Rogers v Asset Loan Co Pty Ltd

REASONS FOR JUDGMENT 1 I am presently concerned with two Notices of Motion filed in the principal proceedings between Lynne Maree Rogers v Asset Loan Co Pty Ltd & Ors, being proceedings QUD525/2005. 2 Before dealing specifically with those Notices of Motion, it is helpful to set out the history of the matter. 3 The proceedings were last before the Court on 5 December 2005, when I heard an interlocutory application for an injunction restraining one of the respondents in these proceedings from taking possession of property. I made no orders on that date, and adjourned the application pending the outcome of proceedings in the New South Wales Supreme Court. 4 On 5 December 2005, I declined to reinstate proceedings QUD224/2004, which proceedings were brought by Gregory Eric Rogers, and which had been dismissed. 5 Subsequent to 5 December 2005, no step was taken in proceedings QUD525/2005. On 4 July 2006, that is to say, more than six months after the events on 5 December 2005, the file in these proceedings QUD525/2005 was closed due to inaction. 6 On 11 August 2006, the file was reopened when the applicant filed a lengthy Statement of Claim of some 705 paragraphs over 70 pages. That Statement of Claim is substantially the same as had been filed by Mr Gregory Rogers in proceedings QUD130/2006. 7 The first Notice of Motion of which I am concerned was filed on 19 September 2006 by Mrs Rogers. The Notice of Motion sought directions that "a summary judgment hearing take place as a Defence had not been filed in the application within the time period set out in the Federal Court Rules", as well as various other orders. 8 The second Notice of Motion is one filed by the respondents on 20 September 2006 seeking the applicant's proceeding be dismissed, or, in the alternative, that they be permanently stayed, together with costs. 9 It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant's husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings. 10 The gravamen of the complaints in the present Statement of Claim are essentially a replica of claims made by the applicant's husband in the earlier proceedings. 11 Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 was concerned with applications for relief by Mr Rogers, who sought various orders, including interlocutory relief restraining the respondents from exercising a power of sale, and in respect of a number of loan agreements, deeds of settlement, mortgages, and other instruments relating to various properties. 12 Greenwood J found, as the respondents in that proceeding had submitted, that the majority of Mr Rogers' claims for final relief involved claims that related to the legal or beneficial interest of the applicant in property which vested in the trustee in bankruptcy, and accordingly in respect of which the applicant had no standing to institute legal proceedings pursuant to s 116(2)(g) Bankruptcy Act 1966 (Cth) (the Bankruptcy Act): (g) any right of the bankrupt to recover damages or compensation; (i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; … 13 In those proceedings, Greenwood J held, at [48]: ... The alleged contraventions of the Trade Practices Act 1974 (Cth) which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee. 14 His Honour also concluded that a claim by Mr Rogers for interlocutory relief in the form of "an order that the respondents do not harass, intimidate or coerce the applicant, his family or neighbours" was not a claim called in aid of a claim for final relief within the scope of s 116(2)(g) of the Bankruptcy Act. 15 After the judgment of Greenwood J, Mr Rogers filed an Amended Statement of Claim on 19 June 2006, seeking, in conformity with observations of Greenwood J, to formulate a Statement of Claim so as to plead claims coming within the exemption of s 116(2)(g) of the Bankruptcy Act. 16 On 7 December 2006, Collier J held that the proceedings by Mr Rogers in QUD130/2006 commenced by application filed 7 April 2006 by Mr Rogers, and in which the Amended Statement of Claim was filed on 19 June 2006, be dismissed with costs. 17 Her Honour held that in respect of each of the applicant's claims, the applicant either did not have standing, or the claims were not actionable in the Federal Court, or the pleadings were deficient. Her Honour held that the applicant should not be given a further opportunity to replead, and dismissed the applicant's application. 18 The earlier proceedings by Mr Rogers, namely QUD224/2004, was the subject of orders by me on 6 October 2005. In that action, the Court ordered: 1. The action QUD 224/2004 is deemed abandoned by operation of s60(3) of the The Bankruptcy Act 1966 (Cth). 2. The proceeding is struck out. 3. No order as to costs. 19 The Statement of Claim relevant to the present motions seeks to canvass much of the material the subject of the orders of the Court in the previous proceedings. 20 Something of the flavour of that Statement of Claim can be gleaned from the allegations in par 25 that the third respondent: Has a propensity to engage in sophisticated well-developed "stings", and has previously been involved in scams … 21 Paragraph 27 of the Statement of Claim says: Hare bragged to the applicant's husband that he has been in hundred's [sic] of court cases and never lost. 22 The Statement of Claim pleads, at par 39, concerning the fourth respondent: Percival was married to Leanne Percival who was - is a director of the Sixth Respondent. Leanne Percival left Russell Percival when she found out that he had burgled the applicant's husband's home in company with his young Asian student girlfriend. 23 Of the fifth respondent, par 43 of the Statement of Claim, pleads: Judith Hare forged a document that purported that she signed it on 3 October 2003 authorising the applicant's husband to buy a property in Palmwood Drive ((see Para 316) for herself and the Sixth Respondent. 24 Under headings labelled "Count 1" down to "Count 29", the Statement of Claim pleads various causes of action mainly under the Trade Practices Act 1974 (Cth). 25 The relief sought by Mrs Rogers is: 705 The sum of $45,000,000.00 for personal injury, harm or wrongs or such amount or other orders determined by the court. 705a Orders declaring all loan agreements void 705b Orders varying all loan agreements 705c Orders declaring all mortgage documents void 705d Orders varying all mortgage agreements. 705e Orders directing all cash paid for interest, costs, outlays in the transactions be returned. 705f Orders compelling the respondents to lift any caveats. 705g Orders that the respondents return all land, houses, property to the applicant or her husband. 705h. Orders that the respondents surrender all cash or other considerations obtained by the sale of property in these transactions to the applicant or her husband. 705i Orders for punitive damages 705j. Orders that protect the applicant, her husband and her children from retribution, harassment or intimidation by the respondents. 705k Orders declaring that interest need not be paid. 705l Orders varying the amount of interest that has to be paid 705m Orders that the costs of the applicant be paid. 705n Orders that the respondents publish an apology to the applicant and her family in newspapers in every capital city. 705o Orders that the respondents advertise in daily papers with the result of the court hearing for the benefit of any other potential litigants - borrowers. 705p Orders that the home at 13 - 15 Moreton Street, Toogoom be transferred to Greg Rogers from Asset Loan Co Pty Ltd. 705q Orders that all property at Robert Street, Hervey Bay be transferred to the applicant or her husband. 705r Orders that the respondents lift their caveat on 2 Crown Street, Fingal Head so that a new loan can be settled to pay out G E Mortgage Solutions. 705s Orders that the respondents carry the apology and the orders of the Federal Court on each and every one of their websites for a period of two years. 705t Orders that the respondents publish an apology on their website for 10 years. 706 The applicant seeks any other orders that the court deems fit as will compensate the applicant and her family from the conduct of the respondents pursuant to the Trade Practices Act. 26 While there are some differences, this Statement of Claim is, in essence, the same document filed by Mr Rogers in proceedings QUD130/2006. 27 The first Notice of Motion by Mrs Rogers was made returnable on 12 October 2006, and sought orders: