Commercial Union Australia Mortgage Insurance Ltd v McConnell

[2001] VSC 344

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5442 of 2000

COMMERCIAL UNION AUSTRALIA MORTGAGE INSURANCE CORPORATION LIMITED	Plaintiff
v
KEITH RONALD McCONNELL AND OTHERS	Defendants

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 SEPTEMBER 2001
DATE OF JUDGMENT:	10 SEPTEMBER 2001
CASE MAY BE CITED AS:	COMMERCIAL UNION v. McCONNELL & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 344

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J.R. Dixon	Anderson & Rice
For the First Defendant	Mr. A.W. Sandbach	Davies Moloney
Fir the Third Party	Mr. C.M. Caleo	Phillips Fox

HIS HONOUR:

1. On 31 July 1990 the first and second-named defendants entered into a finance facility with the Bendigo Bank Limited.  To secure repayment of the moneys borrowed they executed a mortgage in favour of the bank over land contained in two certificates of title which are referred to in the pleadings in this proceeding.

1. On 18 December 1992 the bank assigned the mortgage to the plaintiff.  The defendants made default under the mortgage and on 16 January 1997 the plaintiff filed a proceeding in the County Court in which it sought payment of the sum then due under the mortgage.

1. The first defendant filed his defence to the plaintiff's statement of claim on 22 May 1997 and the second defendant, through a different firm of solicitors, on the following day.  In the defence of the first defendant the first defendant does not admit the contents of the first three paragraphs of the statement of claim and denies the contents of all other paragraphs.  He raises no affirmative matters in his defence.

1. The second defendant simply denies every allegation contained in the plaintiff's statement of claim and similarly she does not raise any assertion in her defence.

1. On 15 August the County Court Master gave the plaintiff leave to amend its statement of claim and that amended statement of claim was filed that same day.

1. The first defendant delivered an amended defence to that amended statement of claim on 22 December 1998.  In it the first defendant makes substantial claims concerning the Bendigo Bank and by the amended defence seeks to set off any damage suffered by him as a consequence of the bank's behaviour against the claim of the plaintiff. 

1. On that same day the first defendant filed a third party notice in the Court joining Bendigo Bank Limited as a third party to the proceeding.  The third party filed its defence to the third party notice on 23 February 1999.

1. On 24 March 2000 the first defendant delivered an amended third party statement of claim.  By it he seeks to recover from Bendigo Bank sums totalling almost $2.5 million.  It should be noted that the original claim in respect of the first and second defendants was for the sum of $189,715.04.

1. On 18 May 2000 the proceeding was transferred into this Court pursuant to the provisions of the Courts (Case Transfer) Act 1991.

1. On 17 November 2000 the third party delivered an amended defence to the third party statement of claim. 

1. Apparently the proceeding was then fixed for trial by the Listing Master for 23 May 2001.  However, on 11 May 2001 the Listing Master vacated that date and re-fixed the proceeding for hearing on 18 October 2001 on an estimate of seven to eight days.

1. On 2 August 2001 the first defendant filed a summons in the Court seeking, inter alia, the following orders:

1.That the questions of liability and quantum between the defendants and the third party be separated and determined separately.

2.That the matters in dispute between the plaintiff and the defendants be heard concurrently with the question of quantum between the defendants and the third party.

That summons came before Master Wheeler on 20 August 2001.  The Master dismissed the application and ordered the first defendant to pay the plaintiff's and third party's costs.  In his order and under the heading "Other Matters" the master has stated:

"The delay in bringing this application gives one cause for concern as to the bona fides of the defendant [the first defendant].  The possibility of splitting the case was first raised before Master Bruce on 22 June 2001 but was not persisted with.  Only months after a trial date had to be vacated and the case re-fixed because of court problems, it is raised again.  As to the merits, I accept that on the basis of the pleadings it would not be possible to defer the question of damages which go directly to whether there is an estoppel or a claim pursuant to the Fair Trading Act."

1. It is from the Master's orders that the first defendant now appeals to a judge of the Court.

1. In my opinion the learned Master made no error in this matter whatsoever.  When one looks at the content of the third party statement of claim and compares it with the content of the amended defence of the first defendant delivered on 22 December 1998, in certain basic respects the claims are identical.  The only thing that seems to have occurred between the filing of that amended defence and the filing of the amended third party statement of claim is that the amount now sought to be recovered by the first-named defendant from the third party and set off against the claim of the plaintiff has been significantly enlarged.  But, as I said, the basic claim against Bendigo Bank Limited remains unchanged.

1. Having considered that material it is my opinion that it would be almost impossible to split the third party claim from the proceeding as such.  It would result in two trials in this Court of substantially the same issues. 

1. The appeal will be dismissed.

1. I order that the appellant, that is, the first defendant, pay the plaintiff's and the third party's costs of the appeal.  Because I consider that the appeal was totally without merit and should never have been brought to the Court, I order that those costs be taxed on an indemnity basis.

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