Ward v Westpac Banking Corporation Limited

1. [1]

   THE COURT: This is an application for leave to appeal from a decision of Kunc J in which his Honour struck out the applicants’ defence to a cross-claim filed by the first respondent, Westpac Banking Corporation Limited (Westpac), without leave to replead: Ward v Westpac Banking Corporation Limited [2024] NSWSC 669. Having struck out the defence, his Honour dismissed a notice of motion the applicants had filed by which, relevantly, they sought to strike out the second respondent’s defence to the cross-claim and appoint the second applicant, Peter Shah Mahommed, to represent the beneficiaries in relation to the cross-claim.

2. [2]

   The principal proceedings, which the applicants commenced by statement of claim, an amended version of which was filed by consent on 31 May 2021, involved a dispute as to the legal and beneficial ownership of two properties, which were referred to as the Lovedale property and the Maitland property. The defendants to the proceedings were Westpac and the second respondent, Karen Cox, as the administrator of the estate of David William Dixon, the registered proprietor of the two properties. On 4 April 2022, the applicants were ordered jointly to pay security for the costs of both respondents. An appeal from that order was unsuccessful: Ward v Westpac Banking Corporation Limited [2023] NSWCA 11 (“Ward (CA)”).

3. [3]

   The applicants failed to provide the ordered security; and on the application of each of the respondents the amended statement of claim was dismissed on that basis in August 2023. Additionally, Ms Cox applied to strike out the applicants’ defence to the cross-claim, alleging that it was an abuse of process. In acceding to that application, the primary judge concluded that the defence circumvented the Court’s process as given effect by the order for security for costs in respect of the amended statement of claim and its subsequent dismissal, and thereby constituted an abuse of process.

4. [4]

   As a consequence of their defence to the cross-claim being struck out without leave to replead, the applicants were removed as parties to the cross-claim and the remaining parties, being Westpac and Ms Cox, agreed orders to resolve it. The orders included judgment for possession of the two properties in favour of Westpac along with leave to apply for the issue of a writ of possession. The latter grant of leave has been stayed pending resolution of the application for leave to appeal.

5. [5]

   The applicants’ draft notice of appeal seeks relief in respect of the decision to strike out their defence to the cross-claim and to dismiss their notice of motion, as well as the orders his Honour made to determine the cross-claim. However, the relief that the applicants seek extends beyond the orders that followed from the primary judgment, and includes reinstatement of the amended statement of claim.

6. [6]

   Although the decision of the primary judge had the effect of bringing the applicants’ involvement in the proceedings to an end, it was interlocutory in character and thus requires leave: Supreme Court Act 1970 (NSW), s 101(2)(e). For the reasons which follow leave to appeal should be refused. In so far as relief was sought in relation to the order dismissing the amended statement of claim, an application for leave to appeal from that order is outside the time permitted by r 51.10(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). The applicants did not seek an extension of time and none should be granted. It follows that the summons should be dismissed.

Background to the primary decision

1. [7]

   The background to the application for leave to appeal may conveniently be addressed by reference to the reasons of the primary judge at [9]-[16]. In 2020, the applicants commenced proceedings against Westpac and the Registrar-General of New South Wales. On 31 May 2021, Ms Cox was joined pursuant to an amended statement of claim by which the applicants added claims against the estate of the late Mr Dixon.

2. [8]

   In Ward (CA), Griffiths AJA (with whom Ward P and Adamson JA agreed) identified, in [13], a number of features of the amended statement of claim, which totalled 112 pages. Contrary to the applicants’ written and oral submissions on the present application, Griffiths AJA did not there make any findings of fact in respect of what was pleaded. Rather, his Honour was seeking only to summarise aspects of the pleading, having earlier observed, at [10], that “the prolixity and opaqueness of large parts of the pleading partly underpinned the primary judge’s description of the proceeding as ‘oppressive’.” It is convenient to reproduce Griffiths AJA’s summary, which the primary judge in the present case adopted at [9]:

3. [9]

   On 2 March 2021, Westpac filed a cross claim that, relevantly, sought judgment for possession of the properties. Griffiths AJA made the following observations about the cross-claim in Ward (CA) at [14]:

4. [10]

   On 31 May 2021, Darke J made orders by consent including that the applicants file the amended statement of claim and be joined as cross-defendants to the cross-claim. The applicants were also ordered to file their defence to the cross-claim by 31 May 2021, a form of which had been circulated in draft to Westpac’s solicitors on 19 May 2021. The applicants ultimately filed that defence on 20 September 2021. As Senior Counsel for Westpac submitted orally in this Court, by reference to particular paragraphs of the amended statement of claim and the defence to the cross-claim, the applicants reagitated in the latter the positive claims they advanced in the former. The primary judge noted that the defence to the cross-claim incorporated by reference many paragraphs of the amended statement of claim.

