FEDERAL COURT OF AUSTRALIA

Stuart v Rabobank Australia Ltd [2018] FCA 1304

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be refused leave to file the fourth further amended statement of claim.

2.    The proceeding be summarily dismissed.

3.    The applicants pay the respondent’s costs of the proceeding as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

Background

1    On 5 February 2018 I refused the applicants, Mr and Mrs Stuart, leave to file the so-called third further amended statement of claim in this matter (so-called because there has been more than three versions of a statement of claim filed). However, I refused Rabobank Australia Limited’s application to summarily dismiss the proceeding despite the fact that, as a consequence, there remained no statement of claim in the face of repeated orders requiring and providing an opportunity to the applicants to obtain leave to file a statement of claim. My reasons in support are in Stuart v Rabobank Australia Limited [2018] FCA 30 (the February reasons).

2    I otherwise ordered on 5 February 2018 that:

…

2.    The applicants serve and provide to the Court a proposed fourth further amended statement of claim by 23 March 2018.

3.    The respondent notify the applicant and the Court (by email to the Associate to Jagot J) whether it consents to the filing of the fourth further amended statement of claim by 13 April 2018.

3    Rabobank does not consent to the filing of the proposed fourth further amended statement of claim. It maintains that the proposed pleading is unintelligible and/or otherwise so seriously defective that it does not disclose any intelligible or, to the extent intelligible, complete cause of action against it and thus does not perform the required function of enabling Rabobank to know the case it will be required to meet. Rabobank maintains also that, in circumstances where I previously accepted its contention that a statement of claim was necessary and Mr and Mrs Stuart have had repeated opportunities to articulate their claim but have failed to do so in a manner that can be understood, the proceeding should be summarily dismissed.

4    I have decided that Rabobank’s contentions must be accepted. I have also decided that, in the circumstances of this case, the only practical and just order is to summarily dismiss the proceeding. Rabobank should not be burdened with yet further versions of a statement of claim dealing with the same subject matters with which it has been dealing for a year, and which remains incomprehensible or so seriously deficient that it cannot be understood as disclosing any coherent cause of action or claim.

5    I appreciate the fact that the effect of this is to deny the Stuarts an opportunity to have their case determined on its merits. If I could conceive of an alternative which would not be inconsistent with the proper administration of justice I would adopt that alternative. I am unable to do so. To test this conclusion I have considered what I would do if the Stuarts did not have legal representation. I concluded that if they were unrepresented I would not permit the proceeding to be prosecuted against Rabobank on the basis of the proposed statement of claim. I have also concluded that I would not permit the proceeding to be prosecuted at all without a clear, confined and comprehensible statement of the claims sought to be made against Rabobank. Had the Stuarts been unrepresented it is doubtful they would have been able to put their case in so many confused and confusing ways as disclosed in the various versions of the proposed statements of claim which have vexed this matter. It might then have been possible to isolate a few confined claims capable of clear identification and make orders permitting the case to proceed on that confined basis. As it is, there are no such claims I can identify from the proposed statement of claim. The choice thus appears to be between allowing the matter to proceed to hearing (including requiring Rabobank to undertake all interlocutory steps such as discovery and the filing of evidence) with no clearly identified or apparently cogent claims or summarily dismissing the proceeding. As explained below, further mediation is not an option. Further, the applicants are legally represented by both solicitors and counsel and the numerous attempts on their behalf to articulate the claims against Rabobank have not been successful despite Rabobank repeatedly explaining in considerable detail in correspondence the serious problems with the various versions of the statement of claim it has had to confront. In these circumstances, I have also concluded that another option which might be considered for unrepresented parties, such as referral to a Registrar for case management for the purpose of attempting to identify the relevant claims, is not practical in the present case.

6    I am mindful of the fact that I am not evaluating the merits of the Stuarts’ case against Rabobank. However, it is relevant to the required exercise that, as the proposed statement of claim recognises, most of the claims must confront the deed into which the Stuarts and Rabobank entered in 2012 following a farm debt mediation. As I noted in [4] of the February reasons:

It has been common ground to date that in order to maintain any action against Rabobank Mr and Mrs Stuart would need to succeed in setting aside a deed of forbearance and acknowledgment into which they and Rabobank entered following a farm debt mediation. By the deed Mr and Mrs Stuart released Rabobank from liability in respect of Rabobank’s past dealings with them in exchange for Rabobank placing a moratorium on enforcement action until 31 March 2013.

7    While the existence of this deed does not indicate that the Stuarts, in any subjective sense at least, are seeking to do other than bring their claims in good faith, it is part of the context which informs the overall assessment of the practicality and justice of orders other than summary dismissal.

8    Ultimately, I am unable to escape the conclusion that permitting this matter to proceed without a comprehensible statement of claim would be contrary to the proper administration of justice. Continually requiring Rabobank to consider and respond to yet further iterations of the same incoherent claims would also be contrary to the interests of justice involving a form of prejudice not remediable by orders for costs.

Preliminary observations

9    These reasons are to be read with the February reasons. Without repeating the matters set out in those reasons, it is necessary to record that by 28 July 2017 I was persuaded by Rabobank that this matter should not be permitted to proceed to hearing without a statement of claim being filed. I thus ordered the Stuarts to serve a draft third amended statement of claim by 11 August 2017 on the basis that, given the history of the matter, this was the final opportunity to plead their case. Everything that has happened since has involved the lack of coherence of the various versions of a statement of claim filed on behalf of the Stuarts.

10    Despite the issue being revisited a number of times on behalf of the Stuarts, it has been clear for a year (if not more) that Rabobank’s summary dismissal application is not based on s 31A of the Federal Court of Australia Act 1976 (Cth) (the Court Act), which is a power to summarily dismiss proceedings if the Court is satisfied that there is no reasonable prospect of successfully prosecuting the proceeding. Rabobank did file an interlocutory application in October 2017 which, in the alternative, sought summary dismissal on the basis of s 31A but the primary order sought was dismissal of the proceedings relying on the general power of the Court under s 23 of the Court Act or, alternatively s 37P(2). This interlocutory application did not refer to any particular version of the statement of claim and, given the number of versions which this case has involved (which is reflected in the numbering system describing the versions), there was no requirement that it do so.

11    In any event, Rabobank’s position has been, and remains, that it is entitled to a pleading which identifies the claims which the Stuarts make in intelligible terms and that, if the Stuarts do not fulfil this requirement, the proceedings should be dismissed. That position could never have been the subject of any genuine doubt or confusion.

12    The Stuarts claim damages (amongst other relief) and thus the prima facie position under r 8.05(1)(a) of the Federal Court Rules 2011 (Cth) is that the originating application is to be accompanied by a statement of claim. There is a capacity to vary or dispense with this requirement: r 1.34. The Court’s practices recognise that the formality of a statement of claim is not always necessary or appropriate. Some cases may not require a pleading in any form. In other cases a less formal document, such as a concise statement, which for example is provided for in Commercial and Corporations Practice Note (C&C-1), may present a better tool for identifying the relevant dispute and setting the framework within which the dispute is to be resolved.

13    I have been persuaded by Rabobank that this is not such a case. The versions of the statement of claim proposed thus far indicate that the Stuarts wish this Court to undertake some form of roving inquiry into the entirety of their relationship with Rabobank, in effect, involving every dealing between July 2004 when the Stuarts first became customers of Rabobank until 1 April 2015 when receivers appointed by Rabobank sold the Mount Morris property. The proposed inquiry concerns the credit contract entered into in 2004, numerous alleged oral, written and partly oral and partly written variations to that contract, numerous alleged new contracts (also oral and partly oral and partly written), representations said to form part of these contracts over many years at different times, a multiplicity of alleged breaches by Rabobank without any clear or in some cases any identification of the terms said to be breached or how they came to form part of the contract or contracts in questions, claims for excessive interest charges between 2005 and 2012, claims that the farm debt mediation leading to the deed in 2012 was unlawful in many different ways, as well as claims against the mediator and the receivers (who are not parties) and an apparent challenge to the lawfulness of the entire Queensland farm debt mediation scheme.

14    The inquiry sought would involve Rabobank’s conduct over the full period of dealings between 2004 and 2015 (without, I should note, any apparent regard to issues such as limitation periods or consideration of necessary or appropriate parties given the claims against or about the mediator, the Queensland farm debt mediation scheme, and the receivers). This proposed inquiry, moreover, is only loosely tethered to various causes of action which, on analysis, remain beyond comprehension or seriously deficient. An inquiry of this kind is not a function of the Court. Courts decide legal claims. They do so within a framework designed to ensure procedural fairness to all parties. The right which every person has is to come to court and have a full and fair opportunity to have their legal claims heard on the merits consistent with the requirement that the process be procedurally fair to both parties. This opportunity is not unconfined. It does not continue to be available in all circumstances and at any cost. I am unable to avoid the conclusion that the opportunity has been exhausted in this case.

15    A statement of claim which identifies the legal claims and the material facts said to give rise to them fixes the boundaries of the relevant issues facts in dispute. In my view, this is essential in the present case. A statement of claim is meant to “identify the issues that the party wants the Court to resolve” and “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved”: r 16.02(1)(c) and (d). A statement of claim must not “contain any frivolous or vexatious material”, “be…ambiguous”, or “be likely to cause prejudice, embarrassment or delay in the proceeding” or “fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”: r 16.02(2)(b), (c), (d) and (e). Without adherence to these requirements, Rabobank will be deprived of the opportunity of a fair hearing based on fair interlocutory processes. It will be forced to undertake interlocutory processes such as discovery and preparation of evidence trial without being able to ascertain if the statement of claim does or does not disclose any cause of action. The Court itself will be forced to deal with questions of proper discovery, relevant evidence and the entirety of the hearing as if it were conducting an inquiry into all of the dealings between Rabobank and the Stuarts, including the conduct of the mediator in 2012 and the receivers in 2015, untethered to comprehensible claims.

16    For example, the Stuarts have raised the issue of discovery more than once during various interlocutory hearings, in effect arguing that they are unable to identify their claims fully or clearly unless and until Rabobank has discovered the Stuarts’ banking files and other documents concerning the bank’s policies and practices. I have refused to make orders for discovery before the pleading issue has been resolved. In my view, to order discovery without a statement of claim would be unfair to Rabobank. The fact that Rabobank is a large commercial body does not mean that it may be unreasonably exposed to burdensome and unnecessary pre-trial processes. A fundamental requirement is that discovery, if ordered, be “directly relevant to the issues raised by the pleadings or in the affidavits”: r 20.14(1)(a). There are no pleadings and thus the proper scope of any discovery (or affidavits) cannot be ascertained.

17    As another example, at a directions hearing on 24 April 2018 the Stuarts indicated that they wished to rely on an expert report to resist Rabobank’s interlocutory application. I refused to permit them to do so because, as I explained, we were dealing with (and had for many months been dealing with) a pleading issue. A pleading either is or is not intelligible and adequate to fulfil the purpose of a pleading on its face. Expert evidence cannot assist in that regard. If a pleading is adequate to disclose a cause of action, then expert evidence may assist in resolving an issue which arises on the pleadings, but an expert report, presumably unrelated to any particular cause of action, is precisely the kind of evidence which should not be permitted. It is the kind of evidence, however, with which Rabobank and the Court would be unnecessarily and inappropriately burdened unless the Stuarts are required to identify their claims and the material facts said to support those claims in manner which is capable of being understood.

18    All of these considerations support the conclusion that I reached in July 2017 that the only practical means of there being a fair hearing of the Stuarts’ claims is for the Stuarts to file a statement of claim that meets a minimum threshold of comprehensibility.

19    The reality is that the repeated indulgences which the Stuarts have been granted in this matter to date have caused significant delay, expense and inefficiency. The Stuarts have been permitted these repeated indulgences because the balance thus far has weighed in the favour of them being granted every reasonable opportunity to provide an intelligible and adequate pleading given that the order Rabobank seeks would have the effect of summarily terminating the proceeding altogether. As I said at [2] in the February reasons, however, this is now the “final opportunity” for the Stuarts to plead their case. Despite this, I should record that yet further indulgences have been sought and obtained by the Stuarts. By order 2 of the orders of 5 February 2018, the Stuarts were to “serve and provide to the Court a proposed fourth further amended statement of claim by 23 March 2018”. Yet on 24 April 2018, when the matter came before me again, the Stuarts’ counsel indicated that he may wish to make “some minor revisions” based on an expert report that was being obtained. Despite Rabobank’s objection, I permitted the Stuarts to serve on Rabobank and provide to the Court yet another version of the proposed statement of claim by 8 May 2018. This was done and it is this version of the statement of claim with which I am dealing. In this regard, it should not be inferred that this is only the fourth version of a statement of claim with which Rabobank has had to deal. As noted, the nomenclature of the versions does not reflect the various iterations which have been proposed at various times.

20    Another observation is appropriate. This was submitted for the Stuarts:

88. Recently the High Court has made it clear that interlocutory processes particularly those going to form or to block a case, and not to the merits, should in general not be used to determine claims without a trial: Rozenblit v Vainer [2018] HCA 23 at [10], [23], [109], and [113]. Where form questions as to pleadings are the only foundation for a summary dismissal as put by the Bank here, that consideration or the mere imperfections of the pleader should not, or should not in the circumstances of this case, be the basis for termination: in Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd, eight (8) iterations and four amended versions of the statement of claim were presented, with the ninth (9) one under application for leave to amend [Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [6], also providing a history of amendments at [7]-[30]]. Such issues of form if they can be addressed here ought be the subject of further leave.

89. Binding authority under Federal Court Act section 31A also indicates that summary dismissal is not available under section 31A unless both the pleaded case and the available case are such that the whole claim should be dismissed in advance of a hearing on the merits: O’Brien v Bankwest [2013] NSWCA 71 at [3] per Macfarlan JA; Spencer v Commonwealth [2010] HCA 28; 241 CLR 118. On one view, the available case where it involves Bank wrongdoing cannot be fully known until court ordered disclosure.

21    The following matters must be noted.

22    As I have said, this is not an application for summary dismissal under s 31A. It is an application for summary dismissal based on the Court’s general power under s 23 to “to make orders of such kinds, including interlocutory orders… as the Court thinks appropriate”. The summary dismissal is sought on the basis that since at least 28 July 2017 the Stuarts have been on notice that the case will not be permitted to proceed without a statement of claim and, despite having multiple opportunities provided to them, they have not been able to provide a document which satisfies the essential functions of a statement of claim.

23    The submissions for the Stuarts referred to Rozenblit v Vainer [2018] HCA 23; (2018) 92 ALJR 600. In that case at [10] Kiefel CJ and Bell J referred to the fundamental principle that:

…generally speaking, a person is entitled to submit a bona fide claim for determination by the courts. A litigant is entitled to a determination unless to allow the claim to proceed would amount to an abuse of process or would clearly inflict unnecessary injustice on the party seeking the stay, in which case the proceeding should be halted.

24    They continued at [11]:

It does not follow from the continuing acceptance of this fundamental principle that the right or entitlement of a person to initiate an action is to be understood to be at large. In Batistatos v Roads and Traffic Authority (NSW) [(2006) 226 CLR 256 at 280 [65]; [2006] HCA 27] it was pointed out that any such entitlement is subject to the operation of the applicable procedural and substantive law administered by the courts. In Aon Risk Services Australia Ltd v Australian National University (“Aon”) [(2009) 239 CLR 175 at 212–213 [96]; [2009] HCA 27] it was observed that it is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the courts in order to seek a resolution of their dispute.

25    Kiefel CJ and Bell J also said this:

[23] It is necessary when considering whether to make any order, including an order for a stay, to give consideration to the overarching purpose of the CPA and the means by which it might be achieved. But the stated purpose of the CPA, “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”, is more readily identified with the manner in which a dispute is to progress to its ultimate resolution by the court. It does not speak directly to the possibility that a dispute might not be determined at all.

[24] … The requirement that, in principle, a party should not be denied a determination of his or her dispute unless there are strong grounds for doing so is not inconsistent with the overarching purpose.

[25] It has been recognised that the manner of the conduct of proceedings might provide grounds for a stay. Any assessment of such conduct will require consideration to be given to the matters identified as relevant to achieving the purpose of the CPA. It is by reference to such facts that the purpose of the CPA may assume particular importance in some cases. But in every case where a stay which may effectively terminate a proceeding is sought, consideration must be given to the general principles and to whether the nature and effect of the conduct in question provides strong grounds for the making of the order.

26    Kiefel CJ and Bell J were not suggesting that, if a statement of claim is considered necessary for a fair hearing, the requirement should be waived merely because the party required to file the statement of claim has been incapable of doing so.

27    In Rozenblit v Vainer Keane J made the following observations which resonate in the present case:

[41] It has long been accepted that an order for costs in favour of a party adversely affected by the manner in which litigation is conducted may be a necessary means of preventing injustice resulting from the consequences of incompetence or inefficiency falling short of deliberate harassment or the pursuit of a collateral purpose on the part of an opposing litigant. The decision of this Court in Aon Risk Services Australia Ltd v Australian National University was a reminder that inefficiency or incompetence in the conduct of litigation may unjustly burden the other parties to the litigation, and the administration of justice itself. That decision made it clear, to the extent that clarity was necessary, that orders for costs will not always be sufficient to prevent injustice occasioned by inefficiency or incompetence in the conduct of litigation. The broader point for which Aon Risk is presently relevant is that injustice in the conduct of litigation cannot be justified by invoking the interests of justice.

[42] Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. To the extent that the contention advanced on behalf of Mr Rozenblit reflects an assumption that inefficiently or incompetently conducted litigation, and the waste in terms of time and money inflicted upon the other party or parties, is nevertheless consistent with the promotion of access to justice because the end may ultimately justify the means, that assumption must be rejected. Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. Litigation that is conducted inefficiently, incompetently or in disregard of the rules by one party is no less oppressive to the other party because it is not intended to be oppressive. And it is no less oppressive because the litigant who engages in such conduct is impecunious.

28    At [44] Keane J also said this:

As Lansdowne AsJ, Cameron J and the Court of Appeal all rightly appreciated, the potentially serious consequences of the exercise of the discretion to make an order under r 63.03(3) against an impecunious plaintiff mean that a stay should be granted as the “only practical way to ensure justice between the parties.” [Gao v Zhang (2005) 14 VR 380 at 385; [2005] VSCA 200 [15]].

29    Gordon and Edelman JJ in Rozenblit v Vainer at [65] noted that an order for stay or dismissal to prevent injustice might be founded on a range of circumstances capable of being described as a form of abuse of process, such as “the taking of steps, or the failure to take steps, as well as delay, in the conduct of the proceedings”. Their Honours also stressed at [66], [93] and [100] that the gravity of an order for stay or dismissal to prevent injustice means that there must be no other practical and just order which is possible in the circumstances.

30    The submissions for the Stuarts also referred to Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [6] in which a further opportunity to re-plead was granted after eight versions of a statement of claim had been propounded. All that need be said is that each case must depend on its own facts.

31    In the present case, in addition to the matters discussed in the February reasons, the relevant facts include that this is not a case involving the amendment of a statement of claim. It is a case in which there has never been an intelligible statement of claim.

32    Further, there is no realistic prospect of further mediation being of use. As noted in [20] of the February reasons I referred the matter to mediation at the outset over Rabobank’s objection. Rabobank objected to mediation because the Stuarts’ claims had already been subject to a farm debt mediation process and had settled at that mediation, culminating in the deed which, as part of this case, the Stuarts seek to set aside. The mediation I ordered apparently resulted in a further settlement. I say “apparently” because the matter then was side-tracked into a satellite dispute in which Rabobank sought to enforce, and the Stuarts denied, another binding settlement contract. This satellite dispute, and the Stuarts attempts to obtain legal representation, absorbed the period from June 2016 to July 2017. Ultimately, Rabobank (properly and responsibly) decided not to try to enforce this settlement once the extraordinarily difficult personal circumstances which the Stuarts were in at the time this further apparent settlement occurred were disclosed through cross-examination.

