Australia and New Zealand Banking Group Limited v Manny (No.6)
[2013] ACTSC 261
•23 December 2013
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED v JEFF MANNY & ORS (No 6)
[2013] ACTSC 261 (23 December 2013)
CIVIL LITIGATION – pleading – statement of claim – where self-represented litigant given three opportunities to plead counterclaim – whether proceedings should be terminated or further opportunity to replead given – statement of claim discloses no reasonable cause of action – appropriate to enter judgment
Corporations Act 2001 (Cth) ss 423, 434A, 568
Aon Risk Services v Australian National University (2009) 239 CLR 175
Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116
Australia and New Zealand Banking Group Ltd v Manny (No 2) [2013] ACTSC 143
Australia and New Zealand Banking Group Ltd v Manny (No 3) [2013] ACTSC 223
Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236
Rodgers v Australia and New Zealand Banking Group Limited [2009] QSC 86
No. SC 746 of 2011
Judge: Master Mossop
Supreme Court of the ACT
Date: 23 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 746 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff
AND: JEFF MANNY
Defendant
ANTHONY SIMS and STEPHEN PARBERY
First Defendant to counterclaim
SHANE O’KEEFFE and MURRAY SMITH
Second Defendant to counterclaim
ORDER
Judge: Master Mossop
Date: 23 December 2013
Place: Canberra
THE COURT ORDERS THAT:
1. The defendant’s application dated 27 November 2013 is dismissed.
2. The defendant’s application dated 9 December 2013 is dismissed
3. Judgment is entered for Australia and New Zealand Banking Group Ltd, Anthony Sims and Stephen Parbery, Shane O’Keeffe and Murray Smith against the defendant on the defendant’s counterclaim.
4. The defendant is to pay the costs of Australia and New Zealand Banking Group Pty Ltd, Anthony Sims and Stephen Parbery, Shane O’Keeffe and Murray Smith of the counterclaim.
Mr Manny has filed an application dated 27 November 2013 seeking leave to file a revised counterclaim against the Australia and New Zealand Banking Group Ltd (“the ANZ”), Anthony Sims and Stephen Parbery (“the Receivers”) and Shane O’Keeffe and Murray Smith (“the Liquidators”). He has previously had his counterclaim struck out and was required to seek leave before filing any further pleading for his counterclaim. He has been refused leave on one previous occasion. This application is therefore his third attempt to plead his counterclaim against the ANZ, the Receivers and the Liquidators.
He has also filed an application dated 9 December 2013 seeking leave to join five additional parties to the proceedings: JK3L Pty Ltd, Jeff Manny Constructions Pty Ltd, Lonagann Pty Ltd, Landagency Pty Ltd and Canwork Pty Ltd.
There is also an application by the Liquidators dated 28 October 2013 to be removed as parties to the proceedings which was adjourned from a previous hearing.
The applications are related in that Mr Manny’s application to join the additional parties is related to the terms of the revised counterclaim which he seeks to file. The application by the Liquidators is dependent upon the failure of Mr Manny’s applications since it is only in those circumstances that there would be no pleading on foot against the Liquidators.
Background
The primary proceedings involved a claim by the ANZ filed on 27 October 2011 for a debt owed by the defendant and for recovery of possession of land known as 42 Barber Crescent in Flynn in the Australian Capital Territory.
The defendant filed a counterclaim in the proceedings on 7 February 2013. That counterclaim had the effect of including the Liquidators and Receivers as parties to the proceedings. The Liquidators are liquidators of a number of companies of which the defendant is a director: Jeff Manny Constructions Pty Ltd, JK3L Pty Ltd and Lonagann Pty Ltd.
In February 2013 both the Liquidators and the Receivers filed applications seeking orders that the counterclaim filed by the defendant dated 7 February 2013 be struck out and seeking orders in relation to summary judgment. The proceedings first came before me on 31 May 2013. On 12 June 2013 I struck out Mr Manny’s counterclaim in so far as it related to the Liquidators and the Receivers: Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116.
