FEDERAL COURT OF AUSTRALIA

Singh v Super City Home Loans Pty Ltd [2011] FCA 646

THE COURT ORDERS THAT:

1.    The Notice of Motion filed by the applicants on 18 January 2011 be dismissed.

2.    The first applicant pay the respondents’ costs of and incidental to that Notice of Motion.

3.    The Notice of Motion filed by the applicants on 23 February 2011 be dismissed.

4.    The first applicant pay the costs of the persons and organisations listed in the Schedule hereto of and incidental to that Notice of Motion.

5.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), this proceeding be dismissed.

6.    The various Notices of Motion filed by the respondents in which they sought summary dismissal of the proceeding or, alternatively, orders striking out the applicants’ Application and Statement of Claim, or part thereof, otherwise be dismissed.

7.    The first applicant pay the costs of the respondents of and incidental to the Notices of Motion referred to in par 6 above.

8.    The first applicant pay the respondents’ costs of and incidental to the proceeding.

THE SCHEDULE HEREINBEFORE REFERRED TO

1.    The Law Society of New South Wales.

2.    Phillip C Roberts.

3.    Ben Zipser.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Balbir Singh, who is the first applicant in this proceeding, is 55 years of age. He was born in Fiji and migrated to Australia in 1986 accompanied by his wife, Prem Jeet Kaur Singh, who is the second applicant. Mrs Singh is 49 years of age. Mr Singh has a trade qualification as a motor mechanic.

2    On 16 April 2007, the applicants settled a proceeding brought against them by George Lindsay Carver, a finance broker, in the Common Law Division of the Supreme Court of New South Wales (Plaint No 16033 of 2005) (the Carver proceeding). Mr Carver had sued the applicants for moneys lent by him to them plus interest. The Carver proceeding was settled upon the basis that judgment be entered in favour of Mr Carver against the applicants in the amount of $134,281.93. Mr Carver also obtained an order for costs against the applicants, such costs to be paid on an indemnity basis. As part of the settlement, the Cross-Claim brought by the applicants against Mr Carver in that proceeding was dismissed. Mr Carver agreed to accept $95,000 in full and final satisfaction of the judgment and order for costs which he had obtained provided that the agreed sum of $95,000 was paid to him by no later than 28 days after entry of the Terms of Settlement (ie by no later than 14 May 2007). In the event that the 14 May 2007 deadline was not met, he also agreed to accept $97,500 if that amount was paid within 42 days after entry of the Terms of Settlement (ie by no later than 28 May 2007). Otherwise, the full amount of the judgment plus costs had to be paid.

3    By 16 April 2007, therefore, there was significant pressure on the applicants to find the $95,000 or $97,500 to pay to Mr Carver in order to discharge the judgment and order for costs which had been entered in his favour. The applicants did not have $95,000 or $97,500 available from their own funds. They needed finance urgently in order to enable them to meet their obligations to Mr Carver and, in particular, to avail themselves of the discounts which he had agreed to accept in return for prompt payment. This pressing need for finance led to the transactions about which the applicants now complain.

4    The applicants approached the first respondent, Super City Home Loans Pty Ltd (SCHL), which is apparently a finance broker, seeking the assistance of SCHL in procuring the necessary finance. In April 2007, the principals of SCHL were the second and third respondents, Debdatta Pahari and his wife Helen Pahari. With the assistance of SCHL, loan funds were obtained by the applicants on 8 June 2007. Those moneys were procured from contributors to one of the solicitors’ mortgage funds operated by Robert Louis Kremnizer, who is the sixth respondent and from another source associated with Mr Kremnizer, with the involvement of several intermediaries including the fourth respondent, Bleier Mortgage Corporation Pty Ltd (Bleier MC) and its principal, David Bleier, who is the fifth respondent. The mortgage loans obtained by the applicants from those sources were themselves refinanced in September 2008 by a company called Ginelle Pty Limited (Ginelle). Ultimately, the applicants defaulted in their obligations to the new lender, Ginelle, and, as a result, lost most, if not all, of their assets.

5    In this proceeding, the applicants contend that all of the losses which they suffered from 2008 onwards were suffered by reason of unlawful conduct on the part of the existing respondents and also on the part of a further ten respondents whom they have applied to join as parties to this proceeding. They estimate their losses are of the order of $6,348,452 plus interest. They also argue that the transactions which they entered into in May and June of 2007 which involved the existing respondents were unjust and unconscionable within the meaning of the Consumer Credit (New South Wales) Code (the Code) and the Trade Practices Act 1974 (Cth) (the TPA) (since renamed). The Code was subsequently repealed with effect from 1 July 2010. The applicants seek compensation in respect of the fees and charges paid by them in connection with those transactions.

6    This proceeding was commenced on 22 November 2010 by the filing of an Application and Statement of Claim.

7    On 18 January 2011, the applicants filed a Notice of Motion in which they seek orders declaring that Mr Kremnizer and the operating company of his solicitor’s practice, Shloomp Pty Ltd (Shloomp), which is the seventh respondent, breached the Legal Profession Act 2007 (NSW) (the LPA). By that Notice of Motion, they also seek certain other relief directed against Pierre J Safi, who was the solicitor who acted for the applicants in respect of the mortgage transactions into which they entered in June 2007 but who is not currently a party to this proceeding. In addition, the applicants seek the following relief in that Notice of Motion:

7.    An order that the Applicant’s Solicitors and Respondent’s Solicitors engaged in commission of an act to void the operation of the NSW Consumer Credit Code.

8.    An order that the Documents Executed by the Applicants Annexed to the Affidavit of Balbir Singh at L2, pages 171 to 212 filed in these proceedings on 16 December 2010 be declared Null and Void and of No Effect.

9.    An order that the Documents Executed by the Applicants Annexed to the Affidavit of Balbir Singh at L3 pages 213 to 220 filed in these proceeding on 16 December 2010 be declared Null and Void and of No Effect.

10.    An order that Mr Danny Beran, Mr Rodger Beran, Ms Helen Margaret Owens, Mr Graham Douglas Owen, Mr Thomas Bradshaw and Ms Pamela Maude Bradshaw be joined in this proceedings as Respondents pursuant to Order 6 Rule 2 of the Federal Court Rules to Claim Damages.

11.    An order that the Respondents pay the Applicants Prem Jeet Kaur Singh and Balbir Singh loss and damages as claimed in the Statement of Claim in these proceedings.

12.    An order for payment of interest.

13.    An order for payment of costs on an Indemnity basis.

14.    Any other order the Honourable Court deems fit.

8    The documents at L2 (pp 171–212) of the Annexures to Mr Singh’s affidavit sworn on 16 December 2010 which are referred to in par 8 of the applicants’ Notice of Motion comprise the Loan Offer dated 22 May 2007 made to the applicants by Baccus Investments Limited (Baccus), which is the eighth respondent; the Loan Offer dated 22 May 2007 made to the applicants by Lawteal Seconds Pty Ltd (Lawteal), which is the tenth respondent; and other documents associated with those loan offers. Those other documents include the statutory declarations and other declarations made by the applicants on 23 May 2007 under the Code for the purposes of those loan offers. All of these declarations were witnessed by Mr Safi. There is no suggestion that the applicants did not make and sign these declarations. Those declarations stated that:

… the credit to be provided to [the applicants] is to be applied wholly or predominantly for business or investment purposes (or for both purposes).

9    In a further handwritten document dated 16 May 2007 which is signed by Mr Singh, Mr Singh stated that he and his wife operated a truck and spare parts business from their home at 20–26 Spencer Road, Londonderry, NSW (the Londonderry property). In that document, Mr Singh also said that more than 60% of the amount of the loans then being sought by him and his wife was for business purposes. He said that they needed the loans in order to expand their spare parts business. This document was sent to Bleier MC and then passed on to the ultimate lenders.

10    The Loan Offers referred to at [8] above were accepted by the applicants on 23 May 2007.

11    The document at L3 (pp 213–220) of the Annexures to Mr Singh’s affidavit sworn on 16 December 2010 which is referred to in par 9 of the applicants’ Notice of Motion is the Amended Loan Offer dated 28 May 2007 made by Lawteal to the applicants. That amended offer was accepted by the applicants on 31 May 2007. Mr Safi appears to have witnessed the applicants’ acceptance signatures in respect of those loan offers.

12    Both the Baccus loan and the Lawteal loan are described in the offer documentation as being made for business purposes. The Lawteal offer describes the loan as being “Non Credit Code”.

13    The applicants filed a second Notice of Motion on 23 February 2011 (the applicants’ joinder Motion). By that Notice of Motion, the applicants seek to join the following persons and entities as additional respondent parties to this proceeding:

14    The applicants had already sought to join the proposed eleventh to sixteenth respondents (the Kremnizer clients) by par 10 of their Notice of Motion filed on 18 January 2011.

15    The relief sought in the applicants’ joinder Motion filed on 23 February 2011 is in the following terms:

1.    An order that pursuant to Order 6 Rule 2 and Rule 8 of the Federal Court Rules joinder the Eleventh to Sixteenth Respondents in proceedings NSD 1601 of 2010.

