Federal Court of Australia

Clark v National Australia Bank Limited [2025] FCA 627

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) the claim brought by the applicants in their originating application filed on 27 March 2024 and amended statement of claim filed on 16 September 2024 is summarily dismissed.

2.    The notice to produce filed by the applicants on 9 October 2024 is set aside.

3.    The applicants are to pay the respondent’s costs of its interlocutory application accepted for filing on 22 October 2024.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    By originating application and statement of claim filed on 27 March 2024 the applicants, Renae Louise Clark and David Wayne Clark, commenced this proceeding against the respondent, National Australia Bank Limited (NAB). The applicants seek damages for alleged breaches by NAB of the Australian Consumer Law being Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL), the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the Oaths Act 1900 (NSW) as well as equitable compensation for their alleged losses and damages at common law. On 16 September 2024 the applicants filed an amended statement of claim (ASOC).

2    By interlocutory application accepted for filing on 22 October 2024, NAB seeks an order pursuant to r 26.01 of the Federal Court Rules 1976 (Cth) that the proceeding be dismissed or, in the alternative, an order pursuant to r 16.21 of the Rules that the ASOC, or such parts of it as the Court deems appropriate, be struck out.

The amended statement of claim

3    The ASOC is lengthy, running to 63 pages. I set out below a summary of the material facts as pleaded and the principal contentions made in it.

4    In the “relevant period” the applicants carried on a “Property Business” described as the “strategic acquisition of both real property and established businesses with the express intent of effecting improvements, developments, and subsequent resale”.

5    The Property Business was conducted through “associated entities”, Voxxy Pty Ltd, the JTT Trust, Silver Beach Enterprises Pty Ltd (SBE) and the SBE Trust.

6    As at February 2007:

(1)    the applicants owned seven properties as part of the Property Business, all situated in New South Wales;

(2)    the applicants had two home loans with NAB: loan account 54-696-7280 in the sum of $400,000; and loan account 54-611-1853 in the sum of $600,000 (together, Home Loans). The Home Loans were secured by mortgages over two of Mr and Mrs Clark’s properties in New South Wales situated at 212 Prince Charles Parade, Kurnell (Kurnell Property) and 129 Alkira Avenue, Cessnock (Cessnock Property); and

(3)    Voxxy had a line of credit facility with NAB in the sum of $72,000 (Voxxy LOC) secured by way of personal guarantee from Mr and Mrs Clark and a mortgage over the Kurnell Property.

7    Between 6 June 2007 and 1 August 2007 Mr and Mrs Clark enrolled in an educational mentoring program in the United States of America (USA) and engaged Gary Eldred to investigate potential properties in the USA to expand the Property Business.

The JTT Account and the Duplicate Account

8    On or about 16 July 2007, Mrs Clark instructed Graeme Wilson, Mr and Mrs Clark’s NAB bank manager, to open an account for Voxxy as trustee of the JTT Trust (JTT Account). At a meeting on the same day between Mrs Clark and Mr Wilson, Mrs Clark told Mr Wilson that she and Mr Clark were to travel overseas and that while overseas they would deposit approximately $500,000 into the JTT Account. The JTT Account was opened and during the meeting Mr Wilson gave Mrs Clark a business card with details of the JTT Account written on it.

9    The following day, 17 July 2007, after speaking with Mrs Clark by telephone, Corinne Kelly of NAB opened another account in the name of the JTT Trust (Duplicate Account) and on 18 July 2007 Ms Kelly sent details by email of the Duplicate Account to Mrs Clark.

10    Mrs Clark believed that the Duplicate Account details provided by Ms Kelly were the same as the JTT Account details provided by Mr Wilson.

11    On 18 July 2007 Mrs Clark provided the Duplicate Account details to her and Mr Clark’s conveyancer and instructed her to deposit the funds from a property settlement of approximately $540,000 (Settlement Funds) into that account. On 20 July 2007 the conveyancer deposited the Settlement Funds into the Duplicate Account. Those funds were cleared and available to use by 23 July 2007.

12    On or about 22 July 2007 Mr and Mrs Clark departed for the USA. Between 24 and 30 July 2007 they contacted NAB on at least three occasions seeking to locate the Settlement Funds because they could not see them in the JTT Account.

13    On 1 August 2007 Mr and Mrs Clark became aware that the account details in the email from Ms Kelly were not the details for the JTT Account and on the same day Mr Wilson informed Mrs Clark that the Settlement Funds had been located. At the time $477,407.59 was transferred from the Duplicate Account to the JTT Account.

14    Mr and Mrs Clark allege that because the Settlement Funds were held in the Duplicate Account, they could not provide proof of funds while in the USA for any offers they made to purchase property to be accepted.

15    On or about 7 August 2007 Mr and Mrs Clark signed a letter of offer for three properties in the USA, which were accepted, but the contracts for the purchase of those properties did not complete.

The rollover of the Home Loans

16    On 16 July 2007, when Mr Wilson met with Mrs Clark, Mr Wilson also told Mrs Clark that “their loans” would be due for renewal in August 2007 when they returned from the USA and that he would get them to sign paperwork to rollover those loans.

17    From about 6 August 2007 the applicants sought to change their business banking relationship manager from Mr Wilson to a manager of another branch because they had lost confidence in Mr Wilson and/or the NAB Miranda branch generally.

18    On or about 10 August 2007 the applicants informed NAB that they had pre-approval to refinance with HSBC Banking Corporation. NAB proposed that the applicants stay with it if they could price match the rates offered by HSBC.

19    On 22 August 2007 the Home Loans expired.

20    The applicants contend that from about August 2007 to June 2008 Mr Wilson failed, refused or neglected to release the applicants’ file to an alternate business relationship manager, take steps to rollover or renew the Home Loans in a timely manner and/or approve the rollover or renewal of the Home Loans.

21    On or about 2 June 2008 NAB issued default notices for the expired Home Loans and on 10 June 2008 NAB placed a stop on Mr and Mrs Clark’s NAB profiles. Mr and Mrs Clark contend that, while the stop was on their accounts, they were unable to make payments into the Home Loan accounts or out of their transaction accounts, among other things.

22    On or around 17 June 2008 HSBC advised Mrs Clark that it could not proceed with the refinance because of the Home Loans.

Enforcement action

23    On or about 29 January 2009 NAB registered a default listing in respect of Mr Clark’s credit card on his credit file with VEDA Advantage (Default Listing) and assigned the debt owing by Mr Clark on his NAB credit card to Lion Finance Pty Ltd.

24    On or about 5 March 2009 NAB commenced a proceeding in the Supreme Court of New South Wales seeking repayment of the Home Loans and the Voxxy LOC and possession of the Kurnell Property and the Cessnock Property, among other relief (Supreme Court Proceeding).

25    In May 2009 NAB took possession of the Cessnock Property.

26    On or about 17 September 2009, NAB caused the Default Listing to be removed.

27    On 8 February 2011 Mr and Mrs Clark lodged a complaint with the Financial Ombudsman Service (FOS). On 31 October 2012 the FOS complaint was closed without a determination as Mr and Mrs Clark opted not to submit losses to FOS when requested.