Since that date there has been no counterclaim on foot which articulates a claim against the Liquidators or the Receivers.
The ANZ also made an application to strike out the counterclaim and seeking summary judgment. On 26 July 2013 I struck out the balance of the defendant’s counterclaim with the result that there was no counterclaim on foot in these proceedings. I also entered summary judgment for the plaintiff in relation to its claim for possession of the property at 42 Barber Crescent Flynn: Australia and New Zealand Banking Group Limited v Manny (No 2) [2013] ACTSC 143 (“Manny (No 2)”).
In relation to the counterclaim I said (at [43]):
None of these arguments demonstrated to me a clear cause of action. However, I am not satisfied at this stage that I should dismiss the counterclaim proceedings since I cannot be confident to the relevant degree that the plaintiff has no arguable cause of action amongst the numerous allegations that are made or amongst the volumes of material that [have] been tendered. At this stage I think it is unlikely that there is a viable cause of action but, in my view Mr Manny, given that he is unrepresented, should be given a further opportunity to attempt to articulate one.
I therefore gave directions requiring pleadings for any counterclaim to be filed only with leave of the Court and made directions requiring any application for leave to be filed in a specified period.
Mr Manny appealed against the orders made on 26 July 2013 but that appeal was dismissed: see Australia and New Zealand Banking Group Limited v Manny(No 4) [2013] ACTSC 236 (“Manny (No 4)”).
On 11 and 31 October 2013 I heard an application by Mr Manny dated 19 September 2013. In that application he sought leave to file a revised counterclaim as contemplated by the directions that I had earlier made. I dismissed the defendant’s application: Australia and New Zealand Banking Group Limited v Manny(No 3) [2013] ACTSC 223 (“Manny (No 3)”). I subsequently made further directions relating to the filing of any further application for leave to file an amended pleading for the counterclaim. I also adjourned the Liquidators’ application dated 28 October 2013 to be removed as parties to the proceeding.
Mr Manny’s application for leave to file a revised pleading was filed on 27 November 2013, within the time required by the directions that I made on 6 November 2013. However, contrary to those directions it did not annex a copy of the proposed pleading for the counterclaim for which leave was sought. On the morning of the hearing of the application, 13 December 2013, Mr Manny provided his proposed revised counterclaim which was marked as an exhibit and became Exhibit 1. As a consequence the other parties had a less than ideal opportunity to scrutinise the proposed pleading.
Having regard to the fact that the application for leave needed to be determined against the background of the previous applications, I indicated to the parties that I would treat the evidence tendered on those previous applications (namely 6–7 June 2013, 27–28 June 2013, 11 and 31 October 2013) as being in evidence for the purposes of this application. No party objected to this course. While that involved a large volume of material, only a very limited amount of that material is of significance to the determination of the current applications.
The proposed counterclaim contains a number of alleged causes of action. They are described in the document as counterclaims 1–6, 7A, 7B, 8–13. Counterclaim 2 involves two separate causes of action. This brings the total number of causes of action put forward in the proposed pleading to 15. I will deal with each of the proposed causes of action below. I have reproduced sections of the counterclaim as they are set out in the original. The counterclaim has clearly been drafted by Mr Manny and contains errors of grammar and spelling.
Counterclaim 1
Counterclaim 1 asserts that at the time the Receivers and Liquidators (who at that stage were acting as administrators) were appointed, JK3L Pty Ltd owned seven identified properties. It asserts a value of those properties at $17,930,000 and that the “grand total of values of the properties of Jeff Manny Group” were $17,580,000. It asserts that the net assets of Mr Manny and his wife were $4,031,539.85. The claim asserts that the ANZ completed valuations on 22 and 28 June 2010 which it failed to disclose to the Family Court “before or on 6 and 12 July 2013”. The reference to 2013 should probably be to 2010. It asserts that the ANZ bank valuations in its possession were $4 million less than the valuations available to the Court. It asserts “if parties had the valuations on the day of court hearing of 6 and 12 July 2010 then parties would not give consent to wholesome sale of the properties”. It asserts “as a result of non-disclosure of the valuations of 22 and 28 June 2010 parties lost everything”.
The relief claimed is as follows:
(i)An order of the court to declare Contempt of orders of the court/Misleading/Misconduct/Breach of law of Court and parties by the ANZ bank in the matter of CAC 857 of 2007.
(ii)Or transfer this matter to a criminal court since there is a pattern of Contempt and misleading of the Third Defendant in the Counterclaim, is evident in this counterclaim.
(iii)Any order court finds it appropriate.
(iv)Reinstatement of all the properties to the First Claimants companies (if possible)
(v)New court in a new date to argue monetary losses.
There is also a reference in paragraph 15 of the pleading to “injuries pain and suffering” and damage to health.
Some points can be made about this pleading. First, it is only against the ANZ. Second it appears to seek relief in relation to what is asserted to be contempt of the Family Court as well as damages for monetary losses and pain and suffering and damage to health.
In my view, this pleading does not disclose a reasonable cause of action. Any issue relating to an asserted contempt of the Family Court is plainly enough a matter for the Family Court and not for this Court. Proceedings instigated by Mr Manny relating to allegations of contempt have been listed for hearing in the Family Court on a date in February 2014. While the maintenance of the same or similar allegations in two separate courts concurrently might be considered to be an abuse of process, the more important point is that any allegations of contempt or misconduct by the ANZ in its conduct in relation to Family Court proceedings is a matter that must be dealt with in the Family Court and not here. Insofar as there is a claim for damages arising out of what occurred in the Family Court proceedings, in my view, no cause of action known to law is disclosed by the pleadings.
Counterclaim 2
Counterclaim 2 involves an allegation that the sale prices for the properties owned by JK3L Pty Ltd were “substantially less than market value of the properties concerned”. The pleading asserts that the Receivers were “negligent in context of misconduct in that failed to take reasonable care to obtain a proper price in respect of each of the sales referred to”. It also includes an allegation that the Receivers and the ANZ were obliged to disclose valuations dated 22 and 28 June 2010 to the Family Court. The difference between the value of the properties as at the time of the ANZ’s letter of offer to Mr Manny in 2008 ($17,930,000) and the grand total received as a consequence of the sale of the properties ($9,920,000), namely $8,010,000 is claimed as damages.
An identical claim was rejected as disclosing no reasonable cause of action in Manny (No 3). In that case I addressed whether or not a cause of action in negligence against the Receivers disclosed a reasonable cause of action and at [34]–[37], I dealt with the authorities relating to whether or not such a duty could be established. My conclusion was that a claim against the Receivers for damages for negligence would be doomed to fail and hence leave to file a counterclaim which included such a claim should be refused. The reasoning in that judgement appears to me to be applicable to the cause of action in the current version of the proposed counterclaim.
Also under the heading counterclaim 2, is a claim that the Receivers breached their obligation to hold surplus funds derived from the sale of properties of which Lonagann Pty Ltd was the registered proprietor on trust for the beneficiaries of the Manny Family Trust. I dealt with a relevantly similar claim in Manny (No 3) and the current pleading should not be permitted for the same reasons that I set out in that earlier decision: see Manny (No 3) [41]–[42].
Counterclaim 3
Counterclaim 3 is a new claim that ANZ is in breach of order 3 of the Family Court order made on 6 July 2010. That order is alleged to have provided “Mr Manny, either in his personal capacity or as a director of any of the companies in the Jeff Manny Group, be permitted to proceed with and register leases in respect of any of the properties owned by the Jeff Manny Group provided such leases are renewals of the leases of the existing tenants in relation to the properties on proper commercial terms.”
The defendant claims that the ANZ is in contempt of that order “by preventing me to renew leases”.
The relief sought is set out in paragraph 41 of the claim as follows:
(i)An order of the court to declare Contempt of orders of the court/breach by the First and Third Defendants in the counterclaim of the matter of CAC 857 of 2007.
(ii)Any order court finds it appropriate
(iii)Reinstatement of all the properties to the First Claimants companies (if possible)
(iv)New court in a new date to argue monetary losses.
