Plaintiffs v Defendant

1 This proceeding commenced in December 2013. At that time the first plaintiff was MacFellis Pty Ltd ('MacFellis'). MacFellis is now in liquidation and is no longer a party to the proceeding. The second and third plaintiffs, Heath Allen MacFadyen and Mark Andrew Ellis ('the Plaintiffs') now the only plaintiffs, were directors of MacFellis. They now seek to bring a proceeding against the Bank of Queensland ('the Bank') in their own names for loss that they have personally suffered, apart from any loss suffered by MacFellis which was the manager of a Bank of Queensland branch in Geelong ('the Branch').

2 The Statement of Claim pleaded the execution of an OMB Agency Agreement (the 'initial OMBAA') in 2007, a renewal agreement for a further term of five years in 2012 ('the OMBAA'), the provision of breach notices by the Bank, a dispute notice by the Plaintiffs and an attempt by the Bank to recover possession of the Branch. Alleging breach of various duties, the Plaintiffs sought, amongst other things, injunctive relief restraining the Bank from taking possession of the Branch.

3 On 26 November 2013, Robson J granted interim interlocutory relief.

4 On 5 December 2013, I discharged the interim interlocutory injunction and ordered that the Plaintiffs deliver up possession of the Branch to the Bank. Other directions were made in relation to the filing of pleadings, affidavits and a mediation. By its Senior Counsel, the bank gave an undertaking to continue operating the Branch 'in the ordinary course of business pending the hearing and determination of this proceeding or further order'.

5 Pursuant to the directions made on 5 December 2013 the Plaintiffs filed a Statement of Claim (version one) on 10 December 2013.

6 The mediation ordered on 5 December 2013 was unsuccessful. MacFellis went into liquidation, following the appointment of administrators. Neither the administrators nor the liquidators have decided to pursue the proceeding and the Plaintiffs were given leave to re-plead the case. In fact, the liquidators resolved the proceeding with the Bank.

7 On 16 January 2014, pursuant to leave granted by the Honourable Justice Judd the Plaintiffs filed an Amended Statement of Claim (version two).

8 On 3 March 2014, Almond J made orders dismissing the proceeding by MacFellis as against the Bank with no order as to costs. In relation to the repleaded case by the Plaintiffs, Almond J struck out the Amended Statement of Claim and gave leave to the Plaintiffs to serve a Further Amended Statement of Claim by 4.00pm on 14 April 2014.

9 On 14 April 2014 the Plaintiffs filed a Further Amended Statement of Claim (version three).

10 On 24 June 2014, by consent, I struck out the Further Amended Statement of Claim and ordered the Plaintiffs to provide a proposed Second Further Amended Statement of Claim ('2FASC') to the Bank.

11 On 4 July 2014 the Plaintiffs filed a proposed 2FASC (version four). The proposed 2FASC was opposed by the Bank on the basis that it was defective and fundamentally flawed.

12 On 1 August 2014 the Bank's opposition to the Plaintiffs' application for leave to file and serve the 2FASC was heard before me. I subsequently refused leave to the Plaintiffs to file and serve the 2FASC and made directions for any further proposed pleading to be provided by 15 September 2014.[1]

13 On 16 September 2014, the Bank's solicitors received an email from the Plaintiffs' solicitors attaching the proposed Further Amended Statement of Claim (version five).

14 On 19 September 2014, the Bank's solicitors responded by email raising certain concerns.

15 On 30 September 2014, the Bank's solicitors received an email from the Plaintiffs' solicitors advising of an intention to further amend and seeking an adjournment.

16 On 31 October 2014, the Bank's solicitors sent an email responding to the email dated 30 October and, in that response, referred to a decision of Derham AsJ in proceeding S CI 1505 of 2014. Leave was refused to the Plaintiffs who had sought to file a proposed further amended Statement of Claim in that case.[2]

17 On 6 November 2014 at a directions hearing before me, where the matter was adjourned at the Plaintiffs request, the Plaintiffs provided a working version of the Proposed Further Amended Statement of Claim (version six)

18 On 17 November 2014 the Plaintiffs provided the Proposed Further Amended Statement of Claim (version seven, 'the PFASC'), the subject of the application for leave to further amend the Statement of Claim ('the application').

