Satchithanantham v NABThambiappah v NAB

Supreme Court of NSW|2008-09-26|Before: White J, Santow J

CITATION : Satchithanantham v NABThambiappah v NAB [2008] NSWSC 1097

DECISION : Proceedings 6031/07 and 5597/07 dismissed with costs. Order that the exhibits may be returned after 28 days unless an appeal or application for leave to appeal is filed within that period. Otherwise the exhibits are to be retained on the file until the appeal books or application to appeal is settled.

CATCHWORDS : PRACTICE AND PROCEDURE - statement of claim - appeal from order striking out - pleading confusing, disjointed and unsupported by material facts - whether proceeding should be summarily dismissed - second plaintiff's cause of action depended upon his beneficial ownership of property that remained vested in his trustee in bankruptcy - first plaintiff had previously not utilised an opportunity to replead and had no independent interest in the proceeding - proceeding dismissed - PRACTICE AND PROCEDURE - courts and judges - disqualification for bias - whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the disposal of the case on its merits - judge clearly right not to disqualify himself

Webb v The Queen (1994) 181 CLR 41 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Wentworth v Wentworth (Supreme Court of NSW, Santow J, 6 February 1998, unreported) CASES CITED : Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Wride v Schulze [2004] FCA 281 Sereika v Cardinal Financial Securities Ltd [2001] FCA 1715 Gosden v Dixon (1992) 107 ALR 329 Ramage v Waclaw (1988) 12 NSWLR 84

Thambiappah Satchithanantham v PARTIES : National Australia Bank & Anor; Sivamani Thambiappah & Anor v National Australia Bank

COUNSEL : Plaintiff: In Person Defendant: N Bearup

SOLICITORS : Plaintiff: na Defendant: Dibbs Abbott Stillman Lawyers

LOWER COURT JURISDICTION : Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S) : 6031/07 5597/07

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6031/07 Thambiappah Satchithanantham v National Australia Bank & Anor 5597/07 Sivamani Thambiappah & Anor v National Australia Bank JUDGMENT 1 HIS HONOUR: These are appeals from judgments of Macready AsJ given on 9 and 16 April 2008. They have been heard together. There are two proceedings. In proceeding 5597/07 the first plaintiff is Ms Sivamani Thambiappah. The second plaintiff is Mr Thambiappah Satchithanantham. They are sister and brother. In their statement of claim they sought damages of $207,802.68 against the defendant, the National Australia Bank. They alleged they suffered loss as a result of the defendant's improperly exercising a power of sale as mortgagee over a property at Park Avenue, Kingswood. The registered proprietors of that property were the first plaintiff and a Ms Manonmany Gurarethnam. I am told by the second plaintiff that she is also his sister. The second plaintiff claims that he was the equitable owner of the property. 2 In proceeding 6031/07, Mr Thambiappah is the only plaintiff. The first defendant is the National Australia Bank. The second defendant was described by a business name, Dibbs Abbott Stillman Lawyers. Mr Thambiappah sought the following relief in proceeding 6031/07: " 6 Plaintiff seeks the relief, as detailed below: (a) Set aside the First mortgage no: 9685659 M, Second Mortgage no: AA 443791 P and Third mortgage no: AA883313 W currently registered in the property at 76 Houison Street Westmead NSW 2145, F/I - 2/181628. (b) Order for removal of caveat nos: AA 998174 and AB 116096 currently registered in the property at 76 Houison Street Westmead NSW 2145, F/I - 2/181628.1. (c) Defendants pay plaintiff the losses and damages suffered by the plaintiff and by his family since 2 February 2004 until this date, which is exceeding $1.4 million now at the date of this claim. (d) Defendant's pay caveators interests [sic] and their payments as to the order sought in (b) above. (e) Defendants pay all the costs involved in the proceedings 12756/04 and 13736/04 including the cost incurred by Jackson Smith Solicitors who represented these matters. (f) Interest. (g) Cost. (h) First and second defendants are liable for the orders (a) to (g) above jointly and severally. (i) The Court makes appropriate orders whether these proceedings be heard together with the proceedings no: 15249/05, in accordance with the Supreme Court rule 1970 by part 8, r 2(a) and r 8(1.). (j) Stay of the cost orders made against the plaintiff by the court on 12/12/2007. (k) Any further orders the court deems fit. "

