FEDERAL COURT OF AUSTRALIA

Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The respondent’s costs, including reserved costs, be taxed and paid from the estates of the appellant debtors in accordance with the Bankruptcy Act 1966 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

THE COURT:

1    The factual background to the appeal currently before the Court commenced with proceedings in the Victorian Supreme Court: see Commonwealth Bank of Australia v Doggett and Anor [2014] VSC 423 (Doggett No 1). In his Honour’s reasons, Hargrave J commenced by setting out a short summary of the matter that was then before him:

1    The defendants, Steven Doggett and Kevin Sullivan, are domestic partners. They live in Melbourne. Mr Doggett is a self-employed painter and handyman and Mr Sullivan is employed as an operating theatre technician. From in or about 2004, they commenced buying investment properties on the Gold Coast in south-east Queensland. They concentrated most of their investments in the purchase of apartments in a holiday apartment complex known as ‘Trickett Gardens’, which Mr Doggett described as ‘a small, quaint, family-oriented property’ which occupied ‘a very special place in [their] hearts’ and about which they were ‘extremely passionate’. By late 2007, the defendants had purchased seven of the 33 apartments in Trickett Gardens with money borrowed from the plaintiff, Commonwealth Bank of Australia (‘the Bank’ or ‘CBA’), under a portfolio loan facility.

2    In an effort to improve and maintain the value of their investments in Trickett Gardens, the defendants renovated and upgraded some of their apartments and became actively involved in the body corporate and the management of the complex – including by arranging or direct involvement in painting the external buildings, and in the upgrading of pools, barbeques, gardens and other common areas. Their involvement in this regard, and presumably that of other apartment owners and the resident managers of the complex, developed Trickett Gardens into what Mr Doggett described as a ‘lead property in the 3½ star beachside market in Surfers Paradise’.

3    In this context, the resident managers, Dino and Wendy Rechichi, advised the defendants in late November 2007 that they were preparing to sell their management rights contract with the body corporate and the associated managers’ apartment owned by them in the complex. The defendants decided to try to purchase the management rights business and managers’ apartment. Their decision was based on their passion for the complex, the desire to protect their existing investments in it, friendships with other apartment owners, the fact that Mr Doggett had relatives living close by, and other lifestyle reasons.

4    At that stage the discussions between the defendants and the Rechichis were informal and no binding agreement was entered into. There was, however, a loose verbal agreement to purchase for $1.5 million. On that basis, the defendants approached the Bank in November 2007 with a view to obtaining finance for the proposed purchase. They spoke with their relationship manager, Andrew Duncan. Despite the absence of a formal agreement, and no trading figures having been provided to Mr Duncan, the defendants allege that Mr Duncan made representations to them at this time to the effect that he was a specialist in small business lending, that he had assessed the defendants’ current cash flow and their future cash flow from the management rights business, and that, from their cash flow, the defendants could ‘support’ a loan from the Bank ‘in the vicinity of $1.6 million and reasonable extensions of that sum’ if they purchased the management rights business and managers’ apartment (the ‘first representations’).

5    The defendants contend that the first representations encouraged them to commit to the proposed purchases. In May 2008, they incorporated Dogvan 007 Pty Ltd and appointed it trustee of the ‘Doggett Sullivan Discretionary Trust’. In June 2008, they signed two binding contracts on behalf of Dogvan: one to purchase the management rights for $1.15 million and the other to purchase the managers’ apartment for $350,000, a total of $1.5 million. Both contracts were subject to finance. The management rights contract was also subject to verification of the financial records of the business.

6    The defendants made a formal loan application on behalf of Dogvan in respect of the proposed purchase, for 100 per cent of the total purchase price and acquisition costs. Both before and after they signed the purchase contracts on behalf of Dogvan, the defendants, their solicitors and their accountants provided documents and information to the Bank in connection with Dogvan’s loan application.

7    The Bank approved the loan. The formal letter of offer is dated 31 July 2008, and was accepted by the defendants on behalf of Dogvan on that day or soon after. The loan was to be provided by a bill facility with a facility limit of $1.63 million. The defendants guaranteed the loan and thereby exposed their equity in the other apartments owned by them in the Trickett Gardens complex as security.

8    The defendants contend that the Bank made further representations to them during the course of the loan application and approval process, and by its conduct in approving the loan to Dogvan, to the effect that the future cash flow of the management rights business would be sufficient for Dogvan to service the proposed loan ‘including further advances’ – and that a specific representation to this effect was made on 15 July 2008, when the defendants contend that oral approval for the loan was given by Mr Duncan’s assistant, Elizabeth Geldart (the ‘second representations’).

9    The loan was finally settled on 15 August 2008, when the bill facility was fully drawn down. The first bill rollover was due on 15 September 2008. Dogvan did not have sufficient money in its nominated account to fund the rollover. The management rights business was undercapitalised and never traded profitably.

