Musgrave v Australia and New Zealand Banking Group Limited
[2009] QDC 263
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- Unreported Judgment
- Musgrave v Australia and New Zealand Banking Group Limited[2009] QDC 263
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Musgrave v Australia and New Zealand Banking Group Limited[2009] QDC 263
Musgrave v Australia and New Zealand Banking Group Limited[2009] QDC 263
[2009] QDC 263 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 1814 of 2009 | |
A MUSGRAVE | Applicant |
and | |
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED | Respondent |
BRISBANE | |
DATE 30/06/2009 | |
ORDER |
CATCHWORDS: | District Court of Queensland Act s 68, s 69, s 85 - Court held it lacked jurisdiction to entertain a claim for a declaration regarding and injunction restraining "collection activity" - although immediate concerns related to threatened debiting of a sum within jurisdiction, the consequence of debiting might be that the whole debt became due. |
HIS HONOUR: This application by Mr Musgrave, a barrister who is self represented, is one in the form of an originating application seeking the following relief:
- "A declaration that, on its proper construction, the contract for the provision of financial services between the applicant and respondent includes as terms the Financial Ombudsman Service's Terms of Reference, Guidelines and associated Policy Statements and the Banking Industry Code of Practice ("the Dispute Resolution Terms").
- A declaration that, on its proper construction, the Dispute Resolution Terms require that the respondent suspend collection and recovery action including making demand on the applicant for payment of any amount or debiting the account of the applicant for amounts the subject of the dispute between the applicant and respondent before the Financial Ombudsman Service until such time as the Financial Ombudsman Service completes its consideration of the matter in dispute between the applicant and the respondent.
- An injunction, including interim or interlocutory injunctions, restraining the respondent from making demand on the applicant for payment of any amount (including debiting, or attempting to debit, any account of the applicant) for the amount being a part of the subject matter of the dispute between the applicant and respondent before the Financial Ombudsman Service until such time as the Financial Ombudsman Service considers the matter.
- That this matter be referred to mediation.
- The respondent pay the applicant's costs of the application."
Exhibit 1, which I accept for present purposes, was supplied to Mr Musgrave by the respondent Bank in June 2008 when he established an investment arrangement described as an APELS (ANZ Protected Equity Leveraged Solutions) investment.
The guidelines invite investors, if differences that may arise with the Bank can't be resolved by negotiation, to approach the Financial Ombudsman Service. Mr Musgrave has done that in a reference about which he is understandably coy, not only for purposes of preserving confidentiality but because of his concern that the Financial Ombudsman Service will not proceed any further with a complaint of which a Court becomes seized.
The expectation of the Ombudsman's office as communicated to Mr Musgrave, and no doubt to the Bank, is that the financial services provider, namely the Bank, will "suspend any collection activity or recovery action upon notification."
There's no guidance available anywhere, it seems, as to what is collection activity. Mr Musgrave asserts that it extends to debiting his investment account with an amount of some $137,000 for interest, which the Bank threatens to do today, having allowed only a few days' grace.
From the course of discussions that have been going on for some weeks, Mr Musgrave's concern is that the making of that debit, or the entry of that debit, will place him in default which may embarrass him, and not just in his affairs with the Bank but more generally in a commercial sense.
He is anxious not to have that large debit which he may well be unable to pay. It's not appropriate for me to make any pronouncements about whether what he wants to restrain the Bank from doing amounts to "collection activity" or whether he should or should not be expected to give the usual undertaking as to damages, given that I've reached the view that the Court has no jurisdiction.
Relief of the kind that is sought on an interim basis comes within section 69 of the District Court of Queensland Act 1967, but that is available only in a proceeding in which the Court has jurisdiction under section 68. The potentially relevant jurisdiction is that under subsection (1)(b) in actions and matters:
"(xiii)For the determination of any question of construction arising under a deed, will or other written instrument, and for a declaration of the rights of the persons interested where the sum or the property in respect of which the declaration is sought does not exceed in amount or value the monetary limit."
It is a curiosity that Mr Musgrave hasn't put before the Courtthe "written instrument" whose construction he desires. The guidelines referred to qualify as a written instrument, but have no particular reference to Mr Musgrave.
Mr Kimmins' affidavit, prepared in haste for the Bank, does exhibit what are presented as the relevant forms to enter into an APELS transaction. Mr Musgrave's signature appears on pages 12 and 14. At least on the latter, one finds the loan amount requested as $1,000,000 with interest "fixed". It would appear that the arrangements were for annual payments of interest in advance, the first (the Court hears) being made in June 2008 at the time of the establishment of the APELS arrangement. The next was due a few days ago.
Mr Musgrave has sought leave to make, and formulated on the run, amendments to his originating application calculated to show that he is only seeking relief in respect of a single $137,000 amount. I've concluded that this isn't a sound approach. The Court has learned that, unsurprisingly, if there's default in paying interest when it's due the Bank is entitled to terminate the whole arrangement, to call up the principal which straight away gets us into financial realmsfar in excess of the monetary limit on this Court's jurisdiction. It may be accepted that the Court would have jurisdiction to entertain a claim for a deposit or instalment within the monetary limit under a contract of sale for a price multiples of that limit (which could not be enforced fully in the Court). The present is not that straightforward a case.
The Bank, represented by Mr Clothier, is contesting the Court's jurisdiction. Any relief that this Court gave would be subject to being set aside on appeal as occurred in matters such as Startune Pty Ltd v Ultra-tune Systems (Aust) PtyLtd [1991] 1 QdR 192 and Matelot Holdings Pty Ltd of the Gold Coast City Council [1993] 2 QdR 168. By seeking declarations, as he has, Mr Musgrave has avoided the pitfall exposed him in Matelot Holdings.
However, in my opinion it's not possible to avoid an analysis in which "the property in respect of which the declaration is sought" does exceed the "monetary limit". In the end Mr Musgrave was constrained to ask the Court to transfer the proceeding to the Supreme Court which is what I'd effectively indicated to him I thought the Court ought to do. That possibility doesn't apply if the proceeding has to be struck out under subsections(4) and (5).
The circumstances are such that it wouldn't be right todetermine against Mr Musgrave that he is blame-worthy for having proceeded in this Court. So, to keep alive Mr Musgrave's hope of obtaining the relief which he needs urgently in the Supreme Court this afternoon I'll order under section 85(2) of the District Court of Queensland Act 1967 that the proceeding be transferred to the Supreme Court. There's still nothing filed in the Court. Leave to bring the application in terms of the document handed up having been granted by me this morning, that's all I need do. I'll reserve costs if you like.
...
HIS HONOUR: I'm going to reserve costs.