19 The application was adjourned and was finally heard on 3 December 2014.

20 The Bank submitted that if the application was refused, the proceeding should be stayed permanently or dismissed for want of prosecution. It was submitted that after several attempts it was obvious that the Plaintiffs could not articulate a proper cause of action.

21 The Plaintiffs' outline of submissions dated 2 December 2014 provides a summary of the Plaintiffs' claim. In paragraph 4 it is submitted that the Bank:

1. engaged in misleading and deceptive conduct in breach of the Australian Consumer Law in having represented to them that their branch could become the number one branch in Australia in the Bank's 2012 plan year when in fact the bank was in the course of reviewing its policy for franchise operations and implementing policy changes that were likely to frustrate this goal; and
2. further, or alternatively, the Bank, had in all the circumstances, engaged in unconscionable conduct.

22 The Bank, by letter dated 28 November 2014, contends that the PFASC contains fundamental defects and oppose leave to file it. The Bank's main criticisms are addressed below.

23 After pleading the initial agreement in or about June 2007, appointing MacFellis as owner manager of a branch of the Bank, and a renewal of this agreement for five years in May 2012 (called the 2012 Agreement), the Plaintiffs plead as follows:

1. The Bank induced to MacFadyen and Ellis to cause MacFellis to renew the Initial Agreement by telling them that in the Bank's assessment based on MacFellis' performance during the Bank's 2011 plan year MacFellis, with the Bank's help, could become the number one branch in Australia in the Bank's 2012 plan year ('the 2012 Goal').

The 2012 Goal was made by Larry Heath, the Bank's Regional Manager, Victoria 2 Region during a face-to-face meeting with MacFadyen and Ellis at the Branch during which Mr Heath said to MacFadyen and Ellis to the effect alleged.

14. The Bank thereby expressly, alternatively implicitly, represented that:

(a) The Bank intended to provide MacFellis with the assistance sufficient for the attainment of the 2012 Goal; and

(b) There were no circumstances known to the Bank that hindered the attainment of the 2012 Goal.

1. In fact, the Bank was in the course of reviewing policy settings for its franchise operations and implementing a policy changes likely to frustrate the 2012 Goal that the Bank did not disclose ('the Bank's Policy Change'). These policy changes included:

(a) withdrawing training for staff of MacFellis in about June 2013;

(b) withdrawing regional support for the day to day operation of the Branch by;

1. removing full time assistant regional managers in Victoria in February 2012;

1. removing the property specialist finance role for Victoria in November 2012;

1. removing the debtor finance specialist role in Victoria in May 2013;

1. leaving vacant the Victorian state sales manager position from September 2012 to May 2013; and

1. requiring the state manager's role from May 2013 to cover not only Victoria but also New South Wales, South Australia and Tasmania.

(c) introducing mobile bankers in or about October 2013, in competition with branches;

(d) introducing third party brokers in or about March 2013, in competition with branches;

(e) discontinuing payments of trailing commissions on loans that were in arrears in or about July 2012;

(f) otherwise reducing commissions payable to MacFellis in or about July 2012;

(g) not allowing the Branch to offer solicitors' trust accounts from about September 2013;

(h) altering the conditions to be applied to the approval of loans and other financial products to customers in an arbitrary way that specifically disadvantaged MacFellis, thereby making the Branch uncompetitive in the market place without improving the security of any existing loans. The alterations included:

1. Declining any new customers who were under arrangement with ATO,
2. Reducing from 80% to 70% the proportion of the value of the security that could be applied to secure residential loans above $2 million,
3. Tightening the conditions for approval of all loans and arbitrarily refusing some loans and increasing the interest and fees payable on certain commercial lending products, and
4. Referring a significant number of the Branch's accounts to a separate management unit called AMG thereby stigmatising those accounts and prompting customers to refinance elsewhere.

1. Further, the Bank did not intend to provide MacFellis with the assistance necessary to attain the 2012 Goal.
2. In the circumstances the Bank engaged in trade and commerce that was misleading and deceptive in breach of s.18 of the Australian Consumer Law ('the ACL') contained in Schedule 2 to the Competition and Consumer Act 2010 ('CCA').
3. By reason of Bank's breach of the ACL MacFadyen and Ellis lost the income that they would have earned if they had not entered into the 2012 Agreement, and worked full-time at the Branch, but had instead taken up other opportunities to earn income.

MacFadyen and Ellis would have earned profits in each conducting their own finance companies offering brokerage services to multiple lenders with respect to various financial products, entitling them to upfront commission, mandates and recurring trail commissions from settled loans as follows:

(i) Year One: $250,000 (comprised of $180,000 upfront commission, $50,000 in mandates and $20,000 in trail income)

(ii) Year Two: $400,000 (comprised of $250,000 upfront commission, $90,000 in mandates and $60,000 in trail income)

(iii) Year Three: $500,000 (comprised of $300,000 upfront commission, $75,000 in mandates and $125,000 in trail income)

(iv) Year Four: $600,000 (comprised of 300,000 upfront commission, $100,000 in mandates and $200,000 in trail income)

(v) Year 5+: $750,000 (comprised of $350,000 upfront commission, $100,000 in mandates and $300,000 in trail income)

Full particulars will be provided prior to trial.

24 The Bank submitted that the PFASC does not properly articulate a cause of action and that leave to file the claim should be refused. The main criticisms in summary were as follows:

(a) Paragraph 13 The complaints are as follows:

• First, the pleading does not include reliance by MacFadyen and Ellis in their own right. It was submitted by reference to authority[3] that this was not a case of passive reliance.
• Second, it was submitted that the representation or statement ("telling them") was vague and embarrassing particularly in relation to the words 'could' and 'with the Bank's help'.

(b) Paragraph 14 The complaints are as follows:

• First, the statement in paragraph 13, vague as it is and couched as it is could not give rise to the express representations pleaded in paragraph 14. In other words it was submitted that paragraph 14 cannot possibly derive from paragraph 13 as an express representation.
• Second, to the extent that the representations, at best, can only be implied and assuming reliance, it is not entirely clear how the implied representations derive from the statement.
• Third, accepting the implied representations and reliance it was submitted that paragraph 15 does not make out the falsity of paragraph 14(a) and paragraph 16 does not make out the falsity of paragraph 14(b).

(c) Paragraph 15 The complaints are as follows:

• First, the introductory words "the Bank was in the course of reviewing policy settings" was vague and ambiguous.
• Second, it was not clear why the particular policy changes (para 15(a)-(h)) were likely to or would frustrate or have an impact on the 2012 Goal. These critical matters it was submitted needed to be specifically and properly pleaded.
• Third, most of the policy changes were made after the 2012 Agreement was renewed in May 2012. Reference was made to a number of paragraphs.

(d) Paragraph 16 it was submitted was self-evidently deficient and did not establish the falsity in paragraph 14(b).

(e) Paragraph 18 it was submitted was self-evidently deficient. To the extent that the Plaintiffs would have done something different had they not entered into the 2012 Agreement and that this position represents a loss of opportunity these matters must be properly pleaded and particularised.

25 The Plaintiffs submitted that the claim has been adequately pleaded and any deficiency can be cured by further particulars.

26 I accept the submissions made by the Bank. In my opinion the PFASC, in relation to this claim, is sufficiently and self evidently defective, substantially for the reasons advanced. The defects referred to permeate the pleading and therefore leave should not be granted to the Plaintiffs to file the PFASC. The Court should not embark on the exercise of picking out all of the defective parts of it.[4]

27 As Lockhart J stated in Trade Practices Commission v Australian Iron & Steel Pty Ltd[5] about the pleading in that case:

It fails to plead the material facts, it contains confusing and irrelevant material, it uses ambiguous terms, pleads particulars rather than material facts and asserts conclusions or opinions. Certain of the matters are perfectly well pleaded, but the defective parts are so inextricably intertwined with offending material that an oppressive burden is cast upon the respondents to spell out the alleged cause or causes of action.[6]

28 The claim as pleaded is unfocused and unclear. Clearly it cannot proceed in this form. The claim is fundamentally defective.

