Lawrence Edward Stewart v The Australian and New Zealand Banking Group Limited

BACKGROUND

1. HIS HONOUR: On 20 May 2020, the plaintiffs, Lawrence Edward Stewart (Stewart) and his company, The Stewart Finance Pty Limited (the Company), initiated these proceedings (these proceedings) against the defendant bank (the Bank), by suing out a Summons and accompanying Commercial List Statement. The Summons claims the following relief: 1. Orders pursuant to the Australian Securities and Investments Commission Act 2001 (Cth) section 12GM(1) and (7) and/or 12GF, compensating the Plaintiffs for the loss and damage suffered by them and each of them in respect of the contraventions of Part 2 Division 2 of the said Act and/or that will prevent or reduce the loss and damage, and/or pursuant to the analogous predecessor provisions under the Trade Practice Act 1974 (Cth) [sic] which those provisions replaced after the commencement of the causes of action herein. 2. Further or alternatively, damages. 3. Alternatively compensation in equity and/or the hello [sic] taking of an account.
2. The Commercial List Statement is attached as Schedule A.
3. The principal underlying events with which these proceedings are concerned happened in the period 1984 to 1987, that is, over 30 years ago.
4. At that time, the Company operated a large Toyota dealership.
5. Following a conversation which, by all accounts, took place on 16 March 1984, at which Stewart and Bank officers were present, the Company borrowed $2 million from the Bank under what was described as a 'Foreign Currency Facility'. The facility was made available pursuant to a Letter of Offer dated 22 March 1984 and a 'Foreign Currency Loan Application' dated 18 April 1984. The transaction went extremely badly for the Company, as did many similar transactions for others at the time. The Company made a significant loss because the Australian dollar weakened against foreign currencies. The borrowed amount ballooned, but the Company nevertheless paid the Bank.
6. On 27 February 1991, the Company started proceedings against the Bank, by way of Statement of Claim filed in the Common Law Division (the earlier proceedings). [1] Stewart was not a party to the earlier proceedings.
7. The Company amended its Statement of Claim on two occasions. Its Further Amended Statement of Claim, filed on 2 July 1993, made the following four categories of claim: 1. a claim that the Bank owed the Company, and breached, a duty of care to give assistance and advice in formulating and arranging the Company's arrangements for finance and in making representations and statements to it; 2. a claim that the Bank owed it, and breached, a duty of care throughout the currency of the loan to exercise skill and diligence in managing the loan; 3. a claim for monies had and received on the basis that it had, by mistake, paid the Bank interest withholding tax which was not owed; [2] and 4. a claim for an account of profits on the basis that the Bank had agreed, but had failed, to render a true and full accurate account on behalf of its dealings with the Company.
8. In the earlier proceedings, the Company provided particulars of its damages which were its loss on the foreign currency loan, opportunity loss suffered as a result of realisations of various assets not in the ordinary course of business, and loss of profits from the sales of trading entities which had shouldered the burden of repayment. As at March 1991, the Company claimed that $4,454,989 had been lost on the foreign currency loan and further damage of $26,645,427 had been suffered. In these proceedings, the plaintiffs originally claimed $851,960,635, said to be the present value of the loss of opportunity claim. However, the plaintiffs have abandoned that quantum and now claim $339,702,640, which is arrived at by applying compound interest to $26,645,427 for the period 1 March 1991 to 27 July 2020. What is significant, for present purposes, is that the damages claimed in the earlier proceedings are the same as those claimed in these proceedings, with the addition of interest.
9. In the earlier proceedings, on 24 August 1993, the Company moved a motion for orders that the Bank provide an accounting and that it provide all copies of dealing slips in relation to the Company's foreign exchange trades. The motion was supported by an affidavit by Mr Ian McKay, an ex-employee of the Bank, sworn that day. He deposed to the Bank's regular practice of foreign exchange dealers completing 'dealing slips' in triplicate for foreign exchange borrowings and foreign exchange transactions. He opined that the only way in which the Company could determine the undisclosed profits taken by the Bank was to retrieve these documents. What is significant, for present purposes, is that the subject matter of the motion is directly related to Prayer 3 in the Summons.
10. On 14 or 15 September 1993, the earlier proceedings were settled on the basis that the Bank would pay $375,000 to the Company. It is not disputed that the amount was paid.
11. The Company, the Bank, and Stewart executed a deed on 16 September 1993 (the Deed).
12. Even though it will contribute to the prolixity of this judgment, it is necessary to reproduce the Recitals and some clauses of the Deed. They are: RECITALS A. On 16 March 1984 Stewart and Mr John Aston, Financial Director of Stewart Finance, attended a meeting ("the Meeting") with Mr Gerry Donaghy, Assistant State Manager Domestic Banking, and Mr Ron Miller, Senior Manager Domestic Lending, of the Bank. Mr Graham Mills, Chief Dealer, Foreign Exchange of the Bank also attended the Meeting for a period. B. At the Meeting the provision of a foreign currency loan to Stewart Finance was discussed. A request was made during the Meeting that the Bank provide a multi-currency loan facility to Stewart Finance. Towards the end of the Meeting Mr Donaghy indicated that the Bank was prepared "in principle" to provide the facility. C. Following the Meeting: (a) The Bank formally approved the application by Stewart Finance for a foreign currency loan; and (b) a letter dated 22 March 1984 was forwarded to Stewart Finance by the relevant Area Manager of the Bank, Mr Graham Austin ("the Letter"). The Letter offered a foreign currency loan to Stewart Finance in the equivalent of 2,000,000 Australian dollars in any one or a mix of foreign currencies. The facility also had the option of converting from foreign currency to a bill acceptance and discount facility. D. The offer in the Letter was accepted by Stewart Finance. E. On 18 April 1984 Stewart signed, as Managing Director of Stewart Finance, an agreement in relation to the foreign currency loan entitled "Foreign Currency Loan Application - Form C" ("the Agreement"). F. The foreign currency loan was drawn down by Stewart Finance on 26 April 1984 in a mix of currencies (the equivalent of 600,000 Australian dollars in United States Dollars, the equivalent of 600,000 Australian dollars in Great Britain Pounds and the equivalent of 800,000 Australian dollars in Netherlands Guilders) ("the Foreign Currency Loan"). Stewart Finance paid interest on, and other amounts in respect of, the Foreign Currency Loan to the Bank from time to time. G. A number of securities, in favour of the Bank, were executed from time to time by Stewart, Stewart Finance, other companies in the Stewart Group of Companies (including Stewart Car Company Pty Limited, Stewart Car Company (Banksia) Pty Limited, Stewart Car Company (Wholesale) Pty Limited, L. E. Stewart Holdings Pty Limited, Stewart Properties Pty Limited, Stewart Properties (Banksia) Pty Limited, Stewart Securities Pty Limited, Maxmoff Pty Limited and the Stewart Car Company Trust No. 2 ("the Stewart Group of Companies")) to secure the Foreign Currency Loan ("the Securities"). H. From time to time Stewart Finance changed the mix of currencies of, and rolled over, the Foreign Currency Loan ("the Roll-Overs"). I. Throughout the period of the Foreign Currency Loan the Bank charged Stewart Finance amounts in respect of interest withholding tax ("the Interest Withholding Tax"). J. Throughout the period of the Foreign Currency Loan Stewart Finance entered into a number of forward exchange contracts with the Bank ("the Forward Exchange Contracts"). K. On 17 February 1987 Stewart Finance repaid the Foreign Currency Loan. L. On 17 February 1987 the Bank advanced an amount of Australian dollars to Stewart Finance on temporary overdraft ("the Advance") in order that Stewart Finance could repay the Foreign Currency Loan and satisfy a number of the Forward Exchange Contracts. M. In order to satisfy its liabilities pursuant to the Foreign Currency Loan and the Forward Exchange Contracts Stewart and Stewart Finance sold a number of assets ("the Sales"). N. On 2 April 1991 a letter of demand was forwarded to the Bank by the solicitors for Stewart Finance ("the Demand Letter"). O. On 27 February 1991 proceedings were commenced by Stewart Finance claiming relief against the Bank, by the filing of a statement of claim ("the Statement of Claim") in the Common Law Division of the Supreme Court of New South Wales (proceedings no. 10987 of 1991) ("the Proceedings"). P. On 30 May 1991 the Bank filed a defence in the Proceedings ("the Defence"). Q. On 24 December 1992 Stewart Finance filed an amended statement of claim in the Proceedings ("the Amended Statement of Claim"). R. On 26 May 1992 the Amended Statement of Claim was struck out by consent of Stewart Finance and the Bank. S. On 2 July 1993 Stewart Finance filed a further amended statement of claim in the Proceedings ("the Further Amended Statement of Claim"). T. On 4 August 1993 the Bank filed a defence to the Further Amended Statement of Claim in the Proceedings ("the Further Defence"). U. From time to time during the Proceedings Stewart Finance provided further and better particulars of its claims against the Bank in the Proceedings ("the Particulars"). V. On 17 August 1993 the Bank made an offer of compromise to Stewart Finance in the Proceedings ("the Offer"). W. On 18 August 1993 the Bank filed a notice of motion in the Proceedings ("the Bank's Motion"). X. On 26 August 1993 Stewart Finance served a notice of motion dated 24 August 1993 on the Bank ("the Stewart Motion"). The Stewart Motion was not filed in the Supreme Court of New South Wales. Y. The parties have agreed to settle the Proceedings. TERMS AND CONDITIONS 1. In consideration of the terms and conditions hereof, the Bank agrees to pay to Stewart Finance the amount of 375,000 Australian dollars by bank cheque. 2. In consideration of the terms and conditions hereof, Stewart Finance forever releases the Bank, its servants and agents from all actions, suits, causes of action, rights of indemnity, claims, cross-claims, costs, damages, decrees, expenses, judgments, losses, orders, proceedings, summonses, writs and demands of any nature which Stewart Finance now has or but for the execution of this Deed could or may have against the Bank, its servants and agents: 2.1 arising out of or relating to the Meeting, the Letter, the Agreement, the Foreign Currency Loan, the Securities, the Roll-Overs, the Interest Withholding Tax, the Forward Exchange Contracts, the Advance, the Sales, the Proceedings, the Offer, the Bank's Motion, the Stewart Motion and the facts and circumstances in the recitals to this Deed; and/or 2.2 arising out of or relating to the facts and circumstances set out or alleged in the Demand Letter, the Statement of Claim, the Defence, the Amended Statement of Claim, the Further Amended Statement of Claim, the Further Defence and the Particulars. 3. In consideration of the terms and conditions hereof, Stewart forever releases the Bank, its servants and agents from all actions, suits, causes of action, rights of indemnity, claims, cross-claims, costs, damages, decrees, expenses, judgments, losses, orders, proceedings, summonses, writs and demands of any nature which Stewart now has or but for the execution of this Deed could or may have against the Bank, its servants and agents: 3.1 arising out of or relating to the Meeting, the Letter, the Agreement, the Foreign Currency Loan, the Securities, the Roll-Overs, the Interest Withholding Tax, the Forward Exchange Contracts, the Advance, the Sales, the Proceedings, the Offer, the Bank's Motion, the Stewart Motion and the facts and circumstances in the recitals to this Deed; and/or 3.2 arising out of or relating to the facts and circumstances set out or alleged in the Demand Letter, the Statement of Claim, the Defence, the Amended Statement of Claim, the Further Amended Statement of Claim, the Further Defence and the Particulars. … 12. In consideration of the terms and conditions hereof, Stewart, Stewart Finance and the Bank agree that the terms and conditions of this Deed may be pleaded in bar to any actions, suits, causes of action, rights of indemnity, claims, cross-claims, costs, damages, decrees, expenses, judgments, losses, orders, proceedings, summonses, writs and demands of any nature.

THIS APPLICATION

1. By motion filed on 2 October 2020, the Bank moves for an order that these proceedings be dismissed, in whole or in part, or, alternatively, that the Commercial List Statement be struck out, in whole or in part.
2. Dismissal is sought on the grounds that either the claims pleaded are within the scope of the releases given under the Deed or are statute barred. In the alternative, the Bank moves to strike out the Commercial List Statement on the basis that it is embarrassing.
3. The Court received comprehensive written submissions from both sides and heard oral argument.

PROCEEDINGS IN THE COMMERCIAL LIST

1. The object of the Commercial List is to serve the commercial community by expeditiously resolving their disputes. In the commercial context, this is necessary to ensure the efficient circulation of money. [3] To this end, the procedures and requirements of the List are tailored. It is, to say the least, unusual for proceedings to be commenced in this List about a commercial transaction which was completed over a quarter of a century ago.
2. Practice Note SC Eq 3 (SC Eq 3) regulates proceedings in the Commercial List. Paragraphs 8 and 9 with Annexure 1 of SC Eq 3 specify the requirements for a Commercial List Statement. Paragraphs 8 and 9 provide: Pleadings and Entry in the Lists 8. A matter in the Lists shall be commenced in the general form of Summons prescribed under the UCPR. There is to be filed with the Summons a List Statement, for the Commercial List a "Commercial List Statement" and for the Technology and Construction List a "Technology and Construction List Statement", setting out, in summary form, in the form of Annexure 1: 8.1 the nature of the dispute 8.2 the issues which the plaintiff believes are likely to arise 8.3 the plaintiff's contentions 8.4 the questions (if any) the plaintiff considers are appropriate to be referred to a referee for inquiry and report and 8.5 a statement as to whether the parties have attempted to mediate and whether the plaintiff is willing to proceed to mediation at an appropriate time. 9. The plaintiff's contentions should: 9.1 avoid formality 9.2 state the allegations the plaintiff makes with adequate particulars and 9.3 identify the legal grounds for the relief claimed.
3. A List Statement is not strictly a pleading. But, while it is to avoid formality, it must still meet the basic requirement of disclosing a reasonable cause of action. It must state the plaintiff's allegations with sufficient particulars and adequately set out the issues which the plaintiff believes are likely to arise: see Ucak v Avante Developments [2007] NSWSC 367 at [6]-[8].
4. The Commercial List is not a court of strict pleading, but it is also not one of no pleading: Swiss Re International SE v David Simpson [2018] NSWSC 233 at [34]. Informality is not to be equated with inadequacy.
5. If a List Statement seeks to plead a breach of contract, it needs to identify the contract, articulate the term or terms breach of which is alleged (including any implied terms), articulate a breach of any term relied upon in a way that corresponds with the obligation disclosed by the term, and it must state the legal result which is contended to flow from the breach.
6. An allegation of fraud or other serious misconduct must be articulated specifically and with particularity: Banque Commerciale S.A., En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Magill v Magill (2006) 226 CLR 551; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Paul Ernest Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [39]; Simmons v Henwood [2013] NSWCA 184; Paul Ernest Simmons v NSW Trustee and Guardian [2013] NSWSC 1688; Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405.
7. The seriousness of pleading fraud is reflected in obligations imposed on practitioners by both the Solicitors' Conduct Rules [4] and Barristers' Rules [5] . [6]
8. Where a party wishes to make significant charges of misleading or deceptive conduct with potentially significant consequences, it is incumbent on that party to articulate its case with precision: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 at [5]-[7]. Where the conduct concerned is a misrepresentation, the description of why it is misleading needs to correspond with the articulation of the representation. Unlike a Statement of Claim which must be verified by affidavit, [7] the rules do not require a List Statement to be verified by affidavit. This is an added reason why, in framing a case in dishonesty, the claim must be articulated appropriately.
9. In the Commercial List Summons, where damages are claimed, the plaintiff's legal representative must certify under cl 4(2) of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 (NSW) that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in the proceedings has a reasonable prospect of success. [8] This is a serious obligation.
10. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 15.4 provides that a pleading that alleges any condition of mind must give particulars of the facts on which the party relies. Condition of mind includes any disorder or disability of mind, any malice, and any fraudulent intention, but does not include knowledge. Although the rule, strictly speaking, applies to pleadings, when it comes to alleging fraudulent intention, the requirement for a plaintiff in the Commercial List to state the allegations it makes with adequate particulars requires it to meet this minimum standard in relation to each person against whom the fraudulent intention is asserted.
11. A Commercial List Statement which does not meet these requirements or which tends to cause prejudice, embarrassment or delay in the proceedings is liable to be struck out by the Court exercising its inherent jurisdiction.
12. UCPR r 13.4(1)(b) provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - … (b) no reasonable cause of action is disclosed, … the court may order that the proceedings be dismissed generally or in relation to that claim.
13. Paragraph 62 of SC Eq 3, which applies to proceedings in the Commercial List, provides that: As a general rule applications to strike out or for summary judgment will not be entertained. Sometimes applications are appropriate, but Practitioners should expect strictness in declining to entertain such applications.
14. This application is appropriate because of the longevity of the complaints sought to be agitated (or, perhaps more accurately, reagitated) and because of the profound shortcomings of the Commercial List Statement, which some 30 years after the event, seeks to aver fraud, deceit and dishonest concealment and serious misleading or deceptive conduct, apparently for the first time, and in the face of an express release.

