Bendigo and Adelaide Bank Limited v Rathbone

[2017] NSWSC 1547

Supreme Court

New South Wales

Medium Neutral Citation:	Bendigo and Adelaide Bank Limited v Rathbone [2017] NSWSC 1547
Hearing dates:	7 November 2017
Decision date:	07 November 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	1. Orders made on 26 June 2017 are vacated. 2. The proceeding is transferred to the Supreme Court of New South Wales pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). 3. The proceeding is then transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW). 4. Costs are costs in the cause.
Catchwords:	CIVIL PROCEDURE – application to cross-vest proceeding to Supreme Court of Victoria – consent application – proceeding relates to earlier class action – pleaded defences also raised in similar proceedings before Supreme Court of Victoria – transfer clearly in the interests of justice
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 140(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5(2)
Category:	Principal judgment
Parties:	Bendigo and Adelaide Bank Limited (Plaintiff) Karen Valda Rathbone (formerly Dornbrack) (Defendant)
Representation:	Counsel:     Solicitors: Mr Ryman (Plaintiff) Mr Owen-Taylor (Defendant)
File Number(s):	2017/327758

Judgment

1. HIS HONOUR: This is, first of all, an application for the transfer of proceedings that were instituted in the District Court to this Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). The purpose of the transfer is to facilitate the second and more substantial application that is before me.

2. The more substantial application is to transfer the proceedings to the Supreme Court of Victoria under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

3. Although the applications are by consent, it is appropriate that short reasons be given. I derive the following from the affidavit of Ms Alysha Tuziak, solicitor, dated 30 October 2017.

4. The proceedings relate to loans advanced to the defendant to fund investments in two managed investment schemes operated by Great Southern Managers Australia Limited ("Great Southern"). Eighteen such schemes operated by Great Southern were the subject of numerous class action proceedings in the Supreme Court of Victoria from October 2012 to October 2013. Shortly before the trial judge was due to deliver judgment on 25 July 2014 the parties informed the Court that a settlement had been reached. On 11 December 2014 the Supreme Court of Victoria approved a deed of settlement.

5. The term "Group Members" has been given to persons who invested in one of the managed investment schemes that was part of the Great Southern group of proceedings and who did not elect to opt out of those proceedings. The consequences of being a Group Member is that the person is bound by the terms of the deed of settlement and, in particular, the acknowledgment that their loan deed is valid and binding and there is a release of any claims as defined in the deed of settlement that they might otherwise have against various parties, including the plaintiff in the current matter. The present defendant accepts that she is a Group Member.

6. There have been proceedings subsequently taken in respect of the deed of the settlement and its effect upon Group Members in a variety of courts in Victoria, Queensland and South Australia, but in all such cases the deed of settlement has been found to be enforceable in accordance with its terms and to preclude defences and claims being brought by Group Members.

7. Notwithstanding the outcome of those proceedings, a particular Group Member, a Mr Peter Dimitrov, has issued proceedings in the original jurisdiction of the High Court challenging the jurisdiction of the Supreme Court of Victoria to approve the deed of settlement, amongst other things.

8. The Supreme Court of Victoria had fixed about 20 cases for hearing in August and December this year and the effect of the deed of settlement on the ability of the defendants in those proceedings to raise certain defences was to be adjudicated. Those proceedings have been referred to as the "Defended Test Cases". But as a consequence of the proceedings instituted in the High Court by Mr Dimitrov, the hearing dates for the Defended Test Cases have been vacated and, in effect, they have been left in abeyance pending the outcome of the proceedings in the High Court.

9. The defendant in the present proceeding pleads defences that are also pleaded by some of the defendants in the Defended Test Cases. The plaintiff considers that it would be the most efficient use of court resources if the current proceeding is transferred to the Supreme Court of Victoria to become one of the defended test cases. The defendant consents to the transfer.

10. In these circumstances it is clearly in the interests of justice that this proceeding be determined by the Supreme Court of Victoria. Given the power to transfer the proceedings to that Court is one given to this Court but not to the District Court, it is appropriate that there first be an order transferring the proceedings from the District Court to this Court.

11. The draft consent orders included that orders made in the District Court on 26 June 2017 be vacated. The representatives of both parties who appeared at the hearing of the application were unclear precisely what those orders were. However, it was agreed that whatever orders were made should be vacated. It was subsequently ascertained that those orders concerned the listing of the matter for hearing in the District Court on 22 November 2017 and for associated case management.

12. The orders made were as follows:

1.   Orders made on 26 June 2017 are vacated.

2. The proceeding is transferred to the Supreme Court of New South Wales pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW).

3. The proceeding is then transferred to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

4.    Costs are costs in the cause.

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