarkson is not in evidence, but it is not difficult to conclude that it would not have been a document sufficient for the purposes of the Bank and CBA.
89 It is apparent that the delay was the result of several factors, which appear in the following chronology constructed from the evidence and set out in submissions made by counsel for the Bank:
"The real reason for the delay in this period is explained by the following chronology:
(a) during the period from August 1994 to September 1995 the Council had declined to sign the linen plan and release it for registration at the Land Titles Office;
(b) the reason the Council declined to release the linen plan was because there were works that Mr Clarkson needed to complete;
(c) Mr Clarkson believed was under the apprehension [sic] that if those works had not been completed by 16 March 1995 the Council would release the linen plan but would require a bond to cover the cost of having those works completed;
(d) the Council had not in fact undertaken to sign the linen plan by 16 March 1995, or any other date;
(e) the Council only received the engineering drawings for approval in the first week of March;
(f) the Council did not favour the use of a bond for outstanding work;
(g) ultimately, however, on 26 May 1995 the Council agreed to accept a bond in the amount of $9,636 in respect of construction works still to be completed;
(h) it was originally proposed that the deposit be released to enable the appropriate bonds to be put in place. This arrangement was amended at the beginning of July 1995 so that the Bank would finance the bonds directly;
(i) on 13 June 1995 and subsequently the Bank sought confirmation that the linen plan would be released by the Council once the appropriate financial arrangements had been put in place;
(j) as at 25 July 1995, there were still corrections that needed to be effected to the 88B instrument;
(k) the request for a cheque for $2,153 to enable the issue of a section 173 certificate by the Water Board was made on 27 July 1995, but could not be acted upon because Mr Clarkson had not signed the Priority Deed;
(l) on 10 August 1995 Mr Clarkson requested a cheque for the Water Board and a Bank Guarantee in favour of the Council. These were issued on 30 August 1995;
(m) the Priority Deed was executed on 31 August 1995;
(n) on or before 25 September 1995 the Council released the linen plan."
90 None of those matters indicates that the Bank was at fault in any way. This must be so particularly in circumstances where, at the time it agreed to allow advances from the sale proceeds to be used for further development, the Bank had not yet been put on notice of the proposed securities to be taken over the property by CBA and by PCU. That notice came from the other financiers, not from Mr Clarkson. He had not seen fit to tell the Bank, as mortgagee, that he had created subsequent mortgages. Nor, I am certain, was he aware of the implications of that from the point of view of concerns about the priority to be enjoyed by a first mortgagee making further advances when on notice of the existence of a subsequent security. It was his action in granting the subsequent mortgages that reduced substantially any willingness the Bank may have had to make further advances to him.
91 The Bank was entitled to take appropriate steps to protect its security position in relation to further advances, and, in addition, to continue to charge interest over the period of delay. It must also be noted that, immediately upon the execution of the Priority Deed by the CBA on 31 August, the Bank immediately released to Mr Clarkson a bank guarantee in favour of the Council and a cheque for fees payable to the Water Board. This confirms that it was awaiting resolution of an obstacle which was of Mr Clarkson's own making.
Alleged unconscionable conduct - third period of delay
92 The third period of delay is said to have been from September 1995 to September 1996. Mr Clarkson says that during this period the Bank first misplaced the title deed to the Oyster Bay property, and then negligently or recklessly delayed registration of the plan of subdivision. The relevant claim in unconscionable conduct is, again, directed towards the Bank's charging of interest and fees during this period.
93 In response to the assertion that the Bank misplaced the title deed, Mr McCulloch and Mr Villa submitted that the Bank had not, in fact, misplaced it at all, but rather that the Bank had duly produced the deed to the Land Titles Office on 1 September 1995 to enable the registration of the mortgage in favour of the CBA. This is said to explain why, when Willis & Bowring lodged the linen plan with the LTO for registration in October 1995 on behalf of Mr Clarkson, the Bank was not in a position to produce the deed for that purpose, not then being in possession of it.
