McCarthy v National Australia Bank

1. [1]

   HER HONOUR: By notice of motion filed 28 July 2020, the defendant seeks:

   1. (1)

      an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the whole or parts of the plaintiff’s statement of claim filed 26 June 2020 be struck out on the basis that it:

   2. (2)

      an order pursuant to UCPR 13.4 that these proceedings be dismissed as against the defendant on the basis that they are frivolous or vexatious; or in the alternative,

   3. (3)

      an order that the plaintiff be required to file and serve an amended statement of claim which complies with UCPR 15.3.

2. [2]

   The plaintiff is Warren Brian McCarthy. The defendant is the National Australia Bank (“NAB”). The plaintiff relied upon his affidavit dated 3 August 2020. The defendant relied upon the affidavits of its solicitors, Danielle Catherine Lysenko dated 28 July 2020 and Emma Jane Hodgman dated 31 August 2020. Both parties relied on their written submissions. For convenience, I will refer to the parties by name.

3. [3]

   At the hearing, the plaintiff appeared by telephone link, as was his preference. He was not legally represented, nor did he have his McKenzie friend, Elder John, present as he is unwell. Counsel for the defendant appeared via video link.

4. [4]

   There has been prior protracted history of litigation between the parties. I shall refer to some of it later in this judgment.

Background

1. [5]

   On 26 June 2020, Mr McCarthy filed a statement of claim against NAB as defendant. It relates to loans that NAB enforced against him in 2014.

2. [6]

   In both the statement of claim and proposed amended statement of claim (“PASC”), the relief claimed by Mr McCarthy against NAB is not specified, but rather expressed as relief to be determined “at the honour’s discretion”.

3. [7]

   The current proceedings arise out of loans which Mr McCarthy secured with NAB in August 2005. Mr McCarthy pleaded in the statement of claim that “the loan was unjust, [and that] income was deceitfully and fraudulently inflated, fabricated, [and] falsified to obtain a loan approval” ([1]). These are very serious allegations. They have never been particularised.

4. [8]

   To the extent that causes of action can be ascertained from the statement of claim, it appears that in addition to alleging fraud, Mr McCarthy alleges that NAB contravened responsible lending obligations ([2]); failed to comply with a subpoena ([3]); “failed to prove” its verification of income referred to in a NAB Customer Particulars Report ([3]); and contravened the Code of Banking Practice ([6]).

5. [9]

   In short, the current allegations focus upon NAB’s assessment of the serviceability of the loans it approved in favour of Mr McCarthy, and in particular, the recording of his income.

6. [10]

   On 15 July 2020, the solicitors acting for NAB notified Mr McCarthy that his claims appeared to be statute barred and included allegations of fraud that were not properly particularised.

7. [11]

   On 19 July 2020, Mr McCarthy replied to NAB identifying the loans which were the subject of the proceedings as follows:

8. [12]

   Mr McCarthy referenced a NAB customer particulars report that referred to him having a net monthly income of $5,818.33.

9. [13]

   On 5 August 2020, at the first directions hearing in these current proceedings, orders were made by consent to enable Mr McCarthy to amend his pleading.

10. [14]

    On 5 August 2020, Mr McCarthy served the PASC. It provided the following further details as to the allegations Mr McCarthy makes against NAB:

11. [15]

    It seems that the focus of Mr McCarthy’s claim remains that NAB has not properly answered a subpoena addressed to it, including the production of his original tax returns.

12. [16]

    In 2012, Mr McCarthy made complaints to the Financial Ombudsman Service (“FOS”) concerning the loans which are the subject of these proceedings.

13. [17]

    On 1 November 2012, the FOS provided the parties with its determination of Mr McCarthy’s complaint. It has no bearing on these current proceedings.

14. [18]

    To appreciate why NAB is seeking a strike out of Mr McCarthy’s current proceedings, it is necessary that I briefly set out the prior litigation between the parties in this Court.

15. [19]

    On 7 January 2014, NAB commenced proceedings against Mr McCarthy in relation to the debt owing to it and to take possession of a property which secured that debt. Mr McCarthy did not file a defence to that proceeding within time. On 28 February 2014, NAB obtained default judgment against him in National Australia Bank Limited v McCarthy [2014] NSWSC 1819 (“the NAB default judgment”).

16. [20]

    In November 2014, Mr McCarthy sought to set aside the NAB default judgment. Some of the submissions advanced by Mr McCarthy on that application before Hall J (at [51]) were:

17. [21]

    That is to say, Mr McCarthy made a similar allegation that NAB’s approval of its offer of finance to him had been procured by fraud.

18. [22]

    During the hearing before Hall J, Mr Peter Weingarth, the Business Banking Manager of NAB’s Business Banking Centre in Coffs Harbour, provided an affidavit dated 11 July 2014. His evidence was set out by Hall J at [36]-[42] as follows:

19. [23]

    Ms Bains, an associate of NAB’s Business Banking Centre, who was assisting Mr Weingarth, attended the meeting with Mr McCarthy and Mr Weingarth when Mr McCarthy signed the loan documents. She recalled Mr Weingarth pointing out certain aspects of the loan agreement, as set out in the NAB default judgment at [44]-[47].

20. [24]

    Having set out this evidence, Hall J stated at [80]:

21. [25]

    In respect of this aspect of Mr McCarthy’s claim, Hall J stated that allegations of fraud require the party alleging fraud to adduce evidence by which the cogency of the allegation may be determined. There was no evidence adduced on Mr McCarthy’s application in relation to the fraud allegations ([81]).

22. [26]

    Having found that there was no evidence to support Mr McCarthy’s proposed defence, Hall J dismissed his application to set aside default judgment ([83]).

23. [27]

    In McCarthy v National Australia Bank Limited [2015] NSWCA 32, Mr McCarthy applied for leave to appeal from the NAB default judgment. In the course of that application, Mr McCarthy obtained an adjournment in order to enable him to seek additional material by issuing a subpoena to NAB. If NAB was able to produce some documentation in response to the subpoena, or if instead it was to object to the subpoena, it was to do so by 16 March 2015 ([12]).

24. [28]

    Mr McCarthy did issue a subpoena addressed to NAB, by which he sought the documents relevant to these current proceedings. They were:

    1. (1)

       all loan applications for a loan between NAB and Mr McCarthy;

    2. (2)

       all documents regarding any assessment of any loan application between NAB and Mr McCarthy;

    3. (3)

       all loan offers between NAB and Mr McCarthy;

    4. (4)

       all documents regarding the discharge of any loan between NAB and Mr McCarthy; and

    5. (5)

       all documents regarding the assessment of any refinance of any loan and restructure of any loan between NAB and Mr McCarthy.

25. [29]

    On 13 April 2015 in proceedings 2015/13848, the issue of production of documents in relation to the subpoena was argued before the Registrar. Elder John, by power of attorney, appeared on behalf of Mr McCarthy. Mr Price, who appeared for NAB, said, “The subpoena has been complied with” (T 5.33). The following exchange then took place. Mr McCarthy said, “That is not reassurance for us, Registrar. We want an assurance that all documents have been supplied by the Bank and that is it” (T 5.42-45). After some discussion, Mr McCarthy was still not assured. Mr McCarthy said, “Registrar, if the Bank can’t give us the assurance that all the documents are there, we’d like to file another subpoena in compliance [with] Justice Basten’s orders please” (T 6.7-9). The Registrar replied, “Well, Mr McCarthy, the respondent has indicated that they have complied and produced in accordance with the subpoena so it now falls to you as to how you’re going to deal with that” (T 6 11-13). Mr McCarthy has not deposed whether he has inspected the documents that were produced by NAB.

26. [30]

    However, as the application for leave to appeal was not pursued by Mr McCarthy, the proceedings in the Court of Appeal were dismissed with costs on 1 May 2015 in McCarthy v National Australia Bank Limited (No 2) [2015] NSWCA 230 at [4].

27. [31]

    On 27 May 2015, Hamill J heard a second application to set aside the default judgment in National Australia Bank Limited v McCarthy [2015] NSWSC 731. Mr McCarthy appeared with Elder John as his McKenzie friend. Relevantly, he sought to strike out the default judgment on the basis that NAB had not complied with the Court of Appeal’s orders for a subpoena for disclosure of the full bank loan file, and that NAB had deliberately refused to produce documented information requested under the subpoena in order to “conceal fatal evidence exposing NAB to maladministration, fraud and unconscionable conduct” ([12]).