3 The grounds for that relief were described by various epithets: conspiracy, misconduct, misleading conduct, deceit and unconscionable conduct. The plaintiff pleaded that he was entitled to bring the proceeding "for the reasons of the matters involved in the current proceeding no. 15429/05 (Common Law) against the plaintiff's wife since December 2005 and ongoing." 4 In proceeding 5597/07 Macready AsJ had before him a notice of motion filed by the defendant seeking orders that the proceedings be summarily dismissed or, alternatively, that the statement of claim be struck out. In proceeding 6031/07 his Honour had before him two notices of motion. The first defendant sought orders that those proceedings be summarily dismissed or, alternatively, that the statement of claim be struck out. The plaintiff sought summary judgment against both defendants for $1,400,000 as well as the orders in para 6 (a), (b) and (d) of the statement of claim set out above, the sum of $100,000 for the costs claimed in para 6(e), interest and costs. 5 In his judgment of 9 April 2008 in each proceeding Macready AsJ refused to disqualify himself. The plaintiffs had submitted that he should do so on the grounds of apprehended bias by reason of his having an overdraft account with the first defendant. 6 In his judgment of 16 April 2008 in proceeding 5597/07 Macready AsJ ordered that the second plaintiff's proceedings be dismissed and that the statement of claim be struck out. His Honour made orders permitting the first plaintiff to file an amended statement of claim if the defendant consented to the amendments, or else to make an application for leave to file an amended statement of claim within 56 days, failing which the first plaintiff's proceeding was also dismissed. 7 In his judgment of 16 April 2008 in proceedings 6031/07, his Honour dismissed the plaintiff's motion for summary judgment with costs and dismissed the proceedings with costs. 8 The plaintiffs appeal from all judgments. In proceeding 5597/07 they seek orders setting aside the judgment, summary judgment (although that had not been sought before Macready AsJ), leave to file an amended statement of claim (although no proposed amended pleading has been proffered) and what in substance is an order under Pt 66A r 4 of the Supreme Court Rules for a referral to a barrister or solicitor on the pro bono panel. 9 In proceeding 6031/07 the plaintiff seeks to have the orders of 16 April 2008 set aside, summary judgment against the defendants and also (although I assume in the alternative) leave to file an amended statement of claim. 10 The ground on which the plaintiff sought summary judgment in proceeding 6031/07 was that the first defendant did not file a defence within 28 days of service. Instead it filed a notice of motion to strike out the statement of claim and for the summary dismissal of the proceedings. The plaintiff sought summary judgment against the second defendant, as no appearance was entered for Dibbs Abbott Stillman, which was named as the second defendant under that description. The use of a business name to sue the partners of that firm would only have been justified if the business name was not registered (see Uniform Civil Procedure Rules, r 7.19 and r 7.20). 11 With that background I turn to the challenges to the various judgments of Macready AsJ. I deal first with his Honour's refusal to disqualify himself. 12 The hearing before his Honour started on 1 April 2008 and was adjourned on that day to 9 April 2008. On 9 April 2008, his Honour advised the parties that he had an account with the National Australia Bank and also had an overdraft which had been stable for many years, unchanged in amount, and not subject to negotiation. Mr Thambiappah submitted to his Honour that it was not appropriate for him to hear the matter. His Honour refused to disqualify himself. He applied the test of whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the questions before him; citing Webb v The Queen (1994) 181 CLR 41 at 47, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294 and Wentworth v Wentworth (Supreme Court of NSW, Santow J, 6 February 1998, unreported). His Honour reminded himself that a judge has a duty not automatically to disqualify himself or herself whenever requested to do so on the grounds of apprehended bias, and concluded that there was no reasonable apprehension of bias. 13 I agree with his Honour's reasons and his conclusion, and would only add to the authorities cited by his Honour Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 where the same test was again applied (at 344 [6]). This was not a case of apprehended bias by pre-judgment but by reason of a commercial relationship (but one of a not uncommon kind), between a judge and a party. The fact of such a relationship does not automatically disqualify a judge from hearing the case. The question is whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the disposal of the case on its merits. There was no reason to think that the outcome of the case could have any effect on the judge's relationship with the defendant, or that that relationship could influence the judge's approach to the case (Ebner v Official Trustee in Bankruptcy at 350 [30] and 351 [35]). 14 No submission was advanced in support of this ground of appeal. His Honour was clearly right not to disqualify himself. 15 I record that at the commencement of the hearing before me I disclosed that I also have an overdraft account with the National Australia Bank and have done so for many years, which has not been the subject of discussion with the bank, and that my and my wife's superannuation fund holds about 1,200 shares in the defendant. No application was made that I should disqualify myself. 16 The grounds of appeal include a contention that the plaintiffs were denied a fair opportunity to be heard. No submission was advanced in support of that ground. I have read the transcript and there is no substance to it. 17 There was also a general ground of appeal that his Honour failed to give adequate reasons for his decision. I do not accept that contention. In both proceedings his Honour gave clear reasons as to why the statements of claim were liable to be and should be struck out, and gave reasons as to why, as to part of the claims, the proceeding should be dismissed. 