National Australia Bank Limited v Skoczek and Ors

1. [1]

   JOHNSON J: The Court has before it two Notices of Motion which have proceeded to hearing today.

2. [2]

   By way of an Amended Notice of Motion filed 6 December 2016, National Australia Bank Limited (“NAB”) seeks certain orders with respect to the First Defendant, Tadeusz Skoczek, and the Second Defendant, Ewa Bronislawa Skoczek, together with Tonadale Pty Limited (“Tonadale”), the Third Cross-Claimant in a Cross-Claim to which further mention will be made.

3. [3]

   NAB seeks orders that the Amended Defence filed by Mr and Mrs Skoczek on 11 October 2016 be struck out pursuant to Uniform Civil Procedure Rules (“UCPR”) 14.28 and that the Further Amended Cross-Claim filed on 11 October 2016 be struck out under the same rule.

4. [4]

   Also before the Court is a Notice of Motion filed on 6 December 2016 on behalf of Challenger Mortgage Management Pty Limited (“Challenger”) effectively against Mr and Mrs Skoczek and Tonadale. Challenger seeks an order that part of the Further Amended Cross-Claim filed 11 October 2016 be struck out and a further order pursuant to UCPR 6.29 that Challenger be removed as a party to these proceedings.

The Proceedings

1. [5]

   The proceedings relate in general terms to a claim for possession of land by NAB against Mr and Mrs Skoczek, being land known as 21 Tiree Road, Royalla (“the Royalla property”).

2. [6]

   The written submissions of counsel for NAB disclose the following history.

3. [7]

   In July 2004, NAB advanced funds to Mr Skoczek and Mrs Skoczek under a variable rate home loan facility which was subsequently varied. In August 2006, NAB advanced further funds to Mr and Mrs Skoczek under a portfolio facility. In February 2008, NAB advanced further funds to Mr Skoczek under a variable rate home loan facility and Mrs Skoczek provided a guarantee limited as to amount in respect of Mr Skoczek's obligations under the 2008 home loan.

4. [8]

   The obligations of Mr and Mrs Skoczek under these various loan arrangements are secured by a first registered mortgage over the Royalla property.

5. [9]

   NAB alleges that, by about March 2015, Mr and Mrs Skoczek had defaulted under these loan arrangements. On 13 March 2015, NAB issued a notice of default to Mr and Mrs Skoczek demanding payment from them of a sum of about $340,000.00, being the amount said to be due as at 6 March 2015. It is alleged that Mr and Mrs Skoczek did not comply with the March 2015 default notice.

6. [10]

   On 17 August 2015, NAB commenced the present proceedings by filing a Statement of Claim in the Possession List seeking an order for possession of the Royalla property.

7. [11]

   On 19 October 2015, Mr and Mrs Skoczek filed a Defence, together with a Cross-Claim, against NAB and a further entity described as Advantedge Financial Services Pty Limited (“Advantedge”).

8. [12]

   On 30 November 2015, the solicitors for NAB and Advantedge requested further and better particulars in respect of the Cross-Claim. On 21 December 2015, the solicitor for Mr Skoczek, Mrs Skoczek and Tonadale responded to that request for further and better particulars.

9. [13]

   On 22 April 2016, NAB filed an Amended Statement of Claim.

10. [14]

    On 19 May 2016, Mr and Mrs Skoczek filed an Amended Defence, together with an Amended Cross-Claim by Mr and Mrs Skoczek and Tonadale against NAB and Advantedge.

11. [15]

    On 8 July 2016, NAB and Advantedge filed a Notice of Motion seeking orders for summary judgment, and to have the Amended Defence and Amended Cross-Claim struck out.

12. [16]

    On 12 September 2016, the Notice of Motion came before Associate Justice Harrison for hearing. The hearing proceeded some way to a point where counsel for Mr and Mrs Skoczek and Tonadale sought orders to allow them to further amend their pleadings. The Notice of Motion was stood over.

13. [17]

    On 11 October 2016 an Amended Defence was filed by Mr and Mrs Skoczek and a Further Amended Cross-Claim was filed by Mr Skoczek, Mrs Skoczek and Tonadale. It is the amended pleadings filed on 11 October 2016 which are the subject of the present applications.

The Present Notices of Motion

1. [18]

   Since 11 October 2016, NAB determined that it wished to press the Notice of Motion seeking to have struck out, in whole or in part, the amended pleadings filed on 11 October 2016. The claim for summary judgment was no longer pressed by NAB. The Amended Notice of Motion filed by NAB is before the Court today for hearing. It reflects NAB’s present claim for interlocutory relief.