33    Finally, as noted, I accept that, subjectively, the Stuarts are attempting to litigate their claims in good faith. Objectively, however, it is apparent that apart from one issue about the proper construction of the 2012 deed, all of the complaints about conduct which pre-date the deed depend on the deed being set aside. This comprises all of the conduct between 2004 and 2012 and thus includes everything in the proposed statement of claim except the conduct of the receivers and in relation to certain aspects of the alleged carbon abatement interest scheme. The issue of construction about the deed, as discussed below, involves the proposition that a release of liability of Rabobank and one of its subsidiaries in respect of Rabobank’s and its subsidiary’s dealings with the Stuarts operates only in relation to joint conduct of Rabobank and its subsidiary. While I am not concerned with the merits of the Stuarts’ claims, it is relevant that the sole contention about the deed which does not depend on it being set aside proposes a construction which cannot readily be reconciled with the obvious purpose or provisions of a deed of settlement.

34    Against this background the current version of the proposed statement of claim now proposed may be considered.

The proposed statement of claim

35    Contrary to the submissions for the Stuarts, the proposed statement of claim is not confounded by the complexity of the case the Stuarts are attempting to maintain. Complex cases can be and routinely are pleaded in comprehensible terms.

36    It is not useful to attempt to dissect each and every problem with the proposed statement of claim. The problems are manifest and multitudinous, as the brief review below explains. I do not accept the submissions for the Stuarts to the contrary.

Part B – the release issue

37    Para 3: the paragraph does not plead any material fact. It will be noted, however, that the paragraph refers to the terms of the release of Rabobank (referred to as RAL) and its subsidiary Rabobank Equipment Finance Limited (referred to as REFL) “from any liability in respect of RAL and REFL’s past dealings with them in relation to any matter whatsoever” and Rabobank’s contention, which is maintained, that the claims are barred by the terms of the deed.

38    Para 4: first, the words “but not limited thereto” introduce ambiguity and cannot be permitted. Second, the pleading is that the “claims against the Respondent are not for ‘any liability in respect of RAL and REFL’s past dealings with them’ ie RAL and REFL”. As discussed, however, most of the balance of the statement of claim involves alleged liability of Rabobank based on Rabobank’s past dealings with the Stuarts (“past” in the sense of occurring before the date of the deed) including many dealings which occurred before the execution of the deed. The submission for the Stuarts about para 4 is that they contend this release applies only to the joint conduct of “RAL and REFL”. While I would accept that the meaning of the release in the deed and whether it attaches to any particular liability are justiciable issues, this assumes the existence some other properly pleaded cause of action said to give rise to such liability. As also noted, apart from this issue of construction which apparently depends on reading “and” as if it required joint conduct (on the face of it, a long way from the ordinary meaning of the release), everything that follows up to at least 2012 depends on the deed being set aside.

39    Para 5: the particulars to para 5 are claims rather than particulars and are ambiguous. They involve multiple alternatives (such as when no such moratorium occurred or a moratorium on terms which terms neither RAL and REFL have alleged have been performed, nor has been executed, and in circumstances where the onus is upon them to so allege and demonstrate which onus RAL and REFL have not satisfied), without it being apparent which fact is relevant to which alternative. The submissions for the contrary for the Stuarts do not confront the profound ambiguity of the terms of para 5 as particularised.

40    Para 6: as Rabobank submitted, the problem with this paragraph is that there is no recognisable cause of action which arises merely because a party to a contract intended to act in a way which it then bound itself to act by the contract. The “illusory” promises are also not clearly identified.

41    Para 7: the cause of action said to void the deed is not apparent.

42    Paras 8 and 8A: as Rabobank submitted, these paragraphs appear to challenge the entire Queensland farm debt mediation scheme. The potentially wide range of persons having a legitimate interest in the lawfulness of that scheme appears not to have been considered in the proposed statement of claim including persons who may be necessary or appropriate parties. How such a claim can be made in a proceeding in which the sole respondent is Rabobank is not apparent.

