Poulos v Elliott [2019] NSWSC 423

Supreme Court New South Wales

Medium Neutral Citation: Poulos v Elliott [2019] NSWSC 423 Hearing dates: 12 April 2019 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Equity Before: Kunc J Decision: Proceedings dismissed as against second defendant; Plaintiff to pay second defendant's costs on the indemnity basis Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside — Fraud, misrepresentation or suppression of material facts — Plaintiff applies to set aside judgment after 30 years for alleged fraud Cases Cited: Commonwealth Bank of Australia v Hacide Pty Limited; unreported; Sully J; 28 November 1989 Hacide Pty Limited v Commonwealth Bank of Australia [1991] NSWCA 134 Wentworth v Rogers (No 5) (1986) 6 NSWLR 535 Category: Procedural and other rulings Parties: Patricia Poulos (Plaintiff) Commonwealth Bank of Australia (Second defendant) Representation: Counsel: P Poulos (Plaintiff in person) F. Roughley and J. Entwistle (Second Defendant)

Solicitors: Gadens (Second Defendant) File Number(s): 2019/10906 Publication restriction: No

ex tempore Judgment (revised)

Summary 1. Nearly 30 years ago the Commonwealth Bank of Australia (the "Bank") obtained orders for possession against Hacide Pty Limited ("Hacide") of a property to which I will refer as "No 52". No 52 was the home of the Poulos family. 2. The order for possession was made after a fully contested hearing before Sully J sitting in the Common Law Division of this Court (Commonwealth Bank of Australia v Hacide Pty Limited; unreported; 28 November 1989 (the "Sully J Judgment")). One of the other defendants in those proceedings was the current plaintiff, Mrs Patricia Poulos. 3. A subsequent appeal against his Honour's decision was dismissed unanimously: Hacide Pty Limited v Commonwealth Bank of Australia [1991] NSWCA 134 (the "CA Judgment"). 4. By statement of claim filed on 11 January 2018, Mrs Poulos commenced these proceedings against Mr John Dorman Elliott and the Bank. Mr Elliott has not been served and has taken no part in the hearing before me today. Insofar as the Bank is concerned, Mrs Poulos' statement of claim seeks to have the orders made by Sully J (and confirmed by the Court of Appeal) set aside on the ground of fraud. 5. Three motions were heard by the Court today: 1. A notice of motion filed by the Bank on 15 March 2019 seeking orders that, as against the Bank, the statement of claim be dismissed, permanently stayed or struck out with no leave to replead. 2. A notice of motion filed by Mrs Poulos on 19 February 2019 seeking leave to file an amended statement of claim. 3. A notice of motion filed by Mrs Poulos on 2 April 2019 seeking orders that the Bank's motion be dismissed and for summary judgment against both Mr Elliott and the Bank. 1. The Bank has demonstrated that the claims made by Mrs Poulos in her statement of claim and the proposed amended statement of claim are an attempt to relitigate the issues that were the subject of the Sully J Judgment and the CA Judgment. In the absence of fraud, that is sufficient to entitle the Bank to the orders which it seeks. 2. Mrs Poulos, for her part, has been unable to demonstrate that there is any evidence in her possession which would suggest that there was the slightest basis on which she could successfully contend that the Sully J Judgment or, for that matter, the CA Judgment had been procured by fraud. 3. When those two conclusions are taken together, the Court will dismiss the proceedings against the Bank pursuant to UCPR Part 13 rule 13.4 and order Mrs Poulos to pay the Bank's costs of the three notices of motion on the indemnity basis. 4. Ms F Roughley of Counsel appeared for the Bank with Mr J Entwistle of Counsel. Mrs Poulos appeared in person.