Kenney v Commonwealth Bank of Australia
[2017] FCA 389
•13 April 2017
FEDERAL COURT OF AUSTRALIA
Kenney v Commonwealth Bank of Australia [2017] FCA 389
File number: WAD 206 of 2016 Judge: BARKER J Date of judgment: 13 April 2017 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules2011 (Cth) – where applicants raise claims, causes of action, issues and facts adjudicated on in previous proceedings – anshun estoppel Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 26.01
Date of hearing: 5 September 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 20 Counsel for the Applicants: The First Applicant appeared on behalf of the Applicants Counsel for the Respondent: Mr SK Dharmananda SC Solicitor for the Respondent: Minter Ellison ORDERS
WAD 206 of 2016 BETWEEN: GREGORY PETER KENNEY
First Applicant
NOLA MICHELLE KENNEY
Second Applicant
AND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124
Respondent
JUDGE:
BARKER J
DATE OF ORDER:
13 APRIL 2017
THE COURT ORDERS THAT:
1.Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondent on the grounds that:
(a)the applicants have no reasonable prospect of successfully prosecuting this proceeding or any part of it;
(b)further or in the alternative, no reasonable cause of action is disclosed by the applicants; and
(c)further or in the alternative, this proceeding is an abuse of process of the Court.
2.The originating application filed by the applicants on 24 May 2016 be dismissed.
3.The applicants pay the costs of the application including the costs of this interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
Mr Gregory Peter Kenney and Mrs Nola Michelle Kenney commenced this proceeding against the Commonwealth Bank of Australia in May 2016. They claim damages against the Bank of $4,545,000, the discharge of a mortgage over their farming property, and punitive and exemplary damages.
In a proposed amended statement of claim, Mr and Mrs Kenney make these claims by reference to a number of transactions concerning the Bank, including:
·Loans made by the Bank to them in October 2002.
·Further advances made by the Bank in about August 2004.
·The calling up of loans by the Bank in November 2005.
·The transfer of loans to the Bank’s risk management division in February 2006.
·The signing of an option agreement between them and Spitfire Oil Pty Ltd on or about August 2008 for the lease of their property for mining purposes, with an option to purchase.
·A further financing proposal by Mr and Mrs Kenney in respect of the farming property in March 2010.
·A request for permission from the Bank to plant a crop in 2015.
·A refusal by the Bank in 2016 to allow Mr and Mrs Kenney to plant a crop.
The proposed amended statement of claim appears to rely on a range of statutory causes of action, including misleading and deceptive conduct and unconscionable conduct, as well as breach of contract, amongst other possible causes of action.
It is appreciated that Mr and Mrs Kenney, not being legally trained and being self‑represented in the proceeding, have done the best they can to propose a statement of claim that pleads material facts and identifies relevant causes of action within the jurisdiction of this Court.
The Bank however applies for summary judgment, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Federal Court Rules 2011 (Cth), effectively on the basis that Mr and Mrs Kenney do not have a claim with a reasonable prospect of success.
The Bank explains at the outset of its application that it seeks summary judgment in the context of claims already made by Mr and Mrs Kenney, and dismissed, in the Supreme Court of Western Australia in respect of the same loan transaction, the same mortgage and the very same defaults that Mr and Mrs Kenney would seek to rely upon in this proceeding; and in circumstances where summary judgment was ordered against them by the Master in the Supreme Court, and upheld by the Court of Appeal on a subsequent appeal by Mr and Mrs Kenney.
It is important then to identify the litigated background to this present proceeding. I do this by reference to an account provided and supported by the evidentiary materials filed on behalf of the Bank in support of its summary judgment application.
By a writ dated 30 May 2013, the Bank commenced debt recovery and possession proceedings against Mr Kenney in the Supreme Court of Western Australia proceedings CIV 1869 of 2013.