2.    An order that pursuant to Order 6 Rule 2 and Rule 8 of the Federal Court Rules, contravened Section 179 to 185 of the Corporations Act 2001, contravened Memorandum of Articles of Association, and Legal Profession Act 2004 and Regulations joinder the Seventeenth Respondent.

3.    An order that pursuant to Order 6 Rule 2 and Rule 8 of the Federal Court Rules, contravened Legal Aid Commission Act 1979, Trade Practices Act 1974, Legal Profession Act 2004 and Regulations and Practice Rules their own Memorandum and Articles of Association, and Legal Profession Act joinder the Eighteenth and Nineteenth Respondents.

4.    An order that pursuant to Order 6 Rule 2 and Rule 8 of the Federal Court Rules, contravened Legal Aid Commission Act 1979, Legal Profession Act 2004 and Regulations and Practice Rules their own Practice Rules joinder the Twentieth Respondent.

5.    An order that the Respondents pay the Applicants Prem Jeet Kaur Singh and Balbir Singh loss and damages as claimed in the Statement of Claim in these proceedings.

6.    An order for payment of interest.

7.    An order for payment of costs on an Indemnity basis.

8.    Any other order the Honourable Court deems fit.

16    The Kremnizer clients are the individuals who actually made the first mortgage loan to the applicants through the relevant Kremnizer Mortgage Fund. In May 2007, Baccus was the responsible entity and manager of that Fund. The proposed seventeenth to twentieth respondents were not involved at all in the 2007 transactions. Their contact with the applicants began in 2009. I will explain their involvement with the applicants later in these Reasons.

17    Subsequently, the applicants sought to file two further Notices of Motion. I directed the Registry staff not to accept these two additional Notices of Motion. They are not before the Court at the moment and were not heard by me on 21 April 2011.

18    In the first of these additional Notices of Motion, the applicants sought general discovery against the first, fourth, eighth and tenth respondents as well as against the proposed seventeenth to twentieth respondents. They also sought preliminary discovery pursuant to O 15A rr 3, 6 and 8 of the Federal Court Rules against Westpac Banking Corporation. The applicants also wanted to amend the Notice of Motion filed by them on 18 January 2011 in order to claim summary judgment (presumably against all existing and proposed respondents) and indemnity costs orders against the respondents’ lawyers personally.

19    In the second of these additional Notices of Motion, the applicants sought a blanket leave to amend their Application and Statement of Claim. No draft of the proposed amendments was provided.

20    The respondents oppose all of the relief sought by the applicants in the Notice of Motion filed by them on 18 January 2011. In addition, all of the proposed additional respondents (with the exception of the Kremnizer clients and the Legal Aid Commission of New South Wales, who did not appear) oppose the making of orders joining them to the proceeding. None of the proposed additional respondents consented to being joined as parties to the proceeding.

21    By these Reasons for Judgment, I will determine the claims for relief made by the applicants in their Notices of Motion filed on 18 January 2011 and on 23 February 2011.

22    Each of the existing respondents has filed a Notice of Motion seeking to strike out the whole of the applicants’ Statement of Claim or, in the alternative, substantial portions of that Statement of Claim. Those respondents have also sought summary dismissal of the whole of the proceeding. In the alternative, those respondents sought orders that the applicants provide security for their costs.

23    These Reasons for Judgment also determine all of these applications made by the respondents with the exception of those concerning security for costs. The respondents’ applications for security for their costs have been deferred pending the outcome of the applications with which I am currently dealing.

24    In the applications with which I am currently dealing, the following issues arise:

(a)    Whether, pursuant to O 6 r 2 and r 8 of the Federal Court Rules, any of the proposed eleventh to twentieth respondents should be joined as parties to this proceeding.

(b)    Whether the whole or, alternatively, part of the applicants’ Statement of Claim should be struck out because it fails to disclose any reasonable cause of action or because it has a tendency to cause prejudice, embarrassment or delay in the proceeding or because it is otherwise an abuse of the process of the Court (as to which see O 11 r 16 of the Federal Court Rules).

(c)    Whether, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), the Court should give judgment in favour of the respondents because the Court is satisfied that the applicants have no reasonable prospect of successfully prosecuting this proceeding.

(d)    Alternatively, whether, pursuant to O 20 r 5 of the Federal Court Rules, the Court should order that this proceeding be summarily dismissed because it is frivolous or vexatious or is an abuse of the process of the Court.

(e)    Whether the applicants are entitled to summary judgment against the respondents and proposed respondents and indemnity costs against their lawyers.

25    Before addressing these issues, I propose to set out in summary form the essential facts according to the applicants’ version of events. An understanding of those facts is essential to the determination of the respondents’ summary dismissal applications and of the applicants’ joinder application. Such an understanding will also enable me to interpret the applicants’ Statement of Claim and, if necessary, to decide whether leave to replead should be granted to the applicants in the event that summary dismissal is not ordered but some part or the whole of that Statement of Claim is to be struck out. The applicants’ version of events is drawn from Mr Singh’s affidavit evidence tendered before me and from the documentary evidence tendered before me, almost all of which was tendered by the applicants. The main affidavit relied upon by the applicants is Mr Singh’s affidavit sworn on 16 December 2010. That affidavit was filed in compliance with a direction which I made on 8 December 2010 that the applicants should file and serve by 16 December 2010 all affidavits upon which they propose to rely at the final hearing. This body of evidence brought forward by the applicants has not been tested in any way. Neither of the applicants was cross-examined at the hearing of the Notices of Motion with which I am currently dealing. None of the respondents has filed a defence. The only affidavit read and relied upon by any of the respondents which addressed any of the events of 2007 was the affidavit of Mr Bleier affirmed on 16 March 2011. Mr Bleier’s affidavit contains material which I expect will be largely uncontroversial: He described the business of Bleier MC and recounted the steps taken in the 2007 transactions in which Bleier MC was involved.

26    The precise nature and extent of the factual disputes which might ultimately emerge, should the proceeding go to trial, are not yet known. In respect of some facts, however, it is already reasonably clear that there will be a dispute. In those cases, I will endeavour to identify the dispute in the summary which I shall give. In these Reasons for Judgment, I will not, of course, attempt to resolve any disputes as to the facts.

27    For present purposes, the summary should be regarded as a summary in which the applicants’ evidentiary case is articulated in the most favourable light possible.

28    Mrs Singh was made bankrupt on 2 November 2010 upon the petition of the Deputy Commissioner of Taxation. Mr Singh informed me from the Bar Table that his wife has lodged an appeal from the sequestration order made against her estate. That appeal was heard during the Full Court sittings which commenced on 2 May 2011. As far as I am aware, no decision in Mrs Singh’s appeal has yet been made. On 2 February 2011, Emmett J made an order that proceedings under the sequestration order be stayed up to the final disposition of Mrs Singh’s appeal. In addition, there is an outstanding Creditor’s Petition against Mr Singh. As far as I am presently aware, no Sequestration Order has been made on that Petition.

29    Under s 60 of the Bankruptcy Act 1966 (Cth), the proceeding insofar as it involves the alleged rights of Mrs Singh is stayed. Mrs Singh’s rights (if any) are “property of the bankrupt” within s 58 and s 116 of that Act. Those rights are now vested in her trustee. Her trustee is not a party to the proceeding and there is no evidence that her trustee is aware of the proceeding. If the proceeding survives the current challenges mounted by the respondents, the consequences of Mrs Singh’s bankruptcy will need to be addressed by the applicants.

The Applicants’ Version of Events

30    In 1987 or 1988, the applicants purchased a house property at Hinchinbrook NSW (the Hinchinbrook property). They lived in that property until mid October 2002.

31    In 1997, the second applicant purchased a vacant block of land at 33 Lord Howe Drive, Green Valley, (NSW) (the Green Valley land) as an investment. The purchase price of the Green Valley land was approximately $97,000. The Commonwealth Bank of Australia lent $87,000 to the second applicant in order to enable her to acquire that land. The first applicant guaranteed that loan. It appears from the evidence before me that, by April 2007, the second applicant owed $200,000 under the then extant mortgage of the Green Valley land. By then, that mortgage was not held by the Commonwealth Bank of Australia but by Permanent Custodians Limited (Permanent) for the benefit of Royal Guardian Mortgage Corporation Pty Limited (Royal Guardian).

32    In early 2002, the applicants decided that they needed a larger property in which to live and from which they might operate their business of conducting coach tours and hiring out buses and coaches to the public. They had conducted that business since 1998. They were ambitious in their plans at this time and were keen to expand their business. They began to look for a larger property which would accommodate their needs. Those needs included parking for eight motor coaches of various sizes and capacities.

33    In late March or early April 2002, the applicants found a property at Mulgoa NSW which suited their plans rather well. The asking price for this property was $735,000.

34    At this time, the applicants had no cash readily available with which to pay a deposit on a new property acquisition. Their initial enquiries about finance gave them to understand that, in order to acquire a property at a price of $735,000 or thereabouts, they would have to sell the Hinchinbrook property or the Green Valley land, or both.

