Ghosh v Scott Newton trading as Shaw Gidley

Procedural background

1. This is the last remaining proceeding of the various actions brought by Ms Ghosh that it has fallen to me to case manage since last year. It was not in dispute that Ms Ghosh is an undischarged bankrupt. The date of Ms Ghosh's bankruptcy is 30 September 2016. She was made bankrupt on the application of the second defendant, Mr Miller, and she is due to be discharged from bankruptcy on 19 October 2024.
2. In Ghosh v Scott Newton trading as Shaw Gidley (No 6) [2023] NSWSC 1393, Schmidt AJ struck out Ms Ghosh's statement of claim. Her Honour gave Ms Ghosh leave to replead, but making it clear that it was her last chance, which if unsuccessful, would likely result in the dismissal of the proceedings.
3. Having regard to the history of this matter, in particular as set out in her Honour's reasons, I respectfully agree that the opportunity which Ms Ghosh has now been afforded should be her last. It must follow, given the Court will not grant leave for the proposed ASC to be filed, that the proceedings should be dismissed.
4. The same history, including the form of the proposed ASC, satisfy me that there would be no utility in affording Ms Ghosh a further opportunity to attempt to replead her claim, and that it would in fact do an injustice to the various parties who she has sought to vex by these proceedings to put them to the time and trouble of considering yet another draft of a claim which she has had more than adequate opportunities to attempt to formulate in a legally cognisable way.
5. The amended notice of motion which is before me is the means by which Ms Ghosh took advantage of the last chance given to her by Schmidt AJ. Before coming to the present hearing, it is also necessary that I record that in Ghosh v Scott Newton trading as Shaw Gidley (No 7) [2023] NSWSC 1558, I refused Ms Ghosh's application for the issue of an injunction to restrain the first defendant, Mr Newton, her trustee in bankruptcy, from taking possession of a property in Charlestown.
6. That refusal was by reference to an earlier version of the proposed ASC, but in most material respects substantially identical to it. In that judgment I said: 27 In order to succeed today, Dr Ghosh would have had to have demonstrated a serious question to be tried that she has a cause of action against Mr Newton set out in the proposed pleading that would lead to final orders being made that would necessitate preventing him from enforcing the Possession Order. Given any such order by this Court would at least be a collateral interference with the orders of another court, in my respectful view this Court would have to be more than comfortably satisfied that there was such a serious question to be tried. 28 I am not satisfied at all that the proposed pleading discloses any such serious question to be tried. That is because the allegations against Mr Newton are prolix, are made in general terms, make serious allegations (including fraud) in a rolled-up fashion without any attempt at particularisation, and do not disclose as a matter of pleading any reasonably maintainable causes of action. Furthermore, it is not sufficient for Dr Ghosh to refer to unspecified affidavit evidence either filed or yet to be filed to fill the substantial gaps in her pleading.
7. Regrettably for Ms Ghosh, and despite her having informed the Court that she has had the benefit of consultations with several firms of lawyers, the criticisms that I made of that proposed draft pleading are equally applicable to the proposed ASC.

