[2000] HCA 41
Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199
Bass v Permanent Trustee Co Limited (1999) 198 CLR 334[1999] HCA 9
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256[2006] HCA 27
Collen v Wright (1857) 120 ER 241
Commonwealth v Cornwell (2007) 229 CLR 519[2007] HCA 16
Dey v Victorian Railways Commissioners (1949) 78 CLR 61[1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[1964] HCA 69
Hawkins v Clayton (1988) 164 CLR 539
[1998] HCA 15
HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271
Hunt & Hunt v Mitchell Morgan Nominees Pty Limited (2012) 247 CLR 613
[2013] HCA 10
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
[2022] NSWCA 194
Small v Tomassetti [2001] NSWSC 112
(2001)12 BPR 22,253
Spencer v Commonwealth of Australia (2010) 241 CLR 118
[2010] HCA 28
State of New South Wales v Williams [2014] NSWCA 177
(2014) 242 A Crim R 22
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Judgment (25 paragraphs)
[1]
Background
By statement of claim filed on 5 July 2019, the plaintiff, Perpetual (as lender and mortgagee) sues Ms Tsiamoulis (as the apparent borrower and mortgagor) (the defendant) seeking orders for possession of a property situated at Chester Hill NSW 2162 ("the Property"), judgment in the sum of $815,099.03 being the amount outstanding under the Facility as at 31 May 2019, and interest on that sum.
It is claimed that on or about 27 November 2014, La Trobe Financial Services Pty Ltd ("La Trobe") agreed on behalf of Perpetual to provide credit in the sum of $776,000 to Ms Tsiamoulis, by way of a Letter of Offer purportedly signed by Ms Tsiamoulis on 9 December 2014. This was secured by a first registered mortgage also purportedly executed by Ms Tsiamoulis on 9 December 2014.
Ms Tsiamoulis asserts by way of defence and cross-claim that:
1. she did not sign the Letter of Offer and the mortgage;
2. her purported signature on them is a forgery; and
3. the personal covenants contained in the mortgage, to pay the amounts the subject of the mortgage, are not protected by indefeasibility.
In answer to Ms Tsiamoulis' "forgery defence", Perpetual amended its claims against Ms Tsiamoulis as set out in the Further Amended Statement of Claim ("FASOC"), filed on 14 March 2024, to include alternative claims for:
1. subrogation with respect to the amount advanced by Perpetual which was applied to discharge an existing mortgagee; and
2. monies had and received.
Ms Tsiamoulis defends Perpetual's alternative claims on the following bases as set out in her defence to the FASOC ("Ms Tsiamoulis' Defence"), filed 2 April 2024:
1. Ms Tsiamoulis changed her position, in good faith, such that relief for subrogation and/or monies had and received should not be granted; and
2. Perpetual's delay in bringing claims against Ms Tsiamoulis "constitutes laches by reason of which [Perpetual] is not entitled to the equitable relief sought".
By SCC filed on 19 January 2024, the second cross-claimant, Perpetual, has sued Ms Louey in respect of the loan purportedly made by Perpetual to Ms Tsiamoulis. As noted above, the SCC pleads actions in negligence and breach of warranty of authority.
Ms Louey relies in support of the Motion on three affidavits of Mr James Berg sworn, respectively, on 3 April 2024, 15 April 2024 and 24 May 2024 and tenders the exhibits to those affidavits.
Perpetual relies on two affidavits of Mr Justin Bates sworn 30 April 2024 and 28 May 2024, together with an affidavit of Ms Tsiamoulis dated 13 November 2023.
On 12 April 2024, Ms Louey filed a defence to the SCC which, among other defences, raised the Limitation Act 1969 (NSW) as a defence to Perpetual's cross-claim.
On 29 April 2024, Perpetual served the PASCC, which incorporates an additional cross-claim against Ms Louey for misleading and deceptive conduct, and a reply to Ms Louey's defence ("Perpetual's Reply") which raised s 55 of the Limitation Act.
On 1 May 2024, Ms Louey served a proposed amended notice of motion seeking additional orders striking out Ms Tsiamoulis' Defence, striking out Perpetual's Reply, and seeking the determination of 3 separate questions with respect to the proper construction of Perpetual's mortgage.
The Motion was listed for directions before Davies J on 3 May 2024, at which time Ms Louey sought leave to amend the Motion to seek the relief set out in the proposed amended notice of motion. His Honour Justice Davies:
1. rejected Ms Louey's application to amend the Motion;
2. ordered that the Motion be taken to include consideration of the causes of action pleaded in the PASCC; and
3. indicated that the issue of a grant of leave to the plaintiff to file a notice of motion in relation to its PASCC would be better dealt with after this motion is determined.
[2]
Uncontested Facts
Certain facts are uncontroversial, and Ms Tsiamoulis admits:
1. the mortgage was registered;
2. Perpetual paid:
1. to ANZ Banking Group Limited, the amount of $635,323.68; and
2. $127,093.24 into Ms Tsiamoulis' St George Bank account.
Annexure "A" to registered mortgage AJ142655B ("the Mortgage") states:
"We have agreed to lend money to you and you have agreed to borrow money from us.
You acknowledge giving this mortgage and incurring obligations and giving rights under it for valuable consideration of $776000 received from us which you agree to repay together with the balance of the Secured Money in accordance with the Mortgage Memorandum of Provisions AF726834. You agree that this obligation is secured against the Land by this mortgage."
From 18 December 2014 to November 2018, loan repayments were made to Perpetual from Ms Tsiamoulis' La Trobe Financial Loan account.
In December 2018, loan repayments ceased.
[3]
Ms Louey's submissions
In short, Ms Louey applies for summary dismissal of the SCC under UPCR r 13.4, or alternatively the striking out under UCPR r 14.28 of most of the SCC. It is contended that the SCC is premised on two fatal defects, and that taken at its highest, it is "manifestly groundless" and "so obviously untenable that it cannot succeed".
