Maxwell Richard Rhys and Co Pty Ltd (in liquidation) v Downes
[2015] VCC 909
•6 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-05607
| MAXWELL RICHARD RHYS & CO PTY LTD (in liquidation) | Plaintiff |
| v | |
| JOHN DESMOND DOWNES and BERNARD HUGH DOWNES | Defendants |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17 June 2015 | |
DATE OF JUDGMENT: | 6 July 2015 | |
CASE MAY BE CITED AS: | Maxwell Richard Rhys & Co Pty Ltd (in liquidation) v Downes & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 909 | |
REASONS FOR JUDGMENT
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Subject: CONSUMER LAW; PRACTICE AND PROCEDURE
Catchwords: CONSUMER LAW – misleading and deceptive conduct – unconscionable conduct – whether representations were made
PRACTICE AND PROCEDURE – self-represented litigants – whether confined to pleadings
Legislation Cited: Transfer of Land Act 1958 (Vic)
Cases Cited:Bank of Western Australia Ltd v Abdul [2012] VSC 222; Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643; Papua and New Guinea Development Bank v Manton [1982] VR 1000; Permanent Trustee Company Ltd v Gulf Import and Export Co [2008] VSC 162
Judgment: Judgment for the plaintiff for possession and debt
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Lapirow | Davies Moloney |
| For the Defendants | In person |
HIS HONOUR:
Summary
1 This is an unusual case. In February 2014, after a two-day trial in this Court, Judge Macnamara gave judgment in favour of the plaintiff. The defendants appealed to the Court of Appeal. Their appeal was granted on the basis that there was a denial of procedural fairness where it was said that the trial judge failed to explicitly warn the defendants that if they failed to call evidence, the court could draw a Jones v Dunkel inference against them. The case before me is a retrial of the merits of the dispute.
2 The plaintiff, a company in liquidation (“the company”) brought its claim in reliance upon a Deed dated 21 December 2007 (“the Deed”) which it entered into with the defendants. The defendants are brothers (“the brothers”). They are experienced farmers based at Donald in Victoria. When they signed the Deed, the brothers also signed a mortgage over certain land to secure the loan moneys referred to in the Deed. The company contends that because the brothers breached the terms of the Deed, the company is entitled both to possession of the security properties and an order for the outstanding debt.
3 The brothers contend that there were never any loans made to them but there was a share farming arrangement in place. They admit they signed the Deed but plead that they did so on the basis of certain representations made by the then director of the company, Colin Curran (“Curran”). The brothers allege that Curran made representations which were false and misleading and that the company’s conduct in relation to the making of the representations to secure the brothers’ signatures to the Deed was unconscionable.
Background
4 The company commenced the proceeding seeking orders for possession of land and debt in December 2010. The Statement of Claim alleged that the brothers did not pay the principal sum under the mortgage and as a result, pursuant to section 78 of the Transfer of Land Act1958, the company was entitled to possession of the mortgaged property. In February 2011, the company entered default judgments against the brothers. The judgment against John Downes was in default of defence and the judgment against Bernard Downes was in default of appearance.
5 On 12 August 2011, the company went into liquidation and Neil Robert Cussen (“Cussen”) was appointed liquidator. The liquidation was court ordered upon the petition of the Commissioner of Taxation of the Commonwealth of Australia.
6 In about June 2012, the brothers applied to set aside the default judgments entered against them.
7 When hearing the application to set aside the default judgments, Judge Ginnane had before him a number of affidavits filed on behalf of both the company and the brothers. In his judgment, where he set aside the default judgments, His Honour summarised the case on the merits which the brothers sought to raise in the following terms:
“10 Mr John Downes states that in about 2000, the prices for wheat and barley were severely depressed and he and his brother were having difficulties keeping the farm afloat. They saw an advertisement offering farmers the opportunity to lease their farm land to Agricultural Grains Fund Limited (AGF) as part of an agricultural investment scheme. They attended a meeting about that scheme and met Mr Faulkner-Dick and Mr Colin Curran, who was formerly a director of the plaintiff and who represented AGF and operated a superannuation advice business. A scheme for the investment of money in their farm for the investors’ tax advantage was explained to them. They were interested in it, but it did not proceed.
