Aldous v Commonwealth Bank of Australia

[2017] NSWCA 264

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Aldous v Commonwealth Bank of Australia [2017] NSWCA 264
Hearing dates:	13 October 2017
Decision date:	13 October 2017
Before:	Beazley P at [1], [25]; Leeming JA at [2]
Decision:	Summons for leave to appeal dismissed with costs.
Catchwords:	APPEALS – leave to appeal – consent order – judgment entered when defendant failed to comply with settlement deed – whether injustice going beyond merely arguable demonstrated – application dismissed.
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101
Category:	Principal judgment
Parties:	Adrian John Aldous (Applicant) Commonwealth Bank of Australia (Respondent)
Representation:	Counsel: In person (Applicant) A Zahra (Respondent)   Solicitors: HWL Ebsworth (Respondent)
File Number(s):	2016/322577
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Date of Decision: 29 September 2016 Before: Pembroke J File Number(s): 2013/381363

EX TEMPORE Judgment

1. BEAZLEY P: I will ask Leeming JA to give the first judgment.

2. LEEMING JA: Before the hearing today commenced, the Court had the benefit of written submissions and supplementary material supplied by the applicant for leave as well as submissions by the respondent. The submissions and material were significantly more voluminous than is usual in such applications as these. We have now had the benefit of moderately extensive oral submissions from both parties.

3. Mr Adrian John Aldous seeks leave to appeal from orders made by the primary judge on 29 September 2016. The principal order made on that day was entry of judgment in favour of the Commonwealth Bank of Australia in the sum of $107,925.01. Leave is required because, in circumstances that I will describe, the judgment was entered with the consent of Mr Aldous within the meaning of s 101(2)(c) of the Supreme Court Act 1970 (NSW). Mr Aldous also requires a substantial extension of time. His summons seeking leave to appeal was filed on 15 March 2017, some six months after the orders were made.

4. The factual and procedural background of the dispute between these parties is lengthy, but may be stated very concisely for present purposes. For many years, Mr Aldous and the bank have been in dispute. Proceedings were commenced by the bank seeking to recover moneys lent by it to him in 2013 and Mr Aldous filed a substantial cross claim. The proceedings were listed for final hearing before the primary judge on 2 June 2016. His Honour proceeded to deal with the cross claim first. Mr Aldous was at that time represented by a solicitor.

5. An order had been made appointing Mr Aldous’ wife as his tutor, apparently in 2015. Following Mr Aldous’ cross examination, the judge observed, “The evidence reveals no legitimate basis for the appointment of his wife as a tutor and I think the appointment should be revoked.” After a short adjournment, the bank’s counsel and Mr Aldous’ solicitor indicated that they had no objection to that course and the primary judge revoked the order. His Honour also expressed some views which were, in terms, preliminary, including the following:

“You may seek to persuade me otherwise and these are only preliminary views, but my current view - having the evidence fresh in my mind - is that I do not accept that at the relevant time, Mr Aldous did not know what he was doing and I do not accept that at that time of his dealings with the bank he suffered from any material cognitive impairment.”

6. The matter was adjourned part-heard to Wednesday 28 September 2016. At least from mid July until late September there were negotiations between the parties directed to settling the proceedings. On 16 August 2016, Mr Aldous made an offer to settle the proceedings for $3,000 to be paid by him (it is clear that by this time Mr Aldous was unrepresented). That offer was rejected, but by letter dated 22 August 2016, the solicitors for the bank offered to settle the proceedings for $5,000. That amount was to be paid on or before 26 September and Mr Aldous was also required to provide a duly signed and executed consent judgment for the full amount of the bank’s claim.

7. On 29 August 2016, Mr Aldous sent an email to the bank’s solicitor in the following terms:

“I won’t be relying or paying for the services of a solicitor.

It is my interpretation - I sign before 2 Sept, 2016 that I pay $5,000 before 27 Sept, 2016 which is inclusive of everything, costs included. The matter is then filed in court as complete.”

8. On 19 September 2016, Mr Aldous completed in the presence of a Justice of the Peace a statutory declaration, making statements about the opportunity that he had had to obtain legal advice, annexing the email of 29 August 2016 and acknowledging that the bank was relying inter alia among those matters in entering into the agreement.

9. I can pass over the subsequent correspondence between the parties because on Friday 23 September 2016, the parties entered into a deed of settlement. There were some difficulties concerning its execution on the part of Mr Aldous (he signed and returned it but the signatures - or some of them - were in the wrong places) but nothing turns on that because ultimately on the afternoon of 23 September 2016, a properly executed document was given by the bank’s solicitors to Mr Aldous and he responded by email (at 4.12pm), “I agree to your attachment deed.”