28    On 14 December 2012 NAB obtained default judgment for possession of the Kurnell Property in the Supreme Court Proceeding. Mr and Mrs Clark subsequently filed a notice of motion in the Supreme Court Proceeding seeking to set aside the default judgment, which was dismissed on 3 October 2013.

29    On or about 25 June 2014 NAB served bankruptcy notices on Mr and Mrs Clark.

30    On 14 October 2014 NAB filed a creditor’s petition in the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Div 2)) (Circuit Court Proceeding). Mr and Mrs Clark filed a notice setting out grounds of opposition in the Circuit Court Proceeding. At [142] of the ASOC Mr and Mrs Clark set out the bases upon which they opposed the creditor’s petition:

The Clarks opposed the [Circuit Court Proceeding] on the basis that:

(a)    They objected to the validity of the NABs Bankruptcy Notice No BN 172742 issued on 25 June 2014

(b)    They objected to the validity of the NAB’s Bankruptcy Petition documentation

(c)    The Clarks could pay debts

(d)    They denied they were served the Bankruptcy Notice

(e)    They were in touch at all times with the NAB

(f)    The petition was out of date

(g)    The Clarks intended to file a Statement of Claim as counterclaims or cross claims that applied for larger monetary relief which exceeded the Federal Circuit Court Bankruptcy Claim

(h)    The mortgage insurance was taken out on loans

(i)    The NAB sold properties and had failed to provide proceeds of sale of properties or account for proceeds

(j)    The Clarks intended to have default judgement set aside

(k)    That the Court will be satisfied that there are other sufficient causes why the Court ought to not make a sequestration order

(l)    Renae Clark filed an affidavit in Support of Notice stating grounds of opposition to the application, interim application or petition No SYG2846 of 2014

(Particulars omitted).

31    Mr and Mrs Clark contend that an employee of NAB made an affidavit in the Circuit Court Proceeding which failed to disclose a number of things.

32    On 19 November 2015 the Circuit Court made sequestration orders in relation to the estates of Mr and Mrs Clark.

33    On or about 8 November 2018 NAB agreed to annul Mr and Mrs Clark’s bankruptcies by consent and to pay associated costs. NAB had failed to provide the sequestration orders made by the Circuit Court to the Official Receiver within the required two days and instead provided them some 245 days late.

Concealed documents

34    Mr and Mrs Clark contend that they have made numerous requests of NAB for the provision or production of documents to them and that NAB has failed to respond to those requests. However, on 30 October 2018 they were provided with further documents by NAB in relation to their accounts (referred to by Mr and Mrs Clark in their ASOC as Concealed Documents). Mr and Mrs Clark contend that, despite release of the Concealed Documents, there remain documents to which they have been refused access.

35    Mr and Mrs Clark contend that NAB should have been aware that the Concealed Documents were in its possession, that those documents provided evidence of certain things and that they did not have access to information which demonstrated that NAB had acted contrary to its obligations to act in good faith and in their best interests, among other things.

Legal principles

36    Section 31A of the Federal Court of Australia Act 1976 (Cth), titled “Summary judgment”, relevantly provides that:

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

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

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

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

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

37    Rule 26.01 of the Rules provides that a party may apply to the Court for an order that judgment be given against another party because, among other things, the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding or no reasonable cause of action is disclosed: rr 26.01(1)(a) and (c).

38    Rule 16.21 of the Rules provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading, among other things, fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading or is otherwise an abuse of the process of the Court.

39    The principles relevant to the power to dismiss a case summarily were recently summarised in Quach v McIntyre [2024] FCA 564 at [21]-[22]:

21    The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [60], although it does not require that the proceedings be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24]; [53] – [60]. The critical question is whether the moving party has persuaded the Court that the opposing party has no reasonable prospect of success. The requirements for summary dismissal were described by French CJ and Gummow J in Spencer at [22] in the following way:

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

22    In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [27]-[29], McKerracher J stated:

27    Section 31A was inserted into the Federal Court Act to give the Court greater flexibility in granting summary judgment. Its terms are reflected in r 26.01 of the Federal Court Rules. Save that s 31A(3) is not contained in r 26.01(1), the section and the rule otherwise contain identical tests. Accordingly, the authorities on s 31A are useful in considering r 26.01.

28    The effect of s 31A was to lower the bar for a successful application for summary judgment or summary dismissal from the common law principles stated by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91) and by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 (at 129-130). In Spencer v Commonwealth (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ (at [53] and [60]), the High Court recognised the radical departure of s 31A from the common law by the introduction of the standard of ‘no reasonable prospects of success’. The majority said, amongst other things, that (at [50]-[53], [58]-[60]):

(a)    consideration of the operation and application of s 31A must begin from consideration of its text. The central idea about which the provisions pivot is ‘no reasonable prospect’. The choice of the word ‘reasonable’ is important;

(b)    effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’. It is important to recognise that the combined effect of subs (2) and subs (3) is that the inquiry required is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail;

(c)    in this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail;

(d)    with respect to how the expression ‘no reasonable prospect’ should be understood, no paraphrase of the expression would provide a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The creation of a lexicon of words or phrases to capture the operation of the statutory phrase should be avoided;

(e)    in many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’. But none of those expressions should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A;

(f)    rather, full weight must be given to the expression as a whole. The Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success; and

(g)    the power to dismiss an action summarily is not to be exercised lightly.

29    Other principles that have been identified in relation to s 31A include that:

…

(b)    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: “Sam Hawk” v Reiter Petroleum Inc (2016) 246 FCR 337 per Kenny and Besanko JJ at [269]), cited in Buurabalayji (at [3]);

(c)    an application for summary dismissal is likely to succeed where the applicant’s success in the principal proceedings relies upon a question of fact that can truly be described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, an application for summary dismissal is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [47]);

(d)    similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed if it is able to demonstrate to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority: Cassimatis (at [48]); see also: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [14]- [15]): s 31A is amenable to resolving straightforward questions of law; SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]): summary judgment may still be appropriate if a question raised is of some complexity; McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited): s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial;

(e)    a Court should be particularly cautious about ordering summary determination where proceedings involve questions of fact and law, or mixed questions of fact and law, as these combinations usually give rise to some complexity that would require a full hearing. In such circumstances the moving party, as a general principle, would need to show a substantial absence of merit on either of the question of fact or law concerned, or on the mixed question: Cassimatis (at [49]); and

(f)    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]), cited in Buurabalayji (at [3]). See also Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J (at [6]).

40    In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 a Full Court of this Court (Perram, Dodd-Streeton and Griffiths JJ) observed at [42], by reference to the analysis undertaken by the primary judge, that “[t]he authorities indicated that a reasonable cause of action was one with some chance of success having regard to the allegations pleaded, even if weak; and that the strike out power should be exercised only in a plain and obvious case, where it was obvious that no reasonable amendment could cure the alleged defect and there was no reasonable question to be tried”.

