Commonwealth Bank of Australia v Slaveska

Commonwealth Bank of Australia v Slaveska - [2008] VCAT 2072 - VCAT 2008 case summary — Zoe

[3]

Stojna Slaveska is an elderly Macedonian woman. Lupco Slaveski is her son.
Both Stojna Slaveska and Lupco Slaveski issued applications in this Tribunal in February of this year against the Commonwealth Bank of Australia. Lupco is a customer of the bank. Stojna and Lupco are joint owners of two properties over which the Bank has taken various securities to secure loans advanced to Lupco. The Bank says that Stojna and Lupco, together with Lupco's wife Snezana, owe it over $430,000, being made up of loans connected with Lupco's business.
Lupco says that in dealing in all of his bank accounts, bank loans and securities, the Bank has acted in a misleading and deceptive manner towards him, and also has acted unconscionably. He wants an order that money lost as a result of the Bank's conduct be repaid to him. He has not specified the legislation he relies on. I deal with this application on the basis that he seeks redress under the Fair Trading Act 1999.
Stojna's application before this Tribunal is narrower. There are five mortgage transactions in relation to which she is alleged to have signed securities to the Bank, covering two properties owned by her with Lupco. She has issued this application in respect of only one of the loan transactions, securing just one of the properties. She has sought that the Tribunal declare pursuant to s7, 8, and/or 8(a) of the Fair Trading Act 1999 that this transaction is unconscionable and should therefore be set aside.
Stojna also seeks an order under s158 of the Fair Trading Act in respect of that one transaction. That section provides that a Court can make any order it considers fair if the Court is satisfied that the person against whom the proceedings were brought has contravened a provision of the Act and another person may suffer loss or damage as a result.
The format of this set of orders and reasons may give the misleading impression that the claims of Stojna Slaveska and Lupco Slaveski are combined, or jointly made, at this Tribunal. This is not the case, and this document containing my orders and reasons in each application is produced in this form only for convenience. The claims of Lupco and Stojna are entirely separate and I have dealt with them as discrete issues. However, as I will outline, they involve some common facts and principles.

[10]

The Bank claims that this proceeding should be struck out under s75 of the VCAT Act. That section provides for the summary dismissal or striking out of all or part of a proceeding that is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process.
It is established law that the power contained under s75 should be exercised only in the clearest of cases.
The Bank's argument is that the bringing of this proceeding at VCAT so completely mirrors the defence and counterclaim of each of the applicants in the Supreme Court proceeding, that by seeking to recover the same relief in two different jurisdictions, the issue of the proceeding at this Tribunal amounts to an abuse of process.
Counsel for the respondent characterised the proceedings brought before VCAT as illegitimate, oppressive, and calculated to bring the administration of justice into disrepute by leaving open the prospect of conflicting judgments in relation to the same subject matter.
In my view the grounds for striking out under s75 have not been made out. There can be no real argument that either of the proceedings before this Tribunal is frivolous, vexatious, misconceived or lacking in substance. Each applicant has outlined claims which, if found to be true, may provide remedies to each of them under the Fair Trading Act. It is not my task to determine on a strikeout application if the claims are true. I should deal with the strikeout application on the assumption that each applicant will be able to establish the truth of what is asserted, at trial.
In relation to Stojna, the argument that the issue of the proceeding itself is an abuse of process is somewhat undercut by the invitation in the judgment of Deputy President McKenzie, reserving leave to apply under the Fair Trading Act in this Tribunal's Civil Claims List.
In relation to Lupco, it appears that he has issued the application on his own behalf and without the benefit of legal advice. I am not prepared to find that the issuing of this application by Lupco without having had the benefit of legal advice is an abuse of process.

[14]

Counsel for the Bank demonstrated to me that in relation to Lupco, every allegation made by him in this proceeding is mirrored in the documents that have been filed in the Supreme Court, and every remedy sought in this proceeding is mirrored in the documents filed in the Supreme Court.
The facts which Lupco alleges are almost identical to the facts on which he relies to establish his defence and counterclaim in the Supreme Court.
For instance, he relies in each proceeding upon an allegation of friendship with various bank officers. He relies upon an allegation that he was under a special disability because he was under the influence of bank officials. He alleges that he trusted and liked the bank officials and particularly Gavin Halley. He alleges that the bank officials told him to change accountants and that he did so. He alleges that he was advised by the bank officials that it would be to his benefit if he formed a company and that he should go into a partnership between himself and the bank officials. He alleges direct reliance upon representations made by the bank officials.
He alleges that he travelled to Macedonia to purchase shoes as part of a partnership agreement with the bank officials and induced by representations by them.
He alleges that the circumstances of execution of the documents revealed that he was misled by the bank officials, although in the Supreme Court proceedings there is no equivalent to the allegation that the bank officials actually went to the house to sign the agreement.
He makes identical allegations in this proceeding as in the Supreme Court as to the circumstances in which the 2002 loan agreement was signed and in particular he makes the same allegations that he was never advised to get independent legal advice, that he was on medication and that the bank officials knew or ought to have known of that, and there was no explanation as to the terms of the agreement.
He describes in each proceeding the purchase of 16 prestige cars, including a Rolls Royce, and he describes the circumstances of the purchase of those cars and in particular the Rolls Royce identically in both sets of documents. He says that the purchase of these cars was part of a business arrangement with officers of the Bank.
He describes visiting massage parlours and brothels with the officers of the Bank, and describes arrangements in relation to a finance broker and the loan of money for the construction of offices for a mortgage broking business.