Further, at paragraph 45 of the claim he claims:
Remedies: Reinstate the business as it was before the Contempt of orders of the court/breech of orders of the court and law. The ANZ bank remedies losses incurred by the First, Second, Third, Fourth, Fifth and Sixth Counter Claimant and their dependents. It is better to take the Remedies to another court since special expert required to give evidence.
I am not satisfied that this Court has jurisdiction to deal with allegations of contempt of orders of the Family Court. Further, even if such contempt was established, I am not satisfied that the pleading discloses a reasonably arguable cause of action based on the breach of the Family Court orders.
Counterclaim 4
Counterclaim 4 is another allegation that the ANZ is in contempt of orders of the Family Court. Order 1(b) of 10 October 2010 is said to be:
That the first applicant, or if relevant, any of the other applicants, will within 48 hours of entering any contract for the sale of 1/10 Wall Place Page, and/or 37 Krichauff Street, Page provide to the respondent a copy of the first page of the contract for sale and inform the respondent’s solicitor on the record in writing of the then [proposed] distribution of the proceeds of sale.
Mr Manny alleges that the ANZ is in contempt “by preventing me to sell unit 1/10 Wall Place Page ACT 2614”. The relief sought is in the same terms as set out at [27], [28] above.
The allegation of the breach of the order does not seem to make sense having regard to the limited nature of the order, relating as it does to disclosure of certain information. In any event I am satisfied that this Court does not have jurisdiction to entertain allegations of contempt nor is there a cause of action based on contempt of another court which sounds in damages.
Counterclaim 5
Counterclaim 5 is a claim of breach by the Receivers of a contract with Landagency Pty Ltd. It is alleged that Landagency Pty Ltd provided property management services in relation to the real property of JK3L Pty Ltd, Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd. It is alleged that on 21 February 2011, the Receivers terminated the contract or indicated their intention not to be bound by that contract in a way that constituted a repudiation of the contract. The relief sought is a declaration as well as damages described as “Total contract value”.
In addition to relying on “Contract Law, Common Law, other related Statutory” Mr Manny identified s 568 of the Corporations Act in support of this claim. Section 568(1) provides a limited right to the liquidator to disclaim onerous property of the company, including a contract, subject to the conditions set out in the section. It is not relevant to this cause of action since the contract alleged to exist is one between Landagency and the Receivers not the Liquidators.
I dealt with a similar claim to this against the Receivers for repudiating a contract with Landagency Pty Ltd in Manny (No 3): see [2013] ACTSC 223 at [39]–[40]. The only variation in the claim appears to be the dates of the alleged agreement which have changed the start of the alleged contract from 24 December 2010 to 1 December 2010 and the end of the contract from 1 December 2012 to 24 December 2010. Both the present and previous version of the claim attempt to make the receivers liable for the termination of the contract between Landagency Pty Ltd and JK3L Pty Ltd for the management of the properties owned by JK3L Pty Ltd, Jeff Manny Constructions Pty Ltd and Lonagann Pty Ltd. It is clear that the Receivers did not adopt the contract between Landagency and JK3L and for the reasons I gave in Manny (No 3) a reasonable cause of action is not disclosed.
Counterclaim 6
Counterclaim 6 alleges that ANZ breached its obligations to Mr Manny by inappropriately reversing $10,000 from his personal Visa credit card to the account of JK3L Pty Ltd which was operated by the Receivers. The relief sought is the return of the $10,000 “plus half of the interests to the First Counterclaimant’s credit card account”. He also seeks a declaration.
This claim regarding $10,000 being removed from Mr Manny’s personal credit card has been raised by Mr Manny previously: see Manny (No 1) at [36]; Manny (No 2) at [32] and Manny (No 4) at [93]– [96]. In Manny (No 4), an appeal from my decision in Manny (No 2) Refshauge J said:
94. The evidence on which he relied was unclear, but it appears that a payment was made by JK3L Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) through its St George Bank account to Mr Manny’s credit card account. The purpose of that payment was unclear but it was made after the receivers were appointed and without their authority.