18 There were two principal questions before his Honour in both proceedings. The first was whether the statement of claim in each proceeding should be struck out because it failed to plead material facts, did not disclose a cause of action and was embarrassing. In both proceedings the statement of claim failed in all these respects and his Honour rightly so found. 19 The second question in each proceeding was whether it should be summarily dismissed or whether the plaintiff should be given the opportunity to replead. Summary dismissal would be warranted if the material adduced on the application showed clearly that there was no arguable cause of action which might be properly pleaded (Wride v Schulze [2004] FCA 281 at [40]-[45]). 20 In proceedings 5597/07 his Honour was satisfied that the second plaintiff had no such arguable cause of action and accordingly dismissed the proceedings. He found the position of the first plaintiff to be less clear and hence allowed her the opportunity to replead, in default of which the proceeding would be dismissed. I see no error in that general approach - see Sereika v Cardinal Financial Securities Ltd [2001] FCA 1715 at [12] and [36]. 21 The first plaintiff's claim in proceeding 5597/07 was to be dismissed if relevantly she did not apply for leave to amend within the stipulated time. The notice of motion seeking leave to amend was filed within time, but failed to annex the proposed amended pleading. That was clearly contrary to his Honour's intentions. Later in these reasons I will deal with how this problem should be dealt with after considering the pleading. 22 I will deal first with the statement of claim in proceeding 5597/07. In para 1 it is alleged that the first plaintiff was the "95 per cent legal owner and the second plaintiff was the 100% equity owner" of a property in Park Avenue, Kingswood. It was alleged that the "first and second plaintiffs are entitled to bring this proceeding against the defendant as to the ownerships mentioned herein." The material facts to support the contention of equitable ownership are not pleaded (see r 14.7). The particulars referred to certain documents as evidence of the allegation. The material effects of the documents are not pleaded, contrary to r 14.9. 23 Although this is a defective pleading, and embarrassing in the technical sense, the documents referred to in the particulars show the material on which the plaintiffs rely for their claim that the second defendant was the beneficial owner of the property. The two most significant documents tendered before his Honour are an undated front page of a contract for the purchase of the property for $170,000, which describes the purchaser as the plaintiff or his nominee, and an agreement dated 4 July 2004. By that agreement the first plaintiff acknowledged that the second plaintiff was "involved in purchasing the said properties mentioned in the paragraph 4 above [which include the Kingswood property, the subject of these proceedings] using [the first plaintiff's] name as 'nominee', in which [the first plaintiff] holds a 95% share in each of the properties [sic]. The said shares are held in trust by [the first plaintiff] for [the second plaintiff] until the [second plaintiff] sold the said properties." These documents were tendered by the plaintiffs on the hearing before Macready AsJ. 24 There was also evidence establishing that on 14 October 2003 the first plaintiff and Ms Gurarethnam entered into a loan facility with the defendant, pursuant to which it advanced $153,000. At that time they executed a mortgage of the property in favour of the defendant. The loan was described as a home loan and was evidently used to purchase the property. 25 The plaintiffs also tendered evidence before Macready AsJ that the second plaintiff was made bankrupt on 22 February 2002 and was discharged from bankruptcy on 23 February 2005. 26 If, as the second plaintiff alleges, he was the equitable owner of the property, then his beneficial interest in the property vested in his trustee, as his interest was acquired prior to his discharge from bankruptcy. On his discharge from bankruptcy his interest in the property was not revested in him unless transferred to him by the trustee. The statement of claim does not allege any such assignment. Nor was there any evidence of such an assignment, nor was any such possible assignment referred to in submissions. 27 As McLelland J (as his Honour then was) said in Gosden v Dixon (1992) 107 ALR 329 at 331: " In general terms, where a person becomes a bankrupt, property that belonged to him at the commencement of the bankruptcy or is acquired by him before his discharge vests in the relevant trustee and constitutes property which is available to be realised and divided among the bankrupt's creditors. That, I think, is the effect of ss 58(1) and 116 of the Bankruptcy Act . A discharge from the bankruptcy releases the bankrupt from his debts and enables him to retain property which he subsequently acquires free of any claim by the trustee. That, I think, is the effect of ss 153 and 116 of the Act. However, a discharge does not cause to be revested in the bankrupt any property which has vested in the trustee prior to the discharge from bankruptcy. In regard to such property the trustee is still bound to collect and realise it, and to distribute the proceeds among the creditors, notwithstanding the discharge. These propositions are clearly established by several decisions including Pegler v Dale (1975) 6 ALR 62; [1975] 1 NSWLR 265; Re Balhorn; Ex parte Balhorn and Official Trustee (1981) 39 ALR 223; Daemer v Industrial Commission (1990) 22 NSWLR 178; 99 ALR 789. In the words of Lockhart J in Re Balhorn at 226: 'The trustee of a bankrupt's estate is still bound to collect, realise and distribute such of the bankrupt's property as was vested before discharge in the trustee.'"