41    A question arises as to whether the applicants’ causes of action are time barred by reason of the operation of s 14 of the Limitations Act 1969 (NSW) or the applicable limitation periods in the ACL or ASIC Act. In Reilly v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1502, in the context of consideration of the principles in relation to an application to strike out and re-plead under r 16.21 and r 16.23 of the Rules respectively, O’Bryan J relevantly observed at [19]-[21]:

19    In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (Wardley), the plurality of the High Court (Mason CJ, Dawson, Gaudron and McHugh JJ) expressed the strong view that it is undesirable for certain types of limitation questions to be decided in interlocutory proceedings. Their Honours stated (at 533):

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

20    Wardley was concerned with the limitation period in s 82(2) of the Trade Practices Act 1974 (Cth) (TPA), which is the statutory equivalent to s 12GF(2) of the ASIC Act, relied on by the applicants in this proceeding in respect of the misleading conduct claim and the unconscionable conduct claim. Section 82(2) provides that an action under s 82(1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued. A cause of action under s 82(1) accrues when loss or damage is sustained by conduct done in contravention of a relevant provision of the TPA (now called the Competition and Consumer Act 2010 (Cth) (CCA)). Thus, to apply the limitation period in s 82(2), it is necessary to determine when loss or damage was sustained by the contravening conduct. That question may involve questions of fact, as well as questions of law, as illustrated in Wardley. It is when factual findings may be necessary in order to apply the limitation period in s 82(2) that it is inappropriate to determine such question on an interlocutory basis.

21    However, the same caution need not apply where the nature and incidence of the alleged loss and damage is clear and the application of the limitation period turns upon a question of law. As the Full Federal Court (Davies, Burchett and Hill JJ) observed in Jobbins v Capel Court Corp Ltd (1989) 25 FCR 226 at 231, “where it is clear that an applicant cannot succeed upon the case pleaded because s 82(2) will be a complete answer to the claim, the court should not merely defer the inevitable”…

Consideration

42    NAB submits that the principal reasons why the claims should be summarily dismissed or the ASOC struck out are:

(1)    most of the pleaded causes of action are statute barred;

(2)    to the extent they are not statue barred, the pleading discloses no reasonable cause of action;

(3)    there was no fraudulent concealment of the claims; and

(4)    Mr and Mrs Clark lack standing to bring some of the claims.

Are any of the claims statute barred?

43    Mr and Mrs Clark accept that some of their claims are statute barred and that s 55 of the Limitation Act does not apply to the claims made for breach of the ACL or ASIC Act. Conversely, Mr and Mrs Clark do not accept that their claims alleging negligence, unconscionable conduct, false or misleading representations, equitable fraud, conspiracy to defraud or injure by unlawful means, breach of statutory duty and breach of the Oaths Act are statute barred because of the operation of s 55 of the Limitation Act.

44    Commencing at ASOC [177] Mr and Mrs Clark allege that NAB conspired with various of its officers to defraud or injure them by, in summary, withholding key documents relating to NAB’s improper management of their accounts and thereby denying them the opportunity to seek damages for the harm caused and to properly defend proceedings brought against them. Relevantly, at ASOC [183] Mr and Mrs Clark plead that, because they received the “Concealed Documents” from NAB on 30 October 2018, their causes of action accrued “on a date no earlier than 30 October 2018”.

45    Section 55 of the Limitation Act relevantly provides:

(1)    Subject to subsection (3) where—

(a)    there is a cause of action based on fraud or deceit, or

(b)    a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

(2)    Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.

…

46    If Mr and Mrs Clark cannot establish the necessary fraudulent concealment of the cause of action based on an alleged fraud, then a six year limitation period applies: see s 14, Limitation Act.

47    C v Mirror Group Newspapers, Frisby v Thoedore Goddard & Co (Supreme Court of Judicature, Court of Appeal (Civil Division)) 27 February 1984, reported in The Times, 7 March 1984) records the Court of Appeal’s decision in the following way:

In considering whether, in an application to strike out a claim, reliance could be placed on an alleged concealment of the right of action under section 26 of the Limitation Act 1939, it was to be remembered that a right of action arose out a basic set of essential facts and although that right could be concealed by the hiding of one or more of those facts, any concealment of evidence was something wholly different that related merely to the proving of the case rather than to the existence of a right of action, Sir John Donaldson, Master of Rolls, sitting with Lord Justice Fox and Lord Justice Stephen Brown in the Court of Appeal, held on February 27.

The MASTER OF THE ROLLS said that having a right of action and knowing that you had it was one thing; being able to prove it was another. Bridging that gap, when all or part of the evidence was or might be in the hands of the defendant, was the function of discovery.

48    In Ag-Exports (Australia) Pty Ltd v Export Finance and Insurance Corporations [2003] NSWSC 175 in considering the operation of s 55 of the Limitation Act, Simpson J said at
[69]-[70]:

69    Just what the legislature intended by its reference in s55 to the fraudulent concealment of a cause of action is not spelled out in the statute. I accept that a distinction is to be drawn between concealment of a cause of action and concealment of a fact which might provide evidence to support a cause of action. I do not accept that the two are necessarily mutually exclusive: indeed, it seems to me, concealment of a cause of action would almost invariably, if not invariably, entail concealment of facts that would provide evidence to support the cause of action. The converse is, of course, not necessarily the case. Concealment of an evidentiary fact is not necessarily concealment of a cause of action.

70    In United Kingdom authorities (construing comparable, but far from identical, legislation) an approach has been taken that starts with the proposition that a cause of action arises out of “a basic set of essential facts” and that a cause of action could be concealed by concealing one or more of those basic facts. That is to be contrasted with concealing the evidence establishing the causes of action: see C v Mirror Group Newspapers [1997] 1 WLR 131; Frisby v Theodore Goddard & Co, The Times, 7 March 1984; and Applegate v Moss [1971] 1 QB 406. In a case closer to home (Skrijel v Mengler & Ors [1998] VSC 71, unreported, Supreme Court of Victoria) Eames J noted that the United Kingdom legislation provided for postponement of the statutory bar “where any fact relevant to the plaintiff’s right of action” was concealed, a provision which Eames J describes as “more favourable” to a plaintiff than the Victorian section his Honour had under consideration (s 27 of the Limitation of Actions Act 1958, which is set out in paragraph 17 of the judgment and bears greater similarities to s55 than does the United Kingdom section). Nevertheless, I do not think that the difference between the United Kingdom and NSW legislation diminishes the applicability of the approach taken in the United Kingdom to the approach that should be taken to the local section. If a basic fact essential to the cause of action has been fraudulently concealed, then, in my opinion, s55 operates to postpone the running of the limitation period. That is not the same as saying that concealment of an essential evidentiary fact so operates, although, for the moment, I am not sure that there exists any practical distinction.

49    To like effect in Clurname Pty Limited v McGraw-Hill Financial, Inc [2017] FCA 1319 Wigney J, in considering an application to amend a pleading to include a pleading of deceit, said at [77]-[79]:

77    There could be little doubt that the proposed new claim in deceit falls within s 55(1)(a) of the Limitation Act. Accordingly, the six year limitation period, which would otherwise commence to run when the cause of action accrued, would be postponed until the time that Clurname first discovered, or should with reasonable diligence have discovered, the alleged fraud or deceit. It should be noted that Clurname also relied on s 55(1)(b) and contended that the causes of action it had against Standard & Poor’s were fraudulently concealed. For present purposes, however, it is sufficient to consider the potential application of s 55(1)(a).