28. [32]

    As before, he alleged that NAB failed to assess serviceability in contravention of the Code of Banking Practice.

29. [33]

    Hamill J determined that the material advanced by Mr McCarthy did not disclose an arguable defence, as Mr McCarthy had provided no particulars or evidence in support of his assertions ([14] and [19]).

30. [34]

    On 23 July 2015, Adamson J heard Mr McCarthy’s third application to set aside the default judgment in National Australia Bank Limited v McCarthy [2015] NSWSC 1040.

31. [35]

    On the third application, Mr McCarthy adduced evidence as to his income in 2005, relying on his tax return for 2005 which showed a loss of $712 together with a forensic report prepared by an accounting firm. Mr McCarthy also relied on business records which showed that another financier had rejected his application for finance in 2005 due to serviceability issues ([10]-[12]).

32. [36]

    Adamson J stated at [28], [31]-[34]:

33. [37]

    Her Honour considered NAB’s submission in relation to abuse of process at [40]-[42]:

34. [38]

    Consequently, Adamson J held that Mr McCarthy had not established an arguable defence on the merits and there was no proper basis to set aside the NAB default judgment. The application to set aside the NAB default judgment was refused.

35. [39]

    On 27 November 2015, the Court of Appeal (per Meagher JA and Bergin CJ in Eq), dismissed an application by Mr McCarthy for leave to appeal from the judgment of Adamson J in McCarthy v National Australia Bank Limited [2015] NSWCA 370.

36. [40]

    The Court of Appeal stated at [19] and [23]:

37. [41]

    The Court of Appeal dismissed Mr McCarthy’s application on the basis that the proposed appeal had no apparent prospects of success, including in respect of his contention that the Court had erred in its consideration of his arguments concerning his 2005 tax returns and serviceability, and the question of whether NAB had failed to comply with Mr McCarthy’s subpoena at [23]-[25].

38. [42]

    On 12 September 2016, Rothman J heard an application by Mr McCarthy in proceeding No 2014/5111, NAB v Warren Brian McCarthy, seeking an order to stay an auction that was to occur the following day. Although Mr McCarthy referred to the transcript of Rothman J, it was not in evidence before me. However, I have located the transcript.

39. [43]

    Mr McCarthy in his oral submissions before this Court and at [16] of his PASC referred to a statement by Rothman J in the transcript dated 12 February 2016 of proceedings 2014/5111, where his Honour stated (T 8.2-9):

40. [44]

    The same statement is set out in Rothman J’s ex tempore judgment dated 12 February 2016 (at p 5.4-10). It seems that Mr McCarthy was submitting that if his claim for fraud was successful, it would result in damages being awarded.

Strike out and dismissal application before this Court

1. [45]

   Mr McCarthy’s case should be taken at its highest. Counsel for the defendant did not object to the dealing of the strike out and dismissal application on the basis of the PASC.

2. [46]

   The PASC pleads at [1]-[16]:

3. [47]

   In oral submissions, Mr McCarthy emphasised the importance of an email he received from Mr Singh of NAB on 5 June 2015, well after the events complained of occurred. In the email, Mr Singh responded to questions Mr McCarthy had sent. Mr Singh’s responses are in red. It reads as follows:

4. [48]

   From Mr Singh’s reply in 2019, some five years after the loans were approved, his response was made on the basis of the updated computer records. It is clear that he did not cite the original records.

5. [49]

   Mr McCarthy also forwarded submissions after judgment had been reserved. I have read them but they do not add anything to his arguments.

Summary judgment and strike out – the law

1. [50]

   Rule 13.4(1) of the UCPR provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances: where the proceedings are frivolous or vexatious, where no reasonable cause of action is disclosed or where the proceedings are an abuse of the process of the Court.

2. [51]

   In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ stated at 129:

3. [52]

   UCPR 14.28 reads:

4. [53]

   NAB seeks to strike out Mr McCarthy’s proceedings on three bases: firstly, that they are an abuse of process, secondly, due to prejudice and embarrassment; and finally, due to delay.

5. [54]

   I have taken Mr McCarthy’s earlier submissions and pleadings into account.

6. [55]

   An abuse of process can arise if a litigant is permitted, by changing the form of their proceeding, to set up the same case again: see Reichel v Magrath (1889) 14 App Cas 665 at 668 per Lord Halsbury LC; Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289 at 298 per Mason CJ, Deane and Dawson JJ.

7. [56]

   Whether litigation is an abuse of process, frivolous or vexatious must turn on the facts of a particular case. However, the guiding considerations are oppression and unfairness to the other party to the litigation, and concern for the integrity of the system of administration of justice. The Court may have regard to the following matters:

8. [57]

   In support of these principals, NAB relied upon State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Tort Rep 81-423 at 64,809 (“Stenhouse”), cited with approval in Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [91]. Adopting the considerations identified in Stenhouse, NAB submitted that:

   1. (1)

      the issues now sought to be raised by Mr McCarthy are the same as were identified in, and were made central to, the earlier proceedings;

   2. (2)

      multiple opportunities have been made available and taken to fully litigate the issue;

   3. (3)

      the terms and finality of the finding as to the issues raised by Mr McCarthy concerning the NAB’s assessment of the serviceability of the finance advanced to Mr McCarthy are apparent from the Court’s determination, on three occasions, that Mr McCarthy’s position was unarguable, and the Court of Appeal found that there was no prospect of successfully arguing that the last of these decisions involved error;

   4. (4)

      the issues raised in this proceeding are all but identical to issues previously considered by this Court and the Court of Appeal;

   5. (5)

      no fresh evidence is advanced by Mr McCarthy in support of his claim;

   6. (6)

      the oppression and unfairness to NAB if these issues were to be re-litigated would be significant, as NAB would be tasked with defending its assessment of a loan it approved some 15 years ago, with the result that it is unlikely to have access to witnesses who dealt with the matter and in any event, memories are likely to have faded;

   7. (7)

      re-litigation would be contrary to the principle of finality, given the absence of any new issue being raised; and

   8. (8)

      the balance of justice favours this proceeding being struck out having regard to the number of opportunities Mr McCarthy has had to ventilate his claim.

9. [58]

   The focus of Mr McCarthy’s allegations has always been that NAB fabricated his income on the loan documentation.

10. [59]

    NAB officers who were present when Mr McCarthy signed the loan agreements swore affidavits as to what occurred. In short, the bank officers’ evidence was that they followed responsible banking practices, and they denied that they fabricated Mr McCarthy’s income on the loan documentation. This evidence was considered by Hall J, as set out earlier in this judgment.

11. [60]

    Mr McCarthy says that these records incorrectly stated his income as being higher than it was, and that these figures were used by NAB to satisfy itself of his ability to service the loan. In the first application to set aside the default judgment, Hall J said that he was not satisfied that the asserted defence had any evidentiary foundation, as his Honour was not satisfied that the relevant loan agreement was affected by any fraud or illegality.

12. [61]

    In Mr McCarthy’s leave to appeal application, set out earlier, Basten JA granted an adjournment in order to give Mr McCarthy a chance to issue a subpoena to NAB. The documents sought in the schedule of the subpoena sought a variety of documents outlined earlier in this judgment, including all loan applications, documents relevant to those loan applications, loan offers, and documents regarding the discharge of any loan between NAB and Mr McCarthy.

13. [62]

    On 13 April 2015, NAB produced documents to the Court. Mr McCarthy does not give any evidence as to whether or not he inspected them.

14. [63]

    On 27 May 2015, set out earlier, Hamill J heard Mr McCarthy’s second application to set aside default judgment. Mr McCarthy sought to set aside the judgment on the basis that NAB had not complied with the Court of Appeal’s orders for a subpoena, and that NAB had deliberately refused to produce those documents in order to “conceal fatal evidence exposing NAB to maladministration, fraud and unconscionable conduct”. As before, he alleged that NAB adopted the Code of Banking Practice and that NAB failed to assess serviceability and a contravention of the Code.

15. [64]

    Hamill J determined that the material advanced by Mr McCarthy did not disclose an arguable defence, as Mr McCarthy had provided no particulars nor evidence to support his assertions.

