Gomez v State Bank of NSW [2003] NSWSC 1088

New South Wales Supreme Court

CITATION : Gomez v State Bank of NSW [2003] NSWSC 1088 revised - 25/11/2003 HEARING DATE(S) : 21 November 2003 JUDGMENT DATE : 25 November 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : I order that the Amended Statement of Claim be struck out. The plaintiff is to pay the costs of the proceedings (including the costs of the Notice of Motion filed on 25 September 2003). I order that the Notice of Motion filed on 29 August 2003 be dismissed. The costs orders already made pick up the costs of that Notice of Motion. The Exhibits may be returned.

CATCHWORDS : Striking out of Statement of Claim - no reasonable cause of action and abuse of process estoppel and lack of bona fides. LEGISLATION CITED : Supreme Court Rules 1970, Pt 15 r 26. CASES CITED : Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Joseph Wenceslaus Gomez (Plaintiff) PARTIES : v State Bank of New South Wales Limited (Defendant) FILE NUMBER(S) : SC 20640 of 2000 COUNSEL : Mr J K Chippindall (Plaintiff) Mr R Harper (Defendant) SOLICITORS : David Landa Stewart (Plaintiff) Garland Hawthorn Brahe (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Tuesday 25 November 2003

20640 of 2000 Joseph Wenceslaus Gomez v State Bank of New South Wales Limited

JUDGMENT 1 MASTER: In 1996, the defendant brought proceedings against the plaintiff. The claim was founded on default under three mortgages. There were three secured properties. The defendant sought both a monetary judgment and possession of the properties. 2 The plaintiff filed a defence and proceeded to defend the claim. 3 Two applications for summary judgment were made by the defendant. The first was resolved by agreement. The second went to a contested hearing, with the defendant obtaining judgment in a monetary sum and orders for possession. Those proceedings came to an end in about mid 1998. 4 On 21 November 2000, the plaintiff commenced these proceedings. The original Statement of Claim propounded inter alia a claim for damages. Broadly speaking, it alleged negligence, gross negligence and failure to act bona fide and in good faith in respect of the sale of the three properties. 5 A bankruptcy notice was issued by the defendant. An application was made to have it set aside. In the course of the contested application, the plaintiff relied on the original Statement of Claim. The application was dismissed. This order was not disturbed on appeal. 6 Because a creditor's petition had not been presented in time, a fresh bankruptcy notice was issued on 27 May 2003. The plaintiff has applied to the Federal Court to have that notice set aside. The hearing of the application has been adjourned to 12 December 2003. The Federal Court was informed by the plaintiff that he was seeking to amend the process filed in this Court so as to claim relief for the setting aside of the judgment in the 1996 proceedings on the ground of fraud. 7 The plaintiff had earlier filed an Amended Statement of Claim on 6 December 2002. It saw a recasting of the case that had been earlier pleaded in its predecessor. The causes of action pleaded in the original Statement of Claim were abandoned and new causes of action were propounded. 8 The Amended Statement of Claim pleads inter alia the mortgages, the 1996 proceedings, the judgment, the issue of the writs of possession, the exercise of the powers of sale, the issue of the first bankruptcy notice and the plaintiff's application to have it set aside. 9 The causes of action are set forth in paragraphs 20 – 22 of that pleading. The paragraphs are as follows:- "20.Further and/or in the alternative the Defendants owed the Plaintiff a duty of care Particulars a. to (sic) exercise all reasonable care, skill and diligence as the Defendant's bankers in relation to the administration of the banking facilities offered by the Defendant to the Plaintiff (sic) b. The Defendant was under a duty to fairly and appropriately advise and inform the incoming financiers of the Plaintiff's standing for finance and further the Plaintiff was under a duty to refrain from unreasonably doing anything that would prevent the Plaintiff from obtaining alternative finance. c. The Defendant was under a duty to adhere to the correct terms and conditions of the loan agreements and to correctly identify the appropriate interest rate and calculate the correct monthly installments of interest payment and charge no more than that as agreed and documented between the parties. 21. The Defendant was in breach of its duty of care to the Plaintiff charged against the loan and accounts of the Defendant an amount well in excess of what the Defendant was entitled to charge. Particulars a. The Defendant repeats the matters pleaded in paragraphs 7 and 11 above. 22. The Defendant failed and/or neglected to properly advise prospective financiers of the Plaintiff's true and capacity to refinance the banking facilities that had been advanced by the Defendant to the Plaintiff and in particular provided unsolicited negative and misleading advice to prospective financiers resulting in the Plaintiff being denied finance such that he could repay the Defendant." 10 On 29 August 2003, the plaintiff filed in this Court a Notice of Motion seeking to further amend the Amended Statement of Claim. It annexes a copy of the proposed Further Amended Statement of Claim. This document contains a number of amendments which have been described as being inter alia grammatical in nature. It also sought to add two new paragraphs (paragraphs 26A and 26B). Paragraph 26A propounds the proposed claim to have the judgment in the 1996 proceedings set aside on the grounds of fraud. Paragraph 26B alleged that the judgment obtained in 1998 was unconscionable. 11 On 25 September 2003, the defendant filed a Notice of Motion seeking the striking out of the plaintiff's originating process. Relief is sought pursuant to Pt 15 r 26 of the Supreme Court Rules 1970. This rule enables the court to strike out a Statement of Claim inter alia where it fails to disclose a reasonable cause of action and is an abuse of process. 12 The Notices of Motion were set down for hearing together. The hearing was to take place on 21 November 2003. 13 At the commencement of the hearing of the Notices of Motion, counsel for the plaintiff advised that his client did not propose to press the amendments sought in paragraphs 26A and 26B, but did wish to press the other amendments. By consent, the course was taken of putting that Notice of Motion aside to abide the result of the defendant's Notice of Motion. 14 The court then proceeded to hear that Notice of Motion. Although a full day had been set aside to hear the applications, the hearing was concluded during the morning. 15 The defendant advances various grounds on which the pleading should be struck out. One is res judicata and issue estoppel. Another is the line of authority that emerges from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Also it says that there is a pleading of breach of duties of care unknown to the law. Counsel for the defendant responded but briefly to these contentions. 16 It seems to me that what is sought to be propounded in the Amended Statement of Claim are matters which were either litigated in the 1996 proceedings or could or should have been raised in those proceedings. Clearly, certain of the allegations propound matters which are unknown to law. 17 I should also mention that the bona fide of the pleading was also a matter of attack. The thrust of the attack was that the proceedings were being used to thwart the defendant executing upon its judgment. Whilst there seems to be force in what is said, I need not take it any further in this case. 18 After carefully reading the pleading, the material placed before the court and listening to submissions made by counsel for the plaintiff, I have come to the view that I am satisfied that the Amended Statement of Claim fails to disclose a reasonable cause of action and is an abuse of process. In my view, the defendant is entitled to have it struck out. 19 I order that the Amended Statement of Claim be struck out. The plaintiff is to pay the costs of the proceedings (including the costs of the Notice of Motion filed on 25 September 2003). 20 By reason of the decision I have just reached, the plaintiff's Notice of Motion no longer has any utility. Accordingly, I order that the Notice of Motion filed on 29 August 2003 be dismissed. The costs orders already made pick up the costs of that Notice of Motion. 21 The Exhibits may be returned. **********