FEDERAL COURT OF AUSTRALIA Cottle v Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) [2010] FCA 147 Citation: Cottle v Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) [2010] FCA 147 Parties: TONY BRUCE COTTLE v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522) File number: VID 51 of 2010 Judge: DODDS-STREETON J Date of judgment: 26 February 2010 Catchwords: PRACTICE AND PROCEDURE – Notice of Motion – Application for dismissal of application or transfer to the Supreme Court of Victoria – Whether reasonable prospects of success. Legislation: Federal Court of Australia Act 1976 (Cth), s 31A Federal Court Rules, O 4 r 14; O 20 r 5 Cases cited: Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 Date of hearing: 26 February 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 44 Solicitor for the Applicant: In Person Counsel for the Respondent: C Moller Solicitor for the Respondent: Norton Rose Australia IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 51 of 2010 BETWEEN: TONY BRUCE COTTLE Applicant AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522) Respondent JUDGE: DODDS-STREETON J DATE OF ORDER: 26 FEBRUARY 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Application dated 21 January 2010 is dismissed. 2. The Applicant pay the Respondent's costs of the Application and the Notice of Motion dated 9 February 2010. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 51 of 2010 BETWEEN: TONY BRUCE COTTLE Applicant AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522) Respondent JUDGE: DODDS-STREETON J DATE: 26 FEBRUARY 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There are two related applications before the Court: (a) An application filed 28 January 2010, in which the applicant, Tony Bruce Cottle, alleges that the respondent, the Australia & New Zealand Banking Group Limited ("ANZ") is guilty, inter alia, of unconscionable conduct in relation to financial services. The application seeks relief pursuant to ss 12CA, 12CB, 12DB and 12GD of the Australian Securities and Investment Commission Act 2001 (Cth) ("ASIC Act"), including an injunction restraining the ANZ from continuing certain Supreme Court proceedings, which are discussed in greater detail below. The application was supported by the affidavit of Mr Cottle sworn 28 January 2010, a further document described as an affidavit, but which was not sworn or dated, to which voluminous materials were annexed, and a document designated a "Statement of Claim". (b) By a notice of motion filed 9 February 2010, the ANZ seeks that the applicant's claim be dismissed or alternatively transferred to the Supreme Court of Victoria pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The notice of motion is supported by the affidavit of Mr Glyn Sadler sworn 9 February 2010 and the affidavit of Ms Carolyn Symons sworn 24 February 2010. 2 Mr Cottle, who was not legally represented, appeared in person. The application and supporting documents were all prepared by Mr Cottle. Understandably, they did not observe the conventions of pleading and the affidavits contained much inadmissible material. There was a lack of precision or detail and it was difficult to derive a coherent narrative of relevant events. 3 At the first directions hearing on 12 February 2010, the hearing was adjourned until 26 February 2010 in order to permit Mr Cottle an opportunity to obtain legal representation. (The Court was informed that a related application for summary judgment in the Supreme Court was also subsequently adjourned until 1 March 2010). 4 At the hearing on 26 February 2010, Mr Cottle, by a notice of motion dated 25 February 2010 supported by an affidavit sworn 25 February 2010, sought a further adjournment. That application was opposed. 5 Mr Cottle deposed that he had approached a number of legal practitioners seeking representation, without success. Many practitioners had declined, while two had not responded. At the hearing, Mr Cottle also informed the Court of his discussions with a solicitor said to be willing to represent him, with whom he intended to meet in the afternoon. 6 In the circumstances, there could be no sufficient confidence that a further adjournment would result in the applicant securing legal representation. There was no notice that the solicitor with whom the discussions had occurred had been appointed to act for the applicant under O 45 rule 5 or other evidence of a concluded arrangement for representation. Mr Cottle was unable to give a definite indication of when the matter would be able to proceed. A further adjournment would have resulted in the incurring of further costs in circumstances where a costs order would be unlikely to avert prejudice to the other party. Further, for the reasons set out below, the applicant would, in any event, remain able to ventilate his claims in the Supreme Court. 7 Mr Cottle also sought leave to be represented at the hearing by a friend who was not admitted to practice or legally trained. 8 Mr Cottle prepared the extensive material already before the Court, including the affidavits. He had direct and full knowledge of the facts asserted. In such circumstances, I declined to exercise my discretion to permit a person who lacked the applicant's direct knowledge of the facts to appear on his behalf. 9 The affidavit of Glyn Sadler, the Manager Lending Services, Commercial, of the ANZ sworn 9 February 2010 elucidated the background to Mr Cottle's application. 