11 In around late 2002, Mr Curran told Mr Downes of a new scheme that he was proposing. The details were:
(a)the Downes farm would form part of an ‘investment package’, as an agricultural investment, along with a range of investments in Hervey Bay and Airlie Beach, that Mr Curran was promoting through his superannuation advice business;
(b)the investors were current clients and staff of Mr Curran who invested through an entity known as “Super Online”;
(c)investors would then become share farmers with the Downes brothers; and
(d)investors would receive a 100% tax deduction on the amount they invested in the new scheme on the basis that they were primary producers carrying on a business.
12 Mr Curran told Mr Downes that if they “came on board” and offered their farm, they would be “first on board” as farm managers and there would be great opportunity for them to manage other farms, which Mr Curran said he would buy, or lease, for new scheme investments. Mr Downes said that he and his brother were very excited about this scheme, as grain prices were still very low and they needed to generate another income stream.
13 Mr Curran told Mr Downes that he would set up a company, which turned out to be J & B Downes Pty Ltd, from which payments for grain, fertilizer and other costs, associated with the cultivation of the crop would be paid and, into which, the proceeds of the crop harvest would also be paid.
14 On 23 June 2003, Mr Curran and the Downes brothers, as Trustee of the Downes Family Unit Trust, entered into a share farming agreement. Under the agreement, each month, Mr Curran was obliged to pay the crop costs to the Downes brothers in order for them to farm the land and sell the crop. At the end of each harvest, the Downes brothers sold the crop and the proceeds were paid into the company’s bank account.
15 Under the share farming agreement, Mr Curran paid the sum of $40,000 to the Downes brothers in order to purchase the initial wheat and barley seed crop and set up the farm. The Downes, at Mr Curran’s request, gave a personal guarantee, of the repayment of the $40,000 crop costs to him. Mr Curran told them that the guarantee was to give his client/investors comfort that the crop proceeds would be paid by the Downes brothers.
16 The defendants then allege that between about August 2003 and April 2004, Mr Curran asked them to enter into several more personal guarantees in relation to monies advanced by him to them under the Share Farming Agreement on account of crop costs, in order to give his investor clients comfort that the crop proceeds would be paid by the defendants. Mr Downes and his brother trusted Mr Curran.
17 Mr Curran told him that unless he and his brother signed the guarantees he would not pay for the costs of the 2004 crop.
18 Mr Downes states that despite the terms of the guarantees, at no stage were he or his brother advised that they were being loaned money from different entities associated with the Plaintiff.
19 The defendants then allege that in about late 2004 and early 2005, Mr Curran requested them to manage a similar agricultural scheme for his investor clients on land at Tintinara in South Australia. There was no written share farming agreement for the Tintinara scheme but Mr Downes agreed with Mr Curran, that it would be on the same terms as the first Agreement.
20 The Tintinara scheme had the following features. Mr Curran provided crop costs to the defendants on behalf of his investor clients from time to time. They managed the cultivation, harvesting and sale of various types of crops, including barley and lentils and the defendants paid the crop proceeds into the J & B Downes NAB account.”
8 The material filed on behalf of the company on the setting aside application contradicted much of the case which the brothers sought to advance. The company said that the Deed correctly characterised the dealings between the parties and was intended by them to take effect according to its terms.
Issues
9 It seems to me that the following issues arise in the case:
(a)Did the brothers sign the Deed?
(b)Did the brothers breach the Deed?
(c)If the brothers did breach the Deed, is the company entitled to any and what relief?
(d)Did Curran make any representations in relation to the Deed?
(e)If he did so:
(i)did the brothers rely upon the representations in entering into the Deed?
(ii)were the representations misleading or deceptive?
(f)Should the brothers obtain some relief in relation to the operation of the Deed?
(a) Did the brothers sign the Deed?
10 The Deed is the central document which the company relies upon in its claim against the brothers. The following points are noted in the recitals to the Deed:
·In about March 2004, the company and the brothers entered into an oral agreement whereby the company agreed to lend moneys and grant financial accommodation to the brothers on certain terms and conditions.
·The purpose of the loan agreement was to assist the brothers in their farming operations.
·As security for the loan agreement, the brothers granted the company security by way of a mortgage over various properties which they owned (“the original lender security”).
·In about July 2005, the company registered Caveat AD765803T over the brothers’ properties pursuant to the terms of the original lender security.
·During the period March 2004 to July 2007, the company directly or indirectly made advances and granted financial accommodation to the brothers (“the monetary advances”).
·The brothers were jointly and severally in default of their obligations to the company and are jointly and severally indebted to the company for the sum of $698,520 (as at 30 November 2007) together with the company’s costs pursuant to clause 7.1 of the Deed and interest, which accrues in accordance with Item 3 of Schedule 1 to the Deed.