29 First, it is difficult to comprehend how the vague and ambiguous statements (or opinions which create other difficulties) give rise to the representations relied on. The representations as alleged were clearly not express and it is hard to see the rational link between the ambiguous and general words used in paragraph 13 and the suggested implied representations in paragraph 14. Further, not only does the word 'could' undermine the suggested implied representations, but the altogether vague and imprecise language does not constitute a representation of the kind required as the basis for a misleading or deceptive conduct claim. Much of the case hinges on 'The 2012 Goal'. To derive this goal from the more general pleaded discussion ('telling them') and elevate it to an implied representation is unwarranted and fanciful. Whatever the effect of paragraph 13 it cannot possibly give rise to the specific pleaded representations in paragraph 14. Finally, the particulars of the suggested representation are, not surprisingly, inadequate.

30 Second, in my opinion and as referred to in Digi-Tech and Ingot reliance on the implied representation (and indeed the fact that they understood the words spoken as the pleaded implied representations) must be pleaded in the circumstances referred to. The absence of such a pleading is, in my view, fatal.[7]

31 Third, the alleged falsity of the representations overwhelmingly post-date the alleged implied representations. Accordingly, the Bank was not in the course of reviewing policy settings as pleaded in para 15. Further, the suggested representations were not false when they were made. It is not pleaded that the Bank had made the decisions at the time of renewal.[8] To the extent that the suggested representations related to future mattes there is no or certainly no adequate pleaded representation of existing fact, capable of being false, and paragraph 16 does not achieve this purpose. In fact, as submitted, paragraph 16 is close to a pleading of fraud. To this extent the pleading is self-evidently deficient. It remains unclear to what extent and how, if at all the various matters identified in paragraph 15 had an impact on the matters referred to in paragraph 14. In other words how did each of these proposed changes affect the 2012 Goal or make it less achievable.

32 Finally, the basis of the claim for loss and damage is inadequate. I refer to paragraphs 32-36 of the Judgment. The proposed claim does not address this issue. It still remains unclear on what basis and to what extent the Plaintiffs have suffered loss. The loss of opportunity claim as pleaded and particularised is self-evidently deficient. The substantial defect is not simply a matter of particulars or evidence. Rather, it is once again a substantial and material failure to properly plead the case. A proper comparison between income earned and income that would have been earned had the agreement not been renewed is required to be pleaded and particularised.

33 It is useful as well to set out the pleading in full. It comprises eight paragraphs as follows:

1. MacFadyen and Ellis refer to and repeat paragraphs 1 to 18 above and the particulars subjoined thereto.
2. The Bank provided MacFadyen and Ellis with the following draft documents in or about March 2012:

(a) Draft 2012 Agreement;

(b) a draft unregulated guarantee and indemnity to be given on behalf of MacFadyen and Ellis;

(c) a general security agreement with MacFellis;

(d) a general security agreement with MacFellis as trustee for the Ellis Family Trust; and

(e) a general security agreement with MacFellis as trustee for the MacFadyen Investment Trust (together "the 2012 Agreement and Security Documents")

1. The Bank was not prepared to negotiate the terms and conditions of the 2012 Agreement and Security Documents with MacFadyen and Ellis.

The 2012 Agreement was a standard form of document prepared by the Bank and was required to be signed by MacFellis, MacFadyen and Ellis. The standard form contract was required to be signed by all Owner Managers and officers of the Bank made it clear that it was not subject to negotiation. At the time of execution in or about March 2012 the Bank did not seek to engage in, or suggest, any process of review or renegotiation of any of the terms of the 2012 Agreement. Instead the Bank granted the reappointment of MacFellis and informed MacFadyen and Ellis of its reappointment at the same time as it required them to sign the 2012 Agreement and Security Documents.

1. The terms contained in clauses 4.6, 3.6(b), 3.6(d), 18.2, 31.2(h), 23.1, 33.4 and 33.5(a) of the 2012 Agreement were not reasonably necessary for the protection for the legitimate interests of the Bank.
2. The Bank and MacFadyen and Ellis were in unequal bargaining positions by reason that:

(a) the Bank was a very substantial public company with many bank branches around the country and MacFadyen and Ellis were, in effect, running a small business being conducted from one branch;

(b) the Bank prepared the 2012 Agreement as well as the BTL facility, the Relevant Guarantee Documents and the BTL Charges and the BTL Securities, as those terms are defined in the statement of claim, which documents were standard documents prepared by the Bank and not the subject of negotiation between the Bank and MacFadyen and Ellis;

(c) by entering into the 2012 Agreement as well as the BTL facility, the Relevant Guarantee Documents and the BTL Charges and the BTL Securities MacFadyen and Ellis had entered into contracts with 5 years of liabilities and potential liabilities;

(d) the Bank had led MacFadyen and Ellis to believe that the conditions upon which MacFellis, MacFadyen and Ellis would be able to conduct the Branch during the term of the 2012 Agreement on the same conditions as they had conducted the Branch during the Initial Agreement.