First, it is submitted, properly construed, the Mortgage secured the monies of $776,000 advanced to Ms Tsiamoulis. Second, it is submitted, the SCC is statute barred.
[4]
Ms Louey's first argument: the Mortgage
Ms Louey contends the following:
1. It is well-established that under the Torrens System, registration of a forged mortgage "confers an indefeasible title on the mortgagee, provided that the mortgagee has not been party or privy to the fraud and no other exception to indefeasibility applies". The interest of a registered mortgagee is an interest in the land, albeit there remains the question, "what is the quantum of the indefeasible interest?" - or, as it was put by Campbell J in Small v Tomassetti [2001] NSWSC 1112; (2001) 12 BPR 22,253 ("Tomassetti") at [9], "indefeasibility for what?".
2. Registration of a forged Torrens title mortgage validates not only the mortgagee's charge over the land but also the mortgagor's personal promise ("covenant") to pay embodied in the forged mortgage. Ordinarily, a personal covenant to repay is protected by indefeasibility upon registration.
3. The construction of the Mortgage (including Annexure "A") is a question of law that admits of only one answer; there is only one true construction. The Mortgage (including Annexure "A") is akin to an "old style" mortgage which contains an express obligation to repay the stated sum and the terms of repayment.
4. The principles of construction to be applied are those applicable to a registered instrument.
5. The relevant meaning is that which the language of the document, read in light of its context (the entire text of the document as well as any other document referred to in the text of the document), and the purpose of the document, would convey to a reasonable person in the position of the makers of the document.
6. The Mortgage (including Annexure "A") is a traditional form of mortgage in that it refers to the principal sum advanced, of $776,000, and contains an acknowledgement that it has been received. Irrespective of forgery of Ms Tsiamoulis' signature on the Letter of Offer and Memorandum of Provisions AF726834, and on its proper construction, the Mortgage charges the repayment obligation of Ms Tsiamoulis to Perpetual, of $776,000, against the Property.
7. Ms Tsiamoulis' defence, that by reason of forgery of her signature the Mortgage is a nullity or secures $nil, is manifestly hopeless.
8. Ms Tsiamoulis' defence to the amended statement of claim and Perpetual's SCC, which is premised on the success of Ms Tsiamoulis' forgery defence, are both bound to fail.
[5]
Ms Louey's second argument: the SCC is statute barred
[6]
Breach of Warranty of Authority
Ms Louey contends that a cause of action "founded on contract (including quasi contract)" is not maintainable if brought after the expiration of six years running from the date on which the cause of action first accrues to the plaintiff.
It is contended that since Collen v Wright (1857) 120 ER 241 at p 245, breach of an agent's warranty of authority has been viewed as an action in contract. That an action for breach of warranty of authority is founded on contract (including quasi-contract) is supported by the textbooks, and the highest authority including in the High Court of Australia.
The three elements of the cause of action are:
1. assertion of authority;
2. inducement by asserting; and
3. a transaction which but for that assertion the other party would not have entered into.
Ms Louey further contends that the result of the cause of action being classified as contractual is the strict liability customarily placed on parties who make contractual promises, with the consequence that the damages for which a defendant is liable are those required to put the plaintiff in the position in which he would have been had the warranty been made good, that is, had the representation of authority been true.
It is contended that taking Perpetual's case at its highest, the breach of warranty of authority of Ms Louey occurred not later than 18 December 2014. The cause of action for breach of warranty of authority is, therefore, statute barred.
[7]
Negligence / misleading or deceptive conduct
Ms Louey points to the six year limitation period under s 14(1)(b) of the Limitation Act 1969 (NSW) for "a cause of action founded on tort", and under s 12GF of the ASIC Act, for a claim founded on misleading or deceptive conduct. Ms Louey contends that for economic loss there has to be some actual measurable damage, beyond that which is regarded as negligible, and even though further damage continues to accrue. Time begins to run when the loss or damage is suffered, and it makes no difference that the plaintiff is unaware of the true position.
Ms Louey also submits that there is no general rule that time does not begin to run until a claimant discovers, or could have discovered upon making a reasonable enquiry, that they have suffered loss.
Ms Louey argues:
1. A mortgage granted to secure the repayment of a loan may be conceptualised as giving to the lender a chance of being able to recoup the loan from the sale of the mortgaged property, in the event of a borrower defaulting on the repayment of the loan. A commercial opportunity which has some value, which is lost, is compensable in tort and under statute for misleading and deceptive conduct. A commercial opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided.
2. Taking Perpetual's case at its highest, Perpetual's claim is for a loss of commercial opportunity to sue on a chose in action, i.e., a registered mortgage, in the form of Annexure "A", which incorporated the terms of the Letter of Offer, and Memorandum of Provisions AF726834, as signed by Ms Tsiamoulis.
3. If there were a forgery of Ms Tsiamoulis' signature on the Letter of Offer, and Memorandum of Provisions AF726834, then Perpetual "lost some right of value, some chose in action of reality and substance" which had "some value (not being a negligible value)", in that the Mortgage did not, due to the forgery of Ms Tsiamoulis' signature, incorporate the Letter of Offer and Memorandum of Provisions AF726834 (but only to the extent that efficacy of the Memorandum of Provisions AF726834 is dependent on signing by Ms Tsiamoulis).
4. Where a claimant would have entered into some other agreement on more beneficial terms but for the impugned conduct, so that it can be said that entry into that agreement has caused the claimant to lose the opportunity to make that more beneficial bargain, the claimant suffers loss and damage upon entry into the agreement. Taking Perpetual's case at its highest, Perpetual suffered loss of a commercial opportunity, which had some value, not later than 18 December 2014.
