Provident Capital Limited (receivers and managers appointed) (in liquidation) v Andrew Boyd French

Legal principles

1. The relevant rule of the Uniform Civil Procedure Rules 2005 (Rules) is r 36.15(1), which provides that: A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made irregularly, illegally or against good faith.
2. It is necessary to look at the whole of the relevant circumstances: Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [120].
3. In Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190 (Perpetual Trustees v Heperu) it was said: 32 In Burrell v The Queen (2008) 238 CLR 218 at 223 [15] Gummow ACJ, Hayne J, Heydon J, Crennan J and Kiefel J said: "[15] … 'A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.' That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded." (Footnote omitted) 33 The court should be slow to adopt a construction of s 56(3) and s 63(1) which would drastically subvert these fundamental principles.
4. In Coles v Burke (1987) 10 NSWLR 429, Kirby P (with whom Samuels and McHugh JJA agreed) said (at 437): The genus which is involved in the phrase "irregularly, illegally or against good faith" appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r 12A provides. Here, there was no such lack of good faith on the part of the claimants. The signing of the judgment was made in accordance with the authority of the order earlier consented to and after a warning had been given by the letter to which I have referred.
5. Irregularity is concerned with the steps taken to have judgment given or orders entered of made: see Perpetual Trustees v Heperu at [16].
6. In Kendell v Carnegie (2006) 68 NSWLR 193 Bryson JA said at [60]: There is not and could not, I would think, ever be an exhaustive judicial definition of what is against good faith; only very broad limits are set by proceeding by analogy from circumstances in which judicial remedies are based on good faith, unconscionability, or other concepts closely related to good faith. I would include the passage cited from Taylor v Johnson among the many conceivably available sources from which to proceed by analogy. "Against good faith" is an expression which requires the impeachment of the intention or behaviour of the person whose good faith is impugned.
7. In Industry Funds Management (Nominees 2) Pty Ltd v Panagopolous [2013] NSWSC 868 at [39], I considered that if one party that consents to a judgment makes a mistake and the opposing side behaves innocently, then there is no basis to set aside a judgment on the basis of an absence of good faith.
8. An allegation of fraud in the circumstances of an application to set aside a consent judgment is not properly brought by a notice of motion: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697. Further, for a judgment to be set aside on the grounds of fraud, evidence must be led which permits an affirmative finding of the fraud alleged: McDonald v McDonald (1965) 113 CLR 529.

