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Laverick v Westpac Banking Corporation[2020] QSC 333

Laverick v Westpac Banking Corporation[2020] QSC 333

SUPREME COURT OF QUEENSLAND

CITATION:

Laverick v Westpac Banking Corporation [2020] QSC 333

PARTIES:

KEVIN JAMES LAVERICK

(Plaintiff)

v

WESTPAC BANKING CORPORATION ABN 33 007 457 141

(Defendant)

FILE NO/S:

BS No 976 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

6 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2020

JUDGE:

Bowskill J

ORDERS:

  1. The whole of the statement of claim filed on 18 August 2020 is struck out, pursuant to r 171(1)(a) and (b) of the Uniform Civil Procedure Rules 1999.
  2. The plaintiff has leave to replead, subject to the limitations expressed in paragraph [59] of these reasons.
  3. I will hear from the parties in relation to the timing of directions for the filing of any amended claim and statement of claim, any consequential orders and as to the costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPEARANCE OR NOTICE TO DEFEND – CONDITIONAL APPEARANCE – where the plaintiff brings proceedings against the defendant on the basis of an assignment, recorded in consent orders made by the Family Court of Australia, to him from the estate of his late de facto partner, of “any potential claim or action” she may have had against the defendant “in respect of the mortgage on” certain property – where the proceedings seek to challenge the validity of the loan agreement between the defendant bank and the plaintiff’s late former partner, on the basis of allegations of wrongful conduct on the part of the mortgage broker and the defendant bank at the time of approving and entering into the loan agreement – whether a claim in relation to the validity of the loan agreement falls within the scope of the assignment – whether the plaintiff has standing to bring the proceeding

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – whether the statement of claim should be struck out on the basis that it discloses no reasonable cause of action

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 144, r 171

COUNSEL:

The plaintiff/respondent appeared in person

F Lubett for the defendant/applicant

SOLICITORS:

The plaintiff/respondent appeared in person

Thomson Geer for the defendant/applicant

  1. [1]
    By originating application filed on 28 January 2020 the plaintiff, Mr Laverick, sought orders against the defendant, Westpac, including:
    1. (a)
      a declaration that the loan agreement dated 30 July 2007, made between Westpac as lender and Joanne Kathryn Tyler-Jenkins as borrower, and the mortgage, registered number 710890490, over Lot 31 on RP 125185, between Ms Tyler-Jenkins as mortgagor and Westpac as mortgagee, are “void in whole”;
    2. (b)
      an order for all interest paid to Westpac “in connection with” that land be “remitted to the plaintiff” (estimated at $327,600);
    3. (c)
      an order that “all initial finance” provided by the borrower, for the purchase of the land, be “remitted to the plaintiff” (in the sum of $210,391.91);
    4. (d)
      an order that all subdivision costs incurred by the borrower, in the subdivision of the land, is “remitted to the plaintiff” (in the sum of $496,320.21); and
    5. (e)
      an order that any increase in value received by the borrower, in the subsequent sale of the land, “is deducted from the Respondents indebtedness to the plaintiff estimated at $195,000”.
  2. [2]
    On 29 July 2020 an order was made that the proceeding continue as if commenced by claim and leave was granted to Mr Laverick to file an amended originating document, in the form of a claim, and a statement of claim.
  3. [3]
    According to the claim filed on 18 August 2020, Mr Laverick claims against Westpac:

“1. The Sum of $2,446,589.70 as for loss and damages identified in paragraph 98 together with items A, B, C, D, F and H of the Statement of Claim.

  1. The plaintiff further claims $1,035,520.63 in respect of unjust enrichment of the defendant, including an amount of $383,142.63 in respect of income tax.
  1. An amount to be assessed and determined by the court in unliquidated damages for, loss of employment opportunity and cost of sole financial responsibility for the Child of the Relationship.
  1. Pecuniary Damages at the discretion of the court.” [Together with interests and costs.]
  1. [4]
    On 11 September 2020 Westpac filed a conditional notice of intention to defend, contending that the proceeding is irregular because:
    1. (a)
      the plaintiff does not have standing to bring the claim; and
    2. (b)
      further or alternatively, the claim (and statement of claim) discloses no reasonable cause of action.
  2. [5]
    As required by r 144(4) of the Uniform Civil Procedure Rules 1999 (UCPR), Westpac also filed an application seeking orders:
    1. (a)
      that the claim be set aside under r 16(e) UCPR;
    2. (b)
      alternatively, that the proceedings be stayed under r 16(g) UCPR;
    3. (c)
      alternatively, that the whole of the statement of claim filed on 18 August 2020, or parts of it, be struck out under r 171(1)(a) to (d) UCPR.

