Bendigo and Adelaide Bank Ltd v Williamson

[2017] NSWSC 939

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Bendigo and Adelaide Bank Ltd v Williamson; In the matter of Great Southern Finance Pty Ltd [2017] NSWSC 939
Hearing dates:	3 July 2017
Decision date:	17 July 2017
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1   Dismiss the plaintiff’s application for summary judgment, without prejudice to its ability to make any further such application in the future. 2   Direct the first defendant to serve on the plaintiff any proposed further amended defence to the plaintiff’s claim by 4pm on 18 August 2017. 3   Relist the matter for directions before Ward CJ in Eq at 9.30am on 23 August 2017, with a view to ascertaining whether any application by the first defendant for leave to amend in accordance with any proposed further amended defence served pursuant to [2] above is opposed by the plaintiff and, if so, to make directions for the hearing of any such amendment application. 4   Refer the parties to court annexed mediation on or before 22 August 2017. 5   Reserve the question of costs.
Catchwords:	CIVIL PROCEDURE – application for summary judgment
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW), s 12 Evidence Act 1995 (NSW), ss 91-92 Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) s 5(2)(b)(iii) Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Act 1986 (Vic), Pt 4A
Cases Cited:	Air Services Australia v Zarb [1998] NSWCA 7 Bendigo and Australia Bank Limited v Ling [2016] SADC 34 Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516 Cockell v Taylor (1852) 15 Beav 103; (1852) 51 ER 475 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Cosmos E-Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 Derry v Peek (1889) 14 App Cas 337 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694; [1965] 1 All ER 934 Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309 Khouri v National Australia Bank Ltd [2007] NSWSC 987 Klein v National Australia Bank Ltd [2016] VSCA 144 Mangles v Dixon (1852) 10 ER 278 at 290; (1852) 3 HL Cas 702 Nadinic v Drinkwater [2017] NSWCA 114 National Australia Bank Ltd v Thirup [2011] NSWSC 911 Re Harry Simpson & Company Pty Limited and The Companies Act 1936 [1964-5] NSWR 603 Redgrave v Hurd (1881) 20 Ch D 1 Redman v Permanent Trustee Co of NSW (1916) 22 CLR 84; [1916] HCA 47 SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 Southern British National Trust Ltd v Pither (1937) 57 CLR 89; [1937] HCA 28 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57
Texts Cited:	Dominic O’Sullivan, Steven Elliott and Rafal Zakrewski, The Law of Rescission (Oxford University Press, 2nd ed, 2014) JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2015) A V Ritchie et al, Ritchie’s Uniform Civil Procedure 2005 (NSW) (LexisNexis)
Category:	Principal judgment
Parties:	Bendigo and Adelaide Bank Limited (Plaintiff) Hugh Williamson (First Defendant) Great Southern Finance Pty Ltd (in liq) (Second Defendant)
Representation:	Counsel: DC Gration (Plaintiff) H Williamson (First Defendant in person)   Solicitors: Turks Legal (Plaintiff)
File Number(s):	2017/00156318
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me for hearing on 3 July 2017 was an application by the plaintiff (Bendigo and Adelaide Bank Limited) for summary judgment against the first defendant (Mr Hugh Williamson) in proceedings which were transferred to this Court from the Supreme Court of Victoria pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) by order of Croft J made on 28 April 2017. The basis on which the application for summary judgment was made was that Mr Williamson’s defence to the plaintiff’s claim in debt (leaving aside for present purposes the plaintiff’s claim in restitution) has no real prospects of success.

2. Mr Williamson, a retired solicitor, appeared for himself on the application for summary judgment, though solicitors were acting for him at the time his second further amended defence in the proceedings was filed (and his solicitor at that time certified that there was a proper basis for that defence, in accordance with the applicable rules in the Supreme Court of Victoria). There was no attendance at the hearing of this application by the second defendant, Great Southern Finance Pty Ltd (GSF), which is in liquidation, although an appearance has been filed for it in the proceedings.

Background

3. The plaintiff commenced these proceedings in the Supreme Court of Victoria in August 2010, claiming moneys and interest allegedly due under a loan agreement (as later orally varied) entered into by Mr Williamson in connection with an investment made by him in a managed investment scheme, referred to as the Great Southern Plantations 2004 Project Managed Investment Scheme (2004 Plantations Scheme). In the alternative, the plaintiff brought a claim in restitution for unjust enrichment arising out of the benefit alleged to have been derived by Mr Williamson’s participation in the 2004 Plantations Scheme.

4. Broadly speaking, the 2004 Plantations Scheme appears to have been a tax-driven investment scheme in which investors were invited to apply to enter into a Land and Management Agreement for particular woodlots and to finance their participation in the scheme with funds obtained from GSF. The scheme was promoted and operated by Great Southern Managers Australia Limited (GSMAL).

5. The detail of the 2004 Plantations Scheme is outlined in a Product Disclosure Statement, a copy of which was tendered in evidence on this application (the PDS). The PDS contains various warnings of the risk involved in investment in the 2004 Plantations Scheme, characterising the investment as “speculative”. For example, the PDS stated (at both p 5 and p 21) that:

Participation in the Project is intended to be of a medium to long term nature in commercial forestry and is therefore subject to attendant risks and should be considered as speculative.

and there was then a non-exhaustive articulation of the risks associated with the project (from pp 21-23), as well as factors affecting returns from the investment (see p 24).

6. The plaintiff was not the original lender of funds in relation to the 2004 Plantations Scheme, but acquired its interest in various loans made under the scheme following the assignment of those loans by GSF in April 2009 to Adelaide Bank Limited and the subsequent transfer of that entity’s rights to the plaintiff as approved under the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth).

7. The plaintiff claims that Mr Williamson defaulted on the loan made to him in relation to the 2004 Plantations Scheme from around June 2009, and that he has failed to comply with demands made for repayment of moneys payable under the relevant Loan Deed.

8. Mr Williamson denies that any money was advanced to him at all (although for some time he paid interest on the amount of the loan specified in his application for finance and claimed tax deductions in relation thereto). By his second further amended defence, he has in effect put the plaintiff to proof on that issue. He also asserts on various grounds (including alleged misrepresentation by GSF, through a financial planner said to have been GSF’s authorised agent; and alleged “failures”, on the part of GSF and/or the plaintiff, to advise him of certain things and to carry out due diligence) that if the loan agreement entered into by GSF under the power of attorney granted to it in his loan application in connection with the 2004 Plantations Scheme was validly executed (which he does not admit) the Loan Deed is void or voidable (and by his pleading avoided) and unenforceable.

Summary judgment application – applicable principles

9. The applicable test on a summary judgment application of the kind now before me was set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69 as follows:

… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them [the pleadings] to stand would involve useless expense”.

10. It is recognised that there is a heavy burden on a party seeking summary judgment. A very clear case is required and the power is one that should only be sparingly used (see Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; General Steel at 129; Webster v Lampard (1993) 177 CLR 598 at 602-3; [1993] HCA 57; Air Services Australia v Zarb [1998] NSWCA 7; Cosmos E-Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]-[38]).