·Pursuant to clause 2 of the Deed, the brothers acknowledged that:
(a)they were indebted to the company for the indebted sum[1], being moneys owed by them to the company in respect of the monetary advances; and
(b)they were in default of their obligations as debtors of the company.
[1]The indebted sum was defined in Schedule 1 of the Deed to mean $698,520 as at 30 November 2007, plus the lender’s costs pursuant to clause 7.1 of the Deed, plus interest which shall accrue in accordance with Item 3 of Schedule 1 to the Deed.
11 Pursuant to clause 3 of the Deed, the brothers agreed to repay the indebted sum to the company in accordance with the repayment terms as defined in the Deed. This required the brothers to pay at least $42,500 by 4.00pm on each of 18 December 2007 and 20 January 2008. Then, the brothers were to pay at least $85,000 by 4.00pm on each of 7 March, 7 June, 7 September and 7 December 2008 and 7 March, 7 June and 7 September 2009.
12 Clause 4 of the Deed obliged the brothers to execute a mortgage over their properties and to do all that was necessary to enable that mortgage to be registered. The company agreed not to register the mortgage before 20 March 2008.
13 Clause 5 of the Deed included an acknowledgment by the brothers that, before executing the Deed, they had waived their right to obtain independent legal advice as to their obligations under the Deed and as to its effects.
14 Clause 6 of the Deed included a provision for the immediate acceleration of the indebted sum in the event of “Debtor Default” which was defined as including any failure to make any of the instalment payments specified in the Deed.
15 The brothers’ Amended Defence dated 26 February 2015 was signed by their former solicitors. In paragraph 21 of the Amended Defence, the brothers admitted executing the Deed and the mortgage over their properties, “relying on the Deed Representations and induced thereby and not otherwise”. Accordingly, I find that the brothers signed the Deed.
(b) Did the brothers breach the Deed?
16 I consider that the defendants did breach the Deed. The evidence was clear that, although the defendants made payments from time to time, they did not make all the payments due under the Deed. The fact that the defendants made any payments at all (and not under protest) in my view supports the plaintiff’s case.
17 Although the defendants contended there was no loan from the company and the arrangement between them was, in effect, an extension of their share farming arrangement initially made with Curran personally, the weight of the contemporaneous evidence is against them. The material in the company’s supplementary court book contained numerous emails and transcriptions of phone recordings of messages left by the defendants for Gadens, solicitors for the company. The tone of the communications is generally of a business nature – seeking to make arrangements to attend the office, meet, discuss things or to give notice of some matter. However, the communications do not make, consistently or at all, indignant complaints about the company’s conduct. On the brothers’ case, one would have expected complaints or allegations to the effect that the Deed represented a fictitious construct of imagined but not actual obligations, or that the company, through Curran, had promised the Deed was no more than a sham document designed to give comfort to some investors but never intended to be enforced against the defendants. The inconsistency between the case now raised by the defendants and the documents created at the time is telling. The defendants could not explain the discrepancy.
(c) Is the company entitled to any and what relief?
18 The company sues the defendants for $1,368,548.49. In so doing, the company relies heavily upon a certificate given pursuant to clause 6.4(d) of the Deed. This provides that:
“A certificate signed by any authorised representative of the Lender stating that the Debtors have defaulted under this Deed shall be conclusive evidence against the Debtors that there has been such default and that the Lender is entitled to judgment”.
19 Pursuant to clause 8.17 of the Deed, the Lenders Unpaid Indebted Sum Statement shall be prima facie evidence of those amounts. This Statement is said in the Deed[2] to mean a statement in writing by the lender setting out the balance owing under the indebted sum or any component parts at any time.
[2]Clause 9.1
20 Cussen signed the certificate dated 15 June 2015. He certified that the defendants had defaulted under the Deed by failing to pay various amounts on the due date or at all. On the basis of the late payment or non-payment, he certified that:
(a) as at 7 December 2009, the defendants were in arrears in payment of the instalments due under the agreement by the amount of $319,900 having paid $275,100 of the $595,000 which were to have been paid by the periodic instalments;
(b) as at 7 December 2009, the principal of the indebted sum would have been, had the defendants made the payments due, $103,520 together with the plaintiff’s legal costs of $32,055.35;
(c) as at 7 December 2009, the accruing interest under the Deed calculated at 19.5% on the outstanding balance from time to time was $203,274.75;
(d) the total due and payable as at 7 December 2009 was $658,700.09 made up of the arrears in instalments, the principal of the indebted sum, legal costs and interest;
(e) prior to commencement of these proceedings, the plaintiff incurred further legal costs in connection with this agreement to the total sum of $2,916.43 up to 23 November 2010; and
(f) the defendants are, as at 15 June 2015, on the assumption no payment is made by then, indebted to the plaintiff in the total sum of $1,368,548.49, being the debt as at 7 December 2009 together with the further legal costs and accruing interest of $709,848.40.
21 It appears from cases such as Dobbs v National Bank of Australasia Limited Ltd[3] that the relevant principles applicable to such certificates are as follows[4]:
[3](1935) 53 CLR 643
[4]Bank of Western Australia Ltd v Abdul & Anor [2012] VSC 222 at [17]. See also the comments of Beach J in Papua and New Guinea Development Bank v Manton [1982] VR 1000, 1007 and Permanent Trustee Company Ltd v Gulf Import and Export Co. [2008] VSC 162.
(a) the principle in Dobbs is evidentiary in operation. It facilitates proof of a material fact and thereby operates as an exception to the general rule in adversarial litigation that it is for the party alleging a material fact, when that fact is put in issue, to prove that fact;
(b) the purpose of a provision for a certificate is to enable the establishment of the indebtedness of a customer to a bank both expeditiously and finally;
(c) the effect of the certificate is to determine the incidence of the burden of proof as to the matters permitted by the certificate;
(d) in recognising the effect of certificates of this kind, the courts are simply giving effect to the contractual bargain struck between the parties;
(e) nothing in Dobbs confines its operation to clauses expressed in the same or substantially similar terms to the clause providing for a certificate which was considered in that case; as is demonstrated by the application of the same approach to certificates used in an unrelated context; and
(f) the principal task of the court is always to construe and to give effect to the terms of the particular clause providing for such a certificate.
22 Here, the certificate is conclusive in relation to the default of the defendants but only prima facie as to the amount of indebtedness. Accordingly, I consider that the defendants could challenge the certificate insofar as it purports to deal with the amount allegedly owing to the company by the defendants.
23 The ability to challenge the company’s assessment of the debt is potentially significant where the company had no proper explanation for certain entries in exhibit P7, being the reconciliation document produced by the company’s solicitor, Mr Hinton of Gadens. These entries included rent (which seemed to vary between $4,545 and $15,364 per month) to Avila Properties which was the landlord of a property in South Australia known as Tintinara; council rates for Tintinara; a parking or speeding fine paid to Civic Compliance; and a payout to Esanda Corporation for a motor vehicle. Curran gave no explanation to justify these components of the debt. Nor did the company question either of the defendants about these matters when they gave evidence. Accordingly, I am not satisfied purely on the evidence of exhibit P7 and the oral evidence given for the plaintiff that the brothers were ever indebted to the company in the amount set out in that exhibit. The company simply did not prove the amount owing and how it was calculated or made up.
24 Notwithstanding the above, I consider that the defendants face several problems because of their approach to the litigation. First, they did not make any or any sustained attack upon the alleged amount of indebtedness in exhibit P7. Secondly, they did not seek to establish the level of indebtedness they accepted as outstanding to the company as at 7 December 2009. Thirdly, they signed a Deed on 18 December 2007 in which they admitted their indebtedness to the company in the sum of $698,520 together with costs and interest calculated in accordance with the Deed. Fourthly, they did not seek to challenge either through evidence, cross-examination or submission the indebtedness claimed by the company in the certificate relied upon.
25 Further, I note that in his judgment after the original trial, Judge Macnamara commented on the reconciliation document the company relied upon which was attached to Mr Hinton’s affidavit.[5] His Honour commented that there was no reason to think that the brothers lacked the ability or expertise to prepare their own “counter” reconciliation demonstrating the state of the accounts which they alleged. His Honour said that if the accounts truly stood as the brothers’ submission suggested they should, he would have expected such a document to be produced. Because the defendants had the opportunity to read and act upon the trial judge’s comments regarding the “counter” reconciliation, and they failed to produce any such document at the new trial I infer, especially in the absence of any explanation, that, consistently with the truth, they could not do so.
[5]This was exhibit P7 in the current trial.
26 Apart from these matters, I note also that at trial, the brothers did not give evidence which supported the denials pleaded in paragraph 16 of the Amended Defence.
27 In the circumstances, I find on the balance of probabilities that the defendants are indebted to the company in the sum of $1,368,548.49.
