First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd

Case •

[2024] NSWSC 92

•

05 March 2024

Supreme Court


New South Wales

Medium Neutral Citation: First Mortgage Managed Investments Limited v Dial-A-Blind (Australia) Pty Ltd [2024] NSWSC 92
Hearing dates: 14 February 2024
Date of orders: 5 March 2024
Decision date: 05 March 2024
Jurisdiction:Common Law
Before: Davies J
Decision:

1. Set aside the default judgment given on 6 September 2023 in the sum of $2,050,267.53 pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

2. The defendant is to file its defence in the form annexed to the affidavit of Nikitas Livisianos sworn 3 November 2023 as modified in para [62] of this judgment.

3. The defendant is to pay the plaintiff’s costs of the motion.

Catchwords:

CIVIL PROCEDURE – default judgment – setting aside – proceedings for possession of land and liquidated sum – where company and its director entered into a loan agreement – where earlier judgment had been obtained against the director for possession of other land and for a liquidated sum – where writ of possession executed – non-disclosure and irregularity – whether Court ought to have been notified of prior judgment on an ex parte application for default judgment – whether default judgment entered irregularly by reason of non-disclosure – held information not relevant nor material – requirements of UCPR rr 16.4, 16.8 and 36.8 to obtain default judgment satisfied – no injustice occasioned by failure to provide further information – no irregularity

CIVIL PROCEDURE – default judgment – setting aside – bona fide defence on merits – where draft defence relies on statutory unconscionability – asserts defendant under special disadvantage given (1) sole director’s advanced age and minimal income and (2) loss made in the 2022 tax year – where nothing about the defendant’s position in 2022 was provided to the plaintiff – whether general law concept of special disadvantage applies to a corporation – not unarguable that defendant might be found to be at a special disadvantage given director was the controlling mind – authorities leave open the possibility that a company can rely on unconscionability by reason of its special disadvantage – not unarguable that loan was unconscionable given evidence there might have been difficulty servicing the loan – bona fide defence exists – default judgment set aside

Legislation Cited:

Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB

Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Supreme Court (Corporations) Rules 1999 (NSW) r 2.2

Uniform Civil Procedure Rules 2005 (NSW) rr 16.3, 16.4, 16.6, 36.8, 36.15, 36.16, 39.3, 39.35, 39.45

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; (2016) 90 ALJR 370

Blomley v Ryan (1956) 99 CLR 325; [1956] HCA 81

Brinks Mat Ltd v Elcombe [1988] 3 All ER 188

Cohen v McWilliam (1995) 38 NSWLR 476

Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37

Driat Pty Ltd v Thomas [2012] NSWSC 683

Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (2017) 94 NSWLR 606; [2017] NSWCA 53

Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662

Guardian Mortgages v Miller [2004] NSWSC 1236

Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411

Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779

Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37

Murakami v Murakami; Murakami Re the Estate of Murakami; Murakami v Wiryadi [2005] NSWSC 953

Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41

Principal Financial Group Pty Limited ACN 068 318 507 v Gabriel Joseph Vella [2011] NSWSC 327

Re Imperial Continental Water Corp (1886) 33 Ch D 314

Stubbings v Jams 2 Pty Limited [2022] HCA 6; (2022) 96 ALJR 271

Takemura v National Australia Bank Ltd [2003] NSWSC 339

Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14

Wily v King [2010] NSWSC 352

Texts Cited:

Nil

Category:Procedural rulings
Parties: First Mortgage Managed Investments Limited (Plaintiff)
Dial-A-Blind (Australia) Pty Ltd (Defendant)
Representation:

Counsel:
A W Smith (Plaintiff)
I King (Defendant)

Solicitors:
Boyce Lawyers (Plaintiff)
MCW Lawyers Pty Ltd (Defendant)
File Number(s): 2023/235944
Publication restriction: Nil

Judgment

The proceedings

  1. On 30 August 2022, Dial-A-Blind (Australia) Pty Ltd, the defendant, and its director Nikitas Livisianos entered into a loan agreement with First Mortgage Managed Investments Limited, the plaintiff, to borrow $1,830,000. The loan was for the purpose of refinancing an existing loan with a company called Omicron Mortgages. The loan was for a 12 month period with a higher rate of interest of 15.25% and a lower rate of 10.25%.

  2. By 30 October 2022, the borrowers had defaulted by failing to make an interest payment. They thereafter continued to default up to and including June 2023, by which time an amount exceeding $246,000 was outstanding under the loan.

  3. The plaintiff commenced these proceedings on 25 July 2023 naming Dial-A-Blind (Australia) Pty Ltd as the defendant. The plaintiff sought possession of land at 1/365-369 West Botany Street, Rockdale (“the land”) which had been provided as security pursuant to a mortgage in respect of the loan. The plaintiff also sought judgment for what was then outstanding of $2,050,267.53.

