Poulos v Commonwealth Bank of Australia Ltd

1. [1]

   THE COURT: Almost 30 years ago, the Commonwealth Bank of Australia (CBA) obtained a judgment for possession of a property in South Cronulla owned by Hacide Pty Ltd (Hacide), [1] a company controlled by the present applicant Mrs Patricia Poulos and her husband Mr John Poulos, who were also defendants in those proceedings. An appeal to this Court from that judgment was dismissed. [2] In January 2018, Mrs Poulos commenced new proceedings in the Equity Division, against Mr JD Elliott as first defendant and CBA as second defendant. On 12 April 2019, Kunc J summarily dismissed those proceedings as against CBA. Mrs Poulos seeks leave to appeal to this Court from that dismissal.

Background

1. [2]

   In 1989, Hacide was registered as the proprietor of an estate in fee simple in a property at South Cronulla (Number 52). The applicant, her husband Mr John Poulos and their two children, Colin Poulos and Kathryn-Anne Poulos, resided in Number 52. Two mortgages were registered on the Certificate of Title for Number 52. The relevant mortgage, pursuant to which CBA claimed possession, was granted to CBA by Hacide and was registered on 8 May 1986.

2. [3]

   Sully J found that, in response to an application by Hacide dated 1 May 1985, for “accommodation … from time to time by way of overdraft, accepting, endorsing or discounting bills of exchange drawn by the applicant or in the applicant's favour or other accommodation approved by the Bank from time to time”, CBA provided accommodation to Hacide by way of a bill discount facility, which was “rolled-over” on maturity. That “rolled-over” facility allegedly matured in May 1986 and was not thereafter “rolled-over” further. Hacide was debited in the books of CBA with the face value of the “rolled-over” bill, and with various charges, costs and fees associated with the “rolling-over” of the original bill. The debt remained outstanding (save for an amount of $10,000 paid in February 1987) at the time of the trial before Sully J. CBA, having unsuccessfully demanded repayment of the outstanding debit balance, brought proceedings against Hacide claiming possession of the subject property. The occupiers of Number 52 – Mr Poulos, Mrs Poulos and their two children – were joined as additional defendants on their own applications.

3. [4]

   Before Sully J, the Poulos interests conceded that the case made in chief by CBA established a prima facie entitlement to the relief claimed, but sought to meet that prima facie case by contending:

   1. (1)

      that CBA had been guilty of fraud in connection with the subject mortgage;

   2. (2)

      that CBA and the defendants had never been ad idem as to the purpose of the subject mortgage; and

   3. (3)

      that Number 52 was trust property, and Hacide in its dealing with the property was in breach of trust, of which CBA had knowledge, with the consequence that it was precluded from enforcing the mortgage.

4. [5]

   Sully J rejected each of those defences, and gave judgment for possession.

5. [6]

   In the earlier appeal (which was dismissed in 1991), Priestley JA, with whom Samuels and Clarke JJA agreed, recorded that Sully J’s findings based on credibility, and “the indisputable fact” that CBA had made $360,000 available, in accordance with Mrs Poulos’ directions, on the security of Number 52, had the effect that in the appeal her counsel was constrained to agree that CBA was entitled to possession of the Certificate of Title to Number 52 at least as security for an equitable mortgage for the amount advanced, so that the argument was confined to the narrow question whether CBA, although entitled to a mortgage of the land in equity, was not entitled to remain registered as mortgagee, because the registered document had not been filled in by the authority of the mortgagor. [3] However, his Honour described in detail the facts about which there “was or can be no serious dispute”, and made detailed findings of fact relevant to the commercial background and financial dealings between parties which included not only Hacide, but also Zeus Industries Pty Ltd (Zeus) (another company controlled by Mr and Mrs Poulos), the Australian and New Zealand Banking Group Limited (ANZ), Elders Finance and Investment Ltd (Elders), and another property owned by Hacide in Caringbah. His Honour’s judgment is the principal source for the following summary of the background against which Mrs Poulos’ complaints arose.

6. [7]

   In 1984, a group of companies of which Mrs Poulos was the principal, and which included Zeus and Hacide, held a substantial property portfolio. Prior to 1984, at least some of the properties secured a number of liabilities. In particular, Number 52 secured two liabilities: a first mortgage to Finance Corporation of Australia Ltd (FCA), and a second mortgage to ANZ. ANZ also held a mortgage over another property at Miranda, securing indebtedness of Mr and Mrs Poulos, and the total indebtedness was secured against both properties; it amounted to some $700,000. Mrs Poulos sought to refinance the various liabilities, with a single lender, for which she sought a loan facility of $1.5 million. The first choice of lender was Elders, from which she sought a loan of $1.5 million, to be secured over a portfolio of ten properties, which did not include Number 52. Some sort of arrangement with Elders had been made in early 1984, which Mrs Poulos expected to settle by May 1984, but this did not materialise.

7. [8]

   In about August 1984, Mrs Poulos approached CBA’s Caringbah branch to explore an alternative source of finance; she had also contacted finance brokers to see if they could source a similar facility. In the course of discussions with CBA, it was suggested that Zeus might open an overdraft account with CBA’s Caringbah branch, to be secured by deposit of a title deed in respect of a property owned by Hacide; presumably, this was in order to re-establish a banking connection with that branch.

8. [9]

   In October 1984, CBA’s Corporate Banking Division decided that it would not provide the $1.5 million facility for which Mrs Poulos had applied, although this was not communicated to the Caringbah branch, which was the point of contact with Mrs Poulos, until 5 November 1984. CBA’s reasons for declining the business included that the security offered, which included Number 52, was inadequate. However, in the meantime, Zeus had opened an overdraft account with the Caringbah branch, secured by deposit of the title deed to Hacide’s Caringbah property.

9. [10]

   On or about 30 November 1984, Morgoode Dunn Australia Ltd, mortgage brokers, wrote on behalf of Hacide and Mr and Mrs Poulos to CBA seeking a loan of $550,000 by way of fixed rate bills on the security of a registered first mortgage over Number 52. This application was approved, subject to valuation, and the essential details of CBA’s offer were set out in a letter dated 6 December 1984 from the Caringbah Branch to Hacide – including that the security for the loan was to be No 52.

10. [11]

    On 19 December 1984, at a time when settlement with Elders appeared imminent, Mrs Poulos discussed the bill facility with officers of the Caringbah branch, and also a request for short term accommodation of $38,500. In circumstances where Hacide’s Caringbah property was intended to form part of the security offered to Elders, and CBA was proposing to advance in excess of $500,000 on the security of Number 52, CBA agreed to provide the short term accommodation requested, on the basis that it would attend the settlement with Elders and hand over the certificate of title to the Caringbah property, in return for discharge of the short term accommodation. As Priestley JA observed: [4]

11. [12]

    However, the valuation of Number 52 proved insufficient to support an advance of $550,000, and the approval was reduced to $364,000 gross ($330,000 net).

12. [13]

    In preparation for settlement of the Elders refinance on 3 May 1985, the loans officer at Caringbah branch, Mr Wilson, completed and dated a number of documents which had been signed by Mrs Poulos on behalf of Hacide, including an authority and direction to CBA to pay the proceeds of the bill discount facility by crediting an amount sufficient to clear Zeus’s overdraft and paying any remaining proceeds to PA Somerset and Co (the solicitors then acting for the Poulos interests), upon receipt of discharges of the two registered mortgages over No 52 and the certificate of title for No 52, and also to release the certificate of title for Caringbah to PA Somerset and Co. As Priestley JA observed, the amount to be supplied by CBA was not on its own sufficient to discharge the mortgages over No 52, and authority and direction must have been prepared in the belief that the proceeds of the facility would be used in connection with a simultaneous transaction or transactions, in the course of which Zeus’s overdraft with CBA would be cleared, the certificate of title (to Caringbah) which had been lodged as security in respect of that overdraft would be released to the Poulos’ solicitor, the mortgages over Number 52 would be discharged, and the certificate of title to Number 52 then handed to CBA. [5]

13. [14]

    His Honour explained: [6]

14. [15]

    In respect of the 3 May 1985 settlement, his Honour, drawing on post-settlement letters written by Mr Fordyce to Mrs Poulos on 3 May and 6 May 1985, and on Bank documents including the settlement instructions, said: [7]

15. [16]

    In his letter to Mrs Poulos of 6 May 1985, Mr Fordyce also reported that, on settlement:

    1. (1)

       The ten certificates of title were delivered to Laurence and Laurence (the solicitors for Elders). As Priestley JA observed, this was part of the arrangement by which Elders advanced money to the Poulos interests, to be secured by mortgages of the ten properties.

    2. (2)

       Land tax as assessed up to and including the 1985 land tax years was paid.

    3. (3)

       The certificate of title for Number 52 was delivered to CBA “in respect of its security”, adding that although CBA attended the settlement, he did not believe that Laurence and Laurence were aware of the mortgage advance CBA was making to assist the transaction. In this respect, Priestley JA observed: [8]

16. [17]

    His Honour continued: [9]

17. [18]

    Before Sully J, Mrs Poulos had denied that she had ever dealt with Morgoode Dunn, or authorised them to seek a loan of $550,000; that Hacide had ever applied to CBA for any bill discount facility or for any other type of loan; that Number 52 had ever been offered as security for any loan; and that she was aware of any bill discount facility claimed by CBA to be on foot until after she received a written demand from CBA dated 2 February 1987. These denials were rejected by Sully J, who found that “there is overwhelming evidence to the contrary and I accept it”. In rejecting the evidence of Mrs Poulos, Sully J did not make a finding that she was deliberately untruthful. Rather, his Honour found that “on a significant aspect of the case her evidence is, for whatever reason, demonstrably unreliable”.

18. [19]

    In the Court of Appeal, Priestley JA concluded: [10]

Judgment of the primary judge

1. [20]

   In January 2019, the applicant commenced new proceedings, seeking, relevantly:

2. [21]

   Relief was also sought against Mr Elliott, the first defendant. CBA filed a motion seeking summary dismissal of the proceedings as against it. Mrs Poulos countered with motions for leave to amend her statement of claim, and for summary judgment. All three motions were heard and determined by Kunc J on 12 April 2019. [11] His Honour said that the real question was whether Mrs Poulos was able to demonstrate any basis on which it could be said that the judgment of Sully J had been obtained by fraud. [12] The test applied by his Honour was derived from Wentworth v Rogers (No 5). [13]

3. [22]

   Mrs Poulos was invited to identify what “new evidence” she relied on in addressing that question, and identified six documents as forming the basis of her contention that Sully J’s judgment had been obtained by fraud. [14] His Honour discussed each of those documents, [15] and concluded that Mrs Poulos had failed to demonstrate any proper basis to seek to have the judgement of Sully J set aside for fraud. [16] His Honour therefore summarily dismissed the proceedings as against CBA as an abuse of process. [17] Mrs Poulos’ motions for leave to amend and for summary judgment were dismissed, and costs were awarded against her on the indemnity basis. [18] His Honour made the following orders:

4. [23]

   Whilst the primary judge found that the first defendant (Mr Elliott) had not properly been served, no dispositive orders were made by his Honour in the case of the first defendant. The only order made in relation to the case against first defendant was to stand the proceedings over for directions before the Registrar.

Application for leave to appeal

1. [24]

   Leave to appeal is required because the decision of a judge exercising the power in Uniform Civil Procedure Rules 2005 (NSW) r 13.4 to dismiss proceedings summarily is interlocutory for the purposes of determining whether an appeal lies by right or requires leave, even though the effect of that decision is to dismiss a party’s proceedings. [19] That said, it is a grave step to deny a litigant a final hearing, and despite the legal interlocutory nature of a summary dismissal, it has a practically final effect. For that reason, if arguable error were demonstrated, there would often be a good case for leave to appeal in such a case, even in the absence of any question of principle or of public importance.

2. [25]

   The summons seeking leave to appeal contained numerous overlapping grounds. Ms F Roughley, who appeared for CBA, conveniently grouped those grounds of appeal into three questions which provide an appropriate structure for examination of the applicant’s claim, although we consider them in a different sequence:

   1. (1)

      Did the primary judge err in concluding that, absent some “new discovery of something material”, the applicant was precluded by the principles of res judicata and abuse of process from seeking to impugn judgments delivered almost thirty years ago in separate proceedings involving the applicant and CBA: Grounds 1 (“Reliance”), 2 (“Vexatious”), 6 (“Res Judicata”) of the Applicant’s Summary of Argument?

   2. (2)

      Did the primary judge err in concluding that the applicant had not tendered evidence of some “new discovery of something material” or “fresh facts” which might provide a reason for setting aside the earlier judgments on the basis that they had been obtained by fraud: Grounds 8 (“Fresh Evidence”), 9 (“Fraud”), 10 (“Bias”)?

   3. (3)

      Did the primary judge err in determining, consequent upon the conclusions reached in respect of the above, to refuse the applicant leave to amend and to dismiss the proceedings thereby requiring no defence from CBA: Grounds 3 (“Leave to Amend”), 4 (“No defence”)?

