Siwicki v NAB
[2010] VSC 547
•3 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. SCI 2009 10500
| DENISE MICHELLE SIWICKI | Plaintiff |
| and | |
| NATIONAL AUSTRALIA BANK LIMITED | Defendant |
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JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2010 | |
DATE OF JUDGMENT: | 3 December 2010 | |
CASE MAY BE CITED AS: | Siwicki v NAB | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 547 | |
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EQUITY ― Unconscionable dealing ― Duress and undue influence ― Husband and wife ― Joint borrowers and mortgagors ― Action by bank ― Solicitors ostensibly acting for borrowers ― Consent judgment from borrowers ― Alleged undue influence by husband in agreeing to consent judgment ― Separate action to set aside judgment ― Alleged absence of authority for solicitors to act for wife ― No basis for alleging actual knowledge or need for enquiry by bank ― Action unsustainable
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REASONS FOR JUDGMENT
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Harris (solicitor) | Voitin Lawyers |
| For the Defendant | Mr A Segal | Turks Legal |
HIS HONOUR:
A bank has lent money to two couples and two associated companies. The loan was secured by a mortgage over each couple’s home, and another property bought for development. Default occurred. The bank sued. A firm of solicitors filed an appearance to the writ for all six defendants, and then a defence. Eventually, a consent judgment was filed in court in which the bank was given possession of the mortgaged properties.
One of the defendants, a married woman, seeks by a separate proceeding to set aside the judgment as it affects her home, and to set aside the mortgage. She says the transaction was unconscionable because she did not understand what she was doing and was not made aware of what was going on. And she says, she never instructed the solicitors to act for her and acted under pressure from her husband, or ignorance, in agreeing to the consent judgment. She has no basis to allege that the bank knew, or was put on inquiry about her position or the “invalidating circumstances” as the cases call it.
The facts show that the bank’s solicitors dealt with the defendant’s solicitors in the ordinary way in litigation, and had no reason to question their authority to act for all defendants. There was nothing untoward in any of the dealings leading up to the consent judgment. What is more, the bank says, not only has it acted in good faith, but there was a judgment perfected and entered, and that ought to be the end of it.
Should her case be summarily dismissed as being unsustainable?
The plaintiff is Denise Siwicki. She and her husband Richard were two of six defendants sued by the National Bank, not in this proceeding, but in an earlier proceeding in 2008.[1] They mortgaged their home in Waurn Ponds to the bank as security for a home loan of $304 000. Another couple, Zoran and Dragica Milinkovic, mortgaged their home in Geelong to the bank for a loan of $405 000. Zoran Milinkovic and Richard Siwicki are work colleagues. The remaining two defendants were Siwicki Investments Pty Ltd and DMM Corporation Pty Ltd. Mrs Siwicki was a director and shareholder of the first company.
[1]No SCI 2008 8801.
Those companies obtained finance from the bank under a commercial bill facility for $1 680 000 to purchase the “Providence Lodge” on the Snowy Mountains Highway in New South Wales. The finance was secured by a mortgage over the lodge, a personal guarantee from the Siwickis and the Milinkovics, and the existing mortgage over their homes. Denise Siwicki has sworn:
The purchase of the Lodge was Richard’s dream project. I very strongly felt and believed that if I refused to be involved, or opposed Richard’s involvement, it was likely to create such a strain on our relationship that it would end our marriage. I really believed I had no choice.[2]
[2]See her affidavit sworn 26 October 2010 in the 2008 case, at paragraph 6.
Default occurred under all mortgages. The National Bank sued for possession of all mortgaged land and for moneys secured. That action was commenced in October 2008. In the case of the Siwickis, their mortgage debt was $2 085 413. An appearance was filed for the two companies and for both couples by Harwood Andrews Lawyers in Geelong. That firm later filed a defence for all defendants, which was really no more than a holding, or perfunctory, defence. It did not allege any countervailing facts to impeach the bank’s claim. The bank applied to strike out the defence. That application did not proceed as the bank’s solicitors and Harwood Andrews were negotiating a settlement of the claim for all defendants.
Come April 2009, it appears the solicitors reached an agreement under which the defendants would give the bank a consent to judgment to be held in escrow until 1 June 2009 and would make two payments of $25 000 to the bank on 30 April 2009 and 29 May 2009. The escrow arrangement was to operate pending any settlement of the proceeding. That is, if the proceeding was not settled by 1 June 2009, the bank could act on the consent judgment absolutely and enter judgment.
A consent to judgment was produced and signed by Harwood Andrews. A settlement did not occur. On 11 June 2008, the bank filed the consent to judgment. Subsequently, a consent judgment was given and authenticated by a deputy prothonotory under rule 59.06. That order, in essence, gave the plaintiff possession of the Providence Lodge, the property of the Siwickis at Waurn Ponds, and the property of the Milinkovics in Geelong. A warrant of possession was issued on 11 August 2009 for the land at Waurn Ponds.
Mrs Siwicki then took resistance action. She applied, by a different solicitor, in the 2008 proceeding to set aside the judgment as far as it concerned her, and to stay the warrant. Her new solicitor swore an affidavit stating his instructions that: she had no knowledge of the Court proceeding; she had no knowledge or understanding that their home could be lost as well as the lodge; had no knowledge about the consent judgment; and had never instructed Harwood Andrews to act for her. Mrs Siwicki also swore an affidavit in which she said, in essence, that if her husband Richard asked her to sign forms, she would do so. She was not involved, she says, in the discussions concerning the purchase of the lodge and how it was to be financed. She says she had no involvement in the business or the financial aspects of the lodge and that, “If I asked him [Richard] any questions it would cause great friction in our relationship”. She says she has never instructed Harwood Andrews to act on her behalf or to consent to judgment, nor did she know or think that her husband Richard was instructing that firm on her behalf.
It is here that I should refer to a critical piece of evidence that was adduced by the bank as part of this application to discredit her case, and moreover, to contend it was unsustainable. The bank subpoenaed Harwood Andrews to produce certain documents relating to the 2008 proceeding. One document produced was a two page facsimile dated 19 April 2009. The first page of the facsimile was on an informal letterhead of “Richard & Denise Siwicki” and addressed to “Philippa Long”, who is a solicitor at Harwood Andrews. The facsimile said:
CONSENT TO JUDGMENT AS REQUESTED.
PLEASE DO NOT FAX TO TURKS LEAGAL (sic).
I WILL CALL YOU IN MORNING.
THANK (sic)
(R. Siwicki)
There is no page two to the facsimile, but page three is a schedule of parties in the 2008 case as is required in certain Court documents, and alongside each of the parties’ names there is a signature. A signature appears underneath Mrs Siwicki’s name. There is no dispute that she signed it and did so at the request of her husband.
When an inquiry was made to Harwood Andrews about the missing second page of that fax, the bank was told that the missing page two was the same page two as the bank had sent. That is, page two of the fax was the first page (as a Court form) of the consent to judgment, and page three of the fax was the schedule of parties. Then, Harwood Andrews said this: “In regard to why the parties individually executed the schedule, we requested the parties to each execute the schedule in order to evidence each party’s consent”. None of this was disputed.
The significance of this document must have been present in Mrs Siwicki’s mind or that of her lawyer’s in this case. She says she had no choice but to sign it. In an affidavit in the 2008 proceeding she said this:
There was only one document that I recall Richard asking me to sign this year [2009]. In or about April, to the best of my recollection, Richard asked me to sign a one page document. I recall that it may have had the names of the parties to this proceeding, but nothing else, and that recollection is based on having been shown the document by my solicitor on 23 October, 2009. I asked Richard before I signed it ‘What is it for?’ and he answered ‘It is for the loan’. There was no other document or letter with that page when Richard gave it to me to sign.
As with all other documents that I was asked to sign by Richard, I believed that I had no choice and had to sign it if I was asked by Richard to do so, even where no or minimal explanation was provided by Richard. Until I was shown a Schedule to Consent to Judgment by my solicitor Mark Harris at a conference with him on Friday 23 October, 2009 I had no idea what the document I signed in April actually was.
Ultimately, the execution of the warrant was consensually stayed pending the application to set aside judgment. However, Mrs Siwicki eventually consented to have that application dismissed with costs because after a judgment by consent is authenticated, it cannot be set aside in the original proceeding and a new proceeding must be commenced for that purpose: see Spies v Commonwealth Bank of Australia[3] and McVey v St Vincent’s Hospital Melbourne Limited.[4] That is regarded by courts as a rule of convenience.
[3](1991) 24 NSWLR 691 at 693, 697 and 701.
[4][2005] VSCA 233 at [52].
That brings us to the present case.
The question in this proceeding is, or was supposed to be, whether the consent judgment in the 2008 case ought be set aside. That is, the Court is not concerned with any adjudication of legal defences that Mrs Siwicki thinks she might have to the bank’s claim as lender and mortgagee as originally made. The only question concerns the procuration of the consent judgment. The Court is now looking only to the settlement agreement that underpinned the consent judgment and seeing whether there is a pleaded and arguable basis for Mrs Siwicki to contend she is not bound legally by that settlement agreement: see Paolacci v Capital Finance Australia Limited.[5] Only in the event that Mrs Siwicki is successful in having the consent judgment set aside will the issues in the 2008 proceeding be re-enlivened to the extent that concerns her. Otherwise, the bank would be defending or prosecuting a claim to which it already has a judgment on the record.
[5][2009] VSC 31 at [35].
Yet, by a writ filed on 4 December 2009, the plaintiff sought a litany of orders not only setting aside the consent judgment, but also seeking to invalidate the mortgage over the Waurn Ponds home, and her guarantee. On the bank’s application, on 2 September 2010 I struck out the entirety of that statement of claim I did so because the pleading was more directed at the question of the enforceability of the mortgage and the guarantee, rather than the consent judgment. Paragraphs 20 to 48 of the statement of claim were explicitly directed to that object, but overall there was a commingling or a confusion between the procuration of the consent judgment and the substantive issues concerning the loan and mortgage, such as justified the striking out of the whole claim.
In addition, there was a real defect in what the law would regard as a crucial allegation. In essence, the statement of claim alleged she was labouring under a special disability or disadvantage such as made it unconscionable for the bank to rely upon the mortgage and the guarantee. The special disability as alleged was her lack of experience in business or commercial matters, her limited education, and her tendency to sign whatever she was asked to sign by her husband. Paragraph 33 of the statement of claim alleged that “The said special disability or disadvantage was, or ought to have been, sufficiently evident to the Bank …” Without that allegation, Mrs Siwicki has no case to set aside her consent to judgment. But, as I have said, the statement of claim commingled (maybe by design) the consent judgment with substantive questions concerning the enforceability of the security, to try and convey a case that it was unconscionable for the bank to rely upon the consent judgment when it “knew or ought to have known” of her special disability at the outset. But there are no particulars of that allegation that the bank knew or ought to have known.
Over the bank’s objection, I gave Mrs Siwicki leave to file an amended statement of claim. The bank had contended that no amendment could overcome the legal obstacles to the case. I ruled it was necessary that in any amended pleading she must she stipulate with precision the facts by which it is said the bank had such knowledge or was put on inquiry about the alleged special disability when the agreement giving rise to the consent judgment was made. It is to be kept in mind that there were, apparently, solicitors acting for her and the others.
Before continuing, it is just as well to recite a number of rather well known legal propositions in this field of law: [6]
(a)The Courts have exercised jurisdiction to set aside dealings on a variety of equitable grounds, capable of being described as fraud in equity. They are a species of unconscionable conduct by a party who stands to receive a benefit under a dealing which, in the eyes of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience.
(b)Relief on the ground of unconscionable conduct is usually taken to refer to a type of case in which a party makes unconscientious use of its superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage. That is distinguishable from undue influence.
(c)What is necessary for the prospect of equitable intervention is exploitation by one party of another person’s special disability or disadvantage. The exploitation can consist of active extortion of a benefit, or passive acceptance in unconscionable circumstances.
(d)Courts of equity have never intervened on the ground of folly, imprudence, or want of foresight on the part of the person seeking to set aside the dealing. However, improvident, unreasonable or unjust a transaction may be, it is binding unless there is affirmative proof of unconscionable conduct in accordance with principle.
(e)The special disability or disadvantage must be known to the creditor. If there is no actual knowledge of the disability or disadvantage, but an awareness of the possibility that the situation may exist or an awareness of facts that would raise the possibility in the mind of any reasonable person, the result will be the same. What must be known, or should have been realised, is that the plaintiff was not able to make a judgment as to what was in his or her own best interests. In decided cases, the facts have been strong, and as a matter of practical content, the conduct has “smacked of fraud”.
[6]These are largely drawn from Meagher Gummow & Lehane’s, Equity Doctrines & Remedies, 4th ed, Chapter 12 and 16, Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447, Louth v Diprose (1992) 175 CLR 621 and Bridgewater v Leahy (1998) 194 CLR 457.
As this case involves a relationship between husband and wife, there is also hovering the special protection that equity gives a married woman who gives a guarantee for the benefit of her husband. That was reaffirmed in Garcia v National Australia Bank[7] based upon the High Court’s pre-existing authority of Yerkey v Jones.[8] The application of Yerkey does not involve a special disability. Rather, the rationale is that the creditor is taken to have appreciated that because of the trust and confidence between husband and wife, the wife may well receive from the husband debtor no sufficient explanation of the guarantee’s purpose and effect. The only question of notice is whether the creditor knew at the time of taking the guarantee that the surety was married to the creditor.
[7](1998) 194 CLR 395.
[8](1939) 63 CLR 649.
But Garcia concerned only the relationship of husband and wife in the circumstances of the wife acting as surety. It does not apply where the wife is co-borrower and mortgagee: see Narain v Euroasia(Pacific) Pty Ltd[9] following Elkofairi v Permanent Trustee.[10]It would likewise not apply to an agreement to consent to judgment. Mr Harris did not contend otherwise.
[9][2009] VSCA 290.
[10][2002] NSWCA 413.
With those principles in mind, I turn to the amended statement of claim. The defendant submits the amended statement of claim still suffers from the same problems as led to the first strike out, and it seeks to strike out a second time. It says there ought be summary judgment for the bank as the case cannot possibly succeed on the known facts.
I view paragraphs 10 and 11 as dominating Mrs Siwicki’s amended claim. She says she never instructed Harwood and Andrews to act for her in the 2008 proceeding, and they had no authority “whether express, implied or ostensible” to act for her in that proceeding, to file an appearance and a defence, or to agree to consent to judgment. From there she alleges she was not served with the writ and is therefore entitled to set aside judgment as irregularly entered. But more pertinently, she says she is not bound by the consent to judgment because it was made without her authority. None of this of course concerns any case of special disability. But as I will show, it does require an allegation and proof of the bank’s knowledge.
The “no service” allegation is a technical evasion, or is pointless. If the consent to judgment was in the eyes of the law not binding on her, then the plaintiff’s object is met and the procedural question of service is of no moment. But if she is bound by her consent to judgment, her legal obligation independently accrued, and the procedural question of service of the writ is irrelevant.
