Australia and New Zealand Banking Group Limited v Ashcroft & Ors [2021] QSC 293, one of those judgments that delight law students.
Martin J states
[1] The applicant, Australia and New Zealand Banking Group Limited (“ANZ”), seeks leave to further amend its Amended Originating Application filed on 29 January 2021.
[2] The action arises out of a series of self-inflicted injuries suffered by ANZ, which have been exacerbated by the clumsiness of its attempts to stanch those wounds.
Ouch!
A brief history
[3] In 2008, Ms Ashcroft granted a mortgage (“the first mortgage”) over her property at Norman Park to ANZ to secure the loan which the ANZ had extended to her in the sum of $270,000. Later that year, ANZ provided a further loan to Ms Ashcroft in the sum of about $700,000. The loan secured by the first mortgage was repaid by the second loan which, in turn, was secured by another mortgage (“the second mortgage”).
[4] In 2012, the terms of the loan were altered to reflect the extension of further credit by ANZ.
[5] In 2014, another mortgage was registered on the title in favour of the second defendant (“the Platinum mortgage”).
[6] In 2017, after some negotiations, the ANZ loan was changed from a residential investment loan to a home loan (“the 2017 loan agreement”). The loan secured by the first mortgage had been discharged by the loan secured by the second mortgage, and Ms Ashcroft sought to have that first mortgage released.
[7] In September 2017, ANZ issued internal settlement instructions to effect the release of the first mortgage only. Contrary to that instruction, and due to some error for which Ms Ashcroft carries no blame, ANZ lodged a release of both the first and the second mortgages. Those releases were registered.
[8] In 2018, Ms Ashcroft informed ANZ that “it appeared there was no registered document on the title” to the Norman Park property. ANZ responded by placing a caveat on the title to the property. Soon after that, ANZ asked Ms Ashcroft to execute a new mortgage. She did not and has not done so since.
[9] ANZ took no action with respect to the caveat, and, as a result, it lapsed in March 2018. It was removed from the title in August 2019. Before it was removed, the third defendant (Mr Ashcroft) executed, and Ms Ashcroft lodged a mortgage in favour of Mr Ashcroft securing the sum of $70,000 (“the Ashcroft mortgage”).
[10] This proceeding was commenced by way of Originating Application in which a number of orders were sought, including: (a) a declaration that the property is subject to an equitable mortgage in favour of ANZ, (b) a declaration that the equitable mortgage secures payment by Ms Ashcroft of all monies owing to the ANZ under the 2017 loan agreement, and (c) an order that Ms Ashcroft execute a mortgage here in the same terms as those contained in the second mortgage.
What orders have been made?
[11] This matter has been placed on the Supervised Case List, and orders have been made for the conduct of the matter.
[12] On 14 May 2021, Boddice J ordered that, by 21 May 2021, the ANZ: (a) was to serve any proposed Amended Statement of Claim on the defendants, and (b) provide a full response to the First and Second Defendant’s request for particulars and r 444 of the UCPR letters to the extent that they had not been addressed in the proposed Amended Statement of Claim.
[13] There was no order requiring ANZ to file the proposed Amended Statement of Claim. Yet, it did so. The purpose of the order made by Boddice J was to allow the defendants to see the proposed amendments and to make any objection to them so that ANZ might deal with them before any amended pleading was filed. That is a fairly common order and one which conduces to greater efficiency. That, though, apparently did not appeal to ANZ.
[14] On 18 June 2021, Boddice J ordered that ANZ file and serve any application for leave to bring claims other than those in the Amended Originating Application and, if necessary, for leave to amend the statement of claim in the proposed form served by ANZ on 21 May 2021. A further order was made repeating the order made on 14 May 2021 about a provision of a response to the request for particulars, et cetera.
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[17] In order to support that, ANZ seeks to plead that Mr Ashcroft is a “relative” of Ms Ashcroft within the meaning of that term as defined in the Corporations Act 2001 and that Mr Ashcroft is a “related entity” of Platinum Success within the meaning of that term as defined in the Corporations Act. These are bold and adventurous pleadings but entirely misconceived. The meaning that “relative” has for the purposes of the Corporations Act is irrelevant to these proceedings.
[18] There are other matters in the Amended Statement of Claim which deserve attention: (a) there is a pleading of an estoppel against claiming priority in the absence of a defence claiming priority for Platinum mortgage when there is no such pleaded claim, (b) there is a pleading that Platinum does not have the benefit of indefeasibility when there is no such pleaded claim, and (c) a claim that it would be unconscionable for Platinum to assert priority et cetera when it has not yet pleaded anything.
[19] These may just be examples of a plaintiff wanting to get its retaliation in first, but to leave a pleading in that state will only lead to further confusion.
What should be done?
[20] The applicant was not in a position at the hearing to deal with the pleading points raised on behalf of the first and second respondents. A cursory examination of the Amended Statement of Claim, which was filed notwithstanding the orders which had been made, reveals a number of defects – many of which were identified in the submissions of Mr Roney QC – which need to be remedied.
[21] Mr Chatsworth made a number of complaints about the pleadings, and some of them had a considerable weight. However, in the absence of a formal application and the appropriate notice being given to strike out the Amended Statement of Claim, I do not propose to deal with it on this application.
[22] The application to further amend the Amended Originating Application is allowed. But, ANZ will have to revisit its pleading and thoroughly renovate it. Subject to any further submissions, I will make an order that ANZ serve upon the other parties a further amended statement of claim but that any such document not be filed until any objections the other parties might have to it have been dealt with upon a properly formulated application.
