McNally v Commonwealth Bank of Australia [No 2]
[2018] WASC 248
•16 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCNALLY -v- COMMONWEALTH BANK OF AUSTRALIA [No 2] [2018] WASC 248
CORAM: TOTTLE J
HEARD: 8 NOVEMBER 2017 & ON THE PAPERS
DELIVERED : 16 AUGUST 2018
FILE NO/S: CIV 2023 of 2015
BETWEEN: DALE MCNALLY
Plaintiff
AND
COMMONWEALTH BANK OF AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Leave to amend indorsement on writ of summons - New cause of action pleaded - Application to extend limitation periods - Where application does not relate to new cause of action - Whether new cause of action barred by limitation legislation
Legislation:
Limitation Act 2005 (WA) s 38
Rules of the Supreme Court 1971 (WA) O 21 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Rynne |
| Defendant | : | Mr M D Cuerden SC |
Solicitors:
| Plaintiff | : | Symons & Co Legal |
| Defendant | : | Corrs Chambers Westgarth |
Case(s) referred to in decision(s):
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Maxwell v Murphy (1957) 96 CLR 261
McNally v Commonwealth Bank of Australia [2017] WASC 177
State of Western Australia v Wallam [2008] WASCA 117
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
TOTTLE J:
Introduction
By chamber summons issued on 2 October 2017 the plaintiff applied for leave to amend the indorsement on the writ of summons. The defendant objected to the proposed amendments on the grounds that they raised new causes of action for which the applicable limitation periods had expired and that the new causes of action did not arise from the same facts or substantially the same facts as those alleged in the original indorsement. The grounds of objection reflected the terms of O 21 r 5 of the Rules of the Supreme Court 1971 (RSC) as they were on 2 October 2017.
In this action the plaintiff seeks damages from the defendant for losses he alleges he suffered as a consequence of the defendant refusing to loan him the funds he required to complete the construction of a house on a residential block of land in Secret Harbour, the defendant having advanced him the funds required to commence construction.
The application to amend the writ of summons was made following a successful application by the defendant to strike out the plaintiff's amended substituted statement of claim.[1]
[1] McNally v Commonwealth Bank of Australia [2017] WASC 177.
Following the strike out of his amended substituted statement of claim the plaintiff, who had previously represented himself, obtained legal representation. The plaintiff has filed and served a minute of proposed further substituted statement of claim and the proposed amendments to the indorsement of the writ of summons are a precursor to the plaintiff applying to file and serve a fresh statement of claim in accordance with the minute.
At an earlier stage in the proceedings the defendant had pleaded limitation defences to the plaintiff's claims.[2] Those defences were the catalyst for the plaintiff to file a document entitled 'Summons / Extension Application of Limitation Period' on 27 July 2016 by which he sought an order extending the time for the commencement of his action.
[2] Substituted defence dated 16 June 2015.
A procedural point
The application for leave to amend the writ was argued on 8 November 2017. At the conclusion of the oral argument it was apparent that the plaintiff's counsel had not been briefed with a copy of the plaintiff's application to extend the limitation periods. Leave was given to the plaintiff to file and serve written submissions in support of his amendment application, focussing on the significance for the purposes of that application of his application to extend the limitation period. The defendant was given leave to file and serve responsive written submissions. For reasons which are presently irrelevant, the plaintiff's time for filing and service of his written submissions was extended and his further written submissions were filed and served on 22 January 2018. The defendant's responsive submissions were filed and served on 29 January 2018.
On 27 February 2018, O 21 r 5 of the RSC was amended. As amended it states:
(1)This rule is subject to -
(a)Order 18 rules 6, 7 and 8; and
(b)Order 20 rule 19(2) to (5).
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
As is apparent from these reasons, my decision on the application for leave to amend the writ had not been delivered when O 21 r 5 was amended. The parties were given leave to file and serve written submissions on the significance of the amendment to the rule if they wished to do so. Neither party filed any submissions although the defendant's solicitors sent an email to the court stating that the change to O 21 r 5 made the rule consistent with the decision in Belgravia Nominees Pty Ltd v Lowe Pty Ltd[3] and stated that the defendant's submissions addressed the principles in Belgravia in so far as they applied to the plaintiff's application.
[3] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127.
The presumption against the retrospective operation of legislation does not apply to provisions that are concerned with matters of procedure only.[4] It is presumed that a procedural provision applies in all proceedings after it became law.[5] Order 21 r 5 does not affect substantive rights. It is purely a procedural provision that applies to proceedings for the enforcement of rights and liabilities. Thus O 21 r 5 applies to the plaintiff's application even though it came into force after the application was made and the submissions on the application had been concluded.
[4] Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ); State of Western Australia v Wallam [2008] WASCA 117 [31] (McLure JA), [57] - [60] (Miller JA) and [124] (Murray AJA).
[5] Maxwell v Murphy (267 - 268) (Dixon CJ).
Relevant principles
Prior to the amendment to O 21 r 5 of the RSC it was accepted that, generally speaking, limitation issues are best decided at trial.[6] The rule in its amended form reflects this principle. The court retains a discretion to determine whether any relevant limitation period has expired and to disallow the amendment.
[6] The relevant authorities are cited in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [32] - [48].
Conformably with the statement of the relevant principles in Belgravia, the discretion to determine a limitation issue on an application to amend the indorsement on a writ of summons and to disallow the proposed amendment should only be exercised in the clearest of cases where there is no doubt that the limitation defence will defeat the claim.[7] In the clear cases in which the court is satisfied that the limitation defences will succeed, allowing the amendment is not in the interests of the parties or the court as it is futile to do so if the defences will inevitably succeed.
[7] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [46] - [47].
In assessing, as a matter of impression, whether an amendment to an indorsement on a writ of summons involves the addition of a new cause of action, the court will not undertake an overly technical or rigid investigation and will construe an indorsement generously rather than narrowly.[8]
[8] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [46(c)].
The proposed amendments
The approach taken to the amendment to the indorsement for which the plaintiff seeks leave was to strike through the existing indorsement and substitute the following:[9]
[9] Those parts of the indorsement that plead statutory provisions have been abbreviated and are supplemented by footnotes.
A. The claims by the Plaintiff (Mr McNally) against the Defendant (CBA) arise out of:
(1)representations to Mr McNally by CBA (by Mr Andrew Stiles), made on or about 28 October 2008, to the effect that CBA would make loans to Mr McNally of:
(i)$160,000 (1st Loan); and
(ii)not less than $200,000 (2nd Loan),
to finance the completion of building works on the property at 41 Greeson Parkway, Secret Harbour, Western Australia;
(2)the making of the 1st Loan by CBA;
(3)the refusal of CBA, on and after 8 July 2009, to make the 2nd Loan;
(4)the sale, on or about 17 February 2012, of the property at 41 Greeson Parkway, Secret Harbour, Western Australia, then owned by Mr McNally and mortgaged in favour of CBA;
(5)the sale, on or about 20 December 2013, of the property at 129 Red Head Road, Red Head, Hallidays Point, New South Wales, then owned by Mr McNally and mortgaged in favour of CBA;
(6)the sale, on or about 24 February 2011, of the property at 14 La Seyne Crescent, Warnbro, Western Australia, then owned by Mr McNally and mortgaged in favour of CBA;
(7)the sale, on or about 6 May 2010, of the property at 62 Aberdeen Street Northbridge, Western Australia, then owned by Mr McNally and mortgaged in favour of CBA; and
(8)the sale, on or about 4 September 2009, of the property at Lot 51 Bethany Road, Beverley, Western Australia, then owned by Mr McNally and mortgaged in favour of CBA.
B.By reason of the matters referred to in paragraph A above, Mr McNally has the following causes of action against CBA:
(1) Negligent misrepresentation at common law.
(2) Misleading or deceptive conduct.[10]
[10] Misleading or deceptive conduct contrary to the Trade Practices Act 1974 (Cth) s 52; Fair Trading Act 1987 (WA) s 10; Australian Consumer Law s 18.
…
(3)In the alternative to sub-paragraph (2) above, misleading or deceptive conduct in relation to financial services, contrary to section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth).
(4) Unconscionable conduct, in connection with the supply or possible supply of services to the Plaintiff.[11]
[11] Unconscionable conduct, in connection with the supply or possible supply of services to the Plaintiff, contrary to the Trade Practices Act1974 (Cth) s 51AC; Fair Trading Act1987 (WA) s 11A; Australian Consumer Law s 21.
…
(5) In the alternative to sub-paragraph (4) above, unconscionable conduct in connection with the supply or possible supply of financial services to the Plaintiff, contrary to section 12CB of the Australian Securities and Investments Commission Act 2001 (Cth).
C. By reason of the matters referred to in paragraphs A and B above, Mr McNally claims the following relief against CBA:
(1) Damages at common law.