28 Paragraph 2 of the statement of claim pleaded that a s 57(2)(b) notice dated 3 July 2006 from the defendant was invalid, as the amount claimed was incorrect and the defendant had overcharged interest. It appears from the particulars that the plaintiffs allege that the notice called for payment of $7,751.16, whereas, according to the plaintiffs, only $5,421.97 was due at the date of the notice. The particulars allege that the notice was complied with by a payment on 2 August 2006. Evidence tendered showed that the payment was in the sum of $7,751.16, being the amount demanded by the notice. The particulars to the paragraph allege that this payment brought the payment of interest up to date to 10 September 2006. 29 Paragraph 3 does not materially add to para 2. 30 The gist of para 4 was that the first defendant was not entitled to take possession of the property and disturb the occupiers. 31 Paragraph 5 alleged the defendant was not entitled to possession of the property or to exercise a power of sale because it did not commence proceedings for possession. That was misconceived. 32 Paragraph 6 alleged an abuse of process in other proceedings in this division. Although not specifically identified in the pleading, the paragraph refers to an amended summons in proceeding 4493/07 in which the defendant (as plaintiff in those proceedings) sought orders against inter alia the second plaintiff (second defendant to those proceedings) for the removal of a caveat. The particulars to para 6 allege that the first plaintiff had consented to the second plaintiff's caveat and that hence the defendant was not entitled to challenge it. Again, this is misconceived. This paragraph is an attempted collateral challenge to orders made by Palmer J in proceedings 4493/07 for the removal of the caveat. That is an abuse of process. 33 Paragraph 7 is unintelligible. 34 Paragraphs 8 to 15 made barely intelligible collateral challenges to proceedings 4493/07. Those proceedings were resolved by a final judgment. It is not possible for the plaintiffs to challenge the orders made in those proceedings by separate proceedings. 35 Paragraphs 16 and 17 returned, I infer, to the matter pleaded in para 2, namely, that the s 57(2)(b) notice served on 7 July 2007 was satisfied by a payment made on 2 August 2006. It was alleged that the defendant was not entitled to call for payment of the full amount of $152,119.97. 36 Paragraph 18 dealt with the same matter as para 5. It alleged that the defendant wrongly disturbed the occupation of tenants of the property. No facts were pleaded to show what cause of action the plaintiffs would have in respect of that alleged wrongful disturbance. 37 Paragraphs 19 and 20 referred to the defendant's sale of the property on 17 December 2007. Those paragraphs alleged that the defendant acted unconscionably by failing to obtain orders from the court authorising such a sale. Again the contention that the defendant required an order from the court in order to exercise his power of sale is misconceived. 38 Paragraphs 21 and 22 alleged that the defendant's actions were illegal, harsh, unconscionable and contrary to various statutes, but the paragraphs did not allege the facts to support those allegations. 39 In para 23 the plaintiffs set out their claims for relief, namely " 23 Plaintiffs seek the relief as sought in this statement of claim with interest and cost, as detailed below: (a) Value of the said property based on CBA valuation and loan offer 90% of the property value as per 'Exhibit - TS-1' page 22 to 26 of second plaintiff affidavit of 17 September 2007 filed in the matter 4493/07. $320,000.00. (b) Goods stored in the garage, as notified to the defendant. [refer page 7 of the Exhibit mentioned above.] $16,000.00 (c) Less mortgage amount due to the defendant as at 14/8/2006 - $152,119.61. Amount due to the plaintiffs as at 14/8/2006. $183,880.39 (d) Add interest 10% p.a from 15/8/2006 until to date 19/11/2007 $23,237.29 (e) Add filing fee $685.00 TOTAL AMOUNT CLAIMED BY THE PLAINTIFFS $207,802.68 " 40 No facts were pleaded in the claim for $16,000 in respect of "goods stored in the garage". 41 Macready AsJ said that there were many defects in the statement of claim. Material facts were not pleaded. Some claims were unintelligible and others were misconceived. I agree. His Honour said (at [24]): " This is a Statement of Claim where it is so confusing, disjointed, unsupported by material facts and difficult to understand that it should not be allowed to stand. It is not possible to allow part of it and certainly in its present form it should be struck out. "

