Bryant, Adrian Cecil v Australian & New Zealand Banking Group Ltd [1996] FCA 232

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES ) No. NG 610 of 1994 ) DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: ADRIAN CECIL BRYANT Applicant AND: AUSTRALIAN & NEW ZEALAND BANKING GROUP LIMITED - ACN 005 357 522 First Respondent ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

CORAM: Wilcox, Tamberlin, Finn JJ PLACE: SYDNEY DATE: 12 APRIL 1996 MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES ) No. NG 610 of 1994 ) DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: ADRIAN CECIL BRYANT Applicant AND: AUSTRALIAN & NEW ZEALAND BANKING GROUP LIMITED - ACN 005 357 522 First Respondent ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

COURT: Wilcox, Tamberlin, Finn JJ. DATE: 12 APRIL 1996 PLACE: SYDNEY REASONS FOR JUDGMENT In this application for leave to appeal under the Federal Court Rules O52 r10 we have been invited to clarify what are said to be persisting problems in the law of res judicata and of what, for convenience, can be called Anshun estoppel (cf Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 535). In the event the application can and should be dismissed on quite narrow grounds. By his own actions, through releases he has signed and undertakings he has given -all with the benefit of independent legal advice - the applicant has denied himself the very claims he now seeks to be allowed to mount against the respondent. To appreciate why we have dealt with this particular application in the manner noted, it is necessary to outline briefly the dealings and the proceedings between the parties prior to the present application. The Prior Proceedings and Dealings In early 1990 as part of a refinancing arrangement Mr Bryant ("the applicant") executed a mortgage over a number of properties in favour of the Australian and New Zealand Banking Group Ltd ("the respondent", "the Bank") to secure borrowings in excess of $2 million. It is not disputed that the applicant was by 1992 in default under this arrangement. In May 1993 the respondent demanded repayment of the applicant's indebtedness to it. In June it initiated Supreme Court proceedings against him by way of summons. It claimed only judgment for possession and leave to issue a writ of possession. Mr Bryant filed a defence and a cross-claim. Whatever their precise object may have been - they are imprecisely expressed - they sought at least to impugn the Bank's mortgage. They raised, variously, allegations of undue influence, unfair and unconscionable dealing and breaches of the Contracts Review Act 1980 (NSW) and the Fair Trading Act 1987 (NSW). Insofar as there was any attempt made to particularise these allegations, reference was made to promises/representations said to have been made on behalf of the respondent prior to the execution of the mortgage. In November 1993 the parties through their solicitors negotiated a settlement. The Bank's solicitors took quite specific measures (referred to in his Honour's Reasons for Judgment of 14 October 1994) to ensure that Mr Bryant's consent to the settlement was an informed one resulting from independent legal advice. The settlement, which took effect in conjunction with a consent order, provided that (i) the Bank be granted judgment for possession of the land in question; (ii) the Bank be granted leave to issue a writ of possession; and (iii) verdict be given for the Bank on the cross-claim. Importantly clause 5 of the short minutes (which deferred the possible issue of the writ and provided a scheme for payment of the Bank) provided as well that: "(q)In consideration of the Plaintiff entering into this agreement with the Defendant, the Defendant does hereby release the Plaintiff from all claims for compensation, damages or other remedy or claim whatsoever and howsoever arising out of the Plaintiff's and Defendant's Banker/Customer relationship, the Mortgages, its security documents, agreements for loans, advances and facilities, the subject of these proceedings." It will be necessary to return to cl 5(q). Suffice it to say here that the principal claim Mr Bryant now seeks to bring against the Bank relates to the alleged terms of the mortgage itself. The scheme for the orderly realisation of the properties referred to in the Short Minutes of Order broke down because of actions of Mr Bryant. In April 1994 a writ of possession was issued. Over the period from 20 May to 2 June 1994 the Sheriff delivered to the Bank possession of all save one of the mortgaged properties. On 6 June 1994 the parties entered into a contract (i) under which possession of the remaining property was to be delivered up; (ii) which acknowledged a power of sale in the Bank (clause 1 (j),(k)); and (iii) which concluded with the acknowledgment (clause 1(p)) that Mr Bryant - "... has received independent legal advice on the contents of this Agreement and he has read same and fully understands the nature and effect of this undertaking and covenant and has freely and voluntarily entered and executed this Acknowledgment and Undertaking." The properties have now been sold by the Bank. The New Litigation Mr Bryant initiated the application which has given rise to this leave application in September 1994. As a result of two sets of orders of Lindgren J of 14 October 1994 and 29 March 1995 that application and the related statement of claim have undergone a number of mutations. At present we have before us the Second Further Amended Application and the Second Further Amended Statement of Claim. We would note in passing that some number of the claims made in that application either are not the subject of this leave application or else remain on foot as a result of the conclusions of Lindgren J in his judgment of 20 September 1995. The claims of present relevance are for: "3. Damages pursuant to the Trade Practices Act 1974 and/or the Fair Trading Act (NSW) 1987. 4. Such further relief pursuant to the Trade Practices Act 1974 and/or the Fair Trading Act (NSW) 1987 as the Court sees fit. 5. An order that the loan documents referred to in the Statement of Claim be rectified to contain the terms and conditions embodied in the first respondent's ("the bank's") letter of 28 February 1990. 