10    From this early time, the defendants commenced alleging that the Bank had failed them in many respects and should assist them by providing relief from their financial difficulties. The Bank did provide some relief, but it was not enough. Not only was the management rights business cash-starved from the outset, but the global financial crisis hit soon after the loan was settled, which in combination with other factors affected the occupancy rates and rentals for apartments in the Trickett Gardens complex. On 29 September 2010, the Bank appointed Grant Sparks and David Leigh as receivers and managers to Dogvan (‘the Receivers’). On 13 October 2010, the Bank appointed the Receivers as receivers of the defendants’ units in Trickett Gardens under the powers contained in the mortgages securing the portfolio loan facility. The Receivers sold all of the assets provided by Dogvan and the defendants as security. A substantial shortfall of approximately $3.1 million remains outstanding, which the Bank claims as a debt from the defendants in their own right, under the portfolio loan facility, and as guarantors of Dogvan. Dogvan has no remaining assets.

11    The defendants raise various counterclaims against the Bank’s claims.

12    First, the defendants allege that the Bank had no reasonable grounds for making the first and second representations and that the Bank thereby engaged in misleading or deceptive conduct causing them loss and damage. The claim for loss and damage is based on the contention that the loan was never affordable. The defendants allege that, once Dogvan purchased the management rights business and the managers’ apartment, their personal financial positions became untenable, with the result that they lost all of the equity in their apartments in the Trickett Gardens complex. In addition, the defendants claim loss as a result of them having become liable as guarantors for Dogvan’s debt.

13    Second, the defendants contend that the circumstances in which the loan was made involved unconscionable conduct by the Bank.

14    Third, the defendants contend that the Bank owed them a contractual obligation to exercise the care and skill of a diligent and prudent banker in assessing Dogvan’s loan application and forming an opinion about its ability to repay the loan. They contend that this obligation arose under clause 25.1 of the Code of Banking Practice published by the Australian Bankers Association (the ‘Code’), which was incorporated into the Dogvan loan facility contract and the deed of guarantee, or as a common law duty of care in tort. They contend that the Bank breached the obligation or duty by negligently approving Dogvan’s loan application in circumstances where a diligent and prudent banker would have realised that the loan was unaffordable from the historical cash flow of the management rights business.

15    The Bank denies all of the counterclaims. In the alternative, should one or more of the counterclaims succeed, the Bank relies on releases given by the defendants in a written compromise agreement between the parties dated 6 April 2010. The defendants contend that the compromise agreement is unenforceable, because it was procured by duress. There is also an issue as to the scope of the releases if the duress claim fails and the compromise agreement is enforceable.

(Footnote omitted.)

2    His Honour’s summary is sufficient to establish the context within which this appeal arises.

3    In Doggett No 1, Hargrave J held that cl 25.1 of the Code of Banking Practice (the Code) had been incorporated into the original loan agreement which had extended funds to Dogvan 007 Pty Ltd (Dogvan).

4    His Honour found that by reason of a breach of the incorporated revision of cl 25.1, the appellants would have suffered loss and damage such that their damages should be set off against their guarantees so as to extinguish that claim and would have awarded other heads of damage amounting to $80,000.

5    However, the Commonwealth Bank of Australia (the Bank) succeeded on quite a different basis. His Honour held that a compromise agreement had been entered into by the appellants which had released the Bank from those obligations, and the Bank was entitled to sue on that compromise. His Honour rejected the appellants’ arguments that the compromise was vitiated by duress. Hargrave J gave judgment for the bank in the sum of $3,499,439.89 plus costs. There appears not to have been any question about the quantum of that liability.

6    On 17 December 2015 the Court of Appeal dismissed the appellants’ appeal from the decision of Hargrave J. The appellants sought special leave to appeal to the High Court of Australia but leave was refused by Kiefel and Keane JJ on 15 June 2016. The Bank then moved to sequester the appellants’ estates. On 16 February 2017, a Registrar of this Court made a sequestration order. The appellants sought review of that decision and that application in due course was heard by O’Callaghan J. His Honour gave reasons on 4 October 2017 for dismissing their application: see Commonwealth Bank of Australia v Doggett [2017] FCA 1176. The appellants now appeal to this Court.

7    The six grounds of appeal before the Full Court give rise to two substantive issues as follows:

(a)    Whether O’Callaghan J erred in refusing to go behind the Supreme Court of Victoria judgment upon which the bankruptcy notice was founded (grounds 3, 4 and 6); and

(b)    Whether there was any bias or apprehended bias shown by his Honour (grounds 6, 9 and 10).

Bias

8    We will deal first with the grounds relating to bias and apprehended bias. Having heard the appellants in respect of the matters upon which they rely, we are satisfied that none approach the threshold which would be required to establish actual bias.

9    The leading case on apprehended bias is Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 in which Gleeson CJ, McHugh, Gummow and Hayne JJ wrote:

6    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

7    The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

8    The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Footnotes omitted.)

10    There is a considerable body of learning regarding the circumstances in which a judicial expression of a view during a hearing might be said to give rise to such an apprehension of bias. The basic rule is that the mere expression of a tentative or explanatory view is permissible and cannot be regarded as giving rise to an apprehension of bias: see R v Watson; Ex parte Armstrong [1976] HCA 39; 136 CLR 248. That is to be contrasted with a judge expressing a clearly formed judgment apparently incapable of revision: see In the Marriage of Stiffle (1988) 93 FLR 206.