2. [19]

   The Notice of Motion of Challenger requires some brief explanation. The Further Amended Cross-Claim filed on 11 October 2016 referred to Challenger at paragraphs 1A and 2 of the pleading. The Further Amended Cross-Claim did not, in fact, seek relief against Challenger, although it was identified as the Third Cross-Defendant.

3. [20]

   It has been submitted today, on behalf of Challenger, that there was no proper basis for joining Challenger as a party to the Cross-Claim, and that (in any event) no effective claim that Mr and Mrs Skoczek or Tonadale may have against Challenger could be appropriately litigated by way of a Cross-Claim in the principal proceedings commenced by NAB for possession of the Royalla property.

4. [21]

   Mr Loxton, counsel for Mr and Mrs Skoczek and Tonadale, has acknowledged that there is no basis which can be maintained presently for Challenger being a party to the proceedings. It is not necessary to delay this judgment with any explanation as to how Challenger came to be mentioned in the Further Amended Cross-Claim in the first place.

5. [22]

   In the result, I will in due course make orders in accordance with the Notice of Motion filed by Challenger. I will return to this aspect later in this judgment.

NAB’s Strike-Out Application

1. [23]

   NAB's application to strike out the Amended Defence and Further Amended Cross-Claim, in whole or in part, has proceeded by reference to UCPR 14.28.

2. [24]

   It was submitted for NAB that parts of these pleadings ought be struck out as they disclose no reasonable cause of action or defence or that those parts, together with other parts of the pleadings, ought be struck out as they have a tendency to cause prejudice, embarrassment or delay in the proceedings. It was submitted for NAB that the pleadings were so deficient that the appropriate course was to strike out the entirety of both the Amended Defence and the Further Amended Cross-Claim.

The Relevant Principles

1. [25]

   The hearing has proceeded upon the basis that the relevant principles on an application of this sort may be found in the judgment in McGuirk v University of New South Wales [2009] NSWSC 1424. The principles concerning pleadings are set out in that judgment at [21]-[35]:

2. [26]

   The principles with respect to a claim that no reasonable cause of action or defence is disclosed were set out in McGuirk v University of New South Wales at [36]-[39]:

3. [27]

   In addition, to the extent that some of the claims contained in the pleadings appear to allege conduct in the nature of fraud, the statements in McGuirk v University of New South Wales at [73] and [165] are pertinent:

4. [28]

   To the extent that some of the claims in the pleadings allege misleading or deceptive conduct, I have regard to what was said in McGuirk v University of New South Wales at [149].

Whether No Reasonable Cause of Action or Defence is Disclosed?

1. [29]

   I turn firstly to the claim that parts of the pleadings should be struck out on the basis that they disclose no reasonable cause of action or defence. This aspect focused upon parts of the pleadings where there was reliance, put shortly, upon set-off and alleged losses related to trailing commissions.

2. [30]

   Placed before the Court, on this hearing, were a number of documents touching upon these topics in one way or another. These documents included an Amending Deed and associated documents contained at page 21 and following of Exhibit SS1 to the affidavit of Shruti Singh sworn 11 July 2016. Also relied upon was a provision in a Facility Agreement of April 2007, which appears at page 109 and following of Exhibit AM1 to the affidavit of Amanda McKee sworn 11 July 2016. Clause 43.1 of that Facility Agreement refers to the setting off of money and effectively operates, it was submitted, as a no set-off provision.

3. [31]

   The effect of the argument put for NAB with respect to these aspects of the pleadings was that the claims advanced were not sustainable. It was submitted that, to the extent that the Defendants sought to rely upon a form of set-off by way of Defence and Cross-Claim, a set-off is not a defence to a claim for possession of land: National Australia Bank Limited v Thirup [2011] NSWSC 911 at [64]. It was submitted that the proper construction of the documents referred to was such that this aspect of the Further Amended Defence and Amended Cross-Claim was not sustainable.

4. [32]

   Mr Loxton (who came into the matter late in place of Mr King) submitted that, whatever else may be said about the pleadings, this aspect of the case was not in such a state that the Court should strike it out upon the basis that no reasonable cause of action or defence was disclosed.

5. [33]

   I bear in mind the principles set out in McGuirk v University of New South Wales at [36]-[39] (at [26] above). A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action or defence is disclosed, and the power should be sparingly employed. The test is not whether the party would probably fail in his action. It is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.

6. [34]

   Having considered the limited amount of material which has been put before the Court, which is essentially documentary and has been referred to in short form because of the nature of the application, I can see force in the argument advanced on behalf of NAB in this respect. However, what NAB must demonstrate is satisfaction of the high hurdle required on the authorities for the purpose of a party being effectively shut out from relying upon such a claim or defence.

