Gorczynski v Bendigo and Adelaide Bank Ltd

Background

1. The Bank's submissions helpfully set out the background to the current application in considerable detail. The following is largely based on the Bank's summary: • On 1 April 2009, the Bank commenced proceedings against the applicant in the Common Law Division seeking an order for possession of the applicant's property by reason of his default under the mortgage. • On 17 November 2009, the Bank obtained default judgment against the applicant. The Bank took possession of the property on or about 27 January 2010. At the time the Bank took possession, a third party had registered a writ against the title to the property. • The Bank exercised its power of sale and completed the sale on 14 May 2010. The net proceeds of the sale exceeded the applicant's indebtedness to the Bank. On the Bank's calculations, the excess was relatively modest. • On 31 May 2010, the applicant filed the notice of motion to which I have referred and sought urgent relief in relation to the excess funds held by the Bank in consequence of the sale. On 9 June 2010, Hidden J made an order that the excess funds be paid into court. • On or around 13 September 2010, the Bank paid $16,836.00 into court. This sum comprised the amount calculated by the Bank as the excess proceeds of sale ($22,349.67), less past costs incurred by the Bank in dealing with the excess funds ($5,253.10) and a further amount ($260.57) apparently mistakenly withheld by the Bank. This last amount was subsequently paid by the Bank to the applicant on 23 December 2014. • On 26 May 2015, Hamill J ordered that the amount paid into court (plus interest) should be released to the applicant. • On 18 August 2015, the applicant filed a motion seeking pro bono assistance in connection with his application to recover the sum of $5,253.10, being the portion of the proceeds of sale applied by the Bank to its post-settlement costs. • On 22 September 2015, McCallum J ordered the Bank to pay the sum of $5,253.10 into court and directed that the applicant receive a referral for pro bono assistance. The Bank complied with McCallum J's order to pay the funds into court. • Between 12 and 18 November 2015, discussions took place between the Bank's solicitor and the applicant's counsel concerning settlement of the dispute. On 18 November 2015, the Bank accepted an offer made on behalf of the applicant, subject to a deed of release being executed. On that day, the Bank prepared a draft deed. • On 19 November 2015, McCallum J was told that the matter had settled, subject to exchange of counterparts of the deed of release. After the hearing had concluded, it appears that the applicant's counsel requested the Bank's representatives to make some amendments to the draft deed. • On 27 November 2015, the matter was relisted before McCallum J. The applicant's counsel informed the Court that the settlement had "evaporated", but that his view nonetheless was that the matter had finally settled. • During the hearing on 27 November 2015, McCallum J raised the possibility that she might resolve the question of a settlement on her own motion, pursuant to s 73(1) of the CP Act. The solicitor for the Bank said that he had no instructions on that suggestion. Counsel for the applicant said that his instructions were to seek a hearing date for the outstanding motion. Her Honour stated that she would grant a hearing date, but that the first issue would be whether the settlement about which the Court had been informed should be regarded as binding. • On 18 December 2015, the Bank's solicitor wrote to the applicant's counsel. The letter, which was in evidence before the primary Judge, included the following: "Our email to the Court of Thursday, 19 November 2015, which was sent with your agreement, confirmed that the parties had formed a binding settlement agreement which resolved all issues presently before the Court, in the terms set out above." [Emphasis added.] In the letter, the Bank offered to make some amendments to the deed in response to the applicant's concerns. However, the Bank did so: "[w]ithout conceding that an agreed settlement does not exist and while reserving our client's rights to seek enforcement of the settlement agreement." • On 1 February 2016, the applicant's counsel advised the Court that his retainer had been terminated. • On 3 February 2015, the matter returned to Court. Mr Foley informed the primary Judge that the Bank was not making an application under s 73(1) of the CP Act, but it had no objection to her Honour acting on her own motion. The applicant, who was not legally represented at the hearing, said that he was prepared to deal with the issue of whether a binding settlement had been reached. Her Honour then proceeded on her own motion to hear the question of whether the parties had entered into a binding settlement of the dispute between them. • In response to a demand by the applicant for immediate payment of the amount due to him, the Bank paid $5,188.53 to the applicant on 18 February 2016.