Bryant, A.C. v Australia & New Zealand Banking Group Ltd
[1995] FCA 238
•30 Mar 1995
NOT FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 610 of 1994
GENERAL DIVISION )
BETWEEN:
ADRIAN CECIL BRYANT
Applicant
AND:
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:30 March 1995
REASONS FOR JUDGMENT
Following the Reasons for Judgment which I published on 14 October 1994, an amended statement of claim and an amended application were filed on 18 October 1994. There have been a number of other developments. In particular I granted injunctive relief on 24 October 1994 in relation to an auction of the subject properties then proposed to be held on 25 and 26 October 1994. I am informed that the properties have been sold.
The respondent bank filed a notice of motion on 14 March 1995 seeking an order that the proceedings be struck out for want of prosecution. As well, there are before me today issues which were left outstanding on previous notices of motion. Those issues were referred to in my earlier reasons.
Mr Bryant's former solicitors are no longer the solicitors on the record for him. Those solicitors, John B. Hajje & Associates, filed a notice of ceasing to act on 10 March 1995. A notice was filed in Court on 24 March 1995 that Christopher George Burt of Burt & Allen is now the applicant's solicitor. Accompanying the change of solicitor there has been a change of counsel for the applicant. Mr M B Duncan of counsel has come into the matter very recently indeed and has been of assistance in progressing the matter today, notwithstanding the recency of his involvement.
Mr R E Montgomery of counsel for the respondent bank has sought to re-agitate issues (previously raised in relation to the original statement of claim) as to the adequacy of what is now the amended statement of claim. It seems to be accepted by Mr Duncan, and in my opinion correctly so, that the amended statement of claim does leave much to be desired. However, Mr Montgomery accepts that even if he were to have the success which he seeks, there would be left some cause of action or causes of action to which the bank would be required to respond.
I raised the question whether it might not be a desirable course for Mr Duncan, without further ado, to formulate the statement of claim on which he says the proceedings should continue and to submit that document to the other side. What is important to note is this. Mr Duncan concedes that the applicant should not be permitted to seek relief, including monetary relief, based upon the bank's conduct prior to the giving of the mortgage or mortgages. In other words, the further amended statement of claim contemplated would be based only upon the bank's conduct subsequent to the giving of the mortgage or mortgages.
Although Mr Montgomery contends that the existing amended statement of claim inadequately pleads any cause of action even based upon the post-mortgage conduct of the bank, yet as a way of expediting matters he is willing to have the matter proceed in the manner referred to. He would facilitate this course by not pressing his challenge to the existing amended statement of claim, subject to the matter of costs, and of course to his right to renew the challenge to any form of further amended statement of claim which Mr Duncan may prepare.
Another matter which needs to be mentioned is that Mr Duncan would need to have time to settle any affidavit evidence to oppose the bank's motion for dismissal for want of prosecution. He says that Mr Bryant may well wish to file affidavit evidence directed to establishing that the lack of prosecution is the fault of his former solicitors. Indeed, I should record that Mr Duncan says on behalf of Mr Bryant that he will wish to join his former solicitors and former counsel as additional respondents in these proceedings. That should be the subject of a notice of motion to be served on them. I would not direct at this stage that Mr Bryant have leave to join them. Mr Montgomery accepts that in relation to the motion for dismissal for want of prosecution, Mr Bryant should have the opportunity of filing affidavit evidence.
In relation to the costs left outstanding on the previous occasion, Mr Duncan has asked that I reserve those costs. He put it that on the assumption that proceedings ensue between Mr Bryant and his former solicitors, he would not wish it to be said that there had been a failure to mitigate. However, I do not think that the bank should be delayed any longer in having the outstanding costs issues resolved. Mr Bryant's position can be protected by my reserving leave to him to apply to vary the orders for costs which I propose to make.
It does appear to me that there ought to be an order for costs in favour of the bank against Mr Bryant in relation to Mr Bryant's notice of motion filed on 12 September 1994 by which he sought orders restraining the bank from dealing with the proceeds of sale of livestock sold and from selling any further livestock until the final hearing. Mr T.L. Robinson, solicitor of Everingham Solomons, has sworn an affidavit dated 6 October 1994 attaching a letter from his firm dated 27 September 1994 to Mr Bryant's former solicitors which proffered an assurance as to how the proceeds of sale would be dealt with or had been dealt with and also an assurance that all livestock in the bank's possession had been sold. The motion proceeded further only because of the stance taken on the side of Mr Bryant.
As well, the bank had success in relation to its own application for injunctive relief in respect of threatened interference by Mr Bryant with the auction.
In relation to the bank's motion for dismissal, the bank has had substantial success although I have not dismissed Mr Bryant's substantive application itself. I think it is appropriate, particularly in view of the fact that even the amended statement of claim is inadequate in certain obvious respects, that the bank should have its costs on that motion as well.
I make the following orders:
On the applicant's notice of motion filed on 12 September 1994, I order the applicant to pay the respondent's costs;
On the respondent's notice of motion filed on 6 October 1994 for injunctive relief, I order the applicant to pay the respondent's costs;
On the respondent's notice of motion filed on 6 October 1994 for summary dismissal, I order the applicant to pay the respondent's costs;
I grant leave to the applicant to apply within 21 days from 30 March 1995, for an order varying or rescinding any of the foregoing orders as to costs, on affidavit evidence to be filed and served in support of the notice of motion for that relief also within that period of time;
I direct the applicant, within 21 days from 30 March 1995, to supply to the respondent a draft of a further amended statement of claim seeking relief only in respect of post mortgage conduct of the bank being relief consistent with my reasons for judgment dated 14 October 1994.
I direct the applicant to file and serve any affidavit evidence in opposition to the respondent's motion for dismissal for want of prosecution by 10 April 1995.
I direct the respondent to file and serve any affidavit evidence in reply by 20 April 1995.
I stand over the motion by the respondent for dismissal for want of prosecution to 24 April at 9.30 am before me for directions only
I direct that any notice of motion seeking leave to join further respondents be filed and served not later than Thursday, 13 April, and be made returnable before me on
Monday 24 April at 9.30 am.
I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:21 April 1995
Heard: 30 March 1995
Place: Sydney
Decision: 30 March 1995
Appearances: Mr M B Duncan of counsel instructed by Burt & Allen, solicitors, appeared for the applicant.
Mr R E Montgomery of counsel instructed by Everingham Solomons appeared for the respondent.
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