[15]

Counsel for the Bank then took me through a comparison of the application filed by Stojna in the Tribunal proceeding, and the defence and counterclaim filed by Stojna in the Supreme Court proceeding.
The position is a little different in relation to the claim by Stojna because the Supreme Court proceeding brought against her encompasses the Bank's claims in relation to all of the security documents signed, whereas Stojna's claim at the Tribunal is only in relation to the circumstances of signing of the 2002 loan agreement.
Further, the matters raised by Stojna in her application before the Tribunal do not involve the company Sky Empire Pty Ltd or Lupco's wife, Snezana.
However, otherwise the matters on which Stojna relies in this proceeding were submitted to be mirrored in those parts of the defence and counterclaim filed by her in the Supreme Court proceeding which relate to the same subject matter as is before this Tribunal.
Counsel for the respondent took me through a comparison of the facts alleged in her application and the facts alleged in the defence and counterclaim in the Supreme Court proceeding.
In each proceeding she alleges that the bank officials were regular visitors to her home, having accepted her hospitality in attending social functions at which she was present, and that by reason of that familiarity they would have known that she deferred to Lupco in business matters and that she was illiterate in English and was an elderly Macedonian woman of poor health.
In the VCAT proceeding she alleges she was directed to sign the documents by Lupco. This is not specifically alleged in the Supreme Court documents but the circumstances of execution of the loan are clearly raised.
She alleges in each proceeding that she was given no information regarding the documents, that it was not suggested to her that she should obtain independent legal advice, that she was specifically not advised that the loan was intended to consolidate existing loans, that she got no benefit from the loan, that she was under the control and influence of Lupco at the time of making the loan, that she was of limited experience in commerce or business, and that it would be unconscionable to enforce the terms of the loan against her.
The relief which she seeks in each proceeding is a declaration pursuant to sections 7, 8, and/or 8(a) of the Fair Trading Act that the loan agreement and mortgage made in 2002 is void and unenforceable, and an order that the loan agreement and mortgage be set aside and a discharge of mortgage and release be provided.
In the VCAT proceeding she also seeks an order pursuant to s158 of the Fair Trading Act.
She also seeks her costs of the VCAT application.

[16]

Accordingly, the Bank's submission was that each proceeding at VCAT was in effect a subset of the proceedings in the Supreme Court. The Supreme Court proceedings being ready for trial, it would be more appropriate for the proceeding to be dealt with in full by the Supreme Court than in part by this Tribunal.
Counsel for the Bank pointed out that even if the dispute was to be tried at this Tribunal the same witnesses would be needed to give evidence before the Supreme Court in any event. He emphasised that there was a significant overlap between the issues and the relief sought in these proceedings and in the Supreme Court proceedings. He pointed out that even if the Tribunal proceedings were effective to dispose of the Bank's claim under the guarantee, the Bank would still proceed against Stojna on the other securities which are not part of the VCAT proceedings.
He suggested that the VCAT proceedings would not reduce the cost or length of the Supreme Court proceedings to any appreciable manner, particularly having regard to the fact that if the VCAT proceedings continued, the Supreme Court proceedings may need to be the subject of re-pleading.
Further, he suggested that if the Tribunal hearing was to proceed there would be a risk of inconsistent findings, particularly in relation to the credibility of witnesses, but also in relation to the circumstances of signing of the various security documents.
Finally, he submitted that if the proceeding was to stay at VCAT, the Bank would file defences and counterclaims and there was a reasonable doubt as to whether or not the Bank's counterclaims would be justiciable at VCAT.
The Bank seeks possession of three properties in the Supreme Court proceeding. At the moment the Bank seeks no relief at all at this Tribunal, but in the event that the Bank sought possession of the properties this relief may not be available at the Tribunal, as the Tribunal's remedies are significantly limited.
The Tribunal is a creature of statute. It does not have any inherent powers. It may only exercise jurisdiction which is expressly conferred apon it by Parliament. Neither counsel could identify any precise power under which the Tribunal could make an order for possession of land, other than the powers exercisable under the Fair Trading Act.
The question of whether this Tribunal can make an order for possession of land, or otherwise enforce obligations under a mortgage, was considered in Linton and Vink v The Commonwealth Bank [2004] VCAT 870. In this case Judge Bowman expressed doubts about whether or not the relief sought by the Bank was available before the Tribunal.
Because of those doubts, and his confidence that the relief sought could be obtained in the County Court, he decided to exercise power under s77 to strike out the proceeding on the condition that the respondent issued proceedings out of the County Court of Victoria in relation to the same subject matter.
Counsel also referred me to a later decision of His Honour Judge Bowman in Raline Industries Pty Ltd v MJPE Investments Pty Ltd (2006) VCAT1607 in which His Honour had been faced with a similar issue.
Judge Bowman said in that case that, where doubt exists as to whether this Tribunal can afford appropriate relief for jurisdictional reasons, the proceeding should be referred to a body which unquestionably possesses such jurisdiction. In the case before him, he determined that the circumstances of the dispute before him were such that the natural forum was the Supreme Court of Victoria.
Counsel for the Bank suggested that I should come to the same conclusion in this case.

