Westpac Banking Corporation Ltd v Worldwide Enterprises Pty Ltd
[2010] VSC 159
•15 April 2010 (Ex tempore). Revised reasons published 23 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 6400 of 2008
| WESTPAC BANKING CORPORATION LTD (ABN 33 007 457 141) | Plaintiff |
| V | |
| WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741) & ORS | Defendants |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 26 March 2010, 15 April 2010 | |
DATE OF JUDGMENT: | 15 April 2010 (Ex tempore). Revised reasons published 23 April 2010 | |
CASE MAY BE CITED AS: | Westpac Banking Corporation Ltd v Worldwide Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 159 | |
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PRACTICE AND PROCEDURE – Writ alleging debt – One of three defendants seeks summary dismissal for want of prosecution or abuse of process on basis that full amount claimed has been paid – Plaintiff claims further liabilities exist and also that related proceedings in VCAT and Magistrates’ Court should be transferred to this Court as counterclaims – No basis at present for summary dismissal – Appeal from Associate Justice dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Third Defendant | The third defendant, Mr Morris Goodman, appeared in person | Not applicable. |
| For the Respondent/Plaintiff | Mr C J Nichol | Gadens Lawyers |
HIS HONOUR:
This is an appeal from an order made by Associate Justice Mukhtar on 5 March 2010.
In the writ, which was filed on 28 May 2008, the plaintiff, Westpac Banking Corporation (“Westpac”), made claims against the defendants (comprising a company and two individuals connected with the company) pursuant to an “all monies” mortgage and associated guarantee and loan documentation. From time to time thereafter default judgments were entered against all three defendants. In about November 2008, at a time when default judgments were on foot against each defendant, the second defendant, Mrs Greta Goodman, paid to the plaintiff an amount representing the entirety of the judgment debt, interest and costs as claimed by the plaintiff at that time. Subsequently, each of those default judgments was set aside as having been entered irregularly. Further background to this appeal, together with certain findings made by Associate Justice Mukhtar, are conveniently set out in “Other Matters” in his Honour’s order, as follows:
“1 The Second and Third Defendants have filed a summons filed 25 February 2010 seeking first, an order to dismiss the proceedings for want of prosecution, and secondly, an order for ‘punitive measures’ against the Plaintiff.
2 An affidavit of C Nigro sworn on behalf of the plaintiff on 3 September 2009 states that the judgment debt, interest and costs have been satisfied by payment received by the Plaintiff from the Second Defendant (who was the mortgagor and one of two guarantors) and it appears the Plaintiff and the Second Defendant made a deed of release, the terms of which the Court need not consider for present purposes.
3 Although it is a misconception to seek dismissal for want of prosecution, the Second and Third Defendants’ summons really is seeking a dismissal of the proceeding contending that all liabilities to the plaintiff have been paid, which the plaintiff now disputes. The plaintiff says there are residual liabilities.
4 The plaintiff[‘s] claim in this proceeding is based on an ‘all monies’ mortgage, guarantee and loan documentation which the plaintiff contends (but Mr Goodman disputes) are the subject of, or in some way connected with a proceeding commenced by Mr Goodman at VCAT and another proceeding in the Magistrates’ Court. Further, the plaintiff contends that the mortgage, guarantee and loan documentation stands as security for the costs that it has and will incur in defending the other two proceedings (which Mr Goodman also disputes).
5 The Plaintiff has filed an application in VCAT to transfer the VCAT proceedings to this Court because of the size and complexity of the claim and certain components of it which the Plaintiff contends are not justiciable in VCAT. In addition, the Plaintiff has applied to transfer the Magistrates’ Court proceeding to this Court with the VCAT proceeding in an endeavour to bring all disputes to the Supreme Court in the one proceeding. (In the Magistrates’ Court proceeding, an order is sought against the Bank to disgorge some monies which were paid in satisfaction of the mortgage and guarantee debt in this proceeding). To achieve that purpose, assuming the transfer applications are granted, it is expedient to preserve this proceeding which, the Plaintiff accepts, will have to be amended.
6 A further problem is that the Third Defendant is purporting to act as litigation guardian for his wife, the second defendant, but rule 15.03(2) requires a solicitor to act. The court has allowed Mr Goodman to address the court not by way of dispensation with that rule, but in order to give him an opportunity to respond to the plaintiff’s intentions concerning the future conduct of this litigation.