5. [11]

   On 4 April 2022, pursuant to the Court’s inherent jurisdiction, Lindsay J ordered that by 4 August 2022 the applicants jointly provide security for Westpac’s costs in the sum of $150,000 and Ms Cox’s costs in the sum of $125,000; and stayed the proceedings until such time as the security was provided. The deadline for providing the security was extended twice, first to 2 December 2022 and then to 17 February 2023. As noted above the appeal from the security for costs order was unsuccessful.

6. [12]

   On 16 June 2023, Ms Cox filed a notice of motion, which was amended on two occasions. The relief sought in her further amended notice of motion, dated 1 August 2023, relevantly included that the amended statement of claim be dismissed and the applicants’ defence to the cross-claim be struck out. According to the primary judge, Westpac also filed a notice of motion to dismiss the amended statement of claim for want of provision of security: at [20].

7. [13]

   On 18 August 2023, the respondents’ notices of motion, together with the applicants’ notice of motion referred to in [1] above, came before the primary judge for directions. According to his Honour, on that occasion the solicitor for the applicants “candidly accepted that he could not articulate any basis for opposing the dismissal of the [amended statement of claim]”: at [20]. The orders his Honour made on that occasion thus included an order dismissing the amended statement of claim, noting that the applicants had failed to give the security for costs ordered on 4 April 2022. His Honour also listed the balance of the Ms Cox’s further amended notice of motion, and the applicants’ notice of motion, for hearing on 7 September 2023.

8. [14]

   In the course of the hearing of the motions, the applicants’ solicitor submitted that his clients could defend the cross-claim without relying on the positive allegations in the (dismissed) amended statement of claim. The parties accepted that the applicants should be given an opportunity to propound such amendments in draft. The applicants provided a further version of the defence to the cross-claim (the draft defence) as an attachment to written submissions dated 9 November 2023. As is apparent from a comparison of the applicants’ filed defence and the draft defence, for the greater part the amendments involved striking through most (albeit not all) references to the amended statement of claim. The effect of removing the cross-references was to leave conclusory assertions apparently unsupported by allegations of material fact. Additional positive claims were also advanced, including a claim by Mr Mahommed for adverse possession of the Maitland property.

9. [15]

   Following receipt of the draft defence, the parties agreed that the Court could determine the motions with further written submissions, including from Westpac (which had been excused from the further hearing of the motions upon dismissal of the amended statement of claim but had an interest in some of the amendments proposed in the draft defence): at [22].

Primary judgment

1. [16]

   The primary judge approached the abuse of process argument on the basis that the applicants’ case as pleaded in the amended statement of claim, “while oppressive, presented at least an arguable case” (at [10]), and expressly adopted the same approach in relation to the defence to the cross-claim: at [26]. Accordingly, it was not necessary to make further reference to what his Honour described as “the extensive primary evidence relied on by Mr Smits going to demonstrate what he said was the strength of his clients’ case” (at [10]), although his Honour summarised the “lengthy submissions” put by the applicants’ representative in [27] of the reasons.

2. [17]

   The primary judge’s ultimate conclusion on Ms Cox’s application to strike out the applicants’ defence to the cross-claim was as follows (at [46]):

3. [18]

   His Honour characterised the making of the security for costs order, based on an assessment that the amended statement of claim was oppressive, and the subsequent striking out of the amended statement of claim, as representing a determination by the Court that the respondents “should not be vexed by the applicants’ allegations without the protection of security for costs”. Permitting the defence to the cross-claim would permit the oppression that the security for costs order had sought to ameliorate, as well as defeating the public interest in the timely and efficient administration of justice “by permitting the ventilation of allegations foreclosed to the plaintiffs by the dismissal of the [amended statement of claim] for failure to provide security”: at [48]. On the assumption that the applicants could properly advance their central allegations of entitlement to the two properties against Westpac’s otherwise indefeasible rights in a defence to Westpac’s cross-claim (as opposed to a statement of claim), his Honour considered that to do so would “permit by the back door what has been forbidden through the front door”: at [49].