The Bank obtained summary judgment. Master Sanderson ordered on 11 August 2014, amongst other things, that Mr Kenney pay the Bank the sum of $1,756,917.12 and deliver up vacant possession of three properties mortgaged to the Bank, being the properties referred to by Mr and Mrs Kenney in [8] of the statement of claim filed in this Court.
Mr Kenney appealed the decision of the Master in proceeding CACV 103 of 2014 on the grounds that the Master, amongst other things:
·“erred in fact and law when granting judgment for [the Bank] without distinction between the amount secured by mortgage against the land and the unsecured amount” (Third Ground); and
·“erred in fact and law insofar as the amount granted in judgment against [Mr Kenney] exceeds the contractual entitlements of [the Bank] and is harsh and unconscionable” (Fourth Ground).
On 15 March 2016, the Court of Appeal (Buss, Newnes and Murphy JJA) unanimously dismissed all of the grounds of Mr Kenney’s appeal, noting, amongst other things, that:
·with respect to the third ground, “[t]here is nothing to suggest that any of the advances made by [the Bank] to [Mr Kenney] and Mrs Kenney fell outside the ambit of the mortgage. This ground must be dismissed”; and
·with respect to the Fourth Ground: “[i]t is inherently improbable that [the Bank] would have advanced the funds if, as pleaded in the defence, [Mr Kenney] had expressly rejected the terms of the advance and declined the offer of the funds”; “[i]n the circumstances, the Master was entitled to reject, as he implicitly did, [Mr Kenney’s] contention that he had not agreed to the terms of the advance”; and “there was simply no evidence that was arguably capable of making out a case of unconscionable conduct on the part of [the Bank]”.
The Bank has provided the Court with a table setting out, in some detail, the claims, causes of actions, facts, issues and allegations attempted to be raised or relied upon by Mr and Mrs Kenney in this proceeding that have been previously adjudicated upon in the Supreme Court, including the Court of Appeal. I consider the table correctly notes the relationship of matters pleaded in the proposed statement of claim with the mattes raised and adjudicated upon in the Supreme Court proceedings.
WAD 206 of 2016 Previous Proceedings Comments
Claim/cause of action/fact/issue/ allegation*
(*may be summarised/paraphrased)Document reference Proceeding Document reference Claim/cause of action/fact/issue/ allegation*
(*may be summarised/paraphrased)Comments On or about September 2002, the applicants applied for finance with the respondent on the basis of representations made to the first named applicant by Paul Slater. Applicants’ amended statement of claim paragraphs 4 and 5 CACV 103 of 2014 Appellant’s Draft Chronology On 18 October 2002, Letter from Bank to GP and NM Kenney and the Bank offered to provide them with financial accommodation in the form of an Overdraft Loan account in the sum of $200,000. The Bank offered to provide GP and NM Kenney Better Business Loan in the sum of $100,000 (Better Business Loan). The respondent loaned money to the applicants under a term loan and an overdraft facility which were secured by first mortgages over rural properties located at Fitzgerald locations 466, 580, 1433 & 1538 Salmon Gums, Western Australia. Applicants’ amended statement of claim paragraphs 6 – 8 (inclusive) CACV 103 of 2014 Appellant’s Draft Chronology On 14 January 2003, GP and NM Kenney executed the Mortgage in favour of the Bank.
On 6 March 2003, the mortgage was registered at Landgate and was assigned registration no. 1404086.
The first order claimed by the Commonwealth Bank of Australia in the writ of summons filed in CIV 1869 of 2013 is for, ‘The defendant to do forthwith give and deliver up to the plaintiff, as mortgagee pursuant to mortgage I404086 (Mortgage), vacant possession of the land described as… Fitzgerald Locations 580 and 1433.. 446… and 1538.’ On or about February 2004 the applicants repaid the overdraft facility and Paul Slater orally agreed to advance further funds by topping up the overdraft by $365,000.00. Applicants’ amended statement of claim paragraphs 9 – 11 (inclusive) CACV 103 of 2014 Appellant’s Draft Chronology
Affidavit of Gregory Peter Kenney sworn 21 July 2014 paragraphs 6 and 12
On 31 August 2004, the Bank offered to increase the facility limit of the Overdraft Loan from $200,000 to $565,000 (First Variation).
