Poulos v Australia and New Zealand Banking Group Limited

By an amended notice of motion filed on 1 February 2023 the defendant, Australia and New Zealand Banking Group Limited (ANZ), seeks orders dismissing these proceedings. It also seeks orders that the proceedings be stayed, and that the plaintiff, Mrs Patricia Poulos, be restrained from commencing fresh proceedings arising out of the same or similar facts as these proceedings, or proceedings heard by Darke J on 2 August 2021, unless Mrs Poulos first pays the costs of the proceedings before Darke J, and an application for leave to appeal from a judgment delivered by Darke J on 13 December 2021. Lastly, ANZ seeks the following order:

These proceedings were commenced by Mrs Poulos by statement of claim filed on 5 October 2022. Mrs Poulos filed an amended statement of claim on 1 November 2022. By her amended statement of claim Mrs Poulos seeks orders setting aside the judgments of Darke J delivered on 2 August 2021 and 13 December 2021. She also seeks, "[c]ompensation for eleven (11) properties unlawfully procured by ANZ in a Ponzi-Style Scam" together with a number of ancillary orders, including an order that ANZ pay her damages. The claim is said to be brought on the basis that fresh evidence discovered between 2019 and 2022 establishes that a series of judgments given by this Court were procured by a fraud perpetrated by ANZ, and a number of others. It is not possible from the amended statement of claim to discern what the frauds were. Mrs Poulos seeks to rectify that problem in a draft further amended statement of claim which she seeks leave to file. That draft seeks no final orders. However it alleges that "fresh evidence" or "fresh discovery of evidence" reveals that ANZ intentionally concealed from her, and in some cases the Court, certain facts, or made misleading or deceptive statements to Mrs Poulos, the Stamp Duties Office and the Land Titles Office which affected the outcome of those judgments.

Some allegations in the further amended statement of claim omit the formulas "fresh evidence reveals" or "fresh discovery of evidence" and simply assert that ANZ engaged in the relevant conduct. No attempt is made in the proposed further amended statement of claim to identify the "fresh evidence".

Before seeking to address Mrs Poulos' claim, it is necessary to say something about the background to the proceedings. That background is set out in detail in a number of earlier judgments of this Court. It is not necessary to repeat it here. A brief summary is sufficient.

On 8 December 1988, Elders Lensworth Finance Limited (Elders) on its own behalf, and as an assignee of the rights of several other related companies obtained judgment from Needham J against Mrs Poulos and her husband, and a company known as Hacide Pty Ltd (Hacide) of which Mr and Mrs Poulos were directors: Elders Lensworth Finance Ltd v Glenwood Investments Pte Ltd, unreported, Needham J, 8 December 1988. Mr and Mrs Poulos had given a guarantee in respect of debts owed by Glenwood Investments Pte Limited to Elders and the assignees. Mr and Mrs Poulos had also executed mortgages over eight properties they owned, including a property in Miranda, and Hacide had executed mortgages over two properties it owned as security for their obligations under the guarantees. In the judgment, Needham J ordered that Mr and Mrs Poulos and Hacide give possession to Elders of the properties over which security was held.

On 28 November 1989, the Commonwealth Bank of Australia (the Commonwealth Bank) obtained judgment from Sully J for possession of a property in Cronulla owned by Hacide, which had been provided as security for a loan the Commonwealth Bank had advanced to Hacide. The property was Mr and Mrs Poulos’ family home. Mr and Mrs Poulos and their children were joined as defendants in those proceedings. One issue raised by the defendants was that the mortgage had been obtained by fraud. That defence was rejected by Sully J in an unreported judgment: Commonwealth Bank of Australia v Hacide Pty Ltd unreported, Sully J, 28 November 1989. An appeal from Sully J’s judgment was dismissed: Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134.

Nothing then happened for almost 30 years, when Mrs Poulos commenced proceedings against, relevantly, the Commonwealth Bank, seeking the following orders among others:

By a notice of motion filed on 15 March 2019, the Commonwealth Bank sought summary dismissal of the proceedings against it. Kunc J granted the relief sought by the bank: Poulos v Elliott [2019] NSWSC 423. The hearing before his Honour focused on the judgment of Sully J. As Kunc J pointed out, that judgment could only be set aside if it had been obtained by fraud. The principles for setting aside a judgment on that basis are set out in the judgment of Kirby P, with whom Hope and Samuels JJA agreed, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539, where his Honour relevantly said:

The principal question before Kunc J was whether the second of the requirements referred to by Kirby P had been satisfied. Mrs Poulos, during the course of the hearing, identified six documents which she claimed amounted to the discovery of something new and material. Kunc J concluded that three of the documents were available and known to Mrs Poulos at the time of the hearing before Sully J. His Honour concluded that the other three documents were not evidence that Sully J’s judgment had been obtained by fraud.