Contentions of the parties

1. Mr French acknowledges that he signed the consent judgment. He says he signed it on the understanding that he would cease to pursue any claim he had against Provident and Provident would allow him time in order to pursue Dr Bremner.
2. Mr French says at the time he signed the consent judgment service on Dr Bremner had been attempted twice and he had been advised that the likely outcome was a default judgment against Dr Bremner. Mr French submits that a motion seeking default judgment was filed and Bayard Lawyers instructed a real estate agent to view and value properties belonging to Dr Bremner.
3. Mr French says that the difference between March and the situation at the current point in time time is that Dr Bremner has now been successfully served. Mr French says that Dr Bremner will be appearing before the Court in early 2016 and at that point "all questions will be answered".
4. Mr French asks that, if the Court does not set aside the consent judgment, that the Court stay the writ of possession until the claims against Dr Bremner and other are determined.
5. Mr French submits that he entered into the consent judgment believing that it would be possible to proceed with the sale of properties belonging to Dr Bremner. In actual fact, Mr French says, that could not have been done within 12 months of him obtaining default judgment.
6. Mr French now submits that he was not given appropriate advice. He submits that he should have been allowed a period of eighteen months, which would have been a realistic timeframe having regard to the need to obtain default judgment against Dr Bremner. Mr French says both his lawyers and the lawyers for Provident were aware of his financial position. He also says he was the subject of pressure, as I understand it both direct and indirect, to sign the Deed.
7. Mr French submits that both Ms Bayard and the lawyers for Provident misled him into entering into the Deed and agreeing to consent judgment in circumstances where they should have known it was "legally impossible to achieve".
8. On the other hand, Provident submits that Mr French has not shown the "sufficient cause" required before the Court will set aside a consent judgment. In particular, Provident submits that there was no misconduct or dishonourable conduct by Provident or its legal representatives in the course of obtaining the consent judgment.
9. Provident submits that the consent judgment is not irregular within the meaning of r 36.15 of the Rules because no allegation is made that Provident has failed to comply with the Rules, there is no evidence of irregularity in the steps taken to have the consent judgment entered, and there is no evidence that the consent judgment was entered for more than is due.
10. Provident says that if it is admissible, Mr French's evidence at [19] of his affidavit sworn 12 November 2015 concerning the interest rate and rollover fees does not substantiate any allegation that the consent judgment was entered for more than is due. In any event, Provident seeks to rely on the affidavit of Mr Edds of 17 November 2015 as conclusive evidence of the amount due in respect of the consent judgment.
11. Provident says that there is no evidence that Provident did not enter the consent judgment in good faith. In particular, Provident says: 1. There is no evidence of misconduct or dishonourable conduct by Provident in the course of obtaining the consent judgment; and 2. Before Mr French entered into the consent judgment he: 1. Received independent legal advice in relation to the nature and effect of the Deed and the giving of the consent judgment; 2. Expressly acknowledged in the Deed that he had obtained independent legal advice in relation to the nature and effect of the Deed; 3. Negotiated the terms of the Deed in the presence of his lawyer at the settlement conference at Henry Davis York; 4. Instigated the settlement discussions on 3 March 2015; 5. Appeared, although without representation, before Kunc J on 27 February 2015; and 6. Conducted the defence of the proceedings by his lawyers, Bayard Lawyers, when the proceedings had been on foot since April 2014.
12. Provident points to Mr French appearing on 27 February 2015 as important because they say it allowed Mr French to form a considered view as to his likely prospects of resisting the summary judgment application and having judgment entered against him on 4 March 2015.
13. In addressing [19] of Mr French's affidavit of 12 November 2015, Provident says that Mr Hynes and Mr Catchpoole both "strongly deny" the allegations made by Mr French. Provident says the allegations are baseless.
14. Provident says the nature of the allegations and their timing should be seen in the context of the predicament Mr French found himself in after Provident gave him, in effect, an eight month period to obtain the funds to repay his debt to Provident. Provident says that opportunity was dependent upon Mr French achieving success in his pursuit of Dr Bremner as a cross-defendant in the proceedings within the forbearance period provided for in the Deed. Provident says that, through no fault of Provident's, Mr French has not been able to achieve that success.

