Thambiappah v Commonwealth Bank of Australia

Thambiappah v Commonwealth Bank of Australia - [2010] NSWSC 520 - NSWSC 2010 case summary — Zoe

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JUDGMENT 1 HARRISON J: The plaintiff is the former owner of two properties in Cornelia Road, Toongabbie and Millet Row, Werrington. The plaintiff borrowed money from the defendant secured by mortgages over these properties. She defaulted on these loans and in due course the defendant sold Werrington on 2 July 2007 and Toongabbie on 13 December 2009 as mortgagee in possession and pursuant to its power of sale. The defendant also disposed of certain goods that were located upon the Werrington property by taking them to a local rubbish tip. The plaintiff alleges that the goods were valuable and that the defendant breached the terms of the mortgages in dealing with the goods in this way. She claims damages of $217,000, said to represent her loss in these circumstances. This is referred to as "the goods claim". 2 The plaintiff also contends that the defendant failed to serve a notice upon her in accordance with the provisions of s 57(2)(b) of the Real Property Act 1900 before it exercised its power of sale over Werrington. She contended that the notice should have been sent to her at ** Houison Street, Westmead but that it was incorrectly sent to a different address. Accordingly, the sale was illegal and occurred in breach of the Act and the terms of the mortgage. The plaintiff alleges that she has suffered loss as a result of the sale in the sense that she has lost the benefit of her position as a mortgagor who was entitled to retain the property and exploit it as the owner subject only to her obligations to the defendant pursuant to the mortgage. This is referred to as "the ineffective service claim". No similar claim is made with respect to Toongabbie, for the reason that the s 57(2)(b) notice in respect of the mortgage over that property was actually sent to ** Houison Street, Westmead. Nor is any claim made alleging, for example, that either of the properties was sold at an undervalue or that the defendant somehow otherwise failed to act properly as a mortgagee exercising its power of sale. 3 The facts are generally not in issue. However, all of the plaintiff's claims are contested by the defendant on various grounds. These are referred to in detail later in these reasons. Background 4 The plaintiff relied on three affidavits sworn by her brother Thambiappah Satchithanantham on 21 June 2007, 22 June 2007 and 20 October 2009. She also swore an affidavit on 15 December 2009 in which she purported to "verify and confirm" the contents of the amended statement of claim filed on 6 November 2009. In the events that occurred, the plaintiff also read the affidavit of Cassandra Menzies sworn 7 June 2010. Ms Menzies described herself as "Team Manager - Home Loans, Collections and Credit Solutions" for the defendant. For reasons that will become apparent, it is convenient to refer to her evidence first. 5 Ms Menzies said that the defendant employed her in her present role in Sydney in 2007, although her surname was then Luke. In about March 2007 the defendant entered into possession of Werrington. Ms Menzies was then advised that there were goods stored in the garage on the property. She therefore wrote to the plaintiff at ** Houison Street, Westmead on 14 March 2007 in the following relevant terms: "I refer to the above home loan and advise that the Bank has exercised its power of sale and changed the locks on the security property.

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Should I fail to receive a reply within fourteen days the goods will be considered abandoned and will be placed in storage by the Bank. The costs for the first fortnight will be debited to your home loan and if after this period you fail to collect the items, the storage company may have no option but to deem them abandoned and dispose of them to recover costs." 6 A letter in the same terms was also sent to Satish Menon on the same day. Mr Menon was a co-owner of the property. Ms Menzies said that she recalled speaking to Mr Menon on the telephone on more than one occasion after the defendant took possession of the property in the course of which she said to him that he would need to make arrangements to remove the goods that were then currently stored there. Mr Menon did not say to her that he would remove the goods. Ms Menzies said that "as a result of receiving that advice" [sic] she instructed Mr Peter Gallagher of Grays Auctioneers to inspect the goods with a view to their removal and storage or sale prior to the property being sold. Mr Matthew Travess subsequently told her that the cost of removing and storing the goods would exceed their likely sale value. She later received an email from him on 9 May 2007 in the following relevant terms: "Please find attached listing of assets and photographs for the property at ** Millet Row, Werrington Heights. There is little of commercial value and the cost of removing and relocating these items to our auction rooms would exceed any returns from sale of these assets." 7 Attached to the email was a list of the goods in question to which had been assigned both a high and a low estimate of value if offered for sale at auction. The total high auction estimate was $1,350 and the total low auction estimate was $440. Most of the items in the list were described as having no commercial value at all. 8 Ms Menzies said that as a result of receiving that information, by which she must have meant the verbal advice from Mr Travess, she wrote to the plaintiff at ** Houison Street, Toongabbie [sic] and Mr Menon on 7 May 2007 in the following relevant terms: "I refer to the above home loan and advise that the Bank has received notification that certain items remain in the property despite our previous request to remove, dated 14 March 2007.