7 The Plaintiff has taken reasonable steps before today to explain its position to Mr Goodman and has requested him reasonably, so the court finds, to have the matter adjourned to avoid unnecessary expense.”
The Associate Justice made orders as follows:
“1. Paragraph 1 and 2 of the summons issued on 25 February 2010 be dismissed.
2.The summons stand, and be treated as a summons for directions in order to enable the Court to attempt to manage the litigation in the event that the VCAT proceeding and the Magistrates’ Court proceeding (as described in ‘Other Matters’) are transferred to this Court.
3.The summons for directions be adjourned to 16 April 2010 at 10.30 am in Associate Judges’ Court 2, Ground Floor, 436 Lonsdale Street, Melbourne.
4.The Third Defendant pay the Plaintiff’s costs of today, to be stayed until 16 April 2010. Such costs are fixed in the sum of $1200.00.”
The second defendant, Mrs Greta Goodman, is the wife of the third defendant, Mr Morris Goodman. Although the Associate Justice recited in “Other Matters” that “the second and third defendants” had filed the relevant summons, I note that the summons and the notice of appeal both recite that they were prepared by Mr Morris Goodman. There has been no solicitor on the record for any of the defendants at any stage in this proceeding. Mrs Greta Goodman did not attend before the Associate Justice or before me. I have had regard to a medical report concerning Greta Goodman handed up by Mr Goodman today, which will be retained on the file. I am not satisfied that Mrs Greta Goodman should be regarded as having been duly included as a party to the summons or to the appeal. I am not satisfied that Mr Morris Goodman is or has been entitled to act as her litigation guardian in this proceeding. Accordingly, I will treat both the application made by the summons and the appeal as having been brought by Mr Goodman alone.
I have arrived at the conclusion that I should dismiss the appeal from the Associate Justice. Looking at the matter afresh myself, I would make in substance the same orders that Associate Justice Mukhtar made. I am not satisfied that Westpac has been guilty of inappropriate delay in the proceeding, or that the proceeding is an abuse of process in any sense relevant for the purposes of the relevant rules and principles.
There has been a great deal of activity in this matter since it was issued, including several applications on the defendants’ side for the setting aside of judgments entered in default, and then further applications on the defendants’ side seeking to have alterations made to the relevant orders so as to have recorded that the setting aside was on the basis of irregularity. Matters of that sort continued up until relatively late last year, and subsequently there has been interaction between the parties in relation to the question whether this proceeding should remain on foot in light of the existence of the proceeding at the Victorian Civil and Administrative Tribunal (“VCAT”) to which the Associate Justice referred, being a proceeding initially stated to have been brought by all of the defendants against Westpac but from which Mrs Greta Goodman later withdrew, and also the proceeding in the Magistrates’ Court to which the Associate Justice referred, being a proceeding stated to have been brought by Mr Goodman, Mrs Goodman and Worldwide Enterprises Pty Ltd against Westpac.
Westpac’s application in VCAT to transfer the VCAT proceeding to the Supreme Court will apparently be listed for hearing in the relatively near future. That is one of the bases on which Westpac submits that there is a point in continuing this proceeding. Westpac submits, and I accept, that the VCAT proceeding is interconnected with the alleged facts and circumstances of the loan documentation, guarantees and mortgage on which this current Supreme Court proceeding has been based.[1] Similarly, the claim in the Magistrates’ Court is for the recovery back of some of the money paid over by the second defendant in consequence of the claims made against all three of the defendants by Westpac in this proceeding. Accordingly, this Supreme Court proceeding may serve as an appropriate repository should it happen that either VCAT or the Magistrates’ Court is persuaded by Westpac to order a transfer to this Court. Any claim so transferred could be re-framed as, or as part of, a counterclaim in this proceeding.
[1]Indeed, that is obvious from the relevant documents, especially from a comparison between, on the one hand, the three documents headed “notice of defence” prepared by Mr Goodman for use in this proceeding which comprise exhibit “MGW 14” to the affidavit of Morris Goodman affirmed and filed on 14 September 2009 (to which Mr Goodman referred me during the hearing of the appeal) and, on the other hand, the documents filed by the claimants in VCAT comprising exhibit “RTH 1” to the affidavit of Robert Thomas Hinton herein.