The proposed ASC

1. The parties to the proposed ASC are as follows. The proposed defendants appeared by leave and all opposed Ms Ghosh's application.
2. The first defendant is Mr Newton. Mr D Neggo of Counsel appeared for him today.
3. The second defendant is Mr Rodney Miller, who was the petitioning creditor on whose application Ms Ghosh was made bankrupt. Mr Miller did not appear today but sent an email to my chambers on 9 May 2024 saying: "I strongly oppose any further amendment to the SOC. I have been dealing with Ms Ghosh now for over 13 years and it is always the same thing about amending SOC's in every case I have been involved in concerning her, she should know how to prepare one by now."
4. The proposed third defendant, Shaw Gidley Port Macquarie Pty Ltd, is Mr Newton's firm, which was also represented today by Mr Neggo.
5. The fourth defendant, Mr Bhaskar Bandyopadhyay who is referred to without disrespect as Mr Bandy, is Ms Ghosh's ex-husband. Mr Bandy appeared for himself.
6. In addition to relying on some affidavit evidence in which he has taken issue with a number of the allegations made against him in the proposed ASC, Mr Bandy invited me to have regard to an "interim defence" which he had emailed to the Court, and also to take notice of a proposed cross-claim, which if he were joined in these proceedings he sought leave to file.
7. The first two prayers of the proposed cross-claim relate to the dismissal of these proceedings and the dismissal of the present notice of motion. To that extent the proposed cross-claim is superfluous. The third prayer for relief in the proposed cross-claim is that Ms Ghosh be declared a vexatious litigant.
8. I have explained to Mr Bandy that it is not necessary for him to seek that relief in a cross-claim, the need for which has been overtaken by the Court's conclusion in these reasons. It is a matter for him whether he wishes to pursue separate proceedings against Ms Ghosh to have her declared to be a vexatious litigant.
9. The proposed fifth, sixth and seventh defendants are respectively the nephew, sister and brother-in-law of Ms Ghosh. They did not appear today.
10. However, the proposed eighth defendant, Ms Supriya Chowdhury, who is Ms Ghosh's niece, was represented before me today and submissions were made on her behalf by Mr W Abramowicz, Solicitor. While he did not appear for the other members of the Chowdhury Family, his submissions extended to, at least by reference, dealing with the claim against his client as one that was purportedly sought to be brought against the Chowdhury Family.
11. The proposed ninth defendant is the Commonwealth Bank of Australia (CBA). It was represented today by Ms Z Hillman of Counsel.
12. The proposed tenth defendant is the Bank of Queensland Limited. It did not appear.
13. The proposed eleventh defendant is the National Australia Bank Limited (NAB). It was represented today by Mr J Hynes of Counsel.
14. Each of the represented parties has filed detailed written submissions which I have taken into account. Ms Ghosh has filed several written submissions which I have read, including those filed most recently by way of reply to the submissions of some of the proposed defendants. Ms Ghosh has supplemented those written submissions by her oral submissions today.
15. The tenor of the proposed ASC may be conveniently demonstrated by setting out its description of the type of claim and the relief claimed: TYPE OF CLAIM Corporations law - Directors Duties, Breach of Trust, Mercantile Law- other 1. Equitable Fraud 2. Breach of trust by 1st, 3rd and 5th defendants 3. Breach of trust pursuant to s197(1) of the Corporations Act 2001 (Cth) ('CA') by 4th defendant as director of plaintiff's company and as trustee of her superannuation fund in theft and loss of company and regulated superannuation fund assets pursuant to s55(3) of the Superannuation Industry Supervision Act 1993 (SIS Act) and signing consent orders to give away her superannuation fund assets without her consent and in his failure to take total permanent disability insurance for the plaintiff's superannuation fund and in running the fund to the exclusion of the plaintiff. 4. Breach of the Superannuation Industry Supervision Act 1993 (SIS Act) by the 4th defendant 5. Breach of fiduciary duty and duty of care by the 1st , 3rd , 4th , 5th and 6th defendants 6. Breach of the 1st and 3rd defendants' statutory duties pursuant to s19(1) Bankruptcy Act 1966 and Division 42 of the Insolvency practice rules 7. Total Permanent Disability Claim 8. Failed to act with due care and skill pursuant to s12ED of the ASIC Act 9. Breach of s60 Australian Consumer Law, Due Care and Skill 10. Breach of s62 of Australian Consumer Law, guarantee as to reasonable time of supply 11. Breach of the Banking Code of Practice, chapter 14 12. Breach of contract 13. Intentional infliction of emotional distress 14. Undue Influence RELIEF CLAIMED 1 Extend time beyond the statute of limitations as necessary, especially for the ninth, tenth and eleventh defendants. 2 Pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 Cth s 8(1), transfer Family Court Brisbane Proceedings BRC 8518/2020 to and merge with these Proceedings 3 Damages against each of the defendants, including aggravated damages for failure to remedy the breaches or compensate the plaintiff. 4 An order that the first, third and fourth defendants by themselves, their servants or agents, be permanently restrained from dealing with the plaintiff's superannuation fund assets. 5 Equitable compensation. 6 An account of profits. 7 Interest under s 100 of the Civil Procedure Act 2005 from the date of each breach of trust until the date of any judgment. 8 A declaration that the plaintiff is entitled to set off any amount awarded by this Court In damages as against any moneys she is found liable to pay the first defendant to discharge her bankruptcy. 9 An order that the first, second and third defendants refund to the plaintiff all funds seized from her estate in excess of the debts provable in bankruptcy at the date of forced bankruptcy, 30 September 2016, with interest and compensation for under sale of properties. 10 An order that the second defendant pays the plaintiff all costs orders against him, with interest, and a refund from the $175 000 paid to him by the first defendant in 2020 of any excess over the debts provable in bankruptcy, as assessed or lump sum costs, on the date of forced bankruptcy, 30 September 2016. 11 An order to restore the plaintiff's estate to its previous state before the breaches of trust. 12 A declaration that the first defendant has no debts provable in bankruptcy, pursuant to s 82(6) of the Bankruptcy Act 1966 13 Replace the sixth defendant as executor of the plaintiff's mother's will with the plaintiff or her uncle. 14 A finding of undue influence, intentional infliction of emotional distress, domestic violence, elder abuse and neglect, child abuse and neglect, coercive control and financial abuse against the fourth, fifth, sixth, seventh and eighth defendants 15 A finding of breach of the 1st and 3rd defendants' statutory duties pursuant to s19(1) Bankruptcy Act 1966 and Division 42 of the Insolvency practice rules 16 Pursuant to s.79 of the Corporations Act 2001(Cth) charge the fourth defendant with the contraventions as pleaded at (49] to (84] and the first and third defendants as accessories. 17 Total Permanent Disability Claim 18 A finding of failure to act in good faith, failure to act with due care and skill pursuant to s12ED of the ASIC Act, Breach of s60 Australian Consumer Law, Due Care and Skill, Breach of s62 of Australian Consumer law, guarantee as to reasonable time of supply, Breach of chapter 14 of the Banking Code of Practice, and Breach of Contract against the "Bank Defendants, 9, 10 and 11" 19 An order that the 5th, 6th, 7th and 8th defendants are not to remove any funds or assets from the plaintiff's parents' estate, and not to bill their estate for the defendants' legal costs 20 Costs on a gross sum basis pursuant to s 98 (4)(c) of the Civil Procedure Act 2005 against the defendants

