Victorian Civil and Administrative Tribunal|2004-04-20

Linton v Commonwealth Bank of Australia [2004] VCAT 870 (20 April 2004)

FAIR TRADING ACT 1999 - jurisdiction of Tribunal - VCAT Act - s.77 - order to enforce mortgage - more appropriate forum

2. Pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998, this application is struck out upon condition that the respondent file and serve proceedings in the County Court of Victoria in relation to the matters the subject of the present proceeding, and as foreshadowed by, it within fourteen days of this date.

3. I shall hear argument as to whether there should be an undertaking given by the CBA that Linton be allowed to continue occupation of the property the subject of this dispute.

4. Upon being satisfied that the terms of Order 2 have been complied with, I am prepared to order that the matter be referred to the County Court pursuant to s.77(3) of the Act.

5. Before making the order referred to in Order 4 above, I am prepared to entertain argument as to whether there should be attached any condition or undertaking of the type referred to in Order 3 hereof.

7. Subject to any argument, the question of costs is reserved.

Subsequently and following the pronouncement of the above orders, the CBA gave the following undertaking:

The CBA undertakes that it will not take possession of the Belgrave property pending the determination of the proposed County Court proceedings. This undertaking replaces those previously given.

1 In this matter, Mr Vink ("Vink") appeared on behalf of himself and Ms Linton ("Linton"). Ms Cipriano appeared on behalf of the Commonwealth Bank of Australia ("the CBA"). No oral evidence was advanced, although there was reference to material on affidavit, and each side spoke to written submissions.

2 Before going into a more detailed history of the litigation and the factual background, I would make the following observation. This matter was before Member Vassie on 24 October 2003. Amongst other orders made by him on that day, there were orders referring the matter to a judicial member in relation to the issue of jurisdiction and the issue of an application pursuant to s.77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Accordingly, the matter came before me in order to determine these issues. They are all that I shall determine. At times, Vink has raised other issues relating to the merits of the case, and has sought a "summary judgment". However, as I have explained during the hearing, the purpose of the referral to me was to obtain determinations regarding jurisdiction and regarding s.77, and it was argument in relation to these matters that the CBA had expected, and was prepared, to meet. Accordingly, I shall confine myself to determining those two legal questions. Insofar as there are references to factual matters, it is to be borne in mind that they are assumptions made by me for the purpose of determining the legal questions, and are not to be treated as findings of fact on the merits.

3 In order to better understand the dispute before me, some brief history of this litigation is necessary. Such history will necessarily involve reference to factual matters. My previous remarks concerning matters of fact are to be recalled. I might say that this case is complicated and its history is, for a proceeding in this Tribunal, unusually lengthy. Some barometer of this is that the papers now occupy three substantial Tribunal files. Accordingly, I shall not set out at length every step that has occurred, but will refer to the principal steps which have been taken, and some of the alleged factual bases for these.

4 This proceeding appears to have its origins in an application issued out of this Tribunal in July 2003. That application referred to the matter as a credit dispute, and was placed in the Credit List. Linton and Vink were described as applicants, and the respondent was described as Murray Bottrell, Credit Manager, of the CBA. Ultimately the CBA became the respondent. Substantial correspondence apparently placed on the Tribunal's file with, or at the time of, the application reveals that there had been a dispute in progress for a considerable period. Essentially, Linton and Vink were alleging various breaches of the Consumer Credit (Victoria) Code. They were seeking the return of the sum of $6,973.60 paid by Vink to the CBA in relation to a bank guarantee, and return of the Certificate of Title of Linton's property at 4 Bennett Avenue, Belgrave ("the Belgrave property") which, as revealed by the correspondence and documentation, was, according to the CBA, mortgaged to it as security for various bank guarantees.