Should the claim be set aside entirely on the basis of a lack of standing?

  1. [6]
    Mr Laverick contends he has standing to bring the claim against Westpac as the assignee of his late former partner, Ms Tyler-Jenkins.
  2. [7]
    Mr Laverick and Ms Tyler-Jenkins were involved in family law proceedings from 13 February 2012.  Ms Tyler-Jenkins passed away in July 2018, leaving the couple’s child in the care of Mr Laverick.  Family Court proceedings in relation to the property of Mr Laverick and Ms Tyler-Jenkins were finally determined by consent orders made on 12 November 2019. 
  3. [8]
    Order 19 of those orders was in the following terms:

“The Estate [that is, the Estate of Ms Tyler-Jenkins] hereby assigns to Laverick all the right title and interest of the late Joanne Kathryn Tyler-Jenkins to any potential claim or action against Westpac Bank Limited in respect of the mortgage on the Carrara Properties.  Laverick shall solely have the carriage of any such claim or action and indemnifies and keeps indemnified the Estate and Matthews [Ms Tyler-Jenkins’ mother] from any and all costs incurred in pursuing any such claim.  In the event Laverick pursues such a claim he shall do it in his sole name having disclosed to the respondent to it that he is the assignee of the rights of the late Joanne Kathryn Tyler-Jenkins and that he is entitled to make the claim in his name as assignee.  Laverick shall be solely entitled to the fruits of any such claim and shall be solely responsible for all costs incurred in pursuit of the same or ordered by the Court against the claimant.” [underlining added]