10 Mr Sadler deposed that Mr Cottle is and was the sole director, secretary and shareholder of Global Property Group (Aust) Pty Ltd ("Global"), a company to which the ANZ, in or about January 2007, loaned $400,000 to purchase an abattoir property. As security for the advance, it took a mortgage dated 7 March 2007 over the property and a fixed and floating charge over Global's assets and undertaking. 11 Further, the ANZ made two temporary loans each of about $40,000 to another company associated with Mr Cottle, Stirling Natural Foods Pty Ltd ("Stirling") in February and March 2007, which were subsequently repaid. 12 Mr Sadler deposed that Global defaulted in payment of its loan. In May 2009, the ANZ issued proceedings in the Supreme Court of Victoria for recovery of the loan amount together with interest, and possession of the property. The statement of claim pleaded an advance of a facility to Global pursuant to an agreement dated 30 January 2007, the grant of a mortgage over the abattoir land, indebtedness totalling approximately $407,000 as at September 2007 and demands which were made on or about 29 January 2008 and on or about 14 April 2009. 13 Mr Sadler deposed that Global entered an appearance and filed a defence dated 2 July 2009 in the Supreme Court proceedings. Legal practitioners M L Law acted for Global at that stage. Global's defence dated 2 July 2009 alleges, inter alia, representations by Ms Bronwyn Payne to Mr Cottle on behalf of Global that ANZ would advance $600,000 for purchase of the property, advance a term loan of $400,000 to expand the chiller capacity of the abattoir business and provide an overdraft of $200,000 for working capital. 14 The defence alleges that Global, in reliance on the representations, acted to its detriment, in that it offered to purchase the property and businesses, entered equipment and vehicle leases to a value of $230,000 and through its director provided guarantees and debentures over other properties to secure the advance. It further alleges that, in the event, in breach of the representations, the ANZ only provided $400,000 for the property and an overdraft of $50,000 but refused to advance any funds to expand the chiller capacity. 15 The defence alleges that Global acted to its detriment in making the offer to purchase the property and business, entering into equipment leases and providing guarantees and debentures over other properties. It alleges that the termination of the facility and demand for repayment were unconscionable. 16 Mr Sadler deposed that the ANZ issued a summons for summary judgment in the Supreme Court proceeding returnable on 1 February 2010 which was adjourned that day on Mr Cottle's request to 22 February 2010. (The hearing of the summons was subsequently adjourned to 1 March 2010). The parties were ordered to file and serve any affidavit material prior to that date. 17 Mr Sadler deposed that he is aware of the claims of Mr Cottle in the Federal Court proceeding and of the claims made by Global in the Supreme Court proceeding. He deposed to his belief that Mr Cottle's claims are without foundation, are not actionable by him personally and could, in any event, involve matters and allegations the subject of the Supreme Court proceeding which can be determined there. 18 The affidavit of Ms Carolyn Symons (of the solicitors for the respondent) exhibited a document entitled "defence" dated 9 February 2010 filed by Mr Cottle on behalf of Global in the Supreme Court proceeding and a company search of Stirling, which discloses that Stirling was deregistered on 8 November 2009. 19 Broadly, Mr Cottle's application seeks an injunction restraining the ANZ "from continuing proceedings in the Supreme Court until the proceedings here are concluded". 20 It alleges that: the ANZ as mortgagee had an obligation to provide sufficient finance to Global as trustee for the Denaton Family Trust to enable it to succeed in its business venture; the ANZ made representations to Global that it would support it in its endeavour to purchase and operate an abattoir at 55 Preston Road Koo Wee Rup; the abattoir failed as a direct result of the ANZ to fulfil obligations under the ASIC Act, including implied warranty provisions; the applicant altered the position in reliance on the representations; the ANZ would not release its fixed and floating charge over the companies and the applicant's property to enable him to find alternative funding; the ANZ's conduct was unconscionable; the ANZ is attempting to realise its security over the assets of Global. 21 By an affidavit sworn 28 January 2010, Mr Cottle elaborated his claims. He stated that he is a farmer and primary producer, who, during 2006 expanded his business plans to purchase a domestic meat processing facility in order to expand it. He approached a number of financial institutions, including the ANZ, with a business plan which was hand delivered in October 2006 and subsequently emailed on 29 November 2006 to the ANZ Ringwood Branch. 22 Mr Cottle deposed that the ANZ was, at the time, conducting an advertising campaign to the effect that it supported small businesses and had retained small business advisers. 23 Mr Cottle deposed that he initially dealt with Ms Bronwyn Payne at the ANZ's Ringwood Branch, who told him that she had worked with similar businesses. They discussed initial funding to purchase the Koo Wee Rup abattoirs business and freehold and additional assistance to expand it. Ms Payne assured Mr Cottle that she had authority to assist him with the business plan and development and would assist with funding. 24 Mr Cottle deposed that the business plan involved a number of companies, including Global, which was to own the abattoir's freehold land. Stirling was the trading processing company, ATO Smart-Meat Pty Ltd was the meat export company and Denaton Industries Pty Ltd was the leather processing company. 25 Mr Cottle deposed to settlement of the purchase of the freehold and the business, which occurred on 5 February 2007. A mortgage over the freehold, a debenture and personal guarantees were given. 26 Mr Cottle deposed that after settlement, following discussion with Ms Payne, a temporary overdraft facility of $50,000 was granted and two delivery trucks were purchased with assistance from Esanda. 27 Mr Cottle deposed that following Ms Payne's transfer in about May 2007, he dealt with Mr Selac at the ANZ who allegedly "strangled" the business through ongoing reductions of the overdraft and unwillingness to assist with requirements to complete chiller extensions. Mr Selac placed the funding on hold. 28 Mr Cottle deposed that on or about 7 August 2007, Mr Sadler, a collections officer of the ANZ, informed Mr Cottle that he was an undesirable customer and that the mortgage facilities and overdraft were cancelled. The ANZ subsequently refused to mediate or negotiate. 29 Mr Cottle deposed that during 2008, he secured three offers of alternative finance from Cash Resources, NAB and BankWest, but the ANZ refused to release the debenture charge over the trading company, Stirling, and he was unable to complete the refinancing process. Mr Cottle annexed a Business Plan Blueprint, a chain of emails between himself, Ms Payne and a refinancing agent, and between Mr Cottle and the ANZ in relation to release of the debenture. 30 A voluminous and discursive document styled "statement of claim" prepared by Mr Cottle, names as applicants Global and Mr Cottle. It reiterates or amplifies some factual allegations concerning the abattoir investment and Mr Cottle's circumstances, adding that the ANZ at "the last minute" prior to settlement declined to supply working capital of $200,000 - $400,000 to operate the meat export business. The statement of claim states that Mr Cottle was forced to sell properties in 2008 when the market was low and therefore lost several hundred thousand dollars. 31 The statement of claim requires the Federal Court to restrain the ANZ from any further action against Global or from taking possession of the property. It seeks orders relieving Global from the payment of interest and loan enforcement fees, compensation for reducing Mr Cottle's net worth, damages for loss of earnings, an apology from ANZ and damages of up to $7.5 million. The respondent's supplementary outline of submission summarise the applicant's claims as follows: The statement of claim sets out claims based on the following: (a) contract (SOC, 3); (b) estoppel (SOC, 8-12); (c) contravention of certain provisions of the ASIC Act (SOC, 21-25); (d) a common law maxim ("qui concedit aliquid…") (SOC, 26). Further claims are referred to in Mr Cottle's affidavit dated 8 February 2010. These include claims under: (a) sections 46 (misuse of market power) and 46 (1AA) (predatory pricing) of the Trade Practices Act (Cottle affidavit 16 and 17); (b) section 52 (misleading and deceptive conduct) and 56 (bait advertising) of the Trade Practices Act (Cottle affidavit, 14); (c) section 51AB (unconscionable conduct) of the Trade Practices Act (cottle affidavit, paragraph 33); (d) the Moneylenders and Infant Loans Act 1941 (Cottle affidavit, paragraphs 36 and 37); (e) section 588FD of the Corporations Act 2001 (unfair loans) (Cottle affidavit, paragraph 38); (f) "knowing assistance" (presumably a reference to the first limb of Barnes v Addy (1874) LR 9 Ch App 244 (Cottle affidavit, paragraph 39). A prayer for relief is set out at pages 6 and 7 of the statement of claim. It seeks: (a) a form of declaratory relief ("I require the appropriate acknowledgement…") (prayer 2); (b) a trial before three judges or a jury (prayer 3); (c) an interlocutory injunction preventing ANZ from taking further action or possession of the Koo Wee Rup property (prayer 5; see also prayer 11); (d) compensation and damages (prayers 8 and 9); (e) a permanent injunction requiring ANZ to remove charge over "assets owned and controlled by Tony Cottle", being the land at Koo Wee Rup, "the Debenture charges over my companies" and "the charges held by Esanda over the vehicles" (prayer 12); and (f) unspecified damages up to $7,500,000 "more or less, my current net worth" (prayer 13). 32 The respondent submitted that Mr Cottle's claim has no reasonable prospect of success and should be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), which relevantly states that the Court may give judgment in favour of a defending party if it is satisfied that the prosecutor of the proceeding has no reasonable prospect of success. 33 That section expressly states that the proceeding need not be hopeless or bound to fail in order to give judgment for the defendant. As Heerey J stated in Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15], the section applies a lesser standard than that applicable under previous tests. 34 The respondent also relied on O 20 r 5 of the Federal Court Rules, which empowers the Court to stay or dismiss a proceeding which discloses no reasonable cause of action, is frivolous or vexatious or is an abuse of process. 35 In my opinion, the Federal Court proceeding issued by Mr Cottle has no reasonable prospects of success. 