Some overarching observations

1. The proposed ASC is 140 paragraphs in length, over some 30 pages. I accept Mr Neggo's description that it is a "document ventilating all of [Ms Ghosh's] complaints against all the world". It is important to note that in accepting the various criticisms made of the proposed ASC, the Court is not to be taken as judging the merits or otherwise of Ms Ghosh's various complaints. The only question before me today is whether, as a matter of pleading, the proposed ASC as a document for which leave to file ought be granted.
2. The Court's general conclusions may be summarised as: 1. The pleading remains extremely prolix and is far from straightforward. It is difficult and in places, with respect, impossible to understand. It co-mingles allegations and makes no attempt to satisfy the requirements of the rules to the effect that the material facts for each cause of action be pleaded as briefly as possible and as intelligibly as possible. 2. It makes numerous unparticularised and rolled up allegations, including very serious matters such as theft and fraud. 3. It fails to plead causes of action known to law. 4. Insofar as it makes allegations against Mr Newton and his firm, and in relation to the conduct of her bankruptcy generally, there is much to be said for the conclusion that these are complaints in bankruptcy for which this Court lacks jurisdiction. However, the more fundamental vice is that the form of the pleading makes it very difficult to determine one way or the other whether there are clearly complaints in relation to which this Court would have jurisdiction. 5. The same pleading difficulty attends the question of what causes of action may have properly vested in Ms Ghosh's trustee. It will be apparent from what follows that I accept the submission from some of the proposed defendants that the relevant causes of action, if they are being properly understood, are matters that have vested in Mr Newton. But it must be acknowledged that there are other parts of the pleading where the obscurity of the drafting makes it very difficult to determine whether it is something that could still be a matter that Ms Ghosh has standing to advance notwithstanding her bankruptcy.
3. Before turning to some of the specific submissions, I should also record the other applications which Ms Ghosh made from the bar table. She accepted that the primary matter before the Court today was whether she should be given leave to file the proposed ASC. She also applied in response to some of the jurisdictional issues raised by some of the proposed defendants, that this Court should transfer her claims against the first and third defendants to the Federal Court of Australia (FCA) as special federal matters. That application falls away because of the view to which the Court has come about the merits of her pleading.
4. I should also note in that context that Ms Ghosh informed the Court that she currently has an application for annulment of her bankruptcy being case managed by Justice Jackman in the FCA. As a matter going to the exercise of this Court's discretion, I have taken into account that insofar as Ms Ghosh has any complaints about the conduct of her bankruptcy, the dismissal of these proceedings does not finally determine any such complaint. If she wishes to prosecute those complaints those are matters that, in my respectful view, are properly for the FCA. It is a matter for her whether she wishes to seek to have whatever those complaints are to be added to the matters currently under the case management of Justice Jackman. However, insofar as Ms Ghosh submitted that the dismissal of those claims in this Court would lead to some prejudice to her, for the reasons I have just given I do not accept that submission.
5. Ms Ghosh also applied for an order that what she referred to as a charge that Mr Newton has over one of her properties be moved to another property. That was not an application, even if I had jurisdiction to deal with it, that I would permit to be dealt with without proper notice and evidence.
6. Finally, before turning to the specific submissions made by the various represented parties, I will set out several paragraphs of Ms Ghosh's pleading. I have selected these at random and reproduce them as examples of the difficulties which I have highlighted in paragraph [28] above. In doing so, I accept Mr Neggo's submission that ultimately it is not the task of this Court to attempt to "blue pencil" the proposed ASC in an attempt to find a maintainable cause of action, if there be such, in the document.
7. The proposed ASC is the document the subject of Ms Ghosh's application, and it must be read as a whole. Nevertheless, these paragraphs are illustrative of the fundamental difficulties which I have identified as standing in the way of leave being granted: 12 The first defendant (as director of the third defendant) obtained a s139ZQ notice from AFSA by fraud on 4 June 2020, to reverse transfer of a regulated superannuation fund property, by falsely alleging the plaintiff had transferred the property at 49 Patricia Avenue Charlestown NSW, which was her principal business address, to her superannuation fund in 2014, two years before the forced bankruptcy for only $12 000 of debt, "in order to defeat creditors", when there was no bankruptcy proceedings against the plaintiff at the time, and there was no evidence she tried to "defeat creditors", as the first and second defendants refused her annulment application in Federal Court on 22 October 2016, in order to keep the solvent plaintiff in indefinite insolvency, by fraud and breach of trust. The first defendant also lied to AFSA about the value of the transfer which was $500 000.00 in the Office of State Revenue Valuation, not $853 000.00 as he falsely alleged to AFSA to claim more than the s139ZQ rules allow. This exemplifies the fraudulent exaggerated costs claimed against the plaintiff's estate by the first and third defendants continually for 7 years. … 38 In 2015 to 2016, the plaintiff's justice of the peace, Robert Allen, was severely bullied and harassed in repeated threatening, harassment phone calls and emails by the second defendant's lawyers, Higgins and Dix Port Macquarie (now changed name to Stacks Port Macquarie) to intimidate him to swear a false affidavit that was prepared and emailed to him by the lawyer to falsely accuse the plaintiff of forging the JP's signature which he repeatedly denied. His denial was followed by threats by the lawyer to cancel his registration as a Justice of the Peace and to defame him, and criminal hacking into his phone, laptop, and all of his devices, wiping out the memory and rendering his devices and email unusable. This caused him extreme emotional distress, as Intentional infliction of emotional distress. Justice of the Peace Robert Allen provided a sworn affidavit confirming this. … 42 The first defendant has refused to pay the plaintiff her basic costs of living in 7 years, and alleges he has no funds left in trust, yet his lawyers, Stacks Port Macquarie, keep representing him for vexatious proceedings for the purpose of theft of exempt superannuation fund properties, and his Stacks law firm was paid around $105 000.00 in 2020 from the plaintiff's estate pending orders against the first defendant in the family court. As the law firm is not a creditor to the plaintiff's estate, and the first, second and third defendants were already paid for their legal costs, there is no legal basis to pay their common lawyer except as upfront payment for vexatious proceedings for theft of regulated superannuation fund properties exempt from a bankrupt's estate. This constitutes a contempt of court, while orders were pending against the first defendant in Family Court, to defeat justice of the plaintiff's claim against him. … 73 From March 2019 until October 2020 the fourth defendant occupied the plaintiff's SMSF property at 26 Snowwood St Reedy Creek Qld with a female consort without the plaintiff's consent and refused to pay her rent and damages. The property rented for $1500 per night in 2009, and was in brand new condition, unoccupied for 10 years since, due to the second defendant's criminal defamation campaign to force the plaintiff to leave both of her holiday rental properties empty, and mismanagement by the fourth defendant failing to rent it. … 109 On 2 February 2024, the seventh defendant asked police to inform the plaintiff that her mother was dead, nine days after her death on 25 January 2024, but did not inform her of the funeral date, and instructed the funeral parlour to not give the plaintiff any information. He advised that the "Chowdhury Family'' wanted no contact with the plaintiff, who was only allowed to view her mother's dead body at 1pm on 5 February, not having allowed any contact while her mother was alive since September 2020, in psychological abuse and Intentional Infliction of Emotional Distress. … 120 The Ninth Defendant failed to act with due care and skill pursuant to s12ED of the ASIC Act and s60 of Australian Consumer Law, by deducting all disputed transactions on the plaintiff's credit cards from the mortgage sale without investigation of the disputes, and without the plaintiffs consent, despite being informed the goods and services paid for had not been provided, in breach of s62 of Australian Consumer law, guarantee as to reasonable time of supply, including around $7000 paid to a travel agent in 2016 who failed to provide tickets for a Norwegian line Cruise paid for on the plaintiff's CBA card, so the cruise couldn't be used. …