  4. Service was effected of the statement of claim on the defendant on 1 August 2023. When no defence was filed to the claim, the plaintiff obtained default judgment on 7 September 2023 for possession of the land and for $2,050,267.53. A writ of possession was issued on 20 September 2023.

The notice of motion

  1. On 3 November 2023, the defendant in a notice of motion filed that day sought that judgment be set aside pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). On 7 December 2023, an amended notice of motion was filed seeking judgment be set aside pursuant to rules 36.15 and 36.16 of the UCPR.

  2. In addition to the land, Unit 5 at the same address was provided as security for the loan. Prior to commencement of the present proceedings, on 19 January 2023, the plaintiff commenced proceedings against Mr Livisianos seeking possession of Unit 5 and judgment for what was outstanding to the plaintiff at that time.

  3. Mr Livisianos, through his solicitors sought a period of time to enable him to refinance. On 23 February 2023, the plaintiff and Mr Livisianos entered into a Heads of Agreement which provided that the plaintiff would not take any further action to recover Unit 5 for six weeks and, if the amount owing under the Heads of Agreement was not repaid in full by 22 March 2023, Mr Livisianos would provide vacant possession to Unit 5 by 22 April 2023.

  4. No refinance occurred and vacant possession was not provided.

  5. On 6 April 2023, the plaintiff obtained judgment for possession of Unit 5 and judgment against Mr Livisianos for the amount of $1,900,659.14.

  6. On 1 November 2023, the plaintiff entered into a contract to sell Unit 5 for $870,000. The sale settled on 13 December 2023. After payment of expenses associated with the sale, $772,500 was paid to the plaintiff in reduction of the amount owing.

  7. The affidavit in support of the present notice of motion by Mr Livisianos says that prior to July 2022 Mr Livisianos wanted to obtain finance to replace his then current finance over the two properties. He approached a broker, Global Capital Commercial, seeking a loan. He said prior to approaching the broker, the company had not been profitable and he himself had been making a very small income. He provided financial statements including his tax returns to the broker. He also said:

9.   I was not asked to obtain independent legal advice and did not obtain any such advice.

He also said that he did not obtain any independent financial advice.

  1. Mr Livisianos said that within a month of the loan being taken out, the company was unable to afford the repayments and stopped making them. He lodged an AFCA complaint on 2 November 2023, but because judgment has been entered, the AFCA complaint has been closed. Mr Livisianos said he is attempting to obtain a loan from members of his family.

  2. He attached a draft defence that he seeks to file. In that defence he admits the loan agreement but says (at para 3(c)) that he was under a special disadvantage by reason of his advanced age, being 88 years of age at the time of the loan agreement, with a taxable income of $34,204. He says also (at para 3(d)) that the company was in a position of special disadvantage because it had made a loss of $150,000 in the 2022 tax year, and did not have the means to repay the loan. He says that the loan agreement was unconscionable and was based on impermissible asset-based lending of the type discussed in Stubbings v Jams 2 Pty Limited [2022] HCA 6; (2022) 96 ALJR 271. He says that the rate of interest charged by the plaintiff was unconscionable within the meanings of ss 12CA and 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (“the ASIC Act”). He admits that a registered mortgage was given over the land, but says that it is unconscionable also in the same way.

Submissions

  1. The defendant submitted that all that was necessary to set aside the default judgment was a bona fide defence and that there is an arguable or triable issue, in addition to an explanation for the delay in seeking to defend. The defendant submitted that the making of the subject loan worsened the defendant’s financial position. The defendant pointed to the advanced age of Mr Livisianos and the parlous state of the defendant’s financial position. It was submitted that there was a clear lack of any objective evidence that would support any capacity for the defendant to service the loan.

  2. The defendant submitted that the loan was asset-based lending which, it was submitted, was impermissible, relying on what was said in Stubbings. The defendant submitted that the delay in bringing the notice of motion was modest and the explanation offered by Mr Livisianos should be accepted.

  3. The defendant submitted that judgment was entered irregularly, contrary to r 36.15 UCPR, because there was no disclosure in the affidavit in support of the ex parte motion for default judgment of the earlier judgment against Mr Livisianos. The defendant submitted that on any ex parte application there is a duty of full disclosure.

  4. The plaintiff opposed the setting aside of the judgment for a number of reasons. First, the plaintiff submitted that no bona fide defence has been established. Secondly, the defendant will be obliged to give credit for the benefit it received by the discharge of the earlier mortgage. Thirdly, no explanation has been provided for the failure to defend the proceedings in the time permitted in the UCPR. Fourthly, the plaintiff submitted that there was no duty on its part on an application for default judgment to disclose the earlier judgment, not the least reason for which was that it was irrelevant to a consideration of the default judgment being sought.