43    Paras 9 and 10: it is almost impossible to dissect these paragraphs. Apart from this, at the least, the “later conduct” must be identified but is not. Further, there must be some material fact pleaded which connects the “later conduct” to Rabobank’s alleged intention (or lack of intention) at the time of the mediation but there is not.

44    Para 11: Mr Nevison was the mediator. It is not apparent how Rabobank could be liable for anything Mr Nevison said or did and Mr Nevison is not a party. Also, I do not understand how what Rabobank is alleged to have intended “after the mediation” is relevant to any representation made before or at the mediation. See also [12] of the February judgment.

45    Para 12: the rolled-up particulars are impossible to follow. 12(a) must be an alternative to the construction for which the Stuarts contend in paragraph 4 but is not expressed as such. 12(c) and (d) must depend on some material facts but none are given. 12(e) presumably relates to specific clauses of the deed but none are identified. Otherwise the “offers” are unidentified, the “refusals” are unidentified, as is the “refusing to make good”. 12(f) involves a welter of undifferentiated propositions, with no material facts in support. 12(g) does not identify the allegedly unintelligible provisions. What Rabobank “claimed” is not identified. The paragraph is rolled-up with a point of construction, which is then itself rolled into an unclear point of fairness. 12(h) fails to plead what the Stuarts were told, when they were told it and by whom, or what they understood. 12(i) depends on other provisions already discussed. 12(j)’s purpose or function in the case is obscure. 12(k) adds nothing.

46    Para 13: insofar as not subject to the problems already noted, the “conduct” is not identified. Nor is it apparent what “since that time” means.

47    Paras 14 and 15: are beyond understanding.

Part C – principal claims

48    Paras 19 to 21: identify representations as contractual terms without any material facts to found their implicitly alleged incorporation into the contract. If it is alleged that representations form part of a contract, it is necessary to identify the facts, matters and circumstances by which it is alleged that the statements were promissory. In any event, the precise terms are not pleaded so conduct in breach remains unclear. Material facts are not pleaded, but apparently immaterial facts are (for example, about no default notices and diary notes in 20(b)). 20(c) cannot be a particular to 20. 21(i) to 21(k) seem to be new causes of action embedded in particulars.

49    Para 22: how the suitability term became a term is unclear. Again, the facts, matters and circumstances by which it is alleged that the statements were promissory remain obscure. The actual term is itself also unclear. The particulars are so compressed as to be unintelligible, and raise multiple other allegations unrelated to the alleged term.

50    Para 23: the breaches are not identified. Assuming that the paragraph is intended to refer back to paras 20 to 22 all of the problems with those paragraphs are engaged in the sense that, without knowing the matters discussed above, undifferentiated allegations of breach of contract are meaningless.

51    Paras 24 to 28: it is not clear why the alleged conduct is said to be in breach of cll 2 and 25 of the Code of Banking Practice or why the Code is incorporated as part of a contract. It is also not apparent why Rabobank is said to have been contractually bound to accept the Evergreen offer.

52    Paras 29 and 30: these paragraphs were withdrawn in the written submissions.

53    Para 31: one question is which contract? There are various collateral contracts and oral agreements scattered throughout the pleadings. How is it said that Rabobank was contractually bound to do the amorphous and vague things identified? The particulars also do not seem to relate to the pleading at all.

54    Para 32: again, one question is what breach? It is not clear that the “breach” referred to is conduct described in the immediately preceding paragraph. This is especially so when no terms of any contract have been identified (apart from cl 25 of the Code of Banking Practice, although it is unclear how that was incorporated into any contract between the parties) and the conduct complained of is the same conduct said to have been in breach of various other contracts.

55    Paras 33 and 34: depend on the earlier pleadings.

56    Para 35: the claims are seriously deficient, even when read with paragraphs 36 to 39 because, at the least (i) all of the alleged representations are rolled into one paragraph and it is not apparent who is said to have represented what or when they did so, and (ii) the nature of the Stuarts’ alleged reliance is unclear including but not limited to what they understood when, whether they relied on all alleged representations jointly or some or one only at different times and what they would have done differently, if anything, which are all material facts to the claims for damages.