16. [65]

    On 23 July 2015, Adamson J heard Mr McCarthy’s third application to set aside the default judgment. Mr McCarthy adduced evidence as to his income in 2005, relying on his tax showing a loss of $712, together with a forensic report prepared by an accounting firm. Her Honour made findings that the only basis put forward to substantiate the allegation of fraud was that the figure recorded for NAB’s income from Coffs Forklifts was said to be higher than the figures set out in the two cash flow statements in evidence. Although Mr McCarthy conceded that the signature apparently verifying the customer particulars appeared to be his signature, he alleged that a bank officer had copied the signature and constructed it from other documents.

17. [66]

    Adamson J stated that it appeared that the cash flow statement that formed the basis of the figures in the NAB’s records was derived from a cash flow statement which Mr McCarthy had prepared, and that he signed off on those particulars as being accurate at the time. Adamson J did not consider that Mr McCarthy’s evidence gave rise to an arguable defence on the merits. She stated that the evidence was largely to the contrary.

18. [67]

    In Mr McCarthy’s second application for leave to appeal, the Court of Appeal stated that Adamson J has considered Mr McCarthy’s submissions concerning his tax returns and other documents provided to NAB in support of his loan application. Assuming that “Income Verification” referred to NAB’s receipt and assessment of those documents, Adamson J had referred to the material tendered before her and rejected Mr McCarthy’s submission that details of his income had been knowingly falsified by the bank. The Court of Appeal found that none of these matters suggested error on her Honour’s part.

19. [68]

    I agree with the statement of Adamson J, where she accepted that Mr McCarthy essentially sought the same relief before her as he did before Hall and Hamill JJ. He was unable to provide a satisfactory explanation as to how the application before her Honour differed from that brought before Hamill J. Her Honour stated that under the circumstances, the motion might amount to an abuse of process.

20. [69]

    Mr McCarthy, in these proceedings, again seeks to agitate the same issues before me as he has raised before Hamill and Adamson JJ (and to an extent before Hall J), namely that the loan was unjust; that income was deceitfully and fraudulently inflated, fabricated, and falsified to obtain a loan approval; and that NAB contravened responsible lending obligations and the Code of Banking Practice. Mr McCarthy also alleges that NAB failed to comply with a subpoena and “failed to prove” its verification of his income referred to in a NAB Customer Particulars Report. The only additional document relied upon in these proceedings was a reply from Mr Singh of NAB dated 5 June 2019, some years after the loan documents were signed, where Mr Singh explained that his responses were based upon documents generated by the NAB computer system. Mr McCarthy made submissions that Mr Singh had in fact referred to the original financial statements and tax returns provided to NAB. It is clear that Mr Singh did not do so.

21. [70]

    In my view, Mr McCarthy has litigated the same issues as set out above on at least three occasions in this Court. He has had many opportunities to fully litigate the issues, and on each occasion the Court has found that he has not established an arguable defence. Further, while he alleges fraud, the Court in earlier decisions has stated that fraud needs to be specifically pleaded in accordance with UCPR 15.3. He still failed to plead his case on such terms.

22. [71]

    Mr McCarthy now makes the same allegations as before in his statement of claim and PASC. The only difference is that in the proceedings before me, he is the plaintiff and NAB is the defendant. It has reached the stage where making the same allegations has caused oppression and unfairness to NAB. Mr McCarthy’s attempts to relitigate these proceedings have impacted upon the principle of finality of judicial determination and public confidence in the administration of justice. They also offend s 56 of the Civil Procedure Act.

23. [72]

    It is my view that these current proceedings are an abuse of process and should be struck out.

24. [73]

    NAB referred to Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; (1990) 92 ALR 53 (“Akhil”). In Akhil, the High Court stated at 58 that when considering whether a pleading ought to be struck out, it is relevant to consider the purpose of the pleading:

25. [74]

    In Iacullo v Iacullo [2013] NSWSC 1517, Black J summarised a number of authorities concerning the requirements of pleading, noting (at [55]):

26. [75]

    Reasons that a pleading may be considered embarrassing include that the pleading is susceptible to various meanings, contains irrelevant allegations that tend to increase expense, or is unintelligible, ambiguous, vague or too general: see Iacullo at [57] to [58]. In these proceedings, the “embarrassment” refers to a pleading that is susceptible to various meanings, where alternatives may have been intermixed or irrelevant allegations made, or where material facts are couched in expressions which obscure what is being referred to: see Richard Churchill v The University of Sydney [2020] NSWSC 1343 per Wilson J at [34].