7. [35]

   Although there is considerable substance in NAB's submission, I am not persuaded that the position is such that Mr and Mrs Skoczek and Tonadale should be shut out entirely from seeking to rely upon this aspect. This, however, should not be interpreted as being an endorsement or positive sign that there is vigour or life in this part of their claim or defence. The finding I make is one that it is not so hopeless that it should be stopped in its tracks now. The finding does not involve more than that.

Whether the Pleadings are Embarrassing or Otherwise Defective and Ought be Struck Out?

1. [36]

   The next line of argument advanced on behalf of NAB involved application of the principles of pleading (at [25] above) to the terms of the Amended Defence and the Further Amended Cross-Claim.

2. [37]

   I will not undertake a step by step analysis of the pleadings. The criticisms contained in the written submissions of Mr Kaufmann, on behalf of NAB, explain the deficiencies in some detail. To the extent that it is necessary, I express my agreement with the submissions advanced on behalf of NAB in this respect.

3. [38]

   There are a series of deficiencies in these pleadings. It is important to bear in mind that the purpose of pleadings is to inform the opposing party and also the Court of the nature of the claim. It is necessary for a party to plead in summary form a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved. Vague allegations on very significant matters are unacceptable. A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general so as to embarrass the opposing party who does not know what is alleged against him. A pleading will be embarrassing if allegations are made at such a level of generality that the opposing party does not know in advance the case it has to meet.

4. [39]

   In such a case, the appropriate remedy is to strike out the pleading, rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading. Nor, I should add, given a submission that was advanced in writing for Mr and Mrs Skoczek and Tonadale, is it appropriate for the evidence to, in some way, be taken as a substitute for the pleadings.

5. [40]

   Finally, I should note that it is not the function of the Court to draw or settle a party's pleadings in a case where objectionable matter is so mingled with other matter that it may lead to the conclusion that the pleading as a whole would tend to embarrass a fair trial of the action and ought be struck out.

6. [41]

   An examination of the Amended Defence provides some indication that Mr and Mrs Skoczek and Tonadale seek to rely, in some way, upon the conduct of a Mr Gibson, who is said to have been an officer of NAB at the Business Banking Centre in Canberra. In the Amended Defence, Mr Gibson is mentioned in particulars to paragraph 5B and to paragraph 13. To the extent that the Amended Defence is based upon suggested representations or acts or omissions of Mr Gibson with respect to the Defendants, the Amended Defence is singularly uninformative as to what it is that Mr Gibson is alleged to have done or not done and where and when it occurred. There are generalised assertions by reference to Mr Gibson which, in my view, fail to satisfy the requirements of proper pleadings.

7. [42]

   There is a general assertion of unconscionable conduct in equity at paragraph 5C, by reference back to earlier imprecise allegations. By paragraph 8, there is a statement that Mrs Skoczek seeks to rely on hardship and relevant change of circumstances in certain respects, which are not identified or particularised.

8. [43]

   Set-off is referred to at paragraphs 6 and 9 in ways which are, to say the least, imprecise. There is a claim that the Defendants have suffered loss and damage and hardship in paragraph 13, with no adequate identification of the material facts supporting the claim.

9. [44]

   Paragraph 15 states that Mrs Skoczek seeks to have her guarantee declared void and set aside by reference to alleged breaches of the Code of Banking Practice, the National Credit Code, the Australian Securities and Investments Commission Act 2001 (Cth) and a breach of the Contracts Review Act 1980, with these things said to be referable to early parts of the Amended Defence. I have done my best to try and comprehend this pleading, but I do not find earlier parts of the Amended Defence which assist an understanding of this claim.

10. [45]

    Paragraph 15 indicates that Mrs Skoczek relies on the principles in Yerkey v Jones [1939] HCA 3; 63 CLR 649 in a way described generally, with a further assertion that the Contracts Review Act 1980 is to be relied upon. Once again, the document purports to relate back to earlier pleadings which, on my examination, do not illuminate at all what those claims are.

11. [46]

    In my view, the Amended Defence is affected to such an extent by pleading deficiencies that the entire document should be struck out: McGuirk v University of New South Wales at [35] (see [25] above).

12. [47]

    The Further Amended Cross-Claim also has a number of significant deficiencies. I pass by the particular aspects concerning Challenger at paragraphs 1A and 2 of which I have made brief mention.

13. [48]

    I have not struck out those parts of this pleading which refer to trailing commissions upon the basis that they disclose no reasonable cause of action or defence. As I explained (at [34]-[35] above), my decision in that respect is one which spares the pleadings from execution on that basis, but provides no endorsement for the content of the claim.

14. [49]

    At paragraphs 5, 6, 11 of the Further Amended Cross-Claim, there are references to the trailing commissions with occasional mention of set-offs or offsets as well. These claims are, in my view, difficult to comprehend. They are embarrassing in nature in that they are expressed in a general way without expression or articulation of material facts. Whether Mr and Mrs Skoczek and Tonadale have any viable argument by reference to trailing commissions and set-offs is an open question at best, but the claims as presently drawn are, in my view, impossible to comprehend.