Mrs Siwicki then puts three alternative cases. First, she says the consent was a disposition of an interest in land which was not evidenced in writing as required under s 126 of the Instruments Act, and the consent was therefore of no effect. I wish to deal with that instantly by saying it is misconceived. The disposition is not the consent judgment at all; it is the underlying transactional documents and, above all, the mortgage which certainly is in writing and signed. As a second alternative, she says she gave the consent under the undue influence of her husband Richard. Thirdly, says she signed the consent “under a serious mistake about its…contents in relation to a fundamental term.” That is a plea of non est factum: see Petelin v Cullen.[11] Such a case carries a very heavy onus. It is not enough that a person signing a document was confused, or may not have had a good or even adequate understanding of it. [12]
[11](1975) 132 CLR 355.
[12]See generally, Chesire & Fifoot’s Law of Contract, (9th ed), 12.68ff.
The allegations against the bank do not start until paragraph 30. That paragraph says:
The bank was, or ought to have been, aware that circumstances existed which indicated that Denise was under a serious mistake about the content or subject matter of the Consent to Judgment (to the extent that she ever agreed to it, which is denied) and the Schedule of Parties.
The pleading does not state or describe what the “serious mistake” was. Moreover, and far more importantly, there are simply no particulars of the facts or circumstances by which it is alleged the bank had such knowledge or was put on inquiry. The particulars as exist under paragraph 30 are cross-references to other paragraphs which, when examined, do not give particulars of that allegation at all. It is improper and unfair to allege a state of knowledge or enquiry as against the bank without any particulars to enable the bank to know the case it has to meet.
Paragraph 31 says the Bank was reckless or negligent because it did not make enquiries whether Mrs Siwicki understood or actually agreed to the consent to judgment, or did not insist that she have separate representation. But as far as the bank and its own solicitors were concerned, there were solicitors acting for the borrowers. The bank was not dealing with Mrs Siwicki or procuring her signature. All that the bank’s solicitor obtained was a consent to judgment signed by Harwood Andrews. It cannot seriously be contended that the bank should have questioned Harwood Andrews whether their client was seriously mistaken about agreeing to consent to judgment. Any question about separate representation for Mrs Siwicki was not a matter for the bank to concern itself; but a matter for the borrowers or Harwood Andrews should any of them have perceived a possible conflict of interest. But as far as the bank was concerned Mrs Siwicki and her husband were joint borrowers and mortgagors. I regard this allegation as unsustainable.
Paragraph 32 still propounds a case in unconscionability. She alleges she was under a special disability when dealing with the bank “insofar as the prior proceeding [i.e., the 2008 proceeding] was concerned, such that there was an absence of any reasonable degree of equality between her and the bank”. But for present purposes the relevant “dealing” can only be her signing the consent to judgment, and that was an act procured by her husband, not the bank This allegation seems to return to the underlying transactions rather than the consent to judgment. That was the defect which led to the first strike out.
In any case, equitable principle does not apply merely because there is a difference in bargaining power or equality. According to the principles I have already exposed, there must be a special disability, known to the bank, which seriously affected Mrs Siwicki’s ability to make a judgment as to her own best interests when it came to giving consent to judgment.
The particulars to paragraph 32 cannot make good the principal allegation. They refer first to a lack of authority given to Harwood Andrews to act for her. That is her first case. I cannot see what that has to with a special disability. The particulars then repeat matters such as her inexperience as a housewife, her husband’s lack of experience, her absence in any dealings with the bank, their undercapitalised state, and their foray into an improvident transaction. That is said to be a special disability. The particulars then say:
The bank knew or ought to have known of the matters alleged … by reason of the information provided to the bank in the loan application to the bank made by Richard. Further particulars will be provided after discovery. The said matters ought to have alerted the bank that separate legal representation was required for each of the parties, and in particular, for Denise.
The loan application, again, concerns the underlying transaction not the consent to judgment. It is not apparent to me how a loan application might lead the bank to question her solicitors about the voluntariness of her later consent to judgment or question them about the possible need for separate legal representation. If there was a conflict of interest between Mrs Siwicki and her husband, that would have been something for Harwood Andrews to determine and advise accordingly.