35    The applicants were then introduced to Mr Carver. Their first meeting with Mr Carver took place in early April 2002. Mr Carver discussed some grand plans with the applicants: He suggested to them that they could purchase the Mulgoa property without selling either the Hinchinbrook property or the Green Valley land. He proposed that the applicants should purchase the Mulgoa property and then immediately develop the Green Valley land. He then set about seeking to procure finance for the applicants.

36    The applicants then learned that the Mulgoa property had been sold to someone else. Nonetheless, on 15 May 2002, they retained a real estate agent to sell the Hinchinbrook property. The asking price was $385,000. In this way, they hoped to put themselves in a position to purchase a larger property should they locate a suitable property in the near future. They continued to look for a suitable property which would meet both their business and personal needs.

37    In late June 2002, the applicants inspected the Londonderry property. This property is approximately 1.6 ha in area. In June 2002, there was a four bedroom single level house built on the property. That house remained on the property throughout the period of its ownership by the applicants. There was also an eight car garage. The property is located about 1 km from the Londonderry Village Centre. The asking price for the Londonderry property was $675,000. The applicants inspected the Londonderry property on two further occasions. On the occasion of their last inspection of the property, which took place on 3 July 2002, the applicants offered to buy the property for $655,000. Later that same day their offer was accepted by the vendor.

38    As at 3 July 2002, the applicants:

(a)    Had not sold the Hinchinbrook property;

(b)    Did not have any approved finance that would enable them to purchase the Londonderry property; and

(c)    Did not have any cash funds that could be used to pay the necessary deposit against the purchase of the Londonderry property.

39    According to the applicants, in the first two weeks of July 2002, they had several conversations with Mr Carver in which he gave them assurances to the effect that he would secure the necessary finance to enable them to purchase the Londonderry property.

40    On 15 July 2002, the applicants exchanged contracts for the sale of the Hinchinbrook property. The sale price was $350,000. According to the applicants, the mortgage debt on the Hinchinbrook property at that time was approximately $225,000. If that evidence is correct, the applicants would have expected to receive $125,000 less commission and other selling costs from the sale of the Hinchinbrook property. The actual amount received by them was approximately $102,000.

41    In July 2002, before the applicants had exchanged contracts for the purchase of the Londonderry property, Mr Carver informed the applicants that the lender with whom he was dealing at that time in order to procure finance for the applicants, had valued the Londonderry property at $500,000 and the Green Valley land at $200,000 for mortgage purposes. These valuations put the values of both properties at figures far lower than the applicants and Mr Carver had expected.

42    Mr Carver then agreed to assist the applicants by lending to them the amount of the deposit to be paid by them on the purchase of the Londonderry property. Contracts for the purchase of that property were then exchanged – probably on 21 or 23 August 2002.

43    Settlement of the sale of the Hinchinbrook property took place on 29 August 2002.

44    The purchase of the Londonderry property was completed on 10 October 2002. Permanent, as trustee for Royal Guardian, provided loan funds to the applicants in the amount of $468,000 in order to assist them to purchase the Londonderry property. That loan was secured by a registered first mortgage over the Londonderry property. Mr Carver lent $60,000 to the applicants. His loan was secured by a second mortgage over the Londonderry property. That mortgage was not registered immediately on the title to the Londonderry property but was subsequently registered as a second mortgage on that title. The balance of approximately $127,000 plus expenses was provided by the applicants from their own funds and possibly from additional borrowings made against the Green Valley land.

45    Subsequently, further dealings took place between the applicants and Mr Carver which culminated in the Carver proceeding.

46    That litigation was commenced in 2004 or 2005 and was settled on 16 April 2007.

47    There is some suggestion in the evidence before me that the applicants approached SCHL in late March or early April 2007 and sought SCHL’s assistance in procuring finance to pay out Mr Carver. It appears that no finance had been obtained for that purpose prior to 16 April 2007 when the applicants agreed to settle the Carver proceeding.

48    On 7 May 2007, the applicants went to the office of SCHL at Shop 2, 159 Queen Street, St Marys NSW and met with Mr Pahari. Mrs Pahari was also involved in some of the discussions which took place on that day. This was only seven days before the first critical milestone under the terms of the settlement of the Carver proceeding and only 21 days before the second critical milestone under those terms. The applicants allege that, during the discussions which took place on 7 May 2007, Mr Pahari said that he would procure for the applicants a “low doc express mortgage for one year”. They allege that he said that, should he succeed in procuring finance secured by such a mortgage, their existing first mortgage would need to be discharged and they would need to enter into a new mortgage organised by SCHL. He said that it would be a single mortgage for one year and that it would be refinanced with a proper 30 year loan at some stage during that year. Mr Pahari is alleged to have said that the interest rate would be a maximum 10% per annum and that the entire amount required would be secured by one mortgage, a registered first mortgage. Mr Pahari is alleged to have cautioned the applicants against taking out a second mortgage. It is common ground that, on this occasion, the applicants signed a Finance Broking Contract with SCHL as well as a Loan Application Form in which they sought finance in the amount of $624,000.

49    The applicants contend that the copies of the relevant Finance Broking Contract subsequently produced by SCHL are not copies of the document which they signed on 7 May 2007. The suggestion apparently is that the documents upon which SCHL will rely as constituting the Finance Broking Contract signed by the applicants on 7 May 2007 are forgeries.

50    In the copy Finance Broking Contract relied upon by SCHL, the loan amount sought is shown as $624,000. The term of the loan is one year. The anticipated interest rate is 11% per annum. That contract also included a promise on the part of the applicants to pay a brokerage fee of $16,500. It is not necessary at the moment to refer to the other terms of that contract. The applicants accept that they were told that the interest rate might be 11% per annum and that SCHL’s brokerage fee would be $16,500.

51    By seeking the amount of $624,000 in this way, the applicants intended to pay out Permanent (which was then owed approximately $445,000) and Mr Carver (who was owed $95,000 under the litigation settlement which they had entered into with him provided that they could pay him before 14 May 2007). The applicants were hoping to retain the balance of the funds to be advanced under the foreshadowed loan arrangements (viz $84,000 less expenses) for their own use. It is quite clear that the applicants were not simply seeking to procure finance to pay out Mr Carver. They were also looking to refinance their current borrowings with a view to increasing the total amount of those borrowings in order to provide additional working capital for their business. By 2007, that business was no longer the coach business which I have described at [32] above. By then, the business was a truck repair business in which the first applicant was deploying his skills and training as a motor mechanic.

52    SCHL has also produced a copy of a Loan Application Form apparently signed by the applicants on 7 May 2007. The applicants deny that the copy produced is the one which they signed on that occasion.

53    In the Loan Application Form which is disputed, the use to which the loan funds were to be put is described as follows:

… Refinance of existing mortgage and renovating home office and business

54    Royal Guardian was identified as the existing mortgagee. On the form, an amount of $445,000 was said to be owing to Royal Guardian as at 7 May 2007.

55    In the Loan Application Form produced by SCHL, the fact that seven different creditors had obtained judgments against the applicants in the period from February 2005 to August 2006 is disclosed. The amounts of those judgments ranged from $943 to $8,415. By April 2007, all of those judgments had been satisfied in full although none had been paid promptly. Some had taken almost 18 months to be discharged in full. On the form, the “Exit Strategy” was described in the following terms:

To refinance within 12 mths and sell property overseas to pay out debt.

56    There is no evidence before me which identified or valued “… the property overseas …” referred to in that Form.

57    In the Loan Application Form tendered in evidence before me, the Londonderry property is said to be worth $960,000 as at 7 May 2007 and the Green Valley land is said to be worth $350,000 as at that date. In addition to the amount of $445,000 claimed to be owing to Royal Guardian, a further amount of $200,000 is said to be owing to Royal Guardian. This latter amount was secured by a mortgage over the Green Valley land.

58    On 7 or 8 May 2007, SCHL faxed to Bleier MC a Loan Application Form which was apparently signed by the applicants.

59    In his affidavit affirmed on 16 March 2011, Mr Bleier described the activities of Bleier MC in the following terms:

5.    Bleier is a mortgage intermediary which accepts applications for mortgage loans from the clients of various brokers, considers the applications and issues any necessary valuation instructions before passing them to various lenders for approval. If approved, Bleier then issues indicative offers on behalf of the lenders and acts as a channel for any communication between the clients, brokers and lenders prior to the mortgage loans being approved.

6.    Bleier’s involvement then ceases and the lenders provide mortgage finance to the clients of the mortgage brokers. Bleier is not involved in approving the loans, putting the mortgage loans in place or enforcing the loans on default.

7.    Bleier refers mortgage applications to the Seventh Respondent, Baccus Investments Pty Limited (Baccus). Bleier and Baccus are closely linked as they share offices and personnel. I became a director of Baccus on 27 May 2010. Where Baccus provides mortgage finance, the paperwork is dealt with by RL Kremnizer & Co Solicitors, the Principal of which is the Sixth Respondent, Robert Louis Kremnizer (Kremnizer). Kremnizer also operates out of the same offices as Bleier and Baccus.

8.    At the relevant time in 2007 applications for mortgages were dealt with by me personally or by my secretary, Megan Blake, on my instructions.

The transaction with the Singhs

9.    The First Respondent, Super City Home Loans Pty Limited (Super City) is one of many brokers from whom Bleier accepts mortgage loan applications.

60    On 8 May 2007, Bleier MC sent what it described as an “Indicative Loan Offer” to SCHL. That offer was addressed to the applicants but sent under cover of a letter from Bleier MC to SCHL.

61    The introductory paragraph and first four numbered paragraphs of that Indicative Loan Offer were in the following terms:

We advise that finance may be available on the terms noted in the Indicative Loan Offer document, subject to acceptance by the Lender. Terms and conditions may vary subject to the Lender upon receipt of the security documents (including the valuation report). This Loan Offer remains indicative:

62    The term “the Lender” appears in a number of places throughout the offer but is not defined anywhere in the offer. The lender is not identified anywhere in the offer. The precise role to be undertaken by Bleier MC in the transactions contemplated by the offer is not made clear by the terms of the letter. A reader could be forgiven for thinking that Bleier MC was to be the lender rather than in fact being yet another intermediary of some kind. The offer provided that various fees would be paid to Bleier MC and to other intermediaries.

63    In his affidavit, Mr Bleier said that:

Bleier’s role as a mortgage intermediary was to review the 7 May Application, obtain a valuation of the property and submit it to Baccus to see whether it was prepared to make an offer for the requested mortgage loan (par 13).

64    Baccus was not mentioned anywhere in the Indicative Loan Offer.

65    On 11 May 2007, Bleier MC retained Peter Clisdell Valuations to value the Londonderry property. Mr Casemore, a qualified valuer employed by Peter Clisdell Valuations, inspected the property on 15 May 2007, researched comparables and then provided a formal written valuation to Bleier MC on or about 16 or 17 May 2007. Mr Casemore valued the property at $785,000. His searches revealed that the property was subject to a second mortgage in favour of Mr Carver.

66    On 17 or 18 May 2007, Mr and Mrs Pahari informed the applicants that the valuation of the Londonderry property ordered by Bleier MC had come in at $785,000. They also told the applicants that there would need to be a second mortgage because Bleier MC would only finance up to 65% of valuation, ie up to 65% of $785,000 which is $510,250.

67    On 18 May 2007, Bleier MC approached Lawteal and requested Lawteal to provide a second mortgage for an amount equivalent to the difference between 75% of Mr Casemore’s valuation (viz 75% of $785,000 which is $588,750) and the amount which Bleier MC was prepared to arrange on first mortgage (60–65% of $785,000). Lawteal agreed to do so.

68    On 21 May 2007 and 22 May 2007, Lawteal was requested to reduce the amount of its proposed loan to the difference between the Bleier MC-organised loan amount and 72.5% of valuation (ie 72.5% of $785,000 which is $569,125). In email communications between Bleier MC and Lawteal sent around this time, this change was said to be at the clients’ request (ie at the applicants’ request).

69    SCHL has produced copies of a Loan Application Form apparently signed by the applicants on 22 May 2007. The applicants deny completing or signing any Loan Application Form at any time after 7 May 2007, when they signed such a form at the office of SCHL. In particular, they deny signing the Loan Application Form dated 22 May 2007 produced by SCHL.

70    In this second Loan Application Form, the use to which the funds were going to be put is described as follows:

More than 60% of the funds are going to be used to purchase spare parts for trucks and to expand his truck repair business.

71    The interest rate on the two loans was specified as 10% per annum for the first mortgage loan and 21.6% per annum for the second mortgage loan. The amount of the loan was specified as $569,000. The term of the loan was still one year. A first and second mortgage were said to be required.

72    Bleier MC issued two further Indicative Loan Offers on 22 May 2007, one for each of the foreshadowed mortgages. The first was for an amount of $471,000 or 60% of valuation, whichever was the lesser. $471,000 is precisely 60% of $785,000. $785,000 was the value that Mr Casemore had put on the Londonderry property. The loan of $471,000 was to be secured by a first registered mortgage over the Londonderry property. The term of that loan was 12 months. The interest rate was 10% per annum with a 13% per annum penalty rate.

73    The second of these offers was for an amount of $98,000 or 72.5% of valuation, whichever was the lesser. This amount was to be secured by a second registered mortgage over the Londonderry property and a caveat over the Green Valley land. The interest rate on this loan was 21.6% per annum with a penalty rate of 29.1% per annum. The term of the loan was one year.

74    The applicants accepted these two further Indicative Loan Offers by signing a copy of each on 22 May 2007.

75    The mortgage transactions contemplated by the two Indicative Loan Offers dated 22 May 2007 were completed on 8 June 2007.

76    At settlement, the Kremnizer clients advanced $471,000 to the applicants and Lawteal advanced $98,000 to the applicants. Thus, the total of the loans made by these lenders was $569,000. From this total of $569,000, Mr Carver was paid $88,109.10 and Permanent was paid $442,336.66. The solicitor who had represented Mr Carver in the Carver proceeding was paid $7,500. A further $4,390.90 was paid to a Mr Hicks at Mr Carver’s direction. In the end, this meant that the applicants paid $100,000 from the two loans advanced on 8 June 2007 in order to obtain a release from the 16 April 2007 judgment and costs order in favour of Mr Carver and in order to obtain a discharge of the second mortgage held by him over the Londonderry property. SCHL was paid $16,500 from those loans. Other fees and charges were also paid. Prior to settlement, the applicants had also paid valuation fees, establishment fees and other charges to SCHL, Bleier MC and Baccus. Mr Kremnizer was also paid legal fees.

77    The applicants had to put in $10,268.50 of their own funds in order to enable the settlement to proceed.

78    The applicants were represented by solicitors, Kacir, Safi and Halligan Lawyers, throughout the period from late May 2007 to 8 June 2007 in respect of the mortgage transactions.

79    Baccus and Lawteal obtained assurances from the applicants and their accountant concerning the applicants’ ability to service the loans which had been made. As noted at [8] and [9] above, they also obtained declarations and a further detailed assurance that the loan in each case was wholly or predominantly for business or investment purposes (or for both purposes).

80    The applicants complain that Mr Safi of Kacir, Safi and Halligan Lawyers did not explain or adequately explain the documents which they signed in connection with these loan transactions. However, no claims are made in the current proceeding against that firm or against Mr Safi nor have the applicants made application that that firm or Mr Safi be joined as a respondent party to the present proceeding.

81    Lawteal made further written offers to the applicants at the end of May which were also apparently accepted by the applicants.

82    In the last quarter of 2007, the applicants approached SCHL with a request that it procure a refinancing of the mortgage loan obtained from the Kremnizer clients and of the Lawteal mortgage. The prospective lender at that time was Challenger. Challenger obtained a valuation in December 2007 of the Londonderry property which put the value of that property at that time at $600,000. In light of that valuation, the refinancing proposal through Challenger could not and did not proceed. Should the matter go to trial, there will be a contest between SCHL, Mr Pahari, Mrs Pahari, on the one hand, and the applicants, on the other hand, as to what then happened. The applicants contend that Mrs Pahari told the applicants that, if they wanted to increase the value of the Londonderry property, they would have to comply with the suggestions made by the valuer retained by Challenger for improving that property. The applicants say that Mrs Pahari described for them the improvements which needed to be made.

83    Mrs Pahari, on the other hand, says that it was the applicants who suggested to her that the value of the property might be enhanced if they made certain improvements to it.

84    The applicants assert that they repaired the fencing on the property, erected new fencing, relocated the wash bay and carried out improvements to the house and the yard around the workshop. The applicants did not provide any details of these improvements in their evidence before me.

85    The applicants assert that they spent $150,000 on these works. However, they have provided no evidence at all to support this assertion.

86    In May 2008, a further valuation of the Londonderry property was carried out. It came in at $665,000. At that figure, refinancing a debt of $569,000 was not going to be easy.

87    Thereafter, the applicants defaulted under their mortgages from the Kremnizer clients and Lawteal. They refinanced these two loans with Ginelle. They were unable to service the Ginelle loan and ultimately defaulted in the performance of their obligations owed to Ginelle. Ginelle obtained possession of the Londonderry property and the Green Valley land and sold both.

The Applicants’ Joinder Application

88    The applicants have not propounded a draft Amended Application or a draft Amended Statement of Claim in which they articulate the cause of action or causes of action which they would seek to litigate against each of the proposed additional respondents in the event that those persons and entities are joined as parties to this proceeding. To a very large extent, I am left to speculate as to the causes of action that would be relied upon. This is unsatisfactory. The Court should not be compelled to sort through a myriad of disparate facts and matters in order to see whether, in the Court’s opinion, some cause of action can possibly be discerned.