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Should I fail to receive a reply within seven days, the goods will be considered abandoned and as such disposed. The costs of which will be debited to your home loan account." 9 Ms Menzies did not receive any reply to these letters. She therefore arranged for Cootabella Transport Pty Ltd to attend the property to remove the goods. She received a telephone call from Mr Jason Clarke from that company while he was at the property. In that conversation he said the following: "There's lots of stuff out here. It's filthy. There's a kebab machine that's still greasy. There are cockroaches everywhere. The pallets and boxes are infested with bugs, and we are getting bitten by them." 10 Ms Menzies was unsurprisingly not cross-examined. It is apparent that the plaintiff read her affidavit as there was no other evidence in the plaintiff's case that either described or itemised the goods in any way at all or that suggested what each item was worth. The plaintiff's brother said at paragraph 24 of his 21 June 2007 affidavit that on 5 April 2007 he went "there", although it is not clear where "there" is, "to change the lock together with the cleaning agent and their staff" where he "found that the big garage lock was opened and the goods worth $16,000 was missing". The defendant objected to the italicised words and I rejected them. At paragraph 26 of the same affidavit he said that when the defendant took possession on 8 February 2007 "of the said property", (which is not otherwise identified), there were large amounts of commercial and personal goods stored in the big garage of the property. He then said, "[t]he big garage size easily accommodates 8 car spaces and total value of goods stored their [sic] were amount to $90,000 commercial insured values ($60,000 and $30,000 in different lessees) and non insured personal goods worth $25,000". The defendant objected to the italicised words and I rejected them. 11 The affidavit of the plaintiff's brother sworn on 22 June 2007 attached a letter dated 15 June 2007 written by Elizabeth Evans from the defendant to S T Krishnar, a solicitor acting at that time for the plaintiff and Mr Menon. That letter was relevantly as follows: "I refer to your facsimile of 12 June 2007, and to our subsequent telephone conversation. I note that you are acting for both mortgagors.

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Consequently our clients further put you on notice that they will proceed to file a claim for damages in respect of all their losses and costs." 13 There does not appear to be any dispute that the only notices sent to the plaintiff pursuant to s 57(2)(b) with respect to Werrington were sent under cover of letters in identical terms dated 3 January 2007 to the security property itself at ** Millet Row, Werrington Downs and ** Ashley Lane, Westmead. 14 When the loan for the purchase of Werrington was originally applied for, the plaintiff nominated her "current home address" as ** Ashley Lane, Westmead. This address is shown as her address in the loan application documents. However, it would appear that the defendant became aware that the plaintiff could be contacted at the address at ** Houison Street, Westmead before 7 February 2007, which is the date referred to by Ms Evans in her letter to S T Krishnar as the earliest date that the defendant became aware of it. This is clear from a letter, included in the folder of documents that became exhibit "A", which is dated 9 October 2006 and which is addressed to the plaintiff and Mr Menon at ** Houison Street, Westmead. Adams J had also earlier referred at par [5] of his judgment published on 22 June 2007 (as to which see below) to a letter dated 11 October 2006 sent by the defendant to the plaintiff at ** Houison Street, Westmead. That letter is annexed to the affidavit of the plaintiff's brother sworn 21 June 2007. 15 The plaintiff also relied upon a letter written to the defendant by Mr Menon on 15 December 2006 in which he informed the defendant that the ** Houison Street, Westmead address was the plaintiff's "postal address". However, for the reasons stated, the defendant had become aware of that address more than two months earlier than that. In addition, a letter and accompanying notice given pursuant to s 57(2)(b) to the plaintiff with respect to Toongabbie dated 1 February 2007 had also been sent to the plaintiff at ** Houison Street, Westmead. 16 As mentioned above, on 22 June 2007, Adams J dealt with an application to restrain a sale of the properties. The following portions of his Honour's reasons for judgment are instructive: "[1] HIS HONOUR : This is an application for interlocutory relief brought by the plaintiff on its own behalf and as attorney for Sivamani Thambiappah and Satish Menon. The latter pair are the registered proprietors of premises at Werrington who mortgaged the property to the Commonwealth Bank.

