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)

1. 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."

2. 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.

3. 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.

4. 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, and Mr Flamer‑Smith, a representative of the defendant. At the conclusion of the mediation, an agreement (“the settlement agreement”) was reached, reflected in a Heads of Agreement signed by the plaintiff, which required him to pay the defendant the sum of $400,000 by the earlier of:

1. 30 days after the delivery of judgment in separate proceedings brought by the plaintiff against Elders Rural Services Australia Ltd (“Elders”); or

2. 30 September 2018.

5. In late September 2018, as the time for payment was approaching, the plaintiff sought an extension of time to pay on the basis that he was still awaiting the publication of reasons in separate proceedings brought against Elders.

6. On 27 September 2018, the plaintiff filed a statement of claim in the District Court against the defendant, seeking to set aside the settlement agreement pursuant to the Trade Practices Act 1974 (Cth). In that statement of claim the plaintiff asserted, amongst other things, that he had decided to settle the proceedings at mediation "on the basis that he was running a case for about $5 million plus punitive damages against Elders, and the judgment should be published by no later than September 2018."

7. On 28 September 2018, the plaintiff wrote to the defendant's solicitors suggesting that he pay the settlement sum plus interest when that sum was received by him from Elders. That proposal was not accepted by the defendant who, on 16 October 2018, sought an order for judgment against the plaintiff for the outstanding settlement sum plus interest and costs. That motion was heard by Rees J in the Equity Division who, on 16 November 2018, delivered judgment for the bank against the plaintiff. [1]

   1. Bendigo and Adelaide Bank Ltd v Williamson [2018] NSWSC 1756.

8. The plaintiff's claim in the District Court was dismissed on 23 November 2018.

9. On 11 September 2019, the plaintiff commenced the present proceedings seeking that the settlement agreement be set aside. The statement of claim included the following pleading: [2]

“The plaintiff seeks to say that he was unwell in August 2017 which was 3 months earlier than the medical opinion”.

2. At para 5.

10. Having pleaded a number of other matters under the heading “Setting Aside the Agreement”, and having articulated that he sought that the settlement agreement be set aside, [3] the plaintiff repeated the fact that “he was unwell and could not maintain the litigation”. [4]

    3. At para 6.

    4. At para 12.

11. It is against that background that the question that I set out previously has been placed before the Court for determination. The defendant relied on a number of affidavits in support of its position on the separate question but in the circumstances which have arisen, it is not necessary for me to detail that evidence.

12. When asked to make submissions as to how the question before the Court ought be determined, the plaintiff said amongst other things:

“I withdraw any suggestion I was unwell […] I don’t think on reflection that I was under an incapacity […] I agree with Ms Avery‑Williams that I was quite able to understand and conduct the proceedings […] and I made that abundantly clear to my solicitors, PTW, who did not want to follow it.” [5]

5. T22.2; T22.15-T22.26.

13. The plaintiff’s reference to his previous solicitors is a reference to Pryor Tzannes & Wallis who most recently acted for him. The plaintiff has since withdrawn his instructions from those solicitors and has appeared on his own behalf before me today.

14. The statements made by the plaintiff make it clear that he withdraws any suggestion that he was under any legal incapacity in August 2017 when the proceedings brought by the defendant against him were the subject of the settlement agreement. In those circumstances, the question which has been referred to the Court must be answered in the negative.

15. The plaintiff has served (but has not filed) a notice of motion seeking leave to discontinue these proceedings. In the circumstances, Ms Avery‑Williams of counsel who appears for the defendant has submitted that in light of the statements made by the plaintiff set out above, there is no issue to be determined in the proceedings and that it is appropriate that they be dismissed. I accept that submission. There is no justifiable basis on which the proceedings should remain on foot given that the plaintiff has abandoned any suggestion that he was incapacitated.

16. That then raises the question of costs. The plaintiff did not cavil with the proposition that costs ought follow the event. However, he submitted that the execution of any costs order be stayed until such time as other proceedings that he has instituted, or may wish to institute, against another party or parties have been resolved. That submission appears to proceed on the assumption that any such proceedings will be determined in his favour and will result in the payment of an amount of damages to him. In my view, there is no proper basis for deferring the operation or execution of any costs order. The basis on which the plaintiff advanced the proposition that execution of a costs order be stayed was entirely speculative.

17. For all of those reasons, I make the following orders,

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.

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Endnotes

Decision last updated: 23 July 2020