89    At the commencement of the hearing before me on 21 April 2011, the applicants provided a Written Submission to the Court (MFI-1). In that Submission, the applicants outlined their complaints against the eleventh to twentieth respondents as follows:

7.    The Eleventh, Twelveth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Respondents aided and abetted either wilfully, negligently or recklessly the Eight, Seventh and Sixth Respondents to unjustly and unconscionably to Refinance the Applicants 30 Year Home Loan Mortgage with Permanent Custodian Limited managed by Royal Guardian Mortgage Management Pty Ltd for their own Financial Gain. They did not reconcile the information on Supplementary S. Product Disclosure Statement and the Valuation Report. The Eleventh to Sixteenth Respondents were the First Mortgagees.

8.    The Seventeenth Respondent in dealing with the Applicants in various capacities acted unjustly and unconscionably, either wilfully, negligently or recklessly by remaining SILENT on issues raised by the Applicants against Sixth and Seventh Respondents.

9.     The Seventeenth Respondent engaged in Misleading and Deceptive conduct when it processed the Applicants PRO BONO Legal Aid Application and denied the Applicants proper Legal Representation and Justice.

10.     The Seventeenth Respondent aided and abetted in causing Loss and Damage suffered by the Applicants by denying Legal Aid and Dishonouring its own OBJECTIVES and the Solicitor Rulers.

11.     The Eighteenth Respondent while acting for the Twentieth Respondent in processing the Legal Aid Application engaged in Misleading and Deceptive conduct in that he did not Evaluate or Examine the Evidence presented to him (the 16 Dec. AFF.). He held lengthy conference with First and Second Applicants but refused to see the Evidence saying it is the job of the Counsel.

12.     The Eighteenth Respondent chose a Counsel with little or poor knowledge of Applicable Legislation and acted negligently by not accepting the plea of the First and Second Applicants that the Nineteenth Respondent was a Incompetent Barrister in the Applicable Legislation.

13.     The Eighteenth Respondent aided and abetted in denying the Applicants getting proper Legal Representation and Justice.

14.     The Nineteenth Respondent acted in a Misleading and Deceptive Conduct in that his written Advice to the Twentieth Respondent amount to Misrepresentation in that he gave the Advice without examining the Evidence presented to him at the Conference. (the 16 Dec. AFF.).

15.     The Nineteenth Respondent aided and abetted in denying the Applicants proper Legal Representation and Justice.

16.     The Twentieth Respondent acted negligently in that it did not take notice of the Applicants representation that the Nineteenth Respondent was a Incompetent Barrister in the Applicable Law and his Advice was wrong.

17.     The Twentieth Respondent aided and abetted in causing Loss and Damage suffered by the Applicants by not granting Legal Aid.

I have reproduced paragraphs 7–17 of the applicants’ Submissions without alteration or amendment.

90    As is apparent from my summary of the relevant facts at [30]–[87] above, the proposed eleventh to sixteenth respondents were the first mortgagees and primary lender to the applicants under the arrangements procured by SCHL, Bleier MC, Baccus and Mr Kremnizer in May 2007.

91    The proposed seventeenth respondent (the Law Society of New South Wales) (the Law Society) is alleged to have contravened the statutes, regulations and corporate constitution referred to in par 2 of the applicants’ joinder Motion. The applicants wish to contend that the Law Society acted unjustly and unconscionably, wilfully, negligently or recklessly in respect of the complaints which the applicants made against Mr Kremnizer and Shloomp based upon the events which occurred in 2007 and also engaged in misleading and deceptive conduct when it processed an application for pro bono legal assistance made to it by the applicants in April 2009.

92    The Law Society recommended to the Legal Services Commissioner that the applicants’ complaints against Mr Kremnizer be dismissed and declined to provide pro bono legal assistance to the applicants because it was of the view that the case then sought to be made by the applicants did not have reasonable prospects of success.

93    The proposed eighteenth, nineteenth and twentieth respondents were all involved in dealing with an application for legal aid made by the applicants in early 2010 concerning events which took place in 2008 and 2009.

94    Some of the essential facts which are relevant to the allegations which the applicants wish to make against the proposed seventeenth to twentieth respondents concern the period between September 2008, when the applicants refinanced the loans which they had obtained in June 2007 by entering into fresh financing arrangements with Ginelle, and April 2010. For present purposes, those facts are sufficiently summarised in the Reasons given by the High Court for dismissing the applicant’s Application for Special Leave to Appeal from a decision of a New South Wales Court of Appeal (Singh v Ginelle Pty Ltd [2010] NSWCA 310). That decision of the New South Wales Court of Appeal determined applications for leave to appeal from decisions of Latham J (Ginelle Pty Ltd v Singh [2010] NSWSC 579) and Palmer J (Singh v Ginelle Pty Ltd [2010] NSWSC 442).

95    In support of their decision to dismiss the applicants’ Application for Special Leave to Appeal, Heydon and Bell JJ said:

1.    In September 2008 the applicants entered into an agreement with the respondent for the loan of $465,000 secured by a mortgage over land at Londonderry. The applicants signed a Consumer Credit Code (“Code”) declaration stating that the credit to be provided was to be applied wholly or predominantly for business or investment purposes. Under the Code such a declaration carries a conclusive presumption that the credit was not provided wholly or predominantly for personal, domestic or household purposes [Consumer Credit Code, s 11. The Code is an appendix to the Consumer Credit (NSW) Act 1995 (NSW)]. The applicants fell behind in repayments. The respondent commenced proceedings for possession of the land and repayment of loan monies. The applicants filed a defence seeking to rely on the Code.

2.     On 9 June 2009 the parties settled the proceedings on the basis that there would be judgment for the respondent but that it would not be entered provided that the applicants made payments in accordance with a schedule that formed part of the agreement. Orders giving effect to the agreement were made on 9 June 2009.

3.     The applicants did not make payments in accordance with the agreement. On 1 December 2009 judgment was entered against them and, in due course, a writ of execution issued.

4.     The applicants filed a notice of motion claiming orders setting aside both the judgment and the agreement of 9 June 2009, and staying the execution of the writ of possession. On 9 March 2010 Latham J dismissed the motion.

5.     The applicants appealed to the Court of Appeal (Beazley and Campbell JJA, and Handley AJA). The Court granted the applicants leave to appeal, but dismissed the appeal. The Court observed that if the applicants had wanted to succeed in an argument that the 9 June 2009 agreement was vitiated because it, or the underlying mortgage transaction, did not comply with the Code it would have been necessary for them to lead evidence in support of that case. They had not done so. Each of the attacks made on the judgment of Latham J was rejected.

6.     The applicants apply for special leave to appeal. Their proposed grounds are prolix. They do not identify any question of law suitable for the grant of special leave. Generally, they assert error in the Court of Appeal’s failure to hold that the respondent and its agents were in breach of the Code. In their written case the applicants make a number of factual assertions. They do not address the reasons of the Court of Appeal. There is no reason to doubt the correctness of the decision.

96    Latham J delivered her decision ex tempore on 9 March 2010.

97    On 25 February 2009, the applicants commenced proceedings in the Consumer Trader and Tenancy Tribunal of New South Wales (the CTTT) against Bleier MC, SCHL, Lawteal, Baccus, Mr Pahari and Mrs Pahari. In the CTTT proceeding, the applicants sought relief pursuant to the Code in respect of the mortgage transactions between the applicants, on the one hand, and the Kremnizer clients and Lawteal, on the other hand, which were completed on 8 June 2007, and the associated broking transactions. The respondent parties to the CTTT proceeding contended that the CTTT had no jurisdiction to determine the claims which the applicants made in that proceeding because the applicants had signed Code declarations in the usual form declaring that the loans were for predominantly business purposes. The respondents argued that the declarations were valid and that there was no evidence to support the proposition that the declarations were ineffective because the respondents knew or had reason to believe that the loans were to be used predominantly for personal, domestic or household purposes and that the weight of the evidence would prove generally that credit was not provided for such purposes. Other jurisdictional issues were raised by the respondents.

98    The applicants, on the other hand, argued that the lenders must have been aware that the loans were primarily for residential or domestic purposes. In particular, they relied upon the fact that the Londonderry property was zoned residential.

99    By early 2010, the CTTT had fixed 6 May 2010 for the hearing of an application by the respondents that the applicants’ CTTT proceeding be dismissed for want of jurisdiction.

100    Confronted, as they were, with an upcoming attempt to summarily dismiss their CTTT proceeding and having a desire to appeal from the judgment of Latham J, the applicants sought legal aid from the Legal Aid Commission. By early 2010, the applicants were also in dispute with the mortgagee of the Green Valley land.

101    The applicants had previously sought pro bono assistance from the Law Society in respect of the proceedings brought by Ginelle against them and in respect of the proceeding which they had instituted in the CTTT.

102    The evidence tendered by the applicants for the purposes of their joinder Motion proved that:

(a)    In March or April 2010, the Legal Aid Commission refused the applicants’ application for a grant of legal aid. Legal aid was sought in order to enable the applicants to prosecute the CTTT proceeding and their application for leave to appeal (and, if appropriate, their appeal) from the judgment of Latham J.