The same problems appear in paragraph 33 and 34. The allegation is made that the special disability was, or ought to have been, sufficiently evident to the bank. The particulars do not sustain the allegation let alone truly particularise it. They refer to a telephone conversation from her new solicitor in 23 October 2009, which is after the judgment was authenticated and after a warrant of possession issued. From there, the pleading states that she did not bring a free will to the consent to judgment, or, that it is unconscionable for the bank to rely on it.
All in all, there is simply no allegation which adequately particularises the facts or circumstances by which it is alleged the bank knew or ought to have known about the plaintiff’s alleged special disability or disadvantage in agreeing to consent to judgment. I can see a forensic desire to say that the disability which was present when she signed the consent was present back at the time when she signed the mortgage. That special disability seems to be a willingness to do what her husband asked her to do. But as this case is outside the equity recognised in Yerkey v Jones, what remains indispensable is the need for facts to plead the bank’s knowledge of her special disability, or facts to put them on enquiry.
For those reasons, in my view, that component of the plaintiff’s case which, in essence, alleges an equity against a bank is unsustainable and ought be struck out. The paragraphs are numbered 27 to 44. I am not willing to grant leave to file another amended statement of claim. I see no injustice in dismissing this part of the claim. I think it undesirable for Courts to repeatedly allow amendments, only to find repeated applications to strike out. They lead to an enormous accumulation of costs and delay which is to be eschewed in modern litigation. Having been given the opportunity, and a ruling, to plead with precision how and in what way the plaintiff says the bank knew or ought to have known about a special disability or invalidating circumstances, the plaintiff has simply failed to do so and seems to be returning to mixing up the consent to judgment with the procuration of the underlying mortgages.
I think the only real question to consider in this case is whether the facts as alleged give Mrs Siwicki an arguable case that she is not bound by the judgment because she never instructed Harwood Andrews and the firm never had the authority to agree to consent to judgment on her behalf. It will be a question of the firm’s actual or implied authority because she alleges (and has sworn) she made no representation to the bank that Harwood Andrews were her solicitors and the bank does not say she did. And by the doctrine of ostensible or apparent authority, it is not enough that the agent hold itself out as having authority. The representation, forming the estoppel, must come from her as principal or someone acting on her behalf. There are pragmatic exceptions to that rule where an agent would normally have authority if certain facts were true, and the agent gives the impression they are: see Bowstead & Reynolds on Agency.[13] That is particularly so in the case of professional agents.
[13](19thed, 2010) at 8-023
In the ordinary conduct of litigation with lawyers involved, there is usually no occasion for one party to question the authority, or limits of authority, of a lawyer that is engaged for the party. If a lawyer states that “I act on behalf of X”, is the lawyer for an opposing party to question whether that is truly so? When an appearance or a defence is filed on behalf of six defendants should the plaintiffs lawyer ask to be satisfied that there truly is authority to act for all six? Should a plaintiff’s lawyer by-pass the solicitor on the record and make its own enquiries of a particular defendant or a client if he or she truly did authorise the lawyer to act? Of course not. More to the point, is a lawyer to ask an opposing lawyer whether that lawyer has exerted undue influence on a client or if someone else has? Of course not.
That is because, as was said in Toll v Alphapharm[14] the question whether one person authorised another to do an act on her behalf is best answered by considering for whose benefit or in whose interest it was intended it should be done. That is a corollary to the legal principle that authority to act as agent includes only authority to act for the benefit of the principal: see Bowstead &Reynolds on Agency.[15] A solicitor would not normally say he or she was acting or have authority unless such facts were true. That is how the administration of justice is administered by professionals bound by ethical duties. Otherwise, why take the responsibility, or risk being liable for breach of warranty of authority? When Harwood Andrews take steps in the Court on behalf of all six defendants, the bank is entitled to assume they are authorised to act unless some facts arise to seriously put that in question.
[14](2004) 219 CLR 165 at 190, [70].
[15]19th edition (2010) at 3-007.
