National Australia Bank Limited v Skoczek

The Proposed Cross-Claim

1. To facilitate a more efficient approach to the application, I first heard the parties on the application for leave to file the proposed cross-claim. At the outset in considering the objections to that pleading, two aspects of Mr and Mrs Skoczek's complaints should be noted. First, there is an underlying complaint by Mrs Skoczek that the guarantee sued upon by NAB should be held to be unenforceable or set aside because of various matters, all of which, one way or another, are said to amount to either relevant unfairness, unconscionability, or an equity of the kind referred to in Yerkey v Jones [1939] HCA 3; 63 CLR 649, later confirmed in Garcia v National Australia Bank [1998] HCA 48; 194 CLR 395 ("Garcia").
2. Second, it appears that at some point Mrs Skoczek conducted a mortgage origination business through a company, Tonadale Pty Ltd ("Tonadale"), which provided those services to Interstar Management Pty Ltd which later became Challenger Mortgage Pty Ltd ("Challenger"). The services were provided pursuant to a document described as a "Mortgage Management Agreement" (MMA). Towards the end of 2009, NAB apparently acquired Challenger and in some manner or other engaged Advantedge Financial Services Pty Ltd ("Advantedge") to provide management services in relation to its business.
3. The essence of Mr Skoczek's complaint is that in or around November 2009 he ceased to receive trailing commissions to which he claims he was entitled under the MMA. He seeks to make NAB legally responsible for that. Mr Skoczek alleges that the trailing commissions had previously been used to meet his debt obligations to NAB and that the cancellation of the trailing commissions caused him financial difficulty, such that it put him in default.
4. Against that background, it is necessary to then consider the form of the proposed cross-claim and the objections to it. Paragraph 1 of the proposed cross-claim seeks to incorporate the facts and matters pleaded in the defence, and to rely on various particulars set out in the defence. Objection is taken to this by counsel for NAB, Mr Kaufmann, on the basis that it leaves NAB to guess as to exactly what are the material facts that are pleaded and particularised against it. There is much force in that contention, especially if I was to determine that there were difficulties with the defence. However at this stage, there is no need for me to address this particular submission in light of the other issues raised with the cross-claim.
5. Paragraphs 3 to 5 of the proposed cross-claim recite the events concerning the entry by Tonadale into the MMA with Challenger, Challenger's acquisition by NAB, and the alleged circumstance that, under the MMA, trailing commissions for mortgages entered into after the acquisition by NAB would be paid by Advantedge on a monthly basis. Paragraph 6 alleges that shortly after the date of entry into the MMA in 1996, Tonadale assigned to Mr Skoczek its right to receive trailing commissions. Particulars of that allegation are set out. Paragraphs 7 to 9 allege that Mr Skoczek arranged with NAB at various times to set off against the amounts owing for principal interest on the "mortgages, the subject of the statement of claim", the amounts payable for trailing commission. Paragraph 10 pleads that "in breach of the MMA" and in breach of each of the loan agreements pleaded in the statement of claim, NAB, by its servants or agents, or Advantedge, by its servants or agents, stopped paying trailing commissions and cancelled all future payments.
6. Paragraph 11 pleads that this conduct amounted to a repudiation of the said "credit contracts" which, although unclear, appears to be a reference to the loan agreements pleaded in the statement of claim. Paragraph 12 pleads that this conduct amounted to a repudiation by NAB, or by Advantedge, of the MMA, and a repudiation of something defined as the "Mortgage Securities and Loan Agreements" ("MSLA").
7. Mr Kaufmann contended that paragraph 6 of the proposed cross-claim does not properly particularise the basis upon which it is said that Tonadale assigned the rights to trailing commissions to Mr Skoczek. I think adequate particulars are provided, although whether they amount in law to an assignment is a different matter. Mr Kaufmann also contended that the cross-claim did not plead any basis upon which Tonadale, which is one of the proposed cross-claimants, is entitled to relief. There is force in this, although it can be envisaged how that situation may be addressed in a further iteration of the cross-claim. In particular, given that there is to be some dispute as to whether there was an assignment of the right to receive trailing commission from Mr Skoczek to Tonadale, it is conceivable that Tonadale could bring an alternative claim to that brought by Mr Skoczek in respect of the failure to pay trailing commission.