11    Claims of apprehended bias arise not infrequently, as they have in this appeal, in respect of interlocutory proceedings. The usual position in relation to interlocutory proceedings is that an apprehension of bias is not per se manifested by an unfavourable finding. That is because often there will be instances prior to a final decision where a judge will require steps to be taken or not taken which disappoint one side or another in a proceeding. It is inherent in the interlocutory process that such preliminary decisions are made. Unfavourable findings, in such circumstances, are not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding. Such a conclusion is no more than a specific application of the more general principle stated in Asden Developments Pty Ltd (in liq) v Dinoris [2017] FCAFC 117, where Greenwood, Davies and Markovic JJ said at [49]:

The test for apprehension of bias is forward looking and objective. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Michael Wilson & Partners v Nicholls at [31]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 at [6]. The test requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners v Nicholls at [67].

12    The appellants’ submissions that the primary judge’s consideration or disposition of an interlocutory issue gives rise to an allegation that his Honour did not bring an impartial or unprejudiced mind to the resolution of the question before him fall within four distinct categories.

Category 1

13    The first category relates to statements made by his Honour in the course of his dealings with an interlocutory proceeding on 3 August 2017. We were referred to a passage in the transcript as follows:

HIS HONOUR: Yes, Mr Doggett. Well, I called this management hearing because ..... Mr Brown, I’ve – I lost patience with agreeing to further extensions of time for the respondents to file their written submissions.

MR BROWN: Yes.

HIS HONOUR: Whether they file their written submissions or not, I intend to hear this matter next week.

(page 2, lines 11-18)

14    Some context is necessary. On 28 April 2017, North J, had ordered the appellants to file and serve their written submissions by 26 May 2017. On 24 May 2017, O’Callaghan J had extended the period permitted for the filing of written submissions to 23 June 2017. On 22 June 2017, O’Callaghan J had extended the period to 10 July 2017, and on 10 July 2017 O’Callaghan J had given further permission for those submissions to be filed no later than 24 July 2017.

15    In the Court’s opinion, there is no basis for a finding that a fair minded lay observer might reasonably apprehend that in expressing his loss of patience with further delay his Honour might not bring an impartial and unprejudiced mind to the resolution of the question before him.

16    There is an associated complaint that his Honour would not hear a full explanation from the appellants for their then still extant noncompliance. The appellants referred his Honour to some communication that had occurred between themselves and a barrister, Mr Clutterbuck, who the appellants explained had been assisting in the preparation of written submissions.

17    It is sufficient to note that his Honour indicated that he was concerned that any explanation of the kind they were making might give rise to a breach of privilege in relation to the matters. That is evident by what his Honour next states: “…that may constitute advice…” (page 4, line 8). In our view, such an observation was within the proper function of the judge.

18    The appellants also complain that O’Callaghan J was abrupt and did not provide them with a proper opportunity to make submissions regarding an extension of time to allow them to file their submissions. Nonetheless, the appellants were granted additional time and were given leave to file and serve submissions until 4.30 pm on the following day. Mr Doggett, on behalf of himself and Mr Sullivan, indicated that their submissions would be filed by that time (at page 6 of the transcript). It is uncontentious that their submissions were filed in accordance with that leave. We reject the Category 1 issues give rise to any basis for a finding of apprehended bias.

Category 2

19    The second category relates to general and unparticularised complaints that the judge at first instance had made Mr Doggett and Mr Sullivan feel humiliated, intimidated and inadequate. The Court made arrangements to provide a transcript of both the interlocutory proceeding and the proceedings before the primary judge to the appellants. This was arranged so the appellants could identify any matters that they would wish to draw to the Court’s attention which might give rise to an appropriate circumstance where the Court would find in their favour. There was nothing borne out on an objective examination of the transcript to suggest that the primary judge conducted himself in the manner asserted and the appellants adduced no evidence otherwise to establish that complaint.

Category 3

20    The third category of matters is in relation to statements made by the primary judge in the interlocutory proceedings of 3 August 2017. The appellants referred to his Honour’s comments as follows:

HIS HONOUR:     - - -2017, and the gist of it is that this court can’t go behind the judgment debt. It’s not that complicated. So you either have reasons to take a different view of the world than that propounded by the bank and Mr Brown, or you do not, and we need to get past discussing reasons why submissions are late and so forth and set the matter down, and, as I say, what I propose to do is to hear it on a day next week. I imagine it would take about an hour. I think that was the original estimate.

(transcript page 4, lines 19-25)

21    However, that statement must be understood in context. His Honour’s remarks were a continuation of a sentence that his Honour was making before Mr Sullivan said, “yes.” In context, the exchange was as follows:

HIS HONOUR: Now, have you – you understand, don’t you, that your principal burden is to respond to Mr Brown’s written submissions? When I say Mr Brown’s written submissions, the submissions that Mr Brown has signed on behalf of the bank, dated 12 May - - -

MR SULLIVAN: Yes.

HIS HONOUR:     - - -2017, and the gist of it is that this court can’t go behind the judgment debt. It’s not that complicated. So you either have reasons to take a different view of the world than that propounded by the bank and Mr Brown, or you do not, and we need to get past discussing reasons why submissions are late and so forth and set the matter down, and, as I say, what I propose to do is to hear it on a day next week. I imagine it would take about an hour. I think that was the original estimate.