95. Mr Manny submitted that the ANZ Bank was not entitled to reverse that entry without a request from the receivers or from the St George Bank or himself. He submitted that it was required to obtain his authority. He pointed to no contractual or other basis for this obligation. Like the learned Master, I am not satisfied that there is one.
In his most recent version of the counterclaim, he has provided some lengthy argumentative particulars. As a matter of form the pleading remains defective, failing to plead material facts including any coherent identification of the underlying facts or the legal entitlement said to be infringed. In substance, so far as that can be discerned from the pleading and the evidential material before me, it remains a claim based on a reversal of a payment by a company made to Mr Manny’s account without authority. I am not satisfied that this claim discloses a reasonable cause of action against the ANZ.
Counterclaim 7A
Counterclaim 7A alleges a failure by the Receivers to pay invoices incurred for services and rent rendered by Landagency Pty Ltd or Canwork Pty Ltd during their receivership. He alleges a contravention of ss 419, 419A(1), (2) of the Corporations Act 2001. These provisions make receivers liable for certain debts and rent incurred during the receivership. The relief sought is a declaration that the Receivers have breached the law or breached a contract as well as a declaration that the Receivers have engaged in misconduct. He also appears to seek damages in the form of “all the money owed to [Landagency Pty Ltd]”. Canwork Pty Ltd is mentioned for the first time in this version of the counterclaim. I gave leave to Mr Manny to provide references to the evidence of the activities of Canwork Pty Ltd. Those references do not establish any involvement of Canwork Pty Ltd which might give it a cause of action against the Receivers.
The claim is pleaded at a level of generality that makes it difficult to assess. However I am not satisfied that there were “services rendered, goods purchased or property hired, leased, used or occupied” or rental obligations incurred by the Receivers that would give Landagency Pty Ltd an arguable claim against the Receivers as a consequence of the operation of s 419, 419A.
Counterclaim 7B
Counterclaim 7B asserts that the Receivers have failed to give accounts of JK3L Pty Ltd, Lonagann Pty Ltd Pty Ltd and Jeff Manny Constructions Pty Ltd to Mr Manny and that that constituted a breach of s 423 of the Corporations Act 2001. The relief that is sought is a declaration that there has been a breach of the law as well as a declaration that there has been misconduct on the part of the Receivers. The pleading substantially repeats a defectively pleaded cause of action struck out in Manny (No 3).
In support of this cause of action, Mr Manny pointed to an email that he had sent to the Receivers and their solicitors on 17 January 2013 alleging that he had written to them on several occasions requesting accounts for three companies which had been placed into receivership. Mr Manny also pointed to his email to David Hannes and Tony Sims of PPB Advisory dated 7 April 2011, which requested that the Receivers provide him with, amongst others things, an executive summary of rentals received by the Receivers, expenditures paid by the Receivers, maintenance work performed by the Receivers as well as an explanation of why certain tenants had vacated their leases with JK3L, attempts by the Receivers to lease vacant properties and collect unpaid rentals.
No failure to provide accounts is pleaded, no statutory or other obligation that would require the provision of the information requested by Mr Manny is pleaded.
Section 423 provides the Court (and ASIC) with a discretionary power to investigate Receivers “if it appears to the Court” that the Receivers have not faithfully performed their functions or have not observed the order or instrument under which the Receivers were appointed. While s 423 is an important power, the pleading of this claim is clearly defective and does not disclose a reasonable cause of action.
Counterclaim 8
Counterclaim 8 identifies the cause of action as “Failure of taking notice of [Mr Manny’s] financial and other hardships by [the ANZ].” The relief claimed is an order that the Court “declare breach of law/breach of contract” by the ANZ and “ultimately declare misconduct of [the Receivers]”. This last reference to the Receivers is clearly a product of cutting and pasting within the document having regard to the nature of the claim brought. There is also a claim for a remedy which is specified as, “overturn my foreclosures at 42 Barber Crescent Flynn ACT 2615”.
