Jambrecina v Pyramid Building Society (In Liquidation)

[1999] NSWSC 1234

CITATION:	Jambrecina v Pyramid Building Society (In Liquidation) & Anor [1999] NSWSC 1234
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	20101/1999
HEARING DATE(S):	6 December 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	Drago Jambrecina (Plaintiff) v Pyramid Building Society (In Liquidation) Farrow Mortgage Corporation (In Liquidation) (Defendants)
JUDGMENT OF:	Master Malpass

COUNSEL :	N/A (Plaintiff) Mr S T White (Defendants)
SOLICITORS:	In person (Plaintiff) Clayton Utz (Defendants)
CATCHWORDS:	Striking out of pleadings; non compliance with pleading rules; estoppel.
ACTS CITED:	Supreme Court Rules 1970, Pt 13 r 5, Pt 15 r 7 and r 26.
CASES CITED:	Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
DECISION:	See Paragraph 19.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 15 DECEMBER 1999

20101/1999 DRAGO JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) & ANOR.

JUDGMENT


1   An earlier hearing in these proceedings took place on 13 July 1999. Reserved judgment was delivered on 29 July 1999.

2 There were two Notices of Motion before the court. One had been brought by the plaintiff (for leave to sue the defendants). The other had been brought by the defendants (seeking relief pursuant to Pt 13 r 5 and Pt 15 r 26 of the Supreme Court Rules 1970). An order was made, that the plaintiff’s Statement of Claim be struck out. The plaintiff was given leave to file an Amended Statement of Claim within twenty eight days. The remaining matters were stood over generally.

3   The plaintiff has filed an Amended Statement of Claim. The defendants have filed an Amended Notice of Motion. Similar relief (to that sought in respect of the Statement of Claim) is now sought in respect of the Amended Statement of Claim. The plaintiff renewed his application for leave to sue the defendants.

4   The hearing took place on 6 December 1999. The same evidence was placed before the court. Similar arguments were put. Both sides have relied on written submissions supplemented by oral argument.

5   The plaintiff appeared in person. He has had the conduct of the proceedings on his own behalf. He has drafted the Amended Statement of Claim, without legal assistance.

6   The Amended Statement of Claim consists of four numbered sections. The section numbered 1 pleads due incorporation of both defendants. The section numbered 2 pleads the mortgage. The first of the sections numbered 3 pleads conditions of mortgage.

7   The second of the sections numbered 3 proceeds over three pages and comprises many unnumbered paragraphs. The first page has 5 paragraphs. Certain of them appeared in the original Statement of Claim (there are three paragraphs which contain allegations of delay in settlement in respect of three properties and make the allegation of non compliance with unspecified mortgage conditions). Certain of them constitute new matter (there is material relating to two earlier proceedings involving the parties). The second and third pages contain material which appears under the heading “ Particulars of Negligence and Professional Misconduct ” ( (a) to (i) thereof set out alleged incidents of breach of “the mortgage condition ” ). The third page also contains material which appears under the heading “ Particulars of Losses and Damages ”. The Amended Statement of Claim concludes with a claim for damages.

8   There are two defendants. Generally speaking, the allegations are made at large as against both defendants. Whilst the case has been conducted on the basis that the claim was founded on breach of conditions contained in the mortgage, the Amended Statement of Claim contains material which suggests reliance on other causes of action. There is material appearing under the heading “ Particulars of Negligence and Professional Misconduct ” which mentions “The above breeches and neglegents”. There is material appearing under the heading “ Particulars of Losses and Damages ” which mentions “acting in breech of duty as mortgagee” and “being negligent as the mortgagee”. In many instances, the allegations of breach do not identify the relevant conditions. In many instances, they do not seem to be referrable to any of the conditions identified in the first of the paragraphs number 3. The material does not identify any duty of care.

9 The Amended Statement of Claim does not comply with the pleading rules. The pleading rules require that a pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved (Pt 15 r 7). The Amended Statement of Claim falls well short of these requirements. It is lacking in material facts. It abounds with matters of evidence and what may be described as commentary and conclusion (much of which is lacking in relevance). In a pleading sense it is embarrassing.

10   A function of a pleading is to define and narrow the issues in dispute between the parties. The Amended Statement of Claim would not assist the performance of that function. Indeed, if pleaded to, it would produce the converse. I do not consider that a defendant should be required to plead to it.

11   I am satisfied that the Amended Statement of Claim should be struck out. The plaintiff has not made application for leave to file further amended process. For completeness, I should add that, if such an application had been made, I would not have been disposed to accede to it.

12   The plaintiff has been previously warned that he may have had his last opportunity to present the case he wishes to propound. The opportunity has been squandered. In my view, there is a lack of utility in providing any further opportunity. It would be likely to see further costs being thrown away.

13   It appears that the mortgage was transferred by the second defendant to the first defendant in 1990. The relevant allegations made by the plaintiff relate to events that have happened since the transfer. There appears to be no basis for any claim against the second defendant.

14   In 1992, there were proceedings involving the first defendant and the plaintiff. They were commenced by Summons and there were no pleadings. The first defendant sought possession of certain properties. In the present proceedings allegations are made in respect of three of those properties.

15   In the earlier proceedings, the material relied on by the now plaintiff ventilated the following matters:-
(a) That the mortgagee had charged higher rates of
interest than those to which it was entitled;
(b) That the proceeds of sale of certain properties were
applied to reduce principal rather than reducing arrears of interest; and
(c) That there were delays in the settlement of certain
properties.

It is sought to ventilate inter alia these three matters in the present proceedings.


16   The earlier proceedings were settled. There were consent Short Minutes of Order. There was a judgment for possession.

17   The defendants have argued that the plaintiff’s claim is liable to be defeated by the principles of res judicata, issue estoppel and what was decided in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. There may well be force in certain of these submissions. The plaintiff has asserted that some of the matters now relied on went to the issue of default. It may be that some of them could not be an answer to the claim for possession (some may have had relevance in the event of a taking of an account). However, for present purposes, it is unnecessary to reach any final view on these matters. There are more fundamental problems.

18   The plaintiff’s material and submissions reveal that what he seeks to propound appears to be misconceived and without substance. There does not appear to be any arguable claim. Further, any claim for relief founded on negligence is statute barred.

19   I order that the Amended Statement of Claim be struck out. I dismiss the plaintiff’s Notice of Motion (the authorities make it clear that such an application can only succeed where the claim has a solid foundation and gives rise to a serious dispute). The plaintiff is to pay the costs of the proceedings (including the costs of the Notices of Motion). The exhibits may be returned.
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Last Modified: 12/20/1999