Ms Ghosh's submissions

1. I have already referred to the fact that Ms Ghosh has filed various submissions in support of, and in reply to those of other parties on, the present application. I have read them carefully and heard Ms Ghosh today. However, the fundamental difficulty with Ms Ghosh's submissions is that she does very little more than disagree with propositions that are advanced against her, both as to the facts and the difficulties with the pleading.
2. Much of her submissions continue to consist of serious allegations of fact against the various parties concerned, without engaging with the actual issue before the Court today, being the adequacy of her pleading and the existence or sustainability of the causes of action sought to be pleaded in it. With the greatest of respect to Ms Ghosh as an unrepresented litigant, and while I accept that she has undoubtedly attempted to do the best she can, she has not succeeded in engaging with the complaints that have been advanced against her by the various current and proposed defendants.
3. In making these observations, I have not overlooked Ms Ghosh's detailed eight-page submission in relation to jurisdiction. Navigating the jurisdictional division between courts in relation to bankruptcy matters can be difficult even for qualified lawyers. It is unnecessary for me to deal with her submissions on jurisdiction and transfer for the reasons I have set out in paragraph [28] above. In the result, even if the Court were minded to transfer anything to the FCA or had to transfer anything to the FCA, there will be nothing to transfer to that court.

Mr Newton's and Shaw Gidley's submissions

1. I accept Mr Neggo's submissions as set out in his document dated 15 March 2023. In particular, the following two matters seem to me to be especially determinative against Ms Ghosh's application.
2. First, I accept that much of her claim against the first and third defendants constitutes a collateral attack on decisions in other courts. These include findings as to solvency: Miller v Ghosh (No 3) [2016] FCCA 2491; Miller v Ghosh (No 2) [2017] FCA 890. Furthermore, paragraphs 12, 15, 18, 21, 34 and 35 of the proposed ASC seek to traverse challenges to a s 139ZQ notice which has already been dealt with at first instance and on appeal in the Federal Circuit and Family Court of Australia (FCFCA): Lahiri & Saha [2022] FedCFamC1F 271; Lahiri & Saha (No 2) [2022] FedCFamC1A 181. Furthermore, orders have been made in the FCFCA giving judgment for the trustee against the company which is or was the trustee of the plaintiff's superannuation fund for $853,875 and authorising the sale of real property owned by that company. Those orders have been upheld on appeal: Saha v Lahiri (No 3) [2023] FedCFamC1A 144.
3. Second, the proposed ASC repeats claims that have previously been rejected in earlier pleading disputes. For example, paragraphs 22 to 23 of the proposed ASC is in substance the same as paragraphs 13 to 14 of the earlier pleading struck out by Schmidt AJ (see [44] Ghosh (No 6)). Similarly, the proposed ASC includes a heading relating to "criminal hacking", which does not appear to have changed in the proposed ASC from the version dealt with by Schmidt AJ.

Ms Chowdhury's submissions

1. I accept Mr Abramowicz's characterisation of the claim against Ms Chowdhury that in reality it appears to be a claim against the Chowdhury Family. Ms Ghosh in reply described this claim as an attempt by her to recover property stolen from her parents' estate. If that be the true nature of the claim, and it is not entirely clear from the proposed ASC, then Ms Ghosh has not disclosed how she has standing to make such a claim (or others relating to the alleged treatment of her mother) or how it is said that the various members of the Chowdhury Family, including Ms Chowdhury, may be liable for it.
2. The nature of the claim against the Chowdhury Family appears from the heading in the proposed ASC: "The eighth matter complained of is: Undue Influence, Breach of Fiduciary Duty and Duty of Care, Intentional Infliction of Emotional Distress, Breach of Human Rights, Elder Abuse and Neglect, Fraud and Theft by the Fifth, Sixth, Seventh and Eighth defendants, the 'Chowdhury Family'".
3. I accept Mr Abramowicz's written submissions dated 16 May 2024 as to the deficiencies in the pleading against his client and for that matter against the Chowdhury Family. It is sufficient by way of example that I reproduce one such criticism from those submissions: 16. Paragraph 105 - The fifth, sixth, seventh and eighth defendants incarcerated and confined the plaintiff's mother at their Waverley apartment followed by their Dover Heights Sydney apartment at 8 Peel St from late September 2020 until 10 May 2022 and in Vaucluse Aged Care Home at 13 Young St Vaucluse from May 2022, and deprived her of all contact with family and friends including the plaintiff, her son and her uncle despite her having regular contact with all 3 before the power of attorney was forced by the fifth defendant and requesting contact after it. 17. This pleading discloses no cause of action in favour of the plaintiff and, because of the way in which it has been pleaded, is irrelevant. A pleading will have no reasonable cause of action if the claims in question are ambiguous or so obviously untenable or groundless that there is a high degree of certainty that they will fail if allowed to go to trial. It is uncertain what the Plaintiff is pleading in "the power of attorney was forced by the fifth defendant". It is also uncertain what the Eighth Defendant did to give rise to a cause of action. It is unclear what the Plaintiff seeks in this pleading. If there is a cause of action in this pleading, it has been convoluted by many factual contentions and is ambiguous. 18. Further, even if the facts as alleged in paragraph 105 were properly pleaded and particularised it would not give rise to any cause of action by the plaintiff against the named defendants. It is an abuse of process and is designed for the purpose of causing embarrassment to the named defendants. The same or similar points are well-made in relation to the other parts of the proposed ASC in relation to the Chowdhury Family.
4. I reaching this conclusion I have considered and reject Ms Ghosh's submissions in reply, which may be exemplified by this extract: 16. The denial of all liability by D8's lawyer is a breach of his obligations to the Court under the Legal Profession Act. His submissions are without any merit. 17. The Equity division routinely deals with families like the "Chowdhury family" who steal all parental assets and abuse their siblings.