Mr French

1. Mr French, who appeared unrepresented but in company with his wife, swore a number of affidavits and was cross examined.
2. There are aspects of his evidence which I accept, but there are aspects I simply do not accept.
3. His affidavit of 12 November 2015 sets out (as he sees it) the relevant procedural history of the matter.
4. He asserts that he had an arrangement with his former business partner, Dr Bremner, whereby Dr Bremner is alleged to have "bought" Mr French's debt from Provident. Mr French asserted this was in consideration for Dr Bremner receiving a percentage interest in an invention created by Mr French. In addition, Mr French asserts Provident had agreed to an assignment of the debt or part of the debt.
5. As to the alleged arrangement with Dr Bremner, there is insufficient detail before the Court such as would enable any findings as to the precise nature of any such arrangement. I am certainly prepared to accept that an arrangement of some sort exists or existed by reason of the fact that the evidence suggests Dr Bremner made two payments towards Mr French's indebtedness (one of $250,397.89 and another of $349,612.11), both seemingly on 6 April 2009. Both amounts, totalling some $600,000, were taken into account in reducing Mr French's indebtedness to Provident.
6. Whatever other repayments (if any) were made by either Mr French and/or Dr Bremner, it is clear that no repayments have been made since these proceedings were commenced. The debt has remained in Mr French's name solely. He was the sole borrower.
7. Although Provident at one point had a deed of assignment drawn up, it was never executed, and the state of the evidence would suggest no legal assignment of the debt has ever occurred. The proposed draft deed (attachment C, to Mr French's affidavit of 18 November 2015) presupposed an assignment of the entire indebtedness (recital E). The precise identity of the assignee is not clear, but as I have said it appears Dr Bremner did pay $600,000 described as a "deposit" in the deed. The assignment was, it seems, however, contingent upon the full amount of the debt being paid, which has never occurred.
8. The relationship between Mr French and Dr Bremner is or appears to be a somewhat tangled one. Mr French, for example, asserted from the bar table that part of whatever the arrangement was, in fact, between him and Dr Bremner involved the transfer of title in a number of farms in Victoria into Mr French's name, which is where Mr French and his wife presently live. Working out whether Dr Bremner wronged Mr French or, indeed, whether it was the other way around may be a difficult task.
9. That to one side, Mr French in his affidavit evidence makes various allegations of impropriety on the part of certain former officers of Provident. I should say there is no basis in the evidence before me such as would support those allegations. In particular, as I understand it Mr French alleges there was some improper relationship between Provident and Dr Bremner. There is, however, no basis, as I have said, in the evidence for such an allegation.
10. In addition, Mr French asserted that whilst he signed the Deed it was not explained to him, his solicitor did not take him through it, and he could not understand it (see his affidavit of 12 November 2015, T10/20-45, and T12/25-41). I reject those assertions. As the evidence discloses he was given, in my view, a competent and careful explanation of the document in a private conference with his former solicitor Ms Bayard on 3 March 2015, prior to him signing it.
11. Mr French asserts that at a meeting over coffee at the Barracks Café on 27 February 2015 he was pressured in some unconscionable or improper way, as I understand it, to accept that Provident (including its solicitor, Mr Catchpoole, and its counsel, Mr Hynes) would show him "no mercy" and would make life as it were unbearable for him unless he in effect agreed to a consent judgment. Again I reject his assertion. There is no credible evidence in support of such an assertion.
12. Mr French was cross examined. He agreed he signed the relevant deed on 3 March 2015 at the offices of Henry Davis York. He also agreed he was in company with and was represented by his lawyer (Ms Bayard) at the time (T24/20-25).
13. Mr French also agreed he wanted Ms Bayard present to give him legal advice on the settlement offer (T25/35-39).
14. Although Mr French agreed he was in a private meeting room with his solicitor and discussed the terms of the offer, he said he did so with a "confused and clouded mind" (T33/40). I am simply unable to accept that evidence. I consider he just made that evidence up on the spot.
15. He agreed that as a result of the negotiations between himself and his lawyer he obtained five months extra in which to pay the debt, over and above what Provident was initially prepared to offer (T34/50).
16. Mr French was understandably somewhat defensive in a number of answers he gave. However, giving due allowance for the obvious stress and anxiety which many lay persons experience when involved in litigation, Mr French did not impress me favourably as a witness.
17. He attempted on numerous occasions to criticise and trivialise his former lawyer and the advice she provided him with, especially on 3 March 2015. That was frankly an unacceptable approach for him to take.
18. I am satisfied that after the hearing commenced before Kunc J, Mr French assessed the situation and was concerned to reach an accommodation with Provident. Unsurprisingly, Provident insisted on (if possible) a lawyer being present on 3 March 2015 when they were all to discuss settlement.
19. I am satisfied, as I have said, that Mr French relied upon Ms Bayard, who discussed the various aspects of the proposed arrangement carefully and thoroughly with him. His attempts to deny that or suggest otherwise I consider to be quite dishonest. I perfectly understand Mr French's problem. He does not want to give up a property or properties he holds dear, but he must face the harsh reality about what it is he agreed to.

