FEDERAL COURT OF AUSTRALIA

von Risefer v Permanent Trustee Company Pty Ltd [2001] FCA 1052

EUSTACE VON RISEFER AND ELIZABETH VON RISEFER v PERMANENT TRUSTEE COMPANY PTY LTD AND LATROBE HOME LOANS AUSTRALIA PTY LTD

Q 106 OF 2000

DOWSETT J

2 AUGUST 2001

BRISBANE

REASONS FOR JUDGMENT

1                     In these proceedings, the applicants sue for damages for various alleged acts of misconduct by the respondents.  On 10 April, I ordered the applicants to file and serve a statement of claim on or before 15 May this year.  This was not done. Mrs von Risefer was in Court when the order was made.  She now asserts that she did not know that the order was made and points out that she filed the document on 12 June.  The applicants have produced a statement of claim and have asked for an extension of time in which to serve and file it.

2                     In any event, it is appropriate to consider the adequacy of the statement of claim, whether it be on an application for an extension of time in which to file it or on an application to have it struck out which Mr Drysdale has indicated that he wishes to make.  To the extent that it is necessary I would be willing to give leave to make such an application instanter as it seems to me that the statement of claim is beyond redemption.

3                     I should give brief reasons for that conclusion.  The statement of claim arises out of a transaction entered into between the applicants and Permanent Trustee Company and Latrobe Homes, the respondents.  In effect, the applicants assert that a loan which they obtained from one or other of the companies was, as they understood it, from Latrobe Homes whereas in fact it appears that it was from Permanent Trustee Company.  This matter was the subject of litigation in the Supreme Court in which Permanent Trustee Company sought possession of the property following default pursuant to the mortgage.  The question of the identity of the mortgagee was then canvassed, and, as I understand it, resolved against the present applicants. 

4                     It is alleged in the statement of claim that Permanent Trustee Company lodged a document described as “No 20101944 CRAA.”  This appears to be a default notice lodged with the Credit Rating Authority.  It is submitted that it was the product of forgery, fraud and false accounting, but no particulars whatsoever are given.  It is alleged that this conduct occurred on 30 April and that on 22 July a further notice was lodged, also the product of forgery, fraud and false accounting, but again with no particulars.  It is said that as a result of this conduct, the applicants suffered loss and that this loss is actionable.  The total lack of any particularity as to the very serious allegations of forgery, fraud and false accounting of itself is sufficient to justify a conclusion that the allegation is embarrassing and vexatious.  Subsequently, it is alleged that the respondents breached s 53A of the Trade Practices Act 1974 (Cth) by misrepresenting their interest in what is described as the “applicants’ land”.  Similarly, in par 3 it is alleged that there was misleading and deceptive conduct pursuant to s 52 of the Trade Practices Act in connection with the transfer of this land to a third party, presumedly following the delivery of possession to Permanent Trustee Company.

5                     It is then alleged that the respondents engaged in deceptive conduct intended to damage the applicants, although no particulars are given, and that the respondents “intentionally devalue(d)” certain property, again without any particulars of the alleged conduct or devaluation.  All of this conduct appears to arise out of the transfer of the land to third parties by the mortgagee in possession, or at least so I understand it from what has been said to me.  I can see no basis upon which anybody other than the purchaser from the mortgagee could sue in respect of any representations as to the land made in breach of s 53A.  I can see no basis as pleaded, nor any possible basis for a claim by the present applicants pursuant to that section.  The same must be said of the balance of these claims.  Either they are completely unparticularised, and so it is impossible to know what is claimed, or they are based upon a misunderstanding of the provisions of the Act. 

6                     In par 8 of the statement of claim breach of the Bank Integration Act 1991 (Cth) is alleged.  That Act appears to be designed to assist in the merger of banks.  There is, as far as I can see, no basis upon which any claim for damages by the present applicants can be said to arise under that Act.  Again, the statement of claim is without particularity, and I cannot see any basis for hoping that this claim could be redeemed by the provision of further particulars.  This claim appears to relate to the facts alleged in pars 1 – 7.  In par 9 it is alleged there were false representations and other misleading or offensive conduct in relation to land by the first and second respondents in breach of s 53A of the Trade Practices Act and also breaches of s 52.  Again, there are no particulars and it is difficult to see what this adds to the earlier claims under these sections with which I have previously dealt.  In par 11 it is again alleged that there was breach of the Bank Integration Act.  It is not necessary to deal further with this matter.  It is sufficient to say that there is nothing in the statement of claim to indicate any basis for a claim for damages pursuant to that legislation.

7                     Paragraph 12 deals with provisions of the Cash Transaction Reports Amendment Act  1991 (Cth) and Crimes Legislation Amendment Act 1992 (Cth).  Again, there seems to be no basis upon which the applicants can claim damages under either Act, and none is disclosed by the statement of claim.  In par 13 reference is made to certain observations by Shepherdson J in the Supreme Court, but they seem to add nothing to the applicants claim, and no basis for any course of action can be seen as arising from that paragraph.

8                     At par 14 it is alleged that the first and second respondents and their directors and officers fraudulently appropriated property by false accounting and falsifying books and accounts.  No particulars are given.  On that count alone the claim must be seen to be vexatious and embarrassing. 

9                     Turning to pars 16 and 17 these appear to relate to the fact that the applicants had placed caveats upon the title which were removed by order of the Court.  The applicants assert that there was some irregularity in the course by which that was done, but there is nothing in the statement of claim to justify, or to indicate, that any cause of action arises out of such conduct.  If it is suggested that the order of the Supreme Court was obtained irregularly, then the proper course is to seek redress in that Court.

10                  Paragraph 18 suggests that in the sale by Permanent Trustee Company to its purchaser the former falsely represented that there were no encumbrances on the land.  Again, that does not seem a basis for any complaint by these applicants.  Paragraph 19 refers to the Cash Transaction Reports Amendment Act and the Crimes Legislation Amendment Act.  I have sufficiently dealt with these matters already.  There is no basis for a claim for damages by these applicants.

11                  I should say that there are various references in the statement of claims to the conduct of other respondents who have been dismissed from the action.  In the course of argument the applicants have abandoned those paragraphs, namely the second paragraph of par 1, pars 5 and 6, the reference to the third respondent in par 8, par 15, parts of pars 16 and 17.

12                  In the circumstances I decline leave to amend the statement of claim in accordance with this document.  I order the applicants to pay the respondents’ costs of today.

Associate:

Dated:              24 August 2001