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(c) …". 18 The plaintiff argued that the defendant had breached the terms of this clause by destroying the goods. She contended that the word "dispose" ought to be construed beneficially to the plaintiff in the context of the mortgage in general and having regard to the intention of this clause in particular. Upon that basis, the defendant could not have been authorised or permitted to destroy the goods as the word "dispose" in these contexts could not have been intended to extend to so drastic a remedy. It had the meaning of putting in a proper or particular order or arrangement or suitable place. 19 The defendant contended on the contrary that "to dispose of" meant to deal with definitely or to get rid of, or to make over or part with as by gift or sale. It contended that the sale of the goods was clearly intended to be only one particular method of disposal out of all the other possible methods of disposal generally. This was said to be clear from a comparison of the general words "we may dispose of the goods" on the one hand, with the specific words "pay any proceeds from selling the goods" on the other hand. The defendant contended that if it were otherwise, one might have expected the clause to say either "we may sell the goods" in the first case or "pay any proceeds from disposing of the goods" in the second case. There were no such words and the power to dispose of the goods extended as a clear matter of construction to a power to destroy or to discard them. 20 In my opinion, the latter interpretation is correct. The words are unrestricted and in their natural and ordinary meaning clearly authorise the defendant to do what they consider to be appropriate in the circumstances. The brake upon the misuse of the power given to the defendant by the clause is to be found in the obligation to give the plaintiff 14 days notice of an intention to dispose of the goods in question. That is what occurred in this case and no complaint is made by the plaintiff that such notice was not given. Indeed, the evidence reveals that the plaintiff was given two notices some months apart and still nothing was done to retrieve the goods. They had clearly not been disposed of before 7 May 2007 as the correspondence reveals. The plaintiff has not explained why she did not seek to remove the goods at any time after 14 March 2007 but before the defendant disposed of them. Her solicitor gave a warning to the defendant in his letter of 21 June 2007, by disputing that the goods were of no commercial value, by which time the defendant had disposed of the goods. The matter came before Adams J the very next day and the dispute about the goods did not appear to receive any attention, apart from a reference in paragraph 5 of the summons to "unlawful removal of the goods stored in the garage during the lease tenancy period and subsequently destroyed by the defendant unlawfully" with which his Honour was apparently not asked to deal. 21 The defendant also contended that the exclusion of liability in the clause itself was wholly destructive of the plaintiff's claim. The plaintiff did not suggest that the exclusion was invalid or inoperative or that it did not protect the defendant from the present claim. The plaintiff did suggest that disposal of the goods by destroying or discarding them fell outside the expression "any action we take under this clause" for the reason that the only authorised action under the clause was the sale of the goods as earlier discussed. For the reasons that I gave in connection with that argument in the first place, it does not seem to me that it can survive to support the plaintiff's position now. The plaintiff did not suggest that the exclusion clause was unfair or unjust or that she did not understand it or that she did not even know of it at all. No claim for any form of relief has ever been mounted by the plaintiff concerning the exclusion and I consider that it operates as a complete answer to the plaintiff's claim. 22 The defendant also put in issue the plaintiff's right or title to sue for any losses or damage resulting from the manner in which the defendant dealt with the goods. There is no evidence from the plaintiff that she owned the goods, that she was a lessee or bailee of the goods or that she had any interest in them of any sort at all. She did not give oral evidence before me at all even though she was present in Court for much of the proceedings. The only statements touching the point are to be found in the amended statement of claim. Paragraph 9 is in these terms: "9. The both lockup garages were used for storage of commercial goods belongs to plaintiff's relatives and their companies , as disclosed in these proceedings since 2003 until they were destroyed by the defendant in 2007." (emphasis added) 23 The simple and unfortunate fact is that the goods are nowhere described in the plaintiff's evidence, with the exception of the affidavit of Ms Menzies to which I have earlier referred. The plaintiff never said what the individual items were, for the clear purpose of identifying them, so that the Court could understand what the dispute was about, or for the purpose of ascribing a particular value to the individual items concerned, and certainly nowhere in the evidence has the plaintiff, or anyone on her behalf, attempted to say how she came to own the goods or to acquire such other interest in them as would have entitled her to sue for their loss. 24 Curiously, the amended statement of claim also contains the following at paragraph 15: "15. The goods stored were belongs to third parties namely, plaintiff, m/s Satchi & Satchi Australia Pty Ltd, Bramooth Satchithanantham, Hemalathasothy Ranjini Satchithanantham at the time the goods were destroyed by the defendant, as recorded in the insurance covers, as disclosed in these proceedings." 25 Apart from the somewhat confusing mode of expression, describing the plaintiff as a third party, there is no evidence that reconciles the paragraph with paragraph 9. It will be recalled that the plaintiff "verified and confirmed" the contents of the amended statement of claim but never gave evidence herself of the matters to which it referred and never gave evidence that explained the contradiction between these paragraphs. Neither paragraph specifies or describes the goods in question in any event. 26 The defendant has taken the point that the plaintiff bears the onus of establishing the several elements of her cause of action. The plaintiff has not satisfied me that she has or had any sufficient interest in the goods to entitle her to recover damages for their loss or destruction. 27 Moreover, for the reasons that are discussed in more detail below, I consider that the plaintiff does not in any event have an independent or separate cause of action for damages or compensation outside the context of an action for the taking of accounts. 28 If it were necessary to assess damages, I consider that the plaintiff has established that the goods referred to in the schedule annexed to Ms Menzies' affidavit had a value not exceeding $1,350 at the date of their disposal by the defendant. The defendant did not suggest or contend that they should be valued at any lower figure. The ineffective service claim 29 This claim gives rise to at least four issues. First, did the defendant serve a s 57(2)(b) notice upon the defendant in respect of Werrington as required by law and/or by the terms of the mortgage? Secondly, if it did not, does the plaintiff have a cause of action against the defendant for damages in the circumstances? Thirdly, if she does, has the plaintiff proved that she has suffered loss that was caused by the defendant's failure to serve a s 57(2)(b) notice upon the defendant as required by law and/or by the terms of the mortgage? Fourthly, if she has, has the plaintiff established the quantum of her loss? 30 With respect to the first issue, the plaintiff referred to clause 21.2 of the mortgage. It was as follows: "21.2 If you are in default and we choose to enforce this mortgage, in most cases we give you a notice before doing so. The notice must:

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(d) in such manner as the Court may direct." 34 The question is whether the defendant served the plaintiff by post sent to her last known residential address. In this respect the plaintiff says that her last known residential address was ** Houison Street, Westmead whereas the defendant says that it was ** Ashley Lane, Westmead. As appears above, Adams J concluded that the last known residential address of the plaintiff was ** Houison Street, Westmead and not the addresses in the loan application form to which the notices under s 57(2)(b) of the Real Property Act were addressed. 35 I agree. The statement by Ms Evans in her letter to the plaintiff that the defendant had not received notice of the Houison Street address until after the notices had been sent is wrong. This is not a case like Robertson v Deputy Commissioner of Taxation [2010] NSWCA 58 where the question could be determined by reference to documents lodged by the taxpayer with ASIC, in which she publicly notified her old address by failing to correct the ASIC record when she changed it, and upon which the Deputy Commissioner was entitled to rely in accordance with the statutory scheme that applied in that case. The defendant in this case is not entitled to rely upon its own internal documents, in the same way that the Deputy Commissioner was entitled to rely upon the ASIC records, even though her own officers had arguably forwarded correspondence to the taxpayer at her new address from time to time. Here the defendant's own records show that it was writing to the plaintiff at ** Houison Street, Westmead since as early as 9 October 2006. It even sent the s 57(2)(b) notice with respect to the Toongabbie mortgage to the plaintiff at that address. It is also not without significance in my opinion that, for the purposes of advising the plaintiff about storage and disposal of the goods on the premises, Ms Menzies addressed her letter dated 7 May 2007 to the plaintiff at ** Houison Street, Toongabbie [sic]: see [8] above. 