Salubre v National Australia Bank Ltd

Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) s 12GF
Competition and Consumer Act 2010 (Cth) Sch 2
Corporations Act 2001 (Cth) s 991A
Practice Note SC Eq 3
Uniform Civil Procedure Rules 2005 (NSW) rr 45.2, 45.6

Cases Cited: Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787
Challenge Bank Ltd v Rain & Horne Commercial Pty Ltd (1989) 17 NSWLR 297
Collins v Mead (Supreme Court of New South Wales, Rogers J, 7 March 1990, unreported)
Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1996, unreported)
Grifols (HK) Ltd v DHL Supply Chain (Australia) Pty Ltd [2020] NSWSC 1504
Maysan Holdings Pty Ltd v Hasan [2025] NSWSC 788
Retravision (NSW) Ltd v Threlfo [1968] 1 NSWR 682

Category: Procedural rulings

Parties: Maryrose Salubre (First Plaintiff, in person)
Brian Frugtniet (Second Plaintiff, in person)
Suzanne Frugtniet (Third Plaintiff, in person)
National Australia Bank Ltd (Defendant)

Representation: Counsel:
ML Rose (Defendant)
Solicitors:
Dentons (Defendant)

File Number(s): 2024/00220142

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. The National Australia Bank Ltd (NAB) seeks the transfer of these proceedings from the Equity Division’s General List to its Commercial List, along with consequential procedural orders dispensing with the application of Practice Note SC Eq 3 and costs.

2. In the substantive proceedings, the plaintiffs, each of whom was self-represented on the hearing of NAB’s motion, broadly contend that the negligence and otherwise unconscionable conduct of a former employee of NAB, Mr Shamsuddin, caused them to lose the opportunity to acquire three nursing homes situated at Bexley, Mortdale, and Belrose. The plaintiffs primarily seek damages in tort and compensation pursuant to:

3. Sections 236 and 237 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth);

4. Section 12GF of the Australian Securities and Investments Commission Act 2001 (Cth); and

5. Section 991A(2) of the Corporations Act 2001 (Cth).

6. The plaintiffs strongly resist NAB’s application. The bases upon which they do so largely revolve around a shared contention that these proceedings are not ones that call for the “specialist commercial expertise” of the Commercial List: see, eg, Apex Supply Chain Management (AU) Pty Ltd v Nasser [2025] NSWSC 787 at [4]. Instead, they submitted that, insofar as the proceedings are said to concern NAB’s “representations, conduct, and misuse of power”, they are most at home in the General List.

7. For the reasons that follow, NAB’s application must be dismissed.

The Transfer of Proceedings to the Commercial List

5. Rule 45.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) confers a general discretion on the Court to order that proceedings initially entered in the General List be transferred to, inter alia, the Commercial List. Ordinarily, that discretion is to be exercised by reference to the enumeration of proceedings that might be entered in the Commercial List pursuant to r 45.6(1)(a)-(b) of the UCPR, as well as the purpose of the List, being the “need for a specialist ‘forum for the litigation and resolution of disputes between merchants and traders who desired and were prepared to undertake, an early opportunity of having their disputes decided’”: Maysan Holdings Pty Ltd v Hasan [2025] NSWSC 788 at [3], quoting Challenge Bank Ltd v Rain & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 301 (Rogers CJ Comm D).

6. Even where, as contemplated by r 45.6(1) of the UCPR, proceedings sought to be transferred to the Commercial List arise “out of commercial transactions” or involve an “issue that has importance in trade or commerce”, the Court retains a discretion to refuse an application for transfer: Collins v Mead (Supreme Court of New South Wales, Rogers J, 7 March 1990, unreported) 3. The reason for that is not difficult to discern. As Rogers J explained in Collins v Mead at 3-4:

Why is there a Commercial Division? The answer is twofold. First, it was thought necessary for the expeditious and proper handling of commercial disputes that they be tried by judges who have particular experience in hearing commercial disputes. Second … the expedition given to matters in the Commercial Division is justified by the needs of commerce.

For example, if banks are unable to collect overdue loans from borrowers speedily, if small traders can not recover monies owed to them speedily the commercial life of the Community is detrimentally [a]ffected. The consequences of delay in the hearing of a commercial dispute, will impact not just on the two or three persons or companies who are the immediate parties, but may have an effect on the creditors of the business, on employees, and perhaps on other traders unrelated to the immediate dispute.

(see also Retravision (NSW) Ltd v Threlfo [1968] 1 NSWR 682 at 683 (Macfarlan J)).

7. It is also well-settled that the “orderly conduct of the business of the court requires that proceedings properly commenced in one Division remain in that Division unless a sufficient case for transfer to another Division has been made out”: Giorgi v European Asian Bank Aktiengesellschaft (Supreme Court of New South Wales, McLelland J, 3 March 1996, unreported) at 5. Similar considerations caution restraint upon the exercise of the discretion where an applicant seeks transfer between lists in the same division.

8. For this reason, the applicant on such a motion must demonstrate that there is good reason for the proposed transfer: see, eg, Grifols (HK) Ltd v DHL Supply Chain (Australia) Pty Ltd [2020] NSWSC 1504 at [77] (Cavanagh J). Otherwise, the status quo will be maintained.

Determination

9. It is not sufficient for a transfer, as counsel for NAB submits, that cases of the instant kind are “customarily dealt with in the Commercial List”: see Grifols at [76].

10. It may be accepted that, assuming the underlying claims are reasonably arguable, the quantum of compensation claimed by the plaintiffs is great. It may also be accepted that, insofar as the plaintiffs’ claims arise out of a series of alleged representations by Mr Shamsuddin in advising them on NAB’s willingness to advance the purchase price of the nursing homes, the dispute seems to have arisen out of a commercial transaction.

11. While those matters may favour transfer, they are not determinative. The plaintiffs have chosen to enter their proceedings in the General List. I am not satisfied that NAB has demonstrated a satisfactory reason why those proceedings cannot adequately progress and be heard in that list, with appropriate case management from the Registrar in Equity. Therefore, the matter will not be transferred.

12. Both the first and second plaintiffs seek an order that the costs of the motion be the parties’ costs in the cause. In circumstances, however, where NAB has failed to achieve the procedural orders it seeks, and where the plaintiffs are presently self-represented, I consider it appropriate to make no order as to costs.

Orders

13. Accordingly, the appropriate orders are:

14. NAB’s notice of motion filed 11 July 2025 is dismissed.

15. No order as to costs.

**********