McFarlane v Main and Ors

[2002] VSC 145

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

Ballarat
No. 2 of 2002

MALCOLM JAMES McFARLANE AND JILL ELIZABETH McFARLANE	Plaintiffs
v.
MICHAEL DOUGLAS MAIN AND OTHERS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 APRIL 2002
DATE OF JUDGMENT:	19 APRIL 2002
CASE MAY BE CITED AS:	McFARLANE & ANOR. v. MAIN & ORS.
MEDIUM NEUTRAL CITATION:	[2002] VSC 145

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CATCHWORDS:      Statement of Claim not disclosing valid cause of action – Claim vexatious – One of two plaintiffs an undischarged bankrupt – Lack of standing to initiate proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. P. Clarke with Mr. A. Schlicht
For the Defendants	In Person

HIS HONOUR:

1. I have before me an appeal filed on behalf of the plaintiffs Malcolm James McFarlane and Jill Elizabeth McFarlane against the order of Master Kings made at Ballarat on 26 March 2002 whereby the Master ordered that this proceeding be dismissed as against the first, second and third named defendants. 

1. The proceeding is somewhat difficult to understand, but I think it ultimately is one in which the plaintiffs allege a conspiracy by six defendants being Michael Douglas Main, who is a solicitor of this Court, Russell Kennedy, a firm of solicitors practising in Melbourne, National Australia Bank Limited, a company called Eastern Pastoral Company Pty Ltd and a person associated with that company named Marcus Elgin Dezinsky and a further firm of solicitors practising in this city Barker Gosling, Lawyers. 

1. By their statement of claim the plaintiffs appear to allege a conspiracy to prevent them from defending two proceedings and pursuing counter-claims in two proceedings brought against them by the National Australia Bank, being proceedings numbered 6450 and 6451 of 1994.  Those proceedings were brought against them by the bank seeking to recover properties owned by the plaintiffs which had been mortgaged to the bank and in respect of which mortgages the plaintiffs were in default.  The proceedings were heard and determined by Mr Justice Byrne between 8 April and 11 April 2002.  At the conclusion of the proceedings His Honour gave judgment in favour of the bank for possession of the land in question. 

1. Insofar as the claim made by the first named plaintiff, Malcolm James McFarlane is concerned, the evidence establishes that he was made bankrupt on 14 December 1998 and remains a bankrupt to this day.  Accordingly as such he has no standing to bring the proceeding at all.  Further, of course, it is clear that no cause of action could vest in the second named plaintiff by reason of his bankruptcy. 

1. There would seem to me to be no substance to the claim of conspiracy brought by the plaintiffs.  The plaintiffs were present at the trial before Mr Justice Byrne, they represented themselves and conducted their defence and counter-claim at the trial. 

1. For the tort of conspiracy to be made out there must of course be damages.  The conspiracy alleged is to prevent the plaintiffs from defending the possession proceedings brought against them by the bank.  That did not occur, they defended the proceeding.  In my opinion it follows from that that the cause of action has no basis at all and in my opinion the Master was perfectly right to dismiss the proceeding insofar as it was brought against the first, second and third defendants.

1. Accordingly the appeal will be dismissed with costs to be taxed and paid by the plaintiffs.

(Discussion ensued re costs.)

1. The order for costs will be on a solicitor own client basis.

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