42 There is no error in that conclusion. Indeed, it is plainly right. 43 The question then, as his Honour recognised, was whether the proceedings of either or both plaintiffs should be dismissed or whether they should be given leave to replead. The only potentially arguable cause of action emerging from the pleading is that the defendant was not entitled to exercise its power of sale because the amount demanded by the s 57(2)(b) notice was paid before the expiry of the notice. It was also alleged that the notice overstated the amount due but, as Macready AsJ observed at [28], that would not invalidate the notice. His Honour said that: " In case there is some point about either of the notices I think it is appropriate that the proceedings against the first plaintiff are not dismissed. "

44 Macready AsJ dismissed the claim of the second plaintiff because it depended on his claim to be an equitable owner of the property. His Honour said: " There is no hint of how that ownership may prevent the Bank from asserting its rights as a registered first mortgagee. Accordingly, in my view, as against the second plaintiff, Mr Satchithanantham, the proceedings should be dismissed. "

45 The second plaintiff was not a party to the contract of loan with the defendant. I understood his contention to be that the parties to that loan were nominees for him, although I do not understand how that could lawfully be when he was an undischarged bankrupt. Be that as it may, even if he were beneficially entitled to the property the first defendant, which held a registered mortgage, was not subject to any claim he might have in the property. 46 I agree with his Honour that the second plaintiff had no claim against the defendant. I would add that the basis of his asserted claim, namely the beneficial ownership of the property, is contradicted by his own evidence that when the property and his alleged beneficial ownership was acquired, he was an undischarged bankrupt. Such beneficial ownership, if it existed, did not vest in him but in his trustee in bankruptcy. So far as appears from the pleading that is where it remains. 47 The question then is whether the first plaintiff should have further leave to amend the statement of claim, as envisaged by Macready AsJ. She has sought leave to amend but has not propounded a proposed amended pleading, as his Honour envisaged. The question is whether the time for her to do so should now be extended, or whether her proceeding should also be dismissed. 48 The answer to that question lies in her affidavit verifying the statement of claim. It did not follow the prescribed form. Rather the first plaintiff deposed: " ... 3. In 1997, my brother Thambiappah Satchithanantham sponsored me and any parents to migrate this country and later I became citizen of Australia. 4. In 2003, I signed many documents and bank papers in this matter including the power of attorney and the deed of agreement for the purpose of purchasing of few properties under my name as to the arrangements I had with my brother Thambiappah Satchithanantham. 5. I held 95% equity of the properties on trust on behalf of my brother Thambiappah Satchithanantham for the properties involved in the power of attorney document executed on 1 February 2004 and registered in the LPI Office ref: Book 4518 no: 975 and the Deed of agreement executed between me and my brother on 4 July 2004. 6. As to the paragraphs 4 & 5 above, the power of attorney document has not been revoked yet and valid until this date and I agree with the contents in the deed of agreement, which are true and correct. ... 7. I hereby authorize my brother Thambiappah Satchithanantham to represent me, to sign on my behalf under the power of attorney and to conduct my all legal court proceedings matters in any court, as I have no means to engage solicitor due to my financial hardship and continuous sickness in past 2 years as I am on centralink benefit and on medical treatments. " 49 It was pursuant to the authority in para 7 that the second plaintiff brought the appeal from Macready AsJ's orders. It is clear that the first plaintiff has no independent interest in the proceeding. It appears that when he was an undischarged bankrupt the second plaintiff used her to acquire property purportedly for him, to which he asserts an interest, notwithstanding that any such interest vested in his trustee in bankruptcy. 50 As the first plaintiff has not taken up the opportunity afforded to her to replead I see no reason to extend that opportunity to advance the second plaintiff's interests. Particularly is that so where, so far as appears, the second plaintiff would in any event receive no benefit from the successful prosecution of the proceeding. 