(2) Damages.[12]
…
(3)In the alternative to prayer (2) above, damages under section 12GF of the Australian Securities and Investments Commission Act 2001 (Cth).
(4)Interest on damages at such rate and for such period as the Court thinks fit pursuant to section 32 of the Supreme Court Act 1935 (WA)
(5) Such further or other relief as the Court thinks fit.
(6)Costs.
[12] Damages under the Trade Practices Act1974 (Cth) s 82; Fair Trading Act1987 (WA) s 79; Australian Consumer Law s 236.
For comparative purposes the existing indorsement on the writ of summons is set out in the appendix to these reasons.
Plaintiff's application for an extension of the limitation periods
To understand the parties' submissions it is necessary to refer to the plaintiff's application for an extension of the limitation periods. The application invokes s 38 of the Limitation Act 2005 (WA) which provides:
38.Court may extend time to commence actions in cases of fraud or improper conduct
(1)A plaintiff may apply to a court for leave to commence an action on a cause of action even though the limitation period provided for under this Act has expired.
(2)On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable.
…
The application reads as follows:
Summons/Extension Application
1.The plaintiff, Mr McNally commenced proceedings in the Supreme Court by writ 2 July 2015. Part 2, Division 1 section 12 of the Limitations Act 2005.
2.Mr McNally in the 2 July 2015 writ and subsequent statement of claims, has identified December 2008-January 2009 and again May 2009 to 8 July 2009 as the critical cause of action dates, relating to his claims and 2014 as the year information or evidence became available.
3.In the claims, the defendants, the CBA employees were acting in the capacity of Mr McNally's personal banking reps.
4.In both instances the claims are based on an [sic] CBA internal home loan document produced in December 2008 (90100056485), that was not known to Mr McNally until 2014. The information was provided through the Financial Ombudsman Service (354103) and a CBA (CF-615142C) investigation into Mr McNally's complaint (April-July 2014).
5.Mr McNally had made two official complaints earlier to CBA in 2012 (CF-615142C) and 2013 (CF-615142C).
6.In October 2012, Mr McNally was told by CBAs Maureen Smith his file notes had been deleted, but in summation Alexandra Colnan stated the CBA had acted properly.
7.In November 2013, the second complaint to CBAs CEO Ian Narev, the CBA advised Mr McNally, CBA had done nothing wrong, and CBA just settled on a property (his Warnbro House), that was actually sold two years earlier, 2011.
8.The CBA internal home loan documentation, released in 2014, forms the basis of Mr McNally's claims and relates to both the December 2008-January 2009 and May 2009 to 8 July 2009 cause of action dates.
9.On the 17 June 2016, the Defence filed a Substituted Defence (dated 17 June 2015). Paragraphs 32, 34, and 36 claim the Plaintiff's right to remedy is barred by section 13 of the Limitations Act 2005, 'more than six years before commencement of proceedings.'
10.Mr McNally was restricted in his ability to make a claim until 2014, because he was unaware of the evidence until the 2014 Financial Ombudsman Service investigation and subsequent release of information from the CBA.
11.Mr McNally made a third offer (November 2014) to settle the matter with CBA's CEO, Ian Narev, but received no response.
12.Mr McNally then commenced proceedings against the CBA on 2 July 2015, based on the information provided by the Financial Ombudsman Service/ CBA investigation completed 21 July 2014.
13.Mr McNally requests an extension application be granted under Part 3, Division 3, section 38 of the Limitations Act 2005, 'Court may extend time to commence actions in cases of fraud or improper conduct.'
The application is directed to the plaintiff's claim as pleaded in the plaintiff's substituted statement of claim dated 30 May 2016. In par 11 of the substituted statement of claim the plaintiff pleaded:
That on the 29, 30, and 31 of December 2008, Mr Stiles without the knowledge of [the plaintiff], created and had approved false information on the internal CBA home loan (90100056485) documentation, relating to the purpose of the loan that was being processed on behalf of [the plaintiff] for the Secret Harbour house construction. Comment details relate to renovation on property [the plaintiff] did not own.
In par 30 of the substituted statement of claim the plaintiff expressed his claim as follows:
[The plaintiff's] claim is against the [defendant] for approving and issuing loan contract 428325500 in December 2008/January 2009 with incorrect client/loan details that had immediate foreseeable consequences, causing the loss of assets, income and damages to [the plaintiff].