  5. The plaintiff submitted that although the term “unconscionable conduct” was used in a number of places throughout the draft defence, all that the defendant had identified as matters constituting a special disadvantage was the age of Mr Livisianos, his disclosed taxable income, and the fact that the defendant in 2022 made a taxable loss. The plaintiff submitted further that although provisions of the ASIC Act were pleaded, there was no attempt to articulate the basis on which those sections apply or the elements of those sections were engaged. The plaintiff submitted that the pleading was defective and, if filed in time, would have been liable to be struck out as embarrassing and failing to disclose a reasonable cause of action.

  6. The plaintiff submitted that in circumstances where the defendant had defaulted to its prior mortgagee, Omicron, and the monthly repayments on the new loan from the plaintiff were less than the repayments due to Omicron, it could not be said that the loan was unconscionable, especially because of the paucity of particulars of what was said to constitute the unconscionability.

  7. The plaintiff submitted that nothing in Stubbings stands for the proposition for which the defence contends, namely, that the loan agreement constituted impermissible asset lending.

Legal principles

  1. The principles associated with setting aside a default judgment were summarised by McColl JA in Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, as follows:

[43]   The court's jurisdiction to set aside the default judgement is found in the bald terms of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 36.16(2)(a), providing the "court may set aside or vary a judgment or order after it has been entered if ...(a) it is a default judgment (other than a default judgment given in open court)". The fundamental (but not the only) principles guiding a court asked to exercise the unfettered discretion UCPR 36.16(2)(a) confers, are whether the applicant has a bona fide ground of defence, an adequate explanation for the failure to defend and the length of any delay: Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503 (at 506) per Hope JA (Glass JA agreeing). In the final analysis, it is necessary to consider whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits: Reinehr Industrial Lease & Finance Pty Ltd v Jordan (New South Wales Court of Appeal, 4 June 1974, unreported) cited with approval by Sackville AJA (Barrett and Leeming JJA agreeing) in Dai v Zhu [2013] NSWCA 412 (at [83]).

[44]   In Dai v Zhu Sackville AJA also explained (at [89]) that the rationale for the requirement that the applicant for relief demonstrate a bona fide ground of defence is that "in the exercise of its 'unfettered, though judicial, discretion' the Court will consider ...(a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained". His Honour also explained (at [92]) that in "determining whether the defendant has a bona fide defence on the merits, the court does not embark on a hearing of the full merits of the case...[a]ll that is necessary is for the defendant to show that the defence is asserted bona fide and that there is an arguable or triable issue [and] [t]he nature of the evidence required in a particular case may depend on the circumstances, including the cogency of the defendant's explanation for the delay or failure to comply with the orders of the court".

[45]   In elaboration of the last proposition it is necessary to explain that the court considering the application to set aside a default judgment is not trying the issues of fact arising upon the defence advanced, but must be satisfied that the defence is "fairly arguable in law or fact" and that the applicant is bona fide in seeking to rely upon that defence: Reinehr Industrial Lease & Finance Pty Ltd v Jordan per Street ACJ (Glass JA agreeing).

[46]   Finally, it should be observed that the application of these principles is subject to the provisions of the Civil Procedure Act 2005 (NSW): Dai v Zhu (at [93]); Richards v Cornford (No 3) [2010] NSWCA 134 (at [98]ff) per Allsop P (McColl JA agreeing).

Non-disclosure and irregularity – r 36.15

  1. It is first necessary to determine if the judgment was entered irregularly because, if it was, the likely outcome would be that the judgment would be set aside.

  2. The first matter for consideration is whether the duty of disclosure applies to an application for default judgment.

  3. The defendant relied on what was said by Ball J in Principal Financial Group Pty Limited ACN 068 318 507 v Gabriel Joseph Vella [2011] NSWSC 327:

[14]   The general principle is that a party who makes an ex parte application to the court owes a duty to bring before the court all the material facts which the opposing party, if it had been present, could be expected to have brought to the court's attention. As Isaacs J explained in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681, that is the price that the party seeking the order must pay if the court is to dispense with a primary precept governing the administration of justice that no order should be made to the prejudice of a party unless that party has been heard. The principle applies as much to the grant of a search order as to any other ex parte order.

[15]   If there has been a material non-disclosure, the court may set aside the order ab initio: see Brags Electric Ltd v Gregory [2010] NSWSC 1205 at [17]. However, the court has a general discretion whether to exercise that power or not. As Gillard AJA pointed out in Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 at [33]:

In my opinion a court does have a discretion to not set aside an order despite a material non-disclosure or misrepresentation of law or fact. Setting aside does not follow as a matter of course. Relevant to the discretion is whether the material non-disclosure was serious or otherwise the importance or weight that should be attached to the omitted fact in the decision making process and also any hardship if the order was set aside. The approach is different if the plaintiff has acted culpably in the sense that the omission to disclose relevant matters was done deliberately to mislead the court. The most likely result in those circumstances would be that the order would be vacated.

…

[17]   In order for information to be material for this purpose, I do not think it is necessary that the information would have or was likely to have made a difference to the orders of the court. It is sufficient if the information is information that it could be expected that the opposing party would have wanted to bring to the court's attention and the court would have wanted to consider before making an order. It is only if the requirement of materiality is interpreted in that way that full disclosure is an adequate substitute for a party's right to be heard.