5 Following further correspondence, the matter was listed before Member Vassie by way of directions hearing on 8 August 2003. Linton and Vink had foreshadowed an intention to transfer the matter to the Civil Claims List and provided a document headed "Particulars of Claim" in this regard. The application has a somewhat shotgun approach as to exactly what relief is sought, but the end result is that the payment of $9,999 and the return of the title of the Belgrave property is sought.

6 The reason for the application for transfer to the Civil Claims List seems to have been the apprehension that the relief sought was in fact based upon breaches of the Fair Trading Act 1999 ("the FTA"). Member Vassie made various orders including a reference to the Deputy Presidents of the Credit List and the Civil Claims List so that they might consider the position, and, foreshadowing that the requested transfer would be granted, a direction that the Registrar list the matter by way of preliminary hearing concerning jurisdiction. This latter step followed upon the raising of the question of jurisdiction by the CBA.

7 On 19 August 2003, Deputy Presidents Coghlan and Levine ordered that the matter be transferred to the Civil Claims List.

8 By letter dated 24 September 2003, the CBA made formal demand upon Linton in the sum of $14,198.95 plus daily interest. Reference is made to a "Mortgage/Guarantee" and to amounts owing arising out of bank guarantees. In this formal demand, under the heading "Securities" there is reference to mortgage No. V2018286 dated 23 December 1997 over the Belgrave property.

9 Somewhat confusingly, there is a further letter of demand dated 8 October 2003 from the CBA to Linton. This demands the payment of $14,122.85 and daily interest, and refers specifically to the mortgage over the Belgrave property, this time the mortgage being referred to as No. T941287U dated 20 September 1995. This mortgage, and a letter of acknowledgement involving the Belgrave property, are contained in the documentation provided. I can find no copy of the 1997 mortgage referred to in the earlier letter of demand.

10 By way of formal notice pursuant to s.76(1) of the Transfer of Land Act 1958 and dated 15 October 2003, the CBA, through its solicitor, demanded monies allegedly owing in connection with mortgage No. T941287U.

11 It seems that on 17 October 2003 an application by Linton for an injunction restraining the CBA from taking any further action in relation to the mortgage until the matter was concluded at this Tribunal was listed before the Melbourne Magistrates' Court. On that occasion, the CBA gave an undertaking that it would take no further action to enforce its mortgage pending a hearing before this Tribunal on 24 October 2003. Following a conversation with an officer of this Tribunal, by facsimile dated 20 October 2003 to this Tribunal the CBA confirmed its undertaking that it would take no further action pending the hearing on 24 October.

12 In relation to that hearing, an affidavit of Garry William Moffatt, a solicitor in the employ of the CBA, was produced to this Tribunal, and some of the documents exhibited to it are documents which have been referred to in submissions. At the hearing on 24 October 2003, Member Vassie made the orders which I have referred to above, and also ordered that the affidavit of Moffat be treated as an application pursuant to s.77 of the VCAT Act.

13 It is also noted that Moffat's affidavit raised the issue that the CBA had intended filing proceedings in the County Court of Victoria in order to enforce its mortgage. It intended to issue such proceedings on 22 October 2003. However, the CBA gave the undertakings referred to above in respect of taking no further steps. Accordingly, proceedings in the County Court of Victoria had not been issued as at the date of the hearing before Member Vassie. Moffat's affidavit clearly sets out the intention of the bank in relation to County Court proceedings and the reason why same had not been issued, and the belief that the CBA would not be able to issue an application in this Tribunal in order to enforce its mortgage.

14 In addition, Member Vassie noted that the CBA undertook that it would not commence any proceeding against the applicants in any other forum or take any other steps to enforce the mortgage until a judicial member had determined the questions of jurisdiction and s.77, or until further order.

15 Having set out the essential steps in the litigation history and the alleged facts upon which litigation had been conducted, I will now turn to the cases presented by the respective parties in the order of such presentation.