THE COMMERCIAL LIST STATEMENT

1. Part A, para 1 of the Commercial List Statement describes the nature of the dispute as follows: 1. The nature of the dispute is a claim for damages for financial misconduct, and consequential and ancillary relief arising out of and concerning foreign currency loans made by the Defendant [the Bank] in the course of the banking relationship between the parties from March 1984 to date and compensating the Plaintiffs in whole or in part for the loss and damage suffered or that will prevent or reduce the loss or damage that has been suffered by the Plaintiffs;
2. Para 3 states: 3. The Plaintiffs also claim damages in contract and in tort in respect of breaches of duty under or with respect to the credit contract between the parties and/or for equitable compensation or an account;
3. Part B of the Commercial List Statement is as follows: Part B: Issues Likely to Arise 1. Whether the plaintiffs are entitled to damages and/or compensation on one or more of the following bases: a. compensation or such other order as the Court considers meet under ASIC Act section 12GM and /or 12GF that will prevent or reduce the loss and damage suffered by the Plaintiffs as the result of financial misconduct of the Bank its servants or agents in contravention of ASIC Act section 12DA and/or under the predecessor provisions thereof being Trade Practices Act 1974 sections 52, and 87 and/or 82; b. breach of an express or an implied term of the credit contract or contracts; c. damages for tortious misconduct in fraud; d. equitable compensation or an account arising from unconscionable conduct in equity in the course of the relationship between the parties; 2. Delay and/or the inapplicability or otherwise of any statute of limitation that may be pleaded; 3. Assessment of damages including interest.
4. Para 1 does not articulate any issue likely to arise other than whether the plaintiffs are entitled to the relief they seek. This is a statement of the general issue and it does not represent a real endeavour to meet the requirements of SC Eq 3 paragraph 8.2. Para 1(b) refers to an implied term. None is pleaded.
5. The Australian Securities and Investments Commission Act 2001 (Cth) can have no application because it was enacted years after the relevant events. The plaintiffs do not seek to sustain their claim under it.
6. It is necessary, albeit time consuming, to examine the Plaintiffs' Contentions in Part C of the Commercial List Statement in some detail. That examination reveals that the Commercial List Statement does not disclose a reasonable cause of action and it fails in multiple respects to meet the basic requirements of SC Eq 3. It is embarrassing and it will cause prejudice and delay. The defects in it include, but are not limited to, that it rolls up tortious, contractual, and equitable claims and concepts; it alleges fraudulent intention without providing adequate particulars of condition of mind; it alleges deceit without pleading appropriate falsification; it pleads misrepresentations without articulating why they are misleading in a manner which corresponds with the articulation of the representation; it pleads as particulars, allegations which should be pleaded as principal averments; and it uses terminology which is unknown to the law. It does not convey, in an intelligible way, what case the defendant has to meet and it puts the defendant to the burden and prejudice of having to meet and deal with multiple allegations (some very general which have no discernible role to play in any cause of action).
7. The claims made are under two headings, 'Financial Misconduct Claims' and 'Deceit Claim'. 'Financial Misconduct' is not a term used in any of the provisions of the Trade Practices Act 1974 (Cth), upon which the plaintiffs rely. It is not, so far as I am aware, a legal term of art.
8. The 'Financial Misconduct Claims' occupy 15 paragraphs divided into a claim for misleading or deceptive conduct and one for engaging in conduct that was unconscionable in equity. Paras 1 to 13 are devoted to the first category and paras 14 and 15 to the second. The 'Deceit Claim' occupies paras 16 to 22.
9. I will deal first with the Financial Misconduct Claims.
10. The plaintiffs plead the meeting described in Recital A of the Deed (paras 2-3). They plead a series of representations made by the Bank 'in the course of the meeting' upon which they relied in agreeing to change their loan portfolio and in proceeding with the foreign currency loan transaction (para 4).
11. They plead the letter of offer dated 22 March 1984 and representations made in it (para 5). This is the letter referred to in Recital C(b) of the Deed. In para 5(c), there is pleaded a representation that cross-deeds of covenant were required together with mortgages and guarantees. This representation does not appear to be falsified or relied upon anywhere else in the Commercial List Statement.
12. They allege acceptance of the Bank's credit proposal 'whereupon a credit contract for the supply of a foreign currency loan in any one or a mix of currencies as the financial product on the said terms for consideration arose between the parties,' (para 6). They do not, however, identify those terms. They refer to a contract between the parties. They do not articulate how Stewart became a contracting party for the loan.
13. They allege that on or as from 26 April 2985, instead of supplying a foreign currency loan, the Bank supplied funds other than foreign currency loan funds or loans in foreign currencies and that the Bank concealed 'the principal and substantial characteristic of the credit arrangement namely the existence of an unlimited exchange rate variation to the sole charge of the borrower as if it was a foreign currency loan or foreign currency loan funds with direct costs of that character, exchange losses, interest, interest withholding tax and other expenses for payment by the Plaintiffs,' (para 8). They particularise this as follows: Particulars There was no foreign currency transaction; and no Bank dealing slips in a foreign currency including the foreign currency loans represented to the Plaintiffs and/ or no bid slip or sheet, or other documents evidencing a foreign currency liability in the borrower's name including rollover vouchers.
14. This allegation appears to be a freestanding one that the Bank did not supply a loan as promised (which could be, but is not, articulated as a breach of contract) or a freestanding allegation of concealment which does not correspond with the pleaded representations.
15. They allege that, 'at no time did the Bank [by] its servants or agents disclose to the Plaintiffs that it had supplied the finance under loans and funding arrangements called by the Bank's Chairman in inter alia the 1986 Annual Report "Off Balance Sheet Financial Instruments" but instead represented in that and prior Annual Reports in 1984 and 1985 to the market including the Plaintiffs in words to the following effect that "as foreshadowed in 1983 the foreign exchange dealing rooms in Melbourne and Sydney were upgraded and specialist staff increased and new customer services were introduced" and that "ANZ continued to widen its funding sources with issues in the Swiss Franc private placement market and the public issue of the equivalent of US $43 million in European currency units" as if applicable to the Plaintiffs' loan funds under the credit contract,' (para 9).
16. They do not plead any representation by the Chairman or reliance on it. They do not particularise the apparent representation 'to the market including the Plaintiffs' or plead its falsification.
17. They allege that the Bank, without authority and in breach of the credit contract, claimed its costs and financial risk of sourcing the loan funds at the borrower's risk as if the funds were foreign currency funds, which was not the case. They plead that 'rather the Bank represented that it had done so' and wrongly charged foreign exchange losses, interest withholding tax and other charges, 'point taking and losses on hedge contracts, roll over fees and the loan principal repayment to the Plaintiffs' account, at the same time hedging its own position and profiting at the customer's expense' (para 10).
18. They do not plead the terms of the credit contract said to be breached nor the breach. Instead, they plead a further representation. They do not reveal what is meant by 'point taking'. They appear to allege wrongdoing in the form of the Bank hedging its own position and profiting at the customer's expense without alleging a duty, contractual, equitable or at general law, which this behaviour is asserted to have contravened.
19. They allege that 'instead of incurring and accounting for the plaintiffs for stated borrowing costs including the gross up for interest withholding tax,' the Bank incurred no such borrowing costs under any foreign currency loan transaction but instead claimed withholding tax and other reimbursements, which costs were fictional (para 11). This is the interest withholding tax which is referred to in Recital I of the Deed.