(transcript page 4, lines 12-25)

22    So understood, it is plain that his Honour was explaining to the self-represented appellants that, if they were to succeed, they would need to identify a legal basis that would permit the Court to go behind the judgment that had been made in the Victorian Supreme Court and affirmed in the Victorian Court of Appeal. Such a statement cannot conceivably be considered to exhibit apprehended bias.

23    The evidence as the Court has before it suggests that the primary judge went no further than advising the appellants of their burden of establishing a reason to look behind the judgment. In terms, it was far from the expression of a concluded view formed before the hearing of the evidence incapable of review.

Category 4

24    The fourth category goes to the substantive hearing. It arises in relation to the following passage:

MR SULLIVAN: Your Honour, we haven’t come fully prepared for all of the submissions today. We just – from what we understood from last week’s hearing that we were submitting our submissions which is based on the file notes that we have. I’m happy to read some of this out as – in support of our - - -

HIS HONOUR:     Well, you don’t need to read it out because I haven’t read it.

(transcript page 25, lines 4-9)

25    In the Court’s view, this is an obvious typographical error. The word “haven’t” should read “have.”

26    In our view, that is established by what appears at page 37 of the transcript:

MR SULLIVAN: Yes. Would you like to ask me something, then, your Honour, because while I was listening to Mr Brown I was trying to get paperwork ready. If there’s other issues that – that Mr Brown raised that you would like to ask me, I’m happy to answer them.

HIS HONOUR:     No. Well, it’s not really my job to ask you questions. I understand how you put your case. I’ve read the submissions that you’ve filed before me and the affidavit material. And I have Mr Brown’s submissions and his affidavit. So my job is to go away and write a judgment that decides the matter according to law. So unless there’s anything additional that you wish to say to me, that is, in addition to what you’ve already said, then - - -

(lines 14-24)

27    However, even on the assumption that the transcript accurately reflects what his Honour said, his Honour advised the appellants that whilst he did not want them to read out those submissions, they should refer to him any parts they considered critical, such that he take those matters into account. Nothing prevented the appellants referring the primary judge to submissions they sought to rely upon.

Conclusion on bias

28    In all the circumstances, the claims of apprehended bias or actual bias simply are not established and the grounds of appeal that collectively express that issue are all dismissed.

Refusal to look behind the judgment

29    The appellants submit that the primary judge erred in failing to look behind the judgment. The task of the primary judge was that which was provided for by s 52 of the Bankruptcy Act 1966 (Cth). The primary judge correctly identified the relevant provisions at [3] and [4] of his Honour’s reasons as follows:

3    Section 52(1) of the Bankruptcy Act 1966 (Cth) (the Act) provides:

At the hearing of a creditor’s petition, the Court shall require proof of:

(a)    the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)    service of the petition; and

(c)    the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

4    Section 52(2) of the Act provides:

If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a)    that he or she is able to pay his or her debts; or

(b)    that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

30    When a person’s sequestration is sought, it always remains open to the Court to look behind the form of the judgment should there be a reason to doubt the truth and reality of the debt upon which his or her sequestration has been sought: see Wren v Mahony [1972] HCA 5; 126 CLR 212 per Barwick CJ at 224-225:

Lord Esher in emphasizing that the Bankruptcy Court did not go behind a judgment as a matter of course but only if appropriate circumstances were shown to exist, said in Re Flatau; Ex parte Scotch Whisky Distillers Ltd.:

“There is no statute which imposes any such obligation on the Court of Bankruptcy. Section 7 [of which s. 52(1) is a counterpart] does no more than give a discretion.”

His Lordship, in using this expression, was not intending, in my opinion, to weaken the emphasis he had always placed on the need for the Court of Bankruptcy to be satisfied of the existence of the petitioning creditor’s debt. Rather, if one reads all his expressions in the several cases I have cited, he was pointing out that the Bankruptcy Court could in general accept a judgment debt as sufficient proof of that debt particularly where it resulted from a fully heard contest between parties but that it always had the power to go behind the judgment and if the case was a proper one, should do so. The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor's debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration. It is not the law, in my opinion, that whether in any case the Court of Bankruptcy will consider whether there is satisfactory proof of the petitioning creditor's debt is a mere matter of its own discretion. Nothing in Corney v. Brien (1951) 84 CLR 343 lends support for such a view. Rather the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor’s debt. The Court’s discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.

Although I have made reference to the general power of the Court of Bankruptcy to go behind a judgment and to some of the circumstances in which it will do so, in the instant case, as I have said, the consideration for the judgment was expressed in the petition itself and the debt claimed to be due was that said to arise on the breach of the promise of indemnity. The proof of the petitioning creditor’s debt was thus to be found in the petition and the affidavit verifying it. The recital of the terms of the deed as the source of the debt and the non-payment of the tax in my opinion provided all that was necessary to call for an exercise of the Bankruptcy Court’s duty to consider whether there was a debt in “truth and reality”. So far as the recited judgment was concerned, the reasons for judgment of the Supreme Court in striking out the appellant’s pleas in the common law action were not binding on the learned judge in Bankruptcy. There had been no more in the Supreme Court than a contest at the pleading stage of the action. No more could have been decided than a question of law. It was a case, in my opinion, in which the Bankruptcy Court was bound to consider for itself whether what was alleged in the petition could and did establish a debt due to the petitioning creditor. In my opinion the learned judge in Bankruptcy's reasons which I have quoted, did not justify his refusal to examine the fundamental question which the petition itself so clearly raised.