On 4 October 2019, Payne and Brereton JJA dismissed an application by Mrs Poulos for leave to appeal: Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 (the Appeal Proceedings). On Mrs Poulos’ case, relevant to the allegation of fraud, was the fact that ANZ had previously held a second mortgage over the Cronulla property and a mortgage over the Miranda property. Two of the documents relied on by Mrs Poulos were discharges of those mortgages dated 15 August 1984 and registered on 23 May 1985. The gap between the date of the discharge of mortgage and the date of registration was said to provide new evidence that the Commonwealth Bank had not advanced funds to pay out ANZ, and therefore must have somehow or another obtained its own mortgages over the two properties improperly. The Court of Appeal accepted that it was arguable that the discharges of mortgage were not before Sully J and were, in that sense, new evidence. However, the Court concluded, for a number of reasons, that that new evidence would not have made a difference to the outcome of the case. The Court of Appeal concluded that the third document relied on was irrelevant to the case against the Commonwealth Bank.

On 18 October 2019, Mrs Poulos filed a notice of motion in the Appeal Proceedings seeking an order “[s]etting aside the Judgment of their Honours Payne JA and Brereton JA”. That notice of motion was dismissed with costs on 2 December 2019: Poulos v Commonwealth Bank of Australia Ltd (No 2) [2019] NSWCA 290.

On 13 December 2019, Mrs Poulos filed a further notice of motion in the Court of Appeal proceedings seeking essentially the same orders as those sought by her earlier notice of motion, relying on what was said to be further new evidence. The Court of Appeal dismissed that application with costs: Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72. At the same time, the Court made the following order:

On 17 April 2021, Mrs Poulos commenced proceedings against ANZ: Poulos v Australia and New Zealand Banking Group Ltd [2021] NSWSC 971. The claim, as finally put in those proceedings, was summarised by Darke J in these terms:

By a notice of motion filed on 11 June 2021, ANZ sought to strike out the amended statement of claim. In granting that order, Darke J said:

His Honour directed that Mrs Poulos serve and provide to his Honour’s associate any proposed further amended statement of claim and stood the matter over until 8 October 2021. On 12 November 2021, the matter was listed for hearing on 2 December 2021 in relation to the question whether Mrs Poulos should be given leave to file her proposed amended statement of claim. That leave was opposed by ANZ. On 13 December 2021 Darke J refused the plaintiff leave to file her new further amended statement of claim and dismissed the proceedings with costs: Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC 1620.

On 15 August 2022 the Court of Appeal refused an application for an extension of time in which to bring an application for leave to appeal from Darke J’s decision: Poulos v Australia and New Zealand Banking Group [2022] NSWCA 218.

In my opinion, the current proceedings are misconceived. The only judgment that ANZ has obtained against Mrs Poulos is the dismissal of the proceedings she commenced on 17 April 2021. The case that Mrs Poulos apparently now seeks to advance is that that judgment was obtained by the fraud of ANZ, but nowhere does Mrs Poulos explain how that could be so. It is relevant in this context to observe that the judgment obtained by ANZ from Darke J arose from the fact that Mrs Poulos was unable to articulate a case against the Bank. It depended on the Court's assessment of Mrs Poulos’ original and amended pleading in that case. It did not depend on any evidence from ANZ. It is difficult to see in those circumstances what new evidence, let alone evidence of fraud by ANZ, could lead to the conclusion that the judgments of Darke J were obtained by fraud.

Although the amended statement of claim and proposed further amended statement of claim filed by Mrs Poulos in these proceedings are difficult to follow, it is apparent that Mrs Poulos is attempting to relitigate issues determined adversely to her by the Court of Appeal in proceedings brought by her against the Commonwealth Bank. She apparently also seeks to advance a case that ANZ engaged in a fraud over 30 years ago, when it granted a discharge of the mortgages it held on repayment of the facilities it advanced. That is the case that was struck out by Darke J. It is plain that in those respects, the current proceedings are an abuse of process.

For those reasons, the current proceedings must be dismissed.

The question remains whether the Court should make an order, in effect, preventing Mrs Poulos from commencing further proceedings against ANZ without leave. In opposition to an order of that type it might be said that Mrs Poulos has only commenced two proceedings against ANZ (the proceeding heard by Darke J and this proceeding) and that is not sufficient to justify an order of the type sought by ANZ.

However, the claims against ANZ must be seen in the context of the earlier proceedings. Taken together, they demonstrate a persistent determination by Mrs Poulos to pursue proceedings in an attempt, in effect, to reverse the decisions of Needham J and Sully J. The Court can have no confidence that Mrs Poulos will accept the outcome of this case any more than she has accepted the outcome of the earlier ones in which she has made similar allegations.

For those reasons, in my opinion, it is appropriate to grant an order in terms of para 1B of ANZ’s amended notice of motion.

Therefore, the orders of the Court are: