These proceedings were commenced on 17 April 2021 by the filing of a Statement of Claim. The plaintiff is Ms Patricia Poulos. The only defendant is Australia and New Zealand Banking Group Limited ("ANZ").
The Statement of Claim contained a notice of listing for a directions hearing to take place on 21 May 2021. However, prior to that date the plaintiff filed an Amended Statement of Claim on 13 May 2021.
On 11 June 2021 the defendant filed a Notice of Motion seeking orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 13.4 and/or 14.28 for dismissal of the proceedings or the striking out of the Amended Statement of Claim. Dismissal of the proceedings or the striking out of the pleading is sought on the basis:
1. that the Amended Statement of Claim fails to disclose a reasonable cause of action against the defendant;
2. that the proceedings are frivolous or vexatious; or
3. that the proceedings are an abuse of the process of the Court.
The Notice of Motion is supported by the affidavit of Justin Bates, solicitor, sworn on 10 June 2021, and the exhibit to that affidavit. The defendant also tendered some documents concerned with the title histories of the two properties that are the focus of the Amended Statement of Claim. In opposing the motion the plaintiff relies upon her affidavit sworn on 30 June 2021, and the exhibit to that affidavit.
The parties filed written submissions on 9 July 2021 (defendant) and 26 July 2021 (plaintiff) pursuant to directions made by the Court. The plaintiff annexed three documents to her submissions. Those documents have been treated as forming part of the evidence before the Court on the motion. In addition to the written submissions, the Court has received and considered further oral submissions made in Court today in the course of the hearing of the motion. The hearing was conducted by telephone.
Before proceeding to deal with the Amended Statement of Claim the following matters should be recorded by way of background. The first of the properties the subject of the pleading is a property at 52 Taloombi Street, South Cronulla. This property (the Cronulla property) was the subject of a judgment given by this Court (Sully J) on 28 November 1989 in the matter of Commonwealth Bank of Australia v Hacide Pty Ltd. It appears from the judgment that Hacide Pty Ltd was the registered proprietor of the property, and that Ms Poulos, the present plaintiff, lived in the property with her husband and family. The Commonwealth Bank of Australia was successful in obtaining a judgment for possession of the property. An appeal against the judgment of Sully J was dismissed on 1 August 1991 (see Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134).
The second of the properties the subject of the pleading is a property at 78-80 Bellingarra Road, Miranda. This property (the Miranda property) was the subject of a judgment given by this Court (Needham J) on 8 December 1988 in the matter of Elders Lensworth Finance Limited v Glenwood Investments Pte Ltd. It appears that the present plaintiff and her husband were the second defendants in those proceedings. Judgment was entered in favour of the first plaintiff in those proceedings against the defendants, in a sum in excess of $2 million. The second defendants were ordered to give up possession of eight properties, including the Miranda property. It can be inferred that Ms Poulos and her husband were the owners of the Miranda property.
The present defendant, ANZ, is not referred to in either the judgment of Sully J or the judgment of Needham J. There is nothing to suggest that ANZ was a party to either of the proceedings. There is, however, evidence that ANZ held mortgages over the two properties in the period from about the early 1980s to the mid-1980s.
The Amended Statement of Claim is a lengthy document, running to almost twenty-five pages. I have spent a considerable amount of time reading the document and trying to understand it. The principal relief sought consists of orders to "reinstate the plaintiff in residence" at the Cronulla property, and "reinstate the plaintiff in" the Miranda property. These prayers for relief include the assertions that ANZ fraudulently procured and disposed of the properties on 15 August 1984 to the Commonwealth Bank of Australia and "Elliott" respectively. The reference to Elliott may be intended to refer to a company in what Needham J referred to in his judgment as the Elders Group. The assertion is also made in these prayers that ANZ intentionally concealed from the plaintiff its dealings with the properties.
There are also prayers for relief, said to be in the alternative to the above mentioned, for orders to set aside the judgments of Sully J and Needham J. In each case, the judgments are said to have been obtained as a result of "false, misleading and deceitful evidence", and the intentional concealment of the procurement of the property from ANZ at a settlement that occurred on 15 August 1984. The assertion is also made that ANZ intentionally concealed its dealings with the properties and that, had those dealings been known, there would have been a different outcome in the proceedings.
There is also a prayer for relief for damages.
Under the heading "Pleading and Particulars" there are 34 paragraphs which may be intended to serve as the pleadings, and under the sub-heading "Particulars" there follows a further 13 paragraphs, many of which are broken down into numerous sub-paragraphs. There is then a further section under the sub-heading "Summary," which consists of 49 paragraphs. Finally, there is a section which apparently sets out the "authorities" upon which the plaintiff relies. These authorities include s 141 of the Real Property Act 1900 (NSW) which provides that certain fraudulent or deceptive conduct amounts to an indictable offence, and numerous other statutory provisions for criminal offences. There are also references to case law in relation to criminal sentencing, some textbooks (including in relation to the equitable jurisdiction to set aside judgments for fraud), and a list of authorities.
In relation to the 34 paragraphs which may be intended to serve as the pleadings I note the following (which is not intended to be a complete summary of those paragraphs):
1. there are numerous allegations that the defendant colluded with Elliott and Commonwealth Bank of Australia to defraud the plaintiff of money, assets and income (see, for example, paragraphs 2, 4, 19 and 22);
2. it is alleged that ANZ fraudulently procured and disposed of the two properties (see, for example, paragraph 7);
3. it is alleged that ANZ intentionally concealed certain dealings it had with the properties (see, for example, paragraph 9);
4. it is alleged that in 1983 ANZ fraudulently obtained control of the Cronulla property (see paragraphs 13 and 18);
5. there are various allegations that ANZ made false and misleading statements (see, for example, paragraphs 14 to 16);
6. it is alleged that ANZ disposed of the two properties on 15 August 1984, not at a settlement on 3 May 1985, which is said to be a fictitious settlement date (see paragraphs 22 and 23); and
7. there are numerous statements to the effect that "the fresh discovery of evidence" reveals certain matters. These are likely references to the five documents that are listed at paragraph 22(1) of the Summary. These documents include two discharge of mortgage forms, dated 3 May 1985, in respect of mortgages held by ANZ over the two properties.
UCPR r 14.28(1) provides that the Court may order that the whole or any part of a pleading be struck out if the pleading:
1. discloses no reasonable cause of action; or
2. has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
3. is otherwise an abuse of the process of the Court.
A useful summary of the general principles concerning pleadings can be found in the decision of Johnson J in McGuirk v University of New South Wales [2009] NSWSC 1424 at [21] to [39].
For the following reasons it is my opinion that it is appropriate to exercise the power under UCPR r 14.28 to order that the Amended Statement of Claim be wholly struck out:
As I have said, I have spent a considerable amount of time reading the Amended Statement of Claim and trying to understand it. The document as a whole may be described as prolix and repetitive, and confusing. It is replete with statements that are conclusionary in form, and it is difficult to identify what material facts are relied upon. Many of the paragraphs contain multiple contentions or conclusions, contrary to the requirements of UCPR r 14.6. The document contains material that seems to be directed to persons or entities other than the defendant (such as the Commonwealth Bank of Australia and Elliott) and other material that seems to be entirely irrelevant, such as the reference to the law of criminal sentencing. The overall structure of the document, which is divided into various sections, the relationship between which is unclear, adds further confusion to the picture presented.
In my view it is plain that the Amended Statement of Claim has a tendency to cause prejudice, embarrassment and delay. It is not possible for the defendant to discern with any clarity the factual matters that are alleged to constitute the cause or causes of action brought against it. As submitted by the defendant, quite how it is said to have procured the disposal of the properties in a fraudulent way, or colluded with the Commonwealth Bank of Australia, or what the fraudulent conduct even is, is not explained in the Amended Statement of Claim.
The Amended Statement of Claim fails to perform the essential function of a pleading, being to state with sufficient clarity the case that must be met by a defendant. It is insufficiently clear and comprehensible to enable the defendant to plead a response to it (unlike the pleading recently considered in the Court of Appeal in Rock v Henderson [2021] NSWCA 155 at [10]). This deficiency is especially acute in circumstances where allegations of fraud are concerned. It is a well-established principle that fraud must be pleaded distinctly and with particularity (see, for example, Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [46]).
The Amended Statement of Claim also suffers from defects which lead me to conclude that it discloses no reasonable cause of action against the defendant. In relation to the principal relief claimed, namely, "reinstatement" of the plaintiff to the two properties, assuming that these are intended to be claims in the nature of claims for possession, they run into the problem that there is no suggestion in the pleading that the defendant is in possession of either property, or in a position to yield up possession to the plaintiff. So far as the evidence goes, it seems that the defendant has no present registered interest in either property.
In relation to the alternative relief to set aside the judgments of Sully and Needham JJ, the defendant was not a party to those proceedings, and is not a party to those judgments. None of the parties to those proceedings are defendants in the present case. However, in order to set aside a judgment for fraud, it must be shown that the successful party was responsible for the fraud which taints the judgment under challenge (see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539.) I am not aware of any authority to the effect that a judgment can be set aside for fraud in an action brought only against a defendant who was not a party to the proceedings in which the judgment was given. As a matter of general principle, I do not think that such an action can be brought.
As for the claim for damages, the Amended Statement of Claim fails to identify with any clarity the wrongful conduct alleged. It is not possible to discern precisely what acts or omissions of the defendant are relied upon, or the circumstances in which such acts or omissions are wrongful as against the plaintiff. I would add that neither is it clear what loss or damage is alleged to have been suffered by the plaintiff herself as a result of any wrongful conduct on the part of the defendant. Neither is it clear how any such loss or damage is alleged to have arisen. These matters assume particular significance in the present case as questions of limitation of action loom large, given that it appears that complaint is sought to be made about conduct of the defendant that occurred more than 30 years before the commencement of these proceedings.
In circumstances where the Amended Statement of Claim discloses no reasonable cause of action against the defendant, and has a tendency to cause prejudice, embarrassment and delay in the proceedings, it is open to the Court to strike out the pleading. I propose to make such an order. It would not be reasonable or in the interests of justice to require the defendant to answer such a pleading. It would also be open to the Court to dismiss the proceedings pursuant to UCPR r 13.4(1)(b).
The defendant submitted that if the Amended Statement of Claim was struck out the plaintiff should not be given leave to replead. It was submitted that the plaintiff has had considerable time to formulate her claim against ANZ, indeed some 36 years. It was submitted that she is not a stranger to litigation, and the requirements of pleading. It was pointed out that she has already had two attempts to plead her claim, and that the Amended Statement of Claim has not resulted in any improvement, and to the contrary has only added to the length of the claim.
There is some force in those submissions. There is good reason to doubt that the plaintiff, if given another opportunity to formulate a proper pleading, will be able to produce one that complies with the requirements for such, and discloses a reasonable cause of action.
The plaintiff is self-represented in these proceedings. She has not stated that she has obtained or will obtain legal representation, although she has stated that she will endeavour to obtain the services of a lawyer. The defendant points out that the plaintiff herself has said that she has had difficulty in obtaining legal representation. The defendant submitted that there was really no utility in allowing a further opportunity to the plaintiff to plead her case. However, partly in recognition of the plaintiff's status as a litigant in person, I consider that, on balance, she ought be given a further opportunity to produce an acceptable pleading against the defendant. She will at least have the benefit of this judgment insofar as it identifies defects in the present pleading. That is to say, I think that the Court should not at this stage proceed to dismiss the proceedings on the basis that no reasonable cause of action is disclosed, but afford a further opportunity to the plaintiff to bring forward a claim in a proper manner.
I am conscious that one of the purposes of UCPR r 13.4 is to save a defendant from the cost, delay and vexation in having to defend clearly untenable proceedings (see Ugur v Attorney-General [2019] NSWCA 86 at [70]). Nevertheless, I am prepared to afford the plaintiff another chance, which should realistically be considered to be a final chance, to formulate a pleading which is in an acceptable form, and which discloses a reasonable cause of action against the defendant.
I urge the plaintiff to seek the assistance of a solicitor, without delay. It is not appropriate that these proceedings, which currently do not disclose a reasonable cause of action, be delayed for a lengthy period while an attempt is made to formulate a properly pleaded case. In my opinion, having regard to the fact that the proceedings were commenced this year, so long after the complained events took place, and the fact that there have already been two attempts to plead the case, any proposed Further Amended Statement of Claim must be served upon the defendant by no later than 1 October 2021.
The Court will therefore order, pursuant to UCPR r 14.28, that the Amended Statement of Claim be wholly struck out. I will direct that the plaintiff serve and provide to my Associate any proposed form of Further Amended Statement of Claim against the defendant by no later than 1 October 2021. The matter will be listed for further directions on 8 October 2021. At that time the defendant can indicate whether it consents to the filing of any proposed form of Further Amended Statement of Claim, or whether it presses for dismissal of the proceedings. In these circumstances, it is appropriate to keep the defendant's Notice of Motion filed on 11 June 2021 on foot. It will be listed for directions also on 8 October 2021.
Notwithstanding that the Notice of Motion is not to be finally disposed of today, there seems to be no good reason why the costs of the Notice of Motion to date ought not be dealt with. In my opinion, it is clear that costs should follow the event. Accordingly, the Court will order that the plaintiff pay the defendant's costs to date in respect of the Notice of Motion filed on 11 June 2021.
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Decision last updated: 04 August 2021