The pleading makes reference in paragraph 71 to Rodgers v Australia and New Zealand Banking Group Limited [2009] QSC 86 and states that the, “ANZ bank had duty of care to provide right information and advice in regard of loan documents and Credit Code of Australia”. Rodgers concerned a claim by a husband and wife who were the shareholders of a family company against the ANZ for damages as a consequence of the ANZ exercising its rights under mortgage securities. The case is authority for the proposition that a bank officer does owe a duty of care to a prospective customer to ensure that the advice and information provided is accurate. Ultimately, McMeekin J held that the claim in negligence failed as his Honour was not satisfied that there was any inaccurate information provided to the plaintiffs. Mr Manny presumably relies upon the statement in Rodgers (at [116]):
In my view, a bank manager owes a duty of care to a prospective customer to ensure that the advice and information provided as to the way in which the bank would conduct the accounts of the customer, should they take out substantial loans, must be accurate. ...
The pleaded cause of action is not intelligible. In paragraph 70 of the claim it does not identify a cause of action. In what are apparently intended to be particulars in paragraph 71 Mr Manny refers to an apparent failure of the ANZ to reply to a “letter of hardship” within 21 days. In Manny (No 2), I dealt with Mr Manny’s claim that the hardship application that he had made to the ANZ, combined with his lack of understanding of the terms of conditions of the loan, amounted to a defence to the ANZ’s claim for possession of his property. Mr Manny relied on the same facts in those proceedings as is now asserted in relation to the negligence of the ANZ. I summarised Mr Manny’s position in Manny (No 2) (at [35]–[36]) as follows:
Mr Manny referred at some length to the hardship application which he submitted by email to [an ANZ officer] on 19 September 2011 following the giving of notice on 2 September 2011. ... His submissions were that he had no understanding of the conditions of the loan or the mortgage in so far as they would permit ANZ to enforce its security under those instruments. These submissions appeared to me to be inconsistent with the terms of the loan agreement and were not supported by any evidence.
... The Information Statement included at the end of the Conditions in accordance with the Consumer Credit Code makes it clear that the ANZ can take action against the borrower if the borrower is in default under the contract. There is no evidence of any application being made to the bank’s Customer Advocate or the Financial Ombudsman Service. There was, at the time, no prohibition on the ANZ commencing proceedings for recovery of possession prior to providing a response to Mr Manny’s hardship application (although now see s 89A of the National Credit Code inserted with effect from 1 March 2013).
In so far as the relief claimed is “overturn my foreclosures at 42 Barber Crescent Flynn ACT 2615” that is inconsistent with the judgment entered against Mr Manny as a consequence of Manny (No 2) (upheld on appeal in Manny (No 4)).
There is nothing in the current version of the claim which indicates that a different point is being made.
If a cause of action in negligence is being asserted then an arguable claim is not established by asserting “Failure of taking notice of [Mr Manny’s] financial and other hardships and other hardships by [the ANZ].
As a consequence, in so far as it is possible to understand, I am not satisfied this claim discloses a reasonable cause of action.
Counterclaim 9
Counterclaim 9 is reproduced below:
The [ANZ] inappropriately transferred moneys from [JK3L Pty Ltd and Lonagann Pty Ltd’s] accounts to pay legal fees of the [Mr Manny’s] family court which has established a contract to enable the [ANZ] to pay arrear of [Mr Manny’s] home loans. [Again ANZ bank playing game of double standard, it is okay to pay the lawyers of ANZ bank by my other accounts but it is not okay to transfer the surplus money to the rightful owners which are beneficiary of the trust.
The relief claimed is a declaration of “breach of law/breach of contract by [the Receivers] and ultimately declare misconduct of the [Receivers].”
The cause of action as articulated is not intelligible. The relief sought is against the Receivers rather than the Bank. The material facts with respect to this claim are not pleaded. The contractual or other basis for this claim is not identified. The cause of action is one which belongs to JK3L Pty Ltd and Lonagann Pty Ltd but those entities have not consented to being joined as parties to the proceedings: r 222, 470.