28 In relation to the issue of possession, the company makes the claim for the mortgaged property in reliance upon section 78 of the Transfer of Land Act 1958 (Vic). This provision entitles a mortgagee to enter into possession of the mortgaged property upon default in repayment of the principal sum or interest or any part thereof at the due time. The plaintiff produced in evidence the combined default notice and demand made pursuant to section 76 of the Transfer of Land Act 1958 (Vic). The defendants did not remedy the default as required by the demand. The company is thereby entitled to possession of the mortgaged property.
(d) Did Curran make any representations in relation to the Deed?
29 In the Amended Defence, the brothers alleged that:
(a) on about 18 December 2007 the first defendant, on his own behalf and as agent for the second defendant, attended a meeting at Gadens Lawyers (“the Gadens meeting”) and was presented with the Deed; and
(b) during the course of the Gadens meeting, Curran on behalf of the company conveyed the following representations to the brothers in trade or commerce:
(i) his investor clients wanted some reassurance from the brothers that the 2007 crop proceeds from the Tintinara land would be paid;
(ii) the purpose for the Deed was to take the place of the personal guarantees, namely, to show his investor clients that the brothers had promised to pay the 2007 crop proceeds; and
(iii) Curran would not rely on and enforce the Deed against the brothers.
(collectively referred to as the “Deed Representations”)
30 The brothers contended that the Deed Representations were oral and Curran made them over the phone at the Gadens meeting on 18 December 2007.
31 The alleged representations were important because they provided the foundation for the brothers’ claim that they signed the Deed as a result of either misleading conduct or unconscionable conduct on the part of the company and Curran.
32 Notwithstanding the terms of the pleading, in his evidence the first defendant, John Downes, put the case differently. He said that he went to Gadens’ offices in Bourke Street in the city on a Thursday or Friday to collect the Deed. He went into a boardroom with a long table. There was a man in the room whom he believes was James Carnell, and a lady, probably Elizabeth Warnes. They were notified he was coming to collect the Deed so they were prepared and ready for his arrival. The first defendant thought there were small yellow stickers on the Deed where the brothers were to sign. Downes could not specify in detail what took place at the meeting but believed it went for 30 – 60 minutes. Downes was in the room the whole time but he said the other two people were not. On the day he collected the Deed, the first defendant did not have a conversation at Gadens with anyone other than the people in the boardroom with him.
33 I invited John Downes, while he was giving evidence, to read to himself the Amended Defence in the Court Book and give any evidence which he wanted to in connection with the pleading. It was during this time that the first defendant made clear that no conversation with Curran occurred during the meeting. The first defendant agreed that he had seen the Amended Defence before it was filed – the brothers’ former solicitors did not simply make up the pleading. The first defendant could not offer any specific explanation for the inconsistency between the pleading and the evidence.
34 The second defendant, Bernard Downes, who was not centrally involved in the dealings with the company but concentrated on the actual farming, gave brief evidence. None of it related to the Gadens meeting or any conversations with Curran at or before that meeting about not enforcing the Deed.
35 The short point is that there was no phone call between John Downes and Curran during the meeting at Gadens. The first defendant said in evidence that the conversation referred to in the pleading took place before the meeting at Gadens.
36 I note also that the brothers did not cross-examine Curran about the Deed Representations. They did not put to him that he made these representations either in a phone call on 18 December 2007 at Gadens’ offices or any other time. Because of the significance of the issue on the pleaded case, I raised the issue with Curran. He said that after the company retained Gadens to act on its behalf, he had no direct communications with the brothers. He adopted this course at Gadens’ request.
37 In circumstances where:
· the pleading alleges one set of facts;
· the defendants were given leave to file and serve an Amended Defence before the trial in February 2015;
· the defendants made no change to paragraphs 17 and 18 of the Defence and did not instruct their former solicitors to alter the allegations made about the Deed Representations; and
· the defendants’ evidence is inconsistent with, and does not support, their own pleaded case
I am not satisfied that Curran made the Deed Representations as alleged in the Amended Defence.