  1. The principle has been applied in a number of different cases beyond the seeking of an injunction at common law. These situations are:

•   An order for examination: Re Imperial Continental Water Corp (1886) 33 Ch D 314;

•   A costs certificate: Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662;

•   A grant of letters of administration: Murakami v Murakami; Murakami Re the Estate of Murakami; Murakami v Wiryadi [2005] NSWSC 953;

•   A freezing order: Brinks Mat Ltd v Elcombe [1988] 3 All ER 188;

•   A search order: Principal Financial Group v Vella;

•   Orders relating to the execution of judgments: Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (2017) 94 NSWLR 606; [2017] NSWCA 53; Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; (2016) 90 ALJR 370.

  1. In Aristocrat Technologies, Gageler J (as his Honour then was) said:

[15]   It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.

  1. Counsel in the present case were not able to point to any case where the principle was applied in respect of an application for default judgment. That is perhaps not surprising because the procedure for obtaining default judgment is governed in detail in the UCPR. Rule 16.3 provides that unless the Court otherwise orders, an application for default judgment may be dealt with in the absence of the parties, and need not be served on the defendant. Rule 16.4 stipulates that when seeking default judgment for possession of land an affidavit must be filed, and what is required to be set out in the affidavit is contained in sub-r 16.4(3). Rule 16.4 is made subject to r 36.8 which also sets out what must be contained in an affidavit in support of an application for default judgment for possession of land. Rule 16.6 sets out the requirements for the affidavit where default judgment on a debt or liquidated claim is sought.

  2. It can be accepted that a plaintiff is not entitled, as of right, to obtain a judgment where a defendant is in default. In Wily v King [2010] NSWSC 352 Barrett J said:

[17]   The important word in rule 16.6, for present purposes, is “may”. The court is empowered to order judgment by default in cases within this rule but is not bound to do so. In Charles v Shepherd [1892] 2 QB 622, where judgment was sought upon default in delivery of a defence, Lord Esher MR said (at 624):

“… the Court is not bound to give judgment for the plaintiff, even though the statement of claim may on the face of it look perfectly clear, if it should see any reason to doubt whether injustice may not be done by giving judgment; it has a discretion to refuse to make the order asked for.”

  1. Justice Barrett made clear the underlying basis in an ordinary case for the right of the plaintiff to seek default judgment. His Honour said:

[16]   The philosophy underlying rule 16.6 is that, because provision is made for the filing of a defence in response to a statement of claim and the statement of claim, of its nature, should contain all allegations necessary to make good the entitlement to the asserted cause of action, failure to file a defence should be taken to represent acceptance of the statement of claim and admission of the several allegations in it.

  1. Wily v King was, however, an unusual case arising under the Corporations Act 2001 (Cth). The requirement for the way proceedings were to be commenced in that case (an originating process under r 2.2(3) of the Supreme Court (Corporations) Rules 1999 (NSW)) meant that the failure to file a defence in that case did not result in deemed admissions of the case the plaintiff was bringing.

  2. In the present case, it is difficult to see what injustice there might be by giving a default judgment where the requirements of the UCPR were satisfied in terms of the material to be included in the affidavit in support of the application, in circumstances where the proceedings were correctly commenced by statement of claim, and where deemed admissions result from the failure to file a defence to that statement of claim.

  3. In an application for default judgment, “all facts known to the applicant which that absent person could be expected to have sought to place before the Court had the application for the order been contested” (Aristocrat Technologies at [15]), would ordinarily be the facts required by rr 16.4, 16.6 and 36.8 UCPR.

  4. The defendant submitted in the present case that what ought to have been notified was the fact that an earlier judgment had been obtained, not against the defendant in the present proceedings, but against a co-borrower. In addition, the defendant submitted that the Court should have been made aware of the fact that a writ of possession had been executed and it was anticipated that the property would be listed for sale, with the result that the judgment debt would, at some future time, be reduced.

  5. Of some significance, however, in terms of a judgment for the liquidated sum, the applicant in its affidavit must give particulars on any reduction of the amount due to the plaintiff as a consequence of payments made since the originating process was filed.

  6. Even applying the test of materiality on an application for default judgment set out by Ball J in Principal Financial Group at [17], although the defendant may have wanted to bring that information to the Court’s attention on the application for default judgment, I do not consider that the Court would have wanted to consider that evidence before making an order. It was not relevant let alone material.

  7. During the course of submissions, counsel for the defendant conceded that the non-disclosure submission was not made as far as the judgment for possession was concerned. The submission was only made in relation to the judgment for the liquidated sum. The concession was properly made. If two or more properties form part of the security, the fact that possession has been obtained of one of them could have no bearing on the right of the mortgagee to obtain any form of judgment, whether default or otherwise, of a second or subsequent property, provided the defendant was still in default under the mortgage. Further, as far as the judgment for possession was concerned, the fact that the debt owing might be reduced at some future time would not deprive the plaintiff of the right to possession under the terms of the loan agreement and mortgage. Some money was outstanding, as the defendant accepted.