  1. [9]
    The background to this appears to be as follows.  In about 2007, Ms Tyler-Jenkins applied for an investment loan to purchase a block of land located at 21 Garden Grove, Carrara.   Westpac made a loan offer to Ms Tyler-Jenkins, for a loan of $733,000, which Ms Tyler-Jenkins accepted on 4 July 2007.[1]
  2. [10]
    The loan was secured by a mortgage in respect of 21 Garden Grove, Carrara (described as lot 31 on RP 125185) granted by Ms Tyler-Jenkins as mortgagor to Westpac as mortgagee.[2]
  3. [11]
    The land was subsequently subdivided into two lots, which were sold in late 2013 and early 2014.   The loan was repaid and the mortgage discharged in January 2014.
  4. [12]
    It is uncontroversial that the reference to “Carrara Properties” in order 19 is a reference to the Carrara property, the subject of the mortgage, which was later subdivided into two lots.
  5. [13]
    Mr Laverick contends that there were anomalies in the loan application documentation, including overstatement of income and assets, and understatement of liabilities, as a result of which the loan was approved for a higher amount than Ms Tyler-Jenkins could afford.[3]  Mr Laverick says that, initially, he and Ms Tyler-Jenkins were to apply for the loan jointly, and so the information provided to Westpac by the mortgage broker they were dealing with reflected the combined resources of Mr Laverick and Ms Tyler-Jenkins.  Mr Laverick subsequently decided to withdraw from the transaction.   He says the mortgage broker “provided figures of assets and income on behalf of [Ms Tyler-Jenkins] which were contrived and a gross exaggeration of [her] financial position”.[4] 
  6. [14]
    Mr Laverick says that Ms Tyler-Jenkins wrote to various industry bodies, and also to Westpac, in late 2012, about her concerns regarding the loan, requesting a copy of her loan application form, among other things.[5]   Ms Tyler-Jenkins also made a complaint to the Financial Ombudsman Service (FOS), contending that Westpac had “engaged in maladministration in lending when it provided her with an investment property loan in July 2007”.  In its determination dated 29 April 2014, the FOS found that no maladministration had occurred.[6]   Acknowledging the without prejudice basis on which the FOS operates,[7] it is apparent from the determination that allegations about the mortgage broker including inaccurate information in the loan application form, and Westpac failing to make appropriate enquiries about Ms Tyler-Jenkins’ ability to repay the loan, were a central part of the complaint.
  7. [15]
    Mr Laverick also contends that, when Ms Tyler-Jenkins was unable to sell the property, “she approached the Bank requesting approval for sub-division which was approved without any further financial checks and a further $400,000 in sub-division costs were incurred”.[8]  It is not alleged that this $400,000 was the subject of a further loan from Westpac.  The complaint appears to be that when giving its consent to Ms Tyler-Jenkins’ proposal to apply for approval to subdivide the land, Westpac did not make any enquiries as to whether she could afford to do so.
  8. [16]
    The central point of Mr Laverick’s complaint is that Westpac should never have loaned the money to Ms Tyler-Jenkins and should not have given approval for her to subdivide the land. 
  9. [17]
    By this proceeding, Mr Laverick seeks to recover an amount of money which he says is calculated to place him, as Ms Tyler-Jenkins’ assignee, in the position she would have been, had the loan never been granted.
  10. [18]
    It is clear, from what has just been set out, and from the content of the statement of claim, that the claims Mr Laverick seeks to advance against Westpac are concerned with the loan granted to Ms Tyler-Jenkins in 2007, as opposed to the mortgage, as a form of security for the loan, of itself.
  11. [19]
    Westpac submits that Mr Laverick lacks standing to bring the present claim because, having regard to the clear and unambiguous words of order 19, the only chose in action being transferred was the right to pursue a claim against Westpac “in respect of the mortgage on the Carrara Properties”.   Westpac submits that the mortgage, being the security for the loan, is distinguishable from the loan agreement; order 19 makes no reference to the loan agreement; it is clear from the statement of claim that Mr Laverick’s central complaint relates to Westpac’s conduct in approving and entering into the loan agreement; therefore, as a matter of construction, the words of order 19 are incapable of assigning any right to pursue a claim in respect of the loan agreement.
  12. [20]
    The wording of order 19, reflecting as it does the agreement of the parties to the consent orders, is to be construed in the same manner as a written agreement:[9]  that is, construed objectively, having regard to what a reasonable person in the position of the parties to it would have understood it to mean, having regard to the language used, the surrounding circumstances known to the parties at the time of the agreement and its purpose.[10]
  13. [21]
    Mr Laverick submits that where order 19 refers to “the mortgage” that should be understood as referring to the “loan secured by the mortgage”.  Mr Laverick’s submission should be accepted. 
  14. [22]
    Order 19 reflects the ultimate compromise of a family law proceeding between Mr Laverick and his late partner, and two corporate entities which I infer were associated with their respective (or perhaps previously joint) business interests.    The agreement reflected in the consent orders was in fact made by Ms Tyler-Jenkins’ mother, Ms Ann Matthews, in her capacity as the legal personal representative of the estate of Ms Tyler-Jenkins.  It is apparent from the material exhibited to Mr Laverick’s affidavits that the substance of Ms Tyler-Jenkins’ complaint was the loan itself, not merely the mortgage which secured the loan.  In this regard, I refer, in particular, to the correspondence apparently sent by Ms Tyler-Jenkins to various entities, including Westpac, in 2012, and the determination of the FOS in 2014.   It is reasonable to infer that the objective framework of facts within which the consent order came into existence included relevant knowledge on the part of both Mr Laverick and Ms Matthews, that this was the nature of any potential claim or action which Ms Tyler-Jenkins may have had against Westpac in respect of the Carrara property(ies). 
  15. [23]
    The standard terms of the mortgage incorporate the promise to pay “all money which you [Ms Tyler-Jenkins] owe the lender [Westpac] under the Secured Arrangements”, which is defined to mean any document, agreement or arrangement now or in the future, to which Ms Tyler-Jenkins and the bank are or become a party, under which obligations arise from Ms Tyler-Jenkins to the bank.[11]  That would plainly capture the loan agreement.
  16. [24]
    Further, I consider that a reasonable person, in the position of the parties to the consent order, would have understood the reference to “the mortgage on the Carrara Properties” to mean “the loan secured by the mortgage” in respect of the Carrara property(ies).  It is quite common for people, including lawyers, to speak of “paying the mortgage”, or “making mortgage repayments”, when what they are really referring to is repaying the loan, or making loan repayments.  In that context, it is reasonable to conclude that, construing the language used objectively, the intention of the parties to the agreement embodied in the consent order was to assign any potential claim or action Ms Tyler-Jenkins may have had against Westpac in respect of the loan secured by the mortgage; and not merely any potential claim or action she may have had in respect of the mortgage itself, as though it were a stand-alone transaction, divorced from the loan secured by it.
  17. [25]
    I therefore reject the argument that the claim should be set aside, and the proceeding struck out, on the basis of a complete lack of standing on the part of Mr Laverick.   However, such standing as Mr Laverick may have is limited to any potential claim or action which Ms Tyler-Jenkins may have had against Westpac in respect of the loan secured by the mortgage over the Carrara property(ies).   My conclusion in this regard is not to be understood as also carrying with it the conclusion that there is in fact any such claim or action capable of being pursued.

The alternative basis for claim – on behalf of the child

  1. [26]
    It is convenient to deal here with an alternative basis on which Mr Laverick purports to bring the proceedings.  In paragraph 7 of the statement of claim it is said that “[i]n the alternate the proceedings would continue in on behalf of Tyler-Laverick pursuant to s 66 of the Succession Act 1981 and s 6.18 of the UCPR”.
  2. [27]
    Tyler is the child of Mr Laverick and Ms Tyler-Jenkins.  Mr Laverick says that he is the beneficiary of the whole of Ms Tyler-Jenkins’ residual estate.
  3. [28]
    Paragraph 7 reflects a misunderstanding of the effect of s 66 of the Succession Act 1981 (Qld).  It does not operate such that the present proceedings, commenced by Mr Laverick as plaintiff, on the basis of a right purportedly assigned to him by order 19 of the Family Court order, could continue on behalf of the beneficiary of Ms Tyler-Jenkins’ estate.  It is not clear what the reference to “s 6.18 of the UCPR” is intended to be.
  4. [29]
    It is appropriate that paragraph 7 of the statement of claim be struck out.

Should the statement of claim be struck out under r 171?

  1. [30]
    Westpac also applies for an order that the statement of claim be struck out in its entirety under r 171 UCPR.
  2. [31]
    Rule 171 UCPR confers a discretion on the court to strike out all or part of the statement of claim if it, relevantly, discloses no reasonable cause of action or has a tendency to prejudice or delay the fair trial of the proceeding.
  3. [32]
    The focus of such an application is the pleading itself.[12] 
  4. [33]
    Where the effect of invoking the power would be to summarily dismiss (that is, bring to an end) a party’s claim, or part of it, the court is to adopt a cautious approach and the discretion should only be exercised in the clearest case.[13]   But where the application to strike out is on the basis of deficiency in the pleading, which may be remedied by re-pleading, the particularly cautious approach warranted in cases of summary dismissal does not apply.[14] 
  5. [34]
    A pleading must contain a statement of all the material facts (that is, the facts necessary for the purpose of formulating a complete cause of action) relied upon (r 149(1)(b)).  A pleading which fails to plead the necessary material facts to disclose a cause of action is deficient and liable to be struck out.  A pleading may also be deficient, and liable to be struck out because it fails to fulfil the function of a pleading, which is to identify the issues which require the court’s attention and determination, provide a structure for the proceeding by providing the framework for disclosure and admissibility of evidence at trial, and to ensure a fair trial by giving the other party fair notice of the case they must meet.[15]   The function of a pleading is discharged “when the case is presented with reasonable clearness”.[16]  Conversely, a pleading will be deficient if it is “ambiguous, vague or too general”, such that the other party does not know what is alleged against them.[17]
  6. [35]
    In this case, there are about 13 causes of action referred to in the statement of claim.  Westpac submits that, in respect of some of these, the statement of claim is deficient because the necessary material facts required to constitute the cause of action has not been pleaded and, in respect of others, the causes of action are simply unassignable (therefore, regardless of how order 19 may be construed, the claim cannot be maintained by Mr Laverick).

The unassignable claims

  1. [36]
    At paragraphs 20 and 21 of the statement of claim, Mr Laverick pleads:

“20. Joanne [Ms Tyler-Jenkins] was never in a position to afford this loan and she had to sell her share portfolio and rely on $124,000 from the plaintiff in order to make up the balance of the transaction, and it is, the plaintiff’s claim that on behalf of Westpac and/or Aussie Home Loans and/or Raymond Tabone [the mortgage broker], there was, fraud, unfair contract terms, a maladministration in lending and unconscionable, misleading and deceptive conduct, lack of duty of care, and breach of fiduciary responsibility, together with breach of section 25.1 of the Banking Code to which the Defendant subscribes and states.