(b)    On 9 April 2010, the applicants lodged an appeal from the Commission’s refusal to make a grant of legal aid for those purposes.

(c)    On 16 April 2010, the Legal Aid Commission authorised certain expenditure for the benefit of the applicants pursuant to s 33 of the Legal Aid Commission Act 1979 (NSW) (the Legal Aid Act). That authorisation was limited. It was given for the limited purposes of enabling Mr Roberts, who is the proposed eighteenth respondent and who was the applicants’ appointed solicitor, to prepare a brief to Counsel to advise whether the applicants had reasonable prospects of success in the CTTT proceeding and in the Court of Appeal and, if so, to advise what relief was likely to be granted. If monetary relief was likely, the quantum of the likely judgment was also to be the subject of advice.

(d)    Mr Roberts briefed Mr Zipser of Counsel, who is the proposed nineteenth respondent. There is no suggestion that the brief had been negligently prepared or that it was deficient in any important respect. On 30 April 2010, Mr Roberts attended a lengthy conference with the applicants and Mr Zipser in which the applicants’ many grievances were fully aired.

(e)    Mr Zipser provided a written Advice on 4 May 2010. Mr Zipser was of the opinion that the applicants did not have reasonable prospects of success in either proceeding. It is not necessary for present purposes to traverse that advice in any detail. The applicants have not been able to point to anything in Mr Zipser’s Advice which was negligent or otherwise in some way unlawful. As matters turned out, Mr Zipser was correct in his opinions concerning the CTTT proceeding and the Court of Appeal proceeding.

(f)    By letter dated 5 May 2010, Mr Roberts gave a fair and comprehensive report to the applicants of where their matter stood at that time. In that letter, Mr Roberts noted that the Legal Aid Commission had decided not to grant assistance to fund the proceedings in respect of which legal aid was sought.

(g)    On 6 May 2010, the Legal Aid Commission formally notified the applicants that it had refused legal aid in respect of the CTTT proceeding and the Court of Appeal proceeding. The Commission said the applicants’ application did not satisfy the merit test (ie did not have reasonable prospects of success).

103    In seeking to join the proposed eleventh to twentieth respondents, the applicants rely upon O 6 r 2 and O 6 r 8 of the Federal Court Rules. Those Rules provide:

2    Joinder of parties generally

Two or more persons may be joined as applicants or respondents in any proceeding:

(a)    where:

(i)    if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and

(ii)    all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b)    where the Court gives leave so to do.

…

8    Addition of parties

(1)    Where a person who is not a party:

(a)    ought to have been joined as a party; or

(b)    is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;

the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.

(2)    A person shall not be added as an applicant without the person’s consent.

104    The proposed seventeenth to twentieth respondents probably have a right to be heard in opposition to the relief sought in the applicants’ joinder Motion. In order to avoid unnecessary argument as to the respondents’ rights in this respect, I granted leave to all of the proposed respondents who attended at the hearing before me to appear and to oppose the joinder sought by the applicants.

105    The proposed eleventh to sixteenth respondents were obviously involved in the refinancing transactions which were completed on 8 June 2007. They were the incoming first mortgagees. However, that circumstance alone does not warrant a conclusion that O 6 r 2 or O 6 r 8 has been satisfied. The applicants were obliged to explain to the Court the basis upon which the joinder of the Kremnizer clients was justified. They did not do so.

106    As far as the attempt to join the seventeenth to twentieth respondents is concerned, the requirements of sub-rule (a) of O 6 r 2 are not satisfied in the present case. The events of 2007 and 2008 which are sought to be litigated by the applicants in this proceeding as it is presently constituted have nothing in common with the facts which will need to be examined if the seventeenth to twentieth respondents are joined as additional respondent parties. Nor can it sensibly be said that the claims for relief made by the applicants in this proceeding and those which they would seek to make against the additional respondents arise out of the same transaction or series of transactions.

107    Nor, in my view, are any of the proposed seventeenth to twentieth respondents necessary parties to this proceeding within the meaning of O 6 r 8.

108    Insofar as the applicants rely upon the general power of the Court to grant leave to them, in their capacity as an existing party, to join the proposed additional respondents to this proceeding, the applicants must satisfy the Court that they have an arguable case against those proposed additional respondents and that there is good reason for the Court to make an order joining them to this proceeding (Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 at [6]–[7]; Apotex Pty Ltd v Les Laboratoires Servier (No 4) [2010] FCA 1202, (2010) 89 IPR 274 at [8] and at [48]; Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366 at [5]).

109    The applicants have not articulated any arguable claim against any of the proposed additional eleventh to twentieth respondents.

110    Furthermore, such evidence as is available to me at the moment suggests that it is extremely unlikely that any claim could be legitimately mounted against any of those proposed additional respondents.

111    As far as the Law Society is concerned, it cannot be liable for its decision not to uphold the complaints made by the applicants against Mr Kremnizer and Shloomp (see s 730 of the LPA) nor is there any material upon which the applicants could sensibly rely in a case against the Law Society based upon its decision not to grant assistance to the applicants through its pro bono scheme. The Law Society is probably also protected from suit by s 730 of the LPA in respect of its decision not to grant pro bono legal assistance to the applicants.

112    There is nothing in the conduct of Mr Roberts or Mr Zipser which could conceivably support the allegations made against them by the applicants in their submission (MFI-1). As far as the evidence goes, Mr Roberts attended to those matters in respect of which he was retained in a professional and appropriate manner. Mr Zipser also attended to the subject matter of the brief sent to him in a professional and appropriate manner.

113    There is nothing in the evidence before me to support the serious allegations made by the applicants against these lawyers.

114    The foreshadowed case against the Legal Aid Commission is hopeless. The Legal Aid Commission is immune from suit in respect of acts and omissions done, or omitted to be done, in good faith for the purpose of executing the Legal Aid Act (see s 27(1) of that Act). It is entitled to the benefit of this immunity in the present case.

115    For these reasons, I will not allow the applicants to join the proposed eleventh to twentieth respondents. Their application filed on 23 February 2011 will be dismissed insofar as it concerns those respondents.

Summary Disposition

The Current Pleadings

116    In their Application, the applicants claim the following relief:

(1)     An Order that the respondents pay the Applicants damages under s 82 and 84 of the TPA and/or s 178, s 179 and s 183 of the National Consumer Credit Protection Act 2009;

(2)    An order rescinding the agreement and return of the monies paid by the applicants to the respondents under s 87 of the TPA and/or 177 of the National Consumer Credit Protection Act 2009;

(3)    A declaration pursuant to National Consumer Credit Protection Act 2009 (transitional rules) and/or TPA that the contract/s was unjust (and/or NSW Code s 70 and Contract Review Act ss 7 & 8 and this unconscionable);

(4)    The respondents refund/return of monies received as unjust benefit and/or as a failure of consideration;

(5)     Damages including recovery of any loss and damages suffered by the applicant;

(6)    Relief/damages under s 12GF and s 12GM of the ASIC Act 2001 and s 1101B(1)(d) and s 1041L of the Corporations Act 2001;

(7)    accounting of profit;

(8)    equitable compensation;

(9)    exemplary damages

(10)    Interest;

(11)    costs;

(12)     Such further and other orders the Honourable Court deems fit.

117    The basis for that relief is to be found in the Statement of Claim filed on 22 November 2010.

118    In pars 1 to 5 of the Statement of Claim, the applicants recite the essential facts concerning their purchase of the Londonderry property.

119    In par 6, the applicants plead:

6.     The Applicants as a result were then required to procure and find urgent refinancing with other lenders to payout the Court settlement with George Carver (‘the Purpose”).

120    In pars 7 to 15, the applicants refer to their dealings with SCHL, the Paharis, Bleier MC, Baccus and Lawteal. In par 9, the applicants allege that Mr Pahari, on behalf of SCHL, made the following representations:

9.     …

PARTICULARS OF REPRESENTATIONS

(a)     That it would be in the best interests of the Applicants to close and discharge the First Mortgage; and

(b)     That SCF could procure an provide an urgent refinance of a first mortgage over the property; and

(c)     That the SCF did not need a second loan for the complete refinance; and

(d)     That the urgent refinance would be for one (1) year and will then be refinanced again within the one (1) year full and proper thirty (30) year home loan; and

(e)     That the SCF brokerage fee would be 2% of the total loan amount.

(f)     That it would be in the best interest of the Applicant to undertake renovations on the Property, at their own expense, in order to increase any valuation of the Property for the security of the Mortgages.

121    In par 16, the applicants repeat their allegation that they were misled and deceived when Mr Pahari advised them that their existing mortgage with Permanent (on behalf of Royal Guardian) should be discharged. They also say that they were misled and deceived by being charged “… excessive and exorbitant brokerage fees …” by SCHL. They also plead that they were misled and deceived when SCHL “… (forged) the Finance Broking Contract and Loan Application forms as required by Bleier to eliminate the loan purpose rebut Consumer Credit Code …”

122    In par 16, complaint is made against SCHL (and presumably the Paharis) that they conspired with Bleier MC to defraud the applicants in circumstances where SCHL and the Paharis knew that the applicants were in a vulnerable financial position. In the same paragraph, it is also alleged that SCHL and the Paharis misled and deceived the applicants by not disclosing that the first mortgage was irrelevant and by advising the applicants to carry out renovations on the Londonderry property.

