FEDERAL COURT OF AUSTRALIA

Mandhan v Toyota Finance Australia Limited [2019] FCA 2124

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to refile earlier affidavits affirmed by Mrs Agammya B Mandhan with certifications of the annexures which comply with the Federal Court Rules 2011 (Cth) and all other legislative requirements.

2.    The applicant’s Interlocutory application dated 10 July 2019 be otherwise dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the Interlocutory application.

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

REASONS FOR JUDGMENT

BESANKO J:

1    Mr Sammar B Mandhan brings a proceeding against Toyota Finance Australia Limited (Toyota Finance) in this Court in which he seeks various forms of relief. Mr Mandhan represents himself. As will become clear, that at times has caused difficulties in discerning precisely what it is that Mr Mandhan is alleging or claiming. I have on occasion suggested to Mr Mandhan that he seek legal assistance.

2    On 10 July 2019, he brought an Interlocutory application seeking various orders against the respondent.

3    The first order (or group of orders) sought by Mr Mandhan is in the following terms:

1.    Applicant/Cross-Respondent is seeking summary dismissal in relation to the cross claim lodged by respondent/cross-claimant via its legal counsellor Thomsan Geer which the applicant/Cross-Respondent is standing to prove with evidence that the cross-claim is started for wrongful purpose and is an abuse of process on the basis;

i.    Toyota Motor Corporation, Toyota Finance and Peter Kittle Toyota with agreement is a party to direct and procure the commission of wrongful act by fraudulently misrepresenting applicant’s provided information to deliberately cause damage to the applicant and made the applicant a financial debtor by deception by refraining itself from reasonably inquire and verify the important qualifying element of the fact, which was deliberately overridden, so as the credit applied can be approved.

ii.    Section 125 of the evidence act 1995, were evidence is adduced of the action of respondent and its legal counsellor in relation to furtherance of commission of fraud that renders a person to a civil penalty, then the client legal privilege stand lost.

    Section 57 of the evidence act 1995, were the determination of common purpose (whether to effect an unlawful conspiracy) by client and its lawyer may be used by the Honourable Federal Court in determining whether the common purpose existed.

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4    On the face of it in this “order”, Mr Mandhan seeks the summary dismissal of the cross-claim brought by Toyota Finance. However, as he developed his arguments in oral submissions, he went further than this and, in fact, sought a determination of his claim.

5    Mr Mandhan raised two matters. First, he contended that Toyota Finance could not bring their cross-claim seeking payments under a loan agreement because it had agreed not to seek payment of the required monthly repayments until Mr Mandhan had obtained employment. That agreement was reached during a telephone conversation on 27 September 2018 between Mr Mandhan and an employee of Toyota Finance. The agreement means, so Mr Mandhan contends, that he had not failed to make monthly repayments under the loan agreement and Toyota Finance is unable to bring enforcement proceedings against him. The response by Toyota Finance assumes that the conversation alleged by Mr Mandhan took place. Toyota Finance submits that an agreement to cease making direct debits on his account is quite different from an agreement not to enforce Mr Mandhan’s obligation to make monthly repayments. In order to make an order for summary dismissal or judgment of a claim, the Court must be satisfied that there is no reasonable prospect of the proceeding being successful (Federal Court of Australia Act 1976 (Cth), s 31A). I agree with the submission made by Toyota Finance that the position is not sufficiently clear for an order to be made for summary dismissal of judgment of its cross-claim and the matter Mr Mandhan raises is a matter for trial.

6    Mr Mandhan’s second argument was, in effect, that his claim against Toyota Finance should succeed. In essence, he claims that had Toyota Finance conducted proper inquiries it would not have made the loan to him. He elaborated on the matters which gave rise to the obligation to inquire and the inquiries which should have been made. He suggested that the failure to inquire was serious and referred to it as involving misrepresentations and fraud. The matters which Mr Mandhan raises involve factual matters which are hotly contested. They are matters for trial and not for summary judgment.

7    I refuse the “orders” sought in paragraph 1 of Mr Mandhan’s Interlocutory application. Before leaving this paragraph, I should record the fact that Toyota Finance were given the opportunity to file further affidavits dealing with a matter raised in argument and Mr Mandhan was given the opportunity to file affidavits in response. That matter concerned the quantum of the monthly expenses which formed the basis of Toyota Finance’s consideration of Mr Mandhan’s loan application. The general expenses referred to in the documentation were $692 per month, and later $451 per month. The affidavit of Mr Steven Benyamin addresses the use of the Household Expenditure Measure by the respondent. I note Mr Mandhan’s affidavit in reply.

8    In paragraph 2 of the Interlocutory application, Mr Mandhan seeks the following order:

2.    Leave to amend and submit Agammya B Mandhan’s affidavit to comply with Federal Court Rule 2011 and Evidence Act 1992

9    This paragraph relates to an existing affidavit(s) filed by Mr Mandhan’s wife. Mr Mandhan is concerned that the annexures to the affidavit have not been properly certified. He wishes to file a replacement affidavit which will contain the proper certifications. Toyota Finance does not oppose Mr Mandhan being given the opportunity to do this.

10    The next order sought by Mr Mandhan is designated paragraph 2.1. It is in the following terms:

2.1    Leave to addition names for cross examination at the time of trial

    From Thomsan Geer Michael O'Donnell and Viki Sanderson

    From TFAL anyone who has particular knowledge about the application and approval process of a credit application

    From TFAL or PKT or from Toyota Motor Corporation anyone who has particular knowledge to provide clarity about interlinked relationship between TFAL, Toyota Motor and Peter Kittle Toyota

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11    Mr Mandhan has brought this proceeding against Toyota Finance. He mentioned in the context of this paragraph a desire to join Thomson Geer. In his most recent affidavits, he suggests that there was a conspiracy involving Toyota Motor Corporation, Toyota Finance, Peter Kittle Toyota and, as I understand it, Thomson Geer. I will not allow Mr Mandhan to seek to join parties by side wind. If he applies to join other parties, then he should do so directly. It may be that joinder would be refused on the basis that there is no arguable case against the proposed respondent. Leaving these matters to one side, there is no basis upon which I could make the orders referred to in paragraph 2.1, both as a matter of law and as a matter of fact.

12    In paragraph 3 of the Interlocutory application, Mr Mandhan seeks the following “order”:

3.    Additionally requesting the Honourable federal Court to examine to confirm s35 of the crimes act 1914 false testimony by TFAL, PKT and Thomsan Geer to conspire to bring false accusation on the applicant by breaching s41 to defeat justice breach of s42 of Crimes Act-1914.

Requesting the Honourable Federal Court to make the proposed summary disposal of cross claim by the respondent through its lawyer Thomsan Geer based on the finding and establishing of existence of fraud and conspiracy from the start of Credit Application submitted by the applicant to furtherance of commission of fraud by Thomsan Geer for its client via cross-claim. Once stands proven with relevant evidence beyond any reasonable doubt.

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13    Mr Mandhan did not say a great deal in support of this “order”. He suggested that there was a fundamental inconsistency between his account and the account of the witnesses put forward by Toyota Finance. He contends that one of the parties is lying. If it is the witnesses to be called by Toyota Finance, then there should be, as Mr Mandhan put it, “repercussions”. It is not appropriate to make any orders in terms of the “order” sought in paragraph 3. It is not for Mr Mandhan to bring proceedings under the Crimes Act 1914 (Cth). If there are any consequences of the type identified in paragraph 3 of the Interlocutory application, they will follow from whatever findings I make in this proceeding.

14    Other than an order with respect to his wife’s affidavits, the Interlocutory application dated 10 July 2019 will be dismissed. The appropriate order as to costs is that the applicant must pay the respondent’s costs.

Associate:

Dated:    18 December 2019