36 Mr Cottle has no apparent standing in relation to a cause of action which is constituted by the claims of Global (and perhaps other companies he controls), albeit he may be the sole director, secretary and shareholder thereof. While in his written submissions Mr Cottle contended that the Court should treat him and the companies as a unity, the separate legal entity doctrine is well established in Australian law. 37 While the document entitled "statement of claim" purported to include Global as an applicant, leave to join Global had not been granted. Order 4 r 14(2) of the Federal Court Rules provides that except as provided by or under any Act, a corporation may not without leave of the Court commence or carry on any proceeding other than by a solicitor. The present proceeding was not commenced or carried on by a solicitor and leave had not been applied for or granted. Nor did the applicant have leave to appear on Global's behalf. 38 While some jurisdictions require special or exceptional circumstances as a precondition of exercising the discretion to grant such leave, the more flexible approach applicable in this Court requires "sufficient reason" in the light of matters including the company's failure, financial capacity and shareholders. In the present case, Global is subject to litigation by a mortgagee following default under the mortgage and there is evidence that it is experiencing financial difficulties. 39 Although Mr Cottle is the sole director and shareholder, Global is stated to be a trustee company. The terms of the trust, the identity of the beneficiaries and the position in relation to any claims of trust and general creditors are not disclosed. In such circumstances, it would not, in my view, be appropriate to permit the dissipation of funds or the incurring of costs in the pursuit of litigation devised and conducted by persons who are not legally qualified nor advised by qualified persons. Further, should the matter proceed, it would involve extensive evidence and complex legal issues. In such circumstances, leave for Mr Cottle to commence or carry on the proceeding on behalf of Global should not be granted. 40 Global has not been joined and is not a party to the Federal Court proceeding, yet the matters described and claimed by Mr Cottle involve alleged conduct towards, breach of obligations owed and consequent loss or damage to Global, rather than Mr Cottle. In so far as any coherent claim emerged from the discursive material, it is that of Global. The company (or companies) are the proper parties. Further, Stirling has been deregistered. The loss claimed by Mr Cottle personally appears to reside in diminution of his own net worth by reason of losses sustained by companies, including Global, in which he had an interest, by reason of the ANZ's alleged unconscionable conduct. 41 In such circumstances, irrespective of whether the alleged factual matters, when isolated from the argumentative material, otherwise sufficed to establish unconscionable conduct pursuant to the relevant provisions of the ASIC Act, or any other basis for relief, the present application does not, in my view, have reasonable prospects of success. Moreover, Mr Cottle stated that he was not willing to proffer the usual undertaking as to damages unless a corresponding undertaking were exacted from the respondent. 42 Before me, Mr Cottle stated that he was aggrieved by the respondent's conduct in relation to his business affairs and its allegedly poor response to the financial problems which arose during the recent global financial downturn. 43 He stated that he desired the opportunity to ventilate his complaints before the hearing of the application for summary judgment in the Supreme Court. Mr Cottle initially stated that he had no confidence in the ability of the judges of the Supreme Court to understand or take account of Commonwealth or constitutional law and thus sought to proceed in the Federal Court. Ultimately, Mr Cottle stated that he would be content to proceed in either court, provided that the claims could be ventilated. 44 The further defence dated 9 February filed by Mr Cottle in the Supreme Court proceeding is, in substance, identical to the unsworn document entitled "affidavit" sworn in this proceeding. The claims made in this proceeding are thus also before the Supreme Court, which has the power to determine all save allegations made, without apparent basis, under ss 46 and 46 (1AA) of the Trade Practices Act 1974 (Cth). Further, the closely-related claim of the respondent for possession of the property was necessarily brought in the Supreme Court. Should any cause of action vested in Mr Cottle personally be coherently framed and articulated, the Supreme Court has the power to join him and any other proper party to the proceeding on foot in that Court. The Supreme Court can also grant an adjournment on any proper ground. If the claims made by Mr Cottle personally in this proceeding had reasonable prospects of success, it would have been appropriate to transfer it to the Supreme Court in order to avoid duplication, delay, additional costs, the prospect of inconsistent judgments and the dissipation of court resources. In my opinion, however, Mr Cottle is not the proper plaintiff in relation to the claims as they are articulated in the present proceeding. The transfer of the proceeding would be a futility. Further, the relevant claims are, in substance, already made in the Supreme Court proceeding. In such circumstances, this proceeding should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-streeton. Associate: Dated: 26 February 2010