  8. As far as the judgment for the liquidated sum was concerned, the plaintiff was entitled to a judgment for what was outstanding at the time the application for default judgment was made. If, subsequently, monies were paid in reduction of that debt, the plaintiff would not be entitled to execute any judgment for a sum greater than what was owing at the time execution was sought. Rule 39.3(2A)(a)(iii) requires evidence of payments made after judgment was entered. Rules 39.35 and 39.45 require similar information.

  9. Although there may be, in reasonably rare cases, a need for an applicant for default judgment to provide more information than rr 16.4, 16.6 and 36.8 UCPR require in the affidavits in support, the present application was not such a case. There would be no basis for the exercise of any discretion in the granting of default judgment for the application to be refused, had the information which the defendant now suggests should have been provided, been provided. No injustice was occasioned by the failure to provide that information to the Court. The defendant had defaulted under the loan agreement and the same amount of money (if not more by virtue of interest accruing) was still outstanding to the plaintiff. Under the terms of the loan agreement and the mortgage, the plaintiff was entitled to possession of the land. At the time judgment was sought, the amount alleged to be outstanding was outstanding. At the time default judgment was applied for, no contract had been entered into to sell Unit 5.

  10. The default judgment was not entered irregularly.

Setting aside the judgment under r 36.16

  1. As was made clear in Dunwoodie at [43], the fundamental principles guiding a court whether to set aside a default judgment are whether the applicant has a bona fide ground of defence and an adequate explanation for the failure to defend, together with the length of the delay.

  2. In the present case, the only explanation provided for the failure to file a defence is the statement of Mr Livisianos in his affidavit:

I did not file a defence to these proceedings at the time they were served because I was in denial about not being able to make the repayments.

  1. The explanation is very unsatisfactory, but the delay between default judgment and the application to set aside the judgment was not extensive. The relationship between the explanation for delay and whether a defendant demonstrates a bona fide defence on the merits was discussed by Priestley JA in Cohen v McWilliam (1995) 38 NSWLR 476. In that decision, Cole JA, following the trial judge Bryson J (as his Honour then was), had stressed the importance of court efficiency and compliance with court rules and procedures.

  2. On the other hand, Priestley JA said at 478:

I know of no authoritative decision which says that court efficiency is more important than, or takes priority over, deciding cases on their merits…gross negligence does not necessarily prevent the exercise of the discretion. Jordan CJ makes this clear [in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243-244)]. What it does do is make the court examine more closely the question whether there really is a triable issue going to the merits.

  1. Although the emphasis has now moved towards the greater significance of court efficiency (see, for example, ss 56-58 of the Civil Procedure Act 2005 (NSW) and what was said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27), if a defendant demonstrates an arguable defence on the merits, it would be an unusual case where the defendant was not permitted to be let in to defend the proceedings simply because time limits had not been complied with and the explanation for the failure was somewhat inadequate.

  2. In circumstances where judgment was entered shortly after the due date for the filing of a defence (and there is no criticism of the plaintiff or its lawyers in that regard), and where the motion to set aside the judgment was filed within two months of the judgment, I do not consider that the defendant should be shut out from defending the claim if it can show an arguable defence on the merits.

  3. It is necessary, therefore, to examine the question of whether the defendant demonstrates an arguable defence on the merits.

  4. The defence appears to rely on unconscionability, seemingly based on three different matters. The first is said to be the fact that the defendant was under a special disadvantage. That, in turn, was based on both the co-borrower, Mr Livisianos, and the defendant itself being under a special disadvantage. In relation to Mr Livisianos, his advanced age and minimal income are relied on. The defendant was said to be under a special disadvantage because it had made a loss of $150,000 in the 2022 tax year and did not have the means to repay the loan. The second basis for unconscionability was said to be the fact that the loan agreement was based on what was said to be impermissible asset lending of the kind discussed by the High Court in Stubbings. The third basis concerned the interest rate charged under the loan agreement.

(a)    Special disadvantage

  1. In relation to the assertion in the draft defence that the defendant was in a position of special disadvantage because of the loss it made in the 2022 tax year, it seems clear that nothing about the defendant’s position in that tax year was provided to the plaintiff. The documents annexed to the affidavit of Michael Boyce, the director of the plaintiff, show only that the tax returns provided to the plaintiff were the defendant’s tax return for the 2021 tax year and Mr Livisianos’s tax returns for the 2020 and 2021 tax years. It is difficult to see how the plaintiff could have taken unconscientious advantage of the company based on its 2022 tax year position if the plaintiff did not know of it.