20. They allege that, 'In the premises the Bank by its servants or agents in trade or commerce engaged in conduct in relation to financial services supplied to the Plaintiffs that was misleading or deceptive or likely to mislead or deceive in contravention of Trade Practices Act 1974 section 52 and/or its successor provision ASIC Act section 12DA which without the conduct the Plaintiffs would never have accepted or taken up the credit contract or arrangement,' (para 12).
21. They provide as particulars to para 12, amongst others, a combination of substantiative allegations and particulars not earlier pleaded.
22. In the particulars, they allege that, 'The statement that the proposed foreign currency loans were available only to special customers of the Bank was false and a marketing ploy intended to impress and entice the Plaintiffs into the credit transaction,' but they do not plead why it was false. They refer to 'conflict of interest', 'sham', 'primary or sole benefit of the Bank', and the loss of Stewart's marriage, none of which have any apparent juridical role to play in their claim.
23. They allege that, 'By financial misconduct of the Bank by its servants or agents… the Plaintiffs have suffered substantial financial loss and damage,' (para 13). They provide the following particulars: Particulars Particulars exceed 3 folios and are served separately. The total loss to 31 May 2018 at RBA interest rates compounded for unsecured personal loans was $851,960,635. Updated particulars will be provided.
24. As mentioned earlier, these particulars were abandoned at the hearing of the motion. They do not distinguish between loss suffered by Stewart and that suffered by the Company. Confusingly, the paragraph does not distinguish between damages suffered in contract and by misleading conduct. On the one hand, in their deception case the plaintiffs say that they would not have taken up the credit contract, but for their contractual case they rely on breach of it. They do not articulate why their position would have been any different had the Bank, contrary to their assertion, actually lent them foreign currency.
25. Turning then to the unconscionable conduct claim, the plaintiffs allege, 'Further or alternatively… in the premises, the Bank by its servants or agents in connection with the supply or possible supply of financial services to the Plaintiffs engaged in conduct that is, in all the circumstances particulars of which are set out therein [sic], unconscionable in equity which without the conduct the Plaintiffs would never have accepted or taken up the credit contract or arrangement,' (para 14).
26. As particulars, amongst others, they 'repeat the particulars to paragraphs 1 to 12' and, in addition, provide particulars which refer to asserted non-disclosures, failing to act bona fide, acting 'unilaterally in its own sole interests', unreasonably commencing enforcement action, failing to act as a banking licensee efficiently, honestly and fairly, and not being willing to negotiate. One particular given is that, 'The steps and proposed steps taken by the Bank between 1987 and 1988 were not fully disclosed at any time to the Plaintiffs whereby they were prevented from seeking equivalent financial services from another finance provider other than the Bank.' The proposed steps are not identified and the relationship between steps and proposed steps and prevention from seeking equivalent financial services is not exposed.
27. They allege that 'in the premises' the plaintiffs suffered substantial loss (para 15). They provide the following particulars: Particulars a. The Plaintiffs ultimately lost the whole of their residential holdings and their business enterprise as a result of the Bank's conduct and suffered very significant and hurtful family and personal losses full particulars of which exceed 3 portfolios, and will be served separately; b. As a result of the conduct complained of herein the Plaintiffs have suffered significant loss and damage; c. Further particulars exceed 3 folios and are served separately; d. The total loss to 31 May 2018 at RBA interest rates compounded for unsecured personal loans was $851,960,635. Updated particulars will be provided.
28. As mentioned earlier, the particulars in sub-para (d) have been abandoned. It is not clear what role 'hurtful family and personal losses' can play.
29. I turn then to the 'Deceit Claim'. It is based solely on what is defined as 'the credit representation', which is a representation as to the Bank's intention. They allege that, 'the Bank by its servants and agents between 1984 to 1989 represented to the Plaintiffs in the course of employment that the Bank by its servants or agents intended to provide ongoing credit support to the Plaintiffs and their business by supplying a suitable financial product to the Plaintiffs by a replacement credit facility in the form of a foreign currency loan,' (para 16). The particulars of the credit representation given are: Particulars a. The proposed foreign currency loan transaction was 'safe' for the Plaintiffs; b. There was 'no risk' for the Plaintiffs in borrowing under the proposed foreign currency loan credit transaction through ANZ; c. That the proposed foreign currency transaction 'would save interest'.
30. They allege in para 18 that, 'The credit representation was false in that: 1. The Bank had no such intention of providing ongoing credit support; 2. The replacement financial product was not a loan in foreign currency or a genuine foreign currency loan; 3. The credit arrangement was not in the circumstances of the parties at the time or at all suitable finance; 4. The Bank transferred its risk and losses in international currency trading to the Plaintiffs without the consent or agreement of the Plaintiffs; 5. The proposed foreign currency transaction was not safe and involved substantial financial and business risks for the Plaintiff compared to existing arrangements at less risk, cost and expense.'
31. Only the falsification pleaded in sub-para 18(a) corresponds with the asserted credit representation, and then only in part. The matters pleaded as falsification in sub-paras 18(b) to (e) cannot sustain falsity as to intention.
32. They allege in para 19 that, 'The credit representation was made by the Bank its servants or agents to the Plaintiffs with knowledge that it was false or made recklessly careless as to whether the representation was false or not, in that: 1. The Bank by its officers and in particular senior management knew that he [sic] replacement financial product was not a loan in foreign currency; 2. The Bank by its officers and in particular senior management knew the credit arrangement was not in the circumstances of the parties at the time or at all suitable finance; 3. The Bank transferred fictional expenses such as interest withholding tax and debits referrable to losses in international currency trading to the Plaintiffs without the consent or agreement of the Plaintiffs; 4. The Bank officers were aware of volatility in the foreign currency market and that the Australian dollar was not stable relative to the 6 foreign currencies which they traded or purported to trade to the Plaintiffs contrary to the graphs they showed the Plaintiffs at the March meeting [ie USD, GBP, NLG, ITL, JPY, and CHF].'
33. The pleading of dishonest knowledge in para 19 does not correspond with the credit representation.
34. They allege that, 'Induced by the credit representation and in reliance thereon the Plaintiffs entered in to the credit transaction causing loss and damage such that the Bank took enforcement action against the Plaintiffs to sell off assets as required by the Bank its servants or agents by the sale of personal and business assets which they otherwise would not have done but for the representation,' (para 20). They do not articulate why this caused them loss. They do not allege or particularise any sale at an undervalue.
35. They allege that 'the Bank by its servants or agents was liable for the acts and omissions of its officers aforesaid in particular but not limited to Mr Gerry Donaghy, Mr Ron Miller Senior Manger Domestic Banking and Mr Graham Mills Chief Dealer who was each described in the Bank's business cards handed to the Plaintiffs or communications with them as 'Manager' and whose representations to the Plaintiffs alleged herein were made on behalf of the Bank and made in the ordinary course of the Bank's business,' (para 21). They inappropriately allege conduct by, but not limited to, unnamed individuals. They provide no particulars of any named individuals' condition of mind.
36. They allege that, 'As a result of relying on the false representation of the Bank its servants or agents alleged herein the Plaintiffs have suffered loss and damage,' (para 22). But they do not articulate how the conduct complained of caused them damage.
37. To permit this Commercial List Statement to stand would not only be inimical to the way in which this List is intended to operate but would be inimical to the overriding purpose of the Civil Procedure Act 2005 (NSW) and the rules of the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
38. The entirety of the Commercial List Statement must be struck out.