I am not satisfied that a reasonable cause of action is disclosed by counterclaim 9.
Counterclaim 10
Counterclaim 10 is an allegation that the Receivers “did not maintained properties of [JK3L Pty Ltd, Lonagann Pty Ltd Pty Ltd and Jeff Manny Constructions Pty Ltd]”. The relief sought is a declaration “to indicate breach of law/breach of contract/breach of trust” by the Receivers and to “ultimately declare misconduct” of the Receivers under s 434A of the Corporations Act 2001. Various factual matters are pointed to in relation to the management of the properties of JK3L Pty Ltd, Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd.
Although it is not made clear by the pleading, it appears that this cause of action is pursued by JK3L Pty Ltd, Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd. It cannot be pursued by those companies because they have not consented to being joined as plaintiffs in the proceedings: r 222, 470. Further, in so far as the claim is made under s 434A an application under that provision can only be made by the corporation and in the present case the relevant corporations have not made the application and not consented to be joined as plaintiffs. It therefore discloses no reasonable cause of action.
Counterclaim 11
Counterclaim 11 alleges “failure of [the Receivers, the Liquidators and the ANZ] to give consent to [Mr Manny, JK3L Pty Ltd, Lonagann Pty Ltd Pty Ltd and Jeff Manny Constructions Pty Ltd] to refinance their loans with Bank of Queensland when they had a letter of offer and the Jeff Manny Group of companies were viable businesses.”
The relief claimed is directed only to the Receivers and appears to result from inappropriate cutting and pasting from elsewhere in the claim.
In my view, the claim does not disclose a reasonable cause of action. No cause of action known to law is identified. The facts disclosed do not indicate that underlying the inappropriate pleading there might be a viable cause of action.
Counterclaim 12
Counterclaim 12 claims “[Mr Manny] pleads that the Foreclosures of his home was inappropriate.” The relief claimed is a declaration “to indicate breach of law/breach of contract/breach of trust by [the ANZ] and ultimately declare misconduct of the [ANZ].”
This pleading does not disclose any cause of action. Insofar as it alleges matters constituting a defence to the claim by the ANZ for possession of the property then Mr Manny it is inconsistent with the grant of summary judgment for possession to the ANZ: see Manny (No 2) and, on appeal Manny (No 4).
Counterclaim 13
Counterclaim 13 is reproduced below and alleges:
The [Liquidators] did not take serious nor took any action to accept that [Mr Manny and Landagency Pty Ltd] are creditors of [JK3L Pty Ltd, Lonagann Pty Ltd Pty Ltd and Jeff Manny Constructions Pty Ltd] in that [Mr Manny and Landagency Pty Ltd] were not invited to the creditors of [JK3L Pty Ltd Lonagann Pty Ltd and Jeff Manny Constructions Pty Ltd] meetings and we did not know when the creditor’s meeting is held. If I had bought one of these building for the prices have been sold, I would have had a good life. I told [the Liquidators] that I am interested to buy 31-35 Nettle fold Street Belconnen and I had my finances organised.
The relief claimed is “Losses as result of not purchasing 31-35 Nettlefold Street Belconnen.”
No cause of action is identified by these pleadings. As pointed out in Manny (No 3), any failure in relation to creditors’ meetings does not give rise to a cause of action: see [31]. Further I am not satisfied that there is a cause of action of a prospective purchaser of property from a liquidator for losses incurred as a result of a failure by the liquidator to sell the property to the prospective purchaser.
Application to join additional parties
Counterclaims 2, 5, 7A, 9, 10, 11 would also be dependent upon granting leave to join the additional parties sought in the application dated 9 December 2013. Those companies were JK3L Pty Ltd, Jeff Manny Constructions Pty Ltd, Lonagann Pty Ltd, Landagency Pty Ltd. That application was amended at the hearing to add Canwork Pty Ltd to the companies which Mr Manny sought to join.
As indicated above in relation to JK3L Pty Ltd, Jeff Manny Constructions Pty Ltd, Lonagann Pty Ltd, in addition to the absence of any viable cause of action those companies could not be joined to the proceedings because of the absence of consent from those companies to be joined as counterclaimants. Additionally, there is no basis upon which Mr Manny is entitled to bring proceedings on their behalf: see Manny (No 3) at [24]–[28].
In relation to Landagency Pty Ltd, the claims of that company do not disclose a reasonable cause of action. Similarly, Canwork Pty Ltd, sought to be included for the first time, has not been established by Mr Manny as an entity with a reasonable cause of action against the Receivers.
As a consequence, in my view, the application dated 9 December 2013 should be dismissed.
Conclusion
For the reasons outlined above none of the 15 causes of action alleged in the proposed counterclaim discloses a reasonably arguable cause of action. Therefore leave should not be granted to file the pleading.
Each of the defendants submitted that if I refused leave to file a revised counterclaim I should dismiss the counterclaim and enter judgment in their favour. In the alternative the Liquidators also submitted that I should grant the orders sought in their application removing them as parties to the proceedings.
On the other hand, Mr Manny has submitted that I should permit him to further revise the counterclaim if that is what is necessary. He points to the significant improvements in the coherence of the counterclaim since the earlier versions of it, which he accepts did not comply with the requirements of the Court.
The choice is therefore between terminating the counterclaim proceedings or allowing the defendant a further opportunity to plead his counterclaim. That obviously involves a balancing exercise between the right of the defendant to bring a counterclaim on the one hand and the rights of the defendants to be free of that counterclaim if it cannot be articulated in a way which discloses a reasonable cause of action. Where a party seeking to plead a cause of action is unrepresented, I accept that particular care needs to be taken so that matters of legal form or technical requirements of the rules are not insisted upon where to do so would preclude that party from bringing a claim which has some underlying substance.
It is significant that in the present case the defendant has had three opportunities to articulate his proposed causes of action against the other parties. He has at all times been unrepresented and there is little prospect that that situation will change. As indicated above, none of the causes of action which have been articulated disclose, in my view, a reasonable cause of action against any of the other parties. The plaintiff has had what, in my view, is a fair opportunity to articulate his counterclaim against the other parties. He is entitled to a fair opportunity to make a counterclaim, not every conceivable opportunity to make it. That is because regard must also be had to the rights of the defendants who have been forced to respond to the claims to date and who are entitled to either face a reasonable cause of action or be free of the proceedings: Aon Risk Services v Australian National University (2009) 239 CLR 175 at [94], [112], [114]. Having regard to the history of the matter, my view is that it is not appropriate to permit Mr Manny a further opportunity to plead his counterclaim. It is not appropriate to permit the defendant to have yet another opportunity to attempt to articulate a reasonable cause of action against one or other of the other parties. Having regard to the history of the matter, that exercise would not produce any arguable claim but would simply expose the other parties to further significant costs in dealing with the application for leave or, alternatively, an application to strike out the pleading.
Orders
Therefore the orders that I will make are:
1. The defendant’s application dated 27 November 2013 is dismissed.
2. The defendant’s application dated 9 December 2013 is dismissed
3. Judgment is entered for Australia and New Zealand Banking Group Ltd, Anthony Sims and Stephen Parbery, Shane O’Keeffe and Murray Smith against the defendant on the defendant’s counterclaim.
4. The defendant is to pay the costs of Australia and New Zealand Banking Group Pty Ltd, Anthony Sims and Stephen Parbery, Shane O’Keeffe and Murray Smith of the counterclaim.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 23 December 2013
Counsel for the plaintiff: K M Britton
Solicitors for the plaintiff: Gadens Lawyers
Counsel for the defendant: The defendant appeared in person
Counsel for the first defendant
to the counterclaim: J N Bird
Solicitors for the first defendant
to the counterclaim: Ashurst Australia
Counsel for the second defendant
to the counterclaim: M S Carmody
Solicitors for the second defendant
to the counterclaim: Dibbs Barker
Date of hearing: 13 December 2013
Date of judgment: 23 December 2013
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