123    The conduct described in pars 1–16 of the Statement of Claim is said to constitute a breach of s 52 of the TPA.

124    The case against Bleier MC is pleaded in pars 18 and 19 of the Statement of Claim. That case also is based upon contraventions of s 52 of the TPA. In a confused and sometimes unintelligible series of allegations, the applicants allege that Bleier MC conspired to defraud the applicants by being negligent in relation to the applicants’ capacity to service the loans ultimately obtained by them on 8 June 2007; that Bleier MC failed to inform them of the existence of the Lawteal mortgage; that Bleier MC failed to disclose to the applicants that there would not be any surplus funds available to them after the 8 June 2007 refinancing was in place; that Bleier MC exerted unreasonable and onerous pressure on the applicants; that Bleier MC knew that the Paharis had forged the applicants’ signatures on the Finance Broking Contract and the Loan Application Forms; that Bleier MC aided SCHL, Lawteal and Baccus to refinance the applicants’ loans by means of two loan transactions contrary to the representations made by SCHL that those loans could be refinanced by means of one loan. The applicants also repeat against Bleier MC some of the allegations which they make against SCHL and the Paharis.

125    The case against Baccus is also anchored in s 52 of the TPA. The applicants allege that Baccus:

(a)    Failed to assess the applicants’ financial position and capacity to service the two loans made on 8 June 2007;

(b)    Exerted onerous and unreasonable financial pressure on the applicants which it knew or ought to have known the applicants could not meet;

(c)    Knew or ought to have known that the applicants had been misled and deceived by the Paharis’ forging their signatures on the Finance Broking Contract and Loan Application Forms; and

(d)    Failed properly to advise the applicants in relation to the proposed refinancing.

126    Similar allegations are made against Lawteal. In addition, the applicants accuse Lawteal of charging excessive interest and taking excessive collateral security.

127    The allegations pleaded in pars 1–23 are then used as the launching pad for the following additional allegations in pars 24–29 of the Statement of Claim:

STATUTORY BREACHES BY SCF, BLEIER, BACCUS AND LAWTEAL

24.     By reason of the matters pleaded above at paragraphs 4 to 26, SCF. Bleier, Baccus and Lawteal have contravened the provisions of the Consumer Credit Administration Amendment (Finance Brokers) Act 2003 and the Consumer Credit (NSW) Code and are in breach of the National Code.

PARTICULARS OF STATUTORY BREACHES

25.     The applicants say that the second, third, fifth, sixth and eighth defendants have:

(a)     aided, abetted, counselled or procured the contravention;

(b)     been directly or indirectly, knowingly concerned in, and are parties to, the contravention;

(c)     conspired with each other to effect the contravention.

26.    By reason of the matters pleaded the contracts were unjust so as to amount to unconscionable conduct.

Particulars

(i)    material inequality in making of the loans;

(ii)    the respondents failed to exercise prudent lending criteria;

(iii)    there was no proper negotiation/applicants did not have the capacity to negotiate;

(iv)    assessment of repayment ability;

(v)    sole value of asset lending;

(vi)    in substance lack of independent legal advice;

(vii)     no proper investigation of the purpose of the loan;

(viii)     alteration of internal documents.

27.     None of the respondents had reasonable basis for making the representations.

28.     By reason of the matters pleaded above Applicants have suffered loss and damage in the amount of $3,164,225.77 and the losses and damages are continuing.

29.     The applicant claims the relief specified in the application.

The Respondents’ Section 31A Application

128    Section 31A of the Federal Court Act is in the following terms:

31A    Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

129    In Spencer v The Commonwealth (2010) 241 CLR 118, the High Court considered the meaning and effect of s 31A of the Federal Court Act. The following principles may be gleaned from that decision:

(a)    Section 31A authorises summary disposition on a variety of bases (at [22] (p 131) per French CJ and Gummow J). At [22], their Honours also said:

… It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(b)    The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to O 11 r 16 of the Federal Court Rules (at [23] (p 131) per French CJ and Gummow J);

(c)    The power to terminate proceedings summarily should be exercised with caution (at [24] (p 131) per French CJ and Gummow J). At [24] (p 131), their Honours also said:

24    The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–130 per Barwick CJ) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99. See also Webster v Lampard (1993) 177 CLR 598 at 602–603 per Mason CJ, Deane and Dawson JJ):

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575–576 [57]) which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of “real prospect of success” was variously equated to whether the plaintiff “could succeed at a trial”, whether there was a “triable issue” and whether there was the “least doubt”: at [44] per Lord Clarke of Stone-cum-Ebony JSC; at 541 [119] per Baroness Hale of Richmond JSC; at 544 [133] per Lord Brown of Eaton-under-Heywood JSC; at 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

(d)    There must be a high degree of certainty that the applicant/plaintiff cannot succeed if the proceeding is allowed to go to trial in the ordinary way (Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46] (p 275) per Gleeson CJ, Gummow, Hayne and Crennan JJ).

(e)    At [25]–[26], French CJ and Gummow J also said:

25     Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

26     Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant (see above at [21]). The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.

(f)    Section 31A requires that there be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success” (per Hayne, Crennan, Kiefel and Bell JJ at [50]–[51] (pp 138–139));

(g)    The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail (per Hayne, Crennan, Kiefel and Bell JJ at [52] (p 139)). At [52]–[53] (p 139), their Honours went on to say:

52    … it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

53     In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners ((1949) 78 CLR 62) and General Steel Industries Inc v Commissioner for Railways (NSW) ((1964) 112 CLR 125).

(h)    Section 31A requires a different inquiry to be undertaken from that undertaken under earlier different regimes (per Hayne, Crennan, Kiefel and Bell JJ at [56] (p 140));

(i)    The expression “no reasonable prospect” should be understood in the manner explained by Hayne, Crennan, Kiefel and Bell JJ in Spencer as follows (at [58]–[60] (p 141)):

58     How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes (Weiss v The Queen (2005) 224 CLR 300 at 312–318 [31]–[47]), as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

59     In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

60     Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

130    There are three broad strands to the case which I understand that the applicants wish to run. The first is that they were the victims of misrepresentation and non-disclosure; the second is that they were victims of unconscionable conduct; and the third is that the various contracts into which they entered as part of the refinancing transactions which they effected in June 2007 were unjust within the meaning of the Code and the Contracts Review Act 1980 (NSW) (the Contracts Review Act) and should be reopened and adjusted.

131    The applicants have not explained the unconscionable conduct case which they seek to put. They have not pleaded material facts which might arguably support such a case and the evidence upon which they propose to rely at the final hearing does not reveal such a case.

132    As far as the unjust contracts case is concerned, the applicants cannot plead a case to reopen the loan transactions completed on 8 June 2007 and the associated mortgages. The Code has no application because of the declarations signed by the applicants (to which I have referred at [8] above) (see s 11 of the Code). Those declarations cannot be circumvented in the present case because the CTTT found that they were operative and effective and the applicants are bound by that finding as between them and those of the present respondents who were also respondents in the CTTT case. The applicants are estopped from arguing to the contrary of that finding made by the CTTT (Cachia v Isaacs (1985) 3 NSWLR 366 at 368F (per Kirby P; at 381B–382B (per Hope JA)). For similar reasons, the Contracts Review Act cannot be invoked by the applicants.

133    The flaws in the misrepresentation and non-disclosure cases may be summarised as follows:

(a)    Because of the settlement which the applicants reached with Mr Carver, and, importantly, the terms of that settlement (which provided substantial incentives to the applicants to pay out Mr Carver very soon after 16 April 2007 and which, conversely, in effect, imposed substantial penalties on the applicants if they did not pay out Mr Carver promptly), the applicants were under very significant pressure to procure additional finance of the order of $100,000. That finance was urgently required. The applicants had also had difficulties meeting their financial commitments in the year or two before April 2007;

(b)    The applicants had no funds of their own to pay out Mr Carver;

(c)    By 2007, the applicants had discontinued their coach hire business. By then, they were running a truck repair business. That business was in need of an injection of working capital;

(d)    The applicants’ financial position was such that they had little capacity (if any) to treat with mainstream bank lenders. Inevitably, they were compelled to deal with lenders whose terms would be more onerous and more costly than bank lenders because, from the perspective of such lenders, the risk of lending to the applicants was greater than the risk of lending to borrowers who were in a more sound financial position;

(e)    As the applicants recognised, they would have to deal with one or more finance brokers and intermediaries if loan funds were to be made available to them quickly;

(f)    The applicants appreciated, as was the fact, that they would have to refinance the mortgage which they had with Permanent/Royal Guardian;

(g)    The applicants appreciated, as was the fact, that the cost of refinancing that mortgage might be substantial. However, that cost had to be weighed against the known penalty of not paying out Mr Carver promptly. That penalty could be as much as $40,000 plus costs. They also needed further funds for their business;