11. The role of a court when determining a summary judgment application is to determine whether the pleaded case, taken at its highest, has no real, as distinct from a fanciful, prospect of success (see Klein v National Australia Bank Ltd [2016] VSCA 144 at [60] – there in the context of an application by a defendant for summary judgment; National Australia Bank Ltd v Thirup [2011] NSWSC 911 at [46]). Regard may be had to the state of the evidence then before the Court in making that assessment.

Pleadings

12. The plaintiff alleges (at [3]-[4] of its statement of claim) that, on or about 15 June 2004, Mr Williamson executed an Application for Term Finance with GSF, pursuant to which Mr Williamson applied to borrow the sum of $282,000 and that this was in connection with an application by him to GSMAL to enter into a Land and Management Agreement in respect of the 2004 Plantations Scheme for a specified number of woodlots. A copy of the said application was tendered in evidence by the plaintiff.

13. Mr Williamson admits that he signed the Application for Term Finance and that, pursuant to that application, he applied for finance as alleged by the plaintiff (see [3]-[4] of his second further amended defence). However, Mr Williamson says that the obligations created by the Application for Term Finance and the Woodlots Application Form (signed by him at the same time in relation to the 2004 Plantations Scheme) are “void or voidable” on the grounds set out in his defence (see [29]-[30] below).

14. The application form provided that, by signing the Application for Term Finance, Mr Williamson agreed to appoint GSF as his attorney to execute a loan deed on his behalf in the form attached to the application. The plaintiff pleads (at [5(a) to (e)] of the statement of claim) that GSF was appointed as attorney for Mr Williamson to do certain things. This is admitted by Mr Williamson (at [5(a)] of the second amended defence) but Mr Williamson goes on to say:

b.   says that the Second Defendant denies that pursuant to the provisions of clause 6(a)(6) of the Power of Attorney created by clause 6 of the Application, (for and on behalf of the First Defendant) executed the relevant Land and Management Agreement, referred to at pages 55 to 58 and 64 to 67 of the GSP 2004 PDS.

15. The underlined words first appeared in the defence in the version filed on 20 April 2017 (the second further amended defence). I will consider in due course the submissions made as to the significance of this paragraph of the pleading. Suffice it at this stage to note that without the underlined words this would, on its face, be an admission that GSF had executed a Land and Management Agreement for and on behalf of Mr Williamson (something that Mr Williamson in his correspondence with the plaintiff’s solicitors says had not happened as at 1 July 2004, when interest on the loan is said to have become payable).

16. As I understand his oral submissions, Mr Williamson argues that the absence of a Land and Management Agreement (as at 1 July 2004) means that no money was advanced on 1 July 2004 (see the correspondence annexed as Annexure A to his affidavit of 30 June 2017).

17. Mr Williamson says that the words “Second Defendant” at [5(b)] (see above) were a typographical error and should read “First Defendant” (though I interpose to note that without the words “denies that” it would make no sense for the “Second Defendant” in [5(b)] to be a reference to the “First Defendant”).

18. In oral submissions, Mr Williamson also pointed to references in the PDS that suggested that not all the land required for the 2004 Plantations Scheme had by that stage been acquired, in order (as I understand it) to argue that there could have been no Land and Management Agreement at that time and that money was advanced before entry into the Land and Management Agreement.

19. The plaintiff next alleges, and Mr Williamson denies, that, on or about 1 July 2004, GSF loaned Mr Williamson the sum specified in the Application for Term Finance ([6] of the respective pleadings). Mr Williamson’s blanket denial of this allegation appears to be based (at least so far as can be discerned from his correspondence with the plaintiff’s solicitors) on the absence of evidence by the plaintiff of a “balancing entry in the books which says what became of the money that [he] ‘received’” (see Annexure A). Mr Williamson complains that no double-entry book keeping techniques are used and that, instead, the affidavits filed by the plaintiff “are full of the package that we would be buying (nb there is no land held at the time of the package!) the application for finance and then the statement of loan”.

20. Mr Williamson asserts that GSMAL “had no spare money” and that GSF “had no money in relation to the 2004 project until it had sold the loans to Bendigo at the earliest in February 2005” so that there was a gap “where no money was present” and says:

So no money and no basic lots and therefore no Land and Management Agreement.

21. Mr Williamson denies that GSF loaned him the said sum “on or about 1 July 2004 or at all”, and then particularises that denial with the statement “The Second Defendant did not advance any moneys to the First Defendant”.

22. The plaintiff next alleges that, on or about 6 January 2005, GSF, for itself, and as attorney for and on behalf of Mr Williamson, entered into a Loan Deed in respect of the said loan pursuant to cl 6(a)(1) of the Application for Term Finance ([7]). Mr Williamson denies (at [7]) the allegations contained in this paragraph of the pleading and goes on to say that:

… if, which is not admitted, GSF as attorney for and on behalf of the First Defendant, executed the Loan Deed on or about 6 January 2005 as alleged, on the grounds below.

a.   the Loan Deed is void or voidable (and the First Defendant hereby avoids it); and the Loan Deed is unenforceable.

(The grounds on which Mr Williamson asserts the Loan Deed, if validly executed, is void/voidable and unenforceable appear to be those raised at [38]–[40] of the second further amended defence, which I set out later in these reasons.)

23. Various terms of the Loan Deed are then pleaded (and admitted by Mr Williamson, though in each case he repeats and relies on the matters pleaded at [7]) of his second further amended defence in relation to those paragraphs of the pleading – a formulaic response adopted throughout much of the balance of the second further amended defence) (see [8]-[9]). There is an allegation that the common intention of the parties was that the Loan Deed would include certain further terms (which is admitted by Mr Williamson – see [10]) and that due to mistake and administrative error the Loan Deed did not include those further terms (which is not admitted by Mr Williamson – see [11]). Mr Williamson again in this context repeats and relies upon the matters pleaded by him at [7].

24. Matters relating to the assignment by GSF of all its rights under the loan and Loan Deed to Adelaide Bank Limited with effect from 28 February 2005 are pleaded at [13]-[16]. Mr Williamson does not admit the assignment or the loan but says that any assignment of rights was subject to “any existing equities and defects attaching to the loan and the Loan Deed” (see [13]-[14]).

25. The Application for Term Finance signed by Mr Williamson specified the term of the loan for which Mr Williamson applied as a 2 year interest only term. At [17], the plaintiff pleads an oral variation, said to have been made on or about 18 November 2006, amending the term of the loan to a 3 year interest only term followed by 4 years of principal and interest repayments. Mr Williamson does not admit this allegation and again repeats and relies upon the matters pleaded at [7] and says that any variation of the Loan Deed is of no effect ([17]).

26. The replacement by the plaintiff of GSF as “servicer” of Mr Williamson’s loan, on and from 30 April 2009, is pleaded at [18]-[19] and is not admitted by Mr Williamson, who once again relies on the pleaded matters at [7] of the second further amended defence.