31    While the debtor carries the onus of proof in establishing that there is “other sufficient cause”, a narrow construction of that expression should not be applied. Thus in Ling v Enrobook [1997] FCA 226; 74 FCR 19 a Full Court of this Court (Davies, Wilcox and Branson JJ) reasoned, inter alia, that (at 24):

…[i]t is the duty of the Bankruptcy Judge to examine in each case, if the question is raised, whether there is other sufficient cause than the fact that the debtor is able to pay his debts in full, for refusing to make an order.

32    Any doubt regarding the breadth of that proposition was dispelled by the recent decision of the High Court of Australia in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 (Ramsay) where the plurality (Kiefel CJ and Keane and Nettle JJ) held:

68    For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.

69    In Petrie v Redmond, Latham CJ, with whom Rich and McTiernan JJ agreed, said that the Bankruptcy Court:

“is entitled to go behind the judgment and inquire into the validity of the debt where there has been fraud, collusion or miscarriage of justice. … Also the court looks with suspicion on consent judgments and default judgments. … The Bankruptcy Court does not examine every judgment debt. Special circumstances must be established before it will do so. It is impossible to lay down any general rule.”

70    The first two sentences of that passage were cited with evident approval by Dixon, Williams, Webb and Kitto JJ in Corney v Brien. The passage was explicitly concerned with consent judgments and default judgments. As a matter of practical experience, these are the sorts of cases in which third parties can be expected to be disadvantaged by the making of a sequestration order based on a judgment which was not the outcome of the rigorous processes of adversarial litigation. The same concern may also arise in a case where the judgment was obtained in circumstances which suggest a failure on the part of the judgment debtor to present his or her case on its merits in the litigation that led to the judgment.

71    In the present case, the unexplained failure by Medichoice and Mr Compton to present and rely upon evidence of the kind on which the “reconciliation” is based before the trial in the Supreme Court is consistent with the possibility that the present was such a case. To say this is not to say that a suspicion of inadequate representation is of itself sufficient to give rise to a question worthy of investigation by a Bankruptcy Court. But in this case, there was evidence before the primary judge which, while it remained uncontradicted, was apt to suggest that the debt was not truly owing; and as noted above, the primary judge did not consider that this evidence was not adduced in good faith. If it were the case that this evidence was not adduced by reason of a failure on the part of Mr Compton or those representing him and Medichoice in the Supreme Court to present their case on its merits that failure should not enure to the disadvantage of persons who were not parties to those proceedings. Third parties, such as Mr Compton’s creditors, should not have been prejudiced by the making of a sequestration order with that question unresolved.

(Footnotes omitted.)

33    The breadth of what might constitute “other sufficient cause” extends beyond fraud, collusion and miscarriage of justice. It must be accepted that a decision, for example made in per incuriam of a binding decision or a statutory rule which makes a debt unenforceable, there would be sufficient cause to do so. It is not unknown for a critical statutory provision to be overlooked in proceedings. For example, albeit in a different context, see Fingleton v The Queen [2005] HCA 34; 227 CLR 166, where a critical statutory provision was not drawn to attention until well after very serious consequences had been brought to bear on a former Chief Magistrate of Queensland.

34    However the High Court’s reasoning is not a warrant for the automatic re-litigation of propositions not advanced in the principal proceedings. A merely colourable point that may have been taken in prior litigation but was not will not, in our opinion, suffice to put in issue whether there “is in truth or reality” a debt upon which a person’s sequestration has been sought.

35    We accept that in the Victorian Court of Appeal Messrs Doggett and Sullivan sought to rely on two grounds they had failed to raise at first instance. They were grounds relating to Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549 (Ankar) and unconscionability: see Doggett v Commonwealth Bank of Australia [2015] VSCA 351; 47 VR 302 (Doggett No 2) at [19] and [213]. Leave for them to rely on those grounds was refused.

36    There is thus, having regard to the decision of the High Court in Ramsay, perhaps superficial attraction in the proposition that, whilst not raised by the appellants, there were materials before the primary judge that revealed two issues in respect of which evidence may not have been adduced at the trial because of a failure of the appellants to have presented their case on its merit, as would fall within the exceptional circumstances posited by the plurality of Ramsay at [70] and [71].

37    However, it is critical to understand that circumstance in context within the appellate proceedings.

38    In the Victorian Court of Appeal, the Bank did not rest on its success in having been held entitled to rely upon the guarantees, it also contested the findings of Hargrave J that cl 25.1 of the Code had been incorporated into Mr Doggett’s and Mr Sullivan’s guarantees of Dogvan’s borrowing: see Doggett No 2 at [156]-[162]. The arguments the appellants were refused leave to rely upon in relation to Ankar and unconscionability went to alternative bases for upholding Hargrave J’s conclusion that they had a cause of action on their counterclaim, assuming the Bank might succeed on its contention that his Honour had erred with respect to the cl 25.1 issue.

39    The Court of Appeal (Whelan and McLeish JA, Garde AJA) however concluded that Hargrave J had been correct to conclude that cl 25.1 of the Code had been incorporated into the contract such that their counterclaim would have been established, subject to the later compromise.

