NAB v Ashton Lomax

[2017] VCC 1231

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

BANKING AND FINANCE LIST

Case No. CI-16-01312

Ashton Lomax	Applicant
v
National Australia Bank Ltd	Respondent

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JUDGE:	His Honour Judge Woodward
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2017
DATE OF RULING:	1 September 2017
CASE MAY BE CITED AS:	NAB v Ashton Lomax
MEDIUM NEUTRAL CITATION:	[2017] VCC 1231

REASONS FOR RULING
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Subject:  REVIEW OF DECISION OF JUDICIAL REGISTRAR
Legislation Cited:     Bankruptcy Act 1966 (Cth) s60(4); Civil Procedure Act 2010 (Vic) s29

Cases Cited:Moss v Eagleston [2011] NSWCA 404; 83 NSWLR 476; Watson v National Australia Bank [2017] FCA 128

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Ashton Lomax in person
For the Respondent	Mr A Segal	K & L Gates

HIS HONOUR:

1       I have had the opportunity to read the amended application for review dated 20 August 2017 and the outline of submissions filed pursuant to the orders of His Honour Judge Cosgrave made on 14 August 2017, prepared by Mr Lomax, the applicant in this proceeding.  I have also read the affidavit of Mr Lomax sworn on 28 August 2017, which encapsulates much of the material filed in earlier affidavits, particularly those filed when the matter came on before Judicial Registrar Tran on 19 June 2017.  I have also had the advantage of reading the submissions dated 15 June 2017 on behalf of the plaintiff (respondent), which were before the Judicial Registrar, the transcript of that hearing and the Judicial Registrar’s Ruling.

2 Mr Lomax has outlined in some detail the various bases on which he seeks to have the claim in relation to an alleged breach of s29 of the Civil Procedure Act 2010 (Vic) (“CPA”) agitated. These are matters which were argued at length before the Judicial Registrar. In particular, Mr Lomax argued that the Court should of its own motion entertain the arguments, given their gravity. He argued in effect that the Court should ensure that the alleged conduct of the plaintiff is reviewed in circumstances that he submitted would inevitably result in the existing orders, in particular the order for possession, being unwound and the respondent being ordered to reinstate the assets of the applicant. I have seen nothing in the material that persuades me that this Court should of its own motion interrogate the substance of the defendant’s defence and counterclaim in this proceeding, for the purposes of determining whether the plaintiff or its legal advisers have breached their overarching obligations.

3       Further, having undertaken careful consideration of all of the material referred to above, I can see no error in the approach taken by the learned Judicial Registrar at the hearing of this matter on 19 June 2017 and in her Ruling that day.  Indeed, I would go further and say that it is strongly arguable that, having regard to authorities including the New South Wales Court of Appeal decision in Moss v Eagleston[1], and the discussion of that case in Watson v National Australia Bank[2], claims of the kind that might arise under s29 of the CPA are not, and could never be, in the nature of “an action…in respect of any personal injury or wrong done to” Mr Lomax within the meaning of s60(4) of the Bankruptcy Act 1966 (Cth).

[1] [2011] NSWCA 404; 83 NSWLR 476

[2] [2017] FCA 128

4       However, even if they were of that kind, I am satisfied that they are indivisible from the proprietary rights of Mr Lomax and therefore have vested in his trustee in bankruptcy as found by the Judicial Registrar.  He therefore no longer has the capacity to make the claims which he seeks to agitate in this case for the reasons articulated by the Judicial Registrar.

5       In the circumstances, I propose to make orders dismissing the application for review and confirm the orders of Judicial Registrar Tran made on 19 June 2017, including confirming the cost arrangements as set out in Other Matters of those orders.

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Certificate

I certify that these 2 pages are a true copy of the reasons for Ruling of His Honour Judge Woodward delivered on 1 September 2017.

Dated:      1 September 2017

Simone Karmis

Associate to His Honour Judge Woodward