3. [26]

   Ms Roughley’s categorisation omits Ground 5 (“Service”). As we have said, the primary judge observed that the first defendant, Mr JD Elliott, had not been served. Ground 5 appears to dispute that conclusion. However, as has been noted, no substantive orders were made by the primary judge about the case against Mr Elliott, and it is unnecessary on this application for leave to appeal from the orders of the primary judge to say any more about that matter.

4. [27]

   The applicant filed two sets of written submissions, which we have taken into account. The second set of submissions comprised 30 pages of detailed factual submissions, essentially analysing and contesting factual findings made by Sully J and Priestley JA in the earlier proceedings.

Consideration

1. [28]

   As the primary judge rightly observed, the real question for determination was whether Mrs Poulos was able to demonstrate any basis on which it could be said that the judgment of Sully J had been obtained by fraud. [20] In this respect, his Honour referred to the principles stated in Wentworth v Rogers (No 5). [21] The applicant’s submissions do not cavil with those principles as providing the correct legal framework for consideration of the case. Of them, the second is of greatest present relevance:

2. [29]

   Other relevant principles, as stated by Kirby P, include that it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge; that the burden of particularising allegations of fraud and establishing those allegations “by the strict proof which such a charge requires” is born by the applicant; [22] that it is for the applicant to demonstrate that “the new facts are so evidenced and so material that it is reasonably probable that the action will succeed”, [23] and that a high threshold is required having regard to the public interest in finality of public litigation and in “upholding judgments duly entered at the termination of proceedings in the courts”. [24] On an application for summary disposal, a defendant undertakes to show that, having regard to those principles, the claim is doomed to fail.

3. [30]

   In her original summary of argument and draft Notice of Appeal, the applicant contended that the primary judge failed to permit her to present her case in a meaningful manner such as to give rise to an apprehension of bias. In large part, elaboration of this contention was addressed to the case against Mr Elliott, which as has been explained does not call for comment by this Court. In any event, the primary judge invited the applicant to identify all of the material relied upon to constitute “fresh facts” of the kind required by Wentworth v Rogers to impugn an earlier decision for fraud. [25] She identified six. The primary judge proceeded to review each of the six documents so identified by the applicant. [26] In a context in which the real issue was whether the applicant was able to demonstrate any basis on which it could be said that the judgment had been obtained by fraud, and where as described by his Honour, “The statement of claim and the proposed amended statement of claim are not easy to follow”, that was a practical way fairly to deal with the real issue while focussing the argument on it. The applicant did not identify any issue or argument which she was unfairly precluded from advancing before his Honour.

4. [31]

   In relation to three of the six documents so identified as constituting “a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment”, the applicant “readily accepted that they were documents that were available to and known to her at the time of the hearing before Sully J”, [27] and they may be set to one side as not remotely constituting a new discovery of something material, or fresh facts. The remaining three documents relied on were:

   1. (1)

      a discharge of mortgage by ANZ to Hacide in respect of Number 52, bearing the date 15 August 1984 and registered, by CBA, on 23 May 1985 (the Number 52 ANZ discharge);

   2. (2)

      a discharge of mortgage by ANZ to Mr and Mrs Poulos in respect of Caringbah, also bearing the date 15 August 1984 and registered on 23 May 1985; and

   3. (3)

      a letter dated 3 May 1993 from Lincoln Smith & Company, Solicitors to the Professional Standards Department of the Law Society of New South Wales headed "re Mrs P Poulos", said to evidence that a loan had been made at the direction of Elders Landsworth Finance Limited to Glenwood Investments Pty Limited in Hong Kong.

5. [32]

   Mrs Poulos contends that these documents support inferences that a mortgage over Number 52 by Hacide to ANZ had been discharged months before the settlement on 3 May 1985 when CBA obtained its mortgage over that property; that no funds were advanced by CBA to ANZ to obtain that discharge; and that CBA had therefore somehow, illegally or improperly, obtained the certificate of title to Number 52, well before the 3 May 1985 settlement.

6. [33]

   Before Sully J, it had been Mrs Poulos’ case that she never intended nor agreed that Number 52 was to be security for any obligation (whether to Elders or to ANZ), and that CBA had obtained the title as security by some fraudulent or improper means. [28] Sully J rejected Mrs Poulos’ denial of conversations that she had agreed that Number 52 would secure an advance by CBA. In essence, Mrs Poulos contends that had these three documents – but in particular the Number 52 ANZ discharge – been available, the result would have been otherwise. At least implicitly, the underlying theory must be that had it appeared that CBA had covertly procured the certificate of title to Number 52 before the 3 May 1984 settlement, Mrs Poulos’ evidence that she never intended it to be available to CBA as security would probably have been accepted.

7. [34]

   Mrs Poulos was right to focus on the Number 52 ANZ discharge: the central proposition is that the Number 52 ANZ mortgage had been discharged, presumably by CBA, and the certificate of title for Number 52 provided to CBA, months before the 3 May 1985 settlement. The other two documents are, at best, merely corroboratory or confirmatory in nature.

8. [35]

   The primary judge dealt with these documents as follows:

9. [36]

   As is apparent from the passage extracted above, his Honour inferred that the Number 52 ANZ discharge was before both Sully J and the Court of Appeal, and for that reason could not meet the description of being a "new discovery of … fresh facts". Mrs Poulos submitted that his Honour was wrong to draw that inference.

10. [37]

    The inference was founded on the following statement in the judgment of Priestley JA: [29]

11. [38]

    That passage in Priestley JA’s judgment is presaged by the following introduction to his Honour’s discussion of the 3 May settlement: [30]

12. [39]

    It is clear that his Honour, in the statement “the first and second mortgagees must have been paid out at the settlement”, was drawing an inference from the fact that the mortgages had been discharged, rather than relying on direct evidence to that effect. The reference to exhibit A is by no means necessarily to the discharge dealings; it is more likely to have been a reference to the certificate of title, on which the registration date of the discharges would have been recorded. The proposition that the Number 52 ANZ discharge was not in evidence before Sully J was not shown to be unarguable, and on a summary dismissal application, governed by the well-known General Steels principles, an inference to the contrary ought not have been drawn. In that respect, his Honour erred.

13. [40]

    But it does not follow that his Honour’s ultimate conclusion, that Mrs Poulos had failed to demonstrate any proper basis for seeking to have the Sully J Judgment set aside as having been procured by fraud, is vitiated. New facts of themselves are insufficient; the applicant must demonstrate that “the new facts are so evidenced and so material that it is reasonably probable that the action will succeed”. [31] Mrs Poulos’ contention depends on the proposition that CBA had received the Number 52 ANZ Discharge and Certificate of Title in or about August 1984, being the date engrossed in typewriting on the dealing. This is not at all probable.

14. [41]

    First, in conveyancing transactions, documents are prepared in anticipation of, not following, settlement. While it may be best practice for documents to be dated at settlement, they are sometimes dated in anticipation of settlement. In any event, they take effect from when they are delivered upon settlement, not from the date that appears on them. Thus it does not necessarily follow from the date the document bears that the Number 52 ANZ Mortgage was discharged on that date.

15. [42]

    Secondly, that it was not discharged on that date is confirmed by the fact that, as recorded by Priestley JA, ANZ was as at 12 March 1985 still claiming the amount secured by (inter alia) the Number 52 mortgage was $714,266.91. That could not have been so had it already been discharged.

16. [43]

    Thirdly, the Certificate of Title would not in any event have been held by ANZ, the second mortgagee, but by the first mortgagee FCA, which was not discharged until settlement on 3 May, when it was paid $84,027.13. So CBA could not have procured the certificate of title from ANZ.

17. [44]

    Fourthly, whereas (as Priestley JA thought) the cheque for $731,756.91 made payable by Elders to Mr and Mrs Poulos at the 3 May 1985 settlement must have been used to discharge the ANZ No 52 Mortgage, Mrs Poulos was unable to suggest how or from what source it was discharged, save to suggest that it must have been discharged by CBA, in order to procure the title. However, given that the ANZ Mortgage ranked behind the FCA mortgage, that CBA had taken a conservative approach to its lending decisions in respect of Mrs Poulos, and that its valuation of the property was $520,000, the notion that it would unilaterally expend some $700,000 to procure a position as second mortgagee after FCA is fanciful.

18. [45]

    For those reasons, the Number 52 ANZ Discharge, had it been before Sully J, would not have affected the rejection of the evidence of Mrs Poulos to the effect that she had never authorised any application to CBA for a bill discount facility and that Number 52 had never been offered as security for any loan. Accepting for present purposes that it could not at this stage of the proceedings be concluded that the Number 52 ANZ Discharge was not a “fresh fact”, nonetheless its availability would have made no difference to the outcome of the proceedings before Sully J.