6. A declaration that no power of sale had arisen in favour of the bank as against the applicant pursuant to the Real Property Act (NSW) 1900 by reason of the bank's failure to comply with s57(2)(b). 7. A declaration that no, or no valid, notice pursuant to the said s57(2)(b) had been issued by the bank prior to sale of the properties contained in Schedule "A"." It is not necessary here to set out the various paragraphs of the Second Amended Statement of Claim which relate to these claims. Nor is it necessary to refer further to the two sets of orders of Lindgren J mentioned above. We would note, though, that the application in its original form was subject to a largely successful motion for summary dismissal. A like motion has been brought by the Bank in relation to the application as it now stands as also to its associated statement of claim. In his judgment of 20 September 1995, Lindgren J dismissed the proceedings instituted by Mr Bryant in relation to the claims for relief made (inter alia) in paragraphs 3 to 7 of the Second Further Amended Application. We would note in passing that the claim made in paragraph 8 also was dismissed. There is no need to set out that paragraph. No explicit challenge has been made in the present application to the order made in relation to it and we have not been addressed on it. The reason that particular claim was dismissed was that no material facts at all were pleaded in the statement of claim in support of it. His Honour's order as to paragraph 8 was clearly correct. Paragraphs 3 to 7 were struck out on various grounds. All were struck out on the ground of res judicata, the earlier judgment relied upon being the consent order in the Supreme Court proceedings. As a matter of caution his Honour indicated Anshun estoppel would prevent Mr Bryant seeking any relief based on the letter referred to in para 5 of the Second Further Amended Application. Finally his Honour indicated there were further reasons why the applicant should not be permitted to claim the relief referred to in paragraphs 3-7 on the basis of any misrepresentations as to the rates of interest to be charged. We need mention only one of these. It is the release given by Mr Bryant which is contained in clause 5(q) of the short minutes of order of 18 November 1993. The exceptionally broad terms of this are set out earlier in these Reasons. They preclude any claim for relief based on the letter referred to. Having dealt with paragraphs 3-7 in this composite way, Lindgren J then considered the paragraph 6-7 claims independently, at least to the extent that they were founded on grounds other than representations as to the interest rate to be charged. The Second Further Amended Statement of Claim (paras 27-29) pleaded that when the mortgaged properties were sold at the end of 1994 no power of sale had arisen under the mortgage. There were in his Honour's view, several answers to this. Again we need only refer to one of those given which itself is decisive of the matter. It is convenient to give his Honour's own conclusion (at 44 of his unpublished reasons): "[B]y the Acknowledgment and Undertaking dated 6 June 1994, Mr Bryant agreed that the Bank should be entitled to do all things necessary to enable the properties to be prepared for sale and not to do anything which might interfere with or prejudice the Bank's ability to sell. I am of the view that by reason of this and his subsequent standing by and not challenging the existence of the power of sale while the Bank sold the properties Mr Bryant acquiesced in the Bank's exercise of its power of sale, or alternatively, is estopped and precluded from raising it at this time: cf Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) NSW ConvR 55 720." The grounds relied upon in the application for leave to appeal, and the oral and written submissions made to us, sought to establish that Lindgren J misapplied the principles of res judicata and Anshun estoppel and thereby prevented the applicant from having determined (i) such claims as he may have against the Bank in relation to the mortgage contract itself - his principal claim here is as to the terms of his interest liability under the mortgage contract; and (ii) his challenge to the existence of the Bank's power of sale based on non-compliance with the provisions of the Real Property Act 1900 (NSW), s57(2)(b). Whether or not there be any substance at all in the criticisms made of his Honour's application of the principles of res judicata and Anshun estoppel in the instant case - and we express no view at all on this - it is clear that the claims made in paragraphs 3 to 5 of the Second Further Amended Application as elaborated in the Second Further Amended Statement of Claim are all claims which relate to the mortgage contract. As such they are caught by the release executed by the applicant contained in the Short Minutes of Order of 18 November 1993. That release has not been impeached. Mr Bryant has placed himself out of court in this matter. It is likewise the case with the claims made in paragraphs 6 and 7 to the extent that they are founded on the alleged terms of the mortgage contract. Equally, in relation to the challenge to the power of sale (the paragraph 6 and 7 claims), to the extent that these are not based on the mortgage contract itself, we can see no reason for disturbing Lindgren J's finding that Mr Bryant by his own actions has precluded himself from raising this question. We would add that no reason for so doing was advanced by the applicant. We would emphasise in particular that no objection was taken to the use made of estoppel in this context notwithstanding that it may possibly involve setting up an estoppel in the face of a statute: see Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993; Wongola Holdings Pty Ltd v Mulinglebar Pty Ltd (1994) NSW ConR 55-720; Spencer Bower and Turner, Estoppel by Representation, 141 ff (3rd ed). Interesting and lengthy arguments have been addressed to us on res judicata and Anshun estoppel. Nonetheless this application for leave should be dismissed for reasons quite unrelated to those arguments. The claims made by Mr Bryant against the Bank and which have been dismissed are, simply, claims that must fail in any event either because of the release or because Mr Bryant has acquiesced in the Bank's sale of the properties or else is estopped by his own conduct from objecting to the sales.