FEDERAL COURT OF AUSTRALIA

Blakeley v National Australia Bank [2017] FCA 835

ORDERS

THE COURT ORDERS THAT:

1.    Summary judgment be entered for the respondent against the applicants.

2.    The applicants pay the respondent’s costs of the application and the proceeding, to be assessed if not otherwise agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 22 February 2017, Mr Harold Thomas James Blakeley, on his own behalf and purportedly as trustee for HTJB Family Trust and purportedly as trustee for the Harold Thomas James Blakeley Family Trust, respectively the named first applicant, second applicant and third applicant (together, the applicants), commenced this proceeding against the National Australia Bank Limited, in which they claim damages in respect of alleged unconscionable conduct by the Bank and other conduct of the Bank alleged to contravene the Australian Securities and Investments Commission Act 2001 (Cth) and the Australian Consumer Law.

2    In a statement of claim filed 22 March 2017, the applicants relevantly plead as follows:

5.    The Respondent concluded a Mortgage agreement with PMHB Pty Ltd ACN 133 032 667 as trustee for the Third Applicant during or about October 2011 In terms of which:

a.    The Respondent advanced the sum of $900,000 to the third applicant against the registration of a first mortgage over 81 Mandurah Terrace and 62 Sholl Street, Mandurah in the State of Western Australia.

6.    The Respondent concluded a Loan agreement on the 12th October 2011with the First Applicant and with the Second Applicant for the development of 81 Mandurah Terrace (the business) and 62 Sholl Street (the Land) Mandurah WA. The material terms of which were that:

a.    The Respondent advanced the sum of $200,000 to the First and Second Applicants;

b.    The loan agreement commenced on the 12th October 2011 and its expiry date was the 31 October 2021.

(The Applicant will refer to the mortgage and loan agreement at trial for their full terms and effect)

7.    The facilities were as follows:

a.    $900,000 First Mortgage over both properties for the development of the Land and business.

b.    $200,000 loan to the second Applicant for the construction of the business (restaurant).

8.    The Mortgage and loan:

a.    The Registered Mortgage No. L787783 over Certificate of Title 1026 Folio 688, being the property known as 81 Mandurah Terrace Mandurah WA 6210. (The business).

b.    Guarantee and indemnity given by First Applicant to secure the loan and mortgage.

c.    At all times material hereto the First Applicant was the trustee of the Second Applicant and currently the Trustee of the Third Applicant, the former trustee, PMHB Pty Ltd, having been deregistered.

d.    The third applicant leased the business to the second applicant in terms of a written agreement of lease for a period of ten (10) years.

9.    During or about June 2012 the Applicant and the Second Applicant asked the Respondent for permission to sell the business. The request was made in the ' no default' period of the mortgage and loan agreement.

10.    At the time of the request referred to in paragraph 9 above, (June 2012) the business (excluding the land upon which it was built) was valued at approximately $600,000 plus plant and stock, less the loan of $200,000.

11.    The Respondent verbally refused to permit the sale of the business in June 2012 or at all and in writing through their solicitors confirmed such refusal on 20 December 2013 some 18 months later

12.    The First Applicant is the current Trustee of the Third Applicant that was the registered owner of the properties at 81 Mandurah Terrace and 62 Sholl Street Mandurah Western Australia 6210.

13.    Between June and December 2012 the Respondent verbally refused to allow the assignment of the lease of the property, and in writing acknowledged this refusal on the 20 Dec 2013 some 18 months later.

14.    The restaurant business closed its doors and ceased trading at the end of December 2012 and the applicants were unable to minimise their losses by either assigning the lease or selling the business of the restaurant.

15.    The Respondent by its refusals referred to above kept the applicants in a state of hiatus for 12 months before taking action to foreclose and thereby exacerbated the financial losses suffered by the applicants.

3    In the statement of claim, the applicants then identify two specific claims. The first claim is pleaded in the following terms:

16.    The refusals on the part of the Respondent:

a.    Prevented the First and Third Applicants from securing the assignment of the lease over the business and thereby preventing the eventual foreclosure by the Respondent;

b.    Prevented the Second Applicant from assigning the lease and thereby the repayment of the loan agreement and the release from the 10 year lease agreement.

c.    Resulted in the loss of opportunity for all the applicants to extricate themselves from a foreseeable financial crisis.

d.    Resulted in the First, Second and Third Applicants suffering financial loss.

e.    Resulted in the Respondent accruing penalty interest and    other compound interest on both the mortgage and the loan agreement.

17.    The Respondent foreclosed on the mortgage and loan agreement on the 20th August 2013 with the result that:

a.    First Applicant was declared bankrupt;

b.    Second Applicant lost all its assets; and

c.    The Third Applicant lost the land.

18.    The refusals of the Respondent referred to above were:

a.    Outside the ambit of the mortgage and loan agreement in as much as the said agreements provided for the prohibition of the sale of the land and not the assignment of the lease over the land;

b.    Tantamount to the unilateral imposition by the Respondent of a condition into the mortgage and loan agreement that neither the First nor Third Applicants had agreed to or had contemplated.

c.    Unconscionable.

19.     But for the refusals of the Respondent to permit the Second Applicant from assigning the lease over the business, it would not have been necessary for the Respondent to foreclose as aforesaid.

20.    The mortgage was fully paid until the end of January 2013.

21.    Further and /or alternatively, the Respondent's refusals above coupled with the Respondent's inaction for a period of 18 months after being alerted by the First Applicant to the foreseeable financial catastrophe resulted in the Applicants suffering heavy financial losses that could and should have been avoided or mitigated.

4    The second claim is pleaded in the following terms:

22.    The Respondent sold the properties at gross under value without adequate promotion thereby contravening 420 A of the Corporations Act 2001 (Cth).

23.    The land was valued at $1.8million prior to its improvement and valued at $3m after being improved. The Respondent sold the land duly improved for $1.25 million.

a.    The difference between the market value of the improved land and the value realised by the Respondent on foreclosure was the sum of $1,750,000.

24.    The Respondent:

a.    As mortgagee in possession failed to take reasonable care to ensure that the properties were sold at market value

b.    Failed to act in good faith;

c.    Failed to exercise the power of sale with reasonable care and with the objective of not selling the subject property below its market value or in the absence of a known market value, at the best price which was reasonably obtainable, having regard to the prevailing circumstances at the time of sale

5    The applicants then provide what are referred to as “Details of Claim” as follows:

26.    I rely on the Australian Consumer Legislation s.2o, s.21, s.22 and sections 12CA, 12CC, and 12CB of the ASIC Act with regard to unconscionable conduct.

27.    I also rely on section 18(1) and Division 1Part 3-1 of the Australian Consumer Legislation.

28.    I also rely on s12DA and/or s12DF of the Australian Securities and Investment Commission Act 2001, for deceptive and misleading conduct.

29.     I also rely on 420A (1) (a) of the ACL.

30.     I also rely on the law for failure to abide by the law relating to quiet enjoyment identified in the Western Australian Torrens Legislation Section S 116 of the Transfer of Land Act 1893-1978 (WA).

6    The applicants finally specify claims for damages, costs and interest in the following terms:

a.    General damages of $1.5m for the First Applicant;

b.    Special Damages of $1.5m for the Second Applicant;

c.    Special Damages of $1,750,000 for the Third Applicant being the difference between the market value and the sale price of the property;

d.    Costs and interest at the legal rate of Judgement to the date of payment.

e.    Aggravated damages of $3m by reason of the contumelious conduct of the Respondents unconscionable, misleading and deceptive conduct by failing to take into consideration:

•    the relative bargaining strength of the parties

•    the conditions imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party

•    the use of undue influence, pressure or unfair tactics by the stronger party

•    the requirements of applicable industry codes

•    the willingness of the stronger party to negotiate the extent to which the Respondent should have acted in good faith.

•    lack of explanation and assistance when necessary

•    whether the Respondent had the right to unilaterally change contract terms.

7    While the applicants in the statement of claim do refer to Mr Blakeley having been declared bankrupt, they do not refer to the fact that the applicants and the Bank executed a forbearance deed on or about 5 March 2013, as varied by a variation letter dated 11 April 2013 and further varied by a variation letter dated 27 May 2013 – which collectively may be referred to as the forbearance deed; and that by the forbearance deed the Bank was released from any claims that any of the applicants had or may have had against it.

8    It is in these circumstances that the Bank now seeks summary judgment against the applicants pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and/or R 26.01 of the Federal Court Rules 2011 (Cth).

9    For the purpose of s 31A(2), the Bank submits that none of the applicants has a reasonable prospect of successfully prosecuting the proceeding against the Bank.

10    The issues that arise in dealing with the Bank’s application for summary judgment are as follows:

(1)    Whether in light of the forbearance deed and release by the applicants of any claims they had or may have had against the Bank, the applicants can now maintain this proceeding.