36 The defendant also argued that the issue was in fact to be determined by reference to the question of whether or not the plaintiff actually received the notice, rather than by reference to the question of whether or not it was served in accordance with the Act and the terms of the mortgage. It submitted that the plaintiff bore the onus of establishing that she had not received the notice and that the evidence upon which she relied did not go so far. The plaintiff never said that she did not receive the notice and the defendant contended that an adverse inference should be drawn against her on that issue in the circumstances. 37 I disagree that the plaintiff bore the onus of demonstrating that she did not receive the notice. That may have been an issue of interest touching the question of discretion of the type exercised by Adams J when considering whether or not to restrain the sale of the property. It will be recalled in this respect that his Honour came to the view that the notice had not been properly served, but that it had in any event come to the attention of the plaintiff because it had been received by her brother who held her power of attorney. His Honour held that the plaintiff had constructive notice of the defendant's intention to exercise its rights under the mortgage and declined to restrain the sale. 38 In the present case the plaintiff does not say, and in my opinion does not have to say, that she had no knowledge of the notice. Instead she relies upon the defendant's failure to comply with the technical and literal terms of the Act and the mortgage. That is a question of compliance by the defendant, not knowledge of the plaintiff. Whether that technical breach or failure gives rise to a good cause of action against this defendant, or whether it ever does so, remains to be considered. 39 That is the second issue and is more difficult. Accepting for the purposes of the argument, as I have found, that it had not properly served her at the Houison Street address, the defendant contends that the plaintiff does not have a cause of action for damages against it for proceeding to sell Werrington. The defendant specifically pleaded the terms of its defence in this respect in paragraph 17 of its further amended defence as follows: "(a) if the plaintiff is entitled to any remedy against the defendant (which is denied) the only remedy available is pursuant to a suit in equity in which, upon offering to redeem or account, the plaintiff may litigate the question of any alleged equitable delinquencies on the part of the mortgagee;

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In my opinion, these proceedings were misconceived from the start and there is no such proceeding known to New South Wales law. The true position was expounded by Sir Frederick Jordan in the case of Coroneo v Australian Provincial Assurance Association Limited (1935) 35 SR (NSW) 391, in which he explained in detail that this is not the right form of action, that the only proceedings available are, if the sale has not been completed, for an injunction, in which an offer is made to discharge the mortgage, or, as here, when the sale has been completed, proceedings for accounts between the parties upon the basis that the mortgagee ought to be debited with sums in excess of what he obtained, and the mortgagor is to be credited with sums which the mortgagee ought to have received if it had exercised its power of sale properly. In certain cases this confusion may be important. Fortunately, this case is so clear that it does not matter very much on what basis it is dealt with. However, the hearing of the case was, in my opinion, extended beyond what it ought to have been because this was not firmly borne in mind." 44 The issue was later considered by his Honour in Adams v Bank of New South Wales [1984] 1 NSWLR 285 at 296 in these terms: "There is authority in this Court for the view that the bar to the obtaining of a declaration as between mortgagor and mortgagee, except where there is an offer by the mortgagor to redeem, is not merely procedural, but substantial, that is, the only circumstances under which a mortgagor can call upon a mortgagee to account is where the mortgagor is prepared to make an offer to redeem: Kennedy v General Credits Ltd (Court of Appeal, 14 May 1982, unreported). The reason is simple - any other rule would enable a mortgagor to involve a mortgagee in futile litigation because the result could have no effect upon the legal rights of the parties. In Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (Court of Appeal, 24 August 1982 unreported) Hutley JA, with whom the other members of the Court agreed said:

