Williamson v Bendigo and Adelaide Bank Ltd - [2020] NSWSC 934

Supreme Court

New South Wales

Medium Neutral Citation: Williamson v Bendigo and Adelaide Bank Ltd [2020] NSWSC 934
Hearing dates: 21 July 2020
Date of orders: 21 July 2020
Decision date: 21 July 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) The question for determination, namely whether the plaintiff was a person under a legal incapacity for the purposes of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) or in any other sense on 18 August 2017 when proceedings brought in the Equity Division against him by Bendigo and Adelaide Bank Limited which were the subject of a court annexed mediation, is answered “No”.
(2) Proceedings 2019/283383 brought by the plaintiff against Bendigo and Adelaide Bank Limited are dismissed.
(3) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

Catchwords:
PRACTICE AND PROCEDURE – Where plaintiff commenced proceedings to set aside settlement agreement on the basis of legal incapacity – Whether plaintiff a person under legal incapacity – Where plaintiff conceded that he was not under legal incapacity – No issue to be determined in the proceedings – Proceedings dismissed
COSTS – Proceedings dismissed – Where plaintiff sought stay of execution of costs order – No proper basis for staying execution of costs order – Usual costs order made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules (NSW)

Cases Cited:
Bendigo and Adelaide Bank Ltd v Williamson [2018] NSWSC 1756

Category: Principal judgment
Parties: Hugh Francis Arthur Williamson – Plaintiff
Bendigo and Adelaide Bank Ltd - Defendant
Representation:
Counsel:
Plaintiff – Self represented
A Avery-Williams – Defendant
Solicitors:
Turks Legal – Defendant

File Number(s): 2019/283383
Publication restriction: Nil

Judgment – ex tempore (revised)

On 19 June 2020, an order was made pursuant to s 61 of the Civil Procedure Act 2005 (NSW) and r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), for the determination of a separate question in the following terms:

"Whether the plaintiff was a person under legal incapacity for the purposes of Division 4 of Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) or in any other sense on 18 August 2017 when the Equity Division proceedings were the subject of a court annexed mediation."

The background to the formulation of that separate question is set out in the written submissions of counsel for the defendant. I draw the following summary from those submissions.
In August 2010, the defendant commenced proceedings against the plaintiff in Victoria claiming money due under a loan agreement entered into by the plaintiff in connection with an investment in what was known as the Great Southern Plantations Investment Scheme. The plaintiff filed a cross‑claim which was later discontinued when the proceedings were transferred to this Court.
On 18 August 2017, the parties to the proceedings attended a court‑annexed mediation. The plaintiff was self-represented at that mediation. The defendant was represented by Mr Gration of counsel, his instructing solicitor,…

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: [2020] NSWSC 934
Decision Date: 21 July 2020

CaseChat Overview and Summary

In the matter of Williamson v Bendigo and Adelaide Bank Ltd, the plaintiff sought to set aside a settlement agreement on the basis that he was under legal incapacity at the time of signing. The case was heard in the County Court of Victoria. The plaintiff subsequently conceded that he was not under legal incapacity at the time of entering into the settlement agreement, effectively rendering the primary issue moot.

The court had to determine whether the plaintiff was a person under legal incapacity at the time of entering into the settlement agreement. Given the plaintiff's concession, the court found that there was no issue to be determined in the proceedings, as the basis for setting aside the agreement no longer existed. The court concluded that the proceedings were effectively abandoned by the plaintiff's concession and were dismissed as a result.

The court also addressed the plaintiff's application to stay the execution of the costs order. It was found that there was no proper basis for staying the execution of the costs order, as the plaintiff had not demonstrated any exceptional circumstances warranting such a stay. The court proceeded to make the usual costs order against the plaintiff.

In conclusion, the proceedings were dismissed, and the plaintiff was ordered to pay the defendant's costs, as there was no valid basis to set aside the settlement agreement and no proper grounds to stay the execution of the costs order.

Orders