Bank of Western Australia Ltd v Tannous (No. 2) [2011] NSWSC 989 (30 August 2011)

Last Updated: 31 August 2011

Supreme Court New South Wales

Case Title:	Bank of Western Australia Ltd v Tannous (No. 2)
Medium Neutral Citation:	[2011] NSWSC 989
Hearing Date(s):	23 August 2011
Decision Date:	30 August 2011
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Application for referral to the Registrar for pro bono assistance pursuant to r 7.36 UCPR refused.
Catchwords:	LEGAL AID - referral for pro bono representation - matters to be considered - Applicant engaged in admitted wrongdoing that resulted in proceedings being brought - limited pro bono resources - application refused.
Legislation Cited:	Fair Trading Act 1987 Uniform Civil Procedure Rules
Cases Cited:	Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319
Texts Cited:
Category:	Procedural and other rulings
Parties:	Bank of Western Australia Ltd (Plaintiff) Arthur Tannous (First Defendant) Emily Tannous (also known as Emiley Tannous) (Second Defendant/Cross-Claimant) Michael Tannous (Third Defendant)
Representation
- Counsel:	V Whittaker (Plaintiff) In person (First Defendant) A Kumar (Second Defendant) In person (Third Defendant)
- Solicitors:	Henry Davis York (Plaintiff) In person (First Defendant) Good Legal Lawyers (Second Defendant) In person (Third Defendant)
File number(s):	2009/292096
Publication Restriction:

Judgment

1. This is an application by Michael Tannous for referral to the Registrar for pro bono assistance pursuant to r 7.36 UCPR. Michael Tannous is the son of Arthur and Emily Tannous who were originally named as Defendants in these proceedings brought by the Bank of Western Australia.

2. The loan secured over the property of Arthur and Emily Tannous was organised by and for the benefit of Michael Tannous. The background is set out in my judgment in Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319.

3. By Notice of Motion filed 22 July 2011 the Plaintiff sought (inter alia) that Michael Tannous be joined as the Third Defendant in the proceedings. The claim against Michael Tannous is based on admissions he made in an affidavit he had earlier filed in the proceedings to support the defence being made by his parents to the Bank's claim. In that affidavit of 21 April 2010 he swore that he represented himself as his father in order to obtain a loan on the security of his parents' house from an earlier mortgagee. He also swore that when he wanted to refinance that loan he forged his parents' signatures and provided false information to the financier about them and their earning capacity. Ultimately, he persuaded his parents to sign documents for a loan from the present Plaintiff without telling them the extent of the borrowing.

4. The claim made against him in the Amended Statement of Claim is based on deceit, and breaches of the Fair Trading Act 1987 by engaging in misleading and deceptive behaviour.

5. On 23 August 2011 I granted leave to the Plaintiff to amend the Statement of Claim to join Michael Tannous as the Third Defendant. He was present in Court and did not oppose being joined. He subsequently sought a referral for pro bono representation. I directed that within 7 days he file an affidavit of his financial circumstances. What has been provided is a rather unsatisfactory document which is not in affidavit form nor does it purport to be an affidavit, although his signature has apparently been witnessed by a Justice of the Peace.

6. The document suggests that his earnings are $648 per month which is a little under $20,000 per year. His expenses total $17,858 per year although that would not appear to include the repayments of sizeable amounts which are on his credit cards. Although he does not disclose a property as an asset he does disclose a mortgage with the NAB of $193,000.

7. Under sub-r (2)(d) a matter that the Court may take into account is any matter not listed in that sub-rule that the Court considers appropriate. I consider it appropriate to take into account the fact that, by his own admissions, his parents are having to meet the claim of the Plaintiff as a result of his own dishonesty and misrepresentation both to them and to 3 separate lenders including the Plaintiff.

8. Pro bono legal assistance, as the name suggests, is the provision of legal services by barristers and solicitors, very often, free of charge. In some other cases arrangements are reached which might result in some payment being made to the lawyer if the person is successful in the matter for which the lawyer is acting. Most of the work is, however, provided free of charge and is done for the highest motives and in the best tradition of the legal profession. It frequently enables cases to be sensibly settled or, if they are litigated to a judgement, to be litigated in a far more time and cost effective fashion than would be the case if the litigant was unrepresented.

9. However, there is not unlimited assistance available on a pro bono basis. There are undoubtedly people who have got themselves into awkward positions with banks and finance companies and other institutions often by reason of their own lack of eduction, lack of commercial expertise or otherwise.

10. When such resources are limited it seems highly inappropriate that someone who is only being proceeded against in litigation because of his own admitted wrongdoing should be entitled to receive this sort of assistance. As it is he has put his father in the position of needing to use this service, and I have made a recommendation for a referral for his father.

11. In addition, I infer from the limited financial information provided that Michael Tannous owns a house. In all of the circumstances he ought to be required to employ the resources that are available as a result of that home ownership before any referral is made under this Rule.

12. This application is refused.

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