Pianta J.H. & Anor v National Australia Bank Ltd & Anor [1995] FCA 156

LIMITED DISTRIBUTION ONLY

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 528 of 1994 ) GENERAL DIVISION )

BETWEEN: JOSEPH HENRY PIANTA First Applicant LORNA MARY PIANTA Second Applicant

AND: NATIONAL AUSTRALIA BANK LIMITED First Respondent DIBBS CROWTHER & OSBORNE Second Respondent

CORAM: Burchett J. PLACE: Sydney DATE : 10 February 1995

REASONS FOR JUDGMENT

BURCHETT J.:

This application is another example of the sad consequences of the rural recession in Australia over the past number of years. In it, Mr and Mrs Pianta seek an interlocutory order restraining the bank from proceeding with a sale of their farm pursuant to the power of sale conferred by a mortgage or other securities. The matter is of some long standing. Notices tendered before me indicate that the bank has been taking formal steps to endeavour to recover a sum in the vicinity of $200,000 since at least 4 December 1990. Proceedings were instituted in the Supreme Court of New South Wales, in which an order was made in favour of the bank for possession by Hodgson J, who gave a formal judgment in which he noted: "It may be the case that the demands were for a somewhat larger sum than was actually due, but I do not think that would invalidate the demand for the purposes of these proceedings." (I interpolate, that is proceedings for possession.) He continued: "Indeed, the right to possession as distinct from the right to sell, depends on default and does not require any demand." His Honour held that there had been default, and gave judgment for possession of the whole of the land, but ordered that the writ of possession not be executed before 30 November 1993. In fact, I was told, possession was not given until some time in June of last year. The proceeding in this Court, in which the present interlocutory relief is sought, was instituted last year. A statement of claim issued by Mr and Mrs Pianta was struck out on 9 November 1994 by Davies J. In the course of his judgment, he referred to the Supreme Court proceedings, and made the statement: "The Supreme Court proceedings did not decide whether there was a right of sale and it did not decide whether there was any misleading or deceptive conduct on behalf of the Bank. If there is something that the applicants wish to litigate which has not been determined by the Supreme Court proceedings it can be raised in proceedings in this court." However, his Honour thought that the statement of claim did not properly raise any issue of the kind to which he had referred, and he struck out the statement of claim, while granting leave for the filing of a further statement of claim. A further statement of claim was in fact filed on 7 December 1994. I have been informed that the bank has again taken out an application for the striking out of this statement of claim, as it did in respect of the previous one. I have, of course, formed no view about the merits of that application, but I do note that in some respects the amended statement of claim does appear to repeat some of the allegations which were the subject of his Honour's judgment. It does also refer to the bank's demand of 2 May 1991 pursuant to s. 57(2)(b) of the Real Property Act 1900. The statement of claim contains the bald allegation that the letter of demand dated 2 May 1991 alleged a default which had not occurred at that time, and a further bald allegation that the said notice delivered and served on the first applicant by the first respondent, that is the bank, purportedly pursuant to the Real Property Act 1900, s. 57(2)(b), was not in accordance with the strict requirements of the Real Property Act 1900. There is a series of allegations, again in bare terms, of misleading conduct. It is far from clear to me what precisely is alleged to have been the failing in respect of the demand upon which the statement of claim was intended to fasten. It should be added that there was no claim to sell in the proceedings in the Supreme Court, a matter to which I have already adverted. But the fact is that I have not been provided with any details that would enable me to form any view as to the correctness of the claim made by the applicants which I interpret as meaning that the notice overstated the amount due. It seems perfectly clear that, even if it did so, the overstatement was not substantial having regard to the judgment of Hodgson J and the absence of any particular allegation suggesting any gross misstatement. A claim of the kind advanced before me for the grant of interlocutory relief requires, as has often been stated, both the establishment of a sufficient question to be tried and the establishment of a favourable balance of convenience. These issues are not totally distinct and separate, but may be considered together. The strength of the case will have a bearing on the balance of convenience and vice versa. In the present case, there is a question whether damages would not be an adequate remedy, supposing the claim put forward by the applicants to be justified. They are not farmers carrying on a current farming operation liable to be subjected to the disruption of a sudden termination of that operation by the carrying out of the sale. On the contrary, as an end step in very lengthy proceedings, they were finally evicted from the farm more than six months ago, and what is now proposed by the bank is the sale of that farm. If, at the final hearing of the proceedings, Mr and Mrs Pianta do establish a case, they will be able to seek damages in lieu of an injunction. In all the circumstances, it seems to me that the proper decision is that interlocutory relief should be refused, and the applicants should be left to their remedy of damages. I so order. I also order that the costs of today's application be costs in the cause.