27. At [20]-[26], the plaintiff pleads continuing defaults in the repayment of moneys by Mr Williamson from on or about 15 July 2009. Mr Williamson denies these allegations and repeats and relies again upon the matters pleaded at [7]. There then follow: allegations as to the making of demands and the failure of Mr Williamson to pay the sums demanded ([27]-[29]), allegations as to the interest accruing ([30]-[31]), and allegations as to the outstanding amount said to be due as at 1 August 2010 ([32]-[33]). These allegations are not admitted by Mr Williamson (other than that he admits that the moneys demanded have not been paid).

28. The Plaintiff’s alternative claim (based on the premise that the Varied Loan Deed were to be found void and/or unenforceable) is a claim in restitution on the basis that Mr Williamson derived benefits from the loan (in that he used the loan to acquire woodlots, he received tax deductions in relation to the application fees and interest payable on the loan; and he continues to have an interest in the plantations); and would be unjustly enriched at the plaintiff’s expense (the plaintiff having paid GSF full value for the assignment of the loan) if the Varied Loan Deed is void and/or unenforceable (see [34]-[37]). As the plaintiff does not seek summary judgment in respect of this alternative claim, those paragraphs of the pleadings (and Mr Williamson’s response to them) need not be considered further.

29. Apart from the blanket denial that any moneys were loaned or advanced by GSF to him, Mr Williamson says, in answer to the whole of the plaintiff’s claim, that:

38.   In further answer to the whole of the Plaintiff’s claim the First Defendant says that he executed the Application due to misrepresentations made by the Second Defendant [GSF] through its authorized agent Peter Gilchrist of Bespoke Financial Solutions Pty Ltd (now in liquidation).

1.   Particulars

b.    The Great Southern Group of Companies (“GSGC”) were in a strong financial position.

c.    The Second Defendant was part of the GSGC.

d.   There was no suggestion that the Second Defendant had no money to advance.

e.   The 2004 Woodlot Project would be profitable based on previous results.

30. Mr Williamson goes on to plead at [39]-[40] that:

39.   If the Loan Agreement was validly executed, which is not admitted, the Second Defendant failed to advise the First Defendant that it was aware that the 1995 and 1996 Projects were returning significantly lower woodgrowth and that the yields would be significantly lower and it ought to have revealed this fact to the First Defendant and sought his specific instructions prior to executing his Loan Agreement.

40.   Neither the Plaintiff nor the Second Defendant carried out any due diligence in relation to the profitability of the 2004 Project and ought not be granted equitable restitution or damages due to this conduct.

31. As the plaintiff points out, on the pleadings Mr Williamson admits: that he signed the Application for Term Finance; that he signed an application form for woodlots in the 2004 Plantations Scheme; that the moneys to be borrowed from GSF were to fund his acquisition of woodlots; that the Application for Term Finance appointed GSF as his attorney, among other things, to enter into and execute a loan deed on his behalf; the relevant terms of the Loan Deed; the assignment of the loan to Adelaide Bank Limited; and that he has not paid the moneys demanded by it.

32. The plaintiff submits that none of the defences raised (as to denial of the making of the advance, the alleged misrepresentations and the lack of due diligence), which it notes were first raised in the second further amended defence filed in April 2017, has any prospect of success.

Procedural history

33. It is not necessary to delve into the procedural history of the matter up until June 2012, when Mr Williamson’s then amended counterclaim was struck out and he was refused leave to file and serve any further amended defence and Counterclaim. Mr Williamson sought and was granted leave to appeal that decision, but did not file a notice of appeal in time and was refused leave to file a notice of appeal out of time.

34. However, on 7 June 2013, Croft J gave leave for Mr Williamson to file a further amended defence and counterclaim, in the form of a document that had been exhibited to the affidavit of Mr Williamson’s then solicitor, subject to it being accompanied by a proper basis certification in accordance with the relevant court rules. That leave was granted on the basis of the following undertaking by Mr Williamson:

The plaintiff by counterclaim has undertaken to be bound by any findings of fact and law in Proceeding No SCI 2011 06344 (the Kenny Proceeding), which is presently part heard before the Honourable Justice Croft. [This was a proceeding relating to one of the Great Southern Plantations Schemes – see [42]-[51] below])

35. Croft J then stayed the proceeding against Mr Williamson (Williamson Proceeding) until the final determination of the Kenny Proceeding to which reference was made in the undertaking given by Mr Williamson. (This is relevant when considering the submission made by the plaintiff as to the “inordinate delay” in finalising the present proceedings. Nearly 3 years of that delay appears to be attributable to the stay of the Williamson Proceeding to await the outcome of the Kenny Proceeding. It is difficult to see how Mr Williamson can be blamed for that delay.)

36. Pursuant to the leave granted by Croft J, a document was filed on behalf of Mr Williamson on 21 June 2013 titled “Further Amended Defence and Draft [sic] Counterclaim”. The required Proper Basis Certification in relation to that pleading was filed by a solicitor acting for Mr Williamson on 24 June 2013. In the body of the document (after the striking through of a “Further Amended Counterclaim”) there appeared what was headed a “Draft Further Amended Counterclaim”. At [60] (a)-(b) of that part of the pleading there appeared the following:

60.   The defendant/plaintiff by counterclaim, at all relevant times:

(a)   acquired or held an interest as a member in the registered managed investment scheme known as the “Grand Southern Plantations 2004” scheme (2004 Plantations Scheme):

PARTICULARS

In or about June 2004, the defendant/plaintiff by counterclaim applied for an interest as a member of the 2004 Plantations Scheme. The defendant/plaintiff by counterclaim shall provide further particulars after discovery including a copy of the application.

(b)   applied for term finance and entered into a loan deed (being the Loan Deed referred to in the above defence) (Loan Deed) with GSF to fund payment of application fees in respect of the 2004 Plantations Scheme; and

PARTICULARS

The defendant/plaintiff by counterclaim refers to paragraphs 29 and 31 of the Statement of Claim.

37. The Kenny Proceeding was ultimately discontinued on 7 April 2016 with no orders as to costs (as noted in an order made by Croft J in the present proceeding on 15 March 2017). It appears that the Kenny Proceeding fell within the definition of a “M + K Counterclaim Proceeding” within the meaning of a Deed of Settlement approved by Croft J on 11 December 2014 in Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) [2014] VSC 516. It related to a claim made in respect of the 2004 Plantations Scheme in respect of which the present plaintiff had purchased the rights in relation to Mr Kenny’s loan (see the schedule contained in the annexure to Croft J’s judgment in Clarke).

38. Prior to that, on 5 February 2016, presumably on the application of the plaintiff, Croft J made orders lifting the operation of the stay of the proceedings against Mr Williamson and directing that any application for judgment against Mr Williamson be filed and made returnable on 8 April 2016.