4. [19]

   His Honour had earlier expressed the view that the applicants could not advance their claims to priority over Westpac’s registered mortgages by way of defence to the amended cross-claim, without more. Read as a whole and as a matter of substance, the draft defence to the cross-claim involved claims of debt, fraud, trust and possession of land. His Honour considered that such claims would require relief including for possession and declarations of right, and yet were presented in the pleading at a level of assertion: at [40]. His Honour stated at [41]:

5. [20]

   Importantly for the present application, his Honour also made it clear that his conclusion as to abuse of process did not depend on this analysis: at [45]. What was critical to his Honour’s conclusion as to abuse of process was that the overall burden of the applicant’s defence and (draft defence) was “to seek to make out an in rem claim to the properties superior to that of Westpac, including a claim to possession…or otherwise to defeat Westpac’s indefeasible position as registered mortgagee of the properties with a right to a money judgment and the proceeds of sale”: at [50]. This had been the subject of the amended statement of claim, which the applicants had accepted was necessarily dismissed given their non-payment of the security.

6. [21]

   In the circumstances, his Honour considered that it was not practicable or consistent with the Court’s conclusions, or the overriding purpose under the Civil Procedure Act 2005 (NSW), to pick through the defence or the draft defence to see what may survive as properly defensive: at [50]. The only practical course, in his Honour’s opinion, was to strike out the entire defence: at [51]. His Honour confirmed that he would not grant leave to replead by filing the draft defence, or allow any further opportunity in that regard: at [51].

The application for leave to appeal

1. [22]

   Leave applications in this Court attract a general obligation on the applicant to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6], citing Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”) at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. As Kirk and McHugh JJA stated recently in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [26], [31], a range of considerations may be relevant, including the matters addressed in ss 56-58 of the Civil Procedure Act, emphasising in that context the reasons of Basten JA in Be Financial at [35]-[37].

2. [23]

   Central to the applicants’ submissions in support of leave to appeal was the contention that dismissing their defence to the cross-claim without leave to replead “should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence”. The applicants submitted that the decision of the primary judge created substantial injustice by imposing “effectively punitive sanctions” which extended beyond the usual or intended effects of an order for security for costs. The preclusion of a right to defend the cross-claim resulted, in their submission, in the involuntary alienation and dispossession of proprietary or beneficial interests in property, which was not an intended incident or byproduct of the security for costs orders.

3. [24]

   The focus of the applicants’ summary of argument and oral submissions was the merits of the claims they had made in the amended statement of claim and in the defence to the cross-claim, which were the subject of proposed grounds 7 and 8 of the draft notice of appeal. The applicants submitted that the case was really concerned with the indefeasibility of the registered mortgages that Westpac held over the two properties in circumstances where Mr Mahommed was the beneficial owner of the two properties and the first applicant, Roger Ward, held a security interest over one of the properties. They submitted that the primary judge should have made findings about the circumstances in which Mr Dixon came to be the registered proprietor of the properties and Westpac came to hold mortgages over them. They submitted that instead, his Honour had erroneously adopted findings from the earlier decision (of the Court of Appeal). The applicants further submitted that both applicants would suffer “extreme injustice” if they did not have their day in court to advance these claims by way of defence of the cross-claim.

4. [25]

   Contrary to the applicants’ preoccupation with the merits of those claims, the primary judge assumed they were arguable without needing to evaluate them. What was dispositive to his Honour’s decision was that claims of that same kind were the subject of the amended statement of claim, the applicants’ prosecution of which was subject to an order for security for costs which they failed to satisfy, an appeal from that order having been dismissed. As both respondents submitted orally, the applicants’ preoccupation with their claims for priority of their interests in the properties over Westpac’s registered mortgages served only to highlight the correctness of the primary judge’s conclusion that it would be oppressive to the respondents, and defeat the public interest in the timely and efficient administration of justice, to permit the positive allegations in the dismissed amended statement of claim to be agitated by way of defence to the cross-claim.

5. [26]

   Critically, as Westpac pointed out, the applicants did not challenge the correctness of that key conclusion, on the assumption that correctness is the standard of appellate review in respect of the finding of abuse of process: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 414 ALR 635 at [16]-[17]. Proposed ground 3 in the draft notice of appeal asserted that the primary judge erred in reaching that conclusion. However, no basis was articulated for that error, and the submissions on that ground, and proposed ground 2, were directed to the primary judge’s analysis of whether it was open to the applicants to raise matters of this nature by way of a defence.