78    A person can be said to have relevantly discovered a fraud if they know the facts capable of proving a prima facie case: Feiglin v Ainsworth [2014] VSC 376. It would follow that it can be concluded that a person should, with reasonable diligence, have discovered a fraud if the person would have discovered facts capable of proving a prima facie case if they had exercised reasonable diligence.

79    What reasonable diligence would require must be evaluated by reference to the particular facts and circumstances of the case. Ordinarily, before a person could reasonably be expected to pursue an inquiry with a view to ascertaining whether a fraud has been perpetrated, something must have put the person on notice, or raised a suspicion, in respect of that matter: CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (unreported, Supreme Court of Victoria, Batt J, 3 August 1995) at 121-2; Clark v Clark (1882) 8 VLR (E) 303 at 328. Even then, the person might not reasonably be expected to do everything possible using all means at their disposal: Peco Arts Inc v Hazlitt Gallery Ltd [1983] 1 WLR 1315 at 1322-3. The type of enquiry that might be expected must be assessed having regard to how a person carrying on a business of the relevant kind would act if they had “adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency”: Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400 at 418. And the enquiry that might be expected must be one that, if made, would have led to the discovery of the facts revealing the fraud: CE Heath at 121-2.

50    The question that arises is whether the applicants have any prospect of proving at trial that by engaging in the conduct alleged at ASOC [149] of failing, neglecting or refusing to respond to document requests (which NAB denies), NAB fraudulently concealed from them basic facts essential to the causes of action which they have pleaded.

The parties’ submissions

51    NAB submits that Mr and Mrs Clark will not be able to make good at trial the proposition that, by failing, neglecting or refusing to respond to document requests (which NAB denies), NAB fraudulently concealed from them basic facts essential to the causes of action which they have pleaded in this proceeding and that Mr and Mrs Clark knew the basic facts essential to each cause of action long before 2018, as is evident from the ASOC itself. NAB also submits that if further evidence was required, the materials relied on by Mr and Mrs Clark in the Supreme Court Proceeding (set out at ASOC [132]) amply demonstrate that they were aware of the basic essential facts by 2013 and that the affidavits of Mrs Clark dated 2 April 2013 and 7 May 2013 (2013 Clark Affidavits) and draft cross-claim and draft defence prepared for the Supreme Court Proceeding set out the vast majority of facts now relied on in the ASOC.

52    Mr and Mrs Clark filed submissions on 31 January 2025 but at the hearing sought and were granted leave to rely on amended submissions dated 4 February 2025, which were shorter and omitted “drafting notes” which were in the original submissions. For the purposes of considering NAB’s interlocutory application and for completeness I have considered both the submissions and the amended submissions filed by Mr and Mrs Clark.

53    Mr and Mrs Clark submit that the 2013 Clark Affidavits do not establish that they were aware of all the essential facts required to commence proceedings in 2013. They contend that the information contained in those affidavits is not even sufficient for Mrs Clark to defend the Supreme Court Proceeding and issue a cross-claim and that Mrs Clark failed on both counts because of the lack of basic essential facts.

54    Mr and Mrs Clark submit that the 2013 Clark Affidavits set out the details of communications with Mr Wilson, their bank manager, the circumstances of the establishment of the JTT Account and the improper creation of the Duplicate Account and subsequent unauthorised transactions, their unsuccessful attempts to obtain the bank statements for those accounts, refinancing of the Home Loans and the steps taken to replace Mr Wilson with an alternative bank manager. They contend that if they had issued a proceeding in 2013, NAB would have applied to have that proceeding struck-out, as it is attempting to do now and it is “nonsensical” to suggest that they had sufficient information in 2013 to commence proceedings. Mr and Mrs Clark observe that NAB does not identify the cause of action that they could have commenced against it in 2013.

55    As to the refinancing of the Home Loans, Mr and Mrs Clark submit that:

(1)    although from 22 August 2007 approval was required for the Home Loans to be extended, from 22 August 2007 to June 2008 they were able to service the debt from the rental income bank account and a flexi savings account which was maintained by them with NAB;

(2)    it was only in June 2008 when NAB wrongfully froze all of their bank accounts that they were unable to continue to service the Home Loans;

(3)    as a result of NAB erroneously freezing their bank accounts Mr Clark could not pay his credit card debt resulting in his bank account being placed in default and listed with VEDA Advantage;

(4)    on 8 July 2008 Mrs Clark sent an email to Jacqui Trajcevska, NAB relieving manager, confirming a conversation she had with Ms Trajcevska that she could attend a NAB branch and deposit funds into their rental income account or savings account which could then be transferred to the Home Loan accounts. However, when Mr and Mrs Clark attended the Caringbah and Cronulla branches of NAB in about July 2008 the teller refused to accept payment into their bank accounts following instructions from Mr Wilson;

(5)    in September 2009 Mrs Clark was informed by Sam Karmel, a NAB staff member, that there was a bank error. However he was unable to confirm this in writing; and

(6)    on or about 15 April 2011 Tina Bui, NAB senior dispute resolution manager, spoke to Mrs Clark and advised her that there was no bank error.

56    Mr and Mrs Clark submit that Ms Bui’s statement contradicted that of Mr Karmel and, in circumstances where there were contradictory statements made by bank officers about whether there was a bank error, it was necessary to obtain documentary evidence of the essential fact before they could commence proceedings against NAB. To that end, Mr and Mrs Clark contend that on 11 December 2024 they received an email dated 23 October 2018 from Rosanne Rose to Joslen Turner, GM NAB Resolve, which stated that:

The notes I have seen indicate that this (‘bank error’) was acknowledged internally with NAB at the time, and the letter to the customers refers to NAB agreeing to remove the listing but not to an “error”.

57    Mr and Mrs Clark submit that they did not find out the essential facts about their accounts until at least 30 October 2018 and only recently on 11 December 2024 and without these facts they could not plead a cause of action and establish a nexus between the facts, causation and damages, which are all essential ingredients of the pleading.

58    Mr and Mrs Clark submit that from about 2013 they sought assistance from numerous law firms but were repeatedly advised that they needed to obtain more evidence, including bank documents and diary notes, before proceedings against NAB could be commenced. They observed that NAB initiated bankruptcy proceedings against them in 2014 shortly after judgment was obtained in the Supreme Court Proceeding and their capacity to pursue legal action was restricted during the period in which they were bankrupts. They note that following an application by NAB their bankruptcies were annulled nearly four years later due to an error by the law firm acting for NAB.

59    Mr and Mrs Clark submit that NAB has not addressed on what basis any legal practitioner would sign off on the commencement of proceedings if key documents were not available to prove the essential facts. They contend that commencing proceedings in those circumstances would expose them and their lawyer to the risk of a costs order. Mr and Mrs Clark submit that based on the known essential facts NAB has not identified any causes of action they could have commenced in 2013. They submit that they did not have the required essential facts to bring a cause of action until at least 2018.