RELEASE

1. The Bank's application for summary dismissal is firstly on the basis that these proceedings are bound to fail because the claims now made fall clearly within the releases of the Deed. It claims the benefit of the bar given by cl 12.
2. The plaintiffs submit, firstly, that the release 'is a general release whose operation and effect is restricted in equity to matters expressly contemplated by the parties at as its date, which includes none of the existing choses in action contemplated by these proceedings.' [emphasis added]
3. Secondly, they submit that the Deed itself is 'void and/or should be set aside rendering the release inutile'. However, their Summons neither seeks an order declaring the Deed to be void nor one that the Deed be set aside.
4. In their written submissions they put that, depending on how the Bank pleads its case and on what facts it relies, they will file a Reply which will include a claim that the Deed itself is 'void as induced by the same fraud and concealment about which the plaintiffs complain in the underlying claims against the Bank.'
5. In a letter dated 12 November 2020 from their solicitors to the Bank's solicitors, stated: By way of reply, the Respondents will be relying on Contracts Review Act 1980, in respect of their response to your client's reliance on the 1993 deed of settlement relied on in your interlocutory application filed 2 October 2020.
6. It is well established that general words in a release are limited always to that thing or those things which were especially in the contemplation of the parties when the release was given. General words in a release cannot be used to escape the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances, including the state of knowledge of the parties concerning the existence, character and extent of the liability in question and the actual intention of the releaser: Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 129.
7. The releases in the Deed are not general. They are specific: Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; Westpac Banking Corporation v Billgate Pty Ltd [2013] NSWSC 1304.
8. Even taking into account the defects in the articulation of their proposed case, the Commercial List Statement leaves the reader in no doubt that the plaintiffs' claims fall directly within the express terms of the release. It seeks to articulate different causes of action but out of the same factual background, presumably in an attempt to go outside the operation of the release.
9. The claims now made arise out of or relate to the meeting, the letter, the agreement, the foreign currency loan, the interest withholding tax, the earlier proceedings, and the Bank's motion. Each of the claims made satisfies the description in cls 2.1 and 2.2 and cls 3.1 and 3.2 of the Deed. No other constructional choice is reasonably open.
10. Absent a claim to impeach the Deed, the Commercial List Statement does not disclose a reasonable cause of action. Such a claim cannot be made in a Reply. It must be made and properly pleaded in a Summons and Commercial List Statement. Although the plaintiffs were put clearly on notice of this difficulty, they have not foreshadowed making such a claim other than in Reply.
11. The position taken by them in their solicitor's letter of 12 November 2020 is, in relation to the Company, plainly untenable and is bound to fail because s 6(1) of the Contracts Review Act 1980 (NSW) provides that a corporation may not be granted relief under the Act.

LIMITATIONS

1. The Bank moves for dismissal also on the ground that the plaintiffs' claims are statute barred. Because the Commercial List Statement is to be struck out in its entirety, it is neither necessary nor appropriate to consider this aspect at this time. It can be dealt with if the plaintiffs successfully replead.