10. The essence of the deed reflected the offer made on 22 August 2016. Mr Aldous agreed to pay the bank $5,000 before 5pm on Monday 26 September 2016, and in the event of default, the bank would be entitled to “immediately and without further notice enforce the executed consent judgment.” The deed made it quite plain that time was of the essence; that was the heading to cl 3. The executed deed annexed the consent judgment in the amount of $107,925.01 signed by Mr Aldous.

11. The date for payment, Monday 26 September 2016, reflected the fact that the proceedings were listed for the continuation of the trial the following Wednesday.

12. The $5,000 payment was not made by Monday 26 September 2016. On Wednesday 28 September 2016, the primary judge was told the matter had settled and made consent orders on an ex parte application by the bank. Later that day, Mr Aldous supplied submissions to the primary judge which made it plain that he disagreed that the bank had been entitled to enter judgment against him in the sum of the $107,925.01, and his Honour on his own motion either that afternoon or the following morning set aside the orders which had been made.

13. There was a further hearing on Thursday 29 September 2016. Once again, Mr Aldous did not appear at that hearing. The materials in the white folder include the email exchanges between the Associate of the primary judge, Mr Aldous, and the representatives of the bank which indicated that the matter was listed for hearing on 29 September at 10.30am. It was accompanied by a request for written submissions.

14. The primary judge gave an ex tempore judgment following that hearing. The judgment referred to the background summarised above and the evidence before him as to the correspondence between the parties over the last few days in which it appeared that Mr Aldous had paid $1,400 to the bank, although after the time which had been specified in the deed. His Honour addressed the submissions which had been made to him in writing by Mr Aldous and included the following passage:

“He said that he adequately made the bank aware on bona fide grounds of the reasons for the non-payment of the agreed $5,000 payment pursuant to the deed. He added that he has been overwhelmed by civil litigation for years; and that a further distraction to his litigation occurred last Friday, namely 23 September. He complained that the plaintiff’s solicitor was distracting him and that he had commitments to other litigation, including a matter before Judge Leatherbarrow in the District Court that had already gone to the Court of Appeal.

He contended that the plaintiff’s solicitor ‘gave me a real belief (not feasible) that if I missed the $5,000 payment by a process beyond my control or a few days, the CBA would, in good faith show similar common sense and discretion’. He added elsewhere that ‘the CBA knew beyond a reasonable doubt that I have little money and limited assets’. He added further that ‘I have [an] inability of handling money due to diagnosed mental health symptoms’. His submissions included much reference to medication. He endeavoured to explain that he had expected to pay the $5,000 with proceeds from a house painting job over the last weekend or from commission on a real estate transaction in which he acted as the agent. He said ‘I had no reason to not think the delay of a few days in the scheme of things would be a negative for the bank, especially if I had forwarded them what I could afford’.

I had the opportunity, on 2 June, to see and hear the defendant in the witness box and to consider many similar contentions by him about his alleged disabilities, his mental impairment, his inability to handle money and the medication which he said he was taking. I took the view at that stage, that most of Mr Aldous's evidence was delusional. I formed the provisional view that I could not accept his evidence in relation to the substantial allegations he made, including that he did not know what he was doing in his dealings with the bank. I did not think that he suffered from any material cognitive impairment. I generally formed the view that his evidence was unreliable, largely irrational, invariably unhelpful and probably not truthful.”

15. Mr Aldous’ draft notice of appeal and written submissions appear to have been drafted without the assistance of a lawyer. The proposed grounds of appeal include allegations that the primary judge was biased and should not have made any finding concerning Mr Aldous’ psychological impairment, and that the primary judge had communicated with the bank without the knowledge of him, and then there are a series of grounds directed to alleged errors in the conduct of the hearing in June 2016. The documents in support of the application for leave also challenge under the heading “Legal Unreasonableness” the orders on the basis that the primary judge erred in the exercise of his discretion.

16. As I noted at the outset, Mr Aldous has supplied lengthy materials in support of his application. They include a written submission of 25 pages plus attachments; and an affidavit which refers to an appointment Mr Aldous had with a psychiatrist on 23 September 2016, but otherwise provides no information about that appointment; and that in early October 2016, he was prescribed further medication which “resulted in me during the times to feel pretty unwell with consistent suicidal thoughts and inability of tending to my self employment.” The affidavit makes a number of serious allegations against the bank and its lawyers. Those allegations were repeated orally by Mr Aldous in court today. When asked to particularise the matters of which he complained, he referred to the numerous objections to his affidavit, most of which the primary judge rejected, and to his cross-examination to the effect that he was not mentally incapacitated, including by reference to his licence to work as a real estate agent.