60    Mr and Mrs Clark submit that there was intentional, wrongful and deceitful concealment of documents by NAB from 2007 – 2018 to prevent them from obtaining the essential facts to commence proceedings. They refer to the schedule at ASOC [151] which they say sets out the key documents that NAB concealed from them until 30 October 2018 and September 2020. They submit that the schedule identifies the following five key matters that where not known to them until about 30 October 2018 when documents were provided:

(1)    cancelling Mr and Mrs Clark’s Voxxy LOC by notice dated 3 July 2008 and issuing a default notice on 15 July 2008 in circumstances where, unknown to them until 30 October 2018, on 9 August 2007 approval had been provided by David Bateup, NAB team leader, risk and renewals, to extend the loan until September 2008;

(2)    failing to investigate Mr and Mrs Clark’s complaints concerning Mr Wilson establishing the Duplicate Account which, unknown to Mr and Mrs Clark until 30 October 2018, involved 64 unauthorised transactions. In addition, their banking profile was manipulated for operation of the Duplicate Account and, despite repeated requests, Mr and Mrs Clark did not formally receive copies of the Duplicate Account bank statements until August 2015;

(3)    ignoring Mr and Mrs Clark’s numerous requests for documents until 30 October 2018 when internal emails between NAB staff were handed over which confirmed approval had been given on 31 August 2007 to match the HSBC interest rate on the Home Loans to retain their business;

(4)    failing to remove Mr Wilson as Mr and Mrs Clark’s bank manager, despite serious complaints being made by them about his improper conduct in managing their banking affairs; and

(5)    placing Mr and Mrs Clark in a position of disadvantage through withholding internal emails and diary notes until 30 October 2018 and 7 November 2018 when NAB conceded placing stops on their bank accounts was a “bank error”.

61    Mr and Mrs Clark submit that from 2008 to 2020 they made numerous attempts to obtain essential facts directly from NAB and that they complained to various government agencies and sought to obtain essential facts with the assistance of those agencies but that NAB concealed the essential facts from Mr and Mrs Clark and the government agencies.

The claims are statute barred

62    For the Court to extend time under s 55 of the Limitation Act, Mr and Mrs Clark must establish that there are basic facts essential to their causes of action which were concealed from them and of which they only became aware for the first time in 2018. Basic essential facts are those which a plaintiff must prove to establish a prima facie case.

63    Mr and Mrs Clark say that it is the Concealed Documents, the key matters (see [59] above) and the following facts arising from the Concealed Documents (new facts) of which they were unaware until at the earliest 30 October 2018:

a.    Confirmation of the ‘bank error’ on the Clarks accounts and the serious consequences of those errors, which are at the heart of this case.

b.    Business loan of Voxxy Pty Ltd Rollover signed in August 2007 by David Bateup new exp 09/08 (the other two loans were not rolled over in 2007);

c.    $99,999 withdrawal has been never explained by the NAB and the bank still won’t produce screenshots under current notice to produce;

d.    value withdrawals and value transfers on 23 and 24 July 2007 from Duplicate account ending in 3715 never explained;

e.    [NAB] by senior banker his admission he delayed loan renewal (2007);

f.    Internal emails acknowledging compensation should be offered to the Clarks (2011);

g.    TFN bypass to account setup 3715 - duplication detection (2007);

h.    [NAB’s] internal emails asking if file notes should be handed to FOS (2011) File notes supplied between 2018 to 2020;

i.    [NAB] confirm issued default listing (February 08) not having issued correct default notices prior (2024).

j.    Jaap Jonkman (NAB NSW GM) acknowledges in email communications (2011) that they (NAB) took a property of Clark’s “without consent”.

k.    Steven Valentine had knowledge of file notes, internal email communications, internal findings from 2011 and Voxxy rollover when he signed an affidavit in support of the [NAB’s] Federal Court matter NSD 649 of 2014 dated 8 Oct 2014 and again 23 July 2015 (2018- 2024) and may have misled the court.

l.    Alternative Banker acknowledgement in internal email communications to block transfer of BUI (2008).

64    However, Mr and Mrs Clark knew the basic facts essential to each cause of action before 2018. That is evident from the following matters.

65    First, the ASOC makes it clear. It pleads basic facts essential to the causes of action of which Mr and Mrs Clark were clearly aware prior to 2018.

66    Secondly, the evidence relied on by Mr and Mrs Clark in the Supreme Court Proceeding demonstrates that they were aware of the essential facts as early as 2013. In particular Mr and Mrs Clark tendered and/or relied on various documents in support of their notice of motion to set aside the default judgment filed in the Supreme Court Proceeding on 8 April 2013 which, to a significant degree, relied on the same facts as pleaded in the ASOC, including for example:

(1)    a draft defence which relevantly pleaded that without their knowledge or consent NAB took possession of the Cessnock Property;

(2)    a draft cross-claim which asserts among other things that Mr Wilson wilfully refused to rollover the Home Loans and Voxxy LOC;

(3)    an affidavit sworn by Mrs Clark on 2 April 2013 in which she asserts that NAB’s refusal to proceed with the renewal of the Home Loans and Voxxy LOC “as [NAB] had agreed” and its improper recording of the Default Listing caused her and Mr Clark significant losses and damage; and

(4)    an affidavit sworn by Mrs Clark on 7 May 2013 in which Mrs Clark, in reference to the expiration of the Home Loans and Voxxy LOC on or about 14 August 2007, deposed that she believed that, “had [Mr and Mrs Clark] not been questioning Mr Graeme Wilson as to the whereabouts of [Mr and Mrs Clark’s] missing money and his unauthorised setting up of an additional account”, the Home Loan and Voxxy LOC “would have been rolled over and signed off on by Mr Graeme Wilson without any question” without undergoing a full application process.

67    Thirdly, none of the matters pleaded at ASOC [149]-[151], set out at [34] above or the key matters is a basic fact essential to any of the pleaded causes of action. That is best illustrated by considering each of the causes of action.

68    I commence with the claim in negligence pleaded at ASOC [157] where Mr and Mrs Clark allege that NAB did not act with the due care, skill and diligence of a reasonable banker in dealing with the refinance or rollover of the Home Loans.

69    It was not in dispute that a cause of action founded on tort must be brought within six years from the date on which the cause of action first accrues: see s 14(1)(b) of the Limitation Act. For a tort such as a claim in negligence, actionable only on proof of damage, the cause of action first accrues when loss or damage is sustained: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525 (Mason CJ, Dawson, Gaudron and McHugh JJ), 536 (Brennan J).

70    The relevant conduct the subject of this claim occurred in 2007-2008 (see [8]-[22] above). Mr and Mrs Clark knew from August 2007 that they needed to provide information for the rollover of the Home Loans (see ASOC [81]). For example, by email dated 13 August 2007, Mrs Clark provided Corinne Kelly of NAB with the details of the accounts, including the Home Loans, to be refinanced. Ms Kelly forwarded Mrs Clark’s email to Mr Wilson and Vicki Dunlop. On 14 August 2007 Ms Dunlop informed Mrs Clark, among other things:

We are currently in the process on obtaining a comparable rate provided below, however if the bank is to match these rates we will require your financials in order to proceed. This would mean 2005 & 2006

…

The reason for this is because the current loans will need to be reassessed as the loans will expire on the due date.

…

71    At ASOC [160] Mr and Mrs Clark allege that the loss suffered by reason of NAB’s negligence in dealing with the refinance or rollover of the Home Loans was the loss of the opportunity to refinance the Home Loans with HSBC at the rates and on the terms offered to them. That loss had occurred by 2008 when HSBC informed Mr and Mrs Clark that it could not proceed with the refinance (see [21] above) such that the limitation period expired in 2014.

