Satchithanantham v NAB; Thambiappah v NAB - [2008] NSWSC 1097

CITATION: Satchithanantham v NABThambiappah v NAB [2008] NSWSC 1097

HEARING DATE(S): 25/09/08

JUDGMENT DATE :
26 September 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 26 September 2008

DECISION: Proceedings 6031/07 and 5597/07 dismissed with costs. Order that the exhibits may be returned after 28 days unless an appeal or application for leave to appeal is filed within that period. Otherwise the exhibits are to be retained on the file until the appeal books or application to appeal is settled.

CATCHWORDS: PRACTICE AND PROCEDURE – statement of claim – appeal from order striking out – pleading confusing, disjointed and unsupported by material facts – whether proceeding should be summarily dismissed – second plaintiff’s cause of action depended upon his beneficial ownership of property that remained vested in his trustee in bankruptcy – first plaintiff had previously not utilised an opportunity to replead and had no independent interest in the proceeding – proceeding dismissed - PRACTICE AND PROCEDURE – courts and judges – disqualification for bias – whether a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to the disposal of the case on its merits – judge clearly right not to disqualify himself

CASES CITED: Webb v The Queen (1994) 181 CLR 41
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Wentworth v Wentworth (Supreme Court of NSW, Santow J, 6 February 1998, unreported)
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Wride v Schulze [2004] FCA 281
Sereika v Cardinal Financial Securities Ltd [2001] FCA 1715
Gosden v Dixon (1992) 107 ALR 329
Ramage v Waclaw (1988) 12 NSWLR 84

PARTIES: Thambiappah Satchithanantham
v
National Australia Bank & Anor;
Sivamani Thambiappah & Anor
v
National Australia Bank

FILE NUMBER(S): SC 6031/07; 5597/07

COUNSEL: Plaintiff: In Person
Defendant: N Bearup

SOLICITORS: Plaintiff: na
Defendant: Dibbs Abbott Stillman Lawyers

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 6031/07
5597/07

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 16/04/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 26 September 2008

6031/07 Thambiappah Satchithanantham v National Australia Bank & Anor
5597/07 Sivamani Thambiappah & Anor v National Australia Bank

JUDGMENT

1 HIS HONOUR: These are appeals from judgments of Macready AsJ given on 9 and 16 April 2008. They have been heard together. There are two proceedings. In proceeding 5597/07 the first plaintiff is Ms Sivamani Thambiappah. The second plaintiff is Mr Thambiappah Satchithanantham. They are sister and brother. In their statement of claim they sought damages of $207,802.68 against the defendant, the National Australia Bank. They alleged they suffered loss as a result of the defendant’s improperly exercising a power of sale as mortgagee over a property at Park Avenue, Kingswood. The registered proprietors of that property were the first plaintiff and a Ms Manonmany Gurarethnam. I am told by the second plaintiff that she is also his sister. The second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 1097
Decision Date: 26 September 2008

CaseChat Overview and Summary

The appeal before the court involved two plaintiffs, Satchithanantham and Thambiappah, who were contesting an order by the Federal Court of Australia to strike out their statement of claim against the National Australia Bank (NAB). The plaintiffs sought to challenge the bank's possession and sale of a property, alleging improper conduct. The primary issue before the court was whether the proceeding should be dismissed summarily due to the pleading being confusing, disjointed, and unsupported by material facts. Additionally, the court had to consider the second plaintiff's claim, which was contingent on his beneficial ownership of the property, which was still vested in his trustee in bankruptcy. The first plaintiff had previously failed to take advantage of an opportunity to amend the pleadings and had no independent interest in the proceeding.

The court examined the plaintiffs' statement of claim and found it to be confusing and disjointed, lacking sufficient material facts to support their allegations. The second plaintiff's cause of action was also flawed, as it depended on his beneficial ownership of the property, which was not his due to being in bankruptcy. The court noted that the first plaintiff had not utilised the opportunity to replead and had no independent interest in the proceeding. Consequently, the court concluded that the proceeding should be dismissed. The court also addressed the issue of judicial disqualification for bias, determining that there was no reasonable apprehension that the judge might not bring an impartial mind to the case.

The court found that the judge's decision not to disqualify himself was correct, as there was no basis for a fair-minded lay observer to believe that the judge might be biased. The court's decision was that the proceeding was dismissed, and the appeal was subsequently dismissed as well. The final orders of the court confirmed the dismissal of the proceeding, and the plaintiffs were required to pay the costs of the appeal.

Orders