[8]
Perpetual's Reply
Ms Louey further contends that Perpetual's Reply is deficient, does not comply with the rules of pleading, and ought to be struck out, albeit this was part of the proposed amended notice of motion which was disallowed by Davies J. She makes five points:
1. Perpetual's Reply does not comply with the principles for pleading, and providing particulars, of fraud. Section 55 of the Limitation Act has two limbs. The word "fraud" in s 55(1)(a) and "fraudulently" in s 55(1)(b), refers to "conduct involving some form of dishonesty or moral turpitude", where "what is involved [is] a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing". Fraud must be pleaded distinctly and with particularity. Where fraud is alleged, the need for sufficiently clear and precise pleadings and particulars is especially acute. Particulars of fraud must be exactly given. A pleading of fraud must allege not only the acts involved, but that they were done in a manner that involves fraud. The Court is careful not to find fraud unless it is distinctly pleaded and proved. Perpetual's Reply pleads only a conclusion of "fraudulent concealment" and does not identify the material facts to support the fraud, or fraudulent concealment, nor that the acts were done in a manner that involves fraud.
2. Perpetual's Reply pleads a cause of action in misleading and deceptive conduct which is required to be pleaded in the SCC:
1. the purpose of a reply is to raise new facts which were not necessary ingredients of any cause of action pleaded in the statement of claim, but which are necessary to meet some issue raised by the defence, and
2. a reply must not raise any new cause of action.
1. Perpetual's Reply is silent as to Ms Louey's state of mind and does not plead that, as a material fact, Ms Louey had any state of mind with respect to the representations alleged to have been made, let alone dishonesty, or moral turpitude, in the sense of consciousness of wrongdoing.
2. The High Court of Australia, contends Ms Louey, has mandated that a case of fraud cannot properly be seen as a "fallback claim" to misleading and deceptive conduct; where a claim in fraud will necessarily focus attention upon what was intended to be conveyed by the maker of the statement; and must make plain that it is alleged that the person who made the statement knew it to be false or was careless as to its truth or falsity.
3. Finally, having regard to the contents of the affidavit Perpetual obtained from Ms Louey, which was served on Ms Tsiamoulis by Perpetual before the filing of the SCC, it is difficult to discern how it is that Perpetual could possibly assert that there are reasonable grounds for a belief that there is available material, by which fraud, or fraudulent concealment, could be proved against Ms Louey.
[9]
Perpetual's submissions
Perpetual submits that the Motion is essentially put on two bases:
1. that Ms Tsiamoulis' defence to Perpetual's claims is so manifestly hopeless that it cannot possibly succeed, and as a consequence, the second cross-claim brought by Perpetual is so manifestly hopeless that it cannot possibly succeed; and
2. that the claims against Ms Louey are so clearly statute barred by operation of the Limitation Act that they ought to be summarily dismissed.
Perpetual submits that the Motion should be dismissed for the following reasons:
1. Ms Tsiamoulis' defence is not so manifestly hopeless so as to warrant the summary dismissal of the second cross-claim, and in any event ought not to be indirectly determined by the summary dismissal of the second cross-claim; and
2. with respect to the Limitation Act:
1. it is not appropriate to determine the limitation issue on a summary basis in the circumstances of this case;
2. it is strongly arguable that the claim in negligence brought by Perpetual against Ms Louey is not statute barred;
3. the claim for breach of warranty of authority is not so obviously statute barred so as to warrant summary dismissal; and
4. it is arguable, as Perpetual has pleaded in Perpetual's Reply to Ms Louey's defence to the SCC, that any limitation period is extended by operation of s 55 of the Limitation Act.
[10]
Ms Tsiamoulis' defence and Perpetual's 'old fashioned form' of mortgage
Perpetual submits that the success or failure of Ms Tsiamoulis' defence will turn upon the Court's construction of Perpetual's mortgage. It is contended that the position is not as clear and unarguable as submitted on behalf of Ms Louey.
Whether the Perpetual mortgage secures anything will turn upon the construction of the Perpetual mortgage as a whole, including Annexure A to the Perpetual mortgage and the terms of the Mortgage Memorandum AF726834 as incorporated. Rather than being an "old form" or "old fashioned form" of mortgage, it is a "hybrid" form mortgage. The argument was put as follows at the hearing:
"That is, it attempts to include the principal with no provisions about repayment, or at least not enforceable provisions absent a separate agreement about repayment or interest in this annexure, but, otherwise nevertheless seeks to incorporate a mortgage memorandum which has what are more ordinary provisions. So, it is not an old form mortgage in that all the obligations are in the registered instrument, it still tries to incorporate separate loan documents."
Perpetual points to Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 ("Cox") as a case involving a similar point for determination. In that case, there was a forged signature on a payment direction (rather than, as here, an allegation of a forged signature on the underlying loan agreement), and which involved an "old fashioned form" of mortgage in almost precisely the same terms as Annexure A to the mortgage in this case. Justice Leeming extracted the relevant part of the mortgage at [36] as follows:
"You acknowledge giving this mortgage and incurring obligations and giving rights under it for valuable consideration of $598,500 received from Us which You agree to repay together with interest and Expenses in accordance with the Memorandum of Common Provisions."
In Cox, the Court rejected Perpetual's construction of the mortgage and found that the monies advanced were not secured by Perpetual's mortgage (in a case where there was a signed loan agreement). Leeming JA (with Macfarlan and Emmett JJA agreeing) stated at [72] and [74]-[75]:
"[…] The question whether, upon the assumption that Ms Maloney forged the signatures of Mr and Mrs Cox on the Direction, the covenant in the registered mortgage applied to the $253,500, disbursed fraudulently and without the Borrowers' authority, turns on construction of the Mortgage as a whole. […]
Perpetual's strongest argument was that its decision to include the amount of $598,500 in the mortgage itself, with an acknowledgement of receipt by the Borrowers, pointed to the mortgage standing as security for the whole amount, even if it were never paid to the Borrowers, and was advanced without complying with the agreement between the parties.
I would reject Perpetual's primary submission on construction, for four reasons. First, it seems plain by reason of the defined term "this mortgage" and the repeated references to incorporation that this particular covenant is directed to monies advanced and to be repaid in accordance with some existing or future agreement between borrower and lender."
[11]
SCC and the Limitation Act
Perpetual contends that the Limitation Act argument should be rejected for three reasons, as follows:
[12]
First: it is not appropriate to determine this issue summarily
Perpetual argues that the Limitation Act does not create a statutory bar to claims in a way which affects the Court's jurisdiction. Rather, the Limitation Act provides statutory defences which may be relied upon by a defendant to resist certain relief being granted by the Court. It is contended that the High Court has expressed a general reluctance to determine issues relating to limitation of actions except in the clearest of cases, stating, by majority, in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 at p 533 :
"[…] We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."
Perpetual submits this is not the clearest of cases. Not enough is known about the damage sustained to Perpetual and the circumstances in which they were sustained to justify a confident answer to questions of limitation on a summary basis. It is put that some claims will only fall for determination if certain claims fail, and certain factual determinations are made. Further, if Perpetual has suffered damage as a consequence of the debt, a determination of what damage was suffered will depend upon the determination of both Perpetual's subrogation claim and Perpetual's claim for monies had and received, and a number of ancillary matters.
[13]
Second: it is arguable (and in the case of the negligence claim strongly arguable) that the claims brought by Perpetual in the SCC are not statute barred
Perpetual argues that not only is the claim brought by Perpetual against Ms Louey in negligence not a claim which is clearly statute barred, it is strongly arguable that the claim is not statute barred by reason of the following:
1. A tortious action does not accrue (and thus time does not commence to run under the Limitation Act) until damage is sustained.
2. For the purposes of determining the time at which a tortious cause of action accrues "prospective" or "contingent" damage is not sufficient, damage must be actual damage of a measurable kind.
3. In relation to causes of action for tortious conduct giving rise to a lender entering into a contract to loan money, there is High Court authority to the effect that such causes of action do not (or at least may not) accrue at the point in time that the contract is entered into or the point in time that the money is advanced under the loan contract, but rather the point in time at which recoupment becomes impossible. In oral submission, the point was amplified as follows:
"No doubt if my client fails on its claims under the mortgage and loan agreement but succeeds on the moneys having been received and the subrogation claims and recovers all of its money because there is a powerful argument, although it is resisted and defended there is a powerful argument that my client could adopt the interest provisions in the loan that are discharged. If that resulted in my client recovering all of the money that could have been owed under the contract there would be no loss and there will be nothing claimable under the second cross‑claim. It is only when my client's claim is determined, and, by extension, the defence is determined and my client exercises whatever rights it has in relation to recovery, that it will be known and it will be knowable whether my client has suffered any loss.
So, this is a case which is not limited to my client losing a chose [in] action under a loan agreement. It is a matter where the loss is not ascertainable until it is known whether my client is able to recover the money it advanced under what it thought was, and still contends in the proceedings, was a valid loan agreement and mortgage. Obviously all of that is in dispute."
As to the claim for breach of warranty of authority, Perpetual submits that it is not entirely clear whether an action for breach of warranty of authority is an action in contract, quasi-contract or tort, albeit the balance of authority appears to favour the conclusions that it is a contractual or quasi-contractual action.
[14]
Third: it is arguable that all the claims in the SCC are not statute barred by operation of s 55 of the Limitation Act.
In Perpetual's Reply, Perpetual pleaded that if Ms Tsiamoulis is successful in establishing that she did not know anything about the Perpetual Loan, that she did not authorise Ms Louey to apply for the Perpetual Loan and that she did not sign the Perpetual Loan or Perpetual Mortgage, then:
1. Ms Louey's representation to the effect that Ms Tsiamoulis was her client and that she was instructed to apply for the Perpetual loan were false ("warranty of authority representation");
2. Ms Louey's representation that she personally met with Ms Tsiamoulis ("identification representation") was false;
3. Ms Louey failed to correct the warranty of authority representation, and the failure to correct that representation and the identification representation:
1. was fraudulent; and
2. concealed the causes of action available to Perpetual against Ms Louey.
Perpetual states that in this case, Perpetual does not plead an action in fraud, but rather that its available cause of action was fraudulently concealed by Ms Louey, specifically that Ms Louey's false representations concealed the relevant facts that:
1. she did not have authority to act for Ms Tsiamoulis; and
2. she did not meet with Ms Tsiamoulis in person and verify her identity.
Perpetual claims that both the representations and the failure to correct those representations concealed material facts going to Perpetual's claims against Ms Louey. Perpetual argues that the earliest time it could have discovered its causes of action against Ms Louey was on or around 23 April 2019 when a letter was sent by Ms Tsiamoulis' then solicitor to solicitors for La Trobe (who managed the loan between Perpetual and Ms Tsiamoulis) indicating that the loan application and mortgage documentation was forged.
Perpetual notes that it does not advance these allegations independently of Ms Tsiamoulis' defence, but rather raises and relies upon them solely to the extent they are made out by Ms Tsiamoulis at final hearing (for example, as a critical part of Ms Tsiamoulis' defence to Perpetual's alternative claims).
Further, Perpetual responds to the criticisms made of Perpetual's Reply in the submissions made on behalf of Ms Louey that:
1. Perpetual's Reply does not plead the material facts underpinning the allegation that Ms Louey fraudulently concealed the causes of action. Perpetual contends that this submission should be rejected. The Reply clearly pleads the false representations which would be found against Ms Louey in the event that Ms Tsiamoulis succeeds in establishing that she knew nothing of the Perpetual loan or mortgage.
2. Perpetual's Reply does not plead an action in misleading and deceptive conduct, but rather pleads that the representations made by Ms Louey, if false, would amount to fraud (in the equitable sense of being dishonest conduct). Perpetual submits, to the extent it is submitted on behalf of Ms Louey that any claim for misleading and deceptive conduct would need to be pleaded in the SCC, such a claim is pleaded in the in the PASCC, which the Court has directed to be considered at the hearing of the Motion (and which the submissions made on behalf of Ms Louey do not address);
3. The contention made by Ms Louey that Perpetual's Reply does not plead Ms Louey's state of mind or any dishonest conduct should be rejected. Perpetual submits that such allegations are implicit in paragraph 4e of Perpetual's Reply , which pleads that the false representations and failure to correct those representations amount to fraudulent conduct. Perpetual argues that it is difficult to see how Ms Louey could have honestly but falsely represented, for example, that she had personally met with Ms Tsiamoulis. If, however, contrary to its submissions, Perpetual's Reply as currently pleaded is not sufficiently clear, leave to insert a further subparagraph to para 4 is sought in the following terms:
"d(a). says that the Warranty of Authority Representation and Identification Representation were false, and were known by Ms Louey to be false".
1. Perpetual contends that the argument made by Ms Louey that the Perpetual's Reply pleads fraud as a "fallback claim" to misleading and deceptive conduct should be rejected. The fraudulent conduct pleaded in Perpetual's Reply is in relation to the operation of the Limitation Act with respect to the claims pleaded against Ms Louey, and is not pleaded as a "fallback claim".
2. As to the argument put by Ms Louey that there is no available material by which fraud, or fraudulent concealment, could be proved against Ms Louey, Perpetual states that it does not contend it has any such material. Perpetual states that its allegations in Perpetual's Reply are strictly and expressly advanced solely on the basis that Ms Tsiamoulis succeeds in establishing that Ms Tsiamoulis did not apply for the Perpetual loan and did not engage Ms Louey to apply for a loan as her broker. As to Ms Louey's statement that she does not accept Ms Tsiamoulis' allegations, it is a matter for final hearing which of the accounts is to be accepted. If Ms Tsiamoulis establishes that Ms Louey did not have her authority (and in fact never met Ms Louey), Perpetual argues it ought be permitted to seek recourse by way of cross-claim against Ms Louey, and ought be permitted to argue that any limitation period only commenced when the causes of action against Ms Louey became discoverable by reason that they were fraudulently concealed by Ms Louey's false representations.
[15]
Perpetual's proposed additional claim for relief in the Proposed Amended Second Cross Claim (PASCC)
As noted above, I am also to determine if additional relief claimed in the PASCC is statute barred, paragraph 1(c) being expressed as follows:
"further or in the alternative, damages against the first cross-defendant pursuant to section 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act)" (Emphasis in original.)
The gravamen of the Particulars relied upon in relation to this claim are that on or about 17 November 2014, Ms Louey made certain representations to La Trobe as agent for Perpetual, and to Perpetual (referred to as the Warranty of Authority Representation; the Cash-out Purpose Representation and the Refinance Purpose Representation). Further, that in November 2014, Ms Louey represented to La Trobe that she had met Ms Tsiamoulis in person on or about 6 November 2014 in the context and for the purpose of verifying Ms Tsiamoulis' identity for the purpose of applying for a loan (the Identification Representation). In reliance on those representations, Perpetual entered into a loan contract and advanced money under the loan agreement. The first three representations were false; in that, Ms Tsiamoulis had not authorised Ms Louey to apply for a home loan with La Trobe, did not seek to borrow funds to refinance an existing mortgage and did not seek to draw additional funds for the purpose of paying for a wedding. The Identification Representation was false; in that, Ms Louey had not met in person with Ms Tsiamoulis for the purposes of verifying her identify.
[16]
Legal Principles
Ms Louey first relies upon r 13.4 of the UCPR, the summary dismissal provision, which provides:
13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)
(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 -
(a) the proceedings are frivolous or vexatious, or
[17]
(c) the proceedings are an abuse of the process of the court,
[18]
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Whilst a particular sub-paragraph has not been nominated, I assume Ms Louey relies upon r 13.4(b).
The principles applicable to a summary dismissal application pursuant to r 13.4 of the UCPR are well settled. They impose a high threshold for an applicant to meet. For a summary dismissal application to succeed, there must be a high degree of certainty about the ultimate outcome, if the matter proceeded in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [46].
That threshold will be met if the claims pleaded are so obviously untenable that they cannot possibly succeed or are manifestly groundless, so that going to trial would involve useless expense: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at pp 129-130. That does not mean, as Barwick CJ observed at p 130, that argument "perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed".
Once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then it is not competent for the court to summarily dismiss the action. Summary intervention is reserved for cases involving "groundless claims" and must be "very clear indeed": Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at p 91 (per Dixon J).
In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles gleaned from the decision of the High Court of Australia in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28:
1. on a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded;
2. the critical question can be expressed as whether there is more than a "fanciful" prospect of success or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward. Demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and
3. powers to summarily terminate proceedings must be exercised with exceptional caution.
[19]
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
In State of New South Wales v Williams [2014] NSWCA 177; (2014) 242 A Crim R 22 at [71], Emmett JA (Macfarlan and Simpson JJA agreeing) summarised the applicable principles for striking out a pleading (albeit in the context of an application to strike out a defence) as follows:
"The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140)."
[20]
First argument: The Mortgage
Ms Louey contends her argument as to indefeasibility will inevitably succeed and thus the SCC will inevitably fail (and thus should be summarily dismissed or struck out) whether or not Ms Tsiamoulis' signature was forged on the loan agreement. The argument proceeds this way: if Ms Tsiamoulis' signature was not forged, the loan agreement forms part of the mortgage, and indefeasibility flows. If it is forged, that part of Annexure A which refers to the loan agreement would simply be notionally excised.
I am not of the view that this argument should be determined summarily. There is not a high degree of certainty that the argument in relation to the indefeasibility of the mortgage will inevitably succeed. My reasons are as follows.
First, underpinning the two alternative strands of the argument is a factual determination which can only be determined at a substantive hearing where Ms Tsiamoulis' defence can be tested.
Second, to contend that in the absence of any factual finding, the Court could assume the loan agreement (which is not protected by registration) is forged and then to notionally excise that part of Annexure A which refers to the Memorandum of Provisions AF726834 and by incorporation, the loan agreement, would potentially deprive Perpetual of its claim to interest, which is not insignificant. As at May 2024, the total amount owing, including interest and fees, was over $1.5 million. Ms Louey contended in oral submissions that interest could be an implied term based on Reserve Bank rates, but also referred to a loan in a non-commercial situation where there is a mortgage to simply repay the principal. In my view, the issue of Perpetual's claim to interest is clearly one which needs appropriate ventilation at a final hearing.
Third, I am not satisfied to a high degree of certainty of the outcome based on the argument of notional excision. Ms Louey's argument is that even if Ms Tsiamoulis' signature on the loan agreement was forged:
"[…] the memorandum provisions [don't] have any work to do, so one construes that sentence in the registered mortgage; yes, it refers to it, but it just doesn't do anything in the facts because there is no secured money, and that is simply because she didn't sign the agreement because it was forged."
However, on the face of the Mortgage it is at least arguable that the mortgage document together with Annexure A should properly be read as a whole. It can be remembered that Annexure A included the following:
"We have agreed to lend to you and you have agreed to borrow money from us.
You acknowledge giving this mortgage and incurring obligations and giving rights under it for valuable consideration of $776000 received from us which you agree to repay together with the balance of the Secured Money in accordance with the Mortgage Memorandum of Provisions AF726834. You agree that this obligation is secured against the Land by this mortgage." (Emphasis added.)
[21]
Second argument: the SCC is statute barred
A cause of action founded on contract (including quasi-contract) cannot be maintained if brought after the expiration of six years running from the date on which the cause of action first accrues to the plaintiff: Limitation Act, s 14(1)(a).
As has been made clear by the High Court of Australia in Wardley, it is generally undesirable, except in the clearest of cases, to determine limitation questions in advance of hearing the action because it is usually the case that insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.
As noted above, it is contended by Ms Louey that since Collen, a breach of warranty of authority allegation has been regarded as akin to an action in contract or quasi-contract and, taking Perpetual's case at its highest, the breach of warranty of authority of Ms Louey occurred not later than 18 December 2014, and thus it is clearly statute barred.
I note that the weight of authority, as conceded by Perpetual, is that a breach of warranty of authority is akin to a breach of contract or quasi-contract. Further, it would appear that contrary to Perpetual's contention, there is authority (for instance Sims v Commonwealth of Australia (2022) 109 NSWLR 546; [2022] NSWCA 194 at [147]-[152]) as to how the Limitation Act operates with respect to a claim for breach of warranty of authority.
However, in my view, it is at least arguable that a breach of warranty of authority may not be known or knowable until after the expiration of the Limitation Act period, thus being prevented from pursuing such an action could be argued to be manifestly unjust. At a final hearing, should the issue arise on the facts as found, an argument could be mounted on the basis of what Deane J stated in Hawkins at pp 589-590, that the Limitation Act ought not be construed such that it gives rise to a plainly unjust outcome where the wrongful act itself effectively precluded the bringing of proceedings. Although I acknowledge that such a principle has apparently, to date, been confined to allegations of misconduct against solicitors for negligence, as noted above at [69], existing authority may be overruled, qualified or further explained: Spencer.
Further, and more importantly, it is not clearly demonstrated that an argument pursuant to s 55(1)(b) of the Limitation Act based on fraudulent concealment is bound to fail. To the extent that it is submitted by Ms Louey that the claim of fraudulent concealment is inadequately pleaded, such a deficiency could readily be remedied by the provision of leave to replead in the terms indicated by Perpetual above at [56(c)]. In my view, it is appropriate to grant leave to replead in those terms in order to make the allegation abundantly clear.
[22]
Perpetual's proposed additional claim for relief for misleading and deceptive conduct
There is also a six year limitation period for claims founded on misleading and or deceptive conduct: ASIC Act, s 12GF(2). Even though I cannot see an equivalent section to s 55 of the Limitation Act which would directly apply to s 12GF, this issue was not fully argued before me.
I note the comments by O'Bryan J in Reilly v Australia and New Zealand Banking Group Limited (No 2) [2020] FCA 1502 at [20]:
"Wardley was concerned with the limitation period in s 82(2) of the Trade Practices Act 1974 (Cth) (TPA), which is the statutory equivalent to s 12GF(2) of the ASIC Act, relied on by the applicants in this proceeding in respect of the misleading conduct claim and the unconscionable conduct claim. Section 82(2) provides that an action under s 82(1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. A cause of action under s 82(1) accrues when loss or damage is sustained by conduct done in contravention of a relevant provision of the TPA (now called the Competition and Consumer Act 2010 (Cth) (CCA)). Thus, to apply the limitation period in s 82(2), it is necessary to determine when loss or damage was sustained by the contravening conduct. That question may involve questions of fact, as well as questions of law, as illustrated in Wardley. It is when factual findings may be necessary in order to apply the limitation period in s 82(2) that it is inappropriate to determine such question on an interlocutory basis." (Emphasis in original.)
In my view, it is appropriate that the limitation argument in relation to this claim (which also requires a determination of when loss or damage was sustained) be dealt with at a final hearing, once the factual findings have been made. I do not consider this to be the clearest of cases which would make it appropriate to determine the limitation question at this interlocutory stage. In my view, it is appropriate to fully explore the limitation question in light of the evidence adduced at a final hearing.
[23]
Conclusion
For the above reasons, I am of the view that the Motion should be dismissed. Costs should follow the event.
I give leave to Perpetual to amend the SCC as indicated above at [56(c)]. Given I am of the view that the claim of misleading and deceptive conduct is not necessarily statute barred, it can be included in the Proposed Amended Second Cross Claim.
[24]
Orders
I make the following orders:
1. The Notice of Motion of 3 April 2024 is dismissed.
2. Leave is granted to Perpetual to amend paragraph 4(d) of Perpetual's Reply to the Second Cross Claim of 29 April 2024, such that an additional subparagraph is inserted in the following terms:
"(a) says that the Warranty of Authority Representation and Identification Representation were false, and were known by Ms Louey to be false;".
1. Leave is granted to Perpetual to include in the Proposed Amended Second Cross Claim, the claim of misleading and deceptive conduct pursuant to s 12GF of the Australian Securities and Investments Commission Act 2001 (Cth).
2. Ms Louey is to pay the costs of this Notice of Motion.
[25]
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: 03 December 2024
Ms Louey asserts that it is the "clearest of cases" that Perpetual's claim in negligence, and misleading or deceptive conduct, is statute barred under the s 14(1)(b) of the Limitation Act, and s 12GF(2) of the ASIC Act, respectively.
In oral submissions, Ms Louey also raised for consideration the operation of s 56C of the Real Property Act 1900 (NSW) as at 1 December 2014. It is contended that this provision creates a statutory obligation for Perpetual to verify the identity of the borrower. The question was raised at the hearing as to whether or not this obligation could be delegated. Ms Louey argued that even if it were to be found it could be delegated, the pleading against Ms Louey would have to identify the material facts showing she concealed Perpetual's cause of action in a fraudulent way.
Ms Louey argues Perpetual's Reply ought to be struck out and any allegation of "fraud", or "fraudulent concealment", if it is shown that there is proper basis to plead, and particularise, such an allegation, would need to be re-pleaded in an amended second cross-claim.
Perpetual submits that Cox has been applied by this Court in other decisions where, as a matter of construction, monies advanced under an "old fashioned form of" mortgage (including to a bank account in the borrower company's name) have been found not to be secured by a registered mortgage, citing Winau Aust Pty Ltd & Ors v LCC Property Development Pty Limited & Ors [2020] NSWSC 434.
It is contended by Perpetual that Ms Tsiamoulis' defence will require the Court to determine matters of fact, including whether Ms Tsiamoulis' signature was forged, the circumstances and nature of the advances made by Perpetual, and whether, on a proper construction of Perpetual's mortgage, such amounts are secured. Such matters cannot properly, and it is contended, ought not in any event, be determined summarily.
Perpetual makes clear that it is not suggested by Perpetual that Ms Tsiamoulis will succeed in her defence of Perpetual's claim, or that Ms Tsiamoulis has good (or even average) prospects of success. However, Ms Tsiamoulis' defence should not be summarily determined, but rather should be determined at final hearing.
Perpetual further submits that Ms Louey's first argument says nothing about the interest which has accrued under the Perpetual loan agreement, and which may be unrecoverable in the event Ms Tsiamoulis succeeds in establishing that her signature on the Perpetual loan agreement was forged. Loss suffered by Perpetual as a consequence of an inability to recover such interest would form part of any damages claim against Ms Louey.
Finally, Perpetual submits that dismissing the SCC whilst leaving Ms Louey's defence on foot would leave Perpetual in the invidious position of proceeding to a final hearing where it would face the risk of being unsuccessful against Ms Tsiamoulis and be unable to purse any remedies against Ms Louey. Perpetual ought not be put in such position.
Perpetual contends that there is apparently no clear authority as to how the Limitation Act operates with respect to a claim for breach of warranty of authority. It is at least arguable, submits Perpetual, that given the nature of the cause of action, the Limitation Act ought not apply to an action for breach of warranty of authority as it might to more conventional causes of action for breach of contract. One such argument would be that to apply the Limitation Act where the breach of warranty was not known or knowable until the expiration of the limitation period would be manifestly unjust. The Limitation Act ought not be construed such that it gives rise to a plainly unjust outcome. Quoting Deane J in Hawkins v Clayton (1988) 164 CLR 539, the legislature could not have intended that a cause of action should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the institution of proceedings.
Perpetual asserts that the Court ought not strike out Perpetual's claims on the basis of s 55 of the Limitation Act at this summary stage. The question should appropriately be determined at final hearing as they are claims not obviously statute barred.
Accordingly, Perpetual argues that the Motion should be dismissed with costs. And pursuant to UCPR 18.6, the Court ought to grant Perpetual leave to file the PASCC, and if necessary to amend Perpetual's Reply as sought above at [56(c)].
As stated by Kirby P in Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at pp 5-6 (subsequently endorsed on appeal (High Court of Australia, Deane, Toohey and Gaudron JJ, 30 April 1993, unrep) and since cited with approval: see, for example, Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199 at [37]-[41] (per Bell P, Macfarlan and White JJ agreeing)) common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence.
Further, it was also observed by the Court of Appeal in Penthouse Publications v McWilliam [1991] NSWCA 222 that on an application of this nature, the Court should adopt a "liberal construction" of the statement of claim (at p 5), and should summarily dismiss the proceeding only if it is plain to the Court that "on no reasonable view of the attacked pleading is there any point in allowing the case to go to trial" (at p 6). More recently, the Court of Appeal in HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271, explored these principles in detail.
It has also been observed that even where the viability of a claim depends on a proposition of law apparently precluded by existing authority, that is not necessarily the end of the matter, as existing authority may be overruled, qualified or further explained: Spencer at [25] (per French CJ and Gummow J).
The Court may determine the application having regard to evidence adduced by the parties: UCPR, r 13.4(2). However, if such evidence is received, the Court must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify such findings: Bass v Permanent Trustee Co Limited (1999) 198 CLR 334; [1999] HCA 9 at [50] (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
Ms Louey also puts forward an alternative case under r 14.28 which provides:
14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
One can note that the words which I have italicised may well have the effect that the part of the sentence following the words "together with" cannot, on its plain reading, obviously be excised. One can also note that the words "this obligation" and "is" connote a singular obligation.
If Annexure A is read as a whole, in my view there is an available argument (should there be a yet-to-be-determined factual finding that the loan agreement was forged), that none of Perpetual's interests are protected by indefeasibility. The argument, in short, is that within the Mortgage Memorandum of Provisions AF726834W (itself a registered document, and a copy of which is contended by Ms Tsiamoulis to include her forged signature), are certain definitions which refer to another document including the following:
"'loan agreement' means any contract now or in the future providing for the provision of credit or other financial assistance and the giving of this mortgage.
[…]
'secured money' means:
• all amounts that are or may become owing by you to the mortgagee under any agreement between you and the mortgagee now or in the future, including all amounts that you owe the mortgagee under:
(a) a loan agreement; or
[…]
(c) a security.
• all money that any agreement says is secured money or which an agreement says is secured by this mortgage; and
• reasonable expenses of enforcing this mortgage.
[…]
'security' means a mortgage, guarantee, indemnity, bill of sale, deed or agreement of any kind now or in the future given in relation to a loan agreement."
The loan agreement document is also contended by Ms Tsiamoulis to include her forged signature. This document is not registered, and if fraudulently signed is of no effect. As such, there is an argument that this adversely affects the indefeasibility of the registered documents which incorporate it.
Such an argument is in part based on Cox. It is true that the facts of Cox are not on all fours with the facts of this case. In Cox, the "Mortgage" was defined to mean "the Mortgage Form including all schedules and annexures and this document", and the "Mortgage Form" was defined to mean "the form of mortgage that You have executed that refers to and incorporates this document". In that decision at [38], Leeming JA stated "The Mortgage was thereby defined by reference to documents, rather than its juridical status as a creature of statute amounting to a charge on the land". Cox also involves the non-payment of money under a payment direction which was found to be forged, and payment was made to an account which was not that of the mortgagors.
Notwithstanding those differences, however, in my view the general principles set out in Cox provide an arguable basis that the two pages of the Mortgage, which includes Annexure A, are to be read as a whole. This in turn means that the potentially forged loan agreement is arguably incorporated, which thus may undermine Perpetual's indefeasibility.
It can also be noted that in Tomassetti, the face of the mortgages specified not only the sum secured by the mortgage but, unlike this case, also the date of repayment and the interest rate: see [13]-[14]. On the particular construction of the mortgages in that case, Campbell J found the mortgagee had indefeasible title to secure the principal and interest. That outcome can be compared to the case of PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 ("Maradona") cited in Tomassetti. In Maradona, the mortgagor had executed a guarantee (and also the mortgage) at a time when she lacked capacity. The mortgage secured, inter alia, sums of money which were owing to the mortgagee by the mortgagor and any other indebted person or either of them. Justice Giles found that the mortgagee was indefeasibly entitled to a mortgage but a mortgage which secured nothing. As stated in Tomassetti at [12]:
"[…] On the face of the registered mortgage [in Maradona], one could not tell what was the extent of the estate or interest of the mortgage - one was, instead, referred to other documents which were not themselves registered, and which were void because of Mrs Thompson's lack of capacity. That case illustrates the way that one needs to look at the terms of the particular mortgage that is the subject of litigation to work out the scope of any estate or interest in the land which is created indefeasibly by the registration of that mortgage."
I have also considered Printy v Provident Capital Limited [2007] NSWSC 287 and the additional cases discussed therein. As observed at [34]:
"What consideration of Tsai, Small and PT Limited illustrates is the importance of considering the terms of the particular mortgage in order to determine the effect of its registration, and what indefeasibility is thereby conferred." (Formatting amended.)
I have considered the submission from Ms Louey that this is a "discrete question of law" which has only one correct answer. The argument was put in oral submission as follows:
"Now we say that is a discrete question of law. It is a question of law which can be resolved on a summary dismissal strikeout application and we say it ought be resolved by your Honour and if I am right about that, it means that the second cross-claim falls away. And it also means that Ms Tsiamoulis' defence that nothing is secured by the mortgage falls away."
The contention that each question of law has only one correct answer (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [60]) and that I can therefore make a determination taking the evidence of the defendant at its highest is not an appropriate approach in this case (cf HNOE Limited at [58], where there were no facts to be determined, and there was a clear legal outcome). As Dixon J stated in Dey at pp 91-92:
"[It] is not to be used in cases of doubt or difficulty or where the pleading raises a debateable question of law […] [L]itigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose."
The argument in relation to indefeasibility in the circumstances of this case is debateable. So much is not only obvious from the previous paragraphs, but also from the fact that Perpetual, who is the plaintiff in this matter, contends that that is the case. Further, I accept the force of Perpetual's argument that it is not appropriate to summarily dismiss Ms Tsiamoulis' defence in a hearing which does not involve her.
It is in this context that I observe that Ms Louey's criticisms of Perpetual's Reply fail to acknowledge the arguments made by Perpetual summarised above at [52]-[56] that the contention of fraudulent concealment made by Perpetual arises directly from the defence filed by Ms Tsiamoulis. It is directed at the limitation point and picks up the words of the Limitation Act, s 55(1)(b). For convenience I set out the terms of s 55:
55 Fraud and deceit
(1) Subject to subsection (3) where -
(a) there is a cause of action based on fraud or deceit, or
(b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,
the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.
(2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.
(3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if -
(a) the person is a party to the fraud deceit or concealment, or
(b) the person is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs.
(4) Where property is, after the first occurrence of fraud deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud deceit or concealment has occurred, subsection (1) does not, in relation to that fraud deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through the purchaser.
As stated in Seymour v Seymour (1996) 40 NSWLR 358 at p 372 (Mahoney ACJ, Meagher JA and Abadee AJA agreeing), in order to rely on s 55 of the Limitation Act and fraudulent concealment:
"[…] there must be in what is involved a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing. At least this is so in the generality of cases. (There is in this as in many things, the problem of dealing with the person who "closes his eyes to wrong" or is so lacking in conscience that he is not conscious of his own lack of proper standards.)"
I am of the view that such an issue should be determined at a final hearing after evidence has been heard and factual findings made.
As to the claim of negligence, there is also a six year limitation period for "a cause of action founded on tort": Limitation Act, s 14(1)(b).
I accept Perpetual's argument that it is arguable that a claim in negligence is not statute barred, because a tortious action does not accrue until damage is sustained: Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16 at [5]. To determine the time at which a tortious action accrues, damage must be actual damage of a measurable kind and prospective or contingent damage is insufficient: Wardley at pp 528, 531-532; and there is an available argument that causes of action for tortious conduct giving rise to a lender entering into a contract to loan money may not accrue until the point in time at which recoupment becomes impossible: Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 at [32]; Hawkins at p 601.