Islam v Commonwealth Bank of Australia

1. [1]

   HIS HONOUR: By notice of motion dated 1 September 2023, the Commonwealth Bank seeks orders pursuant to UCPR 13.4(1) and 14.28(1) respectively that the proceedings be dismissed or that the summons filed on 21 March 2023 and the statement of claim filed on 25 July 2023 be struck out. The bank also seeks the following order:

2. [2]

   The bank’s application is supported by the affidavits of Katherine Alison Merrick and Emmanuel Lucas Bell affirmed on 1 September 2023. Neither deponent was required for cross-examination.

Background

1. [3]

   On 9 December 2022, the bank was served with a copy of orders made by this Court in unrelated proceedings between Abu Walid Ratul as plaintiff and Mr Islam and Australian Real Estate Relation Pty Ltd as defendants. In short, the orders restrained Mr Islam from, among other things, dealing with his assets in the nature of a freezing order. On 9 December 2022, Mr Islam had either in his name or jointly with Sarah Anwar Khan a total of 14 accounts with the bank. In accordance with the order of the Court, the bank placed a “stop” on each of the Islam accounts on the afternoon of that day.

2. [4]

   In circumstances to which it is unnecessary in detail to refer, the bank received notice that the orders of the Court served earlier had in effect been varied to permit Mr Islam to have access to certain of his accounts. At approximately 10.00am on 16 December 2022, in anticipation of receiving a sealed copy of the second order, the bank arranged for the hold placed on two of Mr Islam’s accounts with the bank to be lifted. From that point on, Mr Islam had unrestricted access to and operation upon all of his accounts, save for two card accounts, and subject only to the terms and conditions applying to each account. The terms of the second order did not authorise the bank to release or lift the stop order that had been placed on the Australian Real Estate Relation accounts in accordance with the first order.

3. [5]

   Having regard to these matters, and in the events that occurred, Mr Islam was able during the period between the early evening of 9 December 2022 and the morning of 12 December 2022 to continue to use his credit cards to make purchases or pay for services and he did so. In summary, the bank acted in accordance with orders of this Court made in proceedings in which Mr Islam was a defendant which restrained him in particular respects from dissipating his assets in what might be described as the usual way. The bank was not a party to those proceedings but was obliged to comply with the terms of the orders that had been made.

4. [6]

   Notwithstanding that unexceptionable state of affairs, Mr Islam commenced the present proceedings claiming, in his summons, liquidated [sic!] damages of $450 million along with all manner of other extraordinary prayers for relief. Only for the reason that it is difficult by way of summary to do justice to the extraordinary nature of some of the relief claimed in the summons, the following prayers for relief should be noted in full:

5. [7]

   The Statement of Claim specifies the following claims for relief:

6. [8]

   The essential burden of Mr Islam’s complaint is that the bank wrongfully restrained him from enjoying access to his various accounts and otherwise than in accordance with the strict terms of the freezing order. For example, Mr Islam contends that the orders do not restrain him from exercising control over his own personal bank accounts, as opposed to accounts in the name of Australian Real Estate Relation, to which business accounts he was otherwise an authorised signatory. Indeed, Mr Islam’s 15 April 2023 affidavit elaborates upon his concerns as follows:

7. [9]

   In his statement of claim, Mr Islam “particularises” in general terms the losses he claims to have suffered by reason of the banks’ actions in placing stops on his accounts:

8. [10]

   In her affidavit, Ms Merrick deposes, in compliance with the rules, that it is her view that the proceeding has no prospect of success and is hopeless and manifestly groundless. She advances by way of illustrating her opinion that Mr Islam in fact claims $750 million, that the statement of claim is replete with pejorative characterisations of the bank’s conduct and is lacking in identification, in any specific terms, of the facts which are relied upon to support the allegations.

9. [11]

   In response to Mr Islam’s allegations, Mr Bell deposed to the fact that, if a customer needed to conduct transactions on a stopped account and they are lawfully able to do so, for example in accordance with the terms of a freezing order where the customer may be permitted to withdraw funds for business purposes and living expenses, then the customer can attend their local branch to do so. The freezing order in accordance with which the bank placed stops on Mr Islam’s accounts was such an order. Mr Islam does not plead as part of his claim that he approached the bank in this way or that when he did the bank failed to permit him to make authorised withdrawals from any of his accounts for business or living expenses. Even if he did, it is clear to the point of demonstration that the losses he claims are in the realm of fiction. Moreover, the statement of claim does not in any way describe, other than in terms of mere inconvenience, how, if at all, the matters complained of allegedly led to actual loss or damage in monetary terms as properly understood.

10. [12]

    In my opinion, the proceedings are in truth both frivolous and vexatious and an abuse of the process of the court. I consider that the proceedings should be dismissed with costs and that Mr Islam be restrained from commencing any proceedings based upon or arising out of the same facts.

11. [13]

    So far as costs are concerned, I have not been provided with any submissions or evidence in support of either an indemnity costs order or a gross sum costs order. To the extent only that the bank may choose to press these claims, I would grant liberty to apply to restore the matter for the limited purpose of addressing them.