(2)    Whether Mr Blakeley has standing to pursue any claims in his own right given he is a discharged bankrupt who claims against the Bank before his bankruptcy vested in the Official Trustee.

(3)    Whether any claims PMHB Pty Ltd ACN 133 032 667 has against the Bank on its own behalf vested in the Commonwealth, and any claims on behalf of the Blakeley Family Trust vested in the Australian Securities and Investments Commission (ASIC), upon its deregistration and so cannot be pursued by Mr Blakeley, if he is now the trustee of the Blakeley Family Trust.

Is there any reasonable prospect of the applicants successfully prosecuting the proceeding in light of the terms of the forbearance deed?

11    The forbearance deed was made between the Bank, Mr Blakeley as trustee for the HTJB Family Trust, PMHB in its own capacity and as trustee for the Blakely Family Trust, and Mr Blakeley on 5 March 2013.

12    The background to the deed, recited before cl 1 of the deed, states as follows:

A    NAB provided financial accommodation to the Borrowers in the form of the Facilities.

B    NAB holds the Securities to secure repayment of the Amount Owing.

C    A default has occurred and is continuing under one or more Facilities.

D    As a result of the default, NAB has matured the HTJB Trust Facility and the Family Trust Facility.

E     NAB has agreed on the terms and conditions in this document to forbear from taking further enforcement action (including commencing the Proceedings to allow the Borrowers and Guarantors an opportunity to repay the Amount Owing to NAB).

13    Clause 1 provides relevant definitions and interpretation, including the following:

Amount Owing means all monies outstanding at any time under the Facilities and includes Costs and any further amounts outstanding under the Facilities or Securities, including enforcement costs, and under this document.

...

Borrowers means each of the borrowers described in Schedule I of this document.

...

Default means:

(a)     failure by any of the Borrowers or Guarantors to comply with any of their obligations under this document, the Facilities, Securities or Guarantees or any other agreement with NAB;

(b)     if any of the Borrowers or Guarantors are placed, or resolve to enter into, insolvent administration, liquidation, receivership or any agreement or composition with creditors under the Bankruptcy Act or the Corporations Act.

Facilities means each of the facilities provided by NAB described in Schedule I of this document.

Guarantees means each guarantee and indemnity set out in the definition of Securities in this document.

Guarantors means each of the parties that have provided the Guarantees.

Proceedings means any proceedings to be commenced by NAB against the Borrowers or Guarantors in the Supreme Court of Western Australia seeking vacant possession of any of the Secured Property under the terms of the respective Securities.

…

Securities means each of the securities described in Schedule 2 of this document.

Secured Property means each real property the subject of the Securities.

Settlement Date means 31 May 2013.

...

14    Clause 1.2(m) of the forbearance deed provides as follows:

(m)     a particular person includes the person's administrators, executors, successors and permitted substitutes (including persons taking by novation) and assigns; and

15    Schedule 1 to the forbearance deed specifies each relevant “Borrower”, Facility” and “Account No./Facility Limit”, and the “Facility Short Name”. The borrowers include Mr Blakeley as trustee for the HTJB Family Trust and PMHB as trustee for the Blakeley Family Trust.

16    Schedule 2 to the forbearance deed identifies the “Securities” by their short name and more detailed description, and comprises the Family Trust Facility; the HTJB Trust Facility, Bank Guarantee, Business Card; and the HTJB Trust Facility, Bank Guarantee, Family Trust Facility and Business Card.

17    Clause 2 of the forbearance deed specifies certain conditions precedent. There is no suggestion or evidence to show that these conditions were not satisfied.

18    Clause 3 specifies “Acknowledgements” which are in the following terms:

The Borrowers and Guarantors each acknowledge and agree that:

(a)     the Facilities and Securities are in default and continue to be in default;

(b)     the Facilities, Securities and Guarantees are valid, binding and enforceable;

(c)     the securities secure the Amount Owing;

(d)     any notices issued by NAB to the Borrowers and Guarantors demanding repayment of the Amount Owing and which entitle NAB to enforce any Securities are valid and enforceable;

(e)     as at 8 February 2013 the Amount Owing (excluding Costs and Taxes) is as follows:

(i)    Bank Guarantee Default Account- $22,927.05;

(ii)     HTJB Trust Facility- $197,337.00

(iii)     Family Trust Facility- $911,993.00;

(f)    the Amount Owing will continue to increase with accruing interest, Costs and Taxes in accordance with the terms of the Facilities until it is repaid to NAB;

(g)     NAB is entitled to issue notices to the Borrowers and Guarantors demanding repayment of the Amount Owing and enforcing the Securities; and

(h)     nothing in this document acts to reinstate the rights of the Borrowers with regard to the cancellation of the whole or any part of any Facilities pursuant to notices issued by NAB;

(i)     NAB is under no obligation to extend or renew any Facilities or to provide any new financial accommodation to the Borrowers;

(j)    each of the Borrower's and Guarantors enter into this document:

(i)     having first obtained independent legal advice;

(ii)    having independently assessed this document;

(iii)    willingly and without reliance on any written or verbal statement or communication by or on behalf of NAB;

(k)     the provisions of this document reasonably accommodate each of the Borrowers' and Guarantors' current circumstances and they are each able to comply with the provisions of this document; and

(l)     by entering into this document, NAB does not waive any of its rights in connection with any notices issued by NAB, any defaults or any events of default which have occurred in respect of the Facilities or Securities.

19    Clause 4 deals with “Forbearance” and is in the following terms:

Subject to the Borrowers and Guarantors complying with the terms of this document, NAB agrees to:

(a)     forbear from taking any further action to enforce its rights arising under the Facilities and Securities until the Settlement Date;

b)     adjust the default rate for the HTJB Trust Loan and the Family Trust Loan to 10%, from 7 February 2013 until the Settlement Date.

For the avoidance of doubt, the default rate will revert to the default rate specified in the Facilities agreements for the HTJB Trust Loan and the Family Trust Loan if an event of default occurs under this Deed, from the date that the event of default occurs.

20    Clause 5 sets out the obligations of the borrowers in the following terms:

(a)     The Borrowers will execute and exchange contracts for sale of the Secured Property in accordance with clause 6 of this Deed by 30 April 2013;

(b)    On or by the Settlement Date, the Borrowers will repay the Amount Owing under the Facilities.

21    Clause 6 deals with the sale of a securited property in the following terms:

In any sale of a Secured Property, the Borrowers and Guarantors agree that:

(a)     they will obtain express written consent from NAB prior to signing any lease agreement;

(b)     they will provide NAB with a sworn valuation for bank purposes from a valuer acceptable to and instructed by NAB;

(c)     they will provide NAB with a copy of the agency agreement and marketing campaign for the Secured Property;

(d)     they will authorise the selling agent to discuss the sale of the Secured Property, including progress to sale and uptake of the selling agent's recommendations, with NAB's representatives;

(e)     they will provide fortnightly updates on progress of the sale of the Secured Property;

(f)    they will obtain NAB's prior consent to the sale price of the Secured Property prior to exchange of contracts or sale at auction (unless the sale price less any costs of sale to be deducted exceeds the Amount Owing);

(g)     they will provide to NAB a complete copy of the contract for sale of the Secured Property within 5 business days of exchange of contracts;

(h)     they will ensure any contract of sale is unconditional;

(i)     they will ensure that the terms of the contract for sale provide that a deposit of 10% will be paid on exchange of contracts and settlement must take place within 35 days of the date of exchange of the contract of sale, unless otherwise agreed to by NAB in writing;

(j)    they will provide NAB with a copy of any document related to the sale of the Secured Properly within 3 days of NAB's request;

(k)     at settlement of the sale of the Secured Property, NAB is to receive the full sale proceeds, less any deductions consented to by NAB;

(l)     NAB is not obliged to discharge its mortgage over any Secured Property at settlement of a sale by the Borrowers and Guarantors if this clause has not been complied with;

(m)     NAB will apply the net sale proceeds received by NAB to the Amount Owing at its discretion;

(n)     NAB will provide a discharge of mortgage over the Secured Properly at settlement of a sale of the Secured Property provided this clause is complied with; and

(o)     NAB is not obliged to discharge any Securities at settlement of a sale of the Secured Properly if the Borrowers or Guarantors do not comply with this clause.

22    Clause 7 deals with the maintenance of the secured property.

23    Clause 8 deals with consequences of default in the following terms:

If a Default occurs, NAB will be entitled to immediately and without further notice:

(a)     enforce any Facilities and Securities to obtain full payment of the Amount Owing;

(b)     commence the Proceedings;

(c)     at its discretion, give notice to the Borrowers and Guarantors requiring the Borrowers and Guarantors to deliver NAB vacant possession of the Secured Property within 3 Business Days of receiving notice from NAB; and

(d)     the Borrowers and Guarantors each acknowledge that upon receiving notice to vacate the Secured Property, the relevant Borrowers and Guarantors will deliver vacant possession of the Secured Properly to NAB in good order and condition including

(i) removing all possessions and chattels from the Secured Property to the extent that those items are not subject to any Securities in favour of NAB; and

(ii) delivering all keys to the Secured Property to NAB in accordance with any direction given by NAB.

24    Clause 9 deals with proceedings in the following terms:

Subject to the terms of this document, the Borrowers and Guarantors each acknowledge and agree that NAB does not waive or give up any of its rights in relation to its rights to continue with enforcement action with respect to the Facilities, Guarantees and the Securities, including commencing the Proceedings after the Settlement Date, if there is an event of Default under this document.

25    Clause 10, upon which the Bank specifically relies in its summary judgment application, provides as follows:

The Borrowers and Guarantors each immediately, unconditionally and absolutely release NAB and its Representatives from all claims which the Borrowers or Guarantors have or may have against NAB and its Representatives, whether individually or jointly, in respect of each of the Facilities, Securities and Guarantees. This document may be pleaded and tendered by NAB as an absolute bar and defence to any claim brought by the Borrowers or Guarantors in respect of any matter referred to in this clause.

26    The forbearance deed was executed as a deed. Mr Blakeley signed as a director and company secretary on behalf of PMHB, in his own capacity, and as trustee for the Blakeley Family Trust, in accordance with s 127 of the Corporations Act 2001 (Cth), and also signed in his own capacity and as trustee for the HTJB Family Trust.

27    While Mr Blakeley now submits that the forbearance deed is not relevant to the claims he has identified in the proceeding, including in the statement of claim as set out above, I am unable to accept the submission. Plainly the various claims he wishes to pursue against the Bank fall within the language of cl 10 of the forbearance deed, namely, claims “in respect of each of the Facilities, Securities and Guarantees” as those terms are further defined in cl 1.1 of the forbearance deed, as set out above.

28    Clause 10 of the forbearance deed makes it clear that the Bank may plead the deed as “an absolute bar and defence to any claim brought by the [applicants] in respect of” any claim in relation to facilities, securities and guarantees.

29    I accept the submission made on behalf of the Bank that the release is binding on subsequent trustees of the Blakeley Family Trust, including Mr Blakeley, if he is indeed now the trustee of the Blakeley Family Trust, having regard to cl 1.2(m) of the forbearance deed.

30    The claims that the applicants wish to pursue concerning unconscionable conduct, deceptive and misleading conduct, failure to abide by the law relating to quiet enjoyment and other alleged contraventions of Commonwealth legislation would all arise in connection with the Bank’s exercise of its rights pursuant to the facilities, securities and guarantees as defined by the forbearance deed. They are all claims within the contemplation of the parties at the time when the release was given and are covered by the release. See Commonwealth Development Bank of Australia Limited v Kok [2003] FCA 90.

31    The conditions precedent set out at cl 2.1 of the forbearance deed have been satisfied or waived, as indeed have the conditions precedent to the variation letter dated 11 April 2013 and the variation letter dated 27 May 2013, as is apparent from the affidavit of Ms Christine Teresa Facius, dated 2 May 2017, at [8] to [10] upon which the Bank relies.

32    While in his submissions Mr Blakeley also asserts that the forbearance deed may, in effect, be ignored because it was executed by the applicants in circumstances of duress and undue influence, there is no evidence advanced by the applicants to support the allegation. It is, as the Bank submits, mere assertion.

33    I accept the submission made on behalf of the Bank that such an allegation is, in any event, inconsistent with:

(1)    the express acknowledgements in the forbearance deed that the borrowers and guarantors (as defined in the forbearance deed) entered into the deed:

(a)    'having first obtained independent legal advice': clause 3(j)(i) of the forbearance deed; and

(b)    'willingly and without reliance on any written or verbal statement or communication by or on behalf of [the Bank]': clause 3(j)(iii) of the forbearance deed; and

(2)    the terms of the variation letters dated 11 April 2013 and 27 May 2013, which record variations to the terms of the forbearance deed requested by the applicants: Ms Facius’ affidavit, CTF-3 and CTF-4.