‘before we offer to give you a credit facility (or increase an existing credit facility) we will exercise the care and skill of a prudent banker in selecting and applying our credit assessment methods and forming our opinion about your ability to repay it’

  1. The plaintiff(s) seek relief that would place it/them in a position, had this transaction never proceeded including damages pursuant to breaches of Subdivision B, BA C and D and in particular s 12CB s 12CC and s 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), s 1041H and s 1041I, sect 760A, 912A and 1317 of the Corporations Act 2001 (Cth) (Act) and/or s 51AA s 51AB s 51AC and s 87 of the Trade Practices Act 1974 (Cth) (TP Act), subsequently incorporated in Part 2-2 of Schedule 2 of the Competition and Consumer Act 2020 (Cth) as well as unconscionability at general law.”
  1. [37]
    A right to claim damages or compensation under s 87 of the Trade Practices Act, for conduct alleged to have been engaged in in contravention of ss 51AA, 51AB and/or 51AC (unconscionable conduct) cannot be assigned, because the terms of s 87 (like s 82 of the same Act) confer a right which is personal to the person who suffers loss or damage by the conduct of another, in contravention of a provision of the Act.[18]  The same conclusion applies to claims for damages under s 12GF of the ASIC Act (in relation to allegations of contravention of, among others, ss 12CB and 12CC (unconscionable conduct in connection with financial services)) and under s 1041I of the Corporations Act (in relation to allegations of misleading and deceptive conduct under s 1041H).[19]  
  2. [38]
    The other provisions of the Corporations Act referred to in paragraph 21 of the statement of claim – ss 760A (stating the objects of chapter 7), 912A (general obligations of financial services licensees) and 1317 (certain persons to assist in prosecutions) – do not give any right of action.
  3. [39]
    Accordingly, it is appropriate that paragraph 21 of the statement of claim be struck out as disclosing no reasonable cause of action.   Paragraphs 23 and 24, which purport to claim pecuniary penalties under the Trade Practices Act and the ASIC Act will also be struck out.
  4. [40]
    To the extent that paragraph 20 includes reference to “unconscionable, misleading and deceptive conduct”, and this could be taken as a reference to the statutory causes of action, the same conclusion applies.
  5. [41]
    For completeness, I note that the last phrase of paragraph 21, “as well as unconscionability at general law”, does not purport to invoke a statutory cause of action. However, those words are insufficient to properly plead a claim for equitable relief for unconscionable conduct,[20] and in this respect, the statement of claim fails to disclose a reasonable cause of action.   It is therefore appropriate that the whole of paragraph 21 be struck out.
  6. [42]
    Westpac further submits that the purported claim based on an alleged breach of section 25.1 of the “Banking Code” (referred to in paragraphs 20, 30 and 39 of the statement of claim) is also unassignable (and, in any event, does not give rise to a standalone cause of action).   Westpac says it takes the reference to “Banking Code” to be a reference to the 2004 Code of Banking Practice, and I proceed on that basis. 
  7. [43]
    The relevant provisions of the Code of Banking Practice are incorporated by reference into the terms and conditions of the loan agreement between Westpac and Ms Tyler-Jenkins, by clause 23 of that agreement.[21]   Those provisions are therefore part of the contract between Ms Tyler-Jenkins and Westpac.  Clause 20 of the loan agreement expressly provides that “you may not transfer your rights under the loan contract or any security for the loan” [underlining added].   I accept the submission on behalf of Westpac that clause 20 constitutes an effective restraint on assignability, arising by virtue of the agreement between the contracting parties (Ms Tyler-Jenkins and Westpac),[22] such that any cause of action relating to purported breach of the Code of Banking Practice (to the extent one exists) was not capable of being assigned.  Mr Laverick therefore does not have standing to bring any claim for breach of the Code of Banking Practice.  The references to this in paragraphs 25, 33 and 39 will be struck out.
  8. [44]
    On this application, Westpac does not rely on clause 20 as preventing the purported assignment the subject of order 19, on the basis that, for present purposes at least, Westpac accepts that the complaint of Ms Tyler-Jenkins, now sought to be pursued by Mr Laverick as assignee, that the loan should not have been granted at all, may not be captured by the phrase “rights under the loan contract” in clause 20.