Despite having met all interest and principal payments as they fell due, on 25th day of October 2005, the bank placed me in what they termed “asset management”… On the day I was placed in asset management, the principal sum borrowed was $565,000.00.
Each of the loans between the respondent to the applicants were transactions conducted in trade or commerce in relation to the provision of a financial service and financial product as those expressions are used in the Australian Securities and Investments Commission Act 2001 (Cth). Applicants’ amended statement of claim paragraph 12 The terms of the loans provided the respondent with a right to transfer the loans to its credit management unit on default by the applicants. Applicants’ amended statement of claim paragraph 13 CACV 103 of 2014 Appellant’s Draft Chronology
Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraph 6
On 2 September 2005, CBA sent a letter stating sale of farm necessary, not prepared to provide lending facilities beyond 28 February 2006, putting borrower in “asset management” owing $635,505.35.
Despite having met all interest and principal payments as they fell due, in October 2005, the bank placed me in what they termed ‘risk management’.
On or about March 2005 the applicants purchased residential property in Mosman Park which was financed independently and did not affect the applicants’ serviceability of the loans to the respondent. At all material times as at March 2005 the loan repayments were regular and up to date. Applicants’ amended statement of claim paragraphs 14 and 15 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraph 5 Until October 2005 I was at all material times operating within the terms of my facilities with the Bank operating within agreed limits. On or about November 2005 an officer of the respondent advised the first named applicant that the respondent was calling in the loan unless the applicants met certain conditions, demanded that the applicants refinance or alternatively sell the farm and restricted the use of the applicants’ working capital facility which, in turn, affected farming activities. Applicants’ amended statement of claim paragraphs 17 – 19 (inclusive) CIV 1869 of 2013 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 6 – 8 (inclusive) and 19
Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 9 and 12
Affidavit of Gregory Peter Kenney sworn 21 July 2014 paragraphs 11 and 14.
Despite having met all interest and principal payments as they fell due, in October 2005, the bank placed me in what they termed ‘risk management’ which increased the interest margin on both facilities from 3.5% to 6.5% and later to more than 12%.
The $85,000.00 shortfall severely limited my ability to plant crop in 2011, reducing my crop by an estimated one third.
After being placed in risk management my overdraft and working capital facilities were frozen.
The Bank informed me on 15th day of November 2005 that my Overdraft Facility would be frozen and it was frozen on 28th day of February 2006. After the Bank froze my working capital I fell into default of my facilities.
The respondent’s representations that it was in it for the long haul was misleading and deceptive or likely to mislead and deceive for the purposes of Section 12DA of the Australian Securities and Investments Act 2001. Applicants’ amended statement of claim paragraph 20 This paragraph is unintelligible, frivolous, vexatious and does not disclose any reasonable cause of action and, in any event, should have been raised in the previous proceedings.
On or about February 2006 the applicants listed the Salmon Gums property for sale as per the respondent’s demand. Applicants’ amended statement of claim paragraph 21 Affidavit of Gregory Peter Kenney sworn 21 July 2014 paragraph 25(a) The farm has been listed for sale officially and unofficially since February 2004 without a single written offer in more than 10 years. On or about February 2006 the loans were transferred to the respondent’s Risk Management Division (RMD) resulting in additional penalty charges, interest rates increasing by 1.03% and the applicants’ credit ratings being adversely affected. Applicants’ amended statement of claim paragraphs 22 – 24 (inclusive) CIV 1869 of 2013 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 6 – 8 (inclusive) Despite having met all interest and principal payments as they fell due, in October 2005, the bank placed me in what they termed ‘risk management’ which increased the interest margin on both facilities from 3.5% to 6.5% and later to more than 12%. On or about August 2008 the applicants signed a mining lease option agreement with Spitfire Oil Pty Ltd which provided that the applicants would be paid $275,000.00 over 2.5 years with an option to purchase. Applicants’ amended statement of claim paragraphs 25 and 26 CIV 1869 of 2013 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraph 23 (and Affidavit of Gregory Peter Kenney sworn 21 July 2014 paragraph 9) The Bank further contributed to my difficulties in servicing the loan facilities by delaying their consent to a mining option agreement with Spitfire Oil Limited which would have contributed an additional $18,750 on signing and $37,500 twice yearly.