1. Prior to entry into the 2012 Agreement the Bank without good reason failed to disclose to MacFadyen and Ellis the Bank's Policy Change and/or each of the matters pleaded above at paragraph 15.

25. The conduct referred to in paragraph 24 is in each instance:

(a) conduct in trade or commerce within the meaning of that expression in the CCA and the ACL;

(b) conduct in connection with the supply or possible supply of goods or services by the Bank to another person within the meaning of those expressions in the ACL; and

(c) unconscionable, in breach of:

i. the general law;

ii. s.20 of the ACL; further or alternatively

iii. s.22 of the ACL.

1. By reason of Bank's breach of the ACL MacFadyen and Ellis lost the income that they would have earned if they had not entered into the 2012 Agreement, and worked full-time at the Branch, but had instead taken up other opportunities to earn income.

MacFadyen and Ellis repeat particulars paragraph 18 herein.

34 Again, the Bank contended that the PFASC does not properly articulate a cause of action. The main criticisms were in summary as follows:

(a) Paragraphs 21-23. The Bank submitted that these paragraphs were irrelevant as they had nothing to do with conduct.[9] There is substance in this submission.

(b) Paragraph 25. The Bank submitted that the problems in relation to unconsionability were the same as those in relation to the misleading or deceptive conduct claim.

(c) Paragraph 26. The Bank submitted that the particulars in relation to loss were the same as those in relation to the misleading or deceptive conduct claim.

35 The Plaintiffs submitted that the claim has been adequately pleaded.

36 I accept the submissions made by the Bank. In my opinion the PFASC in relation to this claim is sufficiently and self-evidently defective, substantially for the reasons advanced, and accordingly leave should not be granted to file the PFASC in relation to this claim.

37 In relation to paragraph 24 the Plaintiffs' counsel submitted that the case was one of deliberate concealment. Yet this very serious allegation is not stated or particularised as is required.

38 The Bank submitted that enough was enough and that it should not be put to further expense and inconvenience in circumstances where the Plaintiffs, despite several attempts, have failed to articulate a cause of action. Accordingly, application was made to dismiss the proceeding pursuant to s 63 of the Civil Procedure Act 2010, and the inherent jurisdiction of the court and the Rules of Court.

39 The Plaintiffs correctly contend that such a drastic step should only be taken if it is clear that there is no real question to be tried. In written submissions the Plaintiffs' counsel submitted that the Statement of Claim has only been struck out twice and that this case was not as extreme as those cases such as Knörr (referred to below) relied on by the Bank.

40 In my opinion it is, in the circumstances of this case, entirely appropriate to dismiss the proceeding.

41 In Trau v University of Sydney,[10] Gleeson CJ relevantly stated as follows:

If one sees that a plaintiff's lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client's cause of action then that is often a very good indication that there is no cause of action. The history of the present matter creates the strong impression that such a problem exists ...

42 In Udowenko & Ors v Chief Executive Officer of the Board of Directors of St George Bank - a division of Westpac Banking Corporation & Ors (No 2),[11] Johnson J noted that the question of whether a court should take the exceptional step of dismissing a proceeding for want of prosecution was not necessarily dependent upon how long had passed while the proceeding has been on foot. Nor was it necessarily dependent upon there being a lengthy period of inaction on the part of a party. One can have a case where, although the proceeding has only been on foot for, in that case, some 13 months (and in this case, some 11 months), when one looks at what has happened in that time, one can see that the proceeding has not moved to first base - let alone beyond it.

43 In Knörr v CSIRO & Ors[12] the Court of Appeal said:

1. The power of the Court to dismiss a proceeding for want of prosecution is (as in the case of dismissal for other forms of abuse of process) incidental to the jurisdiction of the Court to hear and determine the proceeding. Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 182; Exell v Exell [1984] VicRp 1; [1984] VR 1, 7-8; Muto v Faul [1980] VicRp 3; [1980] VR 26; Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863. Rule 24.05 preserves the Court's inherent power to dismiss a proceeding for want of prosecution. The power to dismiss a proceeding which is frivolous or vexatious or an abuse of process extends to cases which are not reasonably prosecuted. Muto v Faul [1980] VicRp 3; [1980] VR 26.
2. The power to dismiss proceedings in the interests of the administration of justice on the ground that they have not been reasonably prosecuted, was recently confirmed by this Court in Pham v Ex Parte, Drakopoulos & Ors. [2013] VSCA 43 [43].
3. In AMP General Insurance Ltd v Victorian WorkCover Authority [2006] VSCA 236; (2006) 15 VR 175 the Court of Appeal held:

...the inherent power to stay or dismiss for want of prosecution is but one aspect of 'the incidental powers which all courts have to prevent abuses of process'. Exactly the same point was made by the High Court majority in Batistatos v Roads and Traffic Authority (NSW) [(2006) [2006] HCA 27; 226 CLR 256]. ... Whether the complaint advanced by the defendant relies on the general principles of abuse of process or the more specific category of want of prosecution, the criterion is the same. Is there a substantial risk that the defendant will be unable to obtain a fair trial in the circumstances of the case? ... Ibid [40] (Maxwell P and Neave JA).

44 In my opinion it is in the interests of justice that the proceeding be dismissed. The PFASC is as defective as its multiple predecessors. The fact that it is considerably shorter has not improved the clarity and precision required in all pleadings but in particular a pleading claiming misleading or deceptive conduct and unconscionable conduct. It is not enough to expose unfairness or general and wide ranging conduct. Rather, each element of the causes of action needs to be properly pleaded and particularised. Despite several attempts this has not happened.

45 The Bank has been put to great expense over the year in dealing with inadequate version after version of the statement of claim. In my view anything beyond seven versions over the period of a year is unreasonable and unfair and accordingly not in the interests of justice. I have gone back and perused all the different versions. All are fundamentally flawed and it is clear enough that the Plaintiffs are unable to plead a cause of action. Although version six did address some of the concerns apparent in version seven, it was deficient in other major respects and it is not surprising that leave to amend was not sought in relation to this version.

46 The right to seek relief from a Court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic) ('CPA'). The Plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the Plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. To permit the Plaintiffs to have yet 'another go' would not be in the interests of justice and would not be consistent with the overarching purpose set out in s 7 of the CPA which requires 'the just, efficient, timely and cost effective resolution of the real issues in dispute'.

47 Accordingly, it is in this case appropriate to dismiss the proceeding under both s 63 of the CPA and Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). I would also in the circumstances dismiss the proceeding for want of prosecution pursuant to the inherent jurisdiction of the Court.

48 I will hear from the parties as to the precise form of order and costs.

[1] MacFayden & Ellis v Bank of Queensland [2014] VSC 394 (22 August 2014) ('the Judgment').

[2] 767 Investments Pty Ltd v Bank of Queensland (Unreported, Supreme Court of Victoria, Derham AsJ, 26 September 2014).

[3] Digi-Tech (Australia) Ltd v Brand & Ors (2004) 62 IPR 184; (2004) NSWCA 58 ('Digi-Tech'); Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) NSWCA 206 ('Ingot').

[4] Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305, 323; [1990] FCA 23; 92 ALR 395, 413 (Lockhart J); Gunns Ltd v Marr [2005] VSC 251 (18 July 2005) [58] (Bongiorno J).

[5] [1990] FCA 23; (1990) 22 FCR 305, 323; [1990] FCA 23; (1990) 92 ALR 395, 413 (Lockhart J).

[7] Reliance was pleaded in version 6 but was inexplicably dropped from the PFASC, which in any event had serious other difficulties.

[8] A previous version had pleaded this without the necessary particulars and was struck out.

[9] Reference was made to Traderight (NSW) Pty Ltd & Ors v Bank of Queensland Ltd [2014] NSWSC 55 at 769.

[10] (1989) 34 IR 466, 475 (Gleeson CJ).

[11] [2011] NSWSC 1122 (15 September 2011).

[12] [2014] VSCA 84 (12 May 2014) ('Knörr').