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[36] This view is reinforced by the decision of the Court of Appeal in Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614. In that case, Beazley JA, with whom Mason P and Bryson J agreed, made it clear that after the exercise of the power of sale the action is not one for account but is one for equitable damages." 48 I was also referred to portion of an extensive decision delivered by Vickery J in Nolan v MBF Investments Pty Ltd [2009] VSC 244. That was a case in which his Honour found that there had been a breach by the mortgagee of its obligations pursuant to s 77(1) of the Transfer of Land Act 1958 (Vic) which provided relevantly as follows: "77(1) If within one month after the service of such notice or demand [the notice to pay or demand on a default under s 76] or such other period as is fixed in such mortgage or charge the mortgagor grantor or other persons do not comply with the notice or demand the mortgagee or annuitant may, in good faith and having regard to the interests of the mortgagor grantor or other persons, sell [the mortgaged land]..." 49 At [301] his Honour said this: "[301] I see no reason in principle to confine the remedy of accounts to the factual circumstances which have hitherto arisen. The remedy is equally appropriate to other breaches of a mortgagee's obligations under s 77(1) TLA, such as the breach I have found in this case." 50 I was also asked to consider what was said by Young J (as his Honour then was) in Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 at 378 as follows: "The Conveyancing Act , s 112(3), provides that if there is a conveyance in professed exercise of the power of sale conferred by the Act, then notwithstanding that due notice was not given, the conveyance shall be valid. That subsection is not directly relevant in the instant case because the transaction has not proceeded to the stage of conveyance (see Forsyth v Blundell (1973) 129 CLR 477 at 497-498), but its presence is a good indication that the legislature did not intend to invalidate a sale because of non-compliance with s 111.

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It is accordingly unnecessary to deal with the further submission that if a notice is given under the Real Property Act , s 57, in connection with part of the land the subject of the security, s 104 makes it unnecessary to give a notice in respect of any collateral security, but I must confess I am not attracted by this argument at all." 51 Finally, what was said by Irvine CJ in McGinnis v The Union Bank of Australia Ltd [1935] VLR 161 was relied upon by the defendant as support for the proposition that the plaintiff had no viable cause of action of the sort alive in this case. In McGinnis the plaintiff brought a claim for damages for breach of an implied contract by a mortgagee that in exercising the power of sale under the mortgage it should not fraudulently, recklessly or wilfully sacrifice the plaintiff's interest, or alternatively, for breach of a statutory duty to the same effect. In dealing with an equivalent Victorian provision to s 112 of the Conveyancing Act, his Honour said this at 164-5: "The relevant words of the sub-section are:--'Where a transfer is made in professed exercise of the power of sale conferred by this Act the title of the transferee shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.' It is contended that the words 'any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power' have the effect mentioned above. In my opinion they have no such effect. These words must be read in connection with the words immediately preceding them, and the words 'improper exercise' have no wider scope than the words 'improperly exercised'. It is, I think, clear that in both cases what is referred to is the injury to the mortgagor from a 'professed' exercise of the power of sale, which, but for the validating words at the beginning of the sub-section, could have been set aside at his instance as being an invalid exercise of the power. The words 'improper' and 'improperly' are apt to cover sales which, though regular in form, are deemed in equity to be voidable, as for instance sales by the mortgagee to himself or some person or company in which he is interested. In my opinion it was never intended by the words used, read with their context, to create a new cause of action for any of these matters which, not affecting the purchaser's title, may give rise to a claim for damages or compensation as between mortgagee and mortgagor only." 52 The defendant contended that this was analogous support for the absence of any common law claim for damages under s 112. It noted that s 58 of the Real Property Act in any event did not contain an express right to claim damages. 53 The plaintiff did not refer me to any other authorities. 