40    The position in the Court of Appeal in refusing leave was thus no different to that which had applied when Hargrave J held it unnecessary to determine whether the Bank had also breached its obligation pursuant to s 912A(1)(a) of the Corporations Act 2001 (Cth) after his Honour had already concluded that, again subject to the compromise, the appellants had been entitled to succeed on their counterclaim based on breach of the incorporated term in the loan contract and in the guarantee that they had entered into. For that reason, we are satisfied that whether or not either or both additional grounds contended to support their counterclaim might also have been successful is of no practical consequence.

41    The difficulty for the appellants in these proceedings is not that their counterclaim failed but that their seeming success on the cl 25.1 counterclaim was not the end of the matter in the proceedings before the Supreme Court of Victoria. Hargrave J (and each of the judges of the Court of Appeal) concluded that, whatever would have been the position had circumstances been otherwise, on 6 April 2010 Mr Doggett and Mr Sullivan had entered into a legally binding compromise with the Bank, which had had the effect of defeating their counterclaim. The terms of that compromise were set out at [196] of Hargrave J’s reasons as follows:

6 April 2010

Dear Messrs Sullivan and Doggett

We refer to the telephone discussions between Kevin Sullivan, Sam Barbagallo and Michael O’Shea on 29 March 2010.

Whilst it is acknowledged that the Bank may not have met your service expectations from time to time it refutes any accusation that it provided you with misleading advice or inappropriate facilities that resulted in your ‘Trickett Gardens’ investment becoming unviable. Accordingly, the Bank will defend any legal proceedings that you may decide to initiate.

As discussed, in an endeavour to resolve your grievances and as a gesture of goodwill, subject to the terms and conditions outlined below, the Bank will agree to:

•    Refund $84,320.83 being the line fees charged in respect of Bill Facility No 136487, since the facility was funded in August 2008;

•    Reduce the existing line fee of 3.5% pa to zero% pa, effective immediately;

•    Extend a temporary overdraft of $50,000 until 31 May 2010 to allow the sale of the units and management rights at the ‘Trickett Gardens’ complex to be completed;

•    Extend the term of the temporary overdraft facility, subject to a sale of the ‘Trickett Gardens’ being negotiated on terms and conditions acceptable to the Bank by 31 May 2010. The extended term will coincide with the settlement date of the contract.

•    The temporary overdraft facility will need to be operated within the terms afforded. In particular, interest costs for Bill Facility No 136487 will need to be met. Should funds not be available to meet this commitment, the face value of the facility will be debited to a Bills Matured Accounts titled ‘Dogvan007 Pty Ltd Bills Matured Account’ and will be subject to the Bank’s variable default interest rate, which is currently 14.99% per annum.

•    Should you be unsuccessful in negotiating a sale of the ‘Trickett Garden’ complex, the Bank will provide you with additional time to sell provided that the temporary overdraft facility is repaid in full and there is no other monetary default;

•    The CBA admits no liability and this agreement should not be construed as accepting the validity of any of your accusations against the Bank;

•    The Company and Messrs Doggett and Sullivan agree to take no further action in relation to the claims/accusations that have been alleged;

•    Acceptance of this ‘goodwill payment’ is in full and final satisfaction of any alleged claims.

If you agree to the above mentioned terms and conditions, can you please sign in the indicated area and return a copy to this office.

Should you have any further queries, please have no hesitation in contacting the writer.

Yours sincerely,

[Signed]

Michael O’Shea

Manager, Credit Risk Solutions

Acceptance                Witnessed by

[Signed]                      [Signed]                   [Signed]

Kevin Sullivan            David Taylor            Steven Doggett

6/4/10                          6/4/10                      6/4/10

42    Hargrave J held, and the Court of Appeal agreed, that that compromise substituted for the earlier agreement such that the appellants had abandoned any potential rights they might have been entitled to rely on in an action by the Bank in respect of their original agreement in consideration of the undertakings extended to them by the Bank which they had taken the benefit of. The appellants’ contention that the compromise should be held to be unenforceable as having been procured by illegitimate pressure amounting to economic duress was rejected. Hargrave J held:

223    The defendants claim that the compromise letter was procured by duress. They rely upon the following matters:

224    First, the defendants gave evidence that Mr O’Shea told them on 1 April 2010 that, if they did not sign the compromise agreement, they would not have enough money to continue conducting Dogvan’s business, the Bank would not further extend the Dogvan overdraft and, as a result, Dogvan would be unable to meet its obligations under the bill facility and the Bank would call up that facility and exercise its securities. Mr O’Shea denied making statements in those terms. I accept his evidence. It is consistent with the careful way in which he wrote correspondence at the time, informing the defendants that the Bank ‘may’ exercise its securities in the event that the foreshadowed asset sales did not take place within extended time frames.

225    In any event, I see nothing illegitimate about statements to the effect attributed to Mr O’Shea by the defendants. That was the commercial reality at the time. Unless the defendants achieved a further extension from the Bank, which the Bank was neither obliged nor prepared to grant in the absence of a release from the defendants’ complaints, the Bank was entitled to call up the bill facility when it next fell due for roll-over if Dogvan did not have sufficient funds in its nominated account to enable that roll-over to take place.