6. [27]

   The applicants submitted in that respect that the primary judge failed to consider that they had the same rights in respect of their defence to the cross-claim as they would have in separate proceedings constituted by the cross-claim, relying on s 22(3) of the Civil Procedure Act. The applicants submitted that their defence to the cross-claim satisfied most pleading requirements and the test of an arguable or reasonable defence and was sufficient to constitute a defence. The primary judge erred, they submitted, in attempting to limit material facts and issues required to be stated in the defence to the cross-claim. The difficulty with these arguments for the purposes of leave to appeal is that as noted above, the primary judge made it clear that his Honour’s conclusion as to abuse of process did not rest on that analysis.

7. [28]

   The applicants also did not articulate with precision any error in the exercise of the primary judge’s discretion to refuse them leave to replead, which would need to satisfy the criteria in House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40. The applicants referred to the powers of the Court under s 64 of the Civil Procedure Act, which permits repleading. As Westpac submitted, that provision confers a discretion on the Court, to be exercised in accordance with the dictates of justice, including s 56 of the Civil Procedure Act. As Westpac further submitted, it is of significance in this context that the primary judge gave the applicants an opportunity to replead the defence to the cross-claim without relying on the positive claims pleaded in the amended statement of claim, which they took up albeit in a manner that did not address the critical concern (see [14] above). As the primary judge said at [44], the draft defence which the applicants put forward would have been liable to be struck out as asserting conclusions without material facts. That the primary judge gave the applicants this opportunity answers the argument the applicants advanced on this application, that his Honour had a broad power to grant leave to amend and could have permitted amendment of their defence subject to conditions.

8. [29]

   The applicants also submitted that as a matter of substance, the primary judge’s decision involved the revocation of the consent orders that Darke J made on 31 May 2021, pursuant to which they were permitted to file the defence to the cross-claim. In their summary of argument, the applicants submitted that his Honour’s decision to strike out their defence to the cross-claim wrongly permitted the respondents to depart from those consent orders, going so far as to submit that they were bound by what was described as an election made in the proceedings. The orders of Darke J, even if by consent, were concerned with the filing of pleadings. They did not preclude the respondents from taking other procedural steps to protect their interests, in particular making applications for security for costs, which they respectively filed on 29 June 2021 (Ms Cox) and 19 October 2021 (Westpac). It was the dismissal of the applicants’ statement of claim, consequential upon their failure to provide the ordered security, that gave rise to the abuse of process that the primary judge ultimately found. No arguable error arises in this respect.

9. [30]

   Proposed grounds 4, 5 and 6 of the draft notice of appeal raised issues that arose on the applicants’ notice of motion, which the primary judge did not deal with as it was superseded by his Honour’s striking out of the applicants’ defence to the cross-claim. There was no error in taking that approach in light of the conclusions his Honour reached.

10. [31]

    The applicants also contended that the primary judge should have found that the orders for security for costs and the dismissal of the amended statement of claim were either liable to be set aside or should not have constrained the defence to the cross-claim. As the Court noted at the outset of these reasons, the applicants did not seek an extension of time to challenge the dismissal of the amended statement of claim, against which they did not seek to be heard at the time it was made.

11. [32]

    Finally, the Court notes that the applicants submitted that the primary judge erred in failing to take into account the effects of a complaint that Mr Mahommed had lodged against Westpac with the Australian Financial Complaints Authority (AFCA), in circumstances where the rules of AFCA precluded Westpac from taking any action in respect of the loan securities. No proposed ground of appeal was directed to this complaint, the validity of which Westpac took issue with in its response. In any event, the existence of a complaint made to AFCA, whether valid or not, did not relevantly bear upon the applications that the primary judge was determining.

Conclusion

1. [33]

   The Court acknowledges that the primary judge’s decision has effectively brought the proceedings to an end. However, the applicants have not identified a clear injustice going beyond something that is merely arguable such as would warrant a grant of leave to appeal. The summons should be dismissed. It follows that the stay that the primary judge granted, referred to in [4] above, should be discharged.

2. [34]

   The respondents sought costs in the event that the Court refused leave to appeal. The applicants submitted that no order for costs should be made, on the basis that their appeal had reasonable prospects of success, and the challenge to the right to maintain the defence to the cross-claim arose three years after consent orders were made and “in the context of preclusions created by interlocutory orders that were obtained irregularly”. The first reason does not displace the ordinary rule, and there is no substance in the second reason. The applicants will be ordered to pay the respondents’ costs.