15. [50]

    A party to litigation should not be confronted with pleadings in this form, nor, for that matter, should the Court.

16. [51]

    Other deficiencies in this pleading include the use of conclusionary statements, such as paragraph 9, and allegations which are not properly identified or particularised in accordance with the UCPR.

17. [52]

    Paragraph 13A, which was added in the amendments made on 11 October 2016, purports to repeat all the matters set out in the Amended Defence as if they were set out in this pleading, thereby incorporating the deficiencies of the other pleading into this one, in a manner which does not assist any understanding of either document. Once again there are references to Mr Gibson at paragraphs 14 and 15 of the Further Amended Cross-Claim. They are expressed, however, in a way that is difficult to understand and fail to comply with the requirements of the law of pleading.

18. [53]

    There is, in paragraph 18 of the Further Amended Cross-Claim, a claim for aggravated damages based on an allegation of emotional harm being suffered by Mr and Mrs Skoczek. The pleading fails to comply with UCPR 15.8, in that there is no particularisation in accordance with the rules of the claim for aggravated damages.

19. [54]

    Once again, in my view, the appropriate course is to strike out the entire Further Amended Cross-Claim. There is no utility in trying to salvage some part of it in circumstances where it is, in my view, essentially defective: McGuirk v University of New South Wales at [35] (see [25] above).

Consequential Orders Requiring Leave of the Court

1. [55]

   Mr Kaufmann has submitted that given the history of this litigation, which has been on foot now for 16 months, and the various iterations of pleadings which have come forward and been amended or further amended, the appropriate order at this point is to strike out the pleadings and to grant Mr and Mrs Skoczek, and Tonadale, an opportunity, by a nominated date, to file a Notice of Motion and an affidavit in support seeking the leave of the Court to rely upon a Further Amended Defence and a Second Further Amended Cross-Claim. Mr Loxton accepted that this was a not an unreasonable approach given the position that has been reached in this litigation.

2. [56]

   I am satisfied that it is appropriate to place a time limit for Mr and Mrs Skoczek, and Tonadale, to make such an application. I will allow until 13 January 2017 for the appropriate Notice of Motion and affidavit, accompanied by draft pleadings, to be filed. The scenario which may present itself, if that approach is not taken, is that a further amended set of pleadings is put on and NAB is once again required to take up the running by way of a strike out application.

3. [57]

   Bearing in mind the obligations of the parties and the Court under the Civil Procedure Act 2005, the time has come for the use of orders of this type.

4. [58]

   With respect to Challenger, it was submitted that in addition to the orders sought in the Notice of Motion, an order should be made that Mr and Mrs Skoczek, and Tonadale, not be permitted to bring a Cross-Claim or a further claim against Challenger without the leave of the Court. I consider that this approach is appropriate in the circumstances.

5. [59]

   It was submitted by Mr Kaufmann that a similar approach should be taken with respect to Advantedge. Once again, I am satisfied that this approach is appropriate. The effect of this will be that Mr and Mrs Skoczek, and Tonadale, will need the leave of the Court to file a Further Amended Defence and Second Further Amended Cross-Claim in any event. However, if they seek to bring proceedings against Challenger and/or Advantedge, then it will be necessary for them to demonstrate the basis upon which leave should be granted for them to bring a claim against either or both of those entities.

6. [60]

   I note that a costs order has been proposed on behalf of Challenger which would see the Cross-Claimants being ordered to pay Challenger's costs. Some question was raised that the reason why Challenger was joined in the first place was as a result of a suggestion made on behalf of NAB. If there be an argument to that effect, then it was proposed that the Cross-Claimants have leave to seek a costs order against NAB, being a costs order referable to the costs that they will otherwise have to pay to Challenger. I will build that proposal into the orders which I make, as against the possibility that this scenario is sought to be further litigated.

7. [61]

   The effect of the judgment which I have delivered will be that this litigation, which has been before the Court now for some time, will need to progress promptly and in accordance with the Civil Procedure Act 2005 and the UCPR if a Further Amended Defence or a Second Further Amended Cross-Claim is to be agitated.

8. [62]

   In the event that the order of the Court is not complied with, and there is no further application made by 13 January 2017, then, on the face of it, NAB would be in a position to seek default judgment if it was otherwise appropriate to make such application.

9. [63]

   With respect to Challenger, I make the following orders:

10. [64]

    I move to orders with respect to NAB. I make the following orders:

11. [65]

    I grant the parties liberty to restore the matter to the list on three days’ notice.