In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘There are four grounds of appeal. They are (omitting the particulars) that the master… 4. erred in fact and law insofar as the amount granted in judgment against the appellant exceeds the contractual entitlements of the respondent mortgagee and is harsh and unconscionable… The issue of unconscionable conduct can be dealt with very briefly… We should mention that it is not clear whether the alleged delay by the respondent in granting consent to the mining option agreement with Spitfire Oil Limited is relied upon in support of this ground. In any event, suffice to say that it does not assist the appellant on this, or any other, ground. This ground should be dismissed.’ On or about October 2008 the respondent, acting unreasonably and oppressively, declined to approve the option agreement causing the applicants to suffer damages of $275,000.00. Applicants’ amended statement of claim paragraphs 27 – 30 (inclusive) On or about March 2010 the respondent made an additional $295,000.00 in lending available to the applicants to assist them to put a crop in but did not disclose increased interest rates, additional charges and repayment conditions until after the funds were drawn down. This false, misleading and deceptive conduct of the respondent caused the applicants to suffer damages. Applicants’ amended statement of claim paragraphs 31 – 40 (inclusive) CIV 1869 of 2013 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 13, 15 and 22 On or about May 2010 the Bank provided a $295,000 seasonal facility but I did not see the letter of offer. Had I seen the terms of the offer I would have never agreed. When the letter of offer was produced, it became apparent that the rate of interest was to be in excess of 15% when the Reserve Bank rate was 3.25%. In an extract of proceedings CIV 1869 of 2013 on Tuesday 22 July 2014, Master Sanderson (on giving brief reasons for his decision) noted, amongst other things, that, ‘… the defendant must establish that there’s a serious question to be tried. In this case, the documents make it plain that from time to time certain moneys were advanced, and they were secured over a property at Salmon Gums. There has been default on the loan. The demands which are required by both the terms of the mortgage and the loan agreement have been made, and the plaintiff is entitled to both possession of the mortgage property and judgment for the amount of the sum claims… It’s a case where the land in question simply can’t service the debt. If there was any way out of this, I would find it. The simple fact is that there’s not. The plaintiff is entitled to the judgement that they seek.’ The applicants were never in default of the loans until after the loans were transferred to the respondent’s RMD. The respondent’s actions in transferring the loans constituted a breach of the loan agreements or alternatively constituted unconscionable conduct for the purposes of section 12CB of the Australian Securities and Investments Act 2001. The applicants suffered losses of $1,607,400 plus interest of $193,309.00. Applicants’ amended statement of claim paragraphs 41 – 52 (inclusive). CIV 1869 of 2013 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 5 – 6 (inclusive)
Affidavit of Gregory Peter Kenney sworn 21 July 2014 paragraphs 11 and 14.
Until October 2005 I was at all material times operating within the terms of my facilities with the Bank operating within agreed limits. Despite having met all interest and principal payments as they fell due, in October 2005, the bank placed me in what they termed ‘risk management’.
The Bank informed me on 15th day of November 2005 that my Overdraft Facility would be frozen and it was frozen on 28th day of February 2006. After the Bank froze my working capital I fell into default of my facilities [emphasis added].