Claims in respect of which no reasonable cause of action is disclosed

  1. [45]
    Fraud.   Paragraph 20 contains an allegation that, either on behalf of Westpac, and/or Aussie Home Loans and/or Raymond Tabone [the latter not being parties to the proceeding] “there was fraud”.   That is entirely inadequate. The specific facts said to constitute fraud, on the part of the defendant to the proceeding, Westpac, are not pleaded.  No cause of action, based on fraud, against Westpac, is disclosed in the pleading.  
  2. [46]
    As already mentioned above, it appears, from the statement of claim, the affidavit material filed by Mr Laverick, and Mr Laverick’s oral submissions, that a central part of the complaint sought to be made by Mr Laverick concerns an allegation that the mortgage broker, Mr Tabone, included contrived and exaggerated figures in the loan application form.   In so far as it may be alleged that Mr Tabone’s conduct was fraudulent, the statement of claim does not plead material facts on the basis of which it could be concluded Mr Tabone or, for that matter, Aussie Home Loans, was the agent of Westpac [paragraph 69 is insufficient for this purpose]; nor does the statement of claim plead material facts to establish the scope of any such alleged agency; or to establish that the alleged insertion of false information into the loan application form was conduct within the scope of any such authority as agent.
  3. [47]
    The paragraphs of the statement of claim which assert a plea of fraud, and the related claim for relief, are struck out.  This applies to paragraphs 20, 26 and 29 of the statement of claim.  As a matter of principle, it applies also to the assertions in paragraph 25 of “recklessness, moral fault, lack of moral responsibility, lack of good faith and/or morally repugnant conduct, together with wilful blindness”.
  4. [48]
    Contracts Review Act 1980 (NSW).  Paragraph 22 of the statement of claim contains an assertion that “the plaintiff also seeks relief under Contracts Review Act 1980 (NSW), ss 6, 7 and 9”.   Whilst it is possible that it could be found that the law of New South Wales applies to the loan agreement[23] (a matter it is not presently necessary to decide), I accept the submission that this paragraph also fails to disclose any potential cause of action under this legislation:  there is no plea of what relief is sought; no pleading of any material facts which might entitle Mr Laverick to such relief; and no pleading of any material facts sufficient to demonstrate how the legislation applies.  Paragraph 22 should be struck out.   This conclusion also applies to the reference to “unfair contract terms” in paragraph 20 of the statement of claim.
  5. [49]
    Breach of duty of care / fiduciary responsibility.  Paragraph 20 of the statement of claim contains a general reference to “lack of duty of care, and breach of fiduciary responsibility”.  Paragraph 25 contains a general assertion of negligence.  Again, the statement of claim fails to plead material facts which could be said to disclose a reasonable cause of action on either of these bases.  These parts of paragraphs 20 and 25 will also be struck out.
  6. [50]
    Unjust enrichment.  Paragraph 25 of the statement of claim contains an assertion that “the Defendant is liable to make restitution, as they were unjustly enriched”.  That is repeated in paragraph 96, which pleads that “by the mortgage payment received by the Defendant from July 2007 to January 2014 the defendant was unjustly enriched”.    I accept the submission on behalf of Westpac that, as a matter of law, while unjust enrichment is a “unifying legal concept”, it does not, of itself, constitute a cause of action.[24]  These paragraphs, and paragraphs 97-98 will also be struck out as disclosing no reasonable cause of action.

Other matters

  1. [51]
    Reference to the Limitation of Actions Act 1974.  I accept the submission that paragraph 10 of the statement of claim, which is in terms that the plaintiff “if so required” pleads reliance on various sections of the “Limitations Act”, is premature (because no defence based on that Act has yet been pleaded) and irrelevant (because the sections referred to would not apply in an event) and should be struck out on that basis.
  2. [52]
    References to the substance of the complaint made to the Financial Ombudsman Service.  I also accept the submission that, in so far as a number of paragraphs of the statement of claim (in particular paragraphs 28 and 66-74[25]) refer to information obtained through the process undertaken by the FOS, in response to the complaint made by Ms Tyler-Jenkins, those paragraphs should be struck out, having regard to clause 7.6 of the FOS Terms of Reference, which provides that:

“FOS operates on a ‘without prejudice’ basis.  This means that information obtained through FOS may not be used in any subsequent court proceedings unless required by an appropriate court process.”[26]

  1. [53]
    Irrelevant matters.  A number of paragraphs of the statement of claim are irrelevant, on any view of the potential causes of action available to Mr Laverick.  This includes paragraphs 15-17 and 90 (as to Mr Laverick providing part of the initial deposit for the purchase of the property; that mortgage repayments were made from a joint account; and that Ms Tyler-Jenkins fell pregnant in 2009 and then earned very little, leaving the financial burden to fall on Mr Laverick for mortgage payments); 57-59 (which refers to an action group set up by a criminologist, and submissions that group made); 60-62 (references to requests Ms Tyler-Jenkins made, in correspondence to various organisations, for a copy of “the Service Calculator” and loan application form); 75-87 (allegations about other proceedings Westpac is said to have been involved in); 88-89, 94-95 (correspondence prior to commencing the proceedings, and also since commencing the proceedings, offering to discontinue if a copy of the loan application form is provided).
  2. [54]
    Other matters.  In relation to the allegations in the statement of claim regarding the costs of subdividing the land, and subsequent costs incurred in relation to issues with the couple’s superfund (for example, paragraphs 43-53), I observe that it is difficult to see how this could form any part of any potential claim Ms Tyler-Jenkins may have had (and therefore which her estate could have assigned, under order 19) against Westpac in respect of the loan secured by the mortgage over the Carrara property(ies).  It is not alleged the money which was spent subdividing the land was obtained through a further loan advance from Westpac; only that Westpac did not make any enquiry as to the cost or viability of the proposal.  In the context of an investment loan, it is not apparent on what basis Westpac would have any obligation to make such enquiries.  No material facts are pleaded which provide a basis for establishing any such obligation, or for establishing how this aspect of the claim could be said to be within the terms of the assignment under order 19. 
  3. [55]
    The prayer for relief at the end of the statement of claim also includes a claim for a substantial sum (in one place, over $1.288 million and, in another, over $906,000) “pursuant to grossing up of damages at the marginal tax rate of 37% with respect to the Income Tax Assessment Act 1997”.  There is no basis for this claim.
  4. [56]
    Finally, the claim purports to claim a further sum “to be assessed and determined by the court for loss of employment opportunity and sole financial responsibility for the Child”.  It is difficult to see how this could be captured by the assignment the subject of order 19.

Conclusion and orders in relation to strike out under r 171

  1. [57]
    I am satisfied, as a consequence of the matters set out above, that it is appropriate to make an order that the whole of the statement of claim be struck out, under r 171(1)(a) and (b) of the UCPR.   To the extent I have not mentioned a particular paragraph of the statement of claim in my reasons above, the effect of the matters that have been expressly addressed is that no reasonable cause of action is disclosed in the pleading, and in its current form it would prejudice or delay the fair trial of the proceeding.
  2. [58]
    Westpac did not oppose Mr Laverick being granted leave to re-plead a claim against it, in the event the court found, as I have, that the assignment the subject of order 19 was capable of being interpreted as an assignment of any potential claim or action Ms Tyler-Jenkins had against Westpac in respect of the loan secured by the mortgage on the Carrara property(ies). 
  3. [59]
    There will therefore be a grant of leave to Mr Laverick to replead, other than in respect of:
    1. (a)
      the causes of action which have been found to be unassignable, discussed in paragraphs [37] to [40] and [42] to [43] above;
    2. (b)
      the purported alternative basis for claim on behalf of the child, discussed in paragraphs [28] to [29] above; and
    3. (c)
      the matters addressed at paragraphs [51], [52] and [53] above.  
  4. [60]
    I have not included reference to the other matters discussed in paragraphs [54], [55] and [56], because these were not specifically addressed at the hearing.  However, careful consideration should be given to these matters before including them in any further pleading.
  5. [61]
    At the hearing of this application, Mr Laverick indicated he had been in contact with LawRight, but had not yet received any assistance.  It is strongly recommended that Mr Laverick endeavour to obtain legal advice and assistance before filing any amended claim and statement of claim.
  6. [62]
    I will hear from the parties as to an appropriate time frame for these things to occur, any consequential orders, and also as to the costs of the application.

Footnotes

[1]Mr Kaunitz’s affidavit (CFI 13) at pp 98-108, with the acceptance at p 106.

[2]Mr Kaunitz’s affidavit (CFI 13) at [17] and p 140.

[3]Mr Laverick’s affidavit (CFI 3).

[4]Mr Laverick’s affidavit (CFI 6) at [3]-[8]; Mr Laverick’s affidavit (CFI 14) at [18].

[5]Mr Laverick’s affidavit (CFI 6) at [45]-[47] and annexures “P” and “Q” at pp 45-57 (unsigned apparent copies of these letters).

[6]Mr Laverick’s affidavit (CFI 6), annexure “V”, at pp 77-84.

[7]As discussed in paragraph [52] below.

[8]Mr Laverick’s affidavit (CFI 3) at [20]; and his further affidavit (CFI 6) at [29].