  2. It must then be asked if the general law equitable concept of special disadvantage applies to a corporation. What was said in Blomley v Ryan (1956) 99 CLR 325 at 405 and 415 would suggest not, although Mason J’s emphasis in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 462 that the situations mentioned by Fullagar J and Kitto J were no more than particular exemplifications of an underlying general principle, might suggest that a company might be able to be a party that is placed at a special disadvantage.

  3. The matter was discussed by Wheeler J in Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37, a case that dealt only with general equitable principles, and did not involve statutory unconscionability.

[51]   The first broad observation that may be made about this pleading, is that it seeks to apply to the position of the company Cloverdale, which granted mortgage D777666, the equitable principles which are applicable to persons in a position of special disability. If one looks at the often quoted passage in Blomley v Ryan (1956) 99 CLR 362 (at 405 per Fullagar J) the circumstances adversely affecting a party which may induce a court of equity to set a transaction aside include -

"… poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary."

[52]   It is immediately apparent that only a natural person can suffer from the majority of the disadvantages there mentioned. There have been few cases in which the principle has applied to a corporation. The learned authors of "Cheshire and Fifoot on Contract" (Butterworths 1997 p 560) observed:

"Although the cases have been concerned with disadvantaged natural persons, it is not difficult to imagine a commercial transaction involving a small one person or family company which might attract equitable relief."

[53]   It appears that the authors were not aware of any cases in which the principles had been applied to corporations, although the researches of counsel in this case have discovered two cases in which it appears to have been assumed that a corporation could be in a position of "special disadvantage" in this sense, they being: Brooks v Sunlife Properties Pty Ltd, unreported; SCt of WA (Scott J); Library No 960071; 21 February 1996 and NZI Capital Corporation Ltd v Fulton, unreported; FCt Fed Ct of A, NG766/97; 10 June 1998. In neither of those two cases does there appear to have been any consideration of whether a corporation could suffer such a special disadvantage; rather, it seems simply to have been assumed that the principle would apply in respect of a corporation.

[54]   If it is correct to say that the focus of equity's inquiry in relation to unconscionable dealing is the conduct of the stronger party in dealing with one who is under a special disability (Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 474 per Deane J) then there would appear to be more than one sense in which it is possible for such conduct to occur in relation to a corporation.

[55]   First, to a limited extent a corporation may itself suffer from a "special disadvantage". For example, on occasion individuals have been held to suffer from such a disadvantage where they are in a desperate financial position and, attempting to escape from that position, act without legal advice (eg Morlend Finance Corp (Vic) v Luke (1991) ASCR 56-095). A corporation too may be in a desperate financial position and may act without advice. However, at least at this point of the pleading, that is not how Cloverdale's disadvantage is said to arise. Rather, it appears that the disadvantage is relevantly Dorothy's and, because she was one of the two directors, it is sought to impute her disadvantage to the company.

[56]   It seems to me that there are principles which would justify taking the view that it is not appropriate to look behind the corporation to the natural persons who are its directors for the purpose of considering whether there has been unconscionable conduct. The first is that the corporation is self-evidently a means adopted for the purpose of engaging in commerce. While there are obviously large, well resourced, well advised, corporations which could not conceivably be suffering any relevant disability, it will not always be easy to discern whether a corporation is, or is not, so run that a disability in one or more key directors would amount to a disability of the corporation itself. Even if one confined the rule to "family" corporations, there is a very wide range of such corporations. It may be a substantial impediment to reasonable commercial activity if those dealing with the corporation must look behind it to consider the abilities of its directors before dealing with it. Small corporations could be adversely affected if they are not in a position to take action quickly where commercial circumstances require it, because of the need to convince lenders or others that their directors are not under a relevant disability.

[57]   Additionally, while a corporation is an artificial person, it is in law an entity distinct from those who are its directors and shareholders and is employed for commercial purposes precisely because it has that independent and distinct existence. There is much to be said for the view that those who choose to conduct their affairs through the medium of a corporation should not, for the purposes of avoiding obligations undertaken by the corporation, be permitted to rely upon characteristics which pertain to them as the natural persons who lie behind the corporation: Hobart Bridge Co Ltd v Federal Commissioner of Taxation (1951) 82 CLR 372 at 385 per Kitto J, Tate Access Floors Inc v Boswell [1991] Ch 512 at 531, Morgan v 45 Flers Ave Pty Ltd (1986) 10 ACLR 692 at 694-5 per Young J.

[58]    In Dorothy's case, although the idea for the incorporation of Cloverdale and the other companies was not hers, she knew that Camballan was purchased by Cloverdale, she acquiesced in being a director and secretary, and in that capacity at George's request she signed very many documents holding herself out to the world as director and secretary of a corporation. To the extent that there were taxation and other benefits which flowed to the family members from the adoption of the corporate structure, she was prepared to accept the fruits of that corporate structure. It may be inequitable, as against third parties, for the courts to accede to her request to look behind that corporate structure. Further, although the maxim "ex turpi causa …." is not relied upon by the plaintiff, in a case such as this Dorothy is in effect seeking to rely upon her own failure diligently to apply herself to the affairs of the company.

