Khalaf v Australia and New Zealand Banking Group Limited [2018] NSWCA 19 | Case summary

Court of Appeal (NSW)|2018-02-16|Before: Simpson JA, Payne JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: This is an application for leave to appeal from the summary dismissal of the applicant's claim in the District Court.
On 27 September 2017, Wilson SC DCJ dismissed the applicant's further amended statement of claim dated 11 September 2017 under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) on the basis that the pleading did not disclose any cause of action.

Relevant facts

The respondent is the home lender and mortgagee of the applicant's property on Domain Boulevard in Prestons, New South Wales.
The applicant is self-represented and English is not his native language. He prepared the further amended statement of claim himself, although he apparently had the opportunity of receiving some legal advice. The further amended statement of claim identifies the following matters which, despite their mis-description in the pleading, can be understood as the relevant material facts: 1. on 4 March 2016, the applicant decided to sell the Preston property. (FASOC [1.1]); 2. on 24 March 2016, the applicant was told by the respondent that a caveat had been lodged over his property by his ex-partner (FASOC [1.1]); 3. on 31 March 2017 (which should be understood as 31 March 2016) the applicant and an unnamed representative of the respondent again discussed the caveat and how to remove it (FASOC [1.2]); 4. on 28 June 2016, the applicant spoke to Land and Property Information (NSW) and was informed that his house had never been the subject of a caveat (FASOC [2]). The next day, he performed a title search which confirmed that there had never been a caveat lodged over the property; 5. the applicant says that in all of his dealings with the respondent, "every time" it has insisted that a caveat is in place over his property (FASOC [3]); and 6. the applicant claimed loss and damage for stress, depression, the loss of value of the Preston property and "lead up to foreseeable consequence damages until now" (FASOC [4]).
On 3 March 2017, the applicant filed a statement of claim in the District Court of New South Wales seeking "compensation for all damages" from the respondent for: "…suffering unfair from ANZ Bank side, and gave me false information and fabricate the truth, and what the benefit by doing that, just only stopping me to sell the house that time, and put the pressure and stress on me and loss the value of the house that time."
On 20 April 2017, the applicant filed an amended statement of claim. He sought damages, all expenses incurred throughout the case since the alleged signing of the contract for the sale of his land and costs on the basis that the respondent had breached its duty of care, failed to comply with the Code of Banking Practice and caused him nervous shock. The applicant restated his argument that the: "…defendant action stop me to sell the house that time when they told me the house has have caveat and I loss the value of the house. The defendant let me believe the house is having caveat from my ex-partner, and stopped me to sell the house. … The house never ever was has caveat."
On 25 August 2017, the respondent filed a notice of motion seeking summary dismissal of the proceedings under r 13.4 on the basis that the statement of claim failed to disclose a reasonable cause of action, was frivolous or vexatious and was an abuse of process. Alternatively, the respondent sought to strike out the statement of claim under r 14.28 of the UCPR.
On 11 September 2017, the applicant filed the further amended statement of claim summarised above. The further amended statement of claim deleted a number of allegations of material fact earlier made, such as the allegations relevant to causation recorded at paragraphs [6]-[7] above and the allegation concerning engagement of agents for sale of the Preston property. We will return to the significance of those deletions shortly.
On 15 September 2017, Dicker SC DCJ stood over the respondent's notice of motion, apparently in order for the applicant to seek legal advice.
On 26 September 2017, the primary judge heard the respondent's notice of motion. His Honour dismissed the proceedings under r 13.4 of the UCPR, and ordered that the applicant pay the respondent's costs of the proceedings.
On 26 October 2017, the applicant filed a summons seeking leave to appeal.

The primary judge's reasons

The primary judge's reasons are brief: "Quite apart from the fact that the plaintiff is not legally represented, the application made by the defendant should be dealt with on its merits and, in my view, the amended statement of claim filed 11 September 2017 falls foul of r 13.4 of the Uniform Civil Procedure Rules in that the amended statement of claim does not make out a reasonable cause of action or, indeed, any cause of action and the proceedings appear, in my view, to be frivolous and vexatious, given that the statement of claim does not make out a cause of action and given the numerous occasions and opportunities that have been given to the plaintiff to taken [sic] legal representation in respect of whatever his claim might be against the bank. It is my view that the proceedings are also vexatious and for that reasons ought to be dismissed in accordance with r 13.4 In my opinion, it would be inappropriate to allow the proceedings in their current form to continue for the reasons given and also on the basis that the amend [sic] statement of claim fails to make out the factual basis for the plaintiff's complaint against the defendant let alone any cause of action. Accordingly, I dismiss the proceedings brought by the plaintiff most recently in the form of the amended statement of claim filed 11 September 2017."

Applicant's submissions

The applicant's submissions focused on what he submitted were representations made to him on behalf of the respondent about the existence of a caveat over his property. No submissions were advanced about the questions this Court is required to determine on this application, including whether this matter involves any issue of principle, a question of general public importance or an injustice which is reasonably clear: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69.

Respondent's submissions

The respondent opposed the granting of leave to appeal. It submitted that the appeal is bound to fail, as there is no demonstrable error on the part of the primary judge, no reasonably clear injustice in dismissing the claim as pleaded in the second further amended statement of claim, and no issue of principle in question.
The respondent also submitted that there is no real injustice in refusing to grant the applicant leave to appeal because he is not prevented from bringing his claim in fresh proceedings: see s 91 of the Civil Procedure Act 2005 (NSW).

Consideration

Although the applicant's summons seeking leave to appeal was filed outside of the 28 day limit imposed by r 51.10(1)(b) of the UCPR and no extension of time was sought, given the self-represented status of the applicant and the absence of opposition from the respondent the Court grants leave pursuant to r 51.10(2) of the UCPR to extend the time for filing the application for leave to appeal.
Prior to the hearing before the primary judge there had already been three iterations of the pleading. That, of itself, was unremarkable. What was of greater concern is that each successive iteration of the pleading was less intelligible than the last. Whilst we do not suggest that the original statement of claim disclosed a complete cause of action, allegations potentially relevant to a cause of action such as identified acts by the applicant in reliance on the respondent's conduct have been deleted from the later versions of the pleading.
Unfortunately, the further amended statement of claim filed on 11 September 2017 discloses no cause of action. The primary judge was correct so to conclude and to dismiss the further amended statement of claim. No question of principle or of general importance arises in the primary judge doing so.
Despite this conclusion, if, having obtained legal advice, the applicant is able to formulate a properly arguable claim he should be permitted to do so. We accept the respondent's submission that, despite the order made by the primary judge, the applicant is able to bring his claim again: s 91 of the Civil Procedure Act. These proceedings have not been dealt with on the merits. Section 91 makes clear that despite the order made by the primary judge and today's order in this Court, and subject only to presently irrelevant limitation questions, the applicant remains entitled to bring a properly pleaded claim against this respondent about the subject matter of the sale of the Prestons property. The applicant tendered a number of documents on this application. Those documents were not relevant to this application. They may, of course, be able to be deployed by the applicant if he is able to plead a properly arguable claim.
The Court makes the following orders: 1. Extend the time for filing the applicant's summons seeking leave to appeal, pursuant to r 51.10(2) of the UCPR to 26 October 2017; 2. Dismiss the applicant's summons dated 26 October 2017 seeking leave to appeal; 3. Order that the applicant pay the respondent's costs as agreed or assessed. 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: 16 February 2018

Uniform Civil Procedure Rules 2005(NSW)rr 13.4, 14.28, 51.10

Khalaf v Australia and New Zealand Banking Group Limited

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