Field v Perpetual Limited [2010] FCA 1001

Procedural Posture

Practice and Procedure; Application for Injunction and Damages for Alleged Unconscionable Conduct / Respondent's Notice of Motion for Summary Judgment or Dismissal Under S 31 a of the Federal Court of Australia Act 1976 (cth) and O 20 R 5 of the Federal Court Rules

Legal Issues

1. 1 ['Whether the Applicant had no reasonable prospect of successfully prosecuting the proceeding.' 'Whether the proceeding was frivolous, vexatious or an abuse of process.' "Whether the Respondent's alleged failures of disclosure, non-response to correspondence, refusal of hardship relief, and pursuit of possession and debt amounted to unconscionable conduct under the ASIC Act." 'Whether ss 12EA and 12EB of the ASIC Act were engaged by the Respondent commencing possession proceedings in the Supreme Court of Victoria and relying on Victorian legislation.' 'Whether the Federal Court could set aside or restrain enforcement of the Supreme Court of Victoria judgment.']

Ratio Decidendi

The Applicant's claims disclosed no tenable cause of action and had no reasonable prospect of success: the loan and mortgage were established, the alleged disclosure and correspondence matters did not amount to unconscionable conduct, hardship relief was unavailable because the loan exceeded the applicable threshold, the complaint about pursuit of debt and possession misconceived the statutory distribution of mortgagee sale proceeds, ss 12EA and 12EB of the ASIC Act were not engaged, and the Crimes Act allegation was without foundation. The proceeding was also an abuse of process and vexatious because it sought to re-litigate matters raised in the Supreme Court of Victoria and...

Court Disposition

Proceeding dismissed; Applicant ordered to pay the Respondent's costs.

Orders

• ['The proceeding is dismissed.' "The Applicant pay the Respondent's costs of the proceeding, such costs to be taxed in default of agreement."]