8. The next and more substantive complaint made by Mr Kaufmann concerning this part of the proposed cross-claim concerns so much of it that alleges that Advantedge and NAB acted in breach of the MMA as well as what is described as the "credit contracts" and the MSLA. Insofar as Advantedge and the MMA are concerned, notwithstanding the submissions of counsel for Mr and Mrs Skoczek (and Tonadale), Mr King, to the contrary, there is nothing in the form of the proposed cross-claim that identifies any agreement to which Advantedge is a party, much less any factual basis for contending that Advantedge is a party to any such agreement.
9. The only paragraph that comes close is paragraph 5 which refers to Advantedge incurring an obligation to pay trailing commissions for mortgages entered into after the acquisition of Challenger by NAB. However, that allegation is irrelevant to this matter because neither Mr Skoczek nor Tonadale wrote mortgage business during that period. Mr King also referred to paragraph 6. However, as stated, the factual assertion in that paragraph is not that Advantedge became a party to any agreement but instead that Mr Skoczek received an assignment of Tonadale's right to receive trailing commissions.
10. It is also submitted by Mr Kaufmann that the basis upon which NAB could be liable for breach of the MMA is not pleaded. I agree. As I have stated, paragraph 6 only alleges an assignment of the right to trailing commission to Mr Skoczek. Paragraphs 7 to 9 only allege an off-set arrangement was entered into between Mr Skoczek and NAB, namely one in which NAB would off-set trailing commission received against principals and interest owing.
11. The only part of the pleading that gets close to alleging that NAB was a party to the MMA is the particulars to paragraph 10, which assert that it: "…was a convention of the relationship between … [Mr Skoczek] and NAB that each of them was a party to the trailing commission arrangement referred to in paragraphs 6 and 7 and in the defence as amended herein and that each conducted itself as if it were a party to the arrangement and was entitled to the benefits thereof and the liability thereunder".
12. On proper analysis all that particular is alleging is that NAB was a party to the arrangements pleaded in paragraphs 6 and 7 which, as stated, only concern an assignment of trailing commissions and the off-set of trailing commissions against loan obligations of Mr Skoczek. It does not allege that somehow NAB became a party to the MMA. Moreover, even if it did, that allegation being critical to the cross-claim would need to be properly particularised. It is not.
13. A further objection concerns so much of paragraphs 11 and 12 that allege that the conduct in ceasing commissions was a breach of the "said credit contracts" and the MSLA. The difficulty with asserting that it was a breach of the said credit contracts is that there is no factual allegation capable of demonstrating how it is that a failure to pay the trailing commissions amounted to a breach of credit contracts sued upon by NAB.
14. As for the reference to the "MSLA", it is entirely unclear what that is a reference to. If it is simply surplusage and this is meant to only be a reference to the agreements sued upon by NAB, it still suffers from the vice just noted. If it is not, then NAB is left to guess what agreement is being referenced.
15. Otherwise, I note that Mr King pointed to parts of the proposed defence and submitted that somehow these linked the loan agreements sued upon to the trailing commission arrangement so that a breach of the latter would be a breach of the former. The relevant parts of the defence particularise a conversation said to have occurred in November 2010, well after the alleged breaches pleaded in the propose cross-claim occurred. Those parts do not assist.
16. Paragraphs 13, 14 and 15 contend that the MSLA and each credit contract and the registered mortgage should be declared void or set aside either by reason of section 12GM of the Australian Securities and Investments Commission Act 2001 (Cth), some provision of the National Credit Code or of the Contracts Review Act 1980. These parts of the proposed cross-claim cross refer to the particulars of the defence. They invite scrutiny of the adequacy of those particulars; a matter that has yet to be addressed.
17. Paragraph 16 pleads a claim on the part of Mr and Mrs Skoczek to damages from NAB and Advantedge for the loss of the trailing commissions from November 2009 to date. It follows from what I have stated that this paragraph is objectionable because the basis upon which NAB and Advantedge have an obligation to pay trailing commission has not been properly pleaded or particularised. Also, it is difficult to envisage the basis of any claim that Ms Skoczek has in this regard.
18. During the course of argument reference was made to the particulars to one of these paragraphs which stated that the amount of the trailing commission that was outstanding would not be known until after discovery. While that form of pleading does not accord with the Uniform Civil Procedure Rules, nevertheless in circumstances where it can be expected that one party is in possession of all the material relevant to that topic, I would not refuse leave to a pleading that included that statement. It simply flags that a party will endeavour to find out the precise amounts by the use of discovery.
19. The only remaining matter of substance to deal with in relation to the cross-claim concerns paragraph 19. In paragraph 19, Mrs Skoczek sets out the particulars as to why the guarantee that she is sued upon and the associated mortgage is void or should be set aside. NAB complain about that part of the particulars to this paragraph which states that Mrs Skoczek "also relies in the above circumstances on the principle in Yerkey v Jones (1939) 63 CLR 649". As a matter of strict pleading the objection is well founded. However, provided that there was a pleading that alleged that Mrs Skoczek did not understand the transaction and received no benefit from it, and that NAB understood that Mrs Skoczek reposed trust and confidence in her husband in business matters and that it did not take steps to explain the transaction to her that would suffice (Garcia). Nevertheless, for the other reasons I have already given, it follows that the leave sought to file the proposed cross-claim will be refused. [Parties addressed on the Defence]

The Proposed Defence

1. I have now heard the parties' detailed submissions concerning whether the defendants should have a grant of leave to file the proposed defence. At the outset, two matters should be noted.
2. First, where parties such as the defendants have a number of opportunities to put together a viable pleading it is necessary that any pleading they bring in respect of which leave is sought be clear and precise. There is sometimes room for debate about whether a particular allegation should be fully particularised in a pleading or in a letter. At times, some looseness of language or even definitions can be accepted, provided in the end the recipient of the pleading can ascertain the case they have to meet with clarity. Nevertheless, the necessity for clarity, precision and openness in the pleading remains, especially where a number of previous opportunities to plead have been given.
3. Second, the events the subject of the proposed defence and the proposed cross-claim cover a period in excess of a decade and span the introduction of the National Credit Code in 2010. As a consequence, there is a necessity for precision in the pleading about the time various events are said to have occurred and in the identification of what agreement is being attacked and at what point. As I will explain, one difficulty with the proposed defence is that the various references to the "credit contracts" and "agreements" in the document appear to include references to alleged variations to the agreements pleaded in NAB's statement of claim. The variations are said to have been effected many years after the original agreements were entered into. Thus, the proposed defence makes allegations about the "agreements" or "contracts" without specifying whether it is a reference to the agreement or contract originally entered into, or the agreement as varied in the manner alleged by Mr and Mrs Skoczek. Given the period of time involved, to allow a pleading of that kind to go forward would be productive of delay and confusion at any trial and in the preparation for trial.
4. Paragraphs 1 to 18 of the proposed defence seek to respond to so much of the amended statement of claim that sues Mr and Mrs Skoczek for amounts owing under the first loan agreement which is said by the NAB to have been entered into on or around 9 July 2004 and which is the subject of variations, the last of which was 30 June 2006. The first objection raised by Mr Kaufmann to the proposed defence concerns the withdrawal of certain admissions that had been made in a previous defence, including an admission that Mr and Mrs Skoczek entered into the first loan agreement. The proposed defence now contends that, as Mrs Skoczek did not receive any of the funds that were advanced, she should not be considered a party to the first loan agreement.
5. The fact that admissions made in a previous defence are withdrawn is not of itself a reason for refusing leave to file the proposed defence, provided that it was made sufficiently clear in the proposed defence what the basis for withdrawing the admission was. In the circumstances, it is not necessary to determine whether that requirement has been met here.
6. Paragraph 3 of the proposed defence refers to the first loan agreement sued on by NAB. It describes it as a "residential credit contract". It is pleaded that on or after 1 July 2010 the agreement was subject to the provisions of the National Credit Code. Subparagraph 3(c) pleads that on or about 2 November 2010 the first loan agreement was varied by virtue of a discussion between Mr Skoczek and a NAB manager in or about 2 November 2010. The effect of the conversation is said to be that, pending a resolution of a dispute about Mr Skoczek's trailing commissions, NAB agreed to lend a further sum to Mr Skoczek for a particular development project which would be paid from the sales of some units from that development project. The pleading does not assert that this aspect of the loan agreement was breached by NAB. It was made clear during oral argument that the purpose of pleading a variation to the loan agreement was that if the first loan agreement, being an agreement entered into before 1 July 2010, was varied after 1 July 2010, then it became subject to the provisions of the National Credit Code. To that end, the reference to a "residential credit contract" is not a reference to a defined term in the National Credit Code but instead a reference to a provision of credit relating to residential property which is said to give rise to a presumption that the agreement is one to which the National Credit Code applies, (s 13.) On that basis, subject to what is stated below, there is nothing impermissible about proposed paragraph 3 save for subparagraph 3(c)(vi) which recites a fact about what happened with the development and the sale of a particular property, none of which appear to have any relevance to the balance of the proposed cross-claim.
7. However, Mr Kaufmann also contends that this part of the proposed defence is defective because it does not address the position of Mrs Skoczek, who is said to be a party to the first loan agreement. NAB complains that paragraph 3 of the defence does not plead how the variation apparently agreed between Mr Skoczek and the NAB manager bound Mrs Skoczek. Mr King's response was that Mrs Skoczek was not a party to the agreement because she did not receive any credit or loan funds under it. Whether or not that contention can ultimately be made good, and whether it has that effect, is not a matter to determine at this stage. In the end result, the form of paragraph 3 is not such that I would refuse leave to file the proposed defence in its entirety.
8. The next objection of substance raised by Mr Kaufmann concerns subparagraph 7(f) of the proposed defence. It contends that NAB breached its "said credit contract" by demanding repayment of moneys that were not said to be owing. One difficulty with this paragraph is determining whether the "said credit contract" is a reference to the agreement the defendants say was varied. In any event, the paragraph does not identify what provision of the first loan agreement was breached if NAB sought repayment of an amount to which it was said to be entitled. It does not follow that if a bank mistakenly seeks recovery of a particular amount of money under a loan agreement, that the simple act of demanding payment is, of itself, a breach of the relevant loan agreement.
9. Paragraph 8 of the proposed defence pleads that it was a term of the "credit contract", presumably being the first loan agreement, that the Australian Bankers' Association Code of Banking Practice ("Code of Banking Practice") formed part of that contract.
10. Paragraph 9 pleads that, in breach of clauses 3.2 and 25 of the Code of Banking Practice, NAB wrongfully served a default notice in July of 2014, again in March 2015, and then demanded moneys in circumstances where NAB's defaults "as alleged in paragraphs 3 and 7 [of the proposed defence] caused loss and damage to the Defendants."
11. One difficulty with this paragraph is that paragraph 3 of the proposed defence does not allege any default by NAB or anyone else.
12. A further complaint raised by NAB is that there was not a sufficient specification of what part of the "Code of Banking Practice" was breached. As best as can be identified, the relevant part of the Code of Banking Practice that could potentially be breached by taking those steps is sub-clause 25.2. Sub‑clause 25.2 refers to a bank trying to help a customer "overcome their financial difficulties". The mere service of a default notice without further identification of how the bank did not try to help the customer "overcome their financial difficulties" is not a sufficient pleading of a breach of any such term.
13. To this point, I do not regard the various difficulties with the proposed defence are such as to warrant a blanket refusal of leave to file it. However, paragraph 11 of the proposed defence contends that NAB "knowingly and unconscionably" took advantage of the defendants' disadvantageous financial position on or after November 2009. It allegedly did so by taking various steps, including procuring the cancellation of the trailing commissions payable to either Tonadale or Mr Skoczek, knowing that the defendants had no suitable alternative sources of funds and by making an alternative arrangement in November 2010, being the variation that I referred to earlier, which is described in the pleading as a "form of asset lending". Paragraph 12 then pleads that: "In the circumstances the first credit contract and the linked security", being the mortgage, "should be set aside in equity."
14. The difficulties identified earlier in relation to timing and the identification of the relevant agreement come to the fore in considering this part of the proposed defence. This pleading appears to raise a claim of unconscionability in equity. As such, it should focus upon the circumstances surrounding the entry into, or enforcement of, a particular contractual arrangement. In seeking the setting aside in equity of the "first credit contract" and a related mortgage, paragraph 12 appears to suggest that what is sought to be set aside is the first loan agreement sued upon by NAB. However, the particulars identify events that occurred well after the first loan agreement was entered into.
15. In the course of oral submissions, Mr King sought to defend this part of the proposed defence by contending that it was attacking the variation to the first loan agreement that occurred in November 2010. He submitted that, by reason of various events that occurred on or after November 2009, what occurred in November 2010, namely the variation, was unconscionable.
16. The difficulty is, if that submission were right, it would only lead to relief setting aside the variation in November 2010, yet paragraph 12 seeks to unravel the whole transaction. Otherwise, these paragraphs do not descend to identify what was particularly unfair about that variation other than the broad allegation of asset lending. They do not identify the consequences for the defendants of entering into that variation, for example, that the further sum that was lent to pursue a property development led to some particular loss.
17. Paragraph 13 of the proposed defence pleads that "in breach of ss 72 to 76" of the National Credit Code the NAB did or did not take various steps. Section 72 of the National Credit Code deals with changes to a credit contract on the grounds of hardship. It provides a mechanism for the service and exchange of notices between a credit provider and a customer concerning hardship being experienced by the customer.
18. Sub-section 74(2) confers on a relevant Court a power to order a change of a credit contract. No doubt the power is exercised having regard to the circumstances of hardship that have been identified by the debtor, and the response of the credit provider. Section 76 confers a separate power on a Court to "re-open" the transaction that gave rise to a contract, mortgage, guarantee or change if "[i]n the circumstances relating to the relevant credit contract, mortgage or guarantee at the time it was entered into or changed, the contract, mortgage or guarantee or change was unjust." Thus, as with the Contracts Review Act, the relevant focus of the Court in exercising that power is upon the circumstances prevailing at the time of entry into, or change of, the relevant agreement. However, with s 74 the relevant focus is upon the hardship that has been experienced by the customer subsequent to the entry into of the relevant agreement, and the credit provider's response to the hardship claim.
19. The difficulty with proposed paragraph 13 of the defence is that it makes a series of assertions about NAB's conduct without identifying when the conduct was engaged in and which do not enable any distinction to be drawn between the matters said to constitute hardship and those which are said to demonstrate the unjustness of the credit contract at the time it was made.
20. Further, there is no pleading of the various steps that were taken to engage the hardship provisions in ss 72 to 74 of the National Credit Code. As I understand, that did not occur until late 2016.
21. Paragraph 14 of the proposed defence pleads that, contrary to s 12DA of the Australian Securities and Investments Commission Act, NAB engaged in conduct in trade or commerce in respect of an account number, which appeared to relate to the first loan agreement, which was misleading or deceptive. It also pleads that, as a result, the defendants suffered loss and damage in the terms identified in the cross-claim for which a set-off is sought.
22. The particulars to the paragraph are three-fold.
23. Particular (a) refers to the discussions Mr Skoczek had with a succession of bank managers of NAB from 2007 onwards in which they allegedly represent that a particular NAB home loan product was suitable. The particulars plead that at least from November 2009 that advice was erroneous because of events surrounding the cancellation of trailing commission in 2009.
24. Particular (b) refers to an alleged discussion that occurred in February 2010 between Mr Skoczek and a NAB manager in Canberra. Nowhere is it pleaded why anything stated in that discussion was misleading.
25. Particular (c) simply repeats the particulars to paragraph 12 of the defence. This is erroneous. Apparently it should be a reference to paragraph 11. However, the particulars to paragraph 11 do not identify any misleading or deceptive conduct.
26. The paragraph also suffers from the vice that the relevant loss or damage has not been identified.
27. NAB contended that the paragraph was also misconceived in that loss and damage suffered by reason of misleading and deceptive conduct could not be set-off against the amounts owing to NAB under its loan agreements.
28. It is not necessary to resolve that contention. Suffice to state that, given that leave will be granted for the preparation of a further cross-claim, Mr and Mrs Skoczek would be best advised to include any misleading and deceptive conduct claims in the proposed cross-claim rather than the defence.
29. Paragraph 15 pleads that NAB engaged in conduct which was unconscionable and contrary to ss 12CB and 12CC of the Australian Securities and Investments Commission Act. It seeks orders declaring the whole of the credit contract and the linked security void ab initio. It also includes a claim for damages "[i]n respect of the losses suffered caused by such conduct so as to restore the parties to the position they were in, so far as money can do, before the conduct of NAB complained of." The particulars to this paragraph repeat the particulars to paragraphs 12 and 13 which I have already addressed.
30. Further, subparagraph 15(d) refers to a representation made by a NAB manager to Mr and Mrs Skoczek in February/March 2010. Subparagraph 15(e) alleges that if that representation had not been made, then neither Mr Skoczek nor Mrs Skoczek "would have entered into the credit contracts". This brings into focus the point I raised earlier. There is no allegation in the proposed defence that at any time after February or March 2010 Mrs Skoczek entered into any credit contract. The only allegation that anyone entered into a credit contract after that time is the allegation by Mr Skoczek in the defence in which he says that a variation agreement was entered into in November 2010.
31. Particular (f) to paragraph 15 recites that the defendants "are unaware whether the conduct of NAB complained of is consistent with its conduct in similar cases". That form of particular is objectionable, especially as it might be used as a basis to obtain discovery about other cases.
32. Particular (i) makes references to conduct of NAB in allegedly changing the repayment regimes in 2013, specifically "at the time of the two Darwin loans in 2013". The "two Darwin loans in 2013" are not identified in the pleading. It otherwise is difficult to determine whether what is being attacked is the first loan agreement pleaded by NAB or the first loan agreement as varied, as is asserted in the proposed defence.
33. Paragraph 16 of the proposed defence purports to plead a claim under the Contracts Review Act for the setting aside of "each of the first, second and third credit contract[s]" and the "linked security" being, as I understand it, the three agreements sued on by NAB and the mortgage. Particular (a) to paragraph 16 refers to the circumstances alleged in paragraphs 7 to 15 of the defence. Again, the difficulty with that is that the Contracts Review Act refers to a contract being unjust at the time it was made, whereas those paragraphs earlier identify circumstances that arose well after those contracts were made.
34. Particulars (d), (e), (f) and (i) to paragraph 16 are identical to the equivalent particulars of paragraph 15 and suffer the same vice.
35. Paragraph 17 raises a Contracts Review Act claim concerning the guarantee entered into by Mrs Skoczek which is pleaded to have happened in February 2008. However, the particulars to that paragraph cross-refer to paragraphs 7 to 15. They refer to events well after the time the guarantee was supposedly entered into.
36. Paragraphs 19 to 26 contain a specific response to so much of the statement of claim that sues upon the second of the loan agreements. Paragraph 20 pleads that variation of that agreement was entered into on 2 November 2010, being the variation noted above.
37. Paragraph 26 then seeks to repeat the allegations made in paragraphs 7 to 14 in respect of that loan agreement. This repeats the vices that I have identified with those paragraphs, particularly in respect of paragraphs 11, 13 and 14.
38. Paragraphs 27 to 32 of the proposed defence specifically respond to so much of the statement of claim that sues upon the third agreement.
39. Paragraph 32 seeks to repeat the allegations made in paragraphs 7 to 14 in respect of that agreement. This suffers from the additional problem that it is not pleaded that that agreement was varied after July 2010 so as to become subject to the National Credit Code, yet paragraphs 7 to 14 seek to invoke parts of that Code.
40. Paragraphs 33 to 36 deal with the guarantee said to have been executed by Mrs Skoczek. Paragraph 34(d) refers to the "alleged circumstances set forth herein" as grounding a claim for relief. This incorporates provisions that have the difficulties identified earlier in this judgment.
41. Nothing in these observations is meant to deny the possibility that Mr and Mrs Skoczek may have a viable claim. Instead, the combined effect of the problems with their proposed defence means that, given the history of the matter, they cannot be granted leave to bring forward the proposed defence. Instead, a viable tightly drafted and precise set of pleadings is required.
42. Consistent with the approach taken in respect of the cross-claim, the only order that I will make in respect of the defence is to refuse leave to the defendants to file the defence set out at paragraphs 58 to 70 of the affidavit of Tadeusz Skoczek sworn 24 February 2017. [Further argument]

Orders (1) Refuse leave to the defendants to file an Amended Cross-Claim in the form of pages 48 to 57 of the affidavit of Tadeusz Skoczek sworn 24 February 2017. (2) Refuse leave to the defendants to file a defence in the form of pages 58 to 70 of the affidavit of Tadeusz Skoczek sworn 24 February 2017. (3) Direct that on or before 4:00pm on 26 April 2017, the defendants are to serve a draft proposed defence and cross-claim on the plaintiffs, and provide a PDF copy of the document as served to my chambers. (4) Stand the matter over for directions before me at 9:30am on Friday 5 May 2017. (5) Order that the defendants pay the costs of the plaintiff, and of Advantedge Financial Services Pty Ltd, of the Notice of Motion filed 13 January 2017. (6) Order that the Notice of Motion be otherwise dismissed.

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: 07 April 2017