Despite the reference to the Trade Practices Act 1974 (Cth) in one of the documents filed by the claimants in the VCAT proceeding, I accept for present purposes Mr Goodman’s statement to the effect that the proceeding at VCAT is intended to be based on the (Victorian) Fair Trading Act 1999 and not on the (Commonwealth) Trade Practices Act 1974, and that the claimants do not intend to rely on anything that is outside VCAT’s jurisdiction. Nonetheless, subject to s 111 of the Fair Trading Act 1999 (as amended), VCAT has the power to transfer a case that is wholly within VCAT’s jurisdiction to this Court if it thinks in all the circumstances that that would be appropriate. It may be that VCAT does not do it routinely or readily, but VCAT does do it from time to time. Indeed the annotations to s 77 of the VCAT Act in Pizer, Victorian Administrative Law at paragraph 77.80 include a fairly long list of cases in which VCAT has made a transfer order under s 77. It is true that the same paragraph contains an even longer list of refused applications, and that Mr Goodman expresses complete confidence that he will be able to resist the transfer application. However, that is a matter that I should not speculate about or pre-empt. I would only say that I am satisfied that there is at least some prospect that VCAT might be persuaded to order that the proceeding be transferred here, and similarly I am satisfied there is some prospect that the Magistrates’ Court might be persuaded to transfer the proceeding presently in that Court to this Court.
In addition Westpac relies on its stated intention to seek leave to amend its writ so as to make further claims against the defendants based on the self-same alleged mortgage, guarantees and loan documentation that are currently the subject of this proceeding. A proposed amended writ was handed up. It raises allegations about the costs and expenses to which Westpac has allegedly been put as a result of the VCAT proceeding and the Magistrates’ Court proceeding; and it alleges in substance that those costs and expenses are recoverable pursuant to the mortgage, guarantees and loan documentation.
Now Mr Goodman may or may not be able to show in due course that those proposed claims are not able to be sustained, but for present purposes it is enough that counsel for the plaintiff has stated that the plaintiff intends to seek leave to make the foreshadowed amendments.
So there are two independent, albeit partly related, bases for Westpac’s submission that this proceeding is not foredoomed to fail and is not being kept on foot as an abuse of process and is not a case that can appropriately be characterised as involving a want of prosecution within the meaning of Order 24 of the Rules.[2]
[2]In any event, I note that this proceeding could not be dismissed summarily at this stage as against the first or second defendant because neither is properly to be regarded as a party to any current application for such summary dismissal.
I take into account also that by declining to accept Mr Goodman’s application today for dismissal of the proceeding, I do not preclude him from making another application should he be so advised at a later stage, and in particular after the result of the pending applications at VCAT and in the Magistrates’ Court are known. Should it turn out that neither VCAT nor the Magistrates’ Court is prepared to order a transfer to this Court, Mr Goodman’s argument in favour of dismissal may gain strength. He would be at complete liberty to make a fresh application at that stage should he so desire.
Mr Goodman has resisted Westpac’s suggestions that his application for dismissal be adjourned pending the transfer applications at VCAT and in the Magistrates’ Court. Rather, he has sought to have his application for dismissal (and this appeal) dealt with as soon as possible and in advance of the transfer applications. I am not adjourning his application, but rather I am dealing with it on its merits as it stands at the moment, as he urges me to do. However, in the present circumstances, I can see no basis on which I could dismiss this proceeding summarily either for want of prosecution or as an abuse of process or otherwise, given the matters to which I have referred.
Subject to one minor matter, I will order that the appeal be dismissed. Given my view as to the proper disposition of the substance of the appeal, the parties agree that paragraph 3 of Associate Justice Mukhtar’s order should be varied so as to defer the return of the deemed summons for directions from tomorrow until a later date. Sensibly, the directions hearing should not come on until the outcome of the two transfer applications is known. With that in mind, I propose to nominate 27 May 2010 as the return date, but of course if, shortly before that date, the outcome of the transfer applications is still not known, the directions hearing would appropriately be further adjourned by consent.
Having heard argument as to costs, I will order that the appellant/third defendant, Mr Morris Goodman, pay the costs of the plaintiff/respondent, Westpac, fixed at $3,500.
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