[59]   On the other hand, one can imagine cases in which it would appear to be inequitable if a court were to refuse, as a rule of blanket application, to look behind a corporate structure. No doubt there are individuals who are advised to adopt that structure and who do so without ever being capable of understanding the responsibilities and the consequences of that decision. One can imagine situations in which individuals may be advised to adopt a corporate structure by advisers who know of their special disabilities and who then proceed to take advantage of those disabilities. Because of equity's focus on the conduct of the other party, it may be possible to deny reward to unconscionable conduct without unduly inhibiting commerce, if those dealing with the corporation are not permitted to rely upon transactions with it in circumstances where it is sufficiently evident to them that the person or persons who is or are the corporation's effective decision makers suffer from a special disability or disadvantage which makes them unable to make a real judgment as to the best interest of the corporation. It may be thought inappropriate that a third party, having notice of such a disability, be permitted to insist on a transaction by reason only of the fact that it was made with a corporate entity.

[60]   For the purposes of the somewhat similar principle enunciated in Yerkey v Jones (1939) 63 CLR 649, courts, including the High Court, have thought it appropriate to look behind the corporate veil for the purposes of determining whether a wife who provides a surety is truly to be regarded as a volunteer. In Garcia v National Australia Bank Ltd (1998) 155 ALR 614, although Mrs Garcia was both a director and shareholder of the company in respect of which the guarantee was provided, it was held that the company was in effect the creature of her husband. In the absence of authority expressly dealing with the point, this appears to me to be an indication of the way in which a Judge of first instance should consider the application of these equitable principles where they may involve a corporation. Similar inquiries are to be found in Armstrong v Commonwealth Bank of Australia, unreported; SCt of NSW; Equity Division; 17 June 1999; Hamilton J, Commonwealth Bank of Australia v Khouri [1998] VSC 128; and Cranfield Pty Ltd v Commonwealth Bank of Australia [1998] VSC 140.

[61]   For the purpose of these reasons, I am prepared to assume that what might in shorthand be referred to as "Amadio" unconscionability will be available in respect of a corporation in some circumstances. However, for the reasons which follow, I take the view that Dorothy did not suffer any relevant special disadvantage which should be imputed to Cloverdale.

  1. Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2023] NSWSC 411 was a case involving both general equitable as well as statutory unconscionability. In that case, Rees J said:

[336]   The parties to the Senior Facility Agreement included the borrower, Hoho Property, and the third guarantor, Ho Ho Top Foods. It is possible for a corporation to suffer a “special disadvantage”, perhaps if a corporation is in a desperate financial position and acting without advice: Commercial Bank of Australia v Ridout Nominees [2000] WASC 37 at [55]-[61] (per Wheeler J). However, the fact that the plaintiff is a company tells against a finding of special disadvantage: Joelco Pty Ltd v Balanced Security Ltd [2009] QSC 236 at [22] (per de Jersey CJ); Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 422 at [702]-[706] (per Ward J). It will be difficult for large, well advised commercial entities to establish such a disadvantage: Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1; [2008] WASC 239 at 646-7, [4931] (per Owen J). In HECEC Australia Pty Ltd v Hydro-Electric Corporation [1999] FCA 822, Einfeld J suggested that the doctrine of unconscionability may extend to small corporations dealing with governments: at [43].

[337]   One cannot simply impute a “special disadvantage” suffered by a director to the corporation, as to do so would involve lifting the corporate veil: Weston at 705. For example, in Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd (2010) 16 BPR 30,859; [2010] NSWSC 1078, the mere fact that the director of a company spoke only Vietnamese and not English “would not have led to any reasonable contemplation that there was a disadvantage of a kind for the company”: at [77] (per Garling J).

[338]   At first instance in Ridout, Wheeler J considered that the characteristics of a director may be imputed to the corporation where an individual was advised to adopt a corporate structure by advisers who knew of their special disabilities and then proceeded to take advantage of those disabilities. Further, it may be sufficiently evident to those dealing with the corporation that those that are the effective decision makers suffer from a special disability or disadvantage which makes them unable to make a real judgment as to the best interest of the corporation. In those circumstances, it may be inappropriate that a third party, having notice of such a disability, be permitted to insist on a transaction by reason only of the fact that it was made with a corporate entity: at [59]. However, it will be more difficult to impute the special disability of a director to the corporation where there were multiple directors, or where the director with a special disability was not the guiding mind of the corporation: at [62]. As her Honour also observed, those dealing with a corporation are entitled to assume that the directors are properly performing their statutory duties, including applying themselves with reasonable diligence to the company’s affairs: at [74].

  1. That discussion concerned unconscionability under the general law.

  2. The proposed defence in the present matter relies on statutory unconscionability under ss 12CA and 12CB of the ASIC Act. Statutory unconscionability is a wider concept than the equitable principle.