19. [46]

    In her original summary of argument, the applicant also referred to twenty documents comprising Exhibit P2, and in particular one of them, being a “Discharge of Mortgage of Lensworth”, as providing fresh evidence of fraud. However, the submissions made in relation to that document are directed to the first defendant, and even if correct would not implicate CBA as being responsible for any fraud tainting the judgment. Even if the “Discharge of Mortgage of Lensworth” amounts to a “new discovery of … fresh facts”, and even if it were capable of establishing fraud as against the first defendant, it provides no basis for impugning the judgment in favour of CBA.

20. [47]

    CBA thus demonstrated that there was no reasonable prospect that Mrs Poulos would be able to discharge the burden of establishing the allegations by the strict proof which such a charge requires, and having regard to the high threshold applicable on account of the public interest in finality, because, to the extent that she could arguably point to any “new facts” at all, they were not such as would have affected the outcome. His Honour was therefore right to conclude that Mrs Poulos had failed to point to any proper basis for having the judgment of Sully J set aside as having been procured by fraud.

21. [48]

    Once it is determined that the judgment of Sully J is not amenable to being impugned for fraud, it is a complete answer to the applicant’s case that her claims have previously been litigated and adjudicated upon and may not be the subject of fresh proceedings. The primary judge’s conclusion that, in the absence of a triable case of fraud, principles of abuse of process preclude the applicant’s contentions was plainly correct.

22. [49]

    An attempt to relitigate an issue resolved in earlier proceedings in a court of competent jurisdiction may, depending on the facts, involve an abuse of process, even in the absence of an estoppel or res judicata. [32] In Reichel v Magrath, Lord Halsbury LC put this on the basis that “It would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again”. [33] In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said that proceedings should be stayed as an abuse of process “if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings”. [34] In Arthur JS Hall & Co v Simons, [35] Lord Hoffman identified the policies that underlie the doctrine as being, first, that a defendant should not be troubled twice for the same reason, and secondly, that there is “a general public interest in the same issue not being litigated over again”.

23. [50]

    Not only does a judicial decision finally resolve and close all those matters which are essential, or legally indispensable, to the conclusion, [36] but further, the parties will not be permitted to re-open the same subject of litigation in respect of matter which could have been but was not brought forward in the proceedings, and the estoppel extends not only to the points upon which the Court was actually required to adjudicate but “to every point which properly belonged to the subject matter of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time”. [37]

24. [51]

    In Tomlinson v Ramsey Foods Processing Pty Limited, [38] French CJ, Bell, Gageler and Keane JJ said (footnotes omitted):

25. [52]

    In UBS AG v Tyne, [39] Kiefel CJ, Bell and Keane JJ said:

26. [53]

    The applicant was a party to proceedings with CBA determined almost 30 years ago. The claims which she now seeks to raise are closely connected to the issues that were then in dispute, and the factual substratum relevant to the determination of those earlier proceedings. The applicant’s submissions in this Court seek to dispute and qualify many of those factual findings, made almost 30 years ago. That this is so is made clear by consideration of the detailed facts recorded by Priestley JA in the earlier appeal, which are to some extent summarised above, and fortified by the circumstance that at the core of the applicant’s present claim is that the judgments made 30 years ago would have been different had additional evidentiary material been available. This attempt to re-litigate findings of fact made almost 30 years ago is a quintessential demonstration of the “need for a strict approach to finality” explained by the High Court in Clone Pty Ltd v Players Pty Ltd (in liq). [40]

27. [54]

    Having concluded that the judgment of Sully J was not amenable to being impugned for fraud, and that the applicant’s proceedings were otherwise an abuse of process, the primary judge’s decision to summarily dismiss the proceedings, was plainly correct. It would only have perpetuated the abuse to permit the applicant leave to amend her statement of claim. There was no occasion for CBA to be required to file a defence or to give discovery in proceedings which were not maintainable: Grounds 3 (Leave to Amend), and 7 (Discovery).

Conclusion and Costs

1. [55]

   No arguable operative error has been demonstrated. Leave to appeal should be refused.

2. [56]

   In that event, CBA sought its costs, on the ordinary basis, although noting that an indemnity order had been made in the proceedings below. There is no reason why costs should not follow the event.

3. [57]

   The orders of the Court are therefore that the:

   1. (1)

      Summons be dismissed;

   2. (2)

      Applicant pay the Respondent’s costs.