JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1999] NSWSC 760

New South Wales Supreme Court CITATION : JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) [1999] NSWSC 760 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 20101/1999 HEARING DATE(S) : 13 July 1999 JUDGMENT DATE : 29 July 1999

DRAGO JAMBRECINA PARTIES : v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) & ANOR. JUDGMENT OF : Master Malpass

COUNSEL : PLAINTIFF: N/A DEFENDANTS: MR S T WHITE SOLICITORS : PLAINTIFF: IN PERSON - UNREPRESENTED DEFENDANTS: CLAYTON UTZ CATCHWORDS : Leave to proceed; summary disposition; striking out defective pleading; no question of principle. ACTS CITED : Corporations Law, s 471B. Supreme Court Rules 1970, Pt. 15. CASES CITED : Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. DECISION : SEE PARAGRAPH 21

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 29 JULY 1999

20101/1999 DRAGO JAMBRECINA v PYRAMID BUILDING SOCIETY (IN LIQUIDATION) & ANOR. JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 19 March 1999. The process seeks to propound inter alia a monetary claim for loss and damage. There are two named defendants. 2 On 17 September 1987, the plaintiff gave a mortgage to Combined Mortgage Services Pty Limited over a number of properties. It secured a loan in the sum of $458,800.00. Combined Mortgage Services Pty limited subsequently changed its name to Farrow Mortgage Services Pty Limited (it is the second named defendant). It later assigned the benefit of the mortgage to the first named defendant. 3 In or about December 1990, default was made under the mortgage. This led to the first defendant bringing proceedings 10647 of 1992 (the earlier proceedings). The proceedings were brought by Summons and inter alia the possession of certain property was sought. The proceedings were brought against both the plaintiff in these proceedings and his wife. Affidavits were sworn and filed on behalf of all parties (including affidavits which raise some of the complaints made by the plaintiff in these proceedings). The proceedings were settled. Short Minutes of Order were prepared (dated 17 December 1992). Subsequently, a judgment was entered on 2 March 1993. The judgment gave inter alia possession to certain properties. 4 On 19 March 1999, the plaintiff filed a Notice of Motion. As the defendants have been in liquidation for many years, it seeks an order for leave to sue the defendants. On 27 April 1999, the defendants filed a Notice of Motion. It seeks either summary dismissal of the proceedings or the striking out of the Statement of Claim. 5 The hearing took place on 13 July 1999. The plaintiff appeared in person. The defendants were represented by counsel. 6 The evidence consisted of an affidavit sworn by the plaintiff, an affidavit sworn on behalf of the defendants (by Brigitte Sandra Markovic) and documentation tendered by the parties. 7 The parties have prepared written submissions. The writing was supplemented by oral argument. 8 On behalf of the defendants, the approach is taken that unless a case for relief is demonstrated by them leave should be given to the plaintiff. The plaintiff was uncertain as to the source of power for the relief sought by him. The defendants have assumed that he was relying on s 471B of the Corporations Law . Ultimately, the parties proceeded on the basis that the application was being made pursuant to that provision. 9 At this stage it is convenient to look at the plaintiff's originating process. The Statement of Claim itself is in the following terms:- "1. Plaintiff and Defendant had signed a mortgage document (real property ACT 1900) on the 17th of September 1987 in Queanbeyan NSW. Between the late 1990 and the late 1993, the defendant had breached agreements with in a document on many occasions in many ways. PARTICULARS of pleading are set out in additional documents attached.

THE PLAINTIFF CLAIMS: 1. Relief sort: - DAMAGES - INTEREST UNDER SECTION 94 - COSTS" 10 The documentation filed by the plaintiff consisted of the Statement of Claim together with an annexed number of pages which have the heading "Particulars of Statement of Claim". The particulars contain material which could be expected to be found in the Statement of Claim itself. The particulars make reference to other annexed documentation. This documentation was not actually filed with the originating process. A copy of that documentation was tendered and became Exhibit A. 11 The defendants make a substantial attack on the form of the Statement of Claim. For present purposes, it is unnecessary to embark on a detailed consideration of the alleged pleading defects. 12 As a pleading, it is grossly deficient and it would not be a productive exercise to require a party to plead to it. 13 It falls well short of complying with the pleading rules (see Pt. 15 of the Supreme Court Rules 1970). The Statement of Claim itself is largely incomprehensible. To the extent that there is any real allegation of material facts, these are to be found in the particulars. The material is confusing and in some instances incomprehensible. If this material was to be looked at as a pleading, it is embarrassing. It would not be capable of achieving one of the objects of pleading (to define and narrow issues). However, it is well established that a party is not required to plead to particulars. 14 For the assistance of the plaintiff, I should make specific reference of one area of confusion. The originating process appears to be intended to propound a number of complaints. There is confusion as to whether the complaints are founded on the mortgage or contractual arrangements (including the earlier loan agreement). The loan arrangements were made with the second defendant. Any breach of the terms and conditions of the mortgage could have been expected to be levelled against the first defendant. It is unclear as to which of the defendants is the object of each of the various complaints made by the plaintiff. 15 Whilst the Court has sympathy for the predicament of the plaintiff (he has informed the Court that he cannot afford to employ legal representation), it is important that there be compliance with the Rules of Court. If they are not complied with, there may be injustice to other parties and the Court will not be in a position to dispatch its business with due expedition. It needs to be emphasised that the rules are applicable to all parties. 16 It seems to me clear that the defendants are entitled to have the existing process struck out. The question that troubles me is whether or not the plaintiff should be given a further opportunity to file amended process. 17 The defendants contend that the proceedings should be summarily dismissed because they are doomed to failure. This contention is founded on a number of grounds. It is said that all of the complaints are now statute barred. Further, it is said that they are liable to be defeated by the principles of res judicata, issue estoppel and what was decided in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. 18 There may well be real questions as to whether the complaints or any of them give rise to a cause of action maintainable at law. Those which are founded on contract are clearly statute barred. Those which are founded on the mortgage may still be maintainable. 19 At least in some respects, there may be force in the submissions founded on estoppel and/or abuse of process. However, I should mention that the earlier proceedings concerned a claim for possession made by the first defendant and the plaintiff now wishes to advance monetary claims. Also, I should mention that the second defendant was not a party to those proceedings. 20 In the light of the deficiencies of the original process, the Court is confronted with the problem of an inadequate definition of the claims which the plaintiff desires to propound. Because of the confusion, it seems to me to be unsafe to proceed to make any summary determination on the contentions advanced by the defendants. It seems to me, that this is better done after the plaintiff has been given a further opportunity to plead his case. However, the plaintiff would be well advised to proceed on the basis that this may be his last opportunity to present the case he wishes to propound. 21 The Statement of Claim is struck out. The plaintiff is to have leave to file an Amended Statement of Claim. Any Amended Statement of Claim is to be filed within 28 days. The plaintiff is to pay the costs of the defendants' Notice of Motion to date. The balance of that Notice of Motion and the plaintiff's Notice of Motion are stood over generally. The parties may have liberty to restore on 21 days' notice. **********

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