Bendigo and Adelaide Bank Ltd v Haque - [2018] VSC 406

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 03458

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)	First Plaintiff
and
ABL NOMINEES PTY LTD IN ITS CAPACITY AS TRUSTEE FOR THE LIGHTHOUSE TRUST NO.12 (ACN 106 756 521)	Second Plaintiff
v
MD MONIRUL HAQUE	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2018
DATE OF JUDGMENT:	10 August 2018
CASE MAY BE CITED AS:	Bendigo and Adelaide Bank Ltd & Anor v Haque
MEDIUM NEUTRAL CITATION:	[2018] VSC 406

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PRACTICE AND PROCEDURE – Deeds and other instruments – Enforcement of deed of settlement – Whether summary procedure appropriate – Barratt v Rees [2014] VSCA 327 – Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 – Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396.

COURTS AND JUDICIAL SYSTEM – Consequences of being a group member – Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516 – Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214 – Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd (2017) 118 ACSR 592; [2017] VSCA 51 – Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 – ABL Custodian Services Pty Ltd v Freer [2018] VSC 355 – Bendigo and Adelaide Bank Ltd v Lonergan [2018] VSC 357.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D. C. Gration	Turks Legal
For the Defendant	Mr B. Petrie	Rigby Cooke Lawyers

HIS HONOUR:

This is a claim by Bendigo and Adelaide Bank Limited (ACN 068 049 178) and ABL Nominees Pty Ltd (“ABL Nominees”) in its capacity as trustee for the Lighthouse Trust No. 12 (ACN 106 756 521) (collectively, “the Plaintiffs”) against Dr MD Monirul Haque (“the Defendant”) for principal and interest under three separate loans whereby the Defendant was lent money to fund his investments in certain of the Great Southern managed investment schemes. The first loan of $45,700.00 (“the First Loan”) and the second loan of $21,460.00 (“the Second Loan”) were both for the purpose of investing in the Great Southern Plantations 2007 Project ARSN 124 053 390 (“2007 Plantation Scheme”), and were made via deeds dated 30 June 2007 and 1 July 2007 (“the First Loan Deed” and “the Second Loan Deed” respectively).[1] The third loan of $55,275.00 (“the Third Loan”) was for the purpose of investing in the Great Southern 2008 Almond Income Project ARSN 127 947 960 (“2008 Almonds Scheme”) and was made via a deed dated 28 April 2009 (“the Third Loan Deed”).[2]
[1]Exhibits SFS-3, SFS-9 to the Affidavit of Stephen Flamer-Smith (8 August 2017).
[2]Exhibit SFS-12 to the Affidavit of Stephen Flamer-Smith (8 August 2017).

The 2007 Plantation Scheme and the 2008 Almonds Scheme are two of a number of managed investment schemes managed by Great Southern Managers Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 406
Decision Date: 10 August 2018

CaseChat Overview and Summary

The case of Bendigo and Adelaide Bank Ltd v Haque involved the bank seeking to enforce a deed of settlement. The dispute centred on the appropriateness of using summary procedure to enforce the deed, a matter that was subject to scrutiny given the precedents set by cases such as Barratt v Rees, Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd, and Seachange Management Pty Ltd v Pital Business Pty Ltd. The legal issues before the court included whether the bank could rely on the deed to obtain summary judgment and whether there were any grounds to set aside the deed. The court needed to balance the enforceability of the deed with the equitable considerations of fairness and justice in light of the precedents cited.

The court considered the principles established in previous cases such as Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd, Byrne v Javelin Asset Management Pty Ltd, Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd, Timbercorp Finance Pty Ltd (in liq) v Collins, and ABL Custodian Services Pty Ltd v Freer. The reasoning of the court focused on the interpretation of the deed, the circumstances surrounding its execution, and whether any equitable defences existed that could prevent enforcement. The court held that the deed was valid and enforceable but acknowledged the need to consider equitable factors that could potentially influence the outcome.

In conclusion, the court ruled that the deed was enforceable, but the bank's application for summary judgment was dismissed. The court found that while the deed was valid, the defendant's equitable defences required a more comprehensive examination, which could not be adequately addressed through summary procedure. The case underscores the importance of considering equitable principles in the enforcement of deeds and the need for a fair hearing when such issues are in play.

Orders