27. [76]

    Some of these submissions are the same as set out under abuse of process.

28. [77]

    NAB submitted that Mr McCarthy’s proceeding should be struck out as an abuse of process, vexatious and frivolous.

29. [78]

    NAB submitted that to the extent that any recognisable claim is advanced in the PASC, it is clear that Mr McCarthy seeks to agitate the question of whether the NAB failed adequately to assess the serviceability of financial accommodation it advanced to him in 2005 (with certain further advances provided in the ensuing years). To the extent Mr McCarthy seeks, once again, to put NAB’s assessment of serviceability in issue, Mr McCarthy has not identified the ways in which he asserts that NAB failed to exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods, and in forming its opinion about his ability to repay his loans. Mr McCarthy has also failed to properly identify any alleged breach of such a duty.

30. [79]

    Mr McCarthy has sought to ventilate this issue before this Court on three applications to set aside the NAB default judgment, as well as before the Court of Appeal. Mr McCarthy’s allegations have failed on each occasion.

31. [80]

    NAB submitted that although the claim is now advanced in litigation in a different form by way of a fresh application, the substance of his claim is unchanged. The allegations are exhausted. To pursue this proceeding is an abuse of process because it is an attempt by Mr McCarthy to set up once more the same case that he has run (and lost) repeatedly.

32. [81]

    The statement of claim and PASC fail to identify with any precision the elements of a recognisable cause of action against NAB. No identifiable relief is sought. NAB says that Mr McCarthy’s pleading of fraud again lacks any of the particulars required under the UCPR, including, for example, identification of the person said to have perpetrated the fraud alleged to have occurred. NAB should not be left to guess at the ways in which these gaps in the pleading are to be filled.

33. [82]

    NAB further submitted that Mr McCarthy had not identified any basis for his delay in bringing this proceeding 8 years after the FOS determination, six years after judgment was obtained against him and 5 years after the Court of Appeal refused him leave to appeal from the third application to set aside the NAB default judgment. He does not identify any reason why the resources of the Court should be devoted, once more, to claims already determined. As such, to bring this proceeding in this form is contrary to the parties’ duty to the Court to resolve of the issues in dispute in a manner that is just, quick and cheap: see ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW).

34. [83]

    It is my view that the same issues raised in the PASC, namely, that the alleged incorrect amount of Mr McCarthy’s earnings said to be from his tax returns found its way into his loan application; that NAB committed fraud; and that it breached the Code of Banking Practice have been determined in prior proceedings. The circumstances of NAB’s entry into the loan were considered by Hall J in the first application to set aside the default judgment. Mr McCarthy’s complaint about NAB allegedly failing to produce documents in answer to a subpoena has been ventilated. So have his concerns about the higher amount of income shown on the loan documents. NAB has been obliged to expend a relatively large amount of money defending Mr McCarthy’s claims.

35. [84]

    The events the subject of these proceedings occurred in 2005. There has been a delay of about 15 years. It has also been 6 years since default judgment was entered against him. Mr McCarthy has brought serious allegations of fraud before Hall J in 2014, Hamill J in 2015 and Adamson J in 2015. While it has been pointed out on numerous occasions to Mr McCarthy that he needs to properly plead fraud, he still has not done so. As such, it is my view that the statement of claim should be struck out also on account of prejudice, embarrassment and delay.

Repleading the statement of claim

1. [85]

   Mr McCarthy has already been afforded multiple opportunities to plead a case against NAB and has been advised on at least three occasions that he does not have an arguable defence, which he has nonetheless now articulated in his statement of claim. I have already considered the pleading in the PASC. I would not grant leave to file it on the basis that it is futile. Further, I am not satisfied that if I were to grant Mr McCarthy another opportunity to replead his case, anything would change. A further opportunity to replead would also lead to NAB being obliged to incur further expense. As such, I do not grant Mr McCarthy a further opportunity to replead his case. Under the circumstances, these proceedings should be dismissed pursuant to UCPR 13.4(1).

Result

1. [86]

   In my view, the statement of claim filed 26 June 2020 should be struck out and dismissed.

2. [87]

   The result is that these current proceedings are struck out and dismissed.

Costs

1. [88]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.