  3. Whilst the defendant in the present case was not incorporated simply for the purpose of the loan which was obtained (as some lenders require to take the matter outside of the National Credit Code), the evidence tends to suggest that the controlling mind of the company was, and always had been, Mr Livisianos. Both Ridout and HoHo leave open the possibility that a company may be able to rely on unconscionability by reason of its position of special disadvantage.

  4. Whilst noting the suggested limitations on being able to impute a special disadvantage suffered by a director to the corporation that Rees J discusses in HoHo, I do not think it is unarguable that the defendant in the present case might be found to be at a special disadvantage by reason of Mr Livisianos’s situation when he was the controlling mind of the company. However, I do not consider that the defendant should be entitled to rely on a special disadvantage based on its loss in the 2022 tax year when no such information was available to the plaintiff. Nor is it unarguable that what was known by the plaintiff of the defendant’s financial position meant that it was in a position of special disadvantage. The defendant submitted that the fees charged by the plaintiff worsened the defendant’s financial position.

(b)   Asset-based lending

  1. In Stubbings, the joint judgment of Kiefel CJ, Keene and Gleeson JJ said at [34]:

In this Court, the appellant conceded that asset‑based lending is not necessarily unconscionable in itself, and focussed upon the circumstances of the system of asset‑based lending employed by the respondents and AJ Lawyers in this case.

Nor is there any indication in that decision that the concession by the appellant was wrong or not in accordance with authority.

  1. Further, nothing said by Basten JA in Perpetual Trustee Company Limited v Albert and Rose Khoshaba [2006] NSWCA 41 suggests that asset lending in itself was unconscionable or unjust – see at [128] and [131]. Ordinary principles concerned with whether one party is at a special disadvantage and whether the other party unconscientiously exploited that disadvantage must still be considered.

  2. On the face of the evidence the present lending appears to be asset-based lending, because the financial information concerning the defendant and Mr Livisianos would suggest that they would not be able to repay this loan out of income. Rather, there would need to be, as the loan agreement contemplated, the sale of a significant asset within a short time of the loan being made. That requirement appears to be a partial exit strategy with the result that interest payments would be significantly reduced after the sale.

(c)   Interest rate

  1. Whilst I cannot find without any doubt that the interest rates charged were not unconscionable, the defendant will struggle with this aspect of unconscionability in the light of cases such as Takemura v National Australia Bank Ltd [2003] NSWSC 339; Guardian Mortgages v Miller [2004] NSWSC 1236; Driat Pty Ltd v Thomas [2012] NSWSC 683 and Kaji Australia Pty Ltd v Glover (No. 4) [2019] NSWSC 1779.

  2. There is a strong argument to suggest that the entry into this loan was beneficial for the defendant. It was under threat from its existing lender, Omicron, the monthly repayments were lower than those due to Omicron, and the arrangement requiring the sale of Unit 5 provided some time for the defendant to put its affairs into order (see Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 at [42] – [44]). However, it does not seem to me to be unarguable that the loan from the plaintiff was unconscionable when regard is had to the fees and interest to be charged and when, even on the 2021 tax return of the defendant, there might have been a difficulty in servicing the loan. Further, as the High Court made clear in Stubbings at [152], whether asset-lending is unconscionable must be judged in the light of all of the facts.

  3. Although the defendant correctly submitted that the Court has a wide variety of orders available to it if a breach of the ASIC Act is established, it would be a rare case where a borrower would not need to repay the principal sum lent. That is the more so where all or part of the loan has been used to discharge an earlier mortgage on the property. Ordinarily, it would be condition of any relief to the defendant that the borrower repays the benefit it has received by the discharge of the earlier mortgage: Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 114; Collier v Morlend Finance Corporation (Victoria) Pty Ltd (1989) 6 BPR 13,337 at 13, 342. The defendant makes no such offer.

  4. Whatever the outcome of defended proceedings in the present case, the defendant will be in default under the loan agreement and mortgage. A finding of unconscionability will not mean that the principle referred to in the preceding paragraph will not apply. In those circumstances, the only judgment which should be set aside is the judgment for the liquidated sum. The trial should be confined to the matters pleaded in the proposed defence annexed to the affidavit of Nikitas Livisianos sworn 3 November 2023 excluding reliance on the reference to the defendant’s 2022 tax return in para 3(d) of the proposed defence. The defendant is permitted to rely on its financial position as disclosed to the plaintiff as a matter going to special disadvantage.

  5. The defendant has sought, and been granted, an indulgence in having the judgment set aside. Although it has succeeded in doing so, it should pay the plaintiff’s costs of the motion.

Conclusion

  1. I make the following orders:

  1. Set aside the default judgment given on 6 September 2023 in the sum of $2,050,267.53 pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

  2. The defendant is to file its defence in the form annexed to the affidavit of Nikitas Livisianos sworn 3 November 2023 as modified in para [62] of this judgment.

  3. The defendant is to pay the plaintiff’s costs of the motion.

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Decision last updated: 05 March 2024

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