16 I will now summarise the case for Linton and Vink. I shall confine this summary to the points which I am determining and not make reference to the broader issues raised by them. In addition, a number of written submissions, some with annexed documents, have been filed. I shall not set out the details of each submission, but shall attempt to give a précis of what is being put as I understand it. This summary draws upon matters put in the various submissions, rather than confining itself to one particular written or oral submission.

17 The Tribunal has jurisdiction because this is a "fair trading dispute" within the meaning of the FTA. It is a dispute between the purchaser of services and the supplier of services - see s.107(1) of the FTA. The definition of "services" in s.3 of the FTA includes any rights etc conferred in trade or commerce including rights provided, granted or conferred under a contract for or in relation to the performance of work. This includes work of a professional nature.

18 Further, that this Tribunal has jurisdiction in a matter such as this was so found by Kellam J in Bentley v Cash Resources (2002) VCAT 1399.

19 In relation to the s.77 application, the County Court is not a more appropriate forum. This case is similar to Bentley. Even if the legislation is now broader (presumably a reference to the amended s.111 of the FTA) it does not follow that Kellam J would have referred Bentley to another court.

20 The application before this Tribunal concerns many breaches of the FTA including flawed documentation, unconscionable conduct, duress and the like. One of the basic questions to be determined is whether Linton owes a debt to the CBA. If she does not, and if she has no obligation, no issue of enforcement under the mortgage arises. The principal submission is that no loan exists. If it were found that a documented loan pursuant to a contract does exist, the next question is whether such contract is enforceable given that it was not entered into on a fair basis.

21 There is no argument concerning the existence of the mortgage and if it is determined that there are monies owing to the CBA, those monies shall be paid.

22 Linton was subject to undue pressure and unfair tactics, and was not advised to seek independent legal or professional advice prior to entering into any arrangement. If it is found that there is a debt owing, she will honour her obligations. The cases for Linton and Vink are inextricably interwoven, and should not be heard separately.

23 The matter commenced before this Tribunal. It is the sort of matter, both in quantum and nature, that should be determined by this Tribunal. To now refer it to the County Court would cause extra delay in what has already been a lengthy matter. It would also add greatly to the cost of the litigation. The balance of convenience, the possible expense, the size of the claim, and the nature of it all make this Tribunal the preferred forum. The matter commenced here and should continue here.

24 Reliance is placed upon ss.108 and 109 of the FTA, which deal with the power of the Tribunal to determine disputes, and with matters to which regard may be had, and upon those sections which deal with unconscionable conduct (ss.7 and 8). Reliance is also placed upon s.78 of the VCAT Act in that the CBA is endeavouring to cause a disadvantage to Linton and Vink by the manner in which it is conducting the proceeding.

25 There is no argument but that the Tribunal does have jurisdiction in relation to matters which arise under the FTA. In this case the nature of the claim has been amended on various occasions. It cannot be ascertained from the particulars of claim (or revised history) dated 24 October 2003 whether any part of what is claimed falls within the FTA. The claim is a confused one. Linton appears to be claiming that the mortgage is invalid and raising issues concerning the CBA's obligations when a request for payment is made in relation to a bank guarantee, and concerning various trust aspects. Vink's claim is in relation to a refund of monies paid on behalf of Linton, which is in turn relates to her obligations and the question of the validity of the mortgage.

26 Thus, Vink is seeking a refund of the monies which he has paid. Linton is seeking a withdrawal of any claim against her for monies owing, the return of her title, and costs, damages and exemplary damages (related to unconscionable conduct). It is far from clear whether any of these matters, in the context of the existing facts, involve the FTA or the jurisdiction of this Tribunal.

27 In relation to the s.77 application, the County Court is the more appropriate forum. It has been the CBA's intention to issue County Court proceedings in order to enforce the mortgage, as set out in Moffatt's affidavit. Whilst such proceedings have not in fact been issued, this is essentially because an undertaking was given that no further step would be taken pending the outcome of this preliminary hearing.