94 However, the evidence reveals that there was a period of at least one month where the Bank was, in fact, unable to locate the title deed. A letter from Keith Robinson to the NSW Lending Services unit of the CBA dated 1 September 1995 accompanying the Deed of Priority advised that the certificate of title had been forwarded to the Bank's Securities Department for production to the LTO. This had not occurred as at 25 September 1995, as appears from a letter from Willis & Bowring to the Bank dated on that day. However, it should also be noted that at that time Willis & Bowring were still in possession of the linen plan.
95 In reply, a Bank officer acting on behalf of Keith Robinson informed Willis & Bowring on 26 September that he had undertaken a search for the document and could not locate it. Handwritten notation on that letter from various Bank officials reflects an ongoing inquiry that extended until at least 5 October.
96 Mr Robinson then advised Mr Clarkson on 26 October that "it was understood" that the title deed had been produced to the LTO "some time ago" and that it and the linen plan were being held there. Again, handwritten notation on this letter reflects that Mr Clarkson had visited the Asset Realisation Unit's offices to deliver some outstanding documentation. No reference is made in those notes to any continued inability to locate the deed.
97 It is not in dispute that at 20 December 1995 the certificates of title for the newly-created lots were available for collection from the LTO.
98 A final letter of 11 March 1997 from Mr Gary Glover of the Recoveries Unit sets out the terms of the Bank's offer of compromise. Under a section entitled "Various Delays in Acquisition of New Titles" appears the following paragraph:
"I acknowledge that the Bank's file indicates the loss of the original Title Deed. This came to notice in September 1995 and was rectified in December 1995. This delay of four months while unfortunate could not have possibly contributed to a delay in sales given the Sutherland Shire Council's report detailing continued outstanding requisitions dated 20 December 1995 resulting in a failed final inspection."
99 This makes unimportant the question of precisely how long the title deed was lost. It is clear that it cannot have been missing for longer than the period between 1 September 1995 and 20 December 1995. It is also clear from the Council report mentioned in Mr Glover's letter, also in evidence, that Mr Clarkson's property would not have been ready for sale by that date in any case. The report lists five matters requiring considerable additional efforts on Mr Clarkson's part before any further inspection and, therefore, any possibility of Council approval could be contemplated. The claim that the Bank's inability to locate the document during this period directly caused or contributed to any eventual delay in sale must then be rejected.
100 Mr Clarkson also appears to claim that because the Bank did not initially submit certain transfer and mortgage documents to the LTO, substantial delays were incurred by the LTO's issuance of certificates of title in "transitional" form, describing incorrect boundaries and in two cases listing both Mr Clarkson and Mr Colin Gray as owners of certain areas of land. Mr Clarkson's assertion is that, because he had informed the Bank on a number of occasions that he had no solicitors acting for him in the subdivision process and because he had a legitimate expectation that the Bank would administer the production of the new title deeds, ultimate responsibility lay with the Bank for that omission.
101 That assertion has no substance. First, it is abundantly clear that Willis & Bowring were acting for Mr Clarkson. Correspondence in evidence, to some of which I have already referred, shows that they had been preparing the documentation necessary for registration of the linen plan and the accompanying s.88B instrument, and had in fact lodged those documents for registration. Second, the responsibility for the documentation of the land boundaries between Mr Clarkson's and Mr Gray's properties cannot conceivably be attributed to the Bank. The land swap was the result of Mr Clarkson's plan of subdivision. That was a course undertaken on his own initiative, not the Bank's, and the responsibility for ensuring that all documentation was in order to give effect to that must lie with him or his agents, that is, Willis & Bowring.
102 Non-activity during the period from December 1995 to March 1996 is unexplained, but as counsel for the Bank pointed out, there is also nothing to suggest that any delay was attributable to any conduct on the part of the Bank.
103 The period from March to June 1996 saw both parties attempting to deal with the consequences of the incorrect title deeds. The process required mutual transfers between Mr Clarkson and Mr Gray. Because some of the land to be transferred was subject to the Bank's existing mortgage, that mortgage needed to be discharged and a new mortgage registered over the newly delineated property.
