McDonald v QBE Lenders' Mortgage Insurance Limited

[2021] NSWSC 1574

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McDonald v QBE Lenders’ Mortgage Insurance Limited [2021] NSWSC 1574

Hearing dates:

30 November 2021

Date of orders:

30 November 2021

Decision date:

30 November 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 9

Catchwords:

CIVIL PROCEDURE – transfer of proceedings to higher court – factually entwined proceedings

Legislation Cited:

Conveyancing Act 1919 (NSW) s 12

Civil Procedure Act 2005 (NSW) s 140

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Tammy McDonald (Plaintiff)
QBE Lenders’ Mortgage Insurance Limited (Defendant)

Representation:

Counsel:
M. Kalyk (Plaintiff)
H. Woods (Defendant)

Solicitors:
Toby Tancred Solicitors (Plaintiff)
Hudson Lawyers (Defendant)

File Number(s):

2021/293317

Publication restriction:

Nil

EX TEMPORE Judgment

1. By Summons filed on 15 October 2021, the plaintiffs in this court, Mr and Ms McDonald, seek an order under s 140 of the Civil Procedure Act 2005 (NSW) that proceedings in the Local Court brought against them by QBE Lenders’ Mortgage Insurance Ltd, number 2021/70990, be transferred to this Court. The cause of action brought against Mr and Ms McDonald in the Local Court is based upon the assignment of a debt due to the National Australia Bank (“NAB”), of which, it is averred, notice has been given to Mr and Ms McDonald, sufficient to engage the provisions of s 12 of the Conveyancing Act 1919 (NSW).

2. The amount of the remaining debt is a little over $45,000, but of course, interest is claimed. The original loan to the NAB was secured by way of a mortgage in respect of a property at Lowood in Queensland, which following the default of Mr and Ms McDonald on the loan agreement, was sold. The amount of the $45,000 I have referred to is the shortfall on NAB’s recovery after the sale.

3. Ordinarily, one would not even countenance a transfer of such proceedings from the Local Court to this Court. However, I am persuaded that the essential factual matrix of the Local Court proceedings is closely connected with the factual matrix giving rise to a cross‑claim filed by Mr and Ms McDonald in proceedings already pending in this Court. Those proceedings are Australia and New Zealand Banking Group Ltd v Mr and Ms McDonald (“ANZ proceedings”), number 2021/00180628.

4. Without going through the detail of the cross‑claim, which is not without appropriate complexity, there are a number of cross‑defendants, including the NAB. The factual matrix is perhaps best summarised in the written submissions of Mr Kalyk of counsel, who appears for the plaintiffs on the summons. The explanation, in short form, is that Mr and Ms McDonald were approached in late 2013 or early 2014 by finance brokers (who have now gone bust) referred to as Members Alliance, who were promoting the purchase of investment properties in a development in Lowood, Queensland. As it is put by Mr Kalyk:

“Despite having no savings and modest incomes, [Mr and Ms McDonald] were persuaded to borrow the entirety of the purchase price from NAB and ANZ on the assurance that the rental income would pay for the property and the property was in a booming growth area. Members Alliance had no Australian Financial Services Licence and the McDonalds were not provided by anyone with proper or appropriate advice on the transaction.”

5. Regrettably, their worst fears were realised, and the investment proved financially catastrophic for them. The ANZ proceedings relate to ANZ’s claim as mortgagee for possession of their home. Their cross‑claim joins not only ANZ, but also NAB, and certain legal advisers as cross‑defendants. Although the loan agreement between the McDonalds and NAB is not directly impugned by any claim for relief in the cross‑claim, the factual matrix is intrinsically bound up with the background to the loan, the subject of the Local Court proceedings. Indeed, in those proceedings, by way of defence anyway, the McDonalds seek to impugn the original loan agreement under the Contracts Review Act 1980 (NSW).

6. I am of the view that there is a real risk that if the matters proceed separately, there could be inconsistent findings on, essentially, the same material facts, and that it is in the interests of justice that the Local Court proceedings be transferred to the Supreme Court. I accept the submissions of Mr Woods of counsel, who appears for the defendant, that having regard to the comparative modesty of the amount involved in the Local Court proceedings - I interpolate, I am sure it is not modest to Mr and Ms McDonald - the defendant to the summons should not necessarily be subject to the same case management rigours as the other parties to the Supreme Court proceedings. QBE’s evidence has already been filed in the Local Court. It has been professionally drawn, and it seems to me appropriate that it should stand as the evidence in the Supreme Court.

7. Moreover, I would not have the expectation that if the matter proceeds to a full hearing that there should be a consolidation of the proceedings. Rather, the transferred proceedings should be listed at the same time as the ANZ proceedings, but it may be unreasonable to expect QBE to be present throughout the whole hearing, and the matter should be case managed to minimise the costs that will be generated by this transfer. Obviously, the cost of conducting litigation in the Supreme Court, especially as one of a number of parties, will greatly exceed the cost of conducting the proceedings in the Local Court, particularly as there were only two parties there.

8. Naturally, but for the cross‑claim in the ANZ proceedings the increased cost in this court, and the additional time that may be involved in the matters coming to fruition, would be powerful factors telling against the prospect of transfer, as I indicated in my introductory remarks.

9. However, for these reasons, I make the following:

1. Local Court proceedings, number 2021/70990 at Orange, are transferred to the Supreme Court of New South Wales under s 140 of the Civil Procedure Act 2005;

2. The said proceedings are to be case managed with proceedings number 2021/180628 in the Supreme Court;

3. The pleadings and evidence filed and served in the Local Court are to stand as pleadings and evidence in the Supreme Court;

4. Refer the matter for court annexed mediation, together with matter number 2021/180628, to take place no later than 11 February 2022;

5. List the matter for directions on 18 February 2022 at 9.15am, with matter number 2021/180628.

**********

Amendments

06 December 2021 - Title page: Amendment to name of the defendant

Decision last updated: 06 December 2021