226    Second, the defendants relied upon the severe financial stress they and Dogvan were suffering due to the inability of Dogvan’s income to support all of the costs and expenses of the management rights business. In my opinion, the fact that the management rights business was unviable at this time does not make the Bank’s conduct concerning the compromise agreement illegitimate. The Bank was under no obligation to grant a further extension of Dogvan’s overdraft.

227    Third, the defendants relied upon the circumstance that Mr and Mrs Askew, the on-site managers, were using some of their own money to keep the business running and, accordingly, they felt a responsibility to them.

228    Taking all of these factors together, the defendants contended that they were in a position where they had ‘no choice’ but to sign the compromise letter, and the Bank’s conduct therefore amounted to illegitimate pressure. I do not accept that this is so. For the reasons given below, the Bank’s conduct was not illegitimate. The Bank was entitled to enforce its legal rights and did not do so peremptorily.

229    In my opinion, having regard to the history of Mr O’Shea’s dealings with the defendants over the preceding 10 months, including the defendants’ failure to make the expected asset sales and to provide information reasonably requested by the Bank, there was nothing illegitimate about Mr O’Shea putting forward a compromise proposal on behalf of the Bank in its final terms. The defendants and Dogvan were not entitled to any further extension of Dogvan’s overdraft. Over more than a full year (April 2009 to 31 May 2010), the Bank provided extended overdraft facilities to Dogvan so as to enable it to continue rolling-over the bill facility each month and to meet day-to-day expenses of the management rights business. These extensions were granted so as to enable the defendants to arrange for the sale of Dogvan’s management rights business and the managers’ apartment, and the sale of such of the defendants’ units as was required to provide sufficient funds to enable all facilities to be repaid.

230    However, the defendants failed to deliver the expected outcomes which formed the basis of the Bank’s agreement for the extensions. There was nothing illegitimate about granting a further extension, to enable the defendants themselves to have control of asset sales, on the basis that the defendants gave the releases which were sought. Just as it was in the interests of the Bank to gain a release from the defendants multifarious complaints, it was in the defendants’ interests to remain in control of the asset sale process if they could and to receive the benefit of all line fees on the Dogvan bill facility being repaid and waived for the following two months — so as to provide working capital to Dogvan. Alternatively, it was always open to the defendants to seek alternative finance with, for example, the Bank of Queensland. The Bank gave them a reasonable time to achieve either of these outcomes. In these circumstances, there was nothing illegitimate about the Bank insisting on its legal rights unless the defendants agreed to the proposed compromise.

231    The fact that the defendants were under financial and personal pressure at the time did not make the Bank’s conduct in proposing a compromise on these terms illegitimate. Further, as noted above, following consideration of the issues by the defendants and family members, and conversations with Mr O’Shea and Mr Barbagallo, the Bank agreed to further extend Dogvan’s overdraft from the initial proposed date of 30 April 2010 to 31 May 2010 to enable the defendants to complete their intended asset sale process. The Bank’s offer also included a significant concession — that line fees totalling $84,320.83 would be refunded to Dogvan, by crediting its overdraft, and no further line fees would be charged for April or May 2010. This gave the defendants and Dogvan valuable breathing space to pay creditors while they endeavoured to undertake the proposed asset sales.

43    His Honour’s conclusions rejecting the compromise was endorsed by the Court of Appeal. Whelan JA reasoned as follows at [78]–[82]:

78    In my opinion the trial judge’s conclusion was correct.

79    Certainly, the appellants were under considerable commercial pressure. It is true that they had limited choices. Mr Doggett himself was particularly aware of the limited choices which they had, and of the consequences of the choice they were to make. He revealed that awareness in his reaction to the proposal made on 30 March 2010. He knew that if they agreed to the proposal they would be giving up their rights to sue. This made him angry because that was something he did not want to do. Mr Sullivan knew of Mr Doggett’s anger and the reason for it.

80    The appellants, in effect, had to decide whether to sue the Bank on the claims they had made with the consequence that the Bank would take steps to execute its securities, or take the ‘breathing space’ which was offered in the hope that asset realisations would resolve their problems. A significant inducement to taking the second course was the refund and waiver of the line fees. This was something the appellants had been seeking since 24 September 2008.

81    The Bank put forward a proposal. In the circumstances, it seems to me that it was not illegitimate for the Bank to do so. The Bank did not threaten to take any illegal course of action. The Bank did not threaten to do anything if the proposal was not accepted other than to defend any proceedings the appellants might institute (letter dated 6 April 2010) and to possibly proceed with the enforcement of its security (letter dated 15 March 2010). The appellants chose to accept the proposal. They did so to obtain the financial and other benefits the proposal offered them and because they perceived that to be the best course for them in the circumstances. I do not consider that the Bank procured the appellants’ agreement by illegitimate means or that its conduct was unconscionable.

82    The Bank’s conduct cannot become illegitimate merely because it can subsequently be demonstrated that a claim under cl 25.1 would otherwise have succeeded. The essence of all settlements is the resolution of uncertainty. Meritorious claims and unmeritorious claims are compromised. The merits of a compromised claim might be relevant to a duress argument but it cannot be determinative of the issue.

44    Whelan JA’s reasoning in that respect was approved of by McLeish JA at [216] and Garde AJA at [218]. Accordingly, the appeal was dismissed. An application for special leave to appeal to the High Court of Australia was unsuccessful.

45    Given those circumstances, we are satisfied that this is an instance where the reasoning of the plurality in Ramsay at [68] applies. It is one in which, in respect of the legal rights relating to the validity and effect of the compromise entered into the respondents, “[t]he testing of the relative merits of [the] claim and counterclaim under the rigours of adversarial litigation,” has established, “the true state of accounts as between the parties to the proceedings.”

46    Consequently the primary judge had, and this Court has, no occasion to investigate whether the judgment debt is a true reflection of the real debt. That is so notwithstanding that the appellants having entered into the compromise has been to their substantial disadvantage. Had the compromise upheld in the Supreme Court of Victoria not been entered into, the reasoning of Hargrave J, as endorsed by the majority in the Court of Appeal, would have resulted in their counterclaim being upheld such as to offset their debt to the Bank on the Dogvan Pty Ltd loan with a judgment in their favour for additional damages of $80,000: see Doggett No 1 at [195].

47    In these proceedings the bench asked Mr Doggett and Mr Sullivan (who were self-represented) whether the substance of their complaint was that their duress claim had been dismissed. They agreed that that was the substance of their claim.

48    They were also asked whether all of the evidence upon which they sought to rely had been before the trial judge in the Supreme Court of Victoria, Hargrave J. They acknowledged it had been.

49    Whatever the breadth Ramsay stands for, it plainly does not permit (let alone require) the re-hearing of a matter fully litigated in adversarial proceedings on the same evidence. The appellants have advanced no basis to assert that the debt arising out of that compromise is not due such that it would attract the obligation of a court to look behind the judgment that gave recognition to it. Unlike the circumstances in Ramsey there is no new evidence before the Court as would reveal a matter which on further inquiry might lead to a different result that that reflected in the judgment upon which the debt is based. The appellants’ contentions of fraud and misconduct by the Bank all turned on the same evidence as was before Hargrave J. The primary judge was right to dismiss those assertions as providing no reason to go behind the judgment. Moreover, the primary judge was correct to note (at [29]) that there was “not a shred of evidence” before him to support the contentions that the compromise agreement was “fabricated” and committed under a fraudulent intention or that the bank had “acted unconscionably and in a colluding manner to close down [the appellants’] claims before we were able to find out the truth.”

50    Lord Justice Denning’s much repeated observation Lazarus Estates v Beasley [1956] 1 QB 702 at 712 that “[f]raud unravels everything” is a statement relating to a conclusion. It is not a proposition that the mere assertion of fraud suffices for it to do so.

51    The highest Mr Doggett and Mr Sullivan put their claim that the compromise was vitiated by fraud was that the Bank proceeded knowingly on a false basis that it was entitled to charge the line fees which were later refunded in consequence of their entering into the compromise. That issue had not been advanced before the primary judge and, in any event, we do not accept that proposition. In oral submissions in this appeal were taken to an internal Bank file note which the appellants submit contradicted the evidence of the witness whose oral evidence Hargrave J had accepted.

52    However, the file note neither contained a direct account of that witness’ recollection of events nor did it contain a complete or concluded expression of the witness’ recall. That the witness later gave oral evidence of the event is not in dispute. His evidence was accepted by Hargrave J. Such circumstances fall well short of establishing a basis for impugning the witness as a perjurer. In any event, whether the appellants had had notice of the line fees did not turn on that evidence. There is no dispute that both the line fee and its percentage had been drawn to the appellants’ attention in a letter of offer prior to them accepting it. That was referred to by Hargrave J at [69]. For that reason, the allegation of fraud, turning on that proposition, is without merit.

53    Finally, the appellants raised a further submission not raised before the primary judge that the compromise was necessarily vitiated by breaches of cll 28.4 and 28.5 of the Code. Self-evidently, that proposition cannot avail them. Those clauses apply in terms to contracts of guarantee. The compromise applied to them directly and not by way of guarantee. While fraud has been asserted, the premises that would provide a credible basis for that assertion were, as the primary judge held, entirely lacking. The primary judge was therefore correct to hold as follows (at [16]):

In this case, no such occasion to investigate the judgment debt arises. The respondents have not demonstrated that this is a proper case to exercise the Court’s discretion to go behind the judgment in the Supreme Court proceeding, which followed a 12-day hearing, after which the Court appointed amicus curiae to argue a point of law, and which the respondents then unsuccessfully appealed to the Court of Appeal. Although the respondents were self-represented at trial, through the Victorian Bar pro bono scheme, they were represented by experienced commercial counsel on appeal (Mr M Gronow and Mr C Micallef). Accepting the fact that a judgment obtained after a contested hearing is not a necessary bar on its own to going behind the judgment (see Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28), in this case, for the reasons given below, there is no conceivable basis now to go behind the judgment, and the respondents did not articulate any such basis.

54    We would dismiss the appeal and order that the respondent’s costs, including reserved costs, be taxed and paid from the estates of the appellant debtors in accordance with the Bankruptcy Act 1966 (Cth).

Associate:

Dated:    15 February 2019