38 In finding that Curran did not make the representations as alleged, I placed little reliance on Curran’s evidence. Curran was not an impressive or credible witness. First, his recollection of events purported to be vague and very poor. For example, he could not recall:
· the year he or an entity associated with him “bought” the Tintinara property;
· whether share farming continued at Tintinara in 2005;
· whether in 2005 the defendants sold crop from Tintinara;
· whether in the first year at Tintinara, the defendants planted a crop in the front paddocks of the property against the road;
· specifics of an allegation that the first defendant drove Curran around the Tintinara property, they inspected the crop and Curran was very happy with it;
· whether the crop at Tintinara was sprayed;
· why, when Curran or a company controlled by him was leasing Tintinara from a landlord, the rental was charged to the defendants;
· that he wanted to buy alpacas to take to his property in New South Wales;
· whether in relation to the moneys which the defendants allegedly borrowed from the company, they received a monthly statement setting out amounts repaid by the defendants and the amount of interest owing;
· why, when Curran or a company controlled by him was leasing Tintinara, the rates were charged to the defendants;
· whether persons who invested with Curran in the share farming activity got a tax deduction by investing in agriculture;
· whether Peter Roberds, an investor in the Australian Grains Fund, offered to put up seed funds to buy other properties;
· the amount said on the Deed to be owing by the defendants;
· how the individual guarantees which the defendants had given to different companies morphed into a guarantee solely in favour of the company; and
· the amount of the share in company the defendants were to receive in relation to another farming venture which they discussed with Curran.
To the extent that he could recall any matters of detail, Curran’s recollection seemed usually to be self-serving and favourable to his version of events.
39 Secondly, at one point of his evidence, Curran said that he purchased Tintinara. He then changed his evidence to say that he entered a contract to buy the property under a lease but never completed the purchase. Subsequently, Curran again said that he owned Tintinara and asked, rhetorically, why he would have entered a share farming arrangement in those circumstances. When I challenged him on this and drew his attention to his earlier evidence, he recanted and said that he had a lease with an option to buy. He said he had full access to the property and treated it as his own. The evidence suggested that Curran was an experienced businessman who had seen the highs and lows of commercial life, including suffering bankruptcy. I have little doubt that he well understood the difference between owning a property and leasing a property – yet he was careless in distinguishing between the different situations.
40 Thirdly, several of the debts featuring in exhibit P7 (an updated version of which was used to formulate the amount of debt which appeared in the Deed) were referable to the leasing of the Tintinara property. Curran could offer no satisfactory explanation why the defendants should be responsible for the rent or the rates. Curran implied there was the possibility of an agreement with the defendants which justified the inclusion of these obligations in the indebtedness allegedly owed to the company. But he gave no details of any agreement in his evidence. He did no more than float a theoretical possibility.
41 Curran’s evidence and his demeanour while giving evidence did not create the impression that he was a witness whose testimony could be relied upon with any degree of confidence.
(e)Did the brothers rely upon the representations in entering into the Deed, and were the representations misleading or deceptive?
42 Because of my conclusions regarding the company’s claim and the representations made, I do not need to make findings as to the brothers’ reliance on the representations and whether they were misleading.
43 Plainly, if no representations were made as alleged in the Amended Defence, the brothers could not rely upon them. Although the court needs to give self-represented litigants greater latitude in the conduct of a trial than a party represented by counsel, the principles of natural justice require that the opposing party not be put in a position of disadvantage which would not arise if the unrepresented litigant were represented. In this context, I note that the company’s counsel made submissions to me about the brothers being required at trial to advance only the case which was in their Amended Defence and not some new and different case of which the company had no notice. I was advised that such submissions had been put to Judge Macnamara in the earlier trial.
44 Counsel also drew my attention to the order I made on 19 February 2015 in this matter when I gave the defendants leave to file and serve an Amended Defence. In that order, I included the following comment in Other Matters:
“The court notes that on 26 September 2014 an order was made by consent for the defendants to file an amended defence. They did not comply with that order. The plaintiff seeks the amended defence so that, at trial, the defendants can be held to their pleaded case. The court today indicated to the defendants that if they again failed to file an amended defence, then subject to the discretion of the trial judge, they may be precluded from seeking to amend their defence and may be bound by the existing pleading.”
45 Having regard to the history of the proceeding and the issues which had previously arisen in relation to pleadings and their amendment, it seemed to me fair and reasonable that the brothers be restricted to the case most recently articulated by their lawyers in February this year. The brothers had used the opportunity to amend the Defence and the company was entitled to proper notice of the case it had to meet.
(f)Should the brothers obtain some relief in relation to the operation of the Deed?
46 Because of the matters already addressed in these reasons, I do not find that the brothers should obtain any relief regarding the operation of the Deed.
Conclusion
47 The company has established its case on the balance of probabilities and is entitled to orders for possession and debt.
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