17. I note that, save for what has been said, there was no explanation in the affidavit for the six month delay in bringing this application for leave to appeal. The majority of Mr Aldous’ submissions are directed to his dissatisfaction with the bank over many years, and in more recent times with the earlier phases of this litigation. So too, the large majority of Mr Aldous’ oral submissions were directed to that earlier period in time, despite the Court’s attempts to encourage him to focus on the events of 28 and 29 September 2016.

18. The only question arising on this application is whether there should be an extension of time, and the granting of leave to appeal against the trial judge’s decision to make the order to which Mr Aldous had consented in the event that he failed to pay the $5,000 for which the litigation had been compromised.

19. Notwithstanding Mr Aldous’ views to the contrary, I am of the view that this application involves no question of general principle. I am also of the view that it involves no question of general public importance. That of itself is not determinative of the matter. The real question that arises in the circumstances of this case is whether Mr Aldous has explained the considerable delay in bringing this application, and whether he has demonstrated an injustice in the sense going beyond something which is merely arguable.

20. In addressing that question, I bear in mind the following matters.    

1. There has been no substantial attempt by way of any evidence to explain the six month delay. I have earlier referred to the evidence in Mr Aldous’ affidavit. When asked, during the course of his oral submissions, he also referred to difficulties that he had had in the end of 2016, including certain difficulties with an elderly relative. There are substantial limitations upon that explanation, even if it were treated as evidence, in explaining the entirety of the delay that accompanies this application.

2. There is no dispute that the deed was executed by Mr Aldous.

3. It is true that Mr Aldous was unrepresented at the time and subsequently. That said, the compromise was straightforward. It was a compromise which was in the same terms as had been proposed for many weeks prior to the execution of the deed between the parties. In significant respects it was a minor variation upon the offer that had come from Mr Aldous slightly earlier in time. Mr Aldous, in the presence of a Justice of the Peace, executed a statutory declaration acknowledging his understanding of the compromise he was proposing to enter into, and that he had had the opportunity (which he chose not to accept) of obtaining legal advice.

4. So far as I can see, there is no persuasive evidence to suggest that any person on behalf of the bank led Mr Aldous to believe that it would be prepared to grant him additional time beyond 5.00pm on Monday, 26 September 2016 to make the $5,000 payment. Given the proximity of the hearing the following Wednesday and the history of this matter, it is inherently improbable that anything occurred which could have caused Mr Aldous to reach that view in the limited time that followed his execution of the deed on the Friday afternoon, and the expiration of the deadline at 5.00pm the following Monday.

5. The claims that there had been a breach of procedural fairness, or that the judge was biased, were matters which had not been raised before his Honour on 2 June 2016, when Mr Aldous was legally represented, and are very difficult to reconcile with his Honour’s setting aside the orders that had been made on 28 September 2016. It is to be emphasised that his Honour did that on his own motion, once he appreciated that there was material between the parties of which he was not aware including that Mr Aldous was objecting to the orders being made. That is not the conduct of a judicial officer whose mind is inflexibly determined to resolve a litigation in one particular way.

21. Against the foregoing, Mr Aldous complains, and if I may say so not without force, that the credit findings that were made at the conclusion of the passage which is reproduced above concerning his evidence being “unreliable, largely irrational, invariably unhelpful, and probably not truthful”, and in particular the observation that most of his evidence was “delusional”, were not accompanied by reasons. With some force today Mr Aldous has contended that there should have been reasons given for making those findings. I agree that it would have been desirable for his Honour to give reasons, even brief reasons, justifying the findings that his Honour made.

22. Against all of that though, it must be noted that the primary judge did have the opportunity to observe Mr Aldous being cross-examined at a stage when Mr Aldous was represented by a solicitor, and it should further be noted that following his observation at the time about mental incapacity, the order appointing a tutor was revoked, importantly without any objection from either side including Mr Aldous’ solicitor. Insofar as Mr Aldous has made serious allegations of impropriety against the bank and its lawyers, they are not borne out by the material on which he relies.

23. Bearing all of those matters in mind, and recognising as I do the limited nature of the scope of this Court’s jurisdiction on this application, I conclude that this is not a case where Mr Aldous has demonstrated any injustice which goes beyond the merely arguable. There is thus no basis for granting the substantial extension of time which is required to permit Mr Aldous to seek leave to appeal from the entry of the consent judgment which he has signed. I would therefore propose that the summons seeking leave to appeal filed on 15 March 2017 should be dismissed.

24. BEAZLEY P: I agree with the reasons of Leeming JA, and with the orders that he proposed.

[submissions concerning costs].

25. BEAZLEY P: The summons seeking leave to appeal is dismissed, with costs.

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Decision last updated: 18 October 2017