39. Then, at a hearing on 15 March 2017, Croft J ordered that if Mr Williamson failed to file and serve an amended defence by 4pm on 21 April 2017 judgment was to be entered against him. According to the transcript from that date, a copy of which was handed up on the present application by the plaintiff, this was on the basis of his Honour’s express acceptance of the plaintiff’s submissions that Mr Williamson’s then defence had no real prospect of success.

40. It was against that background that, on 19 April 2017, the second further amended defence was filed. As a pleading, it suffers from various deficiencies (as discussed in due course).

41. On 28 April 2017, Mr Williamson’s counterclaim was discontinued by order of Croft J and (on Mr Williamson’s application) the proceeding was ordered to be transferred to this Court.

The Great Southern proceedings

42. Because of the weight attached by the plaintiff to the outcome of the Great Southern proceedings for the present application, it is convenient here to provide some further detail as to the proceedings that were before Croft J and in respect of which his Honour approved the settlement in his decision in Clarke (to which I will refer collectively as the Great Southern proceedings).

43. The Great Southern proceedings (as described by Croft J at [4] in Clarke) comprised 16 proceedings which were group proceedings under Part 4A of the Supreme Court Act1986 (Vic) and eight separate proceedings which were not group proceedings but which raised issues in common with some or all of the group proceedings and consequently were heard together with the group proceedings for the purpose of determining issues common to all these proceedings.

44. The current proceedings brought by the plaintiff against Mr Williamson are not one of the individual proceedings heard by his Honour. (They had been stayed.)

45. Some of the proceedings that were heard by his Honour as part of, or together with, the Great Southern proceedings involved schemes other than the plantation schemes (for example, vineyards schemes, organic olive schemes, almond schemes, renewable fixture schemes, wine grape schemes) and for other years.

46. In Clarke, Croft J said, at [2]-[3]; [6]:

2   These proceedings were the subject of a trial which commenced on 29 October 2012 and which extended over 90 sitting days, concluding on 24 October 2013. Judgment was reserved and was listed for delivery on Friday 25 July 2014; the parties having been informed of this listing on 23 July 2014. Within hours of the parties being so informed, the Court was advised by M+K Lawyers, the solicitors for the plaintiffs in the Clarke Group proceeding, that the proceedings had settled.

3   As a result of advice of settlement of the Great Southern proceedings, the complete certified and sealed judgment which was to be delivered on 25 July 2014 has, as more recent press reports have noted, been locked away pending resolution of the application for approval of the settlement of the proceedings under s 33V of the Act. This judgment, which has not been delivered, is presently accurately described as the unpublished reasons for judgment in the Great Southern proceedings. It bears its original listing delivery date of 25 July 2014 and its medium neutral citation of [2014] VSC 334. For the reasons which follow in this judgment, these unpublished reasons for judgment dated 25 July 2014 are, for present purposes, referred to as the Great Southern reasons and are contained in the Annexure to these reasons for judgment. The Great Southern reasons are now published in this way for the reasons which follow in this judgment. They are not published as reasons for judgment – though they are, as explained below, published completely intact and in their judgment format.

…

6   In summary, the position I reached as a result of the trial of the Great Southern proceedings is, as set out in the Great Southern reasons, that the plaintiffs’ claims completely and comprehensively failed – in all proceedings and with respect to all managed investment schemes. The question of costs was reserved but, subject to possible amelioration as a result of offers of compromise or other matters – not known to the Court – serious adverse costs consequences might be expected to flow from the substantive result. (Emphasis added)

47. The plaintiff accepts that Mr Williamson was not a group member and is not bound by the settlement approved by Croft J. Further, in oral argument the plaintiff appeared to accept that the reasons appended to his Honour’s judgment (to which I will refer as the Annexure) do not have the precedential status of a judgment and do not make any findings of fact or law as such. That must be the case, not least having regard to his Honour’s own explanation of the basis on which the “unpublished reasons” were annexed to the judgment in Clarke. The plaintiff thus does not (and could not) submit that the undertaking given by Mr Williamson is enlivened by the discontinuance of the Kenny Proceeding, following the settlement of the Great Southern proceedings.

48. Nevertheless, the plaintiff submits that, since Mr Williamson raises defences that were carefully considered by his Honour (albeit in other proceedings), this Court can and should have regard to his Honour’s “findings” in respect of those defences in assessing whether Mr Williamson’s defences in this proceeding have any prospect of success.

49. The plaintiff points out that (at [2156] of the Annexure) Croft J said:

2156   For these reasons, it follows that the plaintiffs have failed to establish the pleaded allegations made against GSF in these proceedings and the claims against GSF in respect of the 2004 Plantation Scheme are wholly unsupported and must fail.

and, in respect of the claims against the plaintiff (one of the “BEN Parties”) in relation to the 2004 Plantations Scheme, (at [2149]) his Honour said:

2149   For the preceding reasons with respect to claims of this nature in this context, there is no basis for the Court to make the orders sought by the plaintiffs against the BEN Parties. The statutory provisions upon which the plaintiffs rely [ss 1022C(1) or 1325(5) of the Corporations Act and s 12GM(7) of the ASIC Act] do not permit the Court to make orders against persons, such as the BEN Parties, who are “innocent third parties” not involved in any of the conduct complained of by the plaintiffs. Even if there were a basis for the Court to make the orders sought against the BEN Parties, the statutory provisions upon which the plaintiffs rely are discretionary in nature. For the reasons indicated previously, the Court should not, in the present context, in the exercise of its discretion, make any orders against the BEN Parties or any order against GSF in respect of the Loan Deeds assigned to the BEN Parties. It follows that even if the plaintiffs did establish that the 2004 Plantation Scheme PDS were defective within the meaning of the Corporations Act, or that GSF or GSMAL engaged in some other conduct in contravention of the Corporations Act or the ASIC Act, all of which the defendants deny, there is no basis for the Court to order the relief sought by the plaintiffs against the BEN Parties. Indeed, this is the position accepted in the preceding reasons to which reference has been made.

50. It may well be that the Annexure was published so that a reader of the approved decision might have “a sufficient grasp of the background in which that decision was made” (that being the purpose which Judge Slattery in the District Court of South Australia considered the Annexure was to serve – see Bendigo and Australia Bank Limited v Ling [2016] SADC 34 fn 5).

51. Be that as it may, the fact remains that it is simply incorrect to suggest (as from time to time Counsel for the plaintiff did) that Croft J made any “findings”, as such, by publishing the Annexure. Leaving aside the difficulty that evidence of a finding of fact in earlier proceedings may not ordinarily be admissible as evidence of the fact in other proceedings (Evidence Act1995 (NSW) ss 91-92), his Honour expressly disavowed any suggestion that he was delivering a judgment on the merits. Therefore, while his Honour’s reasoning on the issues that had been before him would of course be worthy of close attention had it formed part of a final judgment, with all due respect to his Honour the plaintiff cannot gain any benefit from the “unpublished” reasons on a determination of the present application (except insofar as the plaintiff’s submissions may be informed by similar reasoning). Ultimately, the focus placed by the plaintiff on the “findings” in the Annexure seems to have obscured that which the plaintiff needed to establish on the present application; namely, that there are no real prospects of success for the defences Mr Williamson seeks to raise.