There are cases where a lawyer exceeds his or her authority or a client complains that an act occurred, such as settling a case, under the undue influence of a lawyer: see Harvey v Phillips [16] and Wandel & Goltermann GMBH v Wandel Global Services Pty Ltd. [17]Here, Mrs Siwicki is going further to say that Harwood Andrews were not instructed to act at all. She says in effect they were strangers to her.
[16](1956) 95 CLR 235.
[17][2002] FCA 1609.
To my mind, the question is one of actual authority by express agreement or implied agreement. That question has to be analysed by reference to Mrs Siwicki signing of the “schedule of parties” document. That fact is not disputed. As far as Harwood Andrews and the law of agency are concerned, that is the signification of Mrs Siwicki’s actual (express) authority to proceed on her behalf.
It is apparent on the evidence that Harwood Andrews took the prudential step of having each defendant sign the schedule of parties to signify personally their assent for them to then proceed to deal with the bank on a consent judgment. If Mrs Siwicki contends that her signature on that authority was given by her under the duress or undue influence of her husband or as a result of some other invalidating circumstances attending her husband’s actions then it must be pleaded and established that the bank knew or ought to have known of such matters, or knew or ought to have known that such matters might affect the reality of Harwood Andrews being properly instructed to act for her, or the reality of her consent. The facts as alleged in the amended statement of claim are incapable of making such a case. The affidavits Mrs Siwicki has filed already make it clear she cannot make such a case, and she has said no more.
The point was authoritatively dealt with in Tresize v National Australia Bank.[18] That was a case to set aside a consent judgment as a result of duress or undue influence exercised by the plaintiff’s own legal representative. It was summarily dismissed, and affirmed by a Full Court of the Federal Court. It was held that the plaintiff would have to show actual knowledge or belief on the part of the creditor about the facts constituting the alleged duress or undue influence. Further, the Court found in the context of any litigation, particularly where both sides are represented by solicitors, one party does not owe to the other party any obligation to ensure that the other party will be fairly and properly treated by his or her own legal advisers.
[18](1994) 122 ALR 185.
There is no basis for alleging that the bank ought to have made inquiries to satisfy itself that Mrs Siwicki was not subject to undue pressure or some other impropriety from her husband or for that matter, from Harwood Andrews, nor checking to see is she was receiving proper advice from them when it came to signing the consent to judgment: see Euroasia (Pacific) Pty Ltd v Narain.[19] As far as the bank knew, there were solicitors acting. If there was a conflict of interest between Mrs Siwicki and her husband, that would have been something for Harwood and Andrews to determine and advise accordingly. In any event, even if there was some apprehension that she required separate legal representation, that does not indicate to an honest and reasonable person that she had been subject to undue influence in signing the consent judgment.
[19][2008] VSC 153 at [158].
It is well established that the Court’s power to summarily dismiss a case must be sparingly exercised. A case has to be untenable or bound to fail. Where the essential facts are not in dispute, I think in modern litigation, Courts ought not be diffident about deciding questions about the sustainability of a claim even if, as happened here, there has to be substantial argument and analysis of legal matters.
I do not think Mrs Siwicki has disclosed a cause of action, having been given two opportunities to do so. The injustice she would seek to demonstrate was, according to her statement of the facts, suffered at the hands of her husband. Even then there is a question, as between them, whether it truly was a case of duress, or her unwillingness to get in the way of a “dream project”.
In cases such as this, Courts are careful to see if there is some basis to say a case must be investigated where there are possible signs of a creditor’s exploitative conduct or a shutting of eyes to a wrong. But such signs are not apparent here. As counsel for the bank submitted, when one closely analyses the case, the sum total of what is actually put against the bank is that the consent judgment should be set aside because the bank knew that she was married and that she had the same solicitors as her husband. The bank has not been shown to be the wrongdoer, or to have done anything wrong. It has a perfected consent judgment which ought not be set aside judgment.
In my view there ought be judgment for the defendant under rule 23.01.
I shall hear counsel on the precise form of orders.
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