CONCLUSION

1. That part of the Summons which claims relief under the Australian Securities and Investments Commission Act 2001 (Cth) is struck out as is the word 'hello' in Prayer 3.
2. The Commercial List Statement is struck out.
3. The plaintiffs have indicated an intention to impeach the release. To allow for this possibility and having drawn express attention to the obligations on those who plead fraud, dishonesty and other misconduct, I will give the plaintiffs an opportunity, should they be so advised, to apply to amend.
4. Any application by the plaintiffs for leave to file an amended Summons and Commercial List Statement is to be made by motion supported by affidavit, which are to be filed and served by ­­­19 February 2021 and to be accompanied by the proposed Amended Summons and Amended Commercial List Statement. The motion is to be made returnable on 5 March 2021, to which date I stand these proceedings over for directions.
5. By 19 February 2021, any party seeking to make submissions on the costs of the present application must serve on the other party a written outline (not exceeding 3 pages) and provide a copy to my Associate.
6. The parties otherwise have liberty to apply on seven days' notice.

Schedule A COURT DETAILS Commercial List Statement Supreme Court of New South Wales Division Equity List Commercial Registry Sydney Case number 2020/152708 TITLE OF PROCEEDINGS First plaintiff LAWRENCE EDWARD STEWART And 1 other named in the Schedule to the Summons

THE AUSTRALIA AND NEW ZEALAND AND Defendant BANKING GROUP LTD (ABN 11005357522)

FILING DETAILS Filed for LAWRENCE EDWARD STEWART and THE STEWART FINANCE PTY LIMITED (Plaintiffs) Filed in relation to The Plaintiff's claim Legal representative Mark Davis

Part A: Nature of Dispute

1. The nature of the dispute is a claim for damages for financial misconduct, and consequential and ancillary relief arising out of and concerning foreign currency loans made by the Defendant [the Bank] in the course of the banking relationship between the parties from March 1984 to date and compensating the Plaintiffs in whole or in part for the loss and damage suffered or that will prevent or reduce the loss or damage that has been suffered by the Plaintiffs;
2. The Plaintiffs claim orders under Australian Securities and Investment Commission Act 2000 [ASIC Act] sections 12GM and/or 12GF for loss suffered by the Plaintiffs by financial misconduct of the Bank its servants or agents that was engaged in in contravention of ASIC Act Part 2 sections 12DA, 12GF and 12GM and/or the predecessor provisions thereof under Trade Practices Act 1974;
3. The Plaintiffs also claim damages in contract and in tort in respect of breaches of duty under or with respect to the credit contract between the parties and/or for equitable compensation or an account;
4. The nature of the dispute is further referred to below in this Commercial List Statement.

Part B: Issues Likely to Arise

1. Whether the plaintiffs are entitled to damages and/or compensation on one or more of the following bases: 1. compensation or such other order as the Court considers meet under ASIC Act section 12GM and /or 12GF that will prevent or reduce the loss and damage suffered by the Plaintiffs as the result of financial misconduct of the Bank its servants or agents in contravention of ASIC Act section 12DA and/or under the predecessor provisions thereof being Trade Practices Act 1974 sections 52, and 87 and/or 82; 2. breach of an express or an implied term of the credit contract or contracts; 3. damages for tortious misconduct in fraud; 4. equitable compensation or an account arising from unconscionable conduct in equity in the course of the relationship between the parties;
2. Delay and/or the inapplicability or otherwise of any statute of limitation that may be pleaded;
3. Assessment of damages including interest.