28 The matter should be referred to the County Court because of the complexity of the issues raised, which in turn require such things as pleadings, discovery and inspection of documents. The issues that will arise will be the same in each proceeding. Further, CBA is seeking enforcement of its mortgage. Such an order cannot be made by this Tribunal.

29 The power of the Tribunal to refer a dispute pursuant to the FTA to a more appropriate forum is found both in s.77 of the VCAT Act and s.111 of the FTA. Section 111(1)(c) of the FTA came into operation on 27 May 2003. That permits a referral pursuant to s.77 even if the original application was issued out of this Tribunal and overcomes the problem alluded to by Kellam J in Bentley.

30 In my opinion this Tribunal does have jurisdiction to deal with a dispute of this kind. There are many similarities between the facts and allegations in the present case and those in Bentley.

31 It is to be recalled that the decision of Kellam J in Bentley occurred as the result of the matter being referred to this Tribunal from the Supreme Court of Victoria - see Cash Resources Australia Pty Ltd v Bentley & Anor (2002) VSC 271. In that decision, there is considerable discussion of the meaning of "a fair trading dispute" by Gillard J who came to the conclusion that the execution of the mortgage constituted the supply of services within the meaning of s.107(1) of the FTA. A discussion concerning this can be found in paragraphs 22 to 35 of Gillard J's judgment.

32 With respect, the approach adopted by Gillard J in Bentley seems to me to be not only entirely logical but also applicable to this case. I shall not set out the reasoning which can be found in Bentley. Suffice to say that I am of the view that, pursuant to the provisions of the FTA, this Tribunal does have jurisdiction to hear this proceeding.

33 The real argument in this case seems to me to be that concerning s.77 of the VCAT Act. The question is whether the proceeding should be struck out because the Tribunal considers that the subject matter of it would be more appropriately dealt with by the County Court and accordingly referred to it.

34 It is to be noted that there has been an important amendment to the FTA since the decisions in Bentley. The judgment of Gillard J was handed down on 12 July 2002. The decision of Kellam J was handed down on 20 November 2002. The amendment which inserted s.111(1)(c) became operational on 27 May 2003. To complete the chronology, Linton and Vink's first application was issued out of this Tribunal in July 2003, and the transfer to the Civil Claims List, because of reliance upon the FTA, occurred in August of that year.

35 When the operation of s.111 of the FTA was being considered by Gillard J, that section read as follows:

(1) Once an application has been made to the Tribunal in accordance with the Victorian Civil and Administrative Tribunal Act 1998 in respect to a fair trading dispute, or in respect of any other matter in respect of which the Tribunal has jurisdiction under this Act, the issues in dispute are not justiciable at any time by a Court unless -

(a) The proceeding in that Court was commenced before the application to the Tribunal was made and that proceeding is still pending; or

(b) The application to the Tribunal is withdrawn or struck out for want of prosecution.

36 Gillard J was satisfied that there was some evidence to support the jurisdiction of the Tribunal. Bentley had instituted her proceedings in the Tribunal some thirteen days prior to the issue of the writ in the Supreme Court. Accordingly, at paragraph 56 of the judgment, Gillard J stated as follows:

In my opinion, Mrs Bentley has, by filing her defence and affidavit in opposition to the application for summary judgment, raised the very issues which are in dispute in the Tribunal application, and it follows that the proceeding in this Court now involves a fair trading dispute and also involves alleged contraventions of the Fair Trading Act, which enlivens the jurisdiction to award damages. It follows that s.111 of the Act applies and this Court is no longer empowered to hear the plaintiff's proceeding.

37 Kellam J considered the operation of s.111 as it then was and s.77 of the VCAT Act. He determined that s.111 of the FTA prevailed and that "...a claim under the Fair Trading Act is not justiciable in a Court in circumstances where the proceeding was first commenced at the Tribunal...". As a result, the matter was fixed for hearing at this Tribunal.

38 On 27 May 2003, the additional exception contained in s.111(1)(c) came into operation. It reads as follows:

(c) The Tribunal refers the proceeding to that court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.

39 It is interesting to speculate as to whether the introduction of that provision was a consequence of the concerns expressed by Kellam J in Bentley.

40 In any event, at the time when Kellam J delivered judgment, s.111 of the FTA prevailed and he did not have the option of striking out the proceeding pursuant to s.77 of the VCAT Act (although he did make some observations concerning the interpretation of that section). The Tribunal application having commenced prior to the Supreme Court proceedings, it was not justiciable there. It had to be heard at this Tribunal. There was no mechanism for sending it elsewhere.

41 The law has now altered, and had altered prior to the commencement of these proceedings. Despite the fact that a matter has commenced before this Tribunal, an application pursuant to s.77 of the VCAT Act can be entertained, and, if such application is successful, the matter can be referred elsewhere.

42 Thus, the real issue becomes whether it is appropriate so to do, the power to entertain the application now existing.

43 Firstly, whether or not a burden of proof in the curial sense exists in an application such as this before a Tribunal such as this, I certainly accept the words of Kellam J in paragraph 15 of his judgment that "...it would need to be clear that the Tribunal was an inappropriate forum".

44 Secondly, no proceeding has in fact been issued in the County Court. However, for the purposes of the present application, I accept that it is, and has been, the CBA's intention to file such a proceeding. Moffatt attests to this in his affidavit. It has been repeated in submissions by Ms Cipriano. It is consistent with the correspondence and with the steps take by the CBA. I also accept that, on 24 October 2003, Member Vassie ruled that the issuing of proceedings elsewhere was not necessary for the purposes of a s.77 application and, given the provision of the FTA, could not and should not be so issued whilst the proceeding before the Tribunal was still on foot and the s.77 application had not been dealt with. I accept that this caused the CBA not to actually issue proceedings in the County Court. I am dealing with this s.77 application by the CBA on the assumption that it has a bona fide intention to issue County Court proceedings seeking enforcement of the mortgage and would do so promptly if it were successful in this application.

45 After lengthy consideration and with considerable reluctance, I have arrived at the conclusion that this Tribunal is not the appropriate forum. I use the words "considerable reluctance" because I appreciate the delay and the extra expense that will probably be occasioned by this determination. I am also mindful of the fact that Linton and Vink chose to issue their proceeding out of this Tribunal, and did so before any proceeding had been issued by the CBA. I am also mindful of the quantum of the claim and the nature of it. All of these factors would strongly support the proposition that this Tribunal is the appropriate forum.

46 However, what makes it clear to me that this Tribunal is not the appropriate forum is the doubt which I have as to whether the CBA can, in practical terms, obtain the relief which it seeks. That is not to say that I am giving some preference to the CBA and the relief which it seeks as opposed to Linton and Vink and the relief which they seek. It is desirable that there be only one piece of litigation. It is not desirable that there be two pieces of litigation, involving the same issues, in separate forums. I might say that it seems to me that the facts and issues seem almost entirely common to both pieces of litigation. It is further desirable that, in the event of victory in that one piece of litigation, each party should be able, in practical terms, to obtain the relief which he, she or it sought. This is so whether the CBA filed a cross claim here, or whether it sued upon the mortgage in the County Court and Linton and Vink proceeded by way of defence and counterclaim.

47 I am not confident that the CBA could obtain the relief which it seeks at this Tribunal. I am presuming that, as foreshadowed in the notice pursuant to s.76(1) of the Transfer of Land Act, the relief sought by it will be possession of the Belgrave property and the sale of the mortgaged property in order to realise the amounts which it says are owing. As stated, I cannot be confident that such relief can be obtained here. I am confident that it can be obtained at the County Court. I am confident that the relief sought by Linton and Vink can be obtained at either forum.

48 Whilst no such argument was advanced, I can envisage an argument that this Tribunal probably has jurisdiction pursuant to the FTA to make the type of order which the CBA is seeking. If it did have such jurisdiction and did make such an order, such an order might be able to be enforced. This is to be contrasted with the certainty which would exist in relation to such orders at the County Court.