Plaintiff's submissions
In oral submissions the plaintiff's counsel argued that the proposed amended indorsement did not raise a new cause of action or, if it did, then any new cause of action arose out of the same facts as those set out in the existing indorsement. On the basis of O 21 r 5(5) as it was at the time of the argument, counsel for the plaintiff argued that leave to make the amendments should be granted. In his submissions counsel for the plaintiff emphasised that the indorsement should be read generously, with a focus on substance rather than form, and submitted that all that the proposed amendment sought to do was take 'the infelicity of expression used by a self-represented litigant in his writ and replace it with terms known to the law'.[13]
[13] ts 50.8.
Counsel for the plaintiff acknowledged that the existing indorsement on the writ of summons does not mention the representations set out in paragraph A of the proposed amended indorsement. He contended, however, that it was not necessary for the representations to have been pleaded in the indorsement. He argued that the central fact from which the relevant events unfolded was the approach made by the plaintiff to Mr Stiles of the defendant for a loan. The effect of the plaintiff's argument is that the reference in the existing indorsement to the approach for the loan and the meeting at which the approach was made subsumed the making of the representations to which reference is made in the proposed amended indorsement.
The plaintiff's written submissions as to the relevance of the application to extend the limitation period contemplated the possibility that the court might determine the application to extend the limitation period in the course of determining the application for leave to amend the indorsement. This was not an approach that had been foreshadowed. In the context that the court might determine the application to extend the limitation period now rather than at trial, the following propositions were advanced:
(a)The crucial material fact that is to be extracted from the extension of time application is that 'an internal document produced in December 2008' was only made known to the plaintiff in 2014.
(b)The plaintiff's application could be likened to a reply alleging fraud or improper conduct to a limitation defence and that where the facts are complex the determination of the limitation defence should be left to trial, especially since the determination requires satisfaction of a mental element. In other words, the delay in commencing the action was attributable to the plaintiff's ignorance of a material ingredient of the cause of action.
(c)Should the court determine the application to extend the limitation period before trial then it was contended:
(i)the delay in commencing the proposed action would not unacceptably diminish the prospects of a fair trial and would not significantly prejudice the defendant because the crucial evidence was documentary and was in the defendant's possession; and
(ii)'improper conduct' is a concept wider than fraud and the failure by the defendant to disclose the documents earlier was sufficient to constitute 'improper conduct'.
The plaintiff's counsel did not make any submissions directed to whether the applicable limitation periods had expired.
The defendant's submissions
The defendant submits that the proposed amended indorsement raises new causes of action. It submits that this is plain from the approach taken to the amendment - the deletion of the existing indorsement in its entirety and the substitution of an entirely new indorsement.
The defendant submits the critical facts in the existing indorsement are as follows:
(a)The plaintiff's application for a two stage loan.
(b)The defendant's alleged creation of a document that did not acknowledge the second stage of the loan.
(c)The defendant declining the second loan and the forced sale of the plaintiff's properties.
The defendant submits the critical facts in the proposed amended indorsement are: the representation made on the defendant's behalf that it would make two loans to the plaintiff, and the subsequent forced sale of the plaintiff's properties due to the defendant not approving the second loan.
The defendant submits that where there is no doubt that a limitation defence will defeat a cause of action proposed to be added by amendment, the amendment should be disallowed.
The defendant submits that the limitation period for the plaintiff's claims for misleading or deceptive conduct, unconscionable conduct and negligence is six years from the date the cause of action accrued.[14] Relevantly, the defendant submits the causes of action accrued when the plaintiff first suffered 'measurable loss'.[15]
[14] Trade Practices Act 1974 (Cth) s 82(2); Australian Consumer Law 2010 (Cth) s 236(2); Australian Securities and Investment Commission Act 2001 (Cth) s 12GF(2); Limitation Act 2005 (WA) s 6.
[15] Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 531.
The defendant submits that the plaintiff first suffered loss before 2 October 2011 and on that basis contends that the claims in the proposed amended indorsement were statute barred on 2 October 2017 (the date the chamber summons for leave to amend was filed) if the plaintiff first suffered loss by the impugned conduct before 2 October 2011.
The defendant's analysis in support of the submission that the plaintiff first suffered loss before 2 October 2011 is as follows. The plaintiff claims loss by, amongst other things, selling his properties at undervalue due to a lack of financial capacity to meet his repayment obligations to the defendant. The first sale at an alleged undervalue said to give rise to a loss claimed by the plaintiff was in August or September 2009. The limitation period for the plaintiff's causes of action therefore commenced, at the latest, in September 2009: more than six years before the proposed amended writ was filed on 2 October 2017. On that basis, the defendant submits that the limitation defences will defeat the plaintiff's proposed new claims.