In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘It appears to be common ground that in 2010 the appellant asked for the overdraft limit to be increased to finance farming operations for the 2010 season. The respondent wrote to the appellant and Ms Kenney offering to further increase the overdraft limit from $565,000 to $860,000 on certain terms. Those terms included that the balance owing and the overdraft limit were to be reduced to $565,000 by 31 December 2010 and that an interest rate of 15.49% per annum would be charged on the funds drawn down… It was not in issue that a copy of the July 2010 letter of offer was not signed by the appellant or Ms Kenney by way of acceptance. In an affidavit in support of the application for summary judgment, Mr Ficko, an officer of the respondent, says that the offer was accepted by the appellant, on behalf of himself and Ms Kenney, in several telephone conversations between May 2010 and July 2010, and by the advance and utilisation of the funds drawn down by the appellant… There are four grounds of appeal. They are (omitting the particulars) that the master… 4. erred in fact and law insofar as the amount granted in judgment against the appellant exceeds the contractual entitlements of the respondent mortgagee and is harsh and unconscionable… As we have said, the appellant did not deny that the additional funds referred to in the July 2010 letter of offer were advanced to and utilised by him. It is inherently improbable that the respondent would have advanced the funds if, as pleaded in the defence, the appellant had expressly rejected the terms of the advance and declined the offer of the funds… In the circumstances, the inescapable conclusion is that the appellant received the letter and utilised the funds advanced by the respondent in the knowledge of the terms on which they were advanced. Indeed, even if, as alleged in the defence, he had refused the funds, the appellant was on notice of the terms on which the respondent was prepared to make the funds available in choosing to utilise them must be taken to have accepted those terms. In the circumstances, the master was entitled to reject, as he implicitly did, the appellant’s contention that he had not agreed to the terms of the advance. The issue of unconscionable conduct can be dealt with very briefly… there was simply no evidence that was arguably capable of making out a case of unconscionable conduct on the part of the respondent. In particular, there was no evidence that the appellant was under a special disability in the relevant sense. There was also no evidence that the rate of interest charged by the respondent was any greater than the rate charged by other commercial lenders for lending of that nature… This ground should be dismissed.’
In 2015 the respondent acted unconscionably, oppressively and unreasonably in declining the applicants’ request to plant a crop without requiring further finance. This caused the applicants to suffer losses of $1,120,800.00. Applicants’ amended statement of claim paragraphs 53 – 55 (inclusive) and 58. CACV 103 of 2014 Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraphs 25 and 26(e)
Affidavit of Gregory Peter Kenney sworn 28 May 2014 paragraph 19
Appellant’s Grounds of Appeal paragraph 4 (contained in the Appellant’s Case)
In the last 8 years the properties have experienced 6 years with insufficient rainfall to produce profitable grain harvests… A senior local real estate agent has informed me that farms in the Salmon Gums District are currently unsaleable.
The $85,000.00 shortfall severely limited my ability to plant crop in 2011, reducing my crop by an estimated one third.
His Honour erred in fact and law in so far as the amount granted in judgment against the Appellant exceeds the contractual entitlements of the Respondent mortgagee and is harsh and unconscionable.
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His Honour erred in not finding that the Appellant was under a special disadvantage vis-a-vis obtaining finance after a long period of draught.In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘There are four grounds of appeal. They are (omitting the particulars) that the master… 4. erred in fact and law insofar as the amount granted in judgment against the appellant exceeds the contractual entitlements of the respondent mortgagee and is harsh and unconscionable… The issue of unconscionable conduct can be dealt with very briefly. There are two difficulties with it. First, it was not a matter raised before the master and it is clearly a matter upon which the respondent could have adduced evidence which could possibly have defeated the point. It is therefore too late to raise it on appeal…’ In 2016 the respondent acted unconscionably, oppressively and unreasonably in declining the applicants’ request to plant a crop. This caused the applicants to suffer losses that are yet to be determined. Applicants’ amended statement of claim paragraphs 56 – 58 (inclusive) CACV 103 of 2014 Appellant’s Grounds of Appeal paragraph 4 (contained in the Appellant’s Case) His Honour erred in fact and law in so far as the amount granted in judgment against the Appellant exceeds the contractual entitlements of the Respondent mortgagee and is harsh and unconscionable.
...
His Honour erred in not finding that the Appellant was under a special disadvantage vis-a-vis obtaining finance after a long period of draught.In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘There are four grounds of appeal. They are (omitting the particulars) that the master… 4. erred in fact and law insofar as the amount granted in judgment against the appellant exceeds the contractual entitlements of the respondent mortgagee and is harsh and unconscionable… The issue of unconscionable conduct can be dealt with very briefly. There are two difficulties with it. First, it was not a matter raised before the master and it is clearly a matter upon which the respondent could have adduced evidence which could possibly have defeated the point. It is therefore too late to raise it on appeal…’ The respondent has acted unlawfully in relying on Memorandum of Provisions G141 dated 5 May 1992 to enforce the loans and try to take possession of the rural properties as the memorandum related to a loan that was fully repaid by the applicants in 1996 and no other such document has ever subsequently been sighted or signed by the Applicant. Applicants’ amended statement of claim paragraphs 59 – 61 (inclusive) CACV 103 of 2014 Appellant’s Grounds of Appeal paragraph 3
(contained in the Appellant’s Case)His Honour erred in fact and law when granting judgement for the respondent mortgagee without distinction between the amount secured by the mortgage against the land and the unsecured amount. In an extract of proceedings CIV 1869 of 2013 on Tuesday 22 July 2014, Master Sanderson (on giving brief reasons for his decision) noted, amongst other things, that, ‘… the defendant must establish that there’s a serious question to be tried. In this case, the documents make it plain that from time to time certain moneys were advanced, and they were secured over a property at Salmon Gums. There has been default on the loan. The demands which are required by both the terms of the mortgage and the loan agreement have been made, and the plaintiff is entitled to both possession of the mortgage property and judgment for the amount of the sum claims… It’s a case where the land in question simply can’t service the debt. If there was any way out of this, I would find it. The simple fact is that there’s not. The plaintiff is entitled to the judgement that they seek.’
In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘There are four grounds of appeal. They are (omitting the particulars) that the master… 3. erred in fact and law when granting judgment for the respondent mortgagee without distinction between the amount secured by mortgage against the land and the unsecured amount… This ground was not the subject of either written or oral submissions by the appellant and it is not apparent what debt is alleged to be unsecured… the mortgage was what is commonly known as an ‘all moneys mortgage’; it secured the whole of the mortgagor’s indebtedness to the mortgagee. There is nothing to suggest that any of the advances made by the respondent to the appellant and Ms Kenney fell outside the ambit of the mortgage. This ground must be dismissed.’
The applicants have suffered losses of $1,542,000.00 due to the increased interest rates applied to the loans. Applicants’ amended statement of claim paragraph 62 See the above comments in relation to paragraphs 41 – 52 of the statement of claim in proceeding WAD 206 of 2016. On 9 January 2007 I submitted a proposal to the Bank which involved a write off of some of the debt owed to the Bank so that I could refinance to another Bank.
In a letter dated 6 February 2007, the Bank informed me that they would not accept a write down on the debt as I had “… a surplus of assets over liabilities of 2.50m approximately.”Affidavit of Gregory Peter Kenney sworn 1 September 2016 paragraphs 14 and 15 WAD 206 of 2016 These paragraphs are unintelligible, frivolous, vexatious and do not disclose any reasonable cause of action and, in any event, should have been raised in the previous proceedings.
In a letter dated 22 December 2008 from Stuart Child to the Banks solicitor Richard Bartlett, Stuart Child stated that “the mining company has effectively terminated the contract as the Bank has failed to provide its consent…” and that “the agreement is financially beneficial to him (and to the Bank) and he request we reconsider…”
In a letter dated 24 December 2008 from Richard Bartlett to Stuart Child details the points of review of the options agreement.
