FEDERAL COURT OF AUSTRALIA

Smits v Loel [2014] FCA 1341

FEDERAL COURT OF AUSTRALIA

Smits v Loel [ 2014] FCA 1341

CORRIGENDUM

1.    In paragraph 77 of the Reasons for Judgment, “Keane CJ” should be removed and replaced with “Rares J”.

Associate:

Dated:    13 February 2015

THE COURT ORDERS THAT:

1.    Pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth), the proceeding against the first, second and third respondents is dismissed.

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

REASONS FOR JUDGMENT

1    The first, second and third respondents have applied for summary judgment in the substantive proceeding before the Court.

2    The application is made under r 26.01 of the Federal Court Rules 2011 (Cth) (“the Rules”) and s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Act”) on the basis that the proceeding is an abuse of process and has no reasonable prospects of success.

The principal proceeding

3    The applicant, Leonardus Gerardus Smits (“Smits”), is a former solicitor. Smits was the sole director and shareholder of a company known as Zonebar Pty Ltd (“Zonebar”). Along with his wife, Smits was also a director of Togito Pty Ltd (“Togito”). Neither Zonebar nor Togito is a party to the present application, although Smits pleads that Zonebar has assigned its rights of action against the first and second respondents to him.

4    The first respondent, James Beresford Loel (“Loel”), is the sole director of the second respondent, Pioneer Investments (Aust) Pty Ltd (“Pioneer”). He is also a principal of the third respondent, Lillas & Loel Lawyers Pty Ltd (“Lillas & Loel”). I will refer to these parties collectively as “the respondents”.

5    Loel also worked as a consultant for the fourth respondent, J M O’Connor and Company (“J M O’Connor”). J M O’Connor has taken no part in this proceeding.

6    By way of originating application, Smits seeks various declarations and orders against each of the four respondents. The originating application is drafted in a way that makes it dense and difficult to navigate. That makes it difficult to categorise the relief sought in a coherent or logical fashion. However, the principal relief sought against the various respondents can be summarised as follows.

7    Against Loel and Pioneer, Smits seeks declarations and damages for breaches of various sections of the Trade Practices Act 1974 (Cth) (“the TPA”) and for breach of duty and deceit and various orders aimed at undoing or negating a deed of settlement and orders made by the Supreme Court of Queensland (“the Supreme Court”).

8    Against Lillas & Loel, Smits seeks orders declaring void a deed that assigns the benefit of costs orders from Pioneer to Lillas & Loel.

9    Against J M O’Connor, Smits seeks the repayment of moneys said to have been paid out of J M O’Connor’s trust account without authorisation.

10    The central issues in the substantive proceedings are whether, prior to Smits’ acquisition of certain mortgages over real property, those mortgages had been “abandoned” by the assignor; and whether Loel acted fraudulently, misleadingly or in breach of fiduciary or other duty in failing to disclose the abandonment. The respondents deny that there was anything to disclose because there was no such abandonment.

11    The proceeding arises out of a complex set of dealings between the parties and a lengthy series of litigation in the Supreme Court. I will limit my description of such dealings and proceedings to what is necessary in order to explain the relief sought in the principal proceeding.

Background

12    Ammbar Pty Ltd (“Ammbar”) was the registered owner of Lot 202 on Survey Plan 161001 in the County of Livingstone, Parish of Hewittville at Yeppoon (“the Yeppoon land”). Ammbar had attempted to develop the Yeppoon land by way of a joint venture. The project faced a number of financial difficulties and the land was heavily mortgaged.

13    In 2005, Loel received instructions to act for the director of Ammbar in proceedings in the Supreme Court. During the course of the same year, Smits had retained Loel to act for him in relation to other legal matters. Loel invited Smits to become involved with the Yeppoon land and asked Smits to ascertain whether Smits’ friend, Kevin Richard Shirlaw (“Shirlaw”), would also consider becoming involved. Shirlaw’s involvement was in his personal capacity and as receiver and manager of a company known as Ostabridge Pty Ltd (“Ostabridge”).

14    Pursuant to an order of the Supreme Court made on 8 November 2004, Philip Gregory Jefferson and Matthew Leslie Joiner were appointed receivers to Ammbar and a company known as Broadbeach Vista Pty Ltd which was also involved in the joint venture: Gallus Properties P/L & Ors v Richardson & Ors [2004] QSC 415. Ammbar was wound up on 2 December 2005 and deregistered on 3 June 2007.

15    There were nine mortgages registered over the Yeppoon land to various individuals and entities. By November 2005, the status of the various morgtages was as follows:

16    By Declaration of Trust dated 11 November 2005, Shirlaw (in his capacity as an individual and as receiver and manager of Ostabridge) as trustee was to acquire mortgages 702987988 (“the first mortgage”) and 704246070 (“the second mortgage”) and hold them on trust for Smits, Pioneer and Shirlaw (the beneficiaries) as tenants in common in equal shares. Shirlaw became the registered holder of the first and second mortgages on 14 November 2005 for consideration of $1,006,901.

17    On 18 November 2005, Shirlaw commenced proceeding BS 9791 of 2005 in the Supreme Court seeking leave to exercise his power of sale as mortgagee. Helman J granted leave by consent on 28 November 2005 on the undertaking of Shirlaw to pay the proceeds of sale into an interest bearing account in the names of Shirlaw, the receivers, Jefferson and Joiner, and Business Bridging Finance Pty Ltd.

18    Shirlaw entered into a contract for the sale of the Yeppoon land to Zonebar for approximately $3.4 million. Settlement occurred on 23 December 2005, with Zonebar paying approximately $1.9 million of the purchase price. It appears that the remaining $1.5 million was never paid. Shirlaw received proceeds of $1,868,112.32 once the costs of sale were deducted. It appears that $1,368,112.32 of the proceeds was used as consideration for the transfer of mortgages 703494840, 704544382, 707227959 and 709100851 to Shirlaw. The net proceeds of the sale, an amount of $500,000, were transferred into a joint account in purported compliance with the order of Helman J.

19    On 23 June 2006, in proceeding BS 336 of 2006 Holmes J determined a priority dispute between the various mortgagees and the receivers: Jefferson v Shirlaw [2007] 1 Qd R 162. The parties to this proceeding were the receivers of Ammbar, Shirlaw and Ostabridge and a number other mortgage holders. Neither Smits nor Loel were parties, although it appears that Loel acted for Shirlaw and Ostabridge as a solicitor with J M O’Connor. Her Honour found that the receivers’ claim ranked subsequent to mortgages 703570735, 703494840, 704544382, 707227959 and 709100851. The first and second mortgages were not part of the orders made in this proceeding. Holmes J said at [5]:

[Shirlaw and Ostabridge] seek to have the receivers’ claims dismissed and a declaration made that in effect postpones the priority of the receivers’ claims to their rights under the third to sixth registered mortgages; they have abandoned any claim under the first and second mortgages.

20    The respondents claim that the “abandonment” described by Holmes J was simply a decision by Shirlaw and Ostabridge not to press for particular relief in the proceeding, not an abandonment generally of rights in relation to the first and second mortgages.

21    Shirlaw (in his two capacities) as assignor and Smits as assignee executed a Deed of Assignment on 31 July 2006. Shirlaw assigned to Smits his right, title and interest in the second mortgage and the Declaration of Trust of 11 November 2005. On the same date, Shirlaw (again in both capacities) transferred the first and second mortgages and the other mortgages he had acquired to Smits for consideration of $100,000. In the present proceeding, Smits claims that he entered into these transactions without knowledge of the “abandonment” of the first and second mortgages.

22    On 1 August 2006, Pioneer commenced proceeding BS 6354 of 2006 in the Supreme Court against Zonebar, Shirlaw, Ostabridge, and Smits. The proceeding was brought to establish the interest Pioneer claimed in a caveat that it had lodged over the title to the Yeppoon land. Pioneer sought orders rectifying the title over the land. It appears that when funds were advanced to Zonebar to acquire the land, the second mortgage was removed from the register. The orders were sought to in effect reinstate the second mortgage; such orders being consistent with what was contemplated at settlement.

23    Pioneer also sought orders concerning the payment of the net proceeds of the sale of the Yeppoon land, the amount of $500,000. It contended that the $500,000 was held by Shirlaw on trust for Pioneer, Shirlaw and Smits. On 17 October 2006, de Jersey CJ ordered that the amount be paid into the trust account of Morgan Conley Solicitors to be invested by them in the names of Smits and Pioneer to abide the outcome of proceeding BS 6354 of 2006 or earlier order.

24    Matters unravelled further. On 22 November 2006, Pioneer commenced proceeding BS 10163 of 2006 against Smits. On 7 December 2006, Smits commenced proceeding BS 10707 of 2006 against Loel for damages for negligence and breach of fiduciary duty in respect of the mortgages and other transactions concerning the Yeppoon land.

25    Smits and Loel commenced negotiations with a view to settling all outstanding disputes and proceedings between them. On 13 June 2007, a Deed of Settlement (“the Deed of Settlement”) between Pioneer and Loel on the one hand, and Zonebar and Smits on the other hand, was executed. The Deed of Settlement provided, inter alia, for the following:

    Zonebar was to provide one lot in the Yeppoon land to Pioneer for a notional consideration of $200,000.

    The parties to the Deed agreed to sign consent orders in proceedings BS 6354 of 2006 and BS 10707 of 2006 as set out in the Schedule to the Deed. The consent orders were to provide for the order of de Jersey CJ to be vacated on the basis of an agreement that part of the $500,000 plus accretions be paid to Smits and the balance to Pioneer. The consent orders were also to contain undertakings reflecting some aspects of the terms of settlement.

    Smits was to assign his rights and interests in a costs order made by Holmes J against the receivers on 7 August 2006 to Pioneer in proceeding BS 336 of 2006.

    Proceedings BS 6354 of 2006 and BS 10707 of 2006 would be discontinued with each party bearing its own costs.

    The parties mutually agreed to forbearances to sue.

26    The consent orders described above were made by Chesterman J in proceeding BS 6354 of 2006 on 13 June 2007. The terms of the order were:

Upon the Plaintiff undertaking to:

(a)    assign absolutely to the Third Defendant for valuable consideration all rights, interests, estates, claims and choses in action asserted in these proceedings by the Plaintiff and otherwise arising out of or with respect to the subject matter of these proceedings.

(b)    admit that there was no Joint Venture as alleged by the Plaintiff in the pleading or otherwise in respect Lot 200 on SP 199666 [sic] at Yeppoon in the state of Queensland.

Then subject to the plaintiff strictly complying with the terms of settlement the Third Defendant abandons his claim to the fund invested in the trust account of Morgan Conley Solicitors the subject of the orders of De Jersey CJ made 23 October 2006.

THE ORDER OF THE COURT IS THAT:

1.    caveat Nos. 709658190 and 710590745 be removed from the Register of Titles;

2.    the orders of De Jersey CJ made 23 October 2006, and the orders of Muir J 18 December 2006, 28 February and 1 March 2007 and Chesterman J made 11 May 2007 be vacated and the parties be released from any associated undertakings;

3.    the hearing date to be commenced 9 August 2007 be vacated;

4.    the moneys held in this Honourable Court pursuant to the orders of Justice Fryberg in BS9791/05 made on 19 September 2006 and also pursuant to the orders of Justice Philippides made on 18 October 2006 in this proceeding, together with any accretions thereon, be paid to the plaintiff;

5.    the application for costs assessment filed 23 April 2007 be dismissed with no order as to costs;

6.    the Plaintiff be granted leave to discontinue the proceedings with no order as to costs.

27    A dispute arose as to payment of the money held by Morgan Conley in its trust account. On 2 August 2007, White J made a consent order in proceeding BS 6354 of 2006 which provided:

1.    The moneys held in the trust account of Morgan Conley on behalf of (Pioneer and Smits) being $500,000.00 plus accretions of $31,679.91 (“the trust fund”) be paid out in the following order and priority;

(a)    The sum of $22,000.00 be paid to the applicant/trustee’s for his costs of and incidental to the holding of the trust fund;

(b)    The sum of $176,590.00 to (Smits);

(c)     An amount equivalent to 156590/500000 of the accretions of $31,679.91 be paid to (Smits);

(d)    The balance of the trust fund be paid to (Pioneer), payable to James Conomos Lawyers.

28    No consent order in proceeding BS 10707 of 2006 has been placed before the Court, but I infer that such an order must have been made because there is no complaint that the parties did not carry out their obligations under the Deed of Settlement. The terms were that Smits be granted leave to discontinue proceeding BS 10707 of 2006 with no order as to costs.

29    On 6 June 2008, Togito commenced proceeding BS 5325 of 2008 against Pioneer and James Conomos (“Conomos”) in the Supreme Court. The day before the Deed of Settlement was executed, Smits had assigned to Togito his rights and interests in the various mortgages. Togito was not a party to the Deed of Settlement and accordingly was not bound by any forbearance to sue. Smits was added as the third defendant by counterclaim.

30    Conomos had acted for Pioneer in proceeding BS 6354 of 2006. Part of the money in Morgan Conley’s trust account was paid to Conomos’ trust account under terms of the Deed of Settlement and White J’s order of 2 August 2007. Togito claimed that Conomos had wrongly disbursed those funds to Pioneer and himself.

31    Margaret Wilson J dismissed both Togito’s claim against Pioneer and Conomos and Pioneer’s counterclaim for fraudulent misrepresentation against Togito and Smits: Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd & Ors [2010] QSC 421. Her Honour ordered that Togito and Smits pay the costs of the claim and that Pioneer pay the costs of the counterclaim. Togito appealed from the judgment of Margaret Wilson J in proceeding CA 159 of 2011. The appeal was dismissed and Togito was ordered to pay costs.

32    On 26 September 2013, a Deputy Registrar of the Supreme Court ordered that Togito and Smits pay Pioneer’s costs arising from BS 5325 of 2008 in the sum of $237,415.83. In reliance on that order, on 14 October 2013, Lillas & Loel caused a bankruptcy notice and a Deed of Assignment between Pioneer and Lillas & Loel dated 29 July 2011 to be served on Smits. The Deed of Assignment had assigned the benefit of the costs order to Lillas & Loel.

33    In response, Smits commenced proceeding BRG 985 of 2013 on 31 October 2013 in the Federal Circuit Court of Australia (“the Circuit Court”) seeking orders that, inter alia, the bankruptcy notice be set aside, that the bankruptcy notice is an abuse of process and that the purported Deed of Assignment is invalid due to want of compliance with s 199 of the Property Law Act 1974 (Qld). The Circuit Court proceeding remains on foot. The present proceeding was commenced on the same date.

The amended statement of claim

34    The allegations made in Smits’ amended statement of claim are arranged generally chronologically. They are not categorised by cause of action or with respect to each respondent and it is difficult to determine which allegations are made against which respondents. The pleading is confusing, some allegations overlap, some are repetitive and some appear superfluous. I will summarise what seem to be the most relevant allegations.

35    The amended statement of claim begins by alleging that Smits, Loel or Pioneer and Shirlaw “were alleged by Loel to be engaged in certain joint venture activities”. The joint venture activities include those set out earlier, namely the involvement with the land and mortgages and the transactions concerning trust assets. Smits then alleges that Loel and Pioneer owed fiduciary duties to him and to Shirlaw.

36    The amended statement of claim next claims that Loel caused J M O’Connor to create a trust account in the name “James Loel-Other Party-Shirlaw” in which a number of receipts and payments were recorded. Smits alleges that he and Shirlaw did not authorise Loel to open or operate the trust ledger exclusively in his own name and that payments were not “properly authorised” by Smits and Shirlaw. Smits alleges that the payments were not secured and the funds, apart from an amount of $1,006,901, were dissipated or lost. Smits alleges that the payments out of the trust account were made:

in breach of trust, in breach of an implied retainer condition that [J M O’Connor] would act with due care and skill … in breach of the said fiduciary duties and in contravention of Sections 52, 65A, 51AA, 51AB, 51AC and 75B of the Trade Practices Act 1974 (Cth).

37    The amended statement of claim alleges that on 16 December 2005, Shirlaw, exercising his power of sale under the first mortgage sold the Yeppoon land to Zonebar for $3,400,000 and that Shirlaw, after deducting the costs of sale, paid $500,000 into a bank account purportedly in compliance with the order of Helman J.

38    The amended statement of claim then deals with the so-called abandonment in the following terms:

18.    In or about March 2006, Shirlaw, acting upon the advice of Loel, as a partner of [J M O’Connor], and without the knowledge of consent of the Smits, by deed or other instrument, and further or alternatively by conduct, abandoned any and all his rights (as Trustee under the Declaration of Trust) in relation to:

(a)    any said monies payable as aforesaid by Ammbar;

(b)    the Mortgages; and/or

(c)    any of the proceeds of sale of the Land

(“Abandonment”).

Particulars

The Abandonment of these rights was admitted by Shirlaw in paragraph 16 of the Amended Statement in Reply filed by John M O’Connor & Company and signed by Loel on behalf of Shirlaw in Supreme Court proceedings BS336 of 2006, the affidavit by James Beresford Loel sworn on 24 April 2006 and allegedly filed in those proceedings, and a letter dated 2 May 2006 from John M O’Connor & Company (by James Loel) sent to Shirlaw. Further particulars will be provided following disclosure.

(Errors and emphasis in original)

39    The amended statement of claim alleges that “none of the documents or facts referred to in the Particulars … nor the existence of the Abandonment was disclosed to Smits by Loel, nor by Shirlaw”. Such non-disclosure is said to be in breach of fiduciary duties and to constitute unconscionable conduct and misleading and deceptive conduct in contravention of the TPA and the Competition and Consumer Act 2010 (Cth) (“the CCA”) (which came into force approximately five years after the alleged abandonment). Smits further alleges that he did not discover the abandonment until June 2011, around the time of the appeal from the decision of Margaret Wilson J.

40    The amended statement of claim pleads that by two written assignments and a transfer executed by Smits and Shirlaw on 18 April 2005 and 31 July 2006, Smits “purchased all interests held by Shirlaw in any capacity inter alia in respect of the Mortgages, the said Contract of Sale and the said Trust Assets, including those related to the said Trust Ledger and as against [J M O’Connor] for consideration [of] $1,363,816.79”, and that it was an implied term of those agreements that Shirlaw held title to “the Mortgages and the associated rights”. The amended statement of claim alleges that by reason of the abandonment, Shirlaw, Pioneer and Smits did not have such title or any such rights. Smits alleges that Loel, Pioneer and Shirlaw “knew or ought to have known, turned a blind eye to or recklessly disregarded that state of affairs”. Smits alleges that he assumed and was entitled to assume and likely to assume that Shirlaw did hold title to the mortgages and that the mortgages and the rights under the mortgages were valuable. Smits pleads that he did not know and had no reason to suspect the abandonment. He would not have proceeded with the purchase if he had been made aware of the abandonment.

41    The amended statement of claim pleads that: Smits relied upon Loel as the sole legal advisor to the joint venturers to advise as to “material changes in relation to the Mortgages”; that it was reasonably foreseeable that Smits would suffer economic loss if Loel, Pioneer or Shirlaw failed to take reasonable steps to correct the assumption that Smits was entitled to make; and that Loel, Pioneer and Shirlaw owed “duties of care, disclosure, trust and [duties] fiduciary in character to Smits”.

42    The amended statement of claim alleges that Loel and Pioneer, by representing:

in their pleadings filed as from 1 August 2006 in Proceedings BS 6354/2006, 10707/2006 [and] 5325/2008 … represented dishonestly to Smits and the Supreme Court that the subject Mortgage rights were subsisting, continued to be governed by the Declaration of Trust and that Pioneer continued to be one of three beneficial owners as co tenants of those rights.

Such conduct is alleged to be:

dishonest, in breach of fiduciary duty and misleading, deceptive and unconscionable conduct in trade or commerce in contravention of the said sections of the TPA and the CCA respectively and deceitful in equity.

It can be seen that Smits alleges that Loel and Pioneer perpetrated a fraud on the Supreme Court.

43    The amended statement of claim alleges that as a result of the failure to disclose the abandonment, Smits and Zonebar suffered the following detriment:

(a)    Smits entered into and completed the Purchase from Shirlaw;

(b)    Smits and Zonebar defended themselves in Proceedings BS 6354/2006 in the Supreme Court commenced by Pioneer on 1 August 2006;

(c)    Smits and Zonebar entered into a Deed of Settlement, including a Deed of Assignment in respect of the Mortgages dated 13 June 2007 with Loel and Pioneer … and Smits as assignee executed a Deed of Assignment in respect of Pioneer’s interests under the Mortgages on 13 June 2007;

(d)    Smits consented to and procured the consent of Togito to Orders made in favour of Pioneer by Justice White on 2 August 2007 in Proceedings BS 6354/2006; and

(e)    Smits and Togito commenced and maintained Proceedings BS5325 of 2008 in the Supreme Court against Pioneer and James Conomos and the Appeal against the Judgment handed down by Justice Wilson in those Proceedings: Togito Pty Ltd v Pioneer Investments (Aust) Pty Ltd [2010] SCQ 421.

(Errors and emphasis in original)

44    The amended statement of claim then alleges that if the abandonment had been disclosed Smits would not have entered the Deed of Settlement and would not have consented to the orders made by Chesterman J and White J.

45    Smits pleads that he was required to institute the present proceeding because of the service of the bankruptcy notice by Lillas & Loel for the purposes of, inter alia, s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

46    It is necessary at this point to set out the relief claimed in Smits’ originating application to illustrate the nature and extent of the relief sought.

47    The originating application claims the following orders against Loel and Pioneer:

(a)    An Order declaring that they engaged in misleading, deceptive and unconscionable conduct in trade or commerce in respective contraventions of Sections 52, 65A, 51 AA, 51AB, 51 AC and 75B of the Trade Practices Act 1974 (Cth) (“TPA”), as re enacted in Sections 18-22 of Schedule 2 (“ACL”) and Section 75B of the Competition and Consumer Act 2010 (Cth) (“CCA”) by not disclosing the Abandonment referred to in the Statement of Claim to the Applicant in respect of former Mortgages Rd. Nos. 702987988 and 704246070 as from about March 2005 and that they took unfair advantage of such silence in the conduct of inter alia Proceedings Nos. 6354/2006, 10707/2006 and 5325 /2008 and in relation to the negotiation, execution, implementation and enforcement of the said Deed of Settlement dated 13 June 2007 and made between inter alia those parties.

(b)    An Order in the equitable jurisdiction of this Honourable Court or under Section/s 237, 238 and 243 of the ACL or sections 82 and/or 87 of the TPA declaring Clause 3.2 (b) of and Item 3 of the Schedule 3 to the Deed of Settlement dated 13 June 2007 between James Beresford Loel, Pioneer Investments (Aust.) Pty Limited, Zonebar Pty Limited and Leonardus Gerardus Smits to be void as to any payment required to be made to Pioneer Investments (Aust.) Pty Ltd or James Conomos Lawyers Trust Account or varying the Contract embodied in that Deed in such a manner as is specified in the Order.

(c)    Further or alternatively, compensation or damages for losses pleaded in the Statement of Claim pursuant to the Sections referred to in paragraph (b) above.

(d)    An Order under Uniform Civil Procedure Rules 1999 (Qld), Rule 667 (2)(b) or Rule 668 setting aside the Final Orders made by Justice Wilson in Supreme Court Proceedings 5325/2008 and to re-pay the costs of and paid by the Applicant in relation to those Proceedings on an indemnity basis.

(e)    An Order under Uniform Civil Procedure Rules 1999 (Qld), Rule 667(2)(b) or Rule 668 setting aside the Final Orders made by the Court of Appeal in Proceedings No 159 of 2011 and to re-pay the costs of and paid by the Appellants on an indemnity basis.

(f)    An order that they refund to the Applicant the moneys paid to James Conomos Lawyers and/or Pioneer Investments (Aust.) Pty Ltd pursuant to the Orders made by Justice White on 2 August 2007 in Proceedings 6354/2006 (which amounted to $432,040.32 inclusive of interest as at 6 January 2010-the date of the Appeal) and all costs paid by the Applicant and /or Zonebar Pty Limited of those Proceedings and the Appeal.

(g)    Further or alternatively to the above, equitable compensation or damages.

(h)    Alternatively to the above, compensation pursuant to Rule 900(4) of the Uniform Civil Procedure Rules 1999 (Qld).

(i)    An Order that they pay damages to the Applicant, as agreed or assessed on enquiry by the Registrar, for breach of duty, deceit, and/or contraventions of the sections referred to in paragraph (a) above arising from the said misleading, deceptive and unconscionable conduct through the non disclosures of the Abandonment of rights in respect of Mortgages Rd. Nos. 702987988 and 704246070 between March 2005 and July 2011 to the Applicant..

(j)    An Order setting aside or varying as specified in the Order, the Orders made on 2 August 2007 by Justice White in the Supreme Court in Proceedings 6354/2006 in so far as the Orders required the payment of any moneys to Pioneer Investments (Aust.) Pty Ltd.

(k)    An Order directing the refund or repayment of such moneys to the Applicant.

(l)    An Order to pay the costs of the Applicant incurred of and incidental in Proceedings 6354 /2006 and 1017/2007 on an indemnity basis.

(m)    Orders for damages under Section 244 of the Supreme Court act 1995 (Qld) in respect of the said breaches.

(n)    An Order declaring that the Applicant is entitled to set off, cross claim or cross demand any amounts ordered to be paid hereunder as against any amounts ordered to be paid by the Supreme Court by the Applicant to the Second or Third Respondent as Costs in relation to Proceedings No 5325 in the Supreme Court.

(o)    Such other orders, declarations and relief as this Honourable Court deems fit in the premises.

(p)    An Order that interest be paid on all amounts found to be payable to the Applicant pursuant to section 47 of the Supreme Court Act 1995 (Qld), section 60 of the Civil Liability Act 2003 (Qld) or any succeeding enactment or based upon equitable compensation.

(q)    Costs on an indemnity basis.

(Errors and emphasis in original)

48    The originating application claims the following relief against Lillas & Loel:

(a)    That the Deed of Assignment purportedly dated 29 July 2011 and made between itself and Pioneer Investments (Aust.) Pty Ltd be declared to be void or unenforceable in the premises.

(b)    Alternatively that it is bound by the said orders made against Pioneer Investments (Aust.) Pty Ltd so as to estop enforcement of that Deed;

(c)    An Order declaring that the Applicant is entitled to set off, cross claim or cross demand any liabilities ordered to be paid hereunder as against any amounts ordered to be paid by the Applicant to it on 26 September 2013 by the Deputy Registrar in Proceedings 5325 of 2008 in the Supreme Court of Queensland.

(d)    Alternatively, an Order vacating that Order.

(e)    Such other orders, declarations and relief as this Honourable Court deems fit in the premises.

(f)    Costs on an indemnity basis.

49    Finally, the originating application seeks the following declarations and orders against J M O’Connor:

(a)    To re-pay to the Applicant the amounts stated in paragraph 2, less the amount referred to in paragraph 8 of the Statement of Claim on account of breaches of trust, breaches of implied conditions of the Retainer Agreement and/or misappropriation of such amounts.

(b)    Such other orders, declarations and relief as this Honourable Court deems fit in the premises.

(c)    Costs on an indemnity basis.

(d)    An Order that interest be paid on all amounts found to be the Applicant pursuant to section 47 of the Supreme Court Act 1995 (Qld), section 60 of the Civil Liability Act 2003 (Qld) or any succeeding enactment based upon equitable compensation.

(Errors in original)

The evidence

50    Smits has sworn one affidavit in this proceeding. The main purpose of that affidavit is to challenge the effect and validity of the Deed of Assignment between Pioneer and Lillas & Loel. Smits asserts that the Deed of Assignment was not properly executed, and in any event, the costs order made in proceeding BS 5325 of 2008 on 23 February 2011 was not registered in the Circuit Court and consequently cannot be relied on by the respondents. Smits deposes to having claimed various set-offs, cross-claims and cross-demands in excess of the amount of the judgment debts in submissions filed in proceeding BRG 670 of 2012 in the Circuit Court.

51    Loel has sworn a lengthy affidavit in support of this application on behalf of himself, Pioneer and Lillas & Loel. He sets out the protracted procedural history of the litigation between the parties. Smits has not sought to contradict Loel’s account of the procedural history.

52    Loel deposes that he is not aware of any document signed by Shirlaw which served to formally abandon his rights in relation to Ammbar, the mortgages or any proceeds from the sale of the land.

53    On 13 January 2014, the respondents filed a Notice to Admit. In an affidavit filed by leave at the hearing of the application, the respondents indicated that Smits had not responded to the notice. As a result, Smits is deemed to have made certain admissions in relation to facts and documents in the proceeding because of r 22.04 of the Rules.

54    By operation of the respondents’ Notice to Admit, Smits is deemed to have admitted that he knew between 9 April 2006 and 9 May 2006 that Shirlaw did not intend to rely on there being money secured by the first mortgage or the second mortgage for the purposes of the summary judgment application in BS 336 of 2006. Smits is also deemed to have admitted the authenticity of several documents which arguably demonstrate that Smits knew of the facts concerning the alleged abandonment in proceedings BS 336 of 2006 much earlier than he says he did.

55    The respondents have not sought to rely on r 22.07 of the Rules which would allow them to apply to the Court for any judgment or order to which they would be entitled on the admissions.

The submissions

56    The respondents submit that they should have summary judgment because the proceeding is an abuse of process and because Smits has no reasonable prospects of prosecuting the proceeding. They submit that Smits has no reasonable prospects both because certain propositions of fact underlying the causes of action are untenable and because a number of the causes of action are barred by limitation periods. For present purposes, however, it is only necessary to focus upon the abuse of process argument.

57    The respondents argue that the proceeding is an abuse of process because it is a collateral attack on orders and judgments of the Supreme Court and because this Court has no power to set aside orders of the Supreme Court. The respondents’ argument relies heavily upon the judgment of Jessup J in Shaw v MAB Corporation Pty Ltd [2013] FCA 1231 (“Shaw”) in which summary judgment was ordered partly on the basis that the proceeding was a collateral attack on judgments of the Supreme Court of Victoria.

58    Smits’ written submissions describe the case he seeks to establish in the principal proceeding with more clarity than the amended statement of claim. The written submissions state that Shirlaw and the liquidators of Ammbar executed a deed under which Ammbar was released from its obligations under the first and second mortgages. Loel is said to have been the architect of the deed of release and was obliged to notify Smits of its execution. Loel’s failure to notify Smits is described as a fraud. The submissions state that the fraud resulted in:

(a)    Smits purchasing the mortgages from Shirlaw on 31 July 2006;

(b)    submissions being made and judgment being obtained in proceedings BS 336 of 2006;

(c)    Smits bringing proceedings BS 6354 of 2006 and BS 5325 of 2008;

(d)    the Deed of Settlement being made on 13 June 2007;

(e)    consent orders being made by Chesterman J in proceeding BS 6354 of 2006 on 13 June 2007; and

(f)    consent orders being made by White J in proceeding BS 6354 of 2006 on 2 August 2007.

59    As to the allegations of abuse of process, Smits’ written submissions assert that Shaw is distinguishable. He points out that, unlike in Shaw, there is no question of Anshun estoppel operating here because Smits only became aware of the alleged fraud in June 2011. He also states that in Shaw, the conduct took place “in the course of conduct of those proceedings”, whereas here the alleged fraud preceded and was independent of the proceedings themselves. Rather, the actions taken by Smits (described above) were infected by the fraud.

Consideration

60    The respondents’ interlocutory application states that it is made pursuant to r 26.01 of the Rules and s 31A of the Act. However, s 31A is not mentioned in the respondents’ written submissions and they therefore appear to disclaim reliance on that provision.

61    Rule 26.01 of the Rules provides relevantly:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

(d)    the proceeding is an abuse of process of the Court;

…

62    It is necessary to give close consideration to the relief sought by Smits in the originating application and the relationship between that relief and the various judgments of the Supreme Court which are, directly or indirectly, the subject of many of the orders sought.

63    In summary, the principal relief Smits seeks against Loel and Pioneer in the originating application, consists of:

    Orders declaring that Loel and Pioneer contravened the TPA and the CCA by not disclosing the abandonment, and declaring that they took unfair advantage of their silence in the conduct of proceedings BS 6354 of 2006, BS 10707 of 2006 and BS 5325 of 2008 and in relation to the negotiation, execution, implementation and enforcement of the Deed of Settlement.

    An order declaring the Deed of Settlement void or varying the terms of the Deed of Settlement.

    An order under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) setting aside the final orders made by Margaret Wilson J in BS 5325 of 2008 and an order that the respondents pay to Smits the costs he incurred in relation to those proceedings on an indemnity basis.

    An order under the UCPR setting aside the orders made by the Court of Appeal in proceeding CA 159 of 2011 and an order that the respondents pay to Smits the costs he incurred on an indemnity basis.

    An order that Loel and Pioneer refund money paid by Smits to James Conomos Lawyers or Pioneer pursuant to consent orders made by White J on 2 August 2007 in BS 6354 of 2006 and costs incurred by Smits and Zonebar in respect of those proceedings.

    Compensation or damages for the various contraventions of the TPA and the CCA and for breach of duty and deceit.

64    As against Lillas & Loel, Smits seeks a declaration that the Deed of Assignment dated 29 July 2011 between Lillas & Loel and Pioneer be declared void or an order that Lillas & Loel be estopped from enforcing that Deed.

65    At this stage, it is useful to summarise the various proceedings and orders of the Supreme Court which Smits directly or indirectly challenges in the present proceeding:

    BS 6354 of 2006: This was the proceeding brought by Pioneer against Smits, Zonebar and Shirlaw to have the second mortgage restored to the register. It was one of the proceedings settled under the Deed of Settlement and consent orders agreed as part of the settlement were made by Chesterman J on 13 June 2007. On 2 August 2007, White J made consent orders concerning which parties the funds in the Morgan Conley trust account were to be paid to and the order and priority of the payments.

    BS 10707 of 2006: This was the proceeding commenced by Smits against Loel for negligence and breach of fiduciary duty in relation to the mortgages and other transactions in respect of the Yeppoon land. The proceeding was also settled under the Deed of Settlement. The terms of the Deed of Settlement required Smits and Loel to consent to an order that Smits have leave to discontinue the proceeding with no order as to costs.

    BS 5325 of 2008: This was the proceeding brought by Togito against Pioneer and Conomos. Smits was added by counter-claim as the third defendant. After a trial, Margaret Wilson J dismissed Togito’s claim and dismissed the counter-claim. Her Honour ordered that Togito and Smits pay Pioneer’s costs. The costs assessed under the order are the debt which founds the bankruptcy notice.

    CA 159 of 2011: This was an appeal by Togito against the judgment of Margaret Wilson J. The Court of Appeal dismissed the appeal with costs.

66    The power to dismiss a proceeding for abuse of process is an exceptional power which ought to be very sparingly exercised and only in exceptional circumstances: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 95 per Isaacs J; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.

67    It is an abuse of process to bring a proceeding in order to make a collateral attack upon an unappealed decision of a Court, or upon a decision which, having been appealed, has been affirmed: Stergiou v McGrail (unreported, Full Court of the Federal Court, Burchett, Ryan and Gummow JJ, 22 April 1994).

68    The respondents’ submission that the proceeding is an abuse of process relies heavily on Shaw. The facts of that case bear a striking resemblance to those of the present case. In Shaw, the proceeding before the Federal Court of Australia was the culmination of a long history of proceedings. The original dispute related to the applicant’s purchase from one of the respondents of land that was to be developed. Following an initial judgment against the applicant, there was a long series of appeals, applications and other proceedings in the Supreme Court of Victoria. A number of costs orders were made against the applicant and founded the basis of a bankruptcy notice served upon him.

69    The applicant then commenced proceedings in the Federal Court against ten named respondents. He sought damages for contraventions of the TPA, a stay of the bankruptcy proceedings and other relief. He made allegations against the defendants that included fraud and the giving of false evidence in the Supreme Court proceedings.

70    Jessup J summarily dismissed the proceeding pursuant to s 31A of the Act and r 26.01 of the Rules. His Honour held that the claims against each of the respondents had no reasonable prospects of success and were an abuse of process, being a collateral attack on orders made in the Supreme Court. His Honour also found that an Anshun estoppel arose in respect of the claims against some of the respondents.

71    As to the abuse of process, his Honour said:

44    … To my way of looking at it, a striking feature of the allegations is that, in point of substance, they relate to conduct said to have taken place in the conduct of those proceedings. Being substantially allegations of fraud or of presently analogous iniquities (misleading representation, duress, conspiracy etc), if the allegations were well-founded, they would inevitably provide grounds for the Supreme Court orders to which they relate to be set aside. But the Federal Court does not have power to grant any such relief, and none is sought. Rather, what is sought is a series of declarations about the conduct of the respondents in relation to the original proceeding, and damages on account of the applicant having been subjected to the orders made by the Supreme Court. The matter needs only to be viewed in this way for it to be clear that the use of the Federal Court and its procedures in this way would bring the administration of justice into disrepute, and very seriously so.

45    A further striking feature of the applicant’s allegations is that the sources of the losses for which he claims damages are the pecuniary orders made by the Supreme Court itself. When coupled with the circumstance mentioned above – that the substantive basis of the cause of action is that the orders were procured by fraud, misrepresentation and the like – what we have is an applicant who, either alternatively or additionally to seeking the setting aside of the orders from which the losses are said to flow, desires to be compensated for those very losses. This is the clearest of collateral attacks on the Supreme Court orders, and should not be permitted.

72    The applicant then sought an extension of time for leave to appeal from the judgment of Jessup J. In Shaw v MAB Corporation Pty Ltd [2014] FCA 62, Mortimer J refused to grant leave to appeal. Her Honour concluded:

60    … The Federal Court proceedings must of their nature collaterally impugn the processes and judgments of other courts, in circumstances where the appellate processes in those other courts have been available and utilised when the applicant saw fit. Where the underlying disputes between the parties have already been the subject of judicial determination, asking a court which is otherwise a stranger to those disputes to make findings about the giving of false evidence, the suborning of witnesses, the engagement in fraudulent conduct – all abuses of the processes of those other courts – will bring the administration of justice into disrepute. Appellate processes, and claims in those courts’ original jurisdiction where there has been fraud or perjury, are there to correct such alleged abuses of process, and to bring finality for the parties.

73    One point of difference between Shaw and the present case is that in Shaw the applicant did not seek orders setting aside orders made by a Supreme Court. Smits does. To that extent, this proceeding is a direct attack on orders of the Supreme Court of Queensland, not merely a collateral one. Paragraph 1(d) of the originating application seeks an order setting aside the final orders made by Margaret Wilson J in BS 5325 of 2008. Paragraph 1(e) seeks an order setting aside orders made by the Court of Appeal in CA 159 of 2011. Paragraph 1(j) seeks an order setting aside or varying the orders of White J made on 2 August 2007. To the extent that the originating application seeks such orders, the proceeding brings the administration of justice into disrepute and is an abuse of process.

74    In addition, the respondents submit that the Federal Court has no power to set aside orders of the Supreme Court and that the proceeding is an abuse of process to the extent it seeks such orders. A proceeding is an abuse of process if it is foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393.

75    In Shaw, Jessup J held at [44] that the Federal Court does not have the power to set aside orders of the Supreme Court.

76    In Re Baxter; Ex parte Official Receiver v Baxter (1986) 10 FCR 398, Northrop J said at 401:

The Federal Court has no jurisdiction or power to set aside the order of the Family Court.

That positon applies analogously to orders of a Supreme Court.

77    In Birdon Pty Ltd v Houben Marine Pty Ltd (2011) 197 FCR 25 at [96], Keane CJ considered that s 118 of the Constitution prevented the Federal Court from challenging directly the judgment of a Supreme Court or ordering collateral relief in relation to the enforcement of a judgment of the Supreme Court.

78    To the extent that the originating application seeks that orders of the Supreme Court be set aside, this Court has no power to make such orders and those aspects of the proceeding are also an abuse of process for that reason.

79    Paragraph 1(a) of the originating application seeks a declaration that Loel and Pioneer contravened various provisions of the TPA by not disclosing the abandonment and that they took unfair advantage of such silence “in the conduct of … proceedings Nos. 6354/2006, 10707/2006 and 5325 /2008”. It is clear from the amended statement of claim and Smits’ written submissions that he alleges that Loel acted fraudulently by not disclosing the abandonment to the Supreme Court and to him. I would adopt in the present circumstances Jessup J’s description of the allegations in Shaw as “substantially allegations of fraud or of presently analogous iniquities”. Smits’ TPA and CCA claims come within the latter part of that description.

80    In his written submissions, Smits asserts that he does not make allegations about conduct said to have taken place “in the course of conduct of those proceedings”, but is alleging that the fraud preceded and was independent of the proceedings themselves (but that the actions taken by Smits following the fraud were influenced by the fraud). However, the relief sought in paragraph 1(a) of the originating application is in its terms aimed at conduct said to have occurred “in the conduct of” the relevant proceedings. In addition, the amended statement of claim specifically pleads that Loel and Pioneer, by failing to disclose the abandonment in their pleadings in proceedings BS 6354 of 2006, BS 10707 of 2006 and BS 5325 of 2008 made dishonest representations to Smits and the Supreme Court. Thus, Smits alleges that Loel and Pioneer engaged in a fraud on the Supreme Court in the conduct of those proceedings.

81    Paragraph 1(a) asks the Federal Court to make findings about fraudulent conduct amounting to abuse of the processes of the Supreme Court. In my opinion, the relief sought in paragraph 1(a) of the originating application collaterally impugns the processes and judgments of the Supreme Court in circumstances where the processes of the Supreme Court are available in respect of the alleged fraud. Smits’ claim for declarations in respect of the Supreme Court proceedings listed in paragraph 1(a) of the originating application is an abuse of process.

82    Paragraph 1(a) also seeks a declaration concerning Loel’s and Pioneer’s conduct in relation to the negotiation, execution, implementation and enforcement of the Deed of Settlement. Paragraph 1(b) seeks a declaration that certain clauses of the Deed of Settlement are void. Paragraph 1(c) seeks compensation for losses relating to payments made under the Deed of Settlement. Paragraph 1(f) seeks an order that Loel and Pioneer refund to Smits money paid pursuant to consent orders made by White J on 2 August 2007 in BS 6354 of 2006, which reflect part of the terms of settlement. Paragraph 1(k) also seeks an order directing the refund or repayment of money paid pursuant to that order by Smits.

83    The Deed of Settlement was the basis for the orders being made by consent in BS 6354 of 2006 and BS 10707 of 2006. In Spencer Bower and Handley Res Judicata, (4th ed, LexisNexis, 2009), the author KR Handley at [2.16] states that the effect of a consent order is that:

[A]t the request of the parties it gives judicial sanction and coercive authority to an agreement which, except by statute, could not otherwise operate as a bar. Judgments, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the cause of action sued on.

(Footnotes omitted)

84    The Deed of Settlement required the parties to consent to particular orders. The parties agreed that those orders would incorporate undertakings to the Supreme Court. The undertakings were given and a consent order made by Chesterman J on 13 June 2007 incorporated the undertakings. The undertakings are enforceable. The consent order and the Deed of Settlement are inextricably linked. Indeed, the order refers specifically to “the terms of settlement.”

85    The Deed of Settlement cannot be set aside or treated as void when the parties’ obligations under the Deed of Settlement have, at least in part, merged in the Supreme Court’s orders. The orders sought in the originating application attack the Deed of Settlement on the basis of fraud and are necessarily linked to the paragraphs of the originating application that seek to have orders of the Supreme Court set aside on the same basis. Paragraphs 1(a), (b), (c), (f) and (k) amount to a collateral attack on the consent orders made by Chesterman J and by White J.

86    Paragraph 1(l) seeks an order that Smits’ costs in BS 6354 of 2006 and BS 10707 of 2007 be paid by Loel and Pioneer on an indemnity basis. Such an order would be inconsistent with the orders made in those proceedings and is a collateral attack on those orders.

87    Paragraphs 1(g), (h), (i) and (m) of the originating application seek compensation or damages. Such compensation or damages is based on fraud and breaches of the TPA by Loel and Pioneer in their conduct of proceedings BS 6354 of 2006, BS 10707 of 2006 and BS 5325 of 2008 and in relation to the Deed of Settlement. Smits not only seeks the setting aside of the judgments in these proceedings, but compensation for his losses in bringing or defending such proceedings. These claims are also a collateral attack on the orders of the Supreme Court and amount to an abuse of process.

88    Paragraph 1(n) seeks an order declaring that Smits is entitled to set-off, cross-claim or cross-demand any amounts ordered to be paid in this proceeding against the costs orders in BS 5325 of 2006. Smits seeks other unspecified orders, declarations and relief in paragraph 1(o), interest in paragraph 1(p) and costs on an indemnity basis in paragraph 1(q). All of these aspects of relief depend upon obtaining the other relief he seeks. He cannot obtain the other relief because the claim for such relief is an abuse of process.

89    In paragraph 2(a) of the originating application, Smits seeks an order that the Deed of Assignment between Lillas & Loel and Pioneer be declared void or unenforceable. That relief depends upon the costs order in proceeding BS 5325 of 2008 being set aside. The amended statement of claim does not plead any other basis for the Deed of Assignment to be declared void or unenforceable. The relief sought is a collateral attack on the orders of Margaret Wilson J and the judgment of the Court of Appeal. The order sought in paragraph 2(b) is in a similar category. The remaining orders sought against Lillas & Loel also depend upon the costs order being set aside.

90    I consider that the relief sought by Smits against Loel, Pioneer and Lillas & Loel involves either a direct or collateral attack on the processes and orders of the Supreme Court. The use of the Federal Court and its procedures for this purpose would bring the administration of justice into disrepute. The proceeding against those parties is an abuse of process and will be dismissed pursuant to r 26.01(d) of the Rules.

91    For completeness, I add that some of the relief sought by Smits is sought under the UCPR. Contrary to Smits’ submission, the Court has no jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to grant relief under the UCPR. Further, under r 3, the UCPR applies to proceedings in the Supreme Court, the District Court and the Magistrates Court. The UCPR has no application to proceedings in the Federal Court.

92    In the course of the hearing I indicated that I was not satisfied that, leaving aside the question of abuse of process, the respondents had established the second aspect of their argument, namely that Smits lacked any reasonable prospects of successfully prosecuting the case. In view of my decision that the proceeding against Loel, Pioneer and Lillas & Loel should be dismissed as an abuse of process, it is unnecessary to elaborate on my reasons for that conclusion.

93    In the interlocutory application, the respondents seek their costs on an indemnity basis, but did not raise that issue in written or oral submissions. I will give the parties the opportunity to make submissions as to costs.

94    Although the originating application names J M O’Connor as a respondent, it is not apparent whether that firm has been served. J M O’Connor has not filed an address for service and has not sought to take any part in the summary judgment application. I propose to seek an indication from Smits as to whether J M O’Connor has been served and whether Smits intends to proceed against that firm.

Associate:

Dated:    10 December 2014