104 For several months, Mr Clarkson was disposed to reject this course of action. His correspondence with Willis & Bowring and the Bank records in strong terms his belief that the added mortgage was not necessary and that it would be an additional expense directed to what were, in his mind, unrelated complications. His perception of the Bank's conduct was that it was deliberately delaying and confounding his efforts to sell the lots. He therefore resisted cooperating with it. There is also evidence that Mr Clarkson had gone away to the country for a period, and that resultant difficulties in communication and delivery of documents contributed to the overall delay. Another s.57(2)(b) notice served on Mr Clarkson on 19 June 1996 added to the acrimony between the parties. It was not until June 1996 that Mr Clarkson eventually signed the instruments needed to allow the transfers to take place. Willis & Bowring duly forwarded those on to the Bank on 27 June 1996.
105 Subsequent delay occurred as a result of a typographical error in one of the documents. It was necessary for it to be re-executed. There was also a caveat on the title to one of the lots lodged by PCU. Mr Clarkson again indicated his objections to the ongoing inconvenience and engaged the Bank in a dispute as to the costs of the rectification process, which lasted until 15 August 1996 when the amended documents were finally provided.
106 I am satisfied that there was no conduct on the part of the Bank that should be characterised as negligent, reckless or unconscionable. Delays were in the main due to the difficulty that Mr Clarkson himself had in cooperating with the Bank in expediting the process, or else were due to relatively minor accidents. His continued refusals to sign and amend the documentation were the cause of the delay from March to August 1996. In those circumstances the Bank cannot be held responsible for the delay. It follows that it cannot be unconscionable for it to have retained settlement moneys reflecting interest payable during that period.
The claims in negligence
107 The negligence claims made by Mr Clarkson must fail for want of any relevant duty of care on the part of the Bank. There can be no doubt that a bank may owe a duty of care to a customer in contexts where activities of the bank undertaken without oversight or involvement of the customer have the capacity to cause harm to the customer unless due care is taken. Cases involving payment by a bank of forged cheques or cheques not according with the customer's mandate are examples that readily come to mind.
108 In the present case, however, Mr Clarkson, although an existing customer, was in active and ongoing negotiation with the Bank. He knew what he wanted. He set out at all times to get what he wanted. The situation cannot possibly be characterised as one in which Mr Clarkson was compliant in all requests and suggestions made by the Bank. Far from it - he had his own definite ideas as to where his interests lay and he did his best to give effect to them. Statements by the Bank to the effect that it wished to find a solution beneficial to both parties did not cast the Bank in some kind of avuncular role towards Mr Clarkson. The Bank was pursuing its interests. He was pursuing his. And he well knew the difference between the two and the reality that the Bank was in no sense bound to be solicitous of his welfare. There was nothing in the course of dealing to justify a belief on Mr Clarkson's part that he was entitled to rely on the bank to assist and advise him.
109 In relation to the alleged delays occasioned by the Bank, there is no basis on which it can be found that the bank owed to Mr Clarkson a duty of care in tort not to allow the delays to occur. Indeed and as I have found, the delays really arose from decisions by Mr Clarkson as to how his interests, as he saw them, would be best served and from his apparent preference to argue rather than co-operate.
110 A separate aspect of the negligence claim involves an apparent assertion that the Bank owed Mr Clarkson a duty to act in his interests in obtaining a fair market price for the property. I must confess that I do not understand the basis on which this claim is put. Mr Clarkson did not elaborate in submissions. It was Mr Clarkson who sold, not the Bank. He sold as he saw fit, given the constraints imposed by the need to register a plan of subdivision which entailed concurrence and actions by the local council, the surveyor, the Registrar-General and the adjoining owner in addition to the Bank. None of them - including the Bank - owed him a duty to take care that the subdivision would be completed in a form and at a time ensuring receipt by Mr Clarkson of a fair market price. That was a matter which he had to look after for himself.
111 No relevant duty of care being shown, Mr Clarkson's claims in negligence fail.
Orders