72    Mr and Mrs Clark were aware of each of the basic facts essential to their claim in negligence well prior to 2018. Upon review, none of the facts set out at [63] above or the key matters is a basic fact essential to that claim. To the extent that Mr and Mrs Clark rely on their becoming aware of “bank error”, that is not a basic fact essential to a cause of action in negligence. As NAB submits that a defendant is alleged to have admitted negligent conduct is not an element of the negligence. It is separate conduct which occurs after the allegedly negligent conduct and which may assist in the conduct of a case and ultimate proof of the allegedly negligent conduct.

73    I turn next to the pleading of unconscionable conduct at ASOC [170] where Mr and Mrs Clark allege that NAB engaged in unconscionable conduct while providing financial services to them contrary to s 20 of the ACL and/or s 12CA and s 12CB of the ASIC Act and/or in equity. The relevant conduct giving rise to the claim is set out at ASOC [163]-[169].

74    I put to one side the claims under s 20 of the ACL and s 12CA and s 12CB of the ASIC Act which Mr and Mrs Clark accept are statute barred. They are correct to do so. Their claims under the ACL and the ASIC Act were required to be commenced at any time within six years after the day on which the cause of action that relates to the conduct accrued: see s 236(2) of the ACL and s 12GF(2) of the ASIC Act. The cause of action accrues when loss or damage is sustained as a result of the contravening conduct: see Wardley at 525 (Mason CJ, Dawson, Gaudron and McHugh JJ), 536 (Brennan J).

75    Mr and Mrs Clark allege that they first sustained loss or damage as a consequence of the alleged contravening conduct pleaded in ASOC [163] in August 2008 (when the first property was sold: see ASOC [178]). The alleged loss from the sale of the balance of the properties was in each case also first suffered prior to 27 March 2018, the date that is six years prior to the date of commencement of this proceeding: see ASOC [178]-[182], [184].

76    Further s 55 of the Limitation Act does not apply to causes of action based on an alleged breach of the ACL or ASIC Act. They are Commonwealth statutes each of which has “otherwise provided” for its own limitation period so that the Limitation Act is not picked up by s 79 of the Judiciary Act 1903 (Cth): see Gardiner v National Australia Bank Limited [2023] NSWSC 45 at [301]-[304].

77    As set out above Mr and Mrs Clark also allege that NAB engaged in unconscionable conduct in equity. Relevantly in Gerace v Auzhair Supplies Pty Ltd (in liq) (2014) 87 NSWLR 435 Meagher JA (with whom Beazley P and Emmett JA agreed) said at [70]:

The authorities referred to above, and in particular R v McNeil, show that in purely equitable proceedings, where there is a corresponding remedy at law in respect of the same matter and that remedy is the subject of a statutory bar, equity will apply the bar by analogy unless there exists a ground which justifies its not doing so because reliance by the defendant on the statute would in the circumstances be unconscionable. They do not support the proposition that equity retains any broader discretion whether to apply the bar. ...

78    In Gerace Meagher JA identified when equity will decline to apply a statutory limitation period where there is claim involving fraud or fraudulent concealment. His Honour relevantly said at [75]:

The grounds on which equity declines to permit a defendant to rely upon a statutory bar by analogy include where there has been fraudulent concealment, which requires either fraudulent conduct as an element of the right of action or conduct consisting of active concealment of a right of action that does not include fraud as an element: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies at [34–085]. ...

79    NAB submits that the relevant statutory analogy in this case is s 12CA and s 12CB of the ASIC Act, provisions on which Mr and Mrs Clark also rely, because those sections apply specifically to conduct in relation to financial services.

80    Section 12CA of the ASIC Act provides that “a person must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories”.

81    Section 12CB of the ASIC Act relevantly provides:

(1)    A person must not, in trade or commerce, in connection with:

(a)    the supply or possible supply of financial services to a person; or

(b)    the acquisition or possible acquisition of financial services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

82    In Thompson v Perpetual Trustees Victoria Ltd [2021] NSWSC 622 Rees J, in considering an application to strike out a pleading alleging unconscionable conduct on the part of Perpetual Trustees Victoria Ltd because the claim was statute barred, made the following observations about the operations of s 12CB of the ASIC Act at [64]-[67]:

64    The section applies where there is conduct “that is, in all the circumstances, unconscionable” and section 12CB(4)(a) provides that the section “is not limited by the unwritten law...”. Nonetheless, the unwritten law “has a significant part to play in ascribing meaning to the term “unconscionable” under s 12CB(1)”: Kobelt at [144].

65    Section 12CC lists 16 non-exhaustive matters to be taken into account when determining whether a person has contravened section 12CB. This list “necessarily implies that the statutory conception of unconscionability is more broad-ranging than that of the unwritten law”: Kobelt at [144].

66    Thus, section 12CB is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and in equity: Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; (2011) 15 BPR 29,699 at [291] citing Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226 at [30]. In Jams 2, the Court performed an admirable reconciliation of the judgments in Kobelt, concluding that the standard to be applied under section 12CB(1) was, at [90]: (footnotes omitted)

The applicable standard is a normative one involving the evaluation of whether the conduct in question is ‘so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience’; in the sense that a court should only take the serious step of denouncing conduct as unconscionable when it is satisfied that the conduct is ‘offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society’.

67    Like equity, section 12CB requires a focus on ‘all the circumstances’ of the case: Jams 2 at [79]. Further, it has been said to be “obviously correct” that, if conduct is unconscionable in equity, it will also be unconscionable under section 12CB(1): Jams 2 at [83].

83    At [70] of Thompson Rees J concluded that both s 12CA and s 12CB of the ASIC Act captured the unconscionable conduct alleged by the plaintiffs in the transactions the subject of the proceeding. Her Honour continued:

There is an ‘identity’ of unconscionable conduct between the law of equity and section 12CA. Equitable unconscionable conduct is a sub-set of unconscionable conduct within the meaning of section 12CB. The plaintiffs’ claim for equitable damages for unconscionable conduct corresponds to the remedy provided by section 12GF(2) for contravention of sections 12CA(1) and 12CB(1). I consider that the analogy between the statutory remedy and the equitable remedy is apt such that the statutory limitation period should apply to the plaintiffs’ equitable suit, subject to whether it is unjust to apply the statutory limitation in this case.

84    The same reasoning applies here where Mr and Mrs Clark’s claim for equitable unconscionable conduct is based on the same facts as their claim for breach s 12CA and s 12CB of the ASIC Act. It follows, subject to the question of fraudulent concealment, that the relevant limitation period is six years. I have addressed the application of the limitation period to the claims under s 12CA and s 12CB at [74] above. The same analysis applies here. Further, given my findings at [63]-[67] above, I am satisfied that there has been no fraudulent concealment on the part of NAB in this case.