Is there an arguable defence pleaded?

52. Turning to the defences pleaded by Mr Williamson, the plaintiff argues as follows.

No advance – [35] of the second further amended defence

53. The plaintiff relies on the affidavit evidence of Mr Stephen Flamer-Smith, the Manager, Legal and Resolutions, Great Southern Collections, who is employed by it, to the effect that GSF lent Mr Williamson the sum of $282,000 on or about 1 July 2004. Mr Flamer-Smith’s affidavit refers to his examination of the books of account and other business records of the plaintiff (see [4] of his affidavit affirmed 11 March 2016). Relevantly, Mr Flamer-Smith exhibits to his affidavit copies of the Application for Term Finance signed by Mr Williamson, the Loan Deed dated 6 June 2005 executed by GSF, and a bank statement (that Mr Flamer-Smith deposes shows the amount owing by Mr Williamson as at 1 March 2016). Mr Flamer-Smith in his affidavit recounts as fact various matters pleaded in the statement of claim.

54. The plaintiff submits that it should be inferred that the loan funds were advanced, in accordance with the Application for Term Finance/Loan Deed, in essence because the woodlots were acquired. However, I was not taken to any copy of a signed Land and Management Agreement in the evidence relating to woodlots allocated to Mr Williamson.

55. The plaintiff maintains that Mr Williamson’s denial that funds were advanced is inconsistent with Mr Williamson’s previous admissions that he used the loan to acquire woodlots in the 2004 Plantations Scheme and that he claimed tax deductions in respect of this investment. In this regard, I note that there was an express admission contained in a previous version of the defence (at [35]) to the effect that Mr Williamson had claimed tax deductions in respect of his investment in the 2004 Plantations Scheme. Mr Williamson’s current pleading contains a denial that he was entitled to a tax deduction “because the loan advance was not made at all”. The plaintiff argues that Mr Williamson did not apply for, and has not been given, leave to withdraw that earlier admission.

56. The denial that any moneys were loaned or advanced to Mr Williamson is also said to be inconsistent with the claims made earlier, at [60] of the now discontinued “draft future amended counterclaim”, to the effect that Mr Williamson acquired or held an interest in the 2004 Plantations Scheme and that he applied for term finance and entered into a loan deed with GSF to fund payment of application fees in respect of the 2004 Plantations Scheme. Again, the plaintiff notes that there has been no leave granted for the withdrawal of that admission. Mr Williamson says that this was only a “draft” further amended counterclaim (though it appears to have been filed and certified by his solicitor) but also says that if this would otherwise be an admission against interest by him he would seek leave to withdraw that admission.

57. Insofar as Mr Williamson has asserted in correspondence (see his email of 23 June 2017) that the loan was only advanced on 1 March 2005 based on the settlement report (a copy of which was annexed to Mr Flamer-Smith’s affidavit), the plaintiff says that this mistakes the date on which the assignment of Mr Williamson’s loan from GSF to Adelaide Bank Ltd was settled for the date on which his loan was originally advanced.

Alleged misrepresentations by financial planner – [38] of the second further amended defence

58. Insofar as Mr Williamson alleges that he executed the Application for Term Finance because of alleged misrepresentations by GSF, through its authorised agent (a financial planner), reliance is placed by the plaintiff on the analysis by Croft J in the Annexure of similar allegations in the Clarke proceedings.

59. In particular, as to the alleged misrepresentation at (a), the plaintiff notes that Croft J considered in detail what was referred to as the alleged “financial strength” representation in respect of the 2004 Plantations Scheme (at [2050]-[2056] of the Annexure) and said (at [2056]) that even if the Court found that the alleged “financial strength” representation was made in the PDS for that scheme (which his Honour did not accept was the case) “there was no basis for a finding that the representation was untrue or misleading or deceptive”.

60. The plaintiff says that Mr Williamson has adduced no evidence to suggest that this Court would reach a different conclusion in this proceeding. Pausing there, to the extent that the plaintiff complains that no evidence has been adduced by Mr Williamson of this (or other matters), it should be noted that no timetable for the service of evidence by Mr Williamson (or, for that matter the plaintiff) has yet been put in place. Therefore, it is not to the point that Mr Williamson has not yet adduced any evidence on this issue.

61. As to the alleged misrepresentation (at (b)), that GSF was part of the Great Southern group of companies, the plaintiff asserts that this is factually correct.

62. As to the alleged misrepresentation (at (c)), that there was no suggestion that GSF had no money to advance, the plaintiff complains that no particulars or evidence are provided as to why this is said to have been a misrepresentation. It says that GSF plainly did have money to advance, asserting that it advanced money to Mr Williamson (that, of course, being put in issue by his defence) and to many other investors in the 2004 Plantations Scheme and in other schemes.

58. Finally, as to the alleged misrepresentation that the 2004 Plantations Scheme would be profitable based on previous results, the plaintiff points to the warning and description of risks in the PDS and notes that the Application for Term Finance signed by the first defendant contained a section, immediately below Mr Williamson’s signature, headed “RISK DISCLOSURE STATEMENT & DECLARATION”, which included the following:

I/We understand that:

•   GSFPL [Great Southern Finance Pty Ltd] does not guarantee any returns of [sic] the interests in the Woodlots in Great Southern Plantations;

•   Participation in any agricultural activity involves inherent risks and l/we am/are aware of these risks;

•   …

•   GSFPL has not advised me/us as to the legal, financial and taxation implications of the terms of the Agreement and has not considered in any way its applicability to my particular circumstances

I/We have read and understood the Application and the Loan Deed, including the Risk Disclosure Declaration. I/We have had the opportunity to obtain independent legal, financial and taxation advice. I/We have considered the risks and costs involved in participating in an agricultural based activity and l/we am/are prepared to accept the risks involved and hereby accept liability for this loan should this application for finance be accepted

64. In those circumstances, the plaintiff submits that a defence based on reliance on an alleged representation made by a financial planner that the project in the 2004 Plantations Scheme would be profitable has no prospect of success.

65. Mr Williamson did not address submissions referable to these aspects of the pleading, other than seemingly to embrace my observation that this was not the stage at which there was any obligation on Mr Williamson’s part to adduce evidence; and to foreshadow an application for leave to re-plead if I were (as I certainly am) of the view that the pleading is defective.

Failure to advise of matters concerning the 1995 and 1996 Projects – [39] of the second further amended defence.

66. The plaintiff points to the consideration given by Croft J (in the Annexure) of allegations concerning non-disclosure of the returns and yields of the 1994-1996 Projects (at [716]-[1312]), the conclusions reached by his Honour that yields from the 1994 and 1995 Plantation Schemes were not indicative of likely yields from later projects (see the heading to [880] and the conclusions at [1969]-[2012]), and the conclusion at [2065] in relation to the 2004 Plantations Scheme with respect to returns and yields of the 1995 and 1996 Projects. The plaintiff says that there is no evidence that this Court would reach a different conclusion in this proceeding. (I make the same comment as made before as to the difficulty with this submission.)

The plaintiff and GSF did not carry out due diligence – [40] of the second further amended defence

67. The plaintiff complains that it is not clear why Mr Williamson asserts that it or GSF was required to carry out due diligence on the 2004 Plantations Scheme. It points to the setting out by Croft J (from [2095]-[2136] of the Annexure) of the extensive due diligence that was carried out by GSMAL, to his Honour’s conclusion in those unpublished reasons that GSF is not liable in respect of the 2005 and 2006 Plantations Schemes, and (at [2147]) suggests that the claims against GSF in respect of the 2004 Plantations Scheme would fail for the same reasons. It is again submitted (with the same difficulties) that there is no evidence to suggest that this Court would reach different conclusions in this proceeding. It is further submitted that the allegation that the plaintiff should have carried out due diligence must fail since Mr Williamson’s loan was not assigned until 28 February 2005 and the plaintiff did not hold it until 1 December 2008.

Determination

Admissions

68. First, as to the reliance placed by the plaintiff on previous iterations of Mr Williamson’s defence (and/or the so-called “draft further amended counter-claim”) as amounting to admissions (such as that the loan was advanced by GSF, the Land and Management Agreement was executed by GSF as his attorney, and/or that he acquired the woodlots and claimed tax deductions) (see [15], [55], [56] above), and assuming for present purposes that these amount to formal admissions for the withdrawal of which leave would be necessary, what would constitute proper grounds for withdrawal will depend on the nature of the admission (be it of fact or law or a mixture of both) and the stage of the proceedings when the application is made.

69. Ordinarily, an explanation of the circumstances in which the admission was made, and those relied on to justify the withdrawal, would be required (see Ritchie’s Uniform Civil Procedure Rules commentary at [17.2.5] and the cases there cited). So, for example, it has been said that it will not usually be appropriate to grant leave to withdraw an admission where, among other things: the admission has been made after obtaining relevant advice and is deliberate and clear (Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 at 745, 748); or where the party with the benefit of the admission is likely to be prejudiced by the withdrawal, either as a result of having changed its position in reliance upon the admission (H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694; [1965] 1 All ER 934) or as a consequence of the unavailability of evidence, or likely significant deterioration in its quality, as a result of the delay (SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 at [57]-[59]). Conversely, leave to withdraw an admission may be appropriate where the admission was made inadvertently or without due consideration of material matters (Khouri v National Australia Bank Ltd [2007] NSWSC 987).

70. The question whether to permit withdrawal of an admission has been said ultimately to be one of “the attainment of justice” (see Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309 at [19], [32]; citing the observations of Dawson, Gaudron and McHugh JJ in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 at 154), involving a balancing of all relevant circumstances including the prejudice which must attach to one party or the other.

71. In the present case, it is not necessary (nor is it practicable on the evidence as it is) to opine at this stage as to the likely fate of any application by Mr Williamson for leave to withdraw any relevant admissions made by him in previous iterations of the pleadings; suffice it to note that Mr Williamson foreshadowed an adjournment application to provide time for an application for leave to withdraw any relevant admissions to be made. Were any such admission to be determinative of the present summary judgment application, I would have been inclined (bearing in mind that Mr Williamson is now self-represented and asserted, from the bar table, that certain of the pleadings were filed when he was recovering from and/or affected by a brain abscess) to permit such an adjournment so that he could make a proper application (supported by admissible evidence) as to the basis on which leave to withdraw any such admissions was put.

72. As it is, I am not of the view that it is necessary to do so because I am not persuaded that summary judgment should be granted.

The “no loan was advanced” defence

73. That is not to say that I do not see formidable difficulties in Mr Williamson’s “no loan was advanced” defence. It is clear from the structure of the scheme outlined in the PDS, and from the Loan Deed, that the borrowed moneys were not to be advanced to Mr Williamson directly but, rather, were to be advanced on his behalf in connection with his application to participate in the scheme. Such an advance may have been effected or documented by way of book entries as between GSF and GSMAL. There would be a strong inference available, from the fact that interest repayments were made and tax deductions claimed by him, that the loan for which Mr Williamson had applied (in the Application for Term Finance that he admits he signed) was made in accordance with the Loan Deed executed (on its face validly) by his attorney on his behalf.

74. The fact that the Loan Deed was formally executed some months after the loan was put in place is not sufficient to gainsay the loan having been made at the earlier time, nor is the absence of a Land and Management Agreement (or any failure, if there be any, by GSF to comply with obligations in relation to entry into a Land and Management Agreement) conclusive. This is not a case where the claim made by Mr Williamson is of a total failure of consideration; and his counterclaim was discontinued.

75. However, there is no evidence at this stage of the manner in which loan funds were accounted for, or applied by, GSF as at 1 July 2004. I was taken to no accounting or financial records of GSF recording the advance of moneys the subject of Mr Williamson’s finance arrangements. I was informed that records of GSF of this kind are in the hands of the liquidators of GSF. That may well be the case. However, it highlights a difficulty in the present application for summary judgment. The only financial records to which the plaintiff was able to point on this application, as evidence of the loan having been made, appear to be bank statements from the time the loan was later assigned (which show an opening debit balance owing by Mr Williamson). It does not appear that there are bank statements evidencing the payment of interest prior to the assignment. (In passing I note that a similar difficulty seems to have been addressed in the Ling proceedings to which I referred earlier, but there, at least, there was apparently evidence of the recording system maintained by GSF for the purposes of preparation of its balance sheet (see [96]-[102]).)

76. I am not persuaded that the inference that the plaintiff invites me to draw, from the making of interest payments prior to the assignment of the loan to Adelaide Bank Ltd (and thence to the plaintiff), assuming that there were to be evidence in due course of those payments, or the entry into a Land and Management Agreement (of which I was taken to no copy in evidence), is so strong as to preclude any possible defence based on a failure of GSF to advance (whether by way of book entry or otherwise) the loan funds as at the relevant time. For example, the fact that it promised to do so, or asserted it had done so, does not preclude, say, the possibility of an administrative error of some kind having been made. Mr Williamson might perhaps, for the sake of argument, have made interest payments and claimed tax deductions under a mistaken belief that the loan had been advanced. Unless he is bound by an admission as to the loan having been advanced, Mr Williamson is entitled to call for proof of the advance having been made.