34    I also accept the Bank’s submission that, so far as the circumstances in which the forbearance deed was executed, the applicants have not adduced any evidence as to:

(1)    any conduct on the part of the respondent which it is alleged was:

(a)    unconscionable;

(b)    misleading or deceptive; or

(c)    which would give rise to considerations of undue influence. The relationship between a borrower and lender is not a relationship historically recognised by the law as raising a presumption of undue influence, and evidence must be adduced that the transaction was the outcome of such undue influence over the mind that it cannot be considered to be a free act: Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41.

(2)    any "special disability" which it is alleged they suffered at the time of the entry of the forbearance deed;

(3)    any circumstances by which it is alleged that any such disability would have been sufficiently evident to the respondent; or

(4)    any terms of the forbearance deed which are alleged to be unconscionable.

35    While Mr Blakeley also raises a question concerning his execution of the forbearance deed and whether his sole signature made the deed effectual, there is no doubt that as sole director and shareholder of PMHB he had authority to execute the forbearance deed. Section 198E(1) of the Corporations Act provides for that.

36    A company is not required to execute a document in accordance with s 127 of the Corporations Act, as s 127(4) states. The only consequence of a company not executing in accordance with s 127 is that a person dealing with the company is not able to rely on the assumptions set out at s 129 of the Corporations Act.

Does Mr Blakeley have standing in his own right to pursue the claims?

37    Further, I accept the Bank’s submission that Mr Blakeley’s claim is incompetent and should be dismissed because he does not have standing to pursue it.

38    It is not contentious that Mr Blakeley became bankrupt on 9 August 2013 and was discharged from bankruptcy by operation of law as of 10 August 2016.

39    Any claims he may have had against the Bank, including, but not limited to, the claims he would press in this proceeding, vested in the Official Trustee upon his bankruptcy, pursuant to s 58(1) of the Bankruptcy Act 1966 (Cth). Those claims do not revert to him upon his discharge from bankruptcy. See Samootan v Shea [2010] NSWCA 371 at [67]-[100].

40    While Mr Blakeley suggests that he is entitled to pursue a proceeding in his own name on the basis that he is claiming a “personal injury or a wrong” within the meaning of s 116(2)(g)(i) of the Bankruptcy Act, I do not accept that the proposed proceeding falls within that category.

41    In this case, the primary or substantial right of action that Mr Blakeley would like to pursue is direct pecuniary loss to his property or estate as a bankrupt. In such circumstances, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to him. See Faulkner v Bluett (1981) 52 FLR 115 at 119; [1981] FCA 3. See generally Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92 at [19]-[24].

42    In Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 at [52], it was held that an applicant’s interest in challenging the exercise of the secured party’s power of sale under the Property Law Act 1974 (Qld) was his interest as owner of the property the subject of the security. As a result of his bankruptcy it was held that interest had become vested in the trustee and so only the trustee could agitate that question.

43    I should add that nothing in the written address to the Court handed up by Mr Blakeley at the hearing of the summary judgment application bears upon the reasons I have given.

44    It follows, in my view, that Mr Blakeley does not have standing in his own right to pursue the claims the subject of this proceeding.

Can Mr Blakeley act for the trusts?

45    I also accept a submission made on behalf of the Bank that there is no evidence to support the statement made in the statement of claim that Mr Blakeley has authority to act as trustee of the Blakeley Family Trust.

46    The trustee of the Blakeley Family Trust during the relevant period of alleged contravention was PMHB. PMHB was deregistered by ASIC on 29 October 2014 and remains deregistered. Upon deregistration, any property, including a chose in action, that was held by PMHB on trust immediately before deregistration vested in the Commonwealth under s 601AD(1A) of the Corporations Act; and any property held by PMHB in its own capacity immediately before deregistration vested in ASIC pursuant to s 601AD(2) of the Corporations Act.

47    It follows that unless Mr Blakeley was appointed as trustee in accordance with the terms of the Blakeley Family Trust deed before 29 October 2014, of which there is no evidence adduced by him, the claims sought to be pursued in these proceedings vested in the Commonwealth or ASIC, and the third applicant cannot maintain the claims.

conclusion and orders

48    For these various reasons, there is no prospect, let alone reasonable prospect that the applicants can successfully prosecute this proceeding and the two claims they wish to make.

49    It follows that the Bank is entitled to summary judgment.

50    The orders that should be made are:

(1)    Summary judgment be entered for the respondent against the applicants.

(2)    The applicants pay the respondent’s costs of the application and the proceeding, to be assessed if not otherwise agreed.

Associate:

Dated:    25 July 2017