Croker v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 This is a notice of motion brought by the respondent ("the Bank") seeking orders that the application be dismissed under O 20 r 2(1)(a) on the ground that it discloses no reasonable cause of action or, alternatively, an order pursuant to O 11 r 16(a) that the statement of claim be struck out. I have already outlined to some extent the difficulties with the pleadings in this matter in an earlier judgment which I gave on 2 March 2000 when I ordered that the statement of claim, as then formulated, be struck out. At that time having regard to the fact that Mr Croker was appearing in person and that he may need a further opportunity to reconsider his position and recast the pleadings to attempt to disclose a reasonable cause of action, I granted leave to replead within fourteen days. Mr Croker was ordered to pay the costs of the respondent on that application. 2 The proceedings began in July 1999 when an application was filed by Mr Croker against the Bank, the details of the claim being given as breaches of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA"). Reliance was also placed on ss 7, 8 and 9 of the Contracts Review Act 1980 (NSW) ("the CRA"). 3 The questions of law sought to be raised were said to be that the Bank had breached the TPA and the CRA. The relief sought was that the Bank pay $100,000 in damages, that the Bank's decision not to relieve Mr Croker of the excess amount of the loan agreement be set aside, that the Bank pay damages in respect of the TPA which is seemingly an additional claim for damages, but which I take to be either an additional or alternative claim. It was also said that the Bank should pay damages in equity under four headings. The first one was "explanatory". I think this may mean compensatory, or it may mean exemplary. The second was pecuniary. The final two heads of equitable damages are interest and out of pocket expenses. 4 In my understanding the facts giving rise to the proceedings are that there was a continuing credit agreement between Mr Croker and the Bank dated 9 January 1997 with a credit limit of $3000. The amount of the credit limit was subsequently increased as a consequence of Mr Croker ticking a box in a form, and Mr Croker borrowed money up to the increased limit. Because of unfortunate personal circumstances Mr Croker was unable to meet the amount of the debt and this, combined with interest, has now led to a situation where an amount in the order of $5000 is outstanding. 5 On the previous occasion I examined in detail a statement of claim which had been filed, together with the application, and came to the view that it did not disclose any reasonable cause of action and indeed might be said to be frivolous and vexatious because of the lack of any detail of the serious allegations which were raised. I now have a reformulated statement of claim but, unfortunately in my view, the statement of claim as amended must meet the same fate as the earlier document. 6 Briefly summarised there are the following difficulties. In relation to the first paragraph of the statement of claim there is an allegation of an agreement that was entered into on 9 January 1997. It is said this required the Bank to delineate to Mr Croker the complete nature of the clauses of the contract "for the benefit of the agreement". There is no indication as to the facts, circumstances, or clauses which are said to give rise to this obligation. 7 The second paragraph is a bald allegation that the Bank made a false misrepresentation by silence and failed to reveal relevant information. There was no specification of the circumstances said to give rise to any duty on the Bank to disclose, nor is a description of the relevant information contained in the pleading although there is a broad reference to the "context" of the relationship. It is said the Bank's failure led to a breach of contract. This seems to mix several causes of action and also to refer to a broad background of unspecified circumstances. 8 The third paragraph raises a question of negligence which does not appear in the application. The claim is said to be for "false and misrepresentation by silence" which has led to a breach of fiduciary duty and equity. Again, there is no specification of the Bank's duties or of the circumstances or details of the failure to reveal relevant information. These are important, broad, general allegations without any description of the nature of the fiduciary duty, the circumstances which give rise to it, or the breaches which have taken place. 9 There is also alleged to be an equitable duty on the Bank to act in good faith for the benefit of another person which Mr Croker says has been breached by the negligence referred to in paragraph three of the statement of claim. This is too wide and places the Bank in an impossible position when endeavouring to meet such the claim, even with the benefit of particulars. 10 The fourth paragraph is to the effect that the Bank was in breach of fiduciary duties in not informing Mr Croker of the clauses of the agreement. Again, this is expressed in general terms. There is no specification of the relevant clauses, or of the persons or officers of the Bank said to have engaged in this conduct other than a sentence which does not flow completely from the preceding sentence, but it seems to relate to it. It is worded: "So far as the amount that the Applicant was available to the applicant." 11 I take this to be some form of reference to the amount of the funds which were advanced, or were able to be advanced. It is said the respondent remained silent on the issue until the continuing credit had been withdrawn, but no details were given of this. 12 In paragraph five there are again further allegations in general terms of misleading and deceptive conduct surrounding the explanation or failure to explain the interest rates when requested by Mr Croker. However the terms of the explanation are not given and the matters which should have been explained are not spelt out. 13 I have already referred to this aspect in my earlier decision and the comments I made there apply here but even with greater force. This is because there is even less spelling out of the position in the new statement of claim. 14 In relation to paragraph six there is a reference to the extension of the amount on the continuing credit agreement without the consent of Mr Croker. The details of the amount, it is said, are delineated in the records of the account, but the court is not favoured with the benefit of the statements giving the details of the amount referred to in paragraph six. Mr Croker did tick the box, additional monies were advanced, but as I understand the position Mr Croker spent the money and was unable to repay it. 15 In paragraph 7 it is said that the Bank continually inquired if Mr Croker "would enjoy an increase in the amount of the credit limit". Mr Croker claim several applications were sent to the Bank which delineated his financial situation but these were rejected until the Bank eventually gave him an increase. This is said to be the crux of the matter: that the Bank contradicted its own credit rating system. I do not think this paragraph discloses any arguable cause of action, nor do any of the other preceding six paragraphs. 16 There is then a heading "Particulars of Failure of Fiduciary Duty and Duty of Care". This consists of two paragraphs referring to Mr Croker entering into the agreement without knowing that it would lead to repayment amounts that would be harsh and oppressive. The harshness and oppressiveness is not spelt out and the reasons why, or circumstances in which, the Bank should have informed him in relation to these matters are not spelt out. 17 It is said Mr Croker's evidence shows the harsh and oppressive nature of the facility. The difficulty for him in this matter is that the statement of claim must properly plead these matters and I am not satisfied that it does this. This paragraph does say Mr Croker's accounts were kept at a low balance for a long time "as to afford the repayments". I cannot understand the nature of this allegation, but in so far as it alleges that the Bank deliberately kept the balance of the account at a certain level for an overlong time I cannot see any cause of action is disclosed. 18 Finally, the last paragraph under the heading of Particulars concerns harsh and oppressive conditions, again without spelling them out. 19 This is the second time that I have heard this matter and I have had numerous directions in the course of administering this proceeding. I am familiar with the numerous matters which have been raised by Mr Croker in relation to this matter. I am conscious that he is appearing for himself but in all the circumstances and having regard to the Rules and the requirements of the Orders, particularly O 11 and O 12 I am satisfied to the high standard required by the decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 that the pleadings advanced by Mr Croker disclose no arguable cause of action within the meaning of O 20 r 2. 20 I am also of the view that the proceeding is frivolous or vexatious and an abuse of process. Accordingly, having given an indulgence on a previous occasion and some indication as to what is necessary, and having regard to the additional matters raised by Mr Croker, I am satisfied that this is a case where the proceedings must be dismissed generally. Accordingly I dismiss the application and the proceedings and I order that Mr Croker pay the costs of the Bank in relation to this application.