[17]

Counsel for Stojna pointed out that it is the Bank which bears the onus of proving that this proceeding should be struck out because the subject of the matter is more appropriately dealt with at the Tribunal.
He relied upon the comments of Justice Kellam in Bentley [2002] VCAT 139, to the effect that in making a decision under s77, I should be clear that the Tribunal was an inappropriate forum before denying a litigant the opportunity of using the Tribunal.
Counsel for Stojna submitted out that the loan to which the VCAT application relates was a discrete transaction. His submission was that only two witnesses would be needed to give evidence at the Tribunal hearing in relation to this transaction - Gavin Halley from the Bank, and Stojna herself. He said this was apparent on the Bank's own pleadings in the Supreme Court.
Therefore, he suggested that the matter could be dealt with relatively simply at the Tribunal hearing. I should not just look at the pleadings filed in the Supreme Court, but consider the evidentiary simplicity on the application as it presently exists in this Tribunal.
He pointed out that the Bank has not yet filed a defence or counterclaim at the Tribunal and submitted that I had no evidence before me which established that they would do so. He suggested that the Bank has had ample time to seek to counterclaim in the Tribunal proceeding and has not done so.
Therefore, the question of whether the Tribunal had power to order possession of land, and more generally whether all of the remedies which might in theory be sought by the bank against Lupco and Stojna were justiciable in this Tribunal simply did not arise.
He submitted to me that the convenience of the Bank should not be a significant consideration in deciding the matter under s77. He said that I should not lightly deny access to this Tribunal to an elderly migrant woman. He reminded me that the Tribunal was established to enable easy access to justice.
He submitted that the fact the Tribunal would not normally order costs was a significant factor in making it more appropriate for a dispute of this nature. I might say, however, that this argument lost a great deal of its force given that Stojna has herself applied for costs in her application before this Tribunal.

[19]

I do not accept that the Tribunal application either in relation to Stojna or Lupco is relatively simple. I accept that many of the issues in the application presently before this Tribunal significantly overlap with issues in the Supreme Court proceeding. Even where the subject matter is different, overlapping will occur in relation to the credibility of witnesses. In my view it would be unfortunate if part of the factual chronology of this proceeding were established by way of evidence at this Tribunal and then were revisited in the Supreme Court proceedings.
In my view it is inevitable that the Bank will seek to counterclaim in this Tribunal proceeding if it were allowed to stay on foot, and that the counterclaim would deal with identical matters as have been already initiated in the Supreme Court of Victoria. It is also inevitable that it would seek to join Lupco to these proceedings.
Given the above considerations, I doubt that the applications before this Tribunal could be prepared for hearing at any earlier date than that already allocated to the Supreme Court proceeding.
I am not convinced that this Tribunal would have the power to deal with any claim by the Bank for possession or enforcement under the mortgages which are the securities in this matter. I also note that Stojna seeks an order under s158 of the Fair Trading Act, relief which is arguably only available in a court, not in this Tribunal.
Accordingly, it is my view that it is more appropriate for the relief sought in each proceeding to be litigated in the Supreme Court of Victoria. In my view it would be in the interests of all parties if the subject matter of this claim was dealt with as part of the Supreme Court proceedings which are presently fixed for hearing on 3 February 2009.
I have considered whether there is any difference in the position of Stojna and Lupco when considering this s77 application. I wondered whether it might be possible to have the application brought by Stojna heard at the Tribunal, and the application by Lupco, referred to the Supreme Court.
There is a difference in the subject matter, in that the grounds covered by Stojna's complaint are not as broad as the grounds covered by Lupco, and do not precisely cover all of the issues in the Supreme Court proceeding.
However, in my view, to separate the hearing of each claim would be to create further prospects of confusion and risk of inconsistencies.
As I have earlier outlined, the Bank says that even if its claim on the guarantees fails in this Tribunal, and the Tribunal's decision is effective to preclude it from relying on those guarantees in the Supreme Court proceedings, then it relies upon the existing mortgages and loan agreements to enforce payment by all of the respondents in the Supreme Court proceeding of the monies said to be due to the Bank. Therefore, Stojna will still be a necessary party to the Supreme Court proceeding, even if the Tribunal application is disposed of before 1 February 2009.
Accordingly, I propose to strike out the proceeding under s77 of the VCAT Act. I do not propose to make any other order under s77 (2) as the subject matter of the VCAT proceedings is already before the Supreme Court of Victoria.

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (1)

Commonwealth Bank of Australia v Slaveska (Civil Claims) [2008] VCAT 2072 (6 October 2008)