54 The authorities upon which the defendant relies "speak with one voice". In particular, the language used by Hutley JA and Hope JA in Colin D Young in 1982 and by Hutley JA in Adams in 1984 was clear and straightforward. It might these days also be expressed, more than a quarter of a century later, in terms of a concern to avoid a multiplicity of actions, or in terms promoting the efficient and expedient use of the Court's resources. Whatever legal or philosophical formulation is used, there is no support for the proposition that a disgruntled mortgagor can choose to mount several different cases against a mortgagee, raising various complaints about the exercise of its power of sale or about alleged delinquencies in the manner of performance of a multitude of other obligations said to constrain it, except within the structured and ordered confines of the one account between them. In forming this view I consider it to be relevant first, that Werrington has been sold, but secondly, that far from there being a surplus following that sale, which the defendant is holding on trust for the plaintiff, there is an admitted deficiency. In this sense, the account between the plaintiff and the defendant is not yet finalised or closed, even though the plaintiff may not strictly be considered to be suing to recover surplus proceeds of sale. That notwithstanding, a dispute remains between the plaintiff and the defendant on the status of the one account between them. A suit for equitable damages, as referred to by Young CJ in Eq in Lord at [36], would in the particular circumstances of this case necessarily still have to be brought within the rationale for the rule so plainly articulated by both Hutley JA and Hope JA in Colin D Young and by Hutley JA in Adams. As was said by Beazley JA in Hadfield at [48]: "[48] For present purposes therefore, it can be said that a claim for accounts is a claim for equitable relief where (as in this case) a mortgagor is suing a mortgagee to recover money being the alleged surplus proceeds of sale. The proceedings are not relevantly complete until an order to pay that balance is made." 55 The third issue was unsupported by any relevant evidence at all. The plaintiff contended that she had suffered inconvenience and disruption as a result of the actions of the defendant. These actions were not limited to the breaches upon which the cause of action for damages was said to rely but would appear to have included the very complaint that the property had been sold at all. In the events that occurred, Adams J refused to enjoin the sale of Werrington when the plaintiff sought an order that he do so. Putting aside the fact that I have concluded that the plaintiff does not have a cause of action of the type now propounded at all, success in a claim for damages in the way originally framed by her would require proof of losses that would not have been incurred or sustained as the result of the sale of the property in the normal course. The plaintiff has not isolated or identified any category of loss or damage that is not what might be considered to be the normal or expected consequence of an unexceptionable exercise of the power of sale of the property by the defendant. 56 Lastly, there is no evidence capable of establishing what the plaintiff's alleged losses might be. The Court is indebted to Mr C R Ireland of counsel for the plaintiff, who appeared following an order that I made, on an occasion when I vacated an earlier hearing date at the plaintiff's request, directing the Registrar to enquire about whether it may have been possible to arrange representation for her on a pro bono basis. In those circumstances, having been only recently retained, it was not possible to give him an opportunity to be involved in the earlier decisions about the conduct of the plaintiff's case. Accordingly, having regard to the state of the available evidence, he recognised, and was impelled to submit, that the question of the proof of the quantum of the plaintiff's loss and damage should be deferred until a later hearing. I am not prepared to do so. 57 It is clear that directions and orders had been made by Davies J on 22 February 2010 that, among other things, the plaintiff file and serve all affidavits which she proposed to read at the hearing and that in the event that she failed to comply with that order, she not be permitted to adduce evidence at the hearing without leave. Those orders in combination did not permit of an interpretation that the case should be split or that any issues should be decided separately from any others. The defendant had also made it clear that it would not for its part acquiesce in the plaintiff's non-compliance with the orders of Davies J should that occur. The plaintiff made no application before the hearing commenced for any issues to be decided separately from all others. I have some doubt that the plaintiff herself has ever had an adequate appreciation of the legal and factual complexities that confronted her, to some of which it has been necessary in detail to refer. I include among those things an appreciation of the need for her to marshal evidence to prove all issues at a final hearing, including proof of loss where appropriate. Conclusions and orders 58 It follows that the plaintiff's claims should be dismissed with costs.

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