The defendant accepts that in assessing whether the limitation defences will succeed, account must be taken of the plaintiff's application to extend the limitation periods but it submits that the application has no prospects of success and is thus of no relevance to the determination of whether the limitation defences will defeat the plaintiff's proposed new claims. For the purposes of this submission the defendant identifies the factual elements of the causes of action which the plaintiff seeks to add by amendment as follows:
(a)representations said to have been made to the plaintiff by Mr Stiles on behalf of the defendant on or about 28 October 2008;
(b)the making of the first loan by the defendant of $160,000;
(c)the refusal of the defendant, on or after 8 July 2009, to make the second loan to the plaintiff of not less than $200,000; and
(d)the sale of the plaintiff's properties between 4 September 2009 and 20 December 2013.
Each of those matters, so the defendant argues, were within the knowledge of the plaintiff so that there is no question of the plaintiff not being aware of the facts on which he relies in September 2009.
The defendant submits that the plaintiff's contention that his delay in commencing the action was attributable to the fact he was unaware of the defendant's internal home loan documentation until 2014 is completely and obviously unsustainable because there is no connection between those documents and the causes of action proposed to be added by the amendment.
Disposition
The proposed amendment raises new causes of action
The central and essential feature of the proposed amended indorsement is that it raises causes of action that are founded upon representations alleged to have been made to the plaintiff by Mr Stiles of the defendant on or after 28 October 2008 to the effect that the defendant would make two loans to the plaintiff. To adopt the term used in Belgravia, [16] the 'critical facts' in the proposed indorsement are the making of the representations and the forced sale of the plaintiff's properties as a result of the defendant not making the second loan.
[16] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [11].
On the most generous reading of the existing indorsement it cannot be said that a claim based on representations made by Mr Stiles to the plaintiff can be discerned. The existing indorsement does not refer even indirectly to representations by Mr Stiles to the plaintiff. It focuses upon the creation of internal documents that contained false information and it was this that the plaintiff complained was the 'initial cause of the plaintiff's financial situation'. I am satisfied that the proposed amended indorsement raises new causes of action not raised by the existing indorsement.
In Belgravia the Court of Appeal observed that the now former subrules (2) - (5) of O 21 r 5 had little or no continuing utility.[17] The question of whether the new causes of action raised by the proposed amended indorsement arise out of the same facts or substantially the same facts as those contained in the existing indorsement is not relevant for the purposes of O 21 r 5 in its present form. However, as the plaintiff's counsel addressed the issue in his submissions, I should record that my view is that the new causes of action did not arise from the same or substantially the same facts as those set out in the existing indorsement. My reasoning is essentially the same as my reasoning for concluding that the proposed amended indorsement raises new causes of action.
The applicable limitation periods have expired
[17] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [27].
I accept the defendant's submission that the limitation periods in respect of the causes of action set out in the proposed amended indorsement arose in September 2009 - being the date upon which the plaintiff first suffered measurable loss - and that the limitation periods expired in September 2015, just over two years before the application to amend the indorsement was made. As I have noted, the plaintiff's counsel did not make submissions challenging the defendant's analysis of when the causes of action arose and when the limitation periods expired.
The application to extend the limitation periods does not assist the plaintiff
When considering the plaintiff's application to extend the limitation periods I have been conscious that the application was made by the plaintiff when he was representing himself and that an appropriate degree of latitude must be given to litigants acting in person. That said, the plaintiff's solicitors have prepared a further substituted statement of claim and prepared the amended indorsement on his behalf. No attempt to revise or supplement the application to extend the limitation period was made.
The fundamental and fatal difficulty that the plaintiff's reliance on the application to extend the limitation periods confronts is that the application appears to be directed to seek an extension of the limitation period for a cause of action pleaded in pars 11 and 30 of the substituted statement of claim dated 30 May 2016 which is no longer pursued. Those paragraphs rely expressly on the defendant's internal documents. The proposed amended indorsement does not refer to the defendant's internal documents. No reference is made to them in the plaintiff's minute of proposed further substituted statement of claim and that pleading does not contain a cause of action of the nature pleaded in pars 11 and 30 of the substituted statement of claim. As the defendant submitted, there is no connection between the causes of action identified in the proposed amended indorsement and pleaded more fully in the proposed further substituted statement of claim and the defendant's internal documents that the plaintiff alleges the defendant failed to disclose until 2014.
As I have noted earlier, the plaintiff's submissions proceeded on the basis of two propositions: that the plaintiff's delay in commencing proceedings was attributable to his ignorance of 'a material ingredient of the cause of action' and that the documents in question constituted 'crucial evidence'. Those propositions are not valid as the internal documents are not relevant to the causes of action upon which the plaintiff now wishes to rely. Accordingly, in my view, the application to extend the limitation period does not assist the plaintiff. It does not address the causes of action which the plaintiff seeks to rely upon by the proposed amendment to the writ.
Conclusion
For the reasons given the plaintiff's application to amend the indorsement on the writ of summons is dismissed.
Appendix
The plaintiff's claim is for loss of assets, income and damages caused by the financial abuse and negligence of Commonwealth Bank of Australia (CBA), including employees at their St Georges Terrace office Perth Western Australia knowingly assisting in a breach of trust.
After being granted a licence to build (21st October 2008) by the City of Rockingham, on the 28 October 2008, the plaintiff made application with his CBA Better Business Banking rep Andrew Stiles to provide a two part loan for construction of a house on CBA charged land at Secret Harbour WA. The purpose, to sell the property on completion.
That on the 29th, 30th, and 31st of December 2008, and on the 7 January 2009, unbeknownst to the plaintiff, CBA staff members Andrew Stiles, Betty Thuy Nguyen and Jarrod Straight created and approved false information on the plaintiffs internal CBA home loan documentation, relating to the purpose of the loan that they were processing. It was revealed in 2014 that this approved internal loan application documentation made no mention of it being a two stage loan for building a house on the Secret Harbour property. The comment details on the application refer to 'rennovations (sic) on clients existing, unemcoumbered (sic) properties' - when in fact, the plaintiff did not own any unencumbered properties requiring renovation; in contrast, The Consumer Credit Contract Schedule signed by the plaintiff for the loan did not, under Item L, state the purpose of the loan.
That on the 13th May 2009, in the absence of Andrew Stiles, the plaintiff met with and briefed Janet Hoon in relation to the second loan to complete the house. At this meeting Janet Hoon requested information and documentation from the plaintiff, including a Personal Balance Sheet.
On the 14th May 2009, Janet Hoon received this documentation including the Personal Balance Sheet which clearly showed the plaintiffs properties and loans with the CBA and that the plaintiff did have a house under construction at the Secret Harbour property.
That on the 10th June 2009 the plaintiff met with Andrew Stiles to finalise the second loan to complete the house under construction at Secret Harbour; shortly after the 10th June 2009, Andrew Stiles left employment at the CBA.
That between the 10th June 2009 and 8 July 2009, the second loan application documentation was submitted by Janet Hoon, without having been seen by the plaintiff. In her processing of the application documentation Janet Hoon failed to recognise, disclose or acknowledge the fact that the loan was for the completion of a house under construction on CBA charged land or the fact that the plaintiff had a dubious loan for properties requiring renovation. On the 8th July 2009, the loan application was declined. The completion of the Secret Harbour house was critical to the plaintiff's immediate and long term financial future.
That between the 10th June 2009 and the 5th August 2009, the plaintiffs banking file notes disappeared.
That on the 11th and 23rd February 2010, and the 18th and 24th March 2010, after repeated requests by the plaintiff for assistance, Alan Scamozi (Better Business Banking Team Leader), failed to investigate the cause of the plaintiffs banking situation regarding the second loan, and CBA staff refused to advise the plaintiff on CBA policy regarding the timing of foreclosures.
That on the 11th 24th and 30th November 2010, 14th and 16th December 2010, after repeated requests by the plaintiff, Robert Ramsey (CBA Better Business Banking) failed to investigate the plaintiffs complaints as to the cause of his banking situation and failed to disclose the banks intentions regarding foreclosures on loans.
That on the 21st July 2014, Biljana Cetojevic (CBA Customer Relations) in her investigation of a Financial Ombudsman complaint, failed in her summation to acknowledge that the home loan documents created by Andrew Stiles in 2008 contained false information and that this was the initial cause of the plaintiff's financial situation.
That on the 8th November 2014 the plaintiff sent an email to Ian Narev (CEO, CBA) demonstrating CBA staff's negligence which resulted in the plaintiff's losses, but received no reply.
That between August 2009 and January 2014 the plaintiff, fearful of a 'fire sale', was forced to sell all of his properties in favour of the Commonwealth Bank of Australia.
The plaintiffs claim is for loss of assets $ 1 585 742
loss of income $ 607 093
damages $ 600 000
Total claim $ 2 792 835
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE16 AUGUST 2018
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