51 Moreover, the evidence adduced before Macready AsJ shows that irrespective of whether the amount demanded under the s 57(2)(b) notice was paid in time and irrespective of whether the loan payments were otherwise up-to-date, the defendant was entitled to call up the loan. It was a term of the loan that it was an event of default if one of the borrowers or a security provider became bankrupt. Ms Gurarethnam, one of the borrowers and a security provider, became bankrupt on 27 March 2006. Accordingly, the defendant was entitled to call up the loan irrespective of whether loan repayments had been kept up to date. 52 In oral submissions the second plaintiff said that he challenged the way the defendant had exercised its power of sale. No such challenge was pleaded. There was no evidence to raise an arguable case to justify such a challenge, even if the second plaintiff had standing to maintain it. 53 In summary I see no reason to extend time for the first plaintiff to propound a viable pleading when she appears to have no personal interest in the proceeding, but is carrying it on for her brother; when her brother's interest is advanced, it appears, in contravention of his obligations to his earlier trustee in bankruptcy and to the creditors who proved in that bankruptcy; when no indication is provided as to the time by which a pleading might be propounded, nor what it might contain; and when the evidence adduced before Macready AsJ indicates that any such pleading would be futile because the defendant was entitled to call up the loan owing to Ms Gurarethnam's bankruptcy. 54 Accordingly, in proceeding 5597/07, I refuse the relief sought in paras 1, 2, 3, 4, 6 and 7 of the notice of motion. 55 I do not consider that I should make an order under Pt 66A r 4 for referral of the plaintiffs to a barrister or solicitor on the pro bono panel. Such referrals may be made where the administration of justice so requires. In the absence of a plausible claim, there should be no referral. Accordingly, I also refuse the relief sought in para 5 of the notice of motion. 56 It remains to dispose of those proceeding 5597/07. Macready AsJ's orders would have worked an automatic dismissal if no application for leave to amend had been filed. In the absence of a proposed pleading and a plausible case, I refuse leave to amend. The appropriate order therefore is that proceeding 5597/07 be dismissed with costs. 57 I turn to the appeal in proceeding 6031/07. Mr Thambiappah Satchithanantham is the only plaintiff in that proceeding. In para 1 of the statement of claim he pleads that he is the husband of the legal owner of a property in Houison Street, Westmead and that he is a one-third beneficial owner of the property. Again the facts relied on to establish his equitable ownership are not pleaded, but documents tendered show that the property and his alleged equitable interest in the property was acquired on or prior to 4 July 2004, that is, before his discharge from bankruptcy. Again there is no allegation, nor was it suggested in submissions, that the trustee in bankruptcy had assigned the one-third equitable ownership of the property to the plaintiff. Again, even if the plaintiff were the equitable owner of the property, the first defendant is the registered mortgagee, and no facts are pleaded which might defeat its otherwise indefeasible title. 58 The pleading is confusing and the claims sought to be pleaded are unclear. Paragraph 2 alleges: " 2 Plaintiff is entitled to bring this proceeding against the defendants for the reasons of the matters involved in the current proceeding no: 15249/05 [common law] against the plaintiff's wife since December 2005 and on going: (1) against the first defendant: (a) Conspiracy and deceptive conducts as to the written and oral contracts, misrepresentation, misleading & unconscionable conducts, acted against public interests, acted against privacy act and breach of the terms of the written and oral contracts. (b) The pleadings made against the first defendant in accordance with the original defence filed for the mater 15249/05 on 20/12/2005 and other pleadings made in the plaintiff's applications until up to 12/12/2007. (c) Pleadings made against the first defendant in "Further amended notice of notion" dated 15/12/2006 involved in the matter 12756/04 [Common law] in this court. (d) First defendant is fully responsible for the registration of second mortgage no: AA443791 P and Third mortgage no: AA883313 W registered in the property involved in the proceedings nos 15249/05, 12756/04 and 13736/04 of the common Law division of this court and to discharge such mortgages as in the order sought in the paragraph 6(a). (e) First defendant is full responsible to removal of all the caveats registered in the said property as in the order sought in the paragraph 6(b). (2) In so far against the second defendant: (a) Many misconducts and misled the court in relation to the current proceeding matter: 15249/2005 [Common law]. (b) Collusion part with related parties to defeat the plaintiff's cases involved in this court matters 3878/07 and 13123/07 and to defeat the plaintiff's wife's cases in this court matters no: 12756/04 & 13736/04 [Common law]. (c) The pleadings made against the second defendant in accordance with various applications involved in the matter 12756/04 [Common law] in this court and various allegations made against the second defendant as in the transcripts of the plaintiff's applications involved in the matter 15249/05 and the court of appeal matter 40640/06. (d) Misuse of solicitor's privileges and power against public interest and took advantage to the first defendant's unlawful actions against innocent victims including the plaintiff, his family & his blood relatives. (e) Tactics used by the second defendant to defeat plaintiff's cases and mislead the court. (f) Second defendant was responsible for the failure of out court settlement accepted by the first defendant in May 2006 for the matter 15249/05, by the act of non professionalism for their own benefits. " 59 This paragraph does not disclose a cause of action. It fails to plead material facts and is an abuse of process. The plaintiff readily conceded, indeed asserted, that the reason for his bringing the claim was that he had sought to be joined as a party to the proceedings between his wife and the defendant in the Common Law Division. In his written submissions he recounted the history of unsuccessful applications in the Common Law proceedings. He alleged that various judicial officers failed to give reasons, or written reasons, or sufficient reasons, for their rulings against him and that hearings were conducted under duress. 60 The plaintiff has unsuccessfully sought leave to appeal from orders made in those proceedings refusing his application to be joined. By para 2, the plaintiff seeks to make a collateral challenge to those orders by contending that the defendants acted improperly, although in ways not particularised, in their conduct of those proceedings. Quite apart from the plaintiff's failure to plead the material facts said to constitute conspiracy, deception, collusion and the like, the pleading is an abuse of process because it attempts to re-litigate matters which have been decided against the plaintiff in other proceedings. 61 Paragraph 3 alleges: " (3) Plaintiff relies on: (a) Relevant documents as pleaded and evidenced by the plaintiff in his applications and affidavits involved in this court matter: 15249/2005 [Common law]. (b) Relevant documents as pleaded and evidenced by the plaintiff in his applications and affidavits involved in this court matter: 5597/2007 [Equity]. (c) relevant documents as pleaded and evidenced for the application dated 15/12/2005 with affidavit in support filed this court on 16/12/2005 served on to the fist defendant [as a party for the said application] for the mater no: 12756/2004 [Common law], for which first defendant was a party of the said application. (d) Relevant documents concerning the efforts taken by the plaintiff a to the out of court settlement of the matter 15249/06, 12756/04 and 13736/04. (e) Plaintiff intends to relay on all the materials and documents mentioned herein above be formed part of 'exhibit annexure' to this proceeding. " 62 The paragraph referred to offers from the first defendant between January and October 2003 of loans totalling $1,353,400 to the plaintiff's wife and her sister and the plaintiff's sisters. 63 Paragraph 4 alleges: " 4 Plaintiff pleads that First defendant acted in cancelling or calling such advances contrary to the terms of the contracts relied upon and acted against the law, harsh and against the court procedural matters and unconscionable dealings. The second defendant had been engaged in non professional conducts, activities and collusion with the relevant parties and solicitors/counsels who involved with the said securities of the properties. " 64 In para 5 it is alleged that the plaintiff suffered loss from the: " false and misleading representation and unconscionable conducts part of the first defendant in advancing such facilities to the legal owners and even the plaintiff had honored the terms of the mortgage, but the defendants have acted against the good faith and had dishonored in their part that caused the plaintiff's legal involvement in the proceedings involved in the said properties as to unconscionable conducts of the defendants and professional negligence and collusions in second defendant's part pursuant to the provisions of: ... [various statutes]." 65 No facts to support the allegations of wrongdoing are alleged. 