(h)    Prior to finally committing to the June 2007 refinancing, the applicants knew precisely what the costs of accepting that refinancing would be and also knew and understood the terms of the two new loans to which they intended to commit. Whilst it may be true that, as at mid-April 2007, when they commenced to deal with SCHL, they did not necessarily appreciate the full extent of the fees and charges that would, in due course, be levied by the various layers of intermediaries involved in the transactions, those imposts were accurately revealed progressively as time went on;

(i)    The applicants have not pleaded a reliance case against any of the respondents based upon the proposition that, when they committed to the refinancing, they were induced to do so by any contravening or unlawful conduct on the part of any of the respondents. Their evidence does not support such a case. The simple fact was that the applicants were desperate to refinance because of the Carver settlement (for which none of the present respondents was responsible) and because of their otherwise precarious financial position. They had very few options for doing so. They did their best to procure the necessary refinancing at a cost which, to their mind, was justified when compared with the cost of not paying out Mr Carver promptly. This was a judgment which they made at the time. They hoped to refinance yet again within a year of May/June 2007. There is no allegation in the pleadings or suggestion in the evidence that the applicants could have procured the necessary refinancing from any other source. In fact, they did refinance in September 2008, although under the pressure of being in default at that time under the mortgages to the Kremnizer clients and Lawteal.

134    From the applicants’ perspective, the loss of their home and other assets was a disaster. However, it must be said that, even on their own version of events, the applicants are the authors of their own misfortune. Their troubles really began when they overcommitted in order to purchase the Londonderry property. This occurred in 2002. That transaction led to the litigation with Mr Carver. The applicants had to buy their way out of that litigation. They also had to take urgent steps to avoid the full consequences of the settlement which they had reached with Mr Carver by paying him promptly. They could not simply do nothing. Doing nothing would have immediately put the Londonderry property at risk. Furthermore, the applicants have not suggested that they could have refinanced in the limited time available to them any more cheaply than the cost of the actual refinancing arrangements completed on 8 June 2007. There is no evidence to support such a suggestion. Nor does the evidence suggest that the applicants could not service the loans from the Kremnizer clients and from Lawteal. For the period of those loans, they made the regular payments required of them.

135    The inability of the applicants to connect their grievances against the respondents to any of the financial losses which they suffered after June 2007 (whether by means of concepts of reliance or otherwise), in the end, is the fundamental reason why the Court should not permit the applicants to continue to maintain the present proceeding.

136    In my view, for the reasons which I have explained, the applicants have no reasonable prospect of successfully prosecuting the present proceeding. For this reason, the proceeding should be wholly dismissed pursuant to s 31A of the Federal Court Act. These conclusions would also justify an order for dismissal pursuant to O 20 r 5 of the Federal Court Rules. It also follows from what I have already said that the applicants are not entitled to summary judgment in respect of any of the relief claimed by them.

Strike Out

137    Given that I propose to dismiss the whole proceeding, it is strictly not necessary for me to consider whether the existing pleadings filed by the applicants should be struck out pursuant to O 11 r 16 of the Federal Court Rules. However, as the parties argued strike out fully, in deference to their arguments, I will briefly state my views on the question of whether the Application and Statement of Claim should be struck out in whole or in part. The conclusion to which I have come is that, had it been necessary to consider the question of strike out, the whole of the Application and Statement of Claim would have been struck out and the applicants would not have been granted leave to replead. My reasons now follow.

The Cases Against SCHL, Mr Pahari and Mrs Pahari

138    Some of the allegations made against these respondents are of the most serious kind: Forgery and conspiracy to defraud.

139    The applicants have failed to plead sufficient material facts to support an allegation that any one or more of the first, second or third respondents conspired with one or more of the other respondents to defraud them.

140    As far as the allegations of forgery are concerned, the applicants have supported that allegation with the affidavit of Mr Singh. In that affidavit, he asserts that the copies of the Finance Broking Contract and Loan Application Forms produced by SCHL and sent to Bleier MC were forgeries. However, the applicants have not alleged that they did not sign and authorise others to provide the Consumer Code declarations to the lenders and intermediaries involved in the June 2007 refinancing of their debts nor have they alleged that the total of the two sums lent by the Kremnizer clients and Lawteal on 8 June 2007 was not the amount which they had expected to borrow nor have they alleged that the essential terms of those transactions were other than as expected. The applicants had the benefit of their own legal advice before committing to the refinancing. The applicants eventually signed the relevant mortgages and the loan documentation which supported them. In those circumstances, it is difficult to see what relief could conceivably be granted to the applicants even if they were able to make good their allegations of forgery. In any event, the applicants have not pleaded any material facts which identify the loss which they contend they suffered as a result of the forgeries referred to in the Statement of Claim nor have they attempted to plead material facts which justify the grant of any of the relief claimed by them by reason of such forgeries.

141    The remaining allegations made against the first three respondents are directed to establishing that they contravened s 52 of the TPA or, in the case of Mr and Mrs Pahari, that they aided, abetted, counselled or procured contraventions of s 52 by SCHL. It is said that the Paharis made representations to the applicants, that they failed to disclose certain matters, that they were negligent and that they applied financial pressure to the applicants.

142    The applicants have failed to plead material facts that, if true, would allow the Court to find that the conduct of SCHL, Mr Pahari and Mrs Pahari was misleading or deceptive in the circumstances of the present case. Nor have they pleaded facts that are capable of relevantly connecting the respondents’ conduct to any loss claimed by the applicants.

The Cases Against Bleier MC and Mr Bleier

143    No case against Mr Bleier personally is pleaded. The rolled up allegation made in par 25 of the Statement of Claim is the only allegation made against him. It is embarrassing and should be struck out.

144    The allegations of conspiracy to defraud and the allegations based upon the alleged forgeries made against Bleier MC suffer from the same defects as the cases based upon those matters which the applicants have pleaded against the first, second and third respondents. In addition, there are no material facts pleaded which could support an allegation that Bleier MC “… knew or ought to have known …” that the applicants had been misled and deceived by SCHL’s conduct in forging the applicants’ signatures.

145    The subject matter of the remaining allegations made against Bleier MC is simply not rationally or relevantly connected in the pleading to the loss which is claimed by the applicants.

The Cases Against Mr Kremnizer, Shloomp and Baccus

146    Apart from the inadequate and embarrassing allegation made in par 25 of the Statement of Claim, no case against either Mr Kremnizer personally or against Shloomp has been pleaded.

147    The allegations made against Baccus in pars 20 and 21 of the Statement of Claim do not disclose a reasonable (or any) cause of action against Baccus. No material facts are pleaded which are capable of imposing upon Baccus a legal duty to assess the applicants’ financial position or to advise them in relation to the proposed refinancing. Nor have any material facts been pleaded that are capable of supporting the allegations summarised in subpars (b) and (c) of [125] above.

148    The applicants have failed to identify with precision the relief which they seek against Baccus and have also failed to plead material facts that relevantly connect the alleged loss to the alleged contravention.

The Case Against Mr Hickey and Lawteal

149    No case against Mr Hickey is pleaded.

150    The case against Lawteal based upon substantially the same allegations as the applicants make against Bleier MC and Baccus would be struck out for the same reasons as the cases against each of those corporations would be struck out.

151    The additional complaints concerning the interest rate charged by Lawteal to the applicants and the taking of excessive collateral essentially take the matter nowhere. There is nothing in the Statement of Claim which discloses the substance of the basis of the applicants’ contention that Lawteal was guilty of misleading and deceptive conduct by engaging in the conduct the subject of these two complaints.

The Statutory Causes of Action Pleaded in Paragraphs 24 to 28 of the Statement of Claim

152    A party cannot take a case to trial in which he or she seeks discretionary relief pursuant to the statutes specified in par 24 of the Statement of Claim without pleading the material facts which he or she contends justifies the grant of the relief claimed and which relevantly connect the conduct of the respondent parties to the basis for that relief. Here, the applicants do not specify which contracts are said to be “unjust”, which features of those contracts and/or which facts, matters and circumstances render those contracts unjust and which relief claimed by them is sought on the basis of these allegations. No attempt is made to justify the remedy of rescission claimed in the Application.

Costs

153    The costs of the various Motions should follow the event save that, because of Mrs Singh’s bankruptcy, only Mr Singh should be liable for the other parties’ costs.

154    The proposed eleventh to sixteenth and proposed twentieth respondents did not appear and were not represented at the hearing. For that reason, there will be no orders for costs in their favour.

Conclusions

155    The applicants have failed in their application to join the proposed eleventh to twentieth respondents. The applicants’ joinder Motion must therefore be dismissed.

156    The applicants have also failed to obtain any of the relief claimed in the Notice of Motion filed by them on 18 January 2011. That Notice of Motion must also be dismissed.

157    The respondents have succeeded in having the whole proceeding dismissed pursuant to s 31A of the Federal Court Act.

158    There will be orders accordingly.

Associate:

Dated:    8 June 2011