49 The argument which I envisaged could be advanced is as follows. One of the powers of the Tribunal contained in s.108 of the FTA is that referred to in s.108(2)(j) - "order a party to do or refrain from doing something". Following this provision there is set out an example illustrating the type of situation which the legislature presumably intended be covered. However, the wording of the provision is extremely broad. Arguably, in a situation such as this, it might extend to the making of the type of order sough by the CBA. However, the events in this case occurred prior to the insertion of this provision in the legislation. It became operational on 27 May 2003. Therefore, in relation to these events, it would have to be given retrospective operation. Arguably, this can be done - see the decision of Beach J in Vamot Pty Ltd v Tempacoe Pty Ltd (2000) VSC 251.

50 If this argument were successful in its entirety, there would still remain the problem of enforcement. It is to be remembered that the type of order sought is presumably one for possession. Apart from the contempt powers of this Tribunal, the only other means of enforcing such a non-monetary order would be by filing same in the Supreme Court, complete with a certificate from a judicial member of this Tribunal stating that the order is appropriate for filing in the Supreme Court - see s.122 of the VCAT Act. This may raise further issues as to whether the filing of the order is so appropriate. There may be issues as to whether the type of wording available by way of an order of this Tribunal would be sufficient to permit the enforcement process. Would such wording extend to an enforceable order for possession, or would this be beyond what was envisaged by the legislature?

51 In summary, the above scenario involves words such as "arguably", "probably" and "might". If litigation is conducted in the County Court, certainty replaces possibility or probability. For that reason it is clear that this Tribunal is not the appropriate forum.

52 The above conclusion is underlined or clarified if the litigation is viewed in the following way, which seems to me to be a fair representation of what it is really about.

53 The whole dispute is about a "loan" (a bank guarantee) secured by a mortgage. The CBA has demanded payment. The CBA has consistently informed Linton that she was liable for the debt by virtue of the mortgage. In the correspondence attached to the original application, reference to this approach can be found in excess of six months prior to the issuing of such application. It may be that Linton and Vink issued out of this Tribunal prior to the issue of any proceeding by the CBA, but it has always been evident that both the mortgage and the alleged debt are at the heart of this dispute. Each application issued out of this Tribunal by Linton and Vink requests the return of the title of the Belgrave property. The existence of the mortgage as security for the bank guarantees and attempts to prevent the CBA from acting in relation to same (or to recover monies paid on account of same) are key elements in the dispute, regardless of which party or parties issued first.

54 It seems to me that, upon analysis and after the stripping away of the many complex surrounding arguments, this litigation is, in reality, a suing upon the mortgage by the CBA and the presenting of various defences and counterclaims by Linton and Vink. The CBA is alleging that it is entitled to use the security of the mortgage in order to recover a debt. Linton and Vink are alleging that, for a variety of reasons, no such debt exists and it is they who are entitled to money and/or a title.

55 The issues in the two sets of allegations are so closely entwined that it is really one case. That case is one based upon a mortgage, to which various defences and counterclaims have been made, regardless of the order in which the litigants have taken steps. The CBA has issued a notice pursuant to s.76(1) of the Transfer of Land Act. It had done so prior to the hearing before Member Vassie. It is in a position to prosecute the claim. As stated, I accept that, but for the prevailing circumstances, it would already have done so.

56 If the litigation is viewed in that way, the desirability of each party being certain that it can obtain the relief which it seeks is perhaps clearer.

57 The conclusion which I have reached is perhaps reinforced to a minor extent by the observations of Kellam J in Bentley, and the argument advanced by the CBA based upon them.

58 Whilst the quantum involved in this case might be significantly smaller than that in Bentley, to adopt the words of Kellam J "...if the subject matter is complex, involves difficult issues of fact and law, and requires pleadings and case management processes which are more typical of processes adopted by the Supreme Court, an argument may well be advanced that such a case should be struck out and referred to the Supreme Court". Of course, in this instance, the relevant court is the County Court. The issues involved in this case are similar to those in Bentley, and equally complex. Whilst the quantum may be small, the issues involved are significant. It may be that they are better determined in a court of pleadings. I am certainly not saying that this Tribunal lacks the expertise to deal with such a matter. It can order pleadings. However, there are certain matters which are probably better litigated in a court of pleadings with well-established rules of procedure. This may be such a case, although I do not find that argument particularly compelling.

59 However, my primary reason for upholding this application is that some doubt exists as to whether this Tribunal can afford the appropriate relief in an action for possession based upon a mortgage. No such doubt exists as to the ability of the County Court to afford such relief, or to afford any of the relief sought by any party in this case.

60 Accordingly, I am of the opinion that, pursuant to s.77 of the VCAT Act, this matter should be struck out and referred to the County Court. However, as stated, I have proceeded on the assumption that the CBA has a bona fide intention to issue County Court proceedings based upon the mortgage. Given that the CBA has allegedly been in a position to do this for many months, I see no reason why it should not be done within fourteen days of this determination. Pursuant to s.130 of the VCAT Act, the Tribunal has the power to make any order or decision subject to any conditions or further orders that it thinks fit. In my opinion, the making of the order pursuant to s.77 striking out the present application should be conditional upon the CBA filing its proceeding in the County Court within fourteen days of this date. If it does not satisfy that condition, the application before this Tribunal shall be reinstated. It is intended this be in the nature of a self-executing order.

61 Further, whilst this matter has been "on hold", an undertaking has been in place that no further steps would be taken by the CBA to enforce the mortgage pending determination of it. Clearly, a further step - namely the issuing of County Court proceedings - can now be taken. However, given the history of this matter, it would be disappointing if the CBA took any step (other than the issuing of proceedings) in order to remove Linton from the Belgrave property prior to the ultimate determination of the matter. Accordingly, before pronouncing this order, I will hear argument as to whether the existing undertaking should be continued or whether a new undertaking should be given by the CBA. Lest there is any doubt, I wish to make it clear that, in striking out this proceeding, I am in no way determining that the CBA is entitled to take some action (other than the issuing of proceedings) based upon the mortgage prior to the ultimate determination of the matter. Whilst interest may continue to accrue, these orders are made in the belief and expectation that the status quo in relation to Linton's occupation of the Belgrave property shall remain undisturbed pending the ultimate outcome or other order.

62 Accordingly, upon the CBA satisfying me that proceedings in the County Court have been issued within the time limit set out in paragraph 60 above, I am prepared to order that this matter be referred to the County Court pursuant to s.77(3). I am then prepared to hear argument as to any condition, or undertaking of the type referred to in paragraph 61, that may attach to such order of referral.

1. This Tribunal has jurisdiction to deal with this matter pursuant to the provisions of the Fair Trading Act 1999.

3. I shall hear argument as to whether there should be an undertaking given by the CBA that Linton be allowed to continue occupation of the property the subject of this dispute.

4. Upon being satisfied that the terms of Order 2 have been complied with, I am prepared to order that the matter be referred to the County Court pursuant to s.77(3) of the Act.

7. Subject to any argument, the question of costs is reserved.

Subsequently and following the pronouncement of the above orders, the CBA gave the following undertaking:

The CBA undertakes that it will not take possession of the Belgrave property pending the determination of the proposed County Court proceedings. This undertaking replaces those previously given.

Fair Trading Act 1999

Civil and Administrative Tribunal Act 1998

Linton v Commonwealth Bank of Australia [2004] VCAT 870

At a glance

Court

Decision date

Source

Judgment (86 paragraphs)

Linton v Commonwealth Bank of Australia [2004] VCAT 870 (20 April 2004)

Parties

Legislation Cited (3)