The attachments labelled “GPK5” and “GPK6” is new and fresh evidence that was not available to me during the Supreme Court Proceedings (CIV 1869 of 2013 and CACV 103 of 2014) these documents have only become available recently by obtaining a copy of my file held with the Financial Ombudsman Service.Affidavit of Gregory Peter Kenney sworn 1 September 2016 paragraphs 23 – 25 (inclusive) WAD 206 of 2016 These paragraphs are unintelligible, frivolous, vexatious, do not disclose any reasonable cause of action and are subject to legal professional privilege.
Pursuant to clause 7.6 of the Financial Ombudsman Service’s Terms of Reference dated 1 January 2010 (as amended 1 July 2010), “FOS operates on a “without prejudice” basis. This means that information obtained through FOS may not be used in any subsequent court proceedings unless required by an appropriate court process.”
In February 2010 I sought an extension to my overdraft loan from the Bank to finance the 2010 cropping program.
On 13 May 2010 I started drawing on funds that had been made available as a temporary extension to the overdraft before the official terms of the extension had been finalised.
At no time was I informed of what the interest rate was on the overdraft extension [emphasis added].
I believed that the interest rate that was going to be applied to my loans would decrease as I offered the Bank a second mortgage on my residential property in Mosman Park WA (which the Bank later accepted).Affidavit of Gregory Peter Kenney sworn 1 September 2016 paragraphs 26 - 29 (inclusive) WAD 206 of 2016 This is inconsistent with paragraph 5 of the defence filed by the first named applicant in proceedings CIV 1869 of 2013 which states that, “…[ the Defendant] says that the Defendant had several telephone conversations with Craig Matthew s of the Plaintiff about the July Offer between May 2010 and July 2010… during their telephone conversations, Craig Matthews stated words to the effect that the Plaintiff would make the July Offer to the Plaintiff on the terms that (i) the Plaintiff would increase the interest rate on the loan…[emphasis added]”
In an extract from the unanimous judgment of Buss JA, Newnes JA and Murphy JA in proceedings CACV 103 of 2014 delivered on 15 March 2016, the Court of Appeal found, amongst other things, that, ‘It appears to be common ground that in 2010 the appellant asked for the overdraft limit to be increased to finance farming operations for the 2010 season. The respondent wrote to the appellant and Ms Kenney offering to further increase the overdraft limit from $565,000 to $860,000 on certain terms. Those terms included that the balance owing and the overdraft limit were to be reduced to $565,000 by 31 December 2010 and that an interest rate of 15.49% per annum would be charged on the funds drawn down… It was not in issue that a copy of the July 2010 letter of offer was not signed by the appellant or Ms Kenney by way of acceptance. In an affidavit in support of the application for summary judgment, Mr Ficko, an officer of the respondent, says that the offer was accepted by the appellant, on behalf of himself and Ms Kenney, in several telephone conversations between May 2010 and July 2010, and by the advance and utilisation of the funds drawn down by the appellant… There are four grounds of appeal. They are (omitting the particulars) that the master… 4. erred in fact and law insofar as the amount granted in judgment against the appellant exceeds the contractual entitlements of the respondent mortgagee and is harsh and unconscionable… As we have said, the appellant did not deny that the additional funds referred to in the July 2010 letter of offer were advanced to and utilised by him. It is inherently improbable that the respondent would have advanced the funds if, as pleaded in the defence, the appellant had expressly rejected the terms of the advance and declined the offer of the funds… In the circumstances, the inescapable conclusion is that the appellant received the letter and utilised the funds advanced by the respondent in the knowledge of the terms on which they were advanced. Indeed, even if, as alleged in the defence, he had refused the funds, the appellant was on notice of the terms on which the respondent was prepared to make the funds available in choosing to utilise them must be taken to have accepted those terms. In the circumstances, the master was entitled to reject, as he implicitly did, the appellant’s contention that he had not agreed to the terms of the advance. The issue of unconscionable conduct can be dealt with very briefly… there was simply no evidence that was arguably capable of making out a case of unconscionable conduct on the part of the respondent. In particular, there was no evidence that the appellant was under a special disability in the relevant sense. There was also no evidence that the rate of interest charged by the respondent was any greater than the rate charged by other commercial lenders for lending of that nature… This ground should be dismissed.’