Mr Catchpoole

1. Mr Catchpoole is a solicitor at Henry Davis York and has had carriage of the matter. He swore two affidavits (one 16 November 2015 and the other 18 November 2015).
2. In his first affidavit he sets out the procedural history which is largely, if not entirely, uncontroversial.
3. He also outlined his dealings (which I accept entirely) with Ms Bayard, and in particular a discussion they had on 26 February 2015. It was in this discussion, where Ms Bayard was seeking some indulgence for Mr French, that the question of Provident's willingness to contemplate a period of forbearance arose. Mr Catchpoole mentioned that a consent judgment would be a condition precedent.
4. Mr Catchpoole also gave evidence of attending before Kunc J on 27 February 2015 when Mr French was unrepresented. Ms Bayard was apparently ill and unable to attend. He agreed that during an adjournment he and Mr Hynes and Mr French had coffee. Although he asserts (which evidence I again accept) that he told Mr French they could not discuss the case, Mr French insisted on doing so. Mr Catchpoole says, which again I accept, that Provident wished to pursue its claim but he (Mr Catchpoole) had discussed a proposal with Mr French's solicitor. It was made clear, I am satisfied, to Mr French by Mr Catchpoole and, for that matter, by Mr Hynes that Mr French would need to get Ms Bayard or some other solicitor involved.
5. Mr Catchpoole does accept that he did say in substance that if there was a forbearance agreement and Mr French could not get judgment against Dr Bremner, then Provident would proceed and take enforcement action and, if that happened the consequences would be severe for Mr French. If I may say so that would be the inevitable consequence of any default.
6. The thrust of the cross examination of Mr Catchpoole by Mr French was to suggest that in some way Mr Catchpoole had pressured Mr French into believing that if he did not agree with Provident's demands he would be shown "no mercy". Having heard Mr Catchpoole give his evidence I am satisfied that is not what happened.
7. The true position was, in my view, that on 27 February 2015 Mr French actively sought an opportunity to ingratiate himself with Mr Catchpoole and, for that matter, Mr Hynes, to explore some means of extricating himself from the predicament he was in. He no doubt wanted to place his side of the story in a favourable light, ensuring that those who heard it accepted his dilemma was entirely the fault of Dr Bremner.
8. I accept unequivocally that Mr Catchpoole, realising the obvious difficulties of dealing with an unrepresented litigant, was at pains, perhaps to the point of over emphasis, to impress upon Mr French the need for him to be independently represented at any settlement discussions.
9. On 2 March 2015 Mr Catchpoole received an email from Ms Bayard apologising for her absence on 27 February 2015, and asking whether some compromise was possible.
10. Mr French then personally made contact with Mr Catchpoole on 3 March 2015 indicating that he wanted to pursue settlement discussions.
11. Mr Catchpoole then describes in some little detail the events of 3 March 2015. I accept his account of those matters.
12. In summary, I should say Mr Catchpoole impressed me as a careful and competent witness and lawyer and I accept his evidence in its entirety.

Mr Hynes

1. Mr Hynes is a barrister. He was retained by Provident to appear before Justice Kunc on 27 February.
2. Although there are differences in the accounts given concerning his and Mr Catchpoole's discussions, for example, with Mr French on 27 February 2015, I am not satisfied those differences are material.
3. Mr Hynes corroborated much of the substance if not the detail of Mr Catchpoole's evidence. Importantly he said, which I accept, that he sought to impress upon Mr French the need for the latter to obtain and/or maintain independent legal representation.
4. Mr Hynes also gave evidence about his attendance at the settlement conference on 3 March 2015 and his evidence was relevantly not challenged. I accept his evidence on that matter.
5. In cross examination Mr French pursued the theme, as previously with Mr Catchpoole, to the effect that Mr Hynes was party to some attempt to in effect pressure Mr French by indicating he would be shown "no mercy" unless he co-operated with Provident. I am satisfied Mr Hynes acted entirely appropriately on both 27 February and 3 March 2015. Of course, he was at all times charged with looking after Provident's interests, but I am satisfied he was entirely frank with Mr French. I am satisfied he conducted himself in an entirely proper way and I reject any assertion to the contrary.
6. Mr Hynes, sensibly, on 27 February 2015 and again on 3 March 2015 in particular, sought to explore a cordial resolution of the problem in his client's interest - no more, no less. I am satisfied that manifested itself in a courteous, professional, respectful approach to an unrepresented person. There is nothing that I can identify on Mr Hynes's part which goes beyond him fairly and openly engaging with Mr French in an attempt to resolve matters in a timely and cost efficient manner.

Mr Edds

1. Mr Edds is a director of PPB Advisory who are the receivers of Provident. He swore an affidavit dated 17 November 2015.
2. He chronicled the history of the loan facility with Mr French. He asserted, which is uncontroversial, that as at 3 March 2015 the amount owing by the defendant was $3,320,987.83 (which was the amount contained in the form of proposed consent judgment and annexed to the Deed).
3. He also asserted, which is uncontroversial, that no money has been paid by anyone in reduction of the debt since the commencement of proceedings.
4. Mr Edds was cross examined. It was a rather confused cross examination. What did emerge with clarity is that in 2009 Dr Bremner did pay $600,000 towards Mr French's loan, and credit was given for that amount.