57    Para 36: see the discussion relating to para 35. Further, the reference in particular (a) to Rabobank having “opted to terminate” is not logically connected to the claim made.

58    Para 37: see the discussion relating to para 35. Further, the paragraph identifies financial hardships faced by the Stuarts and claims that Rabobank performed no suitability assessments but says nothing about why the Stuarts hardships or the alleged lack of a suitability assessment means that the products provided were unsuitable.

59    Para 38: deals with the alleged “15 years finance guarantee” misrepresentation. It claims Rabobank did not provide credit for 15 years on the terms represented but withdrew the credit facility before 15 years had elapsed. It remains unclear why Rabobank was not entitled to do this in all the circumstances but, for present purposes, the lack of any material facts relating to what the Stuarts understood, when they so understood it, and what they say they would have done differently is critical.

60    Para 39: follows from paras 35 to 38. Contrary to the submissions for the Stuarts, the mere assertion that loss was suffered “by” conduct alleged in paras 35 to 38 is not sufficient. The material facts said to constitute reliance (as opposed to a mere assertion of reliance one, another or all of the representations) and the effect of the alleged representations on the Stuarts are essential without which the claim for damages cannot be sustained, and they must be pleaded.

61    Paras 40 and 41: depends on a rolled-up series of allegations of matters already discussed, suffering from the same inadequacies.

62    Paras 42 and 43: is linked to earlier inadequate pleadings.

63    Paras 44 to 49: are unintelligible. They deal with an alleged breach of a contract for credit that would assist in obtaining a further restocking loan from “QRAA”. What is QRAA? What contract? How did it come about? What are its terms? Why was Rabobank not entitled to change its position on the Stuarts’ credit limit and plans? Further breaches of cll 2 and 25 of the Code of Banking Practice are alleged but again it is unclear which parts of those clauses could be relevant, if any. The pleadings assume the Code is applicable and contractually binding but no facts supporting that assumption are apparent.

64    Para 49: depends on paragraphs 44 to 48.

65    Paras 50 to 56: why Rabobank was bound by to provide financial support for the carbon abatement interest scheme is unclear, as is how this made anything said earlier misleading.

66    Paras 57 and 58: it is unclear if yet another contract, but this time relating to the carbon abatement interest scheme, is being alleged. If so, what was the consideration and what were the terms? Without this, there can be no meaningful claim of breach of contract.

67    Para 59: again, this assumes another contract relating to the carbon abatement interest scheme, the existence and terms of which are entirely unclear, so that the allegation of breach is meaningless. It is also not apparent why the alleged contract included as contractual terms cll 2 and 25 of the Code of Banking Practice.

68    Para 60: depends on paras 58 and 59.

69    Paras 61 and 62: the relevant contracts and contractual terms are not identified. The claims concern allegedly excessive interest charges between 2005 and 2012 said to be in breach of contract, again without identifying what contract or contractual term applied over the 7 year period being placed in issue.

70    Paras 63 to 69: as previously noted to the Stuarts, these claims cannot be made at all unless the receivers are joined. The alleged agency of the receivers in para 64 does not remove the need for their joinder and in any event is not supported by any fact other than the lawyers in common. The alleged breach of contract in para 65 is not supported by identification of the contract or the term said to have been breached. The alleged breach of duty in para 64 is entirely obscure. The particulars have nothing to do with the alleged “true value” of the property. As to para 66, the legal and factual foundation by which the receivers were allegedly bound not to sell the property other than for the valuation price is not apparent. Para 67 does not assert any fact which would make Rabobank liable for any excessive charges by the receivers (confirming that joinder of the receivers would be necessary for these claims to proceed).

Conclusions

71    I am unable to identify any practical and just alternative to summary dismissal of the proceeding. The costs order I made on 5 February 2018 did not and the further costs orders I could make in connection with further versions of the statement of claim would not ameliorate this injustice.

72    For the reasons given above, the Stuarts cannot be granted leave to rely on the proposed fourth further amended statement of claim and the proceeding should be summarily dismissed.

Associate:

Dated:    17 September 2018