Ninan v National Australia Bank

Federal Court of Australia|2014-04-03|Before: Buchanan J, McKerracher J

INTRODUCTION 1 The applicants require and seek the Court's leave to file an application against the respondent (NAB). Such leave is necessary due to orders made by Buchanan J on 9 August 2013 in proceedings commenced by the same applicants against (amongst others) the same respondents in the New South Wales Registry of this Court (Ninan v Valuer-General of Western Australia [2013] FCA 789 (Ninan No 2)). Orders made by his Honour in those proceedings were that the applicants provide security for costs by a certain date, failing which those proceedings would stand dismissed. Further, if the proceedings were dismissed for failure to provide security for costs, no further originating application which named any of the respondents to that proceeding as a party was to be filed by the applicants or accepted by any Registry of the Court without leave of the Court. No security for costs was provided and the proceeding was dismissed. Thus the applicants need leave to commence this proposed proceeding. 2 These reasons should be read in conjunction with the reasons given in Ninan v St George Bank Ltd [2014] FCA 334 (Westpac application). Many of the principles, background and assertions are common. 3 At the return date of the applicants' application for leave on 18 February 2014 I made provision for materials to be filed in response by NAB and in reply by Mr Ninan. That material has been filed. 4 The applicants unsuccessfully sought to file submissions and an affidavit prior to the first return date. I will nevertheless rely upon those documents in addition to the submissions and a second affidavit of Mr Ninan (which essentially constitutes submissions). I will treat the two affidavits of Mr Ninan as being filed pursuant to orders made at the first return date. 5 There is reference in Mr Ninan's second affidavit to Mr Ninan's understanding that I informed him at the initial hearing of the application for leave to file the proceedings that there was sufficient evidence to support such applications being granted. What I made clear at the hearing was that there was sufficient material on which to form a view as to whether the application should be granted. That was made clear not only by the initial remarks, but also by following remarks in which I indicated that I would consider the applications and rule on them. 6 The opposition to the application for leave was supported by an extensive affidavit of Mr Kevin Pringle, solicitor for NAB, outlining the relevant history and referring, amongst other things, to the cases in which NAB had previously been involved in as a respondent including Ninan v St George Bank Ltd (2012) 294 ALR 190 (Ninan No 1), Ninan v St George Bank Ltd (No 2) [2013] FCA 273, Ninan No 2, Ninan v St George Bank Ltd [2013] FCA 818 and Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180.

THE APPLICANTS' PROPOSED CLAIM 7 The facts relied upon in support of the proposed claim against NAB are outlined, in part, as follows in the draft statement of claim: 5. Facts and contentions to support our application/relief- General a) My claims in Federal Courts so far filed or to be filed against NAB exceed what I may owe NAB. These claims are under litigation in Federal courts or being appealed against. b) My claim against NAB includes "serious fraud" as defined in NCCP Act, 2009 c) The delay of the determination of those claims is caused due to discriminatory orders, requiring us to provide security for costs of colossal amount of money only because I am not an Australian resident. d) In addition, we are disabled by NSW Registry be fraud, the evidence against which is unassailable in any court of law. e) Such deceptive & discriminatory orders are made by the judges for the specific reason to deny me justice as they have interest in protecting the Respondent/NAB. f) In June, 2013, NAB was not entitled to issue me any default notice as I was NOT in default as my claim against NAB exceeded NAB's claim against me. Yet they issued several in June, 2013. (s88-1 carry 50 criminal penalty points). g) Even the notice illegally issued did not comply to s88 (3) (f) provisions of NCC h) I have replied to NAB several times to postpone the enforcement activities until the disputes are resolved as per the codes. i) Their response was negative but did not conform to s94 (2) (b) in addition to the fact that NAB was not entitled to issue the default notice to me in the first place. j) Even further, NAB has not taken a court order to start enforcement proceedings (s90-1 of NCC), a violation carrying 50 criminal penalty points. k) NAB has not taken a court order to take possession (s91 of NCC) a violation carrying another 100 criminal penalty points. 6. Facts and contentions to support our application/relief- 26 Surf View a) The house at 26 Surf View is under long term tenancy agreement. Recently I had refused to allow NAB any contact with my tenants due to these violations. b) Yet I was advised on 16 December, 2013 that NAB had illegally and without complying with s80 of Residential Tenancy Act 1987 issued a Form 14 to my tenants to vacate the house within 30 days. c) That violation carried a penalty of $20,000. d) Even further , NAB asked the tenants not to pay any rental to me. This was unheard of in my life as NAB had no such right under any written law or common law. e) Even further, when they asked my tenants illegally not to pay me rental, they knew that I was impecunious and I was barely surviving with my income from that rental. NAB knew that I am an ordinary impecunious natural person, aged 67 with not enough money for my old age medicines. f) Knowing all these facts, NAB, the largest Australian Bank, was trying to choke me financially. g) This is due to the fact that evidence filed in Federal Courts so far and not yet defended by the Respondents would expose their serious deceptions and fraud involved in their regular business. h) It will further expose the wrong doing of the bank manager at Perth. i) So NAB wants disable us to get true justice . That would explain why NAB the largest Australian bank, would want to financially choke us. 7. Facts and contentions to support our application/relief- 78 Channel View a) Our land at Channel view is still under our possession. Though we have not given any instruction to sell it, Mandurah First National was advertising to sell it for a while now. b) Recently I noted on "realestate.com.au" that this land was sold. c) We have informed all parties, Landgate, Mandurah First National & Respondents that the land should not be transferred without complying with law. 8. Facts about fraudulent payments of rates to City of Mandurah a) On16 May, 2013, NAB paid $14,844.12 to City of Mandurah as payments of rates on our two properties. b) We had claimed on oath that those rate bills were fraudulent. c) NAB had no standing to pay the rates on these two land lots under our possession. d) Those bills were illegally paid by Respondent to absolve City of Mandurah in Magistrate court at Mandurah. e) These facts are detailed in my affidavit filed on 20 July, 2013. f) Those illegal payments were made on the false pretext that NAB was foreclosing them. g) The current illegal foreclosing actions are an attempt to legalize the illegal payments in May, 2013. h) The respondents are now trying to project the earlier false pretext as true pretext; another reason for this illegal foreclosing actions irrationally.

earlier proceedings 8 The application for leave to issue this proceeding is supported by the first affidavit of Mr Ninan dated 11 February 2014 which deposes to the following matters: 3. Banks' current conduct a) It is important to understand the anarchical behaviour or conduct of all the banks involved here currently. b) Before our mortgages may be enforced by the bank, a court order to possess our property is the first step. c) Instead of doing it, the banks are arbitrarily starting to enforce these mortgages by assertions. d) National Australian Bank went much further. They issued illegal notice (Form 14) to our tenants at 26 Surf View & ensured that we were denied to earn our rental, our only survival income. e) By colluding with our property managers & with our tenants, they allow the tenants to stay at our property even today, but by not paying rentals to us. f) On or around, 10 January, 2014, Mr. Jason Kyle, our tenant at 26 Surf View called me on the telephone and assured me that though he had not paid the rentals for three weeks at that time, he would pay them immediately. g) He assured me this after checking the legal positions at Reiwa & at Supreme Court at WA as per his conversation with me. h) But the rentals did not come. His wife, Tammy Kyle emailed me on 3 February, 2014 that bank instructed them not to pay us rental. i) It was in response to my email attaching the certificate of title of lot 26 Surf View as of date 31 January, 2014. I had emailed them that they should pay rental to us as we were still the owners & our lease agreement was still valid. j) I have attached that certificate of title marked GN-1001 with this affidavit. k) I do not believe that this would happen in a third world country where a bank orders a party to act illegally & where a bank has no legal standing. I) I have a letter to day confirming that Westpac Bank is enforcing our mortgages though they have no possession of our properties yet. m) The reason for their anarchical behaviour is to escape from their legal obligations to us by a "jail break" or by simply ignoring the norms. 4. Banks' earlier conduct a) We bought all our properties in dispute here "off plan" before Interim Valuation or the first valuation of newly sub-divided land is ascertained. b) The value or the price of such a land can only be determined by the Interim Valuation. c) That determination is to be done as per s24 of VLA 1978 & the limitation therein. The limitation spells out that land value cannot be inflated by the mere fact of a sub-division. d) Banks are responsible for the conduct of the developers as per the provisions (S127 -3 of NCC) of NCCP Act, 2009 when they finance the purchases of land from a developer. e) The banks and the developers had not complied with the limitation of the s24 provision of VLA 1978. f) In the case of lot 124 Lawrencia Loop which was illegally sold by St George Bank in 2012, this issue was proven beyond a doubt. g) Though St. George Bank and the developer claimed the value to be $567,500 in 2006 for this land, Valuer General certified on 4 March, 2011 that its value was only $270,000. I have now attached that letter marked GN-1002 h) I have calculated and determined that its true value was only $7,378 in 2006 as the mother lot with 12 million sq. m area was only worth about $1.1 million in 2006. The area of our lot #124 is only 908 sq.m. i) Therefore, banks had encouraged the developers to sell land at unreasonable prices in large land developments. This is something that cannot be easily determined by the land buyers & the public unless one does a lot of research as the subdivision details are known concurrently to the developers and the financing banks only. 5. Federal Judges ' conduct a) The conduct of the judges is well explained in our claims under WAD 6 of 2014 & WAD 479 of 2013. b) The judges had deliberately allowed sustaining the banks' earlier conduct as explained above & had deliberately encouraged the current anarchical conduct. c) The judges knew that we lost all our money in our land purchases & the loans. Their orders for inordinate sums of money as security for costs to determine the above conduct of the banks was to sustain the banks' earlier conduct. d) They used false excuses that we were non Australians & that we have not written our complaints the way they preferred to hear them. e) The judges orders disallowing our ability to file cases against the banks was to encourage the anarchical conduct of the banks as explained above. 6. The standing of St. George Bank a) St. Goerge bank had allowed the developers to deceive us by selling lot #124 for $567,500 when that land was way below that sum of money. They knew it well. b) So they have a duty to defend themselves and in their own name. c) It was St. George Bank (and not Westpac Banking) that sold our land lot #124 illegally on 27 July , 2012 & derived the benefit of that illegal sale. d) So it is a false claim that St George Bank has no need to defend their actions after March, 2012. 9 The arguments advanced in support of the application are similar to those raised in the Westpac application.

CONSIDERATION 10 As NAB's solicitors point out, the applicants have previously filed several originating applications with the New South Wales Registry of this Court naming NAB as a respondent (amongst others) including proceedings NSD 700 of 2012, NSD 617 of 2013, NSD 847 of 2013 and NSD 1810 of 2013. Judgment has been delivered in each of these proceedings. The applicants have also unsuccessfully attempted to file originating applications in the New South Wales Registry since 9 August 2013 naming NAB as a respondent. The Registry has rejected those applications by reason of the orders made by Buchanan J in Ninan No 2. This fresh application repeats the same claims. 11 I accept NAB's submissions that there is ample material to warrant a critical assessment of the application for leave and that the applicants have adduced no evidence identifying a proper basis warranting a grant of leave and failed to identify a proper basis for the claim. 12 This Court has ordered on two occasions (in Ninan No 1 and Ninan No 2) that the applicants provide security for costs. Those orders remain undisturbed and unsatisfied. The current application is an attempt or would at least have the effect that if granted, it would circumvent the two sets of security orders. For that reason alone leave should not be granted. 13 The applicants have pointed to no substantive material putting these proceedings in a different category to those in the earlier proceedings in Ninan No 1 and Ninan No 2, nor is there any evidence as to any material change in circumstances arising which might warrant leave being granted on the basis that the security for costs twice ordered but not satisfied should no longer be required.

DISPOSITION 14 There is nothing set out in the draft statement of claim which even on a generous reading can be said to constitute an arguable cause of action. Further, it is clear that the applicants are seeking to run substantially the same case as that which they have attempted unsuccessfully to run on two previous occasions. To do so is manifestly an abuse of process. For these reasons and the statements of principle more fully explained in the Westpac application, the application for leave to file a proceeding will be refused. The orders will be: 1. Leave to file the proposed proceeding is refused. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

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