Defences based on other grounds

77. As to the remaining defences, I have no doubt that they are inadequately pleaded. As to [38], there is no pleading of the material facts on which it is asserted that Mr Gilchrist was the authorised agent of GSF, no pleading of the precise terms of the alleged misrepresentations or as to by (or to) whom they were made, no pleading of the falsity or incorrectness of the matters allegedly represented, and no pleading of reliance by Mr Williamson on those representations or that he was induced thereby to apply for the loan. As to [39], there is no pleading of the basis on which it is asserted there was any relevant duty on the part of GSF to advise Mr Williamson of the matters there set out; nor as to who, at GSF, had the alleged awareness or why that was to be imputed to GSF or what “specific instructions” should have been sought. Nor is it made clear how it is alleged that any such “failure” to advise gives rise to the subsequent loan being unenforceable. As to [40], there is no pleading as to how any failure of GSF (let alone the plaintiff which is not alleged to have had any involvement at all in the loan arrangements prior to taking an assignment of the loan) to carry out due diligence on the project is said to lead to the loan being unenforceable. Is it alleged that GSF (or the plaintiff) owed a duty to the plaintiff in relation to the carrying out of due diligence in respect of the project? If so, on the basis of what facts and circumstances is such a duty said to have arisen? And how could any loss have been sustained as a result of a failure by the plaintiff to carry out due diligence some years after Mr Williamson had applied for and entered into the loan arrangements? Nor is there any general attempt to plead the basis on which relief would be available as against the plaintiff, as assignee of the loan, by reason of conduct of GSF or the financial planner. The defence in this regard is what can only charitably be described as hopelessly pleaded.

78. However, I cannot conclude that there is no basis on which a reasonably arguable defence based on a misrepresentation made by GSF or a third party on its behalf, if relied upon by Mr Williamson when entering into the loan arrangements, could give rise to a claim for relief by Mr Williamson against the plaintiff’s claim.

79. The first step in considering that question is to ask what relief Mr Williamson may have been able to obtain (on the bare allegations pleaded, or by reference to allegations of the kind it might be assumed from the present pleading that Mr Williamson seeks to bring) as against the original contractual counterparty (i.e., the assignor). The second step is to consider the juridical nature of that relief. The reason for that inquiry is that the contract – the source of the legal chose in action against Mr Williamson (i.e., the debt) – has been assigned to the plaintiff. The third step is to ask on what basis relief may be available as against the plaintiff.

80. Shortly put, is it reasonably arguable that on a properly pleaded defence Mr Williamson could argue that this assignee (the plaintiff) takes subject to the (for this purpose assumed) equity claimed by Mr Williamson?

81. As to the first step, in the present case Mr Williamson appears to be alleging that he entered the loan contract on the basis of alleged misrepresentations by his financial planner (said to be an authorised agent of the original contractual counterparty; i.e., the assignor). No statutory claim is foreshadowed in the pleading and hence it is not necessary to consider whether the impugned conduct could have formed the basis for a statutory claim for relief. Absent such a claim, there could be a basis for asserting that a misrepresentation (assuming that it were to be established that there was an operative misrepresentation) in relation to the loan rendered the loan contract voidable at the suit of Mr Williamson; for example, if the allegation was that there had been a fraudulent misrepresentation (see Derry v Peek (1889) 14 App Cas 337 at 374; Nadinic v Drinkwater [2017] NSWCA 114 at [22]), or even if there were no more than an innocent misrepresentation (see Redgrave v Hurd (1881) 20 Ch D 1; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 at [25]).

82. Although broad (and wholly unpleaded) allegations of criminal behaviour are contained in Mr Williamson’s correspondence with the plaintiff’s solicitors (to which he took me in oral submissions), there is no pleading of fraud. Fraud is a serious matter to allege (and must be pleaded with particularity). The present pleaded defence cannot possibly be sustained on an allegation of that kind that is seemingly made at large. In Nadinic v Drinkwater, Leeming JA rejected the submission (at [112]) that a judge can make “serious findings of fraud consistent with, but going beyond, a pleaded case of misleading or deceptive conduct or innocent or negligent misrepresentation”; noting that such submission “mistakes one of the functions of pleadings”. When pressed on this issue, Mr Williamson did not seek to sustain the pleaded defence on the basis of any such allegation of fraud. Therefore the present ambit of the defence as to the status of the loan contract seems to be limited to an allegation of an operative non-fraudulent misrepresentation.

83. As to the second step, assuming that such a misrepresentation could be made out, I accept that it may be that such a claim can properly be characterised as giving rise to an ‘equity’ for the purposes of the principle that an assignee of a chose in action takes subject to equities, bearing in mind the wide meaning given to “equities” in this context (see Re Harry Simpson & Company Pty Limited and The Companies Act 1936 [1964-5] NSWR 603 at 605 (Jacobs J)).

84. If that were to be established (and this is the third step), it would be necessary to consider whether the plaintiff took the chose in action subject to such an equity or whether it is open to the plaintiff, as assignee of the legal chose in action, to plead that it is a bona fide purchaser for value without notice.

85. It is well-established that an equitable assignee of a legal chose in action takes the assigned property subject to equities. In Mangles v Dixon (1852) 10 ER 278 at 290; (1852) 3 HL Cas 702 it was said that “[i]f there is one rule more perfectly established in a court of equity than another, it is, that whoever takes an assignment of a chose in action … takes it subject to all the equities of the person who made the assignment”.

86. The position is the same where there has been a legal (statutory) assignment of a chose in action. Section 12 of the Conveyancing Act 1919 (NSW) provides that:

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees. (my emphasis)

87. The meaning of “equities”, in the context of an assignee taking “subject to equities”, is usefully summarised by the learned authors of Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (LexisNexis, 5th ed, 2015) (at [6-500]) as follows:

A chose in action is the benefit of an obligation. ‘Equity’ means in this context a defence, set-off or counterclaim which the person subject to the obligation is entitled to oppose to the claim of the person entitled to the benefit. The effect of the rule is that the defence, set-off or counterclaim is equally available against the assignee. …

…

[T]his rule applies whether the ‘equity’ of the person subject to the obligation assigned is liquidated or unliquidated. Equities on which the person bound can rely as against the assignee are: (a) those on which he or she could have relied as against the assignor at the time he or she received notice of the assignment; and (b) those arising as against the assignor, after the person bound receives notice of the assignment, and which are ‘flowing out of and inseparably connected with’ [Tooth v Brisbane City Council (1928) 41 CLR 212 at 223-224] the obligation the benefit of which is assigned.

88. A case in which a third party receives a chattel under a voidable contract may be distinguished from a case in which a third party takes an assignment of a chose in action created by contract which is vitiated by an operative misrepresentation. In the latter case, it appears that a defence of bona fide purchase for value without notice is not available. In Redman v Permanent Trustee Co of NSW (1916) 22 CLR 84; [1916] HCA 47, Griffith CJ and Barton J said (at 91) that:

The assignee of an equitable interest, even for valuable consideration, takes subject to all the equities and infirmities of his assignor’s title. It is one of the infirmities of the title of the assignor of an equitable interest that his right to it may be disputed and defeated by litigation in a competent Court between competent parties. (Emphasis added)

89. In Southern British National Trust Ltd v Pither (1937) 57 CLR 89; [1937] HCA 28, Dixon J (as his Honour then was) said the following (at 110):

An assignment operating in equity only gave no higher equitable interest than the assignor possessed. If the title of the assignor was defeasible in equity, or was subject to equitable interests in third parties, so was the title of the assignee.

