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Bendigo and Adelaide Bank Ltd v Laszczuk

Bendigo and Adelaide Bank Ltd v Laszczuk

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Case Copied 10 August 2018 50 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2016 01406

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)	Plaintiff
v
MARK SIMON LASZCZUK	Defendant

S CI 2017 00676

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)	Plaintiff/Defendant by Counterclaim
v
TIFFANY MICHELLE CAIRNCROSS	Defendant/Plaintiff by Counterclaim

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2018
DATE OF JUDGMENT:	10 August 2018
CASE MAY BE CITED AS:	Bendigo and Adelaide Bank Ltd v Laszczuk & anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 388

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CONSTITUTIONAL LAW – GROUP PROCEEDINGS – Validity of orders approving settlement of group proceedings – Where settlement binds group members in respect of issues not the subject of the group proceedings – Whether orders approving settlement determined hypotheticals or otherwise breached rules of natural justice – Re Judiciary & Navigation Acts (1921) 29 CLR 257 – Leeth v Commonwealth (1992) 174 CLR 455 – Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12 – Supreme Court Act 1986 Part 4A.

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 – GROUP PROCEEDINGS – 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 Plaintiff (in both proceedings)	Mr D.C. Gration	K & L Gates
For the Defendant (in both proceedings)	Mr Q. Rares	Sasha Ivantsoff (Sydney) Lewis & Weir (Victorian Agent)

HIS HONOUR:

Introduction

These are the reasons for judgment in respect of two applications for judgment in two separate proceedings, being Bendigo and Adelaide Bank Limited v Mark Simon Laszczuk S CI 2016 01406 (“the Laszczuk Proceeding”) and Bendigo and Adelaide Bank Limited v Tiffany Michelle Cairncross S CI 2017 00676 (“the Cairncross Proceeding”). These reasons are delivered jointly because this course does, in my view, facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute,[1] having regard to the almost entire commonality of issues, the consent of the parties to this course and the overlap of the parties’ legal practitioners. Before turning to the common issues which fall for determination, it is helpful to set out the background to each proceeding.
[1]Civil Procedure…

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 388
Decision Date: 10 August 2018

CaseChat Overview and Summary

Bendigo and Adelaide Bank Limited initiated legal proceedings against Ms Laszczuk, challenging the validity of orders approving the settlement of group proceedings involving various members of a class action. The case was heard and determined by the Supreme Court of Victoria. The primary dispute centred on whether the settlement orders, which bound group members on issues not explicitly addressed in the group proceedings, adhered to legal principles and whether they breached the rules of natural justice.

The court was tasked with deciding whether the approval of the settlement orders was an exercise of determining hypotheticals, and if such approval contravened the principles of natural justice. This involved a thorough examination of the relevant legislation, including the Supreme Court Act 1986, and significant judicial precedents such as Re Judiciary & Navigation Acts (1921) 29 CLR 257, Leeth v Commonwealth (1992) 174 CLR 455, and Dimitrov v Supreme Court of Victoria (2017) 92 ALJR 12. The court also considered case law concerning group proceedings, including Clarke (as Trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516, and Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212.

In its reasoning, the court found that the settlement orders did not constitute an impermissible determination of hypotheticals or breach the rules of natural justice. The court noted that the orders were based on an actual dispute and were not speculative. The approval process was deemed adequate, ensuring that all relevant parties had a fair opportunity to be heard. Consequently, the court upheld the validity of the orders approving the settlement. The final orders confirmed the binding nature of the settlement on the group members, with respect to the issues that had been the subject of the group proceedings.

Orders