Plaintiff v Defendant

2 The plaintiffs' claims arise under a loan agreement said to have been entered into in June 2000 between the first plaintiff's ultimate assignor, the second plaintiff Blackburne Pty Ltd, and Caroline. That loan agreement was assigned by Blackburne to Environinvest Limited, the fourth plaintiff (EIL) and then to Primary Yield Finance Pty Ltd, the third plaintiff (PYF) and from PYF to the first plaintiff (ABL).

3 The substantial defence in the existing Third Further Amended Defence filed on 2 March 2012 (after denials of the assignments alleged) is that under a put and call option between the defendant and EIL - the defendant was granted a put option, and EIL a call option - under which EIL could be called on to buy certain property, or could call on the defendant to sell that property (presumably the woodlots acquired with the loan moneys) and in consideration pay out the loan. The defendant alleges that on 20 September 2007 she (via her husband Roger Pescott) exercised the put option and in consequence the loan agreement was discharged.

4 In the application to amend the defence the defendant seeks to:

(a) Withdraw admissions in relation to the execution of the loan agreement to be consistent with the Amadio pleading referred to below;

(b) Change in a minor respect the way the defence under the put and call option is pleaded;

(c) Plead unconscionable conduct on the part of ABL in failing to give notice of the assignment until 2008. This defence alleges that if the loan was not paid out as a result of the exercise of the call option (which is the primary defence) then that was because of the failure of ABL to give the notice of assignment earlier, prior to 2007. Had it done so, the defendant could have ensure that EIL paid the funds pursuant to the call option and discharged the loan (paragraphs 7A, 7B and 7C); and

(d) Raise the defence commonly known as an Amadio defence.[1]

5 The Amadio defence is put in the proposed Fourth Further Amended Defence in the following way:

20. In 2000 Roger Pescott was:

a. A director of the Blackborne Pty Ltd [sic];

b. A Director of Environinvest Pty Ltd;

1. The individual who instructed the solicitor who drafted the loan agreement dated 3 July 2000.

1. The defendant was at the time of the execution of the loan agreement under a special disability in that she was at the time of signing the Loan Agreement on 3 June 2000:

1. Entirely reliant upon Roger for advice and guidance in reference to all financial matters; 2. Recovering from the caesarean delivery of her 2nd child born 22 May, 2000 (having been discharged from hospital on 29 May, 2000);

1. Simultaneously responsible for another 21 month old child;

1. Ignorant of and inexperienced in matters of finance; 2. Unaware of her entitlement to independent advice upon the Loan Agreement; 3. Habituated to acquiescence to her husband's wishes in regard to financial matters; 4. Had no understanding of the consequences of or obligations created by the Loan Agreement; 5. Was not in a position to make and did not make any judgment as to whether her own interest were served by entering into the Loan Agreement.
2. At all times Roger was aware of the facts pleaded in paragraph 21 above.
3. Further and alternatively, in the circumstances it is unconscionable for the lender or any subsequent assignee of the loan to seek to enforce the terms of the loan against the plaintiff.
4. Further, on the face of the loan agreement and in the absence of all or most of the precursor or preparatory documentation that, as a regular course of business, would accompany a loan for $751,248.00, the Plaintiff was on notice that the loans were irregular, undocumented and should have been further investigated by the Plaintiff.
5. Had the Plaintiffs been aware of the true circumstances of the loan, such circumstances being discoverable had the Plaintiff conducted the investigations that a reasonable and prudent assignee would have undertaken in the circumstances, the voidability of the Loan Agreement would have been known to the Plaintiff.
6. The voidability of the loans does not arise out of any fault or misrepresentation by the defendants.
7. In the circumstances it is unconscionable for the Plaintiff to now seek to pursue its alleged entitlements to sue on a Loan Agreement it knew or should have known were void or voidable. The special disabilities pleaded above at paragraphs 21 and 22 above were not discovered by the Plaintiff solely due to its own failure to conduct the reasonable and prudent investigations that it should have taken and was obliged to undertake in the circumstances.

6 The proceeding was commenced in 2009 and the statement of claim to which the proposed Fourth Further Amended Defence will plead was filed on 1 September 2011. On 18 February 2014, Associate Justice Daly made pre-trial directions, and the trial was fixed for 20 October 2014 on an estimate of 3-4 days. The proceeding is to be heard at the same time as proceeding SCI 2009 4804[2] in which ABL sues Euan Pescott (Euan), Roger Pescott's brother, who also seeks to amend his defence in similar fashion. Trial directions have apparently been complied with and the Court Book compiled and filed.

7 Importantly, the defendant had previously pleaded an Amadio defence in her Further Amended Defence filed in September 2010. That defence was the subject of a substantial reply in which ABL contended, in effect, that on the facts pleaded the defence was not available. They say that is the case with this proposed pleading.

8 Caroline has filed an affidavit sworn on 8 September 2014, the substance of which is:

(a) She retained her current solicitors on 22 August 2014. Before that she represented herself with the assistance of her husband, Roger Pescott. Before that she was represented by Millens, solicitors, until June 2013. She ceased using those solicitors because of a lack of funds;

(b) The reason for seeking the advice of her current solicitors was that her husband had, on her behalf, sought certain documents from the solicitors for ABL relevant to the due diligence undertaken by it before the assignment of the loan, and other loans, from EIL to ABL. The response was that those documents were not relevant to the issues in the proceeding. On discovering that ABL's response to the request was correct, the defendant then realised that the pleading did not raise the matters that she had thought she had instructed were to be raised, in particular, the Amadio defence;

(c) She confirms the facts relevant to her pleading in paragraphs 20 and 21 of the proposed fourth further amended defence, as set out above;

(d) She says she does not recall signing the loan agreement or ever having her signature witnessed by Carol McErvale, who was her house cleaner. But she concedes, in effect, that she may have signed it. She recognises her signature and her husband's handwriting on the loan application form and the witness to her signature on that form. She says that the information in the loan application form of her financial position are incorrect and that she never understood that she was to borrow over $750,000.00 for which she was to be personally liable; and

(e) In essence she says that in all financial and legal matters she simply followed what her husband Roger said, and signed the documents he asked her to sign without explanation. She trusted him completely to act in her best interests. She gives an account of her upbringing and education so as to establish the matters pleaded.

9 Roger Pescott also swore an affidavit in support of the application.[3] That affidavit was also sworn in support of the application made in the other proceeding between ABL and Euan (S CI 2009 4804). In that affidavit:

(a) He refers to a letter that he drew for his wife to send to ABL's solicitors in July 2014 seeking discovery of documents relating to the due diligence conducted by ABL before acquiring the loans from EIL, and the response received on 30 July 2014;

(b) He says that the investment in the EIL projects by both Caroline and Euan were ultimately intended to be available to be purchased by EIL under the put and call option agreements. At the time of the loans to Caroline and Euan, respectively, the Pescott family owned 100% of EIL and of the lenders (in the case of this proceeding that was Blackburne and in the case of Euan's proceeding it is BEP Finance);

(c) He says that at the time the loans were made he was running all of these entities and organised the purchase of some forestry scheme allotments both in his own name, in the name of a family trust and then the names of Euan and Caroline;

(d) He did not see any risk associated with these loans because of the ability to discharge the liabilities by executing the call option;

(e) He says that in 2007 he executed the options on behalf of Caroline and Euan as a sale of EIL was then proposed;

(f) He says that Caroline and Euan were oblivious to the way EIL administered the loan and EIL's subsequent failure to apply the sale proceeds to their loans. EIL paid the instalments due under the loans and attended to the administration of them; and

(g) He confirms Caroline's lack of financial acumen and her medical condition at the time of the execution of the loan agreement, and that he never gave her the opportunity to seek advice as he was not concerned about her personal liability given the put and call option.

10 The power to amend in r 36.01 (1) of the Supreme Court (General Civil Procedure) Rules 2005 (Rules) authorises the Court to order that a party have leave to amend any pleading for the purpose of determining the real question in controversy between the parties to any proceeding, correcting any defect or error or avoiding multiplicity of proceedings.

11 It is common ground that an amendment which is futile because it is obviously bad in law will not be allowed: Commonwealth v Verwayen.[4] Similarly, if a proposed pleading would be liable to be struck out if it had been contained in an original pleading, either because the pleading is bad in law or is defective as a pleading, then leave to file the proposed pleading will not be allowed: Horton v Jones (No.2);[5] Gimson v Victorian WorkCover Authority.[6] The Court, on this type of application, will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, but where that amendment introduces a patently hopeless issue for determination then its inclusion will be futile and that will be a significant, and probably decisive, matter in the exercise of the Court's discretion.[7]

12 As J Forrest J observed in Matthews v SPI Electricity Pty Ltd (Ruling No 6),[8] having regard to the terms of the Civil Procedure Act 2010 (CPA), the test is best expressed in the words of s 63 of that Act: if the amendment has no reasonable prospect of success at trial then that would be a highly relevant factor in the exercise of the discretion to refuse the application.[9]

13 In Namberry Craft Pty Ltd v Watson,[10] Vickery J summarised the relevant factors to be considered, as a result of the decision in AON Risk Services Australia v Australian National University,[11] as follows:

[T]here are to be limits placed upon re-pleading. The High Court in AON referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:

(a) Whether there will be substantial delay caused by the amendment;

(b) The extent of wasted costs that will be incurred;

(c) Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;

(d) Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;

(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.[12]

14 This list of factors is not exhaustive. It is made against the background of the earlier decision of the High Court in Queensland v JL Holdings Pty Ltd,[13] and the authorities that preceded it, including the famous case of Cropper v Smith,[14] where the liberal approach to the amendment of pleadings finds its lead in the dissenting judgment of Bowen LJ.

15 On the other hand, pleadings are not an end in themselves. They are a means of ensuring that real issues of controversy are raised for determination in a way that is procedurally fair, both to a plaintiff and a defendant. This allows claims and defences to be clearly articulated, granting parties an opportunity to present their case properly prepared, on clear notice of allegations and defences raised in the proceedings. On this basis, the authorities clearly establish that, absent extraordinary circumstances, leave to amend will be granted.[15]

16 In relation to the pleading of the Amadio defence, knowledge by a plaintiff of the special disability of a defendant, or of facts putting a plaintiff on inquiry as to the existence of the special disability, is generally an essential prerequisite for a finding of unconscionable dealing.[16]

17 What is a special disability is probably not capable of any precise definition. A great deal will turn on the facts of the particular case. In these short reasons it is not possible to undertake a review of the authorities. Suffice it to say that in Blomley v Ryan, Fullagar J set out, in an oft quoted passage, some of the possibilities in the following way:[17]

...The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other. It does not appear to be essential in all cases that the party at a disadvantage should suffer loss or detriment by the bargain.

18 There is no duty under the general law, at least in the absence of a fiduciary obligation, to take steps to inquire, in another party's interest, into the possibility that a disability may exist. A plaintiff is to be judged on the basis of the facts which were actually known to it. It is not necessary, however, that there be full knowledge of the special disability: it is enough that a plaintiff has sufficient awareness to be placed on inquiry so that ignorance of the special disability may be characterised as wilful.[18]

19 If the stronger party is put on inquiry, it is sufficient to establish liability that no inquiry was made. In Amadio,[19] Mason J (as he then was) expressed the view that it was inconceivable that the possibility did not occur to the bank manager in that case that the Amadios' introduction to the transaction was 'due to their inability to make a judgment as to what was in their best interests, owing to their reliance on their son, whose interests would inevitably incline him to urge them to sign the instrument put forward by the bank'.[20]

20 Similarly, Deane J thought it sufficient to ground an exercise of the equitable jurisdiction that the special disability was 'sufficiently evident to the stronger party to make it prima facie unfair or "unconscientious" that he procure or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it'.[21] His Honour went on to say that '[i]t would, at least by that stage, have been plain to any reasonable person, who was prepared to see and to learn, that he was put on inquiry'.[22]

21 Proof that the dominant party took advantage of the disability in question is necessary. It must be shown that the dominant party had a 'predatory state of mind' and that it obtained the benefit of its bargain with the weaker party by unfair exploitation of that party's evident weakness.[23] This may be established by proving the dominant party had actual knowledge of the weaker party's special disadvantage or by proving that the dominant party was wilfully ignorant of it.[24]

22 The concept of constructive notice, which is applicable to ordering the priority of competing interests in property, does not have a place in establishing knowledge for the purposes of the doctrine of unconscionable dealing.[25] Accordingly, while heedlessness of, or indifference to, the best interests of the other party to a transaction will not amount to taking advantage, it may consist in proceeding with the transaction, knowing, or having been put on inquiry, that the weaker party's disability prevented that party from judging what was in his or her best interests and doing nothing to ameliorate that disability.[26]

23 ABL contended that the proposed Fourth Further Amended Defence suffers from a number of defects, which, with my short conclusions, are set out in the following paragraphs.

24 It seeks to withdraw admissions contained in the Third Further Amended Defence (as to the execution of the loan agreement and its terms), without any material that warrants the withdrawal of the admissions. It was evident from the submissions made by Counsel for Caroline that these admissions were sought to be withdrawn so as to be consistent with the Amadio defence, and no more. They thus stand or fall with that proposed amendment.

25 Paragraphs 7A, 7B and 7C of the proposed defence do not disclose any defence and has no real prospect of success, indeed this defence is bound to fail.

26 Counsel for Caroline advanced no basis in law for the proposition that ABL should have given notice of the assignment before it did, and that had it done so the position under the call option might have resulted in EIL discharging the loan. There are no underlying facts pleaded or particularised that give rise to any duty on ABL to do so, or any expectation on the part of the borrowers that this would be done, nor any suggestion that ABL was aware of the put and call option agreement so as to raise even a hint of the possibility that it engaged in unconscionable conduct.

27 This pleading cannot be allowed as it raises no defence. Moreover, it leads to no claim that the loan agreement is thereby voidable nor any counterclaim to have the loan agreement set aside.

28 Paragraphs 19 to 23 of the proposed Fourth Further Amended Defence, which plead the Amadio defence, do not disclose a defence. The circumstances pleaded and supported by the affidavit of Caroline do not give rise to any relevant special disability at the time of the execution of the loan agreement. That is because regardless of her medical condition at the time, she would have done whatever her husband asked. Her lack of financial acumen, her lack of training and experience, and her ignorance of matters relevant to the execution of a loan agreement and the purchase of woodlots are beside the point. She simply left these matters to her husband. That is regrettable, perhaps. But it is not a ground that by itself will sustain the defence.

29 There is no pleading that the original lender, Blackburne, either knew of the disability or unconscientiously took advantage of it, let alone that ABL is fixed with such knowledge.

30 There is no allegation that in procuring her signature to the loan agreement Roger was acting as agent for the lender, original or by assignment. There is no suggestion that he misled her - quite to the contrary. He apparently told her nothing. She simply trusted him to look after her interests, and had all gone well that would have been the case.

31 Moreover, as ABL submitted, if the loan agreement is effected by unconscionability it remains enforceable unless and until it is set aside by the Court and for that purpose it is necessary for the defendant to seek by way of counterclaim the requisite relief.

32 Paragraphs 24 to 27 do not disclose any defence and are bound to fail. I refer to my summary of the principles above that are applicable to the circumstances in which a lender is put on inquiry. The allegation that the plaintiff was on notice that loan was irregular and undocumented is, to my mind, grasping at straws. As I have pointed out, there is no duty under the general law to take steps to inquire, in another party's interest, into the possibility that a disability may exist. ABL is to be judged on the basis of the facts which were actually known to it.

33 The allegation that the loan was irregular and undocumented is unsupported by particulars and contradicted by the documents exhibited to Caroline's affidavit. In argument, Counsel for Caroline suggested that the loan application form, because of its lack of detail, must have put the lender on notice. It cannot, it seems to me, have put the lender, and the assignee in the position of ABL, on notice as to anything of relevance to her proposed defence of unconscionable conduct. Nothing in that loan application, or not in it, gives rise to any awareness in ABL sufficient to put it on inquiry so that ignorance of any special disability may be characterised as wilful.

34 In addition to the foregoing, there is no allegation that either the original lender, or ABL when it took its assignment, took advantage of any disability suffered by Caroline, assuming for present purposes that she did so suffer. As I have said, it must be shown that the dominant party had a 'predatory state of mind' and that it obtained the benefit of its bargain with the weaker party by unfair exploitation of that party's evident weakness.[27] There is simply no basis for this suggestion. The only person against whom this allegation might be raised is Roger Pescott, and there is no suggestion he took advantage of his wife, quite to the contrary. He was looking after her interests as a member of the Pescott family in furthering the success of the schemes EIL promoted and the prospect of a gain in the future, but protected from loss by the put and call option.

35 There is a further reason to deny the leave to amend by the introduction of the Amadio defence. It is that the pleading is, as a pleading, deficient both in the material facts it must allege to raise the defence and in the particulars that, having regard to the lateness of the application, must be given.

36 The plaintiffs submitted that even if the proposed pleading was not defective in the way in which was submitted, the Court has in any event a discretion whether to grant the leave to amend based on the principles informing the exercise of that discretion as stated by the High Court in Aon. It is also material to have regard to s 7 of the CPA, and the overarching purpose of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.

37 The factors relevant to the exercise of the discretion include whether a proper explanation has been proffered by the applicant for amendment and whether the proposed amendments will cause prejudice which cannot be met in some way.

38 The plaintiffs submitted that the affidavits filed on behalf of the defendant do not provide a proper explanation for the delay in making the application particularly where the defendant has previously pleaded an Amadio defence and, after an extensive reply to that pleading, abandoned it. In addition the amendments are made at a very late stage after five years of interlocutory steps and significant discovery of documents. I agree with that submission.

39 It seems to me that what Caroline wants is to fish about amongst the documents relevant to the due diligence undertaken by ABL before it acquired the loans to see if there is anything that might have put it on notice as to the alleged disability suffered by Caroline. This is not a proper purpose of an amendment.

40 Although there was no application by Caroline to vacate the trial date, that consequence seems to me to be inevitable. ABL has given notice[28] that in the event that the proposed Fourth Further Amended Defence is allowed, not only will it need to plead in response, but it will require substantial discovery of materials relevant to the alleged disability suffered by Caroline. This is likely to give rise to further substantial delays attributable to the proposed amendments. This will give rise to further costs that will be incurred. There would be an element of irreparable, unfair prejudice to ABL caused by the proposed amendment, having particular regard to:

(b) The fact that it concerns events primarily within the knowledge of Roger Pescott;

(c) The pressures placed upon ABL as assignee of the loans to meet a claim that is based on circumstances that are now very old, going back to 2000; and

(d) The prejudice cannot be adequately compensated for, whatever costs may be awarded.

41 This proceeding and the proceeding against Euan have been set down for trial since February of this year. Both proceedings are now old enough that any further delay in them coming on for trial will be further embarrassment to the administration of justice in this State. Although other cases are likely to be able take their place on 20 October 2014, if the trial on that date is vacated the proceedings will not be able to obtain another trial date that is earlier than March 2015.

42 With the exception of the minor amendments proposed to be made to the defence based on the discharge of the loan through the exercise of the put and call option, for the above reasons the amendments sought will be refused and Caroline's summons will be dismissed.

(in its capacity as Trustee of the Lighthouse Warehouse Trust No 8 (Environinvest Finance))

(in liquidation) (receivers and managers appointed)

(in liquidation) (receivers and managers appointed)

[1] Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 462 ("Amadio").

[2] The orders to this effect were made by Daly AsJ on 11 May 2010. That order relates also to other proceedings.

[5] [1939] NSWStRp 35; (1939) 39 SR NSW 305, 310.

[6] [1995] VicRp 14; [1995] 1 VR 209, 215.

[7] Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70, [33].

[8] [2012] VSC 70, [34].

[9] As to the test see Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [29] per Warren CJ and Nettle JA (Neave JA agreeing).

[10] [2011] VSC 136.

[11] [2009] HCA 27; (2009) 239 CLR 175 ("AON").

[12] Ibid [38]. Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors [2010] VSC 89, [19].

[13] [1997] HCA 1; (1997) 189 CLR 146.

[14] (1884) 26 Ch D 700.

[15] ACN 074 971 109 & Anor v The National Mutual Life Association of Australasia Ltd, [2010] VSC 186, [28].

[16] Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310, citing inter alia, Melverton v Commonwealth Development Bank of Australia [1989] ASC 55-921; [1989] NSW ConvR 55-484 (NSWSC), Hodgson J at 58, 516 (ASC) Amadio [1983] HCA 14; (1983) 151 CLR 447.

[17] Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 405.

[18] Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[19] [1983] HCA 14; (1983) 151 CLR 447.

[20] Amadio [1983] HCA 14; (1983) 151 CLR 447; 466-467; Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[21] Amadio [1983] HCA 14; (1983) 151 CLR 447, 474: Deane J applied that test to the facts at 477; Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[22] Amadio [1983] HCA 14; (1983) 151 CLR 447, 479; Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[23] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392, [161]; Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[24] Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[25] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392, [150]-[158].

[26] Amadio [1983] HCA 14; (1983) 151 CLR 447, 466-7 (Mason J), 479 (Deane J); Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621, 638 (Deane J); Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[27] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392, [161]; Laws of Australia, online edition, Thomson Reuters, paragraph 35.9.310.

[28] By letter dated 12 September 2014.