66 The plaintiff's entitlement to sue is said to arise because his wife, and his sisters, and his wife's sister, when they borrowed moneys from the defendant, were doing so on his behalf, even though he was an undischarged bankrupt at the time and the properties were held on trust for him. Leaving aside the effect of the plaintiff's being an undischarged bankrupt when the property was acquired, the proper parties to complain of a breach by the defendant of its contracts of loan are the parties to those contracts. No facts are pleaded to establish the basis upon which benefits of the contracts of loan might be held on trust for the plaintiff, nor are any facts alleged which would constitute a relationship of agency between the borrowers and the plaintiff. Even if the benefit of the contracts were held on trust for the plaintiff, nonetheless he would not have standing to sue, there being no relevant exception which would entitle him, as the alleged beneficiary of trust property, to sue in his own name (Ramage v Waclaw (1988) 12 NSWLR 84 at 91. 67 In short, the pleading discloses no cause of action, does not plead material facts, and if there were a cause of action it would not be the plaintiff's. 68 There are other deficiencies in the pleading. As Macready AsJ observed, the claim to set aside the mortgages is made by the plaintiff, although he is not a party to them, and in respect of two of the mortgages sought to be set aside, the mortgagees were not joined as parties. 69 In relation to the claim for removal of two caveats over the property in Houison Street, Westmead, his Honour observed that the caveators are not parties to the proceedings and accordingly the relief sought is not available. Relief is also not available because the basis for the claim for removal of the caveats is not pleaded. 70 In relation to the claim in para 6(e) his Honour observed that that claim related to proceedings brought by King Mortgages Pty Limited against Mrs Satchithanantham and proceedings brought by Cash King against Mrs Satchithanantham. As his Honour observed, no facts relating to any possible form of relief in respect of those properties are pleaded. 71 His Honour was correct in concluding that not only should the statement of claim be struck out, but that the proceedings against the first defendant should be dismissed. 72 His Honour's orders extended to the dismissal of the proceedings in their entirety. There was no appearance filed for the partners of Dibbs Abbott Stillman. That firm acts that for the defendant in the proceedings. His Honour observed that there was no evidence as to whether the business name was unregistered, such as would permit the individual partners to be sued under the business name. His Honour said: " I explained the effect of the rules [viz r 17.19 and 17.20] to Mr Satchithanantham. I stated that, in the absence of any evidence, I would not give judgment against the named second defendant. When the matter came back before me on 9 April no such affidavit evidence was read nor was there any application to amend to overcome the difficulty. In these circumstances, UCPR 7.22 prevents the plaintiff from bringing this motion against the second defendant. "

73 The question then is whether the proceeding against the named second defendant should also be dismissed. There has been no explanation as to why the partners of the firm have not been joined in their own names. No intelligible cause of action is pleaded against the firm. In my view his Honour's ultimate order dismissing the proceedings was also correct. 74 For these reasons I order that the notice of motion in proceedings 6031/07 filed on 13 May 2008 be dismissed with costs. 75 Mr Thambiappah Satchithanantham also sought a stay of existing costs orders. I was told that the defendant has commenced bankruptcy proceedings, or at least has served a bankruptcy notice against him, relying upon certain costs orders. He submitted that the purpose of such proceedings was to stifle his attempts to litigate the present claims. I was not referred to the particular costs orders which are sought to be stayed, but nothing was put before me which would justify a stay. In any event, as his proceedings are dismissed, the reason advanced for a stay is not made out. 76 The exhibits in the proceedings include bundles of disparate documents which have not been individually described in the exhibit lists. Rather than ordering that the exhibits may be returned after 28 days, I order that the exhibits may be returned after 28 days unless an appeal or an application for leave to appeal is filed within that period. In that event, the exhibits are to be retained until the appeal books or application books are settled.

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.

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Cases Cited (11)