BACKGROUND FACTS / FINANCIAL MISCONDUCT CLAIM

1. At all material times the First Plaintiff [Mr Laurie Stewart] was the manager and sole shareholder of the companies comprising the Stewart Automotive Group of which the Second Plaintiff formed part. The Stewart Automotive Group was, at all material times prior to the entry into the foreign currency loan transactions with the Bank complained of, a leading Australian automotive retailer of Toyota and Mercedes Benz and a customer of the Bank, through its Hurstville Branch with principal dealings between the parties conducted by Mr Laurie Stewart and the Bank's Head Office managers and in particular the NSW Assistant General Manager Mr Gerry Donaghy located at the Bank's then State Head Office in Martin Place Sydney.
2. Prior to and as at March 1984, following an inquiry by Mr Laurie Stewart, the Bank by its manager Mr Donaghy invited Mr Laurie Stewart and Mr John Aston for and on behalf of the Second Plaintiff to the Head Office in Sydney to meet two senior Bank managers described by Mr Donaghy as 'Bank's experts' in order to explain the Bank's foreign currency loans for the information of the Plaintiffs but 'available only to the Bank's special customers' being the Plaintiffs. At the time the Plaintiffs' then domestic loan from the Bank totalled A$ 1.5 million and Mr Donaghy proposed that the Bank supply a new line of credit by way of a loan in foreign currency up to an equivalent of A$2 millions to the Second Plaintiff.
3. On 16 March 1984 as arranged by Mr Donaghy Mr Laurie Stewart and Mr John Aston for the Plaintiffs met with the Bank's officers Mr Gerry Donaghy, Mr Ron Miller Senior Manger Domestic Banking and Mr Graham Mills Chief Dealer, Foreign Exchange, both of whom were introduced as the Bank's experts in foreign currency loans. The meeting occurred at the Head Office Martin Place Sydney. Mr Donaghy proposed that the Bank supply the foreign currency loan to the Second Plaintiff in a total of A$ 2 millions equivalent with the additional A$ 0.5 million representing additional finance offered by the Bank above and beyond finance companies normal terms. This proposal exceeded the finance then requested by the Plaintiff and was intended by the Bank as an inducement to encourage the Plaintiffs to proceed with the proposed foreign currency transaction.
4. In the course of the meeting the following representations were made by the Bank its servants or agents to the Plaintiffs, upon which the Plaintiffs relied in agreeing to change their loan portfolio to one or more foreign currency loans in lieu of the current Bank's financial product and in proceeding with the foreign currency loan credit transaction with the Bank. Particulars 1. Statements made expressly and orally by all three Bank officers present that the proposed foreign currency loans are available only to the Bank's special customers and that the Plaintiffs were such special customers; 2. Statements made expressly and orally by all three Bank officers present that the proposed loans are 'foreign currency loans' for a term of 5 years being for the 'equivalent' of Australian dollars at a relatively low interest rate; 3. Statements made expressly and orally by all three Bank officers present that the Australian dollar had proved very stable against foreign currencies and will remain that way as illustrated by them in two slide projections then presented at the meeting; 4. Statements made expressly and orally by all three Bank officers present that entering into foreign currency loans would not jeopardise the success to date of the business of the Plaintiffs; 5. Statements made expressly and orally by all three Bank officers present that the proposed credit facility of the Bank being a foreign currency loan was 'safe' for the Plaintiffs and that there was 'no risk' for the Plaintiffs in borrowing under the proposed foreign currency loan credit transaction through ANZ, and that the proposed foreign currency transaction 'would save interest' if the interest expense on total borrowings for the Plaintiffs compared to existing finance costs with the Bank.
5. Following the meeting Mr GP Austin Area manager for the Bank sent the Directors of the Second Plaintiff a letter of offer dated 22 3 1984 in which it was further represented expressly and in writing by the Bank its servants or agents: 1. That the proposed transaction was a 'foreign currency loan' for a term of 5 years being for the 'equivalent of A$2,000.000 in any one or a mix of currencies'; 2. That borrowing costs were for the account of the Plaintiffs 'including the gross up for interest withholding tax'; 3. That cross deeds of covenant were required from all Stewart Automotive Group companies as well as the Plaintiffs individually together with registered mortgages over all of the Plaintiffs' properties and guarantees from all the Plaintiffs.
6. Thereafter the Plaintiffs accepted the Bank's credit proposal in reliance on the truth of the representations made as alleged above whereupon a credit contract for the supply of a foreign currency loan in any one or a mix of currencies as the financial product on the said terms for consideration arose between the parties.
7. Shortly after and following further consultation with the Bank credit was supplied by the Bank in the Plaintiffs' favour purportedly in accordance with the credit contract initially in mixed currencies on or about 26 April 1984.
8. On or as from 26 April 1984 instead of supplying a 'foreign currency loan' for a term of 5 years to the Plaintiffs being a loan in foreign currency for the 'equivalent of AUD2,000.000 in a mix of currencies' the Bank for the period of the credit transaction under the credit contract supplied funds other than foreign currency loan funds or loans in foreign currencies, ie being a wide pool of ANZ borrowings including the use of Off Balance Sheet Financial Instruments, concealing the principal and substantial characteristic of the credit arrangement namely the existence of an unlimited exchange rate variation to the sole charge of the borrower as if it was a foreign currency loan or foreign currency loan funds with direct costs of that character, exchange losses, interest, interest withholding tax and other expenses for payment by the Plaintiffs. Particulars There was no foreign currency transaction; and no Bank dealing slips in a foreign currency including the foreign currency loans represented to the Plaintiffs and/ or no bid slip or sheet, or other documents evidencing a foreign currency liability in the borrower's name including rollover vouchers.
9. Further, at no time did the Bank its servants or agents disclose to the Plaintiffs that it had supplied the finance under loans and funding arrangements called by the Bank's Chairman in inter alia the 1986 Annual Report "Off Balance Sheet Financial Instruments" but instead represented in that and prior Annual Reports in 1984 and 1985 to the market including the Plaintiffs in words to the following effect that 'as foreshadowed in 1983 the foreign exchange dealing rooms in Melbourne and Sydney were upgraded and specialist staff increased and new customer services were introduced' and that 'ANZ continued to widen its funding sources with issues in the Swiss Franc private placement market and the public issue of the equivalent of US $43 million in European currency units' as if applicable to the Plaintiffs' loan funds under the credit contract.
10. Further, the Bank without authority of the Plaintiffs and in breach of the credit contract claimed its costs and financial risk of sourcing the loan funds at the borrower's risk calculated as if the funds were foreign currency funds which was not the case and did not facilitate the Plaintiffs to obtain nor supply to the Plaintiffs any foreign currency nor loan foreign currencies; rather the Bank represented that it had done so and wrongly charged foreign exchange losses, interest and interest withholding tax and other charges including a fixed margin of 1.25%, an Establishment Fee, point taking and losses on hedge contracts, roll over fees and the loan principal repayment to the Plaintiffs' account, at the same time hedging its own position and profiting at the customer's expense.
11. Further instead of incurring and accounting to the Plaintiffs for stated borrowing costs 'including the gross up for interest withholding tax' the Bank incurred no such borrowing costs under any foreign currency loan transaction with the Plaintiffs but instead claimed withholding tax and other reimbursements from the Plaintiffs which costs were fictional.
12. In the premises the Bank by its servants or agents in trade or commerce engaged in conduct in relation to financial services supplied to the Plaintiffs that was misleading or deceptive or likely to mislead or deceive in contravention of Trade Practices Act 1974 section 52 and/or its successor provision ASIC Act section 12DA which without the conduct the Plaintiffs would never have accepted or taken up the credit contract or arrangement. Particulars 1. The statement that the proposed foreign currency loans were available only to special customers of the Bank was false and a marketing ploy intended to impress and entice the Plaintiffs into the credit transaction; 2. The statement that the transaction was a 'foreign currency loan' for a term of 5 years being for the 'equivalent of A$2,000.000 in any one or a mix of currencies' was false in that the loan was not a genuine foreign currency loan nor did Defendant lend funds in a foreign currency to the Plaintiffs back to back or otherwise but instead itself borrowed funds and loaned equivalent monies to the Plaintiffs and then notwithstanding the apparent conflict of interest in doing so transferred the risk of its own foreign currency trading transactions to the Plaintiffs; 3. The statement that borrowing costs were for the account of the Plaintiffs 'including the gross up for interest withholding tax' was also false and the expenses claimed by the Bank between 1984 and 1989 were wrongfully paid to it by the Plaintiffs under a mistake on the part of the Plaintiffs and on the basis that the loan was a genuine foreign currency transaction when it was not; 4. The representations of the Defendant by its senior managers as to the reason or reasons for the Bank's proposed changes in the banking relationship between the parties were in error and a sham because there was no true foreign currency loan. 5. The statement that entry into foreign currency loan would not jeopardise the success of the business of the Plaintiffs was false in that the said loan was unsuitable financially for the Plaintiffs at the time and led to the destruction of the Plaintiffs' business and assets; 6. The statement that the Australian dollar was very stable as illustrated in two slides which were presented at the meeting and by words was false firstly in that unknown to the Plaintiffs and not disclosed at the meeting the Australian dollar versus the Swiss Franc had been in serious trend of devaluation since the 1970's, prior to being floated on 12 12 1983. Secondly since 12 12 1983 the Australian dollar had dipped markedly, which instability and dip was not shown in the presentations to the Plaintiffs; 7. The Bank officers were aware of volatility in the foreign currency market and that the Australian dollar was not stable relative to the 6 foreign currencies which they traded or purported to trade to the Plaintiffs contrary to the graphs they showed the Plaintiffs at the March meeting [ie USD, GBP, NLG, ITL, JPY, and CHF]. 8. The statement that the transaction was 'safe' was false in that the foreign currency loan was a one-sided disastrous business decision for the Plaintiffs for the primary or sole benefit of the Bank and as a result cost the Plaintiffs their business, the collapse of the Stewart Automotive Group, the sale of all the assets and property including the First Plaintiff's home and the loss of the First Plaintiff's marriage; 9. The statement that there was 'no risk' in the transaction for the Plaintiffs was false in that there was a very substantial risk for the Plaintiffs in borrowing under the proposed foreign currency loan with the Bank such that the only party to the transaction which would make any money out of it was the Bank itself and at no risk to itself; 10. The Bank discouraged the Plaintiffs from asking it or its officers any advice or seeking any information as to the nature of, the effect of, and the management of the loan funds and the credit contract;
13. By financial misconduct of the Bank by its servants or agents as alleged the Plaintiffs have suffered substantial financial loss and damage. Particulars Particulars exceed 3 folios and are served separately. The total loss to 31 May 2018 at RBA interest rates compounded for unsecured personal loans was $851,960,635. Updated particulars will be provided.
14. Further or alternatively the Plaintiffs allege that in the premises the Bank by its servants or agents in connection with the supply or possible supply of financial services to the Plaintiffs engaged in conduct that is, in all the circumstances particulars of which are set out therein, unconscionable in equity which without the conduct the Plaintiffs would never have accepted or taken up the credit contract or arrangement. Particulars 1. The Plaintiffs repeat the particulars to paragraphs 1 to 12; 2. There was a material inequality of bargaining position between the Plaintiffs and the Bank of which the Bank took advantage by encouraging the Plaintiffs to borrow more FCL loans than they required and by leading the Plaintiffs and the general public to believe it was an expert in foreign currency trading and was very strong in the area at no risk to the Bank; 3. The Defendant by its servants or agents or otherwise did not disclose to the Plaintiff the simulated nature of the proposed FCL transaction and stood by knowing the Plaintiff was proceeding under a misapprehension as to the true nature of the transaction; 4. The Bank failed to act bona fide but instead acted unilaterally in its own sole interests inter alia by changing the LVR causing harm to the Plaintiffs' financial position without notice in purported response to the movement in FCL rates and by misrepresenting that it was reasonably necessary for the Plaintiffs to sell their houses and other assets. 5. The Defendant commenced enforcement action against the Plaintiffs in circumstances where it was not reasonably necessary for the protection of the legitimate interests of the Bank to do so; 6. The Bank failed to act as a banking licensee efficiently for the reason set out in (d) above, honestly for the reason set out in (c) above, and fairly towards the Plaintiffs for the reasons set out in (c) and (d) above; 7. The steps and proposed steps taken by the Bank between 1987 and 1988 were not fully disclosed at any time to the Plaintiffs whereby they were prevented from seeking equivalent financial services from another finance provider other than the Bank. 8. The steps taken by the Bank in the premises breached the Code of Banking Practice in particular clauses 2.2 and 25; 9. The Bank was not willing to negotiate with the Plaintiffs but kept insisting that the Plaintiffs sell all assets; there was no willingness to negotiate, or discuss any reasonable compromise except the adoption of its strategy or in line with its demand.
15. In the premises the Plaintiffs suffered substantial loss. Particulars 1. The Plaintiffs ultimately lost the whole of their residential holdings and their business enterprise as a result of the Bank's conduct and suffered very significant and hurtful family and personal losses full particulars of which exceed 3 portfolios, and will be served separately; 2. As a result of the conduct complained of herein the Plaintiffs have suffered significant loss and damage; 3. Further particulars exceed 3 folios and are served separately; 4. The total loss to 31 May 2018 at RBA interest rates compounded for unsecured personal loans was $851,960,635. Updated particulars will be provided.

DECEIT CLAIM

1. Further or alternatively, the Bank by its servants and agents between 1984 to 1989 represented to the Plaintiffs in the course of employment that the Bank by its servants or agents intended to provide ongoing credit support to the Plaintiffs and their business by supplying a suitable financial product to the Plaintiffs by a replacement credit facility in the form of a foreign currency loan [the credit representation]. Particulars 1. The proposed foreign currency loan transaction was 'safe' for the Plaintiffs; 2. There was 'no risk' for the Plaintiffs in borrowing under the proposed foreign currency loan credit transaction through ANZ; 3. That the proposed foreign currency transaction 'would save interest'.
2. The credit representation was made by the Bank by its servant or agent with the intention and likely result that it be relied on by the Plaintiffs. Particulars The Bank's officers Mr Gerry Donaghy, Mr Ron Miller Senior Manger Domestic Banking and Mr Graham Mills Chief Dealer, Foreign Exchange.
3. The credit representation was false in that: 1. The Bank had no such intention of providing ongoing credit support; 2. The replacement financial product was not a loan in foreign currency or a genuine foreign currency loan; 3. The credit arrangement was not in the circumstances of the parties at the time or at all suitable finance; 4. The Bank transferred its risk and losses in international currency trading to the Plaintiffs without the consent or agreement of the Plaintiffs; 5. The proposed foreign currency transaction was not safe and involved substantial financial and business risks for the Plaintiff compared to existing arrangements at less risk, cost and expense.
4. The credit representation was made by the Bank its servants or agents to the Plaintiffs with knowledge that it was false or made recklessly careless as to whether the representation was false or not, in that: 1. The Bank by its officers and in particular senior management knew that he replacement financial product was not a loan in foreign currency; 2. The Bank by its officers and in particular senior management knew the credit arrangement was not in the circumstances of the parties at the time or at all suitable finance; 3. The Bank transferred fictional expenses such as interest withholding tax and debits referrable to losses in international currency trading to the Plaintiffs without the consent or agreement of the Plaintiffs; 4. The Bank officers were aware of volatility in the foreign currency market and that the Australian dollar was not stable relative to the 6 foreign currencies which they traded or purported to trade to the Plaintiffs contrary to the graphs they showed the Plaintiffs at the March meeting [ie USD, GBP, NLG, ITL, JPY, and CHF].
5. Induced by the credit representation and in reliance thereon the Plaintiffs entered in to the credit transaction causing loss and damage such that the Bank took enforcement action against the Plaintiffs to sell off assets as required by the Bank its servants or agents by the sale of personal and business assets which they otherwise would not have done but for the representation.
6. At all material times the Bank by its servants or agents was liable for the acts and omissions of its officers aforesaid in particular but not limited to Mr Gerry Donaghy, Mr Ron Miller Senior Manger Domestic Banking and Mr Graham Mills Chief Dealer who was each described in the Bank's business cards handed to the Plaintiffs or communications with them as 'Manager' and whose representations to the Plaintiffs alleged herein were made on behalf of the Bank and made in the ordinary course of the Bank's business.
7. As a result of relying on the false representation of the Bank its servants or agents alleged herein the Plaintiffs have suffered loss and damage. Particulars Acting in reliance on the false representation the Plaintiffs have lost the whole of their business assets.

Part D: Questions Appropriate for Referral to a Referee

1. The assessment of damages including interest.
2. The opening up and taking of an account in equity with respect to the credit account including by way of inquiry into the transaction.

Part E: Statement as to Whether the Parties have had Mediation

1. Yes, in December 2018 an informal Mediation was convened when the ANZ representation held the majority of the debate and placed the blame for the Plaintiffs' loss solely on the Plaintiffs' errors of financial judgment.
2. During the Mediation the ANZ senior representative produced a Diary Note dated 18 April 1984 in contradiction to previous statements that ANZ had a 'total lack of documents' for any Discovery by the Bank if sued.

Endnotes

1. Supreme Court proceedings no. 10987 of 1991.
2. This claim was made after the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
3. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
4. Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 21.4 provides, 'A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it; and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.'
5. Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 65 provides, 'A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it, and the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.'
6. See also Legal Profession Uniform Law Application Act 2014 (NSW) sch 2 cl 4(2).
7. UCPR rr 14.22 - 14.24.
8. Legal Profession Uniform Law Application Act 2014 (NSW) sch 2 cl 4(2) provides, 'A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.' 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: 10 December 2020