85    The next category of claim made by Mr and Mrs Clark is for equitable fraud. At ASOC [171] Mr and Mrs Clark plead:

Further and alternatively, by reason of the matters referred to in paragraphs herein:

(a)    the Respondent’s conduct constituted an imposition and deceit (and therefore equitable fraud) on the Applicants;

(b)    the Applicants were in a special relationship of vulnerability vis-à-vis the Respondent because the Applicants necessarily relied, and did rely, upon the Respondent to manage their banking affairs properly and in accordance with the Respondent’s obligations, but the Applicants did not themselves have oversight of the Respondent’s conduct, or access to Respondent’s records or documentation;

(c)    The Applicants were at a disadvantage as set out in paragraphs above;

(d)    The Respondent knew of the Applicant’s disadvantage as set out in paragraphs above;

(e)    The Respondent took advantage of the Applicant’s disadvantage as set out in paragraphs above;

(f)    The unconscionable result of such conduct is that the Applicants have suffered losses through the unconscientious conduct of the Respondent; and

(g)    In all the circumstances, the Respondent’s conduct is contrary to public policy so as to require equitable relief in accordance with the principles set out in Earl of Chesterfield v Jansen (1751) 2 Ves Sen 125; 28 ER 82.

86    The fraud alleged by Mr and Mrs Clark is the fourth kind identified by Lord Hardwicke LC in Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125; 28 ER 82, namely agreements made between parties that effect an imposition or deceit on persons not party to the transaction which are contrary to public policy. However, ASOC [171] does not refer to any agreement between NAB and some other person which effected an imposition and deceit on Mr and Mrs Clark as non-parties to the agreement, let alone set out how any such agreement is contrary to public policy.

87    In their submission Mr and Mrs Clark refer to an email dated 16 June 2008 from Mr Wyer to Fran Ecob nominating Ms Ecob as their alternate banker which they obtained on 30 October 2018. They submit that the email was a “front” for Mr Wilson and was designed to enable Mr Wilson to maintain complete control over their bank files and thereby mislead them. As NAB submits the content of this email is not a basic fact essential to a claim for equitable fraud.

88    The pleading of equitable fraud is deficient and, contrary to Mr and Mrs Clark’s submission, I do not think that the deficiency is a mere technicality which can be cured. There is a complete failure to plead the elements of the cause of action and Mr and Mrs Clark do not explain how the deficiency can be cured.

89    The fourth category of claim made by Mr and Mrs Clark in the ASOC is for false and misleading representations and conduct on the part of NAB. At ASOC [172]-[173] Mr and Mrs Clark contend that:

172    Further and alternatively, by reason of the matters set out above, and by reason of the Respondent’s knowledge, the Respondent is responsible for false and misleading representations, contrary to section 12DB of the ASIC Act, false and misleading conduct, contrary to section 12DB(1) of the ASIC Act, and false representations, contrary to section 18 of the ACL in that, in the provision of financial services to the Applicants:

(a)    The Respondent made representations via its employees to the Applicants in 2007 that the Applicant’s Home Loans would be rolled over, as was the Respondent’s usual practice and as such loans had been previously;

(b)    The Respondent failed to provide adequate notice of the Applicant’s impending default on their Home Loans to allow the Applicants to avoid the same, whether by refinancing with HSBC or otherwise;

(c)    In doing so, the Respondent induced the Applicants to remain as customers of the Respondent; and

(d)    The Respondent then allowed the Applicants to enter into default and subjected the Applicants and/or allowed the Applicants to be subjected to, the consequences of such default, including the Veda listing and the enforcement by the Respondent of the bank’s securities against the Applicant’s properties.

173    Provided false information to several governing bodies, such as regulatory agencies or authorities, which was false representation and misleading.

90    As is the case for the claims for unconscionable conduct under the ACL and the ASIC Act, these claims, insofar as they contend a breach by NAB of s 18 of the ACL and s 12DB of the ASIC Act, are subject to the six year limitation periods prescribed by the ACL and ASIC Act. My reasoning at [62]-[72] applies equally.

91    The representations which Mr and Mrs Clark allege are false or misleading are that the Home Loans would be rolled over and the failure to provide adequate notice of their impending default to allow them to avoid defaulting on those loans by refinancing with HSBC or otherwise. The consequence of that conduct is said to be that NAB allowed Mr and Mrs Clark to default on the Home Loans and for the Default Listing to be entered on Mr Clark’s credit profile which led to Mr and Mrs Clark being forced to sell four of their properties between August 2008 and October 2012. Alternatively, if Mr and Mrs Clark only suffered loss or damage when NAB stepped in and enforced its securities by selling the remaining two properties, Mr and Mrs Clark first suffered loss and damage in July 2010. Either way the limitation periods expired at the very latest by 2016.

92    Even if that were not so Mr and Mrs Clark were clearly aware of the basic facts giving rise to the cause of action by 2013. In a draft statement of cross-claim prepared for the Supreme Court Proceeding, Mr and Mrs Clark as cross-claimants alleged, among other things, misrepresentation by NAB in relation to the Home Loans. The draft cross-claim included that:

(1)    NAB, through Mr Wilson, represented that it was agreeable to renewing and rolling over the facilities that Mr and Mrs Clark had with it and that Mr and Mrs Clark could renew and roll over those facilities when they returned from the USA;

(2)    they relied on those representations including by remaining as customers of NAB; and

(3)    the representations were false, untrue and misleading in that, among other things, NAB knew or ought to have known that they were continuing as customers under a misapprehension or misconception that NAB would treat them fairly, no one on NAB’s behalf took any steps to correct that obvious misapprehension and NAB always intended that the loan security documentation would be enforced and actively hid from Mr and Mrs Clark the real reason for its refusal to permit them to renew and rollover the Home Loans.

These basic facts, clearly known as of 2013, are repeated in large part in the ASOC.

93    Added to that none of the key matters or new facts are basic facts essential to the cause of action for misleading representations or conduct.

94    At ASOC [176] Mr and Mrs Clark plead that NAB breached its statutory obligations in s 912A(1)(a) of the Corporations Act 2001 (Cth) “to ensure that it complied with its Financial Services Licence and provided financial services to [Mr and Mrs Clark] efficiently, honestly and fairly”.

95    The pleading at ASOC [176] is deficient. As submitted by NAB it does not identify the relevant conduct or when it occurred, how NAB is said to have breached the section, causation or damages. Mr and Mrs Clark concede that the pleading is deficient and that it requires amendment and submit that the deficiencies identified by NAB can be addressed. I do not accept that to be so. Putting to one side the question of whether Mr and Mrs Clark have standing to bring a claim for breach of s 912A(1)(a) of the Corporations Act, the deficiencies are fundamental and of a type which in my view cannot be easily remedied. Further the claim is in any event time barred. To that end Mr and Mrs Clark do not allege that any documents provided on or since 30 October 2018 reveal basic facts essential to the cause of action nor do they refer to or rely on the new facts or key matters.

96    The final cause of action pleaded by Mr and Mrs Clark is conspiracy to defraud or injure by unlawful means. In summary, at ASOC [177] Mr and Mrs Clark allege that, despite numerous requests, NAB conspired with its staff from June 2007 to date to withhold key documents from them “relating to the improper management of their banking affairs in order to deny [Mr and Mrs Clark] the opportunity to exercise their rights in seeking damages for any harm caused and to defend proceedings alleging [the Home Loans] were in default”.

97    In Williams v Hursey (1959) 103 CLR 30 at 122 Menzies J said the following about the tort of unlawful means by conspiracy:

… If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy. Although it is probably too late in the day to divide conspiracies, for the purpose of legal classification, into two sorts depending upon whether the purpose of the combination would be lawful or unlawful if it were the purpose of an individual, there is much to be said in favour of approaching any consideration of the law of tortious conspiracy and its application in that way. It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. …

See too Talacko v Talacko (2021) 272 CLR 478 at [25].

98    ASOC [177] does not plead the necessary facts to make out the elements of the alleged tort. There is no pleading of an agreement between two or more NAB employees to carry out an unlawful purpose, that such an agreement was carried into effect or any allegation that in carrying out such an agreement Mr and Mrs Clark suffered a loss. In any event the loss said to be suffered is the denial of the right to seek damages because of withholding the documents and the lost opportunity to defend the proceeding in which NAB alleged the Home Loans were in default.

99    As to the former, as NAB submits, Mr and Mrs Clark had not lost their opportunity. If as NAB contends and I have accepted Mr and Mrs Clark knew the basic facts essential to their causes of action, they were able to bring those claims within the applicable limitation periods. If on the other hand there had been fraudulent concealment, the opportunity would not be lost. As to the latter, the loss of the opportunity to defend a proceeding is not a pecuniary loss.

100    At ASOC [185] under the heading “Relief Claimed” Mr and Mrs Clark seek, among other things, damages pursuant to s 29 of the Oaths Act. That section provides:

Except as provided by section 33, every person wilfully swearing falsely in any affidavit made before any such justice of the peace or other person so authorised to take affidavits, shall be deemed guilty of perjury and shall incur and be liable to the same pains and penalties as if the person had wilfully sworn falsely in open Court in a judicial proceeding in the Supreme Court.

101    The relief claimed under the Oaths Act seems to relate to an affidavit made by a NAB employee in the Circuit Court Proceeding referred to at ASOC [143] which Mr and Mrs Clark allege did not disclose certain things set out at ASOC [144]. At ASOC [177F(ii)] as part of their claim of conspiracy to defraud or injure by unlawful means Mr and Mrs Clark allege that:

The overt acts of Wilson and the Respondent’s other staff in furtherance of the conspiracy involved withholding key documents. Specific details of the concealment of key documents are pleaded in paragraphs 149 to 156 above.

…

(ii)    The subsequent retrieval of key documents from the Respondent in October 2018 provides a basis to allege breaches of section 29 of the Oaths Act 1900 (NSW) and section 327 of the Crimes Act 1900, regarding swearing false or misleading affidavits in Supreme Court and Federal Court proceedings.

102    Section 29 of the Oaths Act deems a person who wilfully makes a false statement in an affidavit to be guilty of perjury. The section does not provide for damages as an available remedy. Nor does any other section in the Oaths Act so provide.

103    The claim for damages for alleged breach of s 29 of the Oaths Act is not sustainable. The identified deficiency cannot be remedied by granting leave to replead.

Do Mr and Mrs Clark lack standing to bring some of their claims?

104    At ASOC [2] Mr and Mrs Clark allege that they owned seven properties in Australia as part of the Property Business. In fact Mr and Mrs Clark were the registered proprietor of only three of those properties. The remaining four properties were owned by Voxxy, in the case of three of the properties, and SBE, in the case of one property. Mr and Mrs Clark allege at ASOC [1(e)] that they were “equal beneficiaries in all shares and net profits derived from the Property Business”.

105    It was not in dispute that Voxxy was the account holder and debtor of the JTT Account, the Duplicate Account and the Voxxy LOC. Thus, the proper plaintiff for any cause of action relating to those accounts is Voxxy, not Mr and Mrs Clark.

106    On 21 April 2011 Voxxy was placed into liquidation and on 9 September 2013 it was deregistered. Upon deregistration all property of Voxxy, other than property held on trust, vested in ASIC. Any property held by Voxxy on trust immediately before deregistration vested in the Commonwealth on deregistration: see s 601AD Corporations Act.

107    Mr and Mrs Clark submit that the issue that arises by reason of Voxxy’s deregistration can be cured by making an application to ASIC to reinstate Voxxy and thereafter an application can be made to join Voxxy to this proceeding. They say that Voxxy is “used as example’s of [NAB’s] misconduct”.

108    The reinstatement of Voxxy and adding it as a plaintiff will not cure the issue identified. That is because any application to reinstate Voxxy is likely to be hopeless as the claims to be brought in Voxxy’s name are out of time. In Gardiner the plaintiffs sought to reinstate the registration of Gardiner Petroleum Pty Ltd pursuant to s 601AH(2) of the Corporations Act and to add that company as a plaintiff in response to a submission by NAB in that matter that it was the proper plaintiff in respect of some causes of action. In considering that application, Rees J considered whether it was “just” for the registration of Gardinier Petroleum to be reinstated. Her Honour said at [372]-[373]:

372    The bigger problem is that I have found that any claim by Gardiner Petroleum against the bank is time barred and without merit. Of course, the Court can make ancillary orders on reinstatement of a company to validate anything done during the period of deregistration or “any other order it considers appropriate”: section 601AH(3), Corporations Act 2001. As I noted in In the matter of Austral Bronze Pty Limited (No 2) [2020] NSWSC 1633, ancillary orders may be made to suspend the limitation period in respect of claims against the company but perhaps not to avoid limitation periods which may apply to a claim to be brought by the company: at [77]-[78].

373    For example, in Chalker v Clark [2008] VSCA 92, the applicant sought to reinstate a company so that he could endeavour to persuade a liquidator appointed to the company to assign the company’s chose in action to him to pursue. The proposed proceedings which the applicant wished to bring on behalf of the company were clearly statute barred. The Court considered that it would not be “just” to reinstate a company as a device to escape a limitation period with the benefit of an ancillary order: at [37] per Osborn AJA, at [45] per Maxwell P. The Court was also mindful as to whether the ancillary orders sought are futile or sought in aid of an unmeritorious claim.

109    Her Honour considered that it would not be “just” to reinstate Gardiner Petroleum given the conclusion that the causes of action sought to be pursued were time barred and without merit: Gardiner at [374].

110    The circumstances of this case are analogous to those in Gardiner. Given the claims sought to be pursed in Voxxy’s name are time barred, it is unlikely that an application for reinstatement would be successful. Further, to the extent any of the properties for which damages are claimed were owned by SBE, that company is the proper plaintiff. It is not a party to the proceeding.

Conclusion

111    I am satisfied that most of the pleaded causes of action are statute barred and I am not satisfied that Mr and Mrs Clark have established any fraudulent concealment on the part of NAB (see [84] above). Rather, it is apparent that they have known the facts giving rise to their claims for some time. That being so those causes of action have no reasonable prospect of success. To the extent that any of the claims are not statute barred, they are either being prosecuted by the wrong plaintiff (see [110] above) and/or in my view have no reasonable prospects of success (see [88], [95], [98] and [103] above). None of the defects that have been identified can be cured by giving leave to replead.

112    It follows that the originating application and the ASOC should be summarily dismissed and that Mr and Mrs Clark should pay NAB’s costs of its interlocutory application. Mr and Mrs Clark’s extant notice to produce should also be set aside.

113    I will make orders accordingly.

Associate:

Dated:    27 June 2025