The Bank claims to have informed me in telephone conversations between May and June 2016 of the terms of the loan including the interest rate that would be applied to the loan… The Bank did not and could not have informed of the interest rate in May or Early June of 2010 as indicated in the affidavit of Peter Ficko, as the Bank had not completed its internal loan application… The attachments labelled “GP9”, “GP10” and “GP11” is new and fresh evidence that was not available to me during the Supreme Court Proceedings (CIV 1869 of 2013 and CACV 103 of 2014) these documents have only become available recently by obtaining a copy of my file held with the Financial Ombudsman Service. Affidavit of Gregory Peter Kenney sworn 1 September 2016 paragraphs 30 – 37 (inclusive) WAD 206 of 2016 These paragraphs are unintelligible, frivolous, vexatious and do not disclose any reasonable cause of action.
Pursuant to clause 7.6 of the Financial Ombudsman Service’s Terms of Reference dated 1 January 2010 (as amended 1 July 2010), “FOS operates on a “without prejudice” basis. This means that information obtained through FOS may not be used in any subsequent court proceedings unless required by an appropriate court process.”
As the Bank contends, Mr Kenney at [4] and [5] of his affidavit, made on 1 June 2016, when he applied to stay proceedings in the Supreme Court, expressly described the proceeding he had commenced in this Court as “a new Cause of Action in said Federal Court [which] deals with the same factual matrix as in this Court previously. Any determination there ought to resonate in this Court in direct consequence”.
In my view, it is apparent from an immediate consideration of them, that the claims that Mr and Mrs Kenney wish to pursue in the proceeding in this Court, simply traverse the same facts and issues relating to them which were canvassed in substance in the Supreme Court proceedings. It is not open to parties to relitigate issues which have already been resolved finally in another court.
Various legal doctrines explain why relitigation usually is not open to a party. First, there is the question of what is called estoppel. Cause of action estoppel operates to preclude the assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in an earlier proceeding and determined by judgment in that proceeding.
Issue estoppel operates to preclude the raising, in a subsequent proceeding, of an ultimate issue of fact or law necessarily resolved as a step in reaching a determination made in an earlier judgment.
“Anshun” estoppel operates to preclude the assertion of a claim or the raising of an issue of fact or law where that claim or issue is so connected with the subject matter of an earlier proceeding so as to make it unreasonable to start a fresh proceeding in respect of it.
I accept the submission made on behalf of the Bank that Mr and Mrs Kenney are precluded or estopped from raising each of the matters set out in the statement of claim, as they would propose to amend it, on the basis that:
(1)Mr and Mrs Kenney attempt to raise claims or causes of action in this proceeding which have already been adjudicated upon in the Supreme Court.
(2)They attempt to rely on issues, facts or allegations in this proceeding which have already been adjudicated on in the Supreme Court.
(3)To the extent, if any, that any of the matters have not been raised or relied upon, then Anshun estoppel applies as it is unreasonable for them, having pursued the law and subject matter of their legal relationship with the farm in this fresh proceeding.
For these reasons, the Bank is entitled to summary judgment in this proceeding.
ORDERS
The appropriate orders are:
1.Pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondent on the grounds that:
(a)the applicants have no reasonable prospect of successfully prosecuting this proceeding or any part of it;
(b)further or in the alternative, no reasonable cause of action is disclosed by the applicants; and
(c)further or in the alternative, this proceeding is an abuse of process of the Court.
2.The originating application filed by the applicants on 24 May 2016 be dismissed.
3.The applicants pay the costs of the application including the costs of this interlocutory application.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 13 April 2017
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