90. His Honour then referred to Cockell v Taylor (1852) 15 Beav 103; (1852) 51 ER 475 where Romilly MR said the following (at 481):

It has not been disputed, nor can it be doubted, that the purchaser of a chose in action does not stand in the situation of a purchaser of real estate for valuable consideration without notice of any prior title, but that the purchaser of a chose in action takes the thing bought subject to all the prior claims upon it.

91. The nature of the claim has been described in academic literature as follows (see Dominic O’Sullivan, Steven Elliott and Rafal Zakrewski, The Law of Rescission (Oxford University Press, 2nd ed, 2014) at [21.31]):

Where a chose in action is assigned pursuant to statute, the right to rescind against a subsequent assignee derives from the language of the statute.

The right to rescind against a subsequent equitable assignee is more complex. Two principles appear to be involved. The first emphasizes the nature of equitable assignment itself. Rescission is available against the subsequent assignee because equitable assignments are only effective to pass what the assignor was ‘justly entitled to’ [citing Phillips v Phillips (1861) 4 De GF & J 208 at 215; 45 ER 1164 at 1166], and this means the chose in action burdened by the relevant claim to rescind. …

…

This reasoning tends to see the right to rescind as an infirmity in the assignor's title, and the right to rescind against equitable assignees as an expression of the nemo dat rule: the assignor gives only what he has. Reasoning of this kind has been employed in cases where it is the assigning obligee who asserts the claim to rescind [citing Southern British National], but is equally applicable where the obligor has the equity to rescind [citing Turton v Benson (1718) 1 P Wms 496 at 499; 24 ER 488 at 489]. …

The second principle focuses on the distinctive character of choses in action as rights to sue. The principle is that equity will not permit the assigning of a right to sue to deprive the obligor of claims or defences that he could have set up in a suit brought by the original obligee. … This reasoning is confined to rescission by an obligor and cannot apply when it is the obligee who wishes to rescind an assignment of the chose in action. …

92. Accordingly, I cannot conclude that there is no basis whatsoever on which a reasonably arguable defence based on a misrepresentation by GSF (properly pleaded) could give rise to a claim for relief by Mr Williamson against the plaintiff.

93. I should emphasise that none of the above analysis was the subject of debate on the hearing before me of the summary judgment application. In essence, the plaintiff simply relied upon the unpublished reasoning of Croft J (in the Annexure) to invite me to conclude that Mr Williamson’s defence has no real prospects of success and Mr Williamson provided little assistance in that regard. However, I am conscious of the caution to be exercised before summarily entering judgment against a defendant and, in circumstances where a reasonably arguable defence could potentially be pleaded based on the very scant outline of Mr Williamson’s position as currently set out in the second further amended defence, I am not prepared to do so at this stage.

Status of the pleadings

94. I have already adverted to some of the difficulties, from a pleading perspective, which attend the second further amended defence. When some of these defects were pointed out in the course of oral argument, Mr Williamson indicated that he would seek an opportunity to amend his pleading. That, of course, brings into play the history of the conduct of the proceedings to date. Croft J was of the view that a self-executing order was appropriate in relation to the filing of any further defence (which led to the present iteration of Mr Williamson’s pleading) and it might be assumed that his Honour would not have looked kindly on a further amendment application.

95. That said, the plaintiff did not bring a strike-out application based on the obvious deficiencies in the pleading; and Mr Williamson did not come to the hearing of the summary judgment application on notice of any such claim. I would not be prepared of my own motion in those circumstances to strike out the second further amended defence notwithstanding its failure properly to put the plaintiff on notice of the basis of Mr Williamson’s defence.

96. The plaintiff has invoked the principles mandated by the Civil Procedure Act 2005 (NSW) with reference to the requirement to facilitate the just, quick and cheap resolution of the real issues in the proceeding and to ensure that the costs to the parties, and the resources of the judicial system, are proportionate to the importance and complexity of the subject matter in dispute. I am acutely conscious of those principles. The plaintiff, as adverted to earlier, complains in this regard of the “inordinate delay” between the commencement of this proceeding and its (yet to come) final determination.

97. I am not unsympathetic to the position of the plaintiff (issues of the same kind as now being sought to be raised having already been litigated by it over a considerable period and, no doubt, at considerable expense in at least two other jurisdictions by other parties). The prospect of yet further litigation on the same issues must understandably be unpalatable to the plaintiff. Nor can it be said, having regard to the historical fate of arguments of the kind Mr Williamson is wishing to raise (see, for example, Ling) that Mr Williamson’s defence is promising or gives rise to any optimism for success by him in resisting the claim for the debt the subject of the present proceedings. Nevertheless, as a matter of procedural fairness – Mr Williamson not being bound by the earlier settlement nor by the “findings” in the Annexure – Mr Williamson is entitled to resist the present claim as long as he can plead a reasonably arguable defence.

98. What I propose to do, in the interests of the just, quick and cheap resolution of the real issues in dispute, having regard to the need for proportionality between the cost of litigation and the importance and complexity of the subject matter of the dispute, and noting Mr Williamson’s stated wish for leave to amend his pleading if it be seen to be deficient, is to make the orders set out below. If Mr Williamson is unable to frame a properly pleaded defence on his next attempt then there will be a strong basis for the proposition that his defence should be struck out with no further leave to re-plead.

99. I should also note that I raised the issue of mediation of the dispute with the parties in the course of oral argument. Neither opposed that course. Though there may well be room for scepticism as to the prospect of a sensible commercial resolution to the matter (particularly having regard to the intemperate tone of Mr Williamson’s most recent communications and particularly if he continues not to have the benefit of objective and balanced legal advice), I am of the view that such an attempt should be made. As the plaintiff points out, interest is still running on the loan for which Mr Williamson will be liable if he fails in his defence, and I can see a number of obstacles ahead for him in that regard.

100. Suffice it also to say that Mr Williamson would be well-advised to obtain some considered legal advice as to his defence (that suffering, as adverted to above, from a number of problems).

101. As to costs, although those ordinarily follow the event, I bear in mind that the present pleading is clearly defective and that this has given rise to the need for further interlocutory steps to be taken in the proceedings.

102. In those circumstances, I propose to deal with the question of costs once the status of the pleaded defence has been resolved and once the future course of the proceedings is clearer to me. I also propose closely to case manage the proceedings from this point.

Orders

103. I make the following orders:

1. Dismiss the plaintiff’s application for summary judgment, without prejudice to its ability to make any further such application in the future.

2. Direct the first defendant to serve on the plaintiff any proposed further amended defence to the plaintiff’s claim by 4pm on 18 August 2017.

3. Relist the matter for directions before Ward CJ in Eq at 9.30am on 23 August 2017, with a view to ascertaining whether any application by the first defendant for leave to amend in accordance with any proposed further amended defence served pursuant to [2] above is opposed by the plaintiff and, if so, to make directions for the hearing of any such amendment application.

4. Refer the parties to court annexed mediation on or before 22 August 2017.

5. Reserve the question of costs.

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Decision last updated: 17 July 2017