Pearson v ING Bank (Australia) Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Pearson v ING Bank (Australia) Ltd [2023] QSC 86

PARTIES:

MARK ANDREW PEARSON

(plaintiff)

v
ING BANK (AUSTRALIA) LIMITED

ACN 000 893 292
(defendant)

FILE NO:

BS No 14095 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

5 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2023; further written submissions of the defendant filed 3 April 2023; further written submissions of the plaintiff filed 12 April 2023

JUDGE:

Cooper J

ORDERS:

1.   The plaintiff provide security for the defendant’s costs of these proceedings from 20 February 2023 in the amount of $164,354.10.

2.   The security be paid into court, or provided in a form acceptable to the Registrar, within 21 days of the making of these orders.

3.   The proceeding be stayed until the plaintiff provides the security in accordance with paragraphs 1 and 2 of these orders.

4.   The plaintiff pay the defendant’s costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – FACTORS RELEVANT TO EXERCISE OF DISCRETION – JUSTICE OF CASE – where the plaintiff claims damages from the defendant arising out of a loan agreement to refinance a residential unit – where the plaintiff defaulted under the loan agreement and the unit was sold by the mortgagee in possession – where the plaintiff’s claims relate to breach of contract, unconscionable conduct, and personal injury – where the pleading of the plaintiff’s claim suffers from numerous deficiencies – where the limitation periods have passed – where the defendant has applied for security for costs against the plaintiff – whether the plaintiff is impecunious and would be unable to pay an adverse costs order if his claims are unsuccessful – whether the plaintiff’s claims have poor prospects of success – whether an order for security for costs would operate to stifle the proceedings – whether the justice of the case requires the making of a security for costs order

Australian Securities and Investments Commission Act 2001 (Cth), s 12CA(1), s 12CB, s 12DB(1), s 12DB(1)(i), s 12GF(2)
Corporations Act 2001 (Cth), s 912A
Limitation of Actions Act 1974 (Qld), s 10, s 11, s 31, s 38
Uniform Civil Procedure Rules 1999 (Qld), r 11, r 670, r 671, r 672

Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453, cited
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited
Bhagat v Murphy [2000] NSWSC 892, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14, cited
Commonwealth Bank of Australia v Doggett [2014] VSC 423, considered
Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11, cited
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR…

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Details
Case
[2023] QSC 86
Decision Date

CaseChat Overview and Summary

The case of Pearson v ING Bank (Australia) Ltd involved a dispute between the plaintiff, Mr Pearson, and the defendant, ING Bank. Mr Pearson sought damages for breach of contract, unconscionable conduct, and personal injury arising from a loan agreement to refinance a residential unit. The bank applied for security for costs against Mr Pearson, asserting that he was impecunious and his claims had poor prospects of success. The court had to decide whether an order for security for costs would be just in the circumstances, considering the justice of the case and the potential stifling effect on the proceedings.

The primary legal issues in the case were whether Mr Pearson was impecunious and unable to pay an adverse costs order if his claims were unsuccessful, whether his claims had poor prospects of success, and whether an order for security for costs would operate to stifle the proceedings. The court also considered whether the justice of the case required the making of a security for costs order. The court found that Mr Pearson's claims had very limited prospects of success, substantially diminishing the force of the stifling effect of an order for the provision of security as a factor weighing against the making of such an order.

The court examined the evidence and submissions to determine whether Mr Pearson was impecunious and unable to pay an adverse costs order. It found that Mr Pearson's claims had numerous deficiencies, including limitations periods having passed. The court also considered whether the proceeding involved a matter of public importance, which would have required clarification of the law for the benefit of a wider group than Mr Pearson. The court concluded that the proceeding was not an appropriate vehicle for the determination of those issues. The court further found that the defendant had not delayed in bringing the application for security for costs and that the plaintiff's conduct of the proceeding did not warrant an order for security for costs.

The court ordered that Mr Pearson provide security for the defendant's costs of the proceedings in the amount of $164,354.10, to be paid into court or provided in a form acceptable to the Registrar within 21 days of the making of these orders. The proceeding was stayed until the plaintiff provided the security in accordance with the orders. The plaintiff was also ordered to pay the defendant's costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.

Orders

Orders of the court

1. The plaintiff provide security for the defendant’s costs of these proceedings from 20 February 2023 in the amount of $164,354.10.

2. The security be paid into court, or provided in a form acceptable to the Registrar, within 21 days of the making of these orders.

3. The proceeding be stayed until the plaintiff provides the security in accordance with paragraphs 1 and 2 of these orders.

4. The plaintiff pay the defendant’s costs of and incidental to the application for security for costs to be assessed on the standard basis if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The claim for damages for personal injury is subject to a limitation period of three years pursuant to s 11(1) of the Limitation Act. Mr Pearson seeks to rely upon s 31(2) of the Limitation Act to extend the limitation period on the basis that ING’s status as a party to the loan agreement was a material fact of a decisive character relating to the right of action which was not within his means of knowledge.[105] Even if ING’s position could properly be characterised in that way, s 31(2) would only operate to extend the limitation period for one year after that fact came within Mr Pearson’s means of knowledge. Based on the material referred to in [104] and [105] above, ING’s status as a party to the loan agreement through its agent, PMS, was known to Mr Pearson in 2014. An application to extend the limitation period under s 31(2) could not, in my view, have the result in the limitation period for Mr Pearson’s personal injury claim be extended until November 2022.[105]Court document 35, [37](a).Conclusion I do not consider that any of the obstacles I have identified above arise in a context where it could properly be said that the law is uncertain or in a state of development as Mr Pearson sought to argue.[106][106]Court document 35, [25]-[31] relying upon Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, 565-6 [138] per Kirby J. My conclusion that Mr Pearson’s claims have very limited prospects of success substantially diminishes the force which the stifling effect of an order for the provision of security would otherwise have as a factor weighing against the making of such an order.Whether the proceeding involves a matter of public importance Mr Pearson submitted that the question whether ING breached cl 10.3 of the Code, and thereby failed to give him notice of an important set of consumer rights at the time of making the loan offer, raises an area of law which requires clarification for the benefit of a wider group than himself as the plaintiff in the present proceeding.[107] [107]Court document 34, [35] and [62]-[68]; Court document 35, [1]. While I accept the correctness of the statements of principle Mr Pearson relied upon in support of that submission,[108] I am not persuaded that the application of cl 10.3 of the Code or other concerns Mr Pearson has raised about the loan transaction rise to a level that it would be in the public interest for those issues to be determined. Even if I had been persuaded that the issues were of public importance, the matters I have addressed above in considering Mr Pearson’s prospects of success would have led me to conclude that this proceeding is not an appropriate vehicle for the determination of those issues.[108]Merribee Pastoral Industries Pty Ltd v Australia & New Zealand Banking Group Ltd (1998) 193 CLR 502, 517 [31]; Soh v Commonwealth of Australia (2006) 231 ALR 425, [26].Delay ING has not delayed in bringing the application for security for costs.Conduct of the proceeding

Ratio Decidendi

Legal Principle Established

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