National Australia Bank Ltd v Priestley

[2012] NSWSC 1611

Supreme Court

New South Wales

Medium Neutral Citation:

National Australia Bank Ltd v Priestley [2012] NSWSC 1611

Hearing dates:

05/12/2012

Decision date:

10 December 2012

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Notice of Motion filed 19 November 2012 is dismissed.

(2) The defendants to pay the plaintiff's costs.

Catchwords:

PROPERTY - urgent relief sought - application for stay of execution of writs of possession - parties seeking to file new defence - court previously refused leave to file amended defence - seventh attempt to formulate a defence - no arguable defence - not in the interests of justice to make orders sought

Legislation Cited:

Farm Debt Mediation Act 1994

Cases Cited:

National Australia Bank Limited v Priestley (No 3) [2012] NSWSC 1171
National Australia Bank Limited v Priestley [2012] NSWSC 387
National Australia Bank v Priestley (No 2) [2012] NSWSC 508

Category:

Procedural and other rulings

Parties:

National Australia Bank (P)
Christopher William Priestley (D1)
Claire Milla Beverley Priestley (D2)

Representation:

Ms Kuti (P)
In person (D1)
In person (D2)

File Number(s):

2011/292621

Judgment

1. Mr Christopher Priestley and Miss Clare Priestley, who are siblings, applied by a Notice of Motion filed on 19 November 2012 for urgent relief in respect of their occupation of and possession of a number of rural properties at Walgett in New South Wales.

1. The National Australia Bank ("the NAB") opposes the grant of any relief.

1. Because the eviction of the Priestleys is scheduled to take place at 9.00am on 11 December 2012, at least from the property known as "Glenacre", it was necessary for the matter to be heard in the course of the Duty List on 5 December 2012 and for judgment to be delivered expeditiously. For this reason these reasons for judgment are necessarily shorter and less felicitous in their wording than if more time was available.

Background

1. The rural properties upon which the Priestleys, who are partners in the River Staation Partnership, conducted their agricultural activities have been owned by the Priestley family for five generations. Unsurprisingly, the present predicament in which the Priestleys find themselves is the source of great sadness and upset for them. They, whilst appearing for themselves, were clearly distressed at the prospect of their future if the orders sought in their Notice of Motion were not made. I recognise and appreciate the depth of their distress and their emotion.

1. In 2008, the Priestleys obtained a loan facility which totalled $7.7M from the NAB which total sum was the subject of four separate loan facilities, including an overdraft facility. These facilities replaced an earlier facility which was entered into during 2004. It is unclear, and not presently relevant, whether the whole of the 2008 borrowings were drawn upon immediately or not.

1. The security provided for the 2008 loan facilities consisted of four properties which were aggregated for the purposes of the partnership's farming enterprise.

1. In total, the land comprised a little less than 22,000 acres on the Lower Macquarie flood plain. Part of the land was farmed, some with the benefit of irrigation and part of the land sustained a grazing operation.

1. The Priestleys fell into default of their loans and under the securities the NAB became entitled to the possession of their properties.

1. Discussion and negotiations then ensued between the officers of the NAB and the Priestleys, which the Priestleys regard as entirely unsatisfactory.

1. They claimed before me that these discussions and negotiations did not amount to a bona fide attempt by the NAB to comply with either or both of clauses 35 or 36 of the Code of Banking Practice which the Priestleys say forms a part of their loan and security agreements with the NAB.

1. On 21 July 2010, a mediation between the NAB and the Priestleys was conducted by Ms Robin Lees, an independent mediator, pursuant to the provisions of the Farm Debt Mediation Act 1994.

1. At the conclusion of that mediation, a document entitled "Heads of Agreement" was entered into. In addition to making interim payments, the agreement placed an obligation on the Priestleys to repay their full indebtedness to the NAB by 30 April 2011 or else to settle the sale of their properties by that time.

1. The Priestleys did not comply with, at least, these last two obligations in the agreement.

Litigation History

1. About four months after this important date, namely, on 12 September 2011, the NAB filed a Statement of Claim in this Court seeking orders for possession of the four properties which were the subject of the securities to the NAB.

1. The Statement of Claim relied upon a failure of the Priestleys to repay the loan facilities in accordance with the demand made on 19 May 2011.

1. The proceedings did not seek a monetary judgment against either Mr Priestley and Ms Priestley

1. A defence was filed by the Priestleys on 13 December 2011.

1. On 20 February 2012, because the Priestleys, who were then being represented by a lawyer, wished to file an amended defence, the matter was returned by the Registrar to the duty judge, Schmidt J.

1. After a number of appearances before Schmidt J and the proffering of a number of different forms of proposed amended defences, after a hearing on 24 April 2012, Schmidt J refused leave to file an amended defence and made other orders, including that any further amended defence ought be filed within 14 days: see National Australia Bank Limited v Priestley [2012] NSWSC 387.

1. The Priestleys sought leave by a motion dated 8 May 2012 to file an amended defence in different terms to their earlier pleadings. After a further hearing, leave was refused by Schmidt J: see National Australia Bank v Priestley (No 2) [2012] NSWSC 508.

1. On 24 May 2012, the Priestleys, through their lawyer, indicated to the Registrar they proposed to seek leave to file a further amended defence. Whilst that intention was being given effect to, and apparently coincidentally, on 28 May 2012 the NAB secured the entry of default judgment.

1. A further application to file an amended defence which necessarily involved the setting aside of the default judgment was heard by Schmidt J on 8 August 2012. Each party led evidence on the hearing of the motion, each party was represented and made extensive submissions. Her Honour reserved her decision.

1. On 28 September 2012, for the reasons which she then published Schmidt J dismissed the application of the Priestleys to set aside the default judgment and for leave to file an amended defence: see National Australia Bank Limited v Priestley (No 3) [2012] NSWSC 1171.

1. Among other things, Schmidt J noted that she was dealing with a sixth version of a defence which she found was still not adequately pleaded. At [32] she concluded:

"The defendants were given every reasonable opportunity to put on a defence before default judgment was entered. Even now they have not brought forward a proposed defence which complies with the requirements of the rules or establishes an apparent basis for a successful defence nor have they led evidence which establishes that the case which they seek to advance has any real prospect of success".

1. On 10 October 2012, the NAB filed a motion seeking the issue of writs of possession over each of the Priestleys' properties.

1. On 19 October 2012, the Priestleys filed a Notice of Intention to Appeal from the judgment of Schmidt J delivered on 28 September 2012, to which I referred in [23] above.

1. On 19 November 2012, the Priestleys filed their Notice of Motion seeking a stay on the execution of the writs of possession. They then appeared, without legal representation, before Davies J on 23 November 2012.

1. Before Davies J, the Priestleys unsuccessfully sought a stay of the execution of the writs on two bases. The first was that no execution of the writs should occur until their appeal had been heard and determined. The second was that they were endeavouring to negotiate a sale of part, or all, of the properties to the Ngaba Elders Council at Brewarrina.

1. Davies J declined on 23 November 2012, to stay the proceedings saying:

"There is really no evidence upon which I could determine the stay application this morning. It would be necessary at least to look at a draft notice of appeal to make a general assessment of the likelihood of success on appeal".

1. However, since the Priestleys were unrepresented, rather than dismiss the application, Davies J stood the matter over to the Duty Judge on 5 December 2012 to:

"enable them to prepare a draft notice of appeal and to put on any further evidence in support of the appeal to justify the stay they now seek".

Proceedings on 5 December 2012

1. On 5 December 2012, the Priestleys again appeared for themselves. They pressed for the orders sought in their Notice of Motion.

1. In addition to the evidence previously relied upon before Davies J, they also relied upon the affidavit of Ms Priestley sworn 5 December 2012.

1. That affidavit (paragraph 6) made it clear, as did their oral submissions, that the stay of the Court's orders was being sought not because of their desire to prosecute an appeal from the decision of Schmidt J of 28 September 2012, but rather because:

"Upon further research and investigation we believe a new defence needs to take into account what previous defences did not deal with in detail, and were not brought to Justice Schmidt's attention".

1. As their affidavit and submissions made clear, it was the Priestleys' contention that the NAB had failed to follow the Code of Banking Practice in dealing with them and their default on this loan in early to mid-2010. As I understand what they wish to raise by their new defence, it is that the Code formed a part of the terms and conditions of the loan facilities and that, unless the NAB adhered to the Code and all of the terms of it, including the dispute resolution provisions in clauses 35 and 36, then the NAB could not act upon the Priestleys' default, and seek to enforce the loans by way of orders for possession.

1. The central complaint of the Priestleys' which underlies the allegation of non-compliance with the Code, is that in 2010 the Agri-Business Managers of the NAB, failed to act towards the Priestleys, fairly and reasonably, and in a consistent and ethical manner. It is claimed that the NAB failed to support and assist them to recover from the adverse economic effects of the prolonged drought which all farmers had been experiencing up to January or February 2010.

1. The Priestleys expected that the Bank would advance further moneys to them to enable them to sow a wheat crop and further develop their other farming and grazing operations to take advantage of the good climatic seasons of 2010 and 2011, after the many years of drought.

1. These were matters which had previously been raised by one or more of the defences which the Priestleys sought to file.

1. Before me, whilst this was apparent and accepted by the Priestleys, what was said to be new was that when the Priestleys complained to the officers of the NAB about the NAB's failure to act appropriately towards them, the NAB did not deal with those complaints as it was obliged by the Code of Banking Practice to do. In particular, the Priestleys complained that they were forced to follow the "Farm Debt Mediation" path, the outcome of which they regard as most unfavourable, rather than to have their complaints fully dealt with both internally and externally by the NAB as the Code required.

1. As well, the Priestleys argued that the terms of the Constitution by which the Code Compliance Monitoring Committee Association operated, meant that contrary to the Code, a copy of which the Priestleys were given by the NAB during 2010, the NAB did not have to investigate all complaints and hence had failed properly to investigate their complaints and submit their complaints to the monitoring regime of the Code Compliance Committee.

1. Whilst the evidence provided set out these concerns and allegations, the Priestleys did not provide to the Court any further draft defence or crossclaim. They did not make it apparent how a failure of the NAB, assuming one was established, to comply with these contractual provisions, could amount to a defence of the NAB's claim for possession of the land.

1. It seems that the highest which could be said in the Priestleys' favour is to be found in the following statements from Ms Priestley's affidavit of 5 December 2012, namely:

"22. [If] the NAB Agri-Business Managers had dealt with our complaints as we requested, and if Mr Clyne [the CEO of NAB] had ensured that our complaints were investigated when we brought to his attention that they had not been, a deal could have been done that would not only have addressed the debt but would have seen us make a profit within about three years of these complaints"

and further:

"The outcome would have been very different. The NAB assisted Cubbie Station to grow cotton in 2010 when it owed as much as it was worth. With proper discussions we are sure that we could have renegotiated with the NAB to assist us again and move forward to return to profitable times".

Conclusion

1. I have given careful thought to the Priestleys' evidence and submissions. It is hard to not have sympathy for them in the position in which they find themselves.

1. What they have put before the Court on this application is certainly deserving of close attention by the senior management of the NAB, because if the Priestleys are correct, and their complaints have not been listened to and dealt with appropriately, then the NAB may well be exposed to both, damage to its reputation and as well, suggestions that its publicity campaign which describes itself as "the leading Agri-Business bank" may not have any substance.

1. Nevertheless, the matters which the Priestleys now seek to raise do not, in the form in which they are advanced, constitute an arguable defence against the NAB's legal claim for, and its entitlement to, orders for possession of the farming properties. At their highest, it is possible that they may form a basis for a claim for damages, although the evidence presently before the Court does not suggest that any such claim is likely to be successful.

1. It follows that I am not persuaded that the Priestleys have an arguable defence to the NAB's claim. In light of the fact that this is their seventh attempt to formulate a defence, even making all proper allowance for the fact that they are not legally represented, I am not satisfied that it is in the interests of justice to make the orders sought by them.

Orders

1. I make the following orders:

(1)   I order that the Notice of Motion filed 19 November 2012 be dismissed.

(2)   I order the defendants to pay the plaintiff's costs.

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Decision last updated: 11 February 2013