[9]See Arrowsmith v Micallef [2015] 2 Qd R 208 at [39], referring to Kirkpatrick v Kotis (2004) 62 NSWLR 567 at [39]-[45]; see also McGrath v McGrath [2018] FamCA 667 at [26]-[29].

[10]Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CR 337 at 350-352; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[47].

[11]Mr Kaunitz’s affidavit, at pp 140, 141, 142 and 144.

[12]Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [67]-[69] per Jackson J.

[13]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; Agar v Hyde (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [46]; Spencer v The Commonwealth (2010) 241 CLR 118 at [24].  See also Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26].

[14]Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [24]-[26].

[15]Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [49]-[51]; Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287.

[16]Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 293.

[17]Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252 at [27].

[18]See, for example, Salfinger v Niugini Mining (Aust) Pty Ltd (No 3) [2007] FCA 1532 at [110]; see also Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia Ltd (2018) 58 VR 1 at [63]-[67].

[19]Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia Ltd (2018) 58 VR 1 at [68].

[20]As to what is required, see Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 3) [2016] QSC 232 at [5] and [6].

[21]See Mr Kaunitz’s affidavit (CFI 13) at p 129.

[22]Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 at 109; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395 at [32]; and Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108 at [112].

[23]Having regard to clause 22(b) of the loan agreement (Mr Kaunitz’s affidavit at p 128).

[24]David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-379 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ and at 406 per Dawson J.

[25]This does not cover all of the paragraphs identified in paragraph [38] of the defendant’s submissions, as some do not seem to fall within the meaning of “information obtained through FOS”, as opposed to references to correspondence between Ms Tyler-Jenkins and FOS (for example, [63] and [64]) or other steps in relation to the process (for example, [65]).

[26]Mr Kaunitz’s affidavit (CFI 13) at p 190.

Close

Editorial Notes

  • Published Case Name:

    Laverick v Westpac Banking Corporation

  • Shortened Case Name:

    Laverick v Westpac Banking Corporation

  • MNC:

    [2020] QSC 333

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    06 Nov 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Agar v Hyde (2000) 201 CLR 552
1 citation
Jump To
Cite 1 - (2000) 201 CLR 552
Arrowsmith v Micallef[2015] 2 Qd R 208; [2013] QCA 143
1 citation
Jump To
Cite 1 - [2015] 2 Qd R 208
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
2 citations
Jump To
Cite 1 - (1990) 169 CLR 279
Cite 2 - (1990) 169 CLR 279
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252
3 citations
Jump To
Cite 1 - [2011] QCA 252
Cite 2 - [2011] QCA 252
Cite 3 - [2011] QCA 252
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
1 citation
Jump To
Cite 1 - (2006) 226 CLR 256
Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356
1 citation
Jump To
Cite 1 - (2010) 189 FCR 356
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CR 337
1 citation
Jump To
Cite 1 - (1982) 149 CR 337
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
1 citation
Jump To
Cite 1 - (1992) 175 CLR 353
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Kirkpatrick v Kotis (2004) 62 NSWLR 567
1 citation
Jump To
Cite 1 - (2004) 62 NSWLR 567
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85
1 citation
Jump To
Cite 1 - [1994] 1 AC 85
McGrath v McGrath [2018] FamCA 667
1 citation
Jump To
Cite 1 - [2018] FamCA 667
Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 3) [2016] QSC 232
1 citation
Jump To
Cite 1 - [2016] QSC 232
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (2013) 95 ACSR 583
1 citation
Jump To
Cite 1 - (2013) 95 ACSR 583
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
1 citation
Jump To
Cite 1 - (2015) 256 CLR 104
Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395
1 citation
Jump To
Cite 1 - (2006) 149 FCR 395
Pentridge Village Pty Ltd (In Liq) v Capital Finance Australia Ltd (2018) 58 VR 1
2 citations
Jump To
Cite 1 - (2018) 58 VR 1
Cite 2 - (2018) 58 VR 1
Salfinger v Niugini Mining (Australia) Pty Ltd (No 2) [2007] FCA 1532
1 citation
Jump To
Cite 1 - [2007] FCA 1532
Spencer v The Commonwealth (2010) 241 CLR 118
1 citation
Jump To
Cite 1 - (2010) 241 CLR 118
Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108
1 citation
Jump To
Cite 1 - (2017) 94 NSWLR 108

Cases Citing

Case NameFull CitationFrequency
Laverick v Westpac Banking Corporation [2020] QSC 3401 citation
1

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