Australia and New Zealand Banking Group Limited v Ngo
[2023] VSC 706
•29 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
MORTGAGE RECOVERY LIST
S ECI 2019 00667
BETWEEN:
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) | Plaintiff |
| and | |
| CHUC HONG NGO | Defendant |
| AND BETWEEN: | |
| CHUCH HONG NGO | First Plaintiff by Counterclaim |
| and | |
| JESSICA’S PUBLIC PTY LTD (ACN 159 147 823) | Second Plaintiff by Counterclaim |
| and | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) | Defendant to Counterclaim |
---
JUDGE: | DELANY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2023 |
DATE OF RULING: | 29 November 2023 |
CASE MAY BE CITED AS: | Australia and New Zealand Banking Group Limited v Ngo |
MEDIUM NEUTRAL CITATION: | [2023] VSC 706 |
---
PRACTICE AND PROCEDURE — Application by self‑represented litigant to appeal decision of trial judge — Application for leave to appeal needs to be brought before Court of Appeal — Application refused.
PRACTICE AND PROCEDURE — Application by self‑represented litigant to re‑open case — No persuasive reason to re‑open case — Application refused — State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29; Wentworth v Woollahra Municipal Council (1982) 56 ALJR 745, applied.
PRACTICE AND PROCEDURE — Application by self‑represented litigant to set aside a warrant of possession — Warrant of possession does not exist — Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Currie | Thompson Geer |
| For the First Defendant | Ms Ngo | None |
HIS HONOUR:
Introduction
These reasons concern the application by the defendant, Ms Ngo, by Summons dated 22 November 2023 to set aside Orders and judgment made against her one year earlier, on 22 November 2022, to stay a warrant of possession and to reopen the trial hearing.
Ms Ngo is a self‑represented litigant. Her application was heard as an urgent application before me as the Duty Judge. She has received assistance and support in relation to her application and this hearing from the Court’s Self Represented Litigants Coordinator and from the Commercial Court Registry. I am aware that there were a large number of communications between Ms Ngo and the staff of those offices by telephone, by email and in person, in the days leading up to and on the day of the hearing. I wish to express my thanks to the staff of both offices for the assistance and support that they have provided to Ms Ngo.
As I told Ms Ngo during the course of the hearing, for the reasons that follow and which I sought to explain to her during the hearing itself, the Summons must be dismissed. If Ms Ngo is to obtain orders that overturn the orders made on 22 November 2022, which is what in substance she seeks, Ms Ngo will need to initiate a proceeding in the Court of Appