Plaintiff v Defendant

PRACTICE AND PROCEDURE - DEEDS AND OTHER INSTRUMENTS - Enforcement of deed of settlement - whether summary procedure appropriate - Barratt v Rees [2014] VSCA 327 - Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555 - Seachange Management Pty Ltd v Pital Business Pty Ltd [2009] VSCA 139; (2009) 23 VR 396.

COURTS AND JUDICIAL SYSTEM - GROUP PROCEEDINGS - Consequences of being a group member - Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516 - Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214 - Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd (2017) 118 ACSR 592; [2017] VSCA 51 - Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 - ABL Custodian Services Pty Ltd v Freer [2018] VSC 355 - Bendigo and Adelaide Bank Ltd v Lonergan [2018] VSC 357.

1 These are the reasons for judgment in respect of two applications for judgment in two separate proceedings, being Bendigo and Adelaide Bank Limited v Mark Simon Laszczuk S CI 2016 01406 ("the Laszczuk Proceeding") and Bendigo and Adelaide Bank Limited v Tiffany Michelle Cairncross S CI 2017 00676 ("the Cairncross Proceeding"). These reasons are delivered jointly because this course does, in my view, facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute,[1] having regard to the almost entire commonality of issues, the consent of the parties to this course and the overlap of the parties' legal practitioners. Before turning to the common issues which fall for determination, it is helpful to set out the background to each proceeding.

2 This is a claim by Bendigo and Adelaide Bank Limited (ACN 068 049 178) ("the Bank") against Mark Simon Laszczuk ("Laszczuk") for principal and interest under a loan by ABL Nominees Pty Ltd (ACN 106 756 521) ("ABL Nominees") whereby Laszczuk was provided with funds to fund his investment in the Great Southern 2007 Wine Grape Income Project ARSN 117 119 507 ("2007 Vineyards MIS").

3 By a loan deed dated 15 June 2007 ("the Loan Deed" or "the Laszczuk Loan Deed"), ABL Nominees agreed to loan Laszczuk the sum of $62,649.60 to fund his investment in the 2007 Vineyards MIS.

4 There were terms of the Laszczuk Loan Deed that:[2]

(a) ABL Nominees would lend the sum of $62,649.60 to Laszczuk;

(b) Laszczuk would make one monthly interest only repayment of $826.32 on 31 July 2007, followed by 35 monthly interest only repayments of $553.40 each, commencing on 31 August 2007, followed by 83 principal and interest repayments of $1,059.58 each, commencing on 31 July 2010, followed by one final principal and interest repayment of $1,059.85 on 30 June 2017;

(c) Laszczuk would pay interest on the Moneys Payable (as defined in the Loan Deed) that was/were due and payable, but unpaid, at the rate of 13.6% per annum, calculated daily and charged monthly; and

(d) Laszczuk would pay all costs and expenses incurred in relation to enforcement of the Loan Deed on a full indemnity basis.

Although Laszczuk denies the pleading of these terms of the Laszczuk Loan Deed,[3] he does admit that on or about 31 May 2007, he made an application to Great Southern Finance Pty Ltd ("GSF") for term finance in the sum of $62,699.60 to finance the purchase of 16 lots in the 2007 Vineyards MIS.

5 The Bank claims,[4] but Laszczuk denies, that on or about 15 June 2007, ABL Nominees advanced the sum of $62,649.60 to him ("the Loan" or "the Laszczuk Loan").[5]

6 The Bank claims that Laszczuk, in breach of the Laszczuk Loan Deed, failed to make monthly payments required under the Laszczuk Loan Deed.[6] In particulars, it is alleged that Laszczuk made repayments in accordance with the Laszczuk Loan Deed between 31 July 2007 and 31 May 2009 (inclusive), but that after 31 May 2009, Laszczuk made only one further repayment which was received on 14 August 2015.[7]

7 This is a claim by the Bank against Tiffany Michelle Cairncross ("Cairncross") for principal and interest under a loan by ABL Nominees whereby Cairncross was provided with funds to fund her investment in the 2007 Vineyards MIS.

8 By a loan deed dated 15 June 2007 ("the Loan Deed" or "the Cairncross Loan Deed"), ABL Nominees agreed to loan Cairncross the sum of $340,657.20 to fund her investment in the 2007 Vineyards MIS.

9 There were terms of the Cairncross Loan Deed that:[8]

(a) ABL Nominees would lend the sum of $340,657.20 to Cairncross;

(b) Cairncross would make one interest only repayment of $4,493.10 on 31 July 2007, followed by 35 monthly interest only repayments of $3,009.14 each, commencing on 31 August 2007, followed by 83 monthly principal and interest repayments of $5,761.48 each, commencing on 31 July 2010, followed by one final principal and interest repayment of $5,576.81 on 30 June 2017;

(c) Cairncross would pay interest on the Moneys Payable (as defined in the Loan Deed) that was/were due and payable, but unpaid, at the rate of 13.6% per annum, calculated daily and charged monthly; and

(d) Cairncross would pay all costs and expenses incurred in relation to enforcement of the Loan Deed on a full indemnity basis.

Cairncross admits that on or about 15 June 2007 she entered into the Cairncross Loan Deed,[9] but does deny her liability to the Bank pursuant to the Cairncross Loan Deed or at all, for the reasons pleaded in her Counterclaim.

10 The Bank claims,[10] and Cairncross does not admit (presumably due to lack of knowledge), that on or about 15 June 2007, ABL Nominees advanced the sum of $340,657.20 to her ("the Loan" or "the Cairncross Loan").[11]

11 The Bank claims that Cairncross, in breach of the Cairncross Loan Deed, failed to make monthly payments required under the Cairncross Loan Deed.[12] In particulars, it is alleged that Cairncross made repayments in accordance with the Cairncross Loan Deed between 31 August 2007 and 30 May 2009 (inclusive), but that after 30 May 2009, Cairncross made no further repayments.[13]

12 By way of written submissions, Cairncross adopts those made by Laszczuk, save for one additional paragraph which she relies upon with respect to the time at which time began to run for the purposes of the Limitations Act upon the Bank's right to recover her loan.

13 The Bank seeks to pursue its application for judgment as an application to give effect to terms of settlement of the kind discussed by the Court of Appeal in Barratt v Rees ("Barratt").[14] The nature of an application of this kind was discussed by the Court of Appeal in Barratt and the authorities reviewed.[15] As the Court of Appeal observed,[16] the summary procedure to enforce terms of settlement was described in detail by Smith J in Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd ("Roberts").[17] The Court of Appeal also made reference to the statement by Smith J in Roberts, concluding his Honour's review of what he had identified as "certain rather vaguely defined rules of practice":[18]

In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters involving questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.

14 The Court of Appeal in Barratt also observed that the authorities were considered by Maxwell P and Nettle JA in Seachange Management Pty Ltd v Pital Business Pty Ltd, where their Honours said:[19]

In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now than once was the case, it is not to be invoked unless the court is "clearly satisfied that justice can be done"; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.

15 It is important to stress that an application of the kind discussed in Barratt is not an application for summary judgment, whether under Part 4.4 of the Civil Procedure Act 2010 or under the summary judgment provisions of the Supreme Court (General Civil Procedure) Rules 2015.

16 In the present circumstances, I am of the opinion that the discretion of the Court should be exercised in favour of proceeding summarily to enforce the settlement approved in the Great Southern Group Proceedings.[20] Laszczuk and Cairncross are group members and therefore bound by the Deed of Settlement of these group proceedings.[21] For the reasons which follow, the defences available to them are severely constrained. Consequently, extraneous matters are not involved, the questions to be determined are not substantial or of a nature which would lead to questions of credibility being raised and where justice and procedural fairness between the parties would only be served by trial of all issues on pleadings and with discovery.

17 It follows, for these reasons, that the evidence relied upon by the parties in these proceedings is constrained. In the Laszczuk Proceeding, the Bank relies on the affidavits of Stephen Flamer-Smith affirmed on 24 July 2017, 14 August 2017, 31 May 2018 and 6 July 2018, and the affidavit of Cameron Arthur Rhodes affirmed 8 June 2018. In the Cairncross Proceeding, the Bank relies upon the affidavits of Stephen Flamer-Smith affirmed 14 August 2017, 31 May 2018 and 6 July 2018, and the affidavit of Cameron Arthur Rhodes affirmed 8 June 2018. Various objections were made in relation to these affidavits, principally to those of Mr Flamer-Smith. Generally, these objections were resolved on the basis that the objectionable material, so claimed, provided context to the documents relied upon, which were received into evidence. Except for the evidence as to principal and interest outstanding any "contextual" matters are not matters relied upon in these reasons. The defendants did not seek to rely on any of their own evidence other than two ASIC records,[22] both of which became irrelevant during the hearing of the applications.

18 As indicated previously, the Bank seeks to recover the Laszczuk Loan and the Cairncross Loan (collectively, "the Loans"), together with interest and costs, the Loans having been made to Laszczuk and Cairncross to fund their investments in the 2007 Vineyards MIS. The 2007 Vineyards MIS was the subject of the group proceeding in Samantha Murray v Great Southern Managers Australia Limited & ors, S CI 2011 04862 ("the 2006/2007 Vineyards Originated Group Proceeding"). Neither Laszczuk nor Cairncross opted out of this group proceeding.

19 "Group Members" were relevantly defined in paragraph two of the Further Amended Statement of Claim in the 2006/2007 Vineyards Originated Group Proceeding[23] to be persons who, inter alia:

(a) between 16 June 2006 and 15 June 2007 inclusive, acquired and/or held an interest as a member in the 2007 Vineyards MIS;

(b) entered into a lease and management agreement with Great Southern Managers Australia Limited ("GSMAL") in the 2007 Vineyards MIS; and

(c) entered into a loan with ABL Nominees to fund payment of application fees in respect of the 2007 Vineyards MIS.

20 Laszczuk admits that on or about 31 May 2007, he applied for finance to purchase 16 lots in the 2007 Vineyards MIS offered by GSMAL.[24] Cairncross admits that on or about 15 June 2007 she acquired 87 vinelots in the 2007 Vineyards MIS and entered into the Cairncross Loan Deed to finance this acquisition.[25]

21 The "interest start date" in the schedule to both of their loan deeds was 15 June 2007, and the loan account statements shows that their loans were advanced on 15 June 2007. Consequently, it is a reasonable inference, and the Court does infer, that both Laszczuk and Cairncross became members of the 2007 Vineyards MIS on 15 June 2007.

22 The Lease and Management Agreement ("LMA") is described in the Product Disclosure Statement ("PDS") for the 2007 Vineyards MIS ("2007 Vineyards PDS") as follows:[26]

Each Grower under this PDS enters into a Lease and Management Agreement for a period of approximately 20 years under which they contract with the Responsible Entity, Great Southern Managers Australia Limited ("GSMAL"), to lease one or more appropriately established Vinelots of 0.05 hectares each within the Vineyards ("Vinelot"), comprising each of a Mature Area, a Young Area and a New Area, and for the Responsible Entity to carry on the future management and maintenance of those Vinelots for the duration of the relevant Project.

23 The LMA is further described in the 2007 Vineyards PDS:[27]

• The RE will determine the Vinelot or Vinelots to be specified in the LMA, and prepare an LMA for the proposed Vinelots.
• LMAs must specify the Vinelots as determined by the RE, have the details completed in the Schedule, commence on a date to be determined by the RE and may comprise one or more separate agreements.
• The RE will arrange for all LMAs to be executed by 15 June 2006 for the 2006 Project and by 15 June 2007 for the 2007 Project, either by the Applicant personally or under power of attorney granted in the Application.

Upon acceptance by the RE of an Applicant's application to enter into an LMA, an LMA will be executed by the RE as attorney for and on behalf of the Applicant.

25 The 2007 Vineyards PDS[29] sets out the details of the power of attorney granted by investors to allow GSMAL to enter into and execute the LMA on the investor's behalf.

26 Having regard to these matters, it is, in my view, a reasonable inference, and the Court should so find, that Laszczuk and GSMAL entered into an LMA as contemplated by the 2007 Vineyards PDS, as did Cairncross and GSMAL. Moreover, had this not occurred, neither Laszczuk nor Cairncross would have been entitled to claim tax deductions in respect of their respective investments in the 2007 Vineyards MIS. In any event, Laszczuk and Cairncross admit that they were members of the 2006/2007 Vineyards Originated Group Proceeding.[30]

27 For the reasons which follow, the consequences of Laszczuk and Cairncross being Group Members is that they are bound by the terms of the Deed of Settlement[31] of the group proceedings and, particularly, the acknowledgment that their Loan Deeds are valid and binding (cl 4.1.4) and the release of any Claims (as defined in the Deed of Settlement) that they might otherwise have against the Bank in this proceeding (cll 4.1.10 and 4.1.12).

28 In light of the importance of the provisions of the Deed of Settlement, it is helpful to set out the following provisions of cl 4:

1. SETTLEMENT OF CLAIMS INVOLVING BEN PARTIES AND JAVELIN

4.1 On and from the Approval Date, all Claims against the BEN Parties and Javelin and any of their respective Related Bodies Corporate, Related Entities or Related Persons will be settled as follows.

4.1.1 The BEN Parties agree to waive Interest Relating to Overdue Amounts accrued and unpaid as at the Approval Date, in respect of the Loan Deeds of:

4.1.1.1 the Lead Plaintiffs;

4.1.1.2 Group Members; and

4.1.1.3 M+K Counterclaim Claimants,

insofar as those loans are between those persons and the BEN Parties.

4.1.2 The BEN Parties agree not to commence or continue debt recovery proceedings against M+K Clients until at least 30 days after the Approval Date.

4.1.3 Javelin will agree to vary the terms of the Loan Deeds of the Lead Plaintiffs and Group Members whose Loan Deeds were assigned to Javelin (collectively, Javelin Borrowers) in accordance with clause 5, whether or not a Javelin Borrower has ceased making repayments.

4.1.4 The Lead Plaintiffs for and on behalf of themselves and all Group Members acknowledge and admit the validity and enforceability of the Lead Plaintiffs' Loan Deeds and the Group Members' Loan Deeds.

4.1.5 The M+K Counterclaim Claimants acknowledge and admit the validity and enforceability of their Loan Deeds.

4.1.6 Each of the Lead Plaintiffs acknowledges and admits their liability to the BEN Parties to pay the Loan Balance under their Loan Deed.

4.1.7 Subject to the operation of clauses 5.1 to 5.19, Raymond Drummond acknowledges and admits his liability to Javelin to pay the Money Payable under his Loan Deed.

4.1.8 Each of the M+K Counterclaim Claimants acknowledges and admits their liability to the BEN Parties to pay the Loan Balance under their Loan Deed.

4.1.9 Each of the plaintiffs by counterclaim to the Uplifted Proceedings acknowledges and admits their liability to the BEN Parties to pay the Loan Balance under their Loan Deed.

4.1.10 The Lead Plaintiffs for and on behalf of themselves and on behalf of all Group Members release the BEN Parties and their Related Entities and Javelin and its Related Entities from all Claims.

4.1.11 The M+K Counterclaim Claimants release the BEN Parties and their Related Entities from all Claims.

4.1.12 Each of the Lead Plaintiffs for and on behalf of themselves and on behalf of all Group Members and each of the M+K Counterclaim Claimants agree that they will not bring or pursue, or procure that a third party bring or pursue, a Claim against the BEN Parties or their Related Entities and Javelin and its Related Entities.

4.1.13 Each of the BEN Parties and their Related Entities and Javelin and its Related Entities may plead this Deed as a bar or defence to any claim or action (including a claim for costs) brought by any of the Lead Plaintiffs, the Group Members or the M+K Counterclaim Claimants relating to a Claim.

...

...

Critical to these provisions of cl 4 are the definitions of "Claim", "Loan Agreements" and "Loan Deeds" which appear in the definitions and interpretation provisions of cl 1.1, as follows:[32]

...

"Claim" means any claim, demand, action, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunctive relief, specific performance, declaratory relief or any other remedy, whether by original claim, cross-claim, claim for contribution or otherwise whether presently known or unknown and whether arising at common law, in equity, under statute or otherwise and whether involving a third party or party to this Agreement and all liabilities, losses, damages, costs (including legal costs on a full indemnity basis), interest, fees, and penalties of whatever description (whether actual, contingent or prospective) arising out of, or in connection with the contents of or the facts giving rise to, the PDSs, the Loan Agreements and or the allegations made in or the facts giving rise to each of the Proceedings.

...

"Loan Agreements" means the loan agreements under which monies were advanced to Scheme Members to finance their interest in managed investment schemes of which GSMAL, and (in the case of the Great Southern 2008 Future Forestry Investment Scheme) GSMAL and Rural Funds Management Limited (formerly Great Southern Funds Management Limited), is or was the responsible entity.

...

"Loan Deeds" means the Loan Agreements the subject of the Group Proceedings and the M+K Counterclaim Proceedings entered into between:

1. the Lead Plaintiffs, Group Members or M+K Counterclaim Claimants and GSF, which were subsequently assigned by GSF to one or more of the BEN Parties or Javelin; or
2. the Lead Plaintiffs, Group Members or M+K Counterclaim Claimants and ABL Nominees Pty Ltd, which were subsequently assigned by ABL Nominees to one or more of the BEN Parties.

Clause 1.1 of the Deed of Settlement also defines the "Approval Date", which is the date upon which the Court approved the settlement of the Great Southern Group Proceeding, which approval was granted on 11 December 2014 in Clarke.[33]

29 The effect of the Deed of Settlement on group members in the Great Southern Group Proceedings has now been considered on two occasions by the Court of Appeal. The first occasion was in Byrne v Javelin Asset Management Pty Ltd ("Byrne"),[34] and the second in Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd ("Pekell").[35] At the outset it is important to emphasise that the Great Southern Group Proceedings did not proceed to judgment. Rather, these group proceedings were concluded by the settlement now embodied in the Deed of Settlement which was, as indicated previously, approved by the Court under s 33V of the Supreme Court Act 1986. This is in contrast to the position with respect to the Timbercorp Managed Investment Schemes litigation, which proceeded to judgment in Woodcroft-Brown v Timbercorp Securities Ltd ("Timbercorp").[36] The criticality of this difference is that the group members in the Timbercorp proceedings, which went to judgment, are only bound to the extent of the common issues in the group proceedings, whereas, as is made clear by the Court of Appeal in Byrne and Pekell, the group members in the Great Southern Group Proceedings are bound by the provisions of the Deed of Settlement, properly construed; and whether or not the operation of that deed extends to settle issues and claims beyond what would otherwise be within the ambit of the common issues in those group proceedings is a question of construction. In relation to these matters I should observe that, in my view, the position that the orders of the Court approving the Deed of Settlement may strictly be a "judgment" of the Court within the definition provisions of s 3 of the Supreme Court Act 1986 does not affect the substance of the distinction between the outcomes in the Timbercorp and the Clarke proceedings and their consequences with respect to the group members.[37]

30 On 3 July 2018, this Court handed down its decisions in ABL Custodian Services Pty Ltd v Freer[38] and Bendigo and Adelaide Bank Ltd v Lonergan.[39] Both decisions concerned applications for judgment against borrowers who were group members in the Great Southern group proceedings.

31 The Bank, in its submissions in these proceedings, provides a helpful summary of the outcome and effect of the decision in Freer:[40]

(a) the discretion of the Court should be exercised in favour of proceeding summarily to enforce the settlement approved in the Great Southern group proceedings ([9]);

(b) the consequence of being a group member in the group proceeding is that the group member is bound by the terms of the Deed of Settlement and particularly the acknowledgement that the group member's Loan Deed is valid and binding (clause 4.1.4) and the release of any Claims (as defined) ([14]);

(c) group members are bound by the provisions of the Deed of Settlement, properly construed; and whether or not the operation of that deed extends to settle issues and claims beyond what would otherwise be within the ambit of the common issues in the group proceedings is a question of construction ([16]);

(d) the admission in clause 4.1.4 of the Deed of Settlement as to the "validity and enforceability" of the Loan Deeds was to be taken as an admission that the loans had been made ([17]);

(e) that the Court of Appeal had decided in Pekell[41] that the orders approving the Deed of Settlement had not been made in excess of jurisdiction ([22]);

(f) a group member cannot contest the making of the advance ([25]); and

(g) a group member cannot contest the assignment of the loan ([26]).

In light of this summary, it is not necessary, for present purposes, to set out the reasoning in Freer in which this position was reached with respect to the construction and operation of the Deed of Settlement on the basis of the decisions of the Court of Appeal in Byrne and Pekell.[42]

32 On this basis, the Bank contends that Laszczuk and Cairncross, as Group Members, are bound by the provisions of the Deed of Settlement and it follows that they are not now able to dispute or deny the validity or enforceability of their respective Loan Deeds by the Bank. Laszczuk and Cairncross do, however, raise a variety of issues, by way of defence and otherwise, in opposition to this position. It is to these matters that I now turn.

33 In their Amended Defences and Counterclaims, Laszczuk and Cairncross raise defences and bring counterclaims alleging that:

(a) the defendant's Loan Deed was made in circumstances that made it unjust or unfair pursuant to various statutes;[43]

(b) the defendant is not bound by his or her Loan Deed because it was not validly executed;[44]

(c) no power of attorney was given by the defendant to enter into a loan contract;[45]

(d) if the Loan Deed was effective as a contract, but not a deed, the plaintiff's claim is statute barred;[46]

(e) the orders approving the settlement of the group proceeding should be construed in a way that confines them, or the Deed of Settlement, to the common issues in the group proceedings;[47] and

(f) they have claims against the plaintiff pursuant to the linked credit provider provisions in section 73 of the Trade Practices Act 1974 (Cth) ("TPA").[48]

The Bank contends that the effect of the Deed of Settlement and decisions of this Court and the Court of Appeal is, however, that these defences and counterclaims cannot be maintained. For simplicity, the following analysis of these defences is directed to the Laszczuk Proceeding, though it applies with full force to the Cairncross Proceeding, subject to any particular differences which are noted.

34 The defence in paragraph 19.1 of the amended defence alleging that the Loan Deed and the circumstances in which it was made was unjust or unfair pursuant to each of s 9 of the Contracts Review Act 1980 (NSW), Part 2-3 of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)), Part 2, Schedule 2 of the Trade Practices Act 1974 (Cth), Part 2, Div 2, Subdivision BA of the Australian Securities and Investments Commission Act 2001 (Cth), ss 68-70 of the Consumer Credit Code and s 147 of the Credit Act 1984 (NSW) or, in the alternative, Part X of the Credit Act 1984 (WA) is, the Bank contends, inconsistent with the acknowledgement that the Laszczuk Loan Deed is valid and enforceable and the release of all Claims against the Bank under the Deed of Settlement. In my view, as explained in these reasons, the correct position is as contended by the Bank and these claims are not available to Laszczuk now, assuming that they ever were.

35 In terms of substance, Laszczuk provides no evidence in support of the allegations contained in paragraph 19.1 of the defence. The pleaded defence is little more than a list of the statutory factors relevant to the defences sought to be raised. Moreover, the allegations concerning the unfamiliarity of Laszczuk with financial products, for example, sub-paragraphs (a), (b) and (d) of paragraph 19.1 of the Amended Defence and Counterclaim, do appear to be inconsistent with Laszczuk's loan application in which he says that his occupation is as a paraplanner employed by Navra Financial Services. No such inconsistency arises with respect to the occupation of Cairncross, who stated on her loan application that her occupation was home duties.

36 Additionally, the statutory consumer protection provisions relied upon by Laszczuk are not available to him because the Loans provided were, and were declared to be, wholly or predominantly for business or investment purposes. More particularly, in the Loan Deed, the finances provided for the purposes of investing in the "Project" and the "Business" is defined as "borrower's long-term business of commercial viticulture". Further, Laszczuk is required to "carry on and conduct the Business in a proper and efficient manner". This is consistent with the tax ruling in respect of the scheme in which Laszczuk invested, which requires (at paragraph 59) that "the Grower's participation in the Project must constitute the carrying on of a business of primary production".

37 Section 6(2) of the Contracts Review Act 1980 (NSW) provides that:

A person may not be granted relief under this Act in relation to a contract so far as the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking (including, but not limited to, an agricultural, pastoral, horticultural, orcharding or viticultural undertaking) carried on by the person or proposed to be carried on by the person wholly or principally in New South Wales.

As Laszczuk's vinelots were located in the Rowe Road vineyard in Margaret River in Western Australia and in the Millewa 2007 vineyard in Cullulleraine in Victoria, the New South Wales Contracts Review Act does not apply.[49] Nor does it apply to Cairncross' vinelots, which were located in the Ferndale 2007 vineyard in Frankland in Western Australia, the Grampian View vineyard in Victoria and also in the Rowe Road vineyard in Western Australia.[50]

38 In relation to the provisions of the Trade Practices Act 1974 (Cth), it is unclear what provisions are relied upon but, presumably, those in force at the time Laszczuk entered into his loan must be those to which he intends to make reference. In any event, Laszczuk was not a consumer in respect of those loans within the meaning of s 4B(1)(b) of this Act.

39 No reliance can be placed on the Australian Consumer Law by Laszczuk in the present circumstances as that legislation did not come into effect until 1 January 2011, which was well after he entered into and subsequently defaulted on his loans. Similarly, Part 2, Division 2, Subdivision BA of the Australian Securities and Investments Commission Act 2001 upon which Laszczuk seeks to rely did not come into force until 1 July 2010, which was well after he entered into and defaulted upon his loans. It is also clear that the Consumer Credit Code does not apply as the credit in this case was provided, and was acknowledged to be provided, wholly for business purposes. In this respect, the provisions of s 6(1)(b) of the Code are critical, as they provide that this legislation applies where "credit is provided or intended to be provided wholly or predominantly for personal, domestic or household purposes".

40 Laszczuk also relies on s 147 of the Credit Act 1984 (NSW) - or its equivalent in Western Australia. Section 147, however, applies to "regulated contracts", which are defined in s 5 to include "regulated loan contracts". Section 30(2)(a) excludes the instant loans from the operation of this legislation by excluding from the definition of loan contracts for these purposes, contracts where the amount of finance is more than $20,000.

Existence and enforceability of the Loan Deeds and assignment of the Loans

41 Arising out of the Amended Defence and Counterclaim and the elements to which reference has been made, Laszczuk submits that the Bank has failed to prove:

(c) rights under the Laszczuk Loan Deed were assigned to the plaintiff.

By contrast, as is apparent from Cairncross' Amended Defence and Counterclaim, she admits that the Cairncross Loan Deed existed but does not admit that any money was lent under it or that rights under the Cairncross Loan Deed were assigned to the Plaintiff. The Bank contends that none of these arguments can be advanced by a Group Member bound by the Deed of Settlement. As indicated in these reasons, I am of the opinion that that is the position, but that, nevertheless, it is desirable to address these issues in any event.

42 In my view, it is quite clear that the loan deeds relied upon by the Bank in each Proceeding are loan deeds which fall within the definition of "Loan Deeds" contained in the Deed of Settlement. The critical parts of the Loan Deed are, in the present context, as follows:[51]

TERMS OF LOAN DEED

This deed

is made on 15 day of June 2007

between the following parties:

[If the proposed loan has been approved by GSF, the Lender under this loan deed is GSF. If the proposed loan deed has been approved by ABL, the Lender under this loan deed is ABL.]

1. Great Southern Finance Pty Ltd

ACN 009 235 143

of 16 Parliament Place, West Perth, Western Australia

(Lender)

OR

1. ABL Nominees Pty Ltd

ACN 106 756 521

of Level 5, 169 Pirie Street, Adelaide, South Australia

(Lender)

[delete as applicable]

and

2. The Borrower

described in item 1 of the Schedule

(Borrower)

and

3. The parties (if any)

described in item 11 of the Schedule

(Guarantor)

Recitals

1. GSMAL has established the Projects in accordance with the relevant Product Disclosure Statement relating to each Project.
2. The Borrower has decided to participate in each Project specified in item 2 of the Schedule to carry on the relevant Business.

1. The lender will finance a portion of the Borrower's interest in each Project on the terms and conditions set out in this Document.

...

19 ASSIGNMENT

19.1 Permitted assignment

(a) The Lender may at any time assign or otherwise transfer all or any of its rights, and may transfer all or any of its obligations, under this Document (including the benefit of the Charge).

(b) The Borrower may not assign or otherwise transfer all or any of its rights or obligations under this Document without the written consent of the Lender.

(c) The Lender may assign part of or an interest in the benefit of the Charge whilst retaining the benefit of the other part or interest in the name of the Lender or in the name of a trustee on trust for the Lender to secure the Moneys Payable or part of it.

19.2 Disclosure of information

The Lender or the Lender's servicer may disclose to a proposed assignee or transferee or servicer information in the possession of the Lender or the Lender's servicer relating to the Borrower and furnished in connection with this Document or a Project and the Borrower consents to that disclosure.

...

27 PROPER LAW

This Document is governed by, and to be interpreted in accordance with, the laws of Western Australia and where applicable the laws of the Commonwealth of Australia.

...

Schedule 1

1. BORROWER

Mark Simon Laszczuk

6/18 Salt Street

WINDSOR QLD 4030

2. PROJECT

GREAT SOUTHERN 2007 WINE GRAPE INCOME PROJECT ARSN 117 119 507

Number of Vinelots: 16

Vinelot Numbers: 7644-7659

...

EXECUTED AS A DEED:

Signed sealed and delivered by the Borrower

Mark Simon Laszczuk by his/hers/its duly appointed attorney

Great Southern Finance Pty Ltd ABN 47 009 235 143

in accordance with Section 127 of the Corporations Act 2001

Signed sealed and delivered by the Lender:

ABL Nominees Pty Ltd ACN 106 756 521

by its duly appointed attorneys:

This document also makes it clear - having regard to both its substantive content and structure - that it is made between ABL Nominees Pty Ltd (ACN 106 756 521) and Laszczuk. The power of attorney under which GSF executed the Laszczuk Loan Deed on Laszczuk's behalf is contained in the Loan Application.[52]

43 Having regard to the effect of the Deed of Settlement and its precluding Laszczuk from raising these matters, it is only necessary to respond briefly to the issues raised with respect to the existence of the Loan Deed. It is these matters to which I now turn.

44 A company may execute a document as a deed if it is signed by two directors or a director and a secretary. In my view, this is made clear by ss 127(1) and (3) of the Corporations Act 2001 (Cth). This is, indeed, how GSF executed the Laszczuk Loan Deed. In my view, there is no inconsistency between this Commonwealth legislation and the provisions of the Property Law Act 1969 (WA) (Western Australia being the applicable state law under clause 29 of the Loan Deed), or similar legislation with respect to the execution of deeds more generally. In any event, to the extent there is a conflict between the Commonwealth and Western Australian legislation, the Commonwealth legislation would prevail as a result of the operation of s 109 of the Constitution. Nevertheless, I am of the opinion that the better view is that the Commonwealth and State legislation is not inconsistent - the Commonwealth legislation directing attention to execution by companies but not precluding a company from choosing to comply with the Western Australian formalities if it chooses to do so. As the Commonwealth legislation is directed to execution of deeds, I also accept the proposition that the provisions of the Western Australian legislation which dispense with the need for delivery of a deed[53] may be relied upon in the present circumstances so that to the extent that delivery might be seen to be in issue applying general law principles, the position is otherwise in light of this legislation. Additionally, the signatures of officers executing a document on behalf of a company, including a deed, are not, under the provisions of s 127(1) of the Corporations Act, required to be attested or witnessed.

45 As to the form of the signatures, it should be borne in mind that a signature is only a mark. A signature may be impressed upon a document by a stamp with the authority of the person signing.[54] The evidence of Mr Rhodes is that this is how the loan deeds were executed by GSF.[55] Moreover, there is no reason why the assumptions a person is entitled to make under s 129(5) of the Corporations Act should be confined to signatures made with a pen in the usual way.

46 Further, in relation to the process of execution of the Loan Deeds, some point is sought to be made by Laszczuk that had Mr Rhodes made it clear to the Court at the settlement approval hearing that he could not remember authorising the execution of particular loan deeds - though, it is said, they were "signed by machine" - the Court "could rightfully come to a different decision".[56] In my view, it would be surprising if Mr Rhodes could remember such a thing given the lapse of time and the vast number of Loan Deeds executed as part of the multiplicity of Great Southern managed investment schemes. In any event, there is no basis for any suggestion that Mr Rhodes and others associated with Great Southern were not candid with the Court in the group proceedings generally or at the settlement approval hearing concerning the execution of the Loan Deeds by facsimile signature.[57]

47 As to the nature of a power of attorney, it is not, or not necessarily, a contract and, contrary to the defendants' submissions, is not required to "satisfy offer acceptance and consideration".[58]

48 As indicated previously, I am of the view that Laszczuk and Cairncross, as Group Members, cannot contest the assignment of the Loan. In any event, Mr Flamer-Smith gives evidence, in his first affidavit, of the assignment.[59]

49 Additionally, Laszczuk and Cairncross question the effectiveness of the notice of assignment given to them by reference to Bendigo and Adelaide Bank Ltd v Howard.[60] In any event, for the reasons given by Davies J in that decision, even if this meant that the assignment was not valid at law, it is effective in equity.[61]

50 As indicated previously, the effect of the Deed of Settlement is that Laszczuk and Cairncross have acknowledged that their Loan Deeds are valid and enforceable. Each Loan Deed states that it has been executed as a deed and, having regard to their contents and the preceding reasons with respect to the existence of the Loan Deed and the formalities with respect to deeds, they are, in my view, clearly deeds. It follows that the limitation period is 12 years under s 18 of the Limitation Act 2005 (WA).

51 As indicated in the preceding reasons, the principles for construction of the Deed of Settlement have been determined by the Court of Appeal in Byrne and in Pekell and by this Court in Freer and in Lonergan. As is made clear in the decisions of the Court of Appeal, particularly Byrne, the Deed of Settlement is to be construed as a commercial document and, more specifically, in Byrne the Court of Appeal said that the Deed of Settlement should not be construed "beneficially" in favour of a Group Member.[62]

Construction of the orders of the Court approving the Deed of Settlement

52 The question of the powers of the Court and the construction of the orders approving the Deed of Settlement was addressed by the Court of Appeal in Byrne and Pekell. As the Court of Appeal observed in Pekell,[63] Byrne established that it was permissible for a deed of settlement to go beyond the matters in issue in the group proceedings - that is, beyond the common issues. As the Court further found in Pekell,[64] for the Court to construe or read down the order approving the Deed of Settlement in any way contended for by the respondent in that proceeding and by Laszczuk and Cairncross in these proceedings, would profoundly alter the meaning of the deed so that a fundamentally different deed would take the place of the one contemplated by the order. This would, in my view, be to amend, not construe, the order and is, consequently, not a manner in which the orders may be construed.

53 Laszczuk and Cairncross also seek to raise a variety of constitutional matters in opposition to the claims by the Bank in these proceedings. Notice to the Attorneys-General at the Commonwealth and all States and Territories was given by the defendants, in both proceedings, in accordance with s 78B of the Judiciary Act 1903 (Cth). No Attorney-General sought to intervene in either proceeding or to remove either proceeding to the High Court.

54 The constitutional and related matters raised are advanced by Laszczuk and Cairncross under three broad headings:[65]

(1) the orders of the Court should be construed as within power;

(2) the Settlement Deed and the orders giving power to it should be construed within legislative power; and

(3) the Settlement Deed and the orders giving power to it should be construed within constitutional power.

The orders of the Court should be construed as within power

55 In this respect, Laszczuk submits that the lead plaintiff in a class action is a statutory agent and that the Court is empowered to deal with the agent on behalf of his principals by Part 4A of the Supreme Court Act 1986. Thus, it is said that the Court's orders must be construed within the limits of the agency. As to these limits, it is submitted that as the Bank parties in the Clarke matter submitted, the rights in the Settlement Deed were co-extensive with their common law rights for Anshun estoppel, issue estoppel and abuse of process. That, it is said, is the basis on which they sought the orders and the basis on which they received the orders. I do not, however, for the reasons which follow, accept that the basis upon which the orders were sought and made is as submitted by Laszczuk.[66]

The Settlement Deed and the orders giving power to it should be construed within legislative power

56 The statutory agency point put by Laszczuk was considered recently in the context of settlement agreements in Dillon v RBS Group,[67] where Lee J said, after a discussion of the relevant principles:[68]

It should go without saying that an applicant is only entitled to deal with any other person's rights to the extent that the applicant is representing those rights. Indeed, it is simply wrong in principle for an applicant to presume to deal with the rights of third parties except to the extent that they are empowered by statute to deal with those rights. It follows it is inconsistent with the nature of the role of a representative party under Part IVA of the Act, as part of seeking to resolve a representative proceeding, to seek to settle all individual claims of group members howsoever arising against a respondent (in contradistinction to the claim the subject of the relevant proceeding).

Laszczuk submits on this basis that the lead plaintiffs in the group proceedings were not his agents in relation to the matters relevant to these proceedings. Laszczuk also relies on the decision of the High Court in Timbercorp.[69] He says the decision of this Court in Clarke was directly contrary to Timbercorp.[70] Thus he says the Court of Appeal was wrong for the reasons stated in Timbercorp in each of its decisions in Byrne and Pekell; but accepts this Court is bound to the limited extent of being bound by the ratio in these decisions of the Court of Appeal.

The Settlement Deed and the orders giving power to it should be construed within constitutional power

Mr Laszczuk's Loan Deed existence and limitations issues were not "matters" properly raised, identified and before the Court in Clarke

57 On the basis of the authorities following Re Judiciary & Navigation Acts,[71] Laszczuk submits that this Court, when exercising federal judicial power,[72] did not have jurisdiction to determine Group Members' individual defences which were at that stage merely theoretical and hypothetical claims to be put in future cases not before the Court. This, it is said, would be anathema to the role of such a Court within Chapter III of the Constitution. More particularly, it is submitted that:[73]

(1) "the word 'matter' in s 76 [does not mean] a legal proceeding, but rather the subject matter for determination in a legal proceeding";[74]

(2) subject matter within the proceedings must involve the determination of "some immediate right, duty or liability";[75]

(3) because the right, duty or liability must be immediate, a Court exercising federal jurisdiction "is limited to determining rights of persons or of property, which are actually controverted in the particular case before it" and not "future cases" and the consent of the parties cannot "enlarge the power"[76] by consent;[77]

(4) the subject matter in group proceedings does not include Group Members' "individual claims" as decided in Timbercorp[78];

(5) in order for a matter to be actually controverted before a court, the case must be applied "to a person actually and not hypothetically... by reason of ascertained and not suppositious facts",[79] meaning that "hypothetical factual situations" are not justiciable;[80] and

(6) facts are hypothetical where they are "neither agreed nor determined by reference to the evidence in the case".[81]

In the present case, it is said that when the Settlement Deed was approved, the Court had no pleadings before it, nor any evidence or agreed facts before it in relation to Laszczuk's individual defences.

58 Consequently, Laszczuk contends that the Settlement Deed should be construed as applying to the common issues of fact and law before the Court in the group proceedings. There is said to be no constitutional issue with this. The alternative construction of the orders advocated by the Bank is that the Settlement Deed, on its approval by the Court, extinguished all the individual defences of the Group Members. This construction, Laszczuk submits, would make the orders of this Court unconstitutional. This is because, if interpreted in that way, the decision in the group proceedings would have said that if a claim was brought by the Bank in relation to an unparticularised document, and if that document were a loan deed, and if any defence or counterclaim of a completely unknown nature (both legally and factually) were raised, then that defence or counterclaim would be invalid, the loan deed would be valid (and valid as a deed) and the claim would be properly brought. This, it is said, in no way sought to resolve any "immediate right, duty or liability".

59 Moreover, Laszczuk submits that the very evil that the "matter" principle is meant to proscribe occurred here, because the Bank has taken the Deed of Settlement to apply to all future cases, and submits that it can bar from the Court any knowledge of the individual defences of the Group Members. This means, it is said, that the Court was both deprived of the knowledge of those individual defences in the group proceedings and is being told it is barred from knowing those individual defences now.

The Court may only exercise any power it has judicially

60 Laszczuk submits that there is no power in the Parliaments of the Commonwealth or the States to confer jurisdiction on a state supreme court that is exercising federal judicial power in its entrenched position under the Constitution to act in a non-judicial manner. More particularly, it is submitted that:[82]

(1) "...in Ch III's exclusive vesting of the judicial power of the Commonwealth in the 'courts' which it designates, there is implicit a requirement that those 'courts' exhibit the essential attributes of a court and observe, in the exercise of that judicial power, the essential requirements of the curial process, including the obligation to act judicially"[83] or put another way, there is inherent in Chapter III the right that a person has a "fair" trial "exercised in accordance with the judicial process";[84]

(2) the obligation to act judicially is governed by the rules of natural justice;[85]

(3) it is an essential characteristic of a court that it is "the right of a party [before it] to meet the case made against him or her",[86] the necessary corollary of that being that one must have a right to know with precision the case they have a right to meet;

(4) facts cannot be derived by means of supposition, but must be agreed or determined by a court on the basis of evidence; and

(5) a Chapter III court cannot be required by State legislation to act in a manner incompatible with Chapter III.[87]

61 Natural justice, Laszczuk submits, relevantly provides for the following rights:[88]

(a) the right to an originating process stating the case one has to meet; and

(b) the right to know the evidence that one has to meet;

(2) the right to be heard in relation to the case against you; and

(3) the right to reasons in relation to the case against you.

In relation to Laszczuk's individual defences, he says that the Court had no pleading or particulars of the Bank's claims; no knowledge of Laszczuk's case; no evidence before it on which to find facts; no agreed facts; and no submissions on the facts of Laszczuk's case or the law arising thereon.

62 Accordingly, concluding his submissions in relation to constitutional and related matters, Laszczuk says that if the orders approving the Deed of Settlement in the group proceedings are construed only to relate to the common issues in those proceedings, the Court was seized of jurisdiction. However, insofar as those orders are said to relate to individual defences of Laszczuk, then the Court's decision would have had none of the characteristics of a judicial decision. Thus, Laszczuk's submission is that the Court was not seized of jurisdiction in relation to the matters relevant to these proceedings.

63 I have set out the constitutional and related issues raised by Laszczuk, and adopted by Cairncross, in these proceedings as they clearly raise important and fundamental issues with respect to group proceedings and the administration of justice more generally, and this may assist in the event that these proceedings are taken further. This should not, however, be taken as indicating any view on these matters on my part as they are, in my opinion, now foreclosed to this Court by the decisions of the Court of Appeal in Byrne and Pekell. Moreover, I think it is fair to say that these constitutional and related issues are similar to those which were sought to be raised in the High Court in Dimitrov v The Supreme Court of Victoria.[89] As Edelman J found in Dimitrov,[90] if Laszczuk and Cairncross seek to have set aside the orders of the Court approving the Deed of Settlement, the appropriate, and perhaps only means by which that can be done, is through an application for leave to appeal those orders to the Court of Appeal, together with an application for an extension of time in which to appeal. Moreover, as orders of a superior court of record, the orders of the Court approving the deed of settlement are valid until set aside, even if the orders are in excess of jurisdiction.[91]

64 A further consideration which may be seen as going to the nature and exercise of judicial power in this context is the possible effect of the provisions of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). Although the operation of the Charter was not raised in either of these proceedings it is, in my view, incumbent upon the Court to raise the issue having regard to the importance of its provisions; though in the present circumstances subject to the constraints of the decisions of the Court of Appeal in Byrne and Pekell.

65 In the present circumstances, the right with which the Court is concerned is the right to a fair hearing under section 24 of the Charter:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The fairness element of this right presumably confers on litigants a relatively unrestricted right to plead and otherwise conduct their respective cases as they see fit. After all, if a litigant cannot put its case, within the adversarial framework of the common law, it is difficult to see how the litigant can be said to have been given a fair hearing.

66 Critical, in the present context, is whether the operation of the group proceedings regime - Part 4A of the Supreme Court Act 1986 - in preventing the Defendants from raising defences which were or could have been agitated in the trial of the Great Southern proceedings - results in a defendant being denied a fair hearing. However, as indicated, whether or not such a denial has occurred in the present circumstances is not an issue open to the Court in the present proceedings in light of the decisions of the Court of Appeal in Byrne and Pekell.

Unconscientious reliance on the Deed of Settlement

67 In my view, there is no substance to the argument put by Laszczuk and Cairncross that it is unconscientious for the Bank to rely upon the Deed of Settlement because of the arguments that were put to the Court in the hearing for the approval of the Deed.[92] All parties understood that the effect of the Deed, if approved, would be to severely limit the "individual defences" available to Group Members. The objectors[93] argued that this was a reason not to approve the Deed. The Bank and other defendants in the group proceeding argued that this would also be the case if the group proceedings proceeded to judgment.[94] The position in this respect is made clear in the judgment in Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) in approving the Deed of Settlement:[95]

The enforceability clauses as sought to be applied by means of the settlement are, as the Bank Parties submit, consistent with the application of the doctrines of issue estoppel, Anshun estoppel or abuse of process in the context of a settlement of group proceedings. Further, as the Bank Parties contend, if the group proceedings went to judgment or settled, these doctrines would variously operate to bar subsequent claims or defences by group members that their Loan Deeds are unenforceable. This follows from the nature and extent of the issues the subject of the group proceedings - indeed issues as to the enforceability of the Loan Deeds at the heart of those proceedings - as discussed in the preceding reasons. Thus, it cannot be the position, as contended in the Second ERA submissions,[96] that "in the event that the current Group Proceedings proceeded to judgment, there would be no judgment given that could deny the Objectors the right to defend individually a claim made by the BEN parties on some other ground not contemplated by the current proceedings". Thus, the enforceability clauses cannot and do not detract from the fairness and reasonableness of the settlement; they simply provide certainty for all parties as to where the group members stand.

68 This passage sets out the then understanding of the law with respect to settlements of group proceedings and the effects of their approval under Part 4A of the Supreme Court Act 1986. The position was very much analogous to the position found by the High Court in Timbercorp[97] - noting though the now understood significance of Timbercorp involving as it did a group proceeding which went to judgment rather than a Court approved settlement. The position as understood when the Deed of Settlement was approved has now been found not to be analogous with the position reached by the High Court in Timbercorp, as found by the Court of Appeal in Byrne and Pekell. However, this position does not affect the approval of the Deed of Settlement. The subsequent statement of the law by the Court of Appeal goes only to the implementation and effect of the Court approved Deed of Settlement - not to any critical issues before the Court in the hearing of the settlement approval application.

69 The issues now raised in the present proceedings with respect to the Deed of Settlement in light of the statement of the law by the Court of Appeal in Byrne and Pekell do, as I indicated more generally, go to its implementation and effect rather than to issues with respect to its approval by the Court - or the position the Bank may have taken in that process. In light of these decisions, and for these reasons, I am of the opinion that the Bank's reliance upon and complying with the terms of the Deed of Settlement as approved by the Court cannot, in the present circumstances, be regarded as unconscientious conduct on its part.

70 The Bank denies that Laszczuk and Cairncross each had such a claim but, in any event, it is a claim that has been released under cl 4.1.10 of the Deed of Settlement. For the preceding reasons with respect to the proper construction and operation of the Deed of Settlement, I am of the view that this would be the effect of these provisions of the Deed. In any event, Laszczuk borrowed $62,649.60 to finance his investment in the 2007 Vineyards MIS, and Cairncross borrowed $340,657.20 to finance her investment in the same scheme. Laszczuk and Cairncross both declared that their respective loans were to be applied wholly or predominantly for business purposes. Consequently, they were not "consumers" within the meaning of s 4B(1)(b) of the Trade Practices Act and, consequently, could not bring a linked credit provider claim pursuant to s 73 of that Act.

Invitation to the Court to revisit its decision approving the Deed of Settlement

71 In support of this proposition for which Laszczuk and Cairncross contend, reliance is placed on Re L and B (Children) (care proceedings: power to revise judgment).[98] This decision does not, however, support the proposition for which Laszczuk and Cairncross contend. That case decided that a judge was entitled to reverse her decision at any time before her order was drawn up and perfected. Relevant factors to be considered by the judge in doing so included whether any party had acted upon the decision to their detriment. The Court expressly did not decide whether a judge was entitled to reverse their decision after it had been perfected, either specifically in family and children proceedings or more generally.[99]

72 The law in this respect in Australia remains as stated by French CJ, Kiefel and Bell JJ in NH v Director of Public Prosecutions, where the position was stated as follows:[100]

The inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited. In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall.[101] That does not prevent limited correction of an order after final entry so that the record represents what the court pronounced or intended to pronounce. That aspect of the power is called the "slip rule". However, it does not permit reconsideration or alteration of the substance of the result that was reached and recorded.

73 The orders approving the Deed of Settlement, the settlement of the group proceedings, were made and authenticated in December 2014. Since then, many persons, all of whom are not now before the Court in this proceeding, have acted in reliance upon those orders. For the preceding reasons, there is, in my view, no power in the Court to revisit its decision and, even if there were, no basis to do so - particularly having regard to the very many persons who have relied upon these orders to date.

74 For the preceding reasons, orders will be made in the Laszczuk Proceeding that:

(1) Laszczuk pay the Bank the amount of $189,932.33 and any further interest that should accrue after 11 July 2018; and

(2) Laszczuk pay the Bank's costs on an indemnity basis pursuant to cl 7.1(c) of the Laszczuk Loan Deed.

75 For the preceding reasons, orders will be made in the Cairncross Proceeding that:

(1) Cairncross pay the Bank the amount of $1,051,138.44 and any further interest that should accrue after 11 July 2018; and

(2) Cairncross pay the Bank's costs on an indemnity basis pursuant to cl 7.1(c) of the Cairncross Loan Deed.

[1] Civil Procedure Act 2010 ss 7, 8.

[2] Writ and Statement of Claim (15 April 2016), [3](a)-(d).

[3] Amended Defence and Counterclaim (22 March 2018), [3]; with reference to [2].

[4] Writ and Statement of Claim (15 April 2016), [4].

[5] Amended Defence and Counterclaim (22 March 2018), [4].

[6] Writ and Statement of Claim (15 April 2016), [6].

[7] Writ and Statement of Claim (15 April 2016), [6](i)-(ii).

[8] Writ and Statement of Claim (27 February 2017), [3](a)-(d).

[9] Amended Defence (22 March 2018), [2], referring to Amended Counterclaim (22 March 2018). The paragraph numbering in Cairncross' Amended Counterclaim do not follow on consecutively from her Amended Defence, so they are referred to separately.

[10] Writ and Statement of Claim (27 February 2017), [4].

[11] Amended Defence (22 March 2018), [4].

[12] Writ and Statement of Claim (27 February 2017), [6].

[13] Writ and Statement of Claim (27 February 2017), [6].

[14] [2014] VSCA 327.

[15] Barratt v Rees [2014] VSCA 327, [10]-[18].

[16] Barratt v Rees [2014] VSCA 327, [12].

[17] [1956] VicLawRp 86; [1956] VLR 555; with reference also to O'Brien v O'Brien & Nicholls Pty Ltd [2001] VSC 411, [25].

[18] Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555 at 564; referred to by the Court of Appeal in Barratt v Rees [2014] VSCA 327, [13].

[19] Seachange Management Pty Ltd v Pital Business Pty Ltd [2009] VSCA 139; (2009) 23 VR 396 at 408 [40]; referred to by the Court of Appeal in Barratt v Rees [2014] VSCA 327, [14].

[20] Being the proceedings of which settlement was approved in Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516.

[21] Laszczuk: Exhibit SFS-13 to the Affidavit of Stephen Flamer-Smith (24 July 2017); Cairncross: Exhibit SFS-17 to the Affidavit of Stephen Flamer-Smith (14 August 2017) ("the Deed of Settlement").

[23] Laszczuk: Exhibit SFS-15 to the Supplementary Affidavit of Stephen Flamer-Smith (14 August 2017); Cairncross: Exhibit SFS-15 to the Affidavit of Stephen Flamer-Smith (14 August 2017).

[24] Amended Defence and Counterclaim (22 March 2018), [2].

[25] Amended Counterclaim (22 March 2018), [18].

[26] Laszczuk: Exhibit SFS-14 to the Affidavit of Stephen Flamer-Smith (14 August 2017), 5; Cairncross: Exhibit SFS-2 to the Affidavit of Stephen Flamer-Smith (14 August 2017), 5 ("2007 Vineyards PDS").

[30] Laszczuk: Amended Defence and Counterclaim (22 March 2018), [8]; Cairncross: Amended Defence (22 March 2018), [8].

[31] The Deed of Settlement was approved by the Court under s 33V of the Supreme Court Act 1986 in Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516.

[33] Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516.

[34] [2016] VSCA 214.

[35] [2017] VSCA 51; (2017) 118 ACSR 592.

[36] [2011] VSC 526; (2011) 253 FLR 240; and on appeal to the Court of Appeal in Woodcroft-Brown v Timbercorp Securities Ltd (in liquidation) [2013] VSCA 284; (2013) 96 ACSR 307 and, in turn, to the High Court in Timbercorp Finance Pty Ltd (in liquidation) v Collins (2016) 259 CLR 212.

[38] [2018] VSC 355.

[39] [2018] VSC 357.

[40] Plaintiff's Submissions in Reply (6 July 2018), [7] (which is also the outcome and effect of the decision in Bendigo and Adelaide Bank Limited v Lonergan [2018] VSC 357).

[41] Bendigo and Adelaide Bank Limited v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592.

[42] See ABL Custodian Services Pty Ltd v Freer [2018] VSC 355, [16]-[23].

[43] Laszczuk: Amended Defence and Counterclaim (22 March 2018), [19.1]; Cairncross: Amended Defence (22 March 2018), [19].

[44] Laszczuk: Amended Defence and Counterclaim (22 March 2018), [19.2]; Cairncross: Amended Defence (22 March 2018), [21].

[45] Laszczuk: Amended Defence and Counterclaim (22 March 2018), [19.3]; Cairncross: Amended Defence (22 March 2018), [22].

[46] Laszczuk: Amended Defence and Counterclaim (22 March 2018), [19.4]; Cairncross: Amended Defence (22 March 2018), [23].

[47] Laszczuk: Amended Defence and Counterclaim (22 March 2018), schedule 1; Cairncross: Amended Defence (22 March 2018), [24]-[47].

[48] Laszczuk: Amended Defence and Counterclaim (22 March 2018), schedule 2; Cairncross: Amended Counterclaim (22 March 2018).

[49] See Exhibit SFS-24 to the Third Supplementary Affidavit of Stephen Flamer-Smith (6 July 2018), schedule.

[50] See Exhibit SFS-26 to the Second Supplementary Affidavit of Stephen Flamer-Smith (6 July 2018), schedule.

[51] Laszczuk: Exhibit SFS-2 to the Affidavit of Stephen Flamer-Smith (24 July 2017), being Loan Deed dated 15 June 2007; and Cairncross Exhibit SFS-3 to the Affidavit of Stephen Flamer-Smith (14 August 2017), being Loan Deed the subject of the Cairncross Proceeding (15 June 2007) is in relevantly identical terms.

[52] Exhibit SFS-1 to the Affidavit of Stephen Flamer-Smith (24 July 2017).

[53] See Property Law Act 1969 (WA) s 9(3).

[54] R v Moore; ex parte Myers (1884) 10 VLR 322. See generally Diccon Loxton 'Not Worth the Paper They're not Written on? Executing Documents (Including Deeds) Under Electronic Documentation Platforms' (2017) 91 Australian Law Journal 133 (Part A), and at 205 (Part B).

[55] See also the evidence of Mr John Carlton Young recorded at [87] of the reasons annexed to Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516.

[56] Laszczuk Submissions (29 June 2018); Transcript, 23, 24.

[57] See also the evidence of Mr Young recorded at [87] of the reasons annexed to Clarke (as trustee of the Clarke Family Trust) & ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & ors [2014] VSC 516.

[58] G E Dal Pont, Powers of Attorney (LexisNexis Butterworths, 2nd ed, 2015) [2.2]-[2.7].

[59] Laszczuk: Affidavit of Flamer-Smith (24 July 2017), [12]-[26]; Cairncross: Affidavit of Flamer-Smith (14 August 2017), [13]-[21].

[60] [2018] NSWSC 383, [126].

[61] Bendigo and Adelaide Bank Limited v Howard [2018] NSWSC 383, [127].

[62] Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214, [31].

[63] Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592 at 603 [36].

[64] Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592 at 607 [54].

[65] See Laszczuk Submissions (29 June 2018), [31]-[46].

[66] See below, [63].

[67] [2018] FCA 395.

[68] Dillon v RBS Group [2018] FCA 395, [34]-[62].

[69] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, especially at 235-41 [53], [54], [58], [64], [67], [73], 254 [142], [145].

[70] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212, especially at 250-2, [123], [126], [129], [132].

[71] [1921] HCA 20; (1921) 29 CLR 257.

[72] The Victorian Supreme Court was seized of federal jurisdiction because it was exercising, inter alia, powers under the Corporations Act 2001 and Australian Securities and Investments Commission Act 2001 (expressly) and by purporting to exercise federal rights under an untold number of acts, it was exercising Federal power (impliedly). The Court was also exercising diversity jurisdiction in relation to Laszczuk, a New South Wales resident. Finally s 79 of the Judiciary Act picked up the Victorian Supreme Court Act 1986 (see Rizeq v WA [2017] HCA 23; (2017) 91 ALJR 707) and made it a federal law subject to the Constitution, because the state law set out how the Court could determine a class action case in relation to powers under federal law.

[73] Laszczuk Submissions (29 June 2018), [38].

[74] Re Judiciary & Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265; affirmed in Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 at 541-2.

[75] Re Judiciary & Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265; Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 at 37.

[76] Bruce v Commonwealth Trade Marks Etc [1907] HCA 41; (1907) 4 CLR 1569 at 1571.

[77] Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381 at 386. Hopper v Egg & Egg Pulp Marketing Board (Vic) [1939] HCA 24; (1939) 61 CLR 665 at 677; P H Lane, Lane's Commentary on the Australian Constitution (Law Book Co, 2nd ed, 1997), 516.

[78] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at 235-6 [53]-[54], 254 [142], [145].

[79] Australian Boot Trade Employees' Federation v Commonwealth [1954] HCA 9; (1954) 90 CLR 24 at 50.

[80] Commonwealth v Queensland (1987) 62 ALJR 1. See also Luna Park Ltd v Commonwealth [1923] HCA 49; (1923) 32 CLR 596 at 600.

[81] Bass v Permanent Trustees Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 359 [56].

[82] Laszczuk Submissions (29 June 2018), [42].

[83] Leeth v Commonwealth (1992) 174 CLR 455 at 487. See also James Stellios, Zines's t_he High Court and the Constitution_ (Federation Press, 6th ed, 2015), 300.

[84] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 362.

[85] Leeth v Commonwealth (1992) 174 CLR 455 at 470; Love v A-G [1990] HCA 4; (1990) 169 CLR 307 at 322; Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 580; P H Lane, Lane's Commentary on the Australian Constitution (Law Book Co, 2nd ed, 1997) 464; James Stellios, Zines's t_he High Court and the Constitution_ (Federation Press, 6th ed, 2015), 300.

[86] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 208-9.

[87] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[88] Laszczuk Submissions (29 June 2018), [43].

[89] Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12. Leave to appeal the decision of Edelman J was refused: Dimitrov v Supreme Court of Victoria [2018] HCASL 104. Counsel and solicitor for Laszczuk and Cairncross were counsel and solicitor for the plaintiff in Dimitrov in the High Court.

[90] Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 at 21-2 [37].

[91] Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592 at 606 [51] citing New South Wales v Kable (2013) 252 CLR 118 at 133 [32]; see also at 140-1 [55]-[57].

[92] Cf Laszczuk Submissions (29 June 2018), [47]-[49].

[93] The defendant was one of the objectors represented by ERA Legal.

[94] Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq) [2014] VSC 516, [110]-[129].

[95] [2014] VSC 516, [126].

[96] The Second ERA submissions, [28].

[97] Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212.

[98] [2013] 2 All ER 294; [2013] UKSC 8.

[99] See Re L and B (Children) (care proceedings: power to revise judgment) [2013] UKSC 8; [2013] 2 All ER 294, [32]-[45].

[100] NH v Director of Public Prosecutions [2016] HCA 33; (2016) 90 ALJR 978 at 996 [71]; and see PCCEF v Geelong Football Club [2018] VSC 258.

[101] Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141 at [17]; [2014] HCA 10; 88 ALJR 490 per French CJ, Crennan, Kiefel and Bell JJ citing Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530; [1971] HCA 49; 45 ALJR 598 per Barwick CJ.