CBA's submissions

1. I accept Ms Hillman's submissions dated 10 May 2024. The primary difficulty with the case sought to be pleaded against CBA is that it fails to plead how any steps said to have been taken by CBA were causative of any loss to Ms Ghosh. Similarly, a bare assertion of damages is insufficient to demonstrate a proper claim without material facts having been pleaded, let alone to claim aggravation by "the defendant's [sic] failure to apologise or offer remedies or compensation" to Ms Ghosh. I am unable to discern what the pleaded claim against CBA is that would be recognised in law.
2. I have not overlooked Ms Hillman's submission that even if there were a cause of action, it would have vested in Ms Ghosh's trustee and bankruptcy. That may well be right, but for the reasons I have set out in [28] above, it is not a matter on which I can reach a final view.
3. In her reply to CBA's submissions, Ms Ghosh said that insofar as she had suffered damage it was in the nature of personal injury as a result of the CBA's alleged actions, whatever they may have been. Ms Ghosh relied upon s 116(2)(g) of the Bankruptcy Act 1966 (Cth): 116 Property divisible among creditors …(2) Subsection (1) does not extend to the following property: … (g) any right of the bankrupt to recover damages or compensation: (i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or (ii) in respect of the death of the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;
4. I accept Ms Hillman's submission that the type of personal injury which Ms Ghosh appears to be complaining about would not fall within s 116(2)(g). The damage she appears to wish to claim arises from the loss of property alleged to have been caused by CBA. Any such cause of action would have been vested in her trustee in bankruptcy: Samootin v Shea [2010] NSWCA 371 per JC Campbell JA at [81] (Beazley and Hodgson JJA agreeing).

NAB's submissions

1. I accept the submissions of Mr Hynes of Counsel on behalf of the NAB dated 16 May 2024. The claim against NAB appears in three paragraphs of the proposed ASC which may conveniently be reproduced here: 132 The Ninth Defendant acted against good faith and failed to act with due care and skill pursuant to s12ED of the ASIC Act and s60 of Australian Consumer Law, by selling a disputed debt on the plaintiff's credit card to Baycorp in 2013, without disclosure to the plaintiff or her consent, at a fraction of the amount of debt, which caused the bankruptcy proceedings to be commenced by Baycorp against the solvent plaintiff, who claimed the full debt owed to NAB despite paying only a small fraction of it to purchase the debt. 133 The Ninth Defendant failed to act according to chapter 14 of the Banking Code of Practice, despite being informed that the plaintiff was very vulnerable at the time, abandoned by her husband and left no money to live on, while caring for a disabled child alone 134 This dispute should have been considered before forcing a sequestration order against the solvent plaintiff on 30 September 2016, and is the new evidence if required to reopen the plaintiff's bankruptcy dispute.
2. In particular, I accept Mr Hynes' submission that those paragraphs raise unparticularised assertions which cannot be reconciled with the relief sought or as demonstrating an apparently arguable cause of action. It is not possible to determine how the alleged conduct constituted the breaches alleged, or how that may have led to the bankruptcy of Ms Ghosh. Nor is it identified how it is said that NAB failed to act in accordance with the Banking Code of Practice, or even if it had so failed, what the consequence of such a breach was that would give rise to a cause of action in Ms Ghosh.
3. I also accept Mr Hynes' submission that it would appear that the proposed ASC proceeds on an erroneous assumption, being that Baycorp Pty Ltd was in some way involved with the sequestration order that was made in relation to Ms Ghosh in September 2016. However, the National Personal Insolvency Index searches, tendered in evidence before me, make clear that Baycorp Pty Ltd's creditor's petition was dismissed on 1 October 2014, and that no sequestration order was made in relation to it. Neither Baycorp Pty Ltd nor NAB were petitioning creditors in respect of the sequestration order that was ultimately made in relation to the plaintiff on the application of the second defendant on 30 September 2016. I therefore accept the submission that quite apart from the fatal pleading defects, it would appear that the claim is factually unsustainable.

Conclusion

1. For these reasons, the Court will dismiss the amended notice of motion with costs and without leave to replead, respectfully accepting and adopting Schmidt AJ's indication that Ms Ghosh should have only one last chance to produce a pleading that was eligible to be filed. This means that there is no extant originating process, so the Court will also dismiss the proceedings with costs.

Amendments 19 June 2024 - Change Simpson JA to Schmidt AJ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2024