Ms Bayard

1. Ms Bayard is Mr French's former solicitor. In her affidavit of 18 November 2015 she stated she was retained by Mr French from about 2 May 2014 to 4 November 2015.
2. She stated that on 2 March 2015 she sent an email to Mr Catchpoole asking whether Provident would be agreeable to entering a compromise regarding a payment to discharge Mr French's mortgage and if so, on what terms.
3. After she received Mr Catchpoole's response setting out the terms and conditions required by Provident she, shortly after receiving it, forwarded it to Mr French.
4. She stated (which evidence is corroborated by all concerned) that she attended the offices of Henry Davis York from 2pm until 6.30pm on 3 March 2015 in company with Mr French.
5. During the afternoon she said she spent about 40 minutes with Mr French reading the terms of the first draft of the proposed deed.
6. Also during that conference, Ms Bayard said she advised Mr French he should not agree to the drop dead dates initially suggested for various milestones. She then proceeded to negotiate another two drafts so as to accommodate her concerns. This lead to the inclusion of cl 3.4. This clause permitted Mr French, if for reasons beyond his control he reasonably considered he would be unable to comply with any of the deadlines in cl 3.3, to serve a notice to that effect upon Provident, which could in its discretion extend such period for up to 14 extra days.
7. She also stated she gave detailed advice to Mr French about the terms of the proposed deed and the consequences if he failed to comply with its terms. She stated that Mr French said to her that he had no defence to the claims made by Provident (other than a cross claim against Dr Bremner) and he felt he had no other commercial option but to agree to the terms being offered.
8. Ms Bayard also stated she informed Mr French that if he did not comply with the deed his property could be sold and any shortfall could be claimed against him. She also explained the effect of the proposed consent orders. She also stated that for most of the meeting she and Mr French were in a separate room. She ultimately witnessed his signature when he signed the deed in the early evening of 3 March 2015.
9. Ms Bayard was not relevantly challenged on the account she gave of the events of 3 March 2015. I accept her evidence in its entirety.

Ms Lardner

1. Affidavits were also read from Ms Lardner (one dated 16 November 2015 and one 18 November 2015). She was not cross examined. I accept her evidence. This is corroborated by others but nothing, in any event, emerges from her evidence which is controversial.

Discussion

1. In my view, Mr French has failed to advance any basis upon which the consent judgment should be set aside. I see no evidence of irregularity, illegality, or a lack of good faith in the relevant sense.
2. There was, in my view, nothing said or done by any person representing Provident which caused Mr French unfairly or inappropriately to accept the terms of the Deed.
3. In my view Mr French appreciated only too well the predicament he was in, and was determined to secure a regime in order to buy himself some time in an attempt to resolve his problems if he could. He knew he had no defence to the Provident claim and told his solicitor accordingly. She did her very best, I am satisfied, in circumstances where her client had very little leverage.
4. By February/March 2015, whatever arrangement Mr French had with Dr Bremner, the latter has disappeared overseas. Whether Mr French or Dr Bremner is ultimately found to be right or wrong if the matter is ever litigated, Mr French has been left with a debt which he has to, in my view, face up to.
5. Mr French has belongings stored on the Property. He says, and I accept, that the Property has sentimental value. However, he and his wife live in Victoria on land transferred to him by Dr Bremner, it seems as part of an arrangement between them. Those properties, however, are not at risk in these proceedings.
6. The simple fact is that Mr French negotiated with the assistance of his solicitor an extended period in which to achieve certain milestones. He has not been able to meet those milestones through no fault of Provident. In so far as he wishes to allege some fraud on the part of some former officer or officers of Provident, which in some way involved Dr Bremner, there is simply nothing beyond mere assertion to support such allegations. In any event, such a case would have to be separately and precisely pleaded.
7. Crucially, there is simply no evidence that Dr Bremner ever paid any more to Provident than the $600,000 in April 2009, which of course was taken into account in Mr French's favour. There is no evidence that Dr Bremner paid over additional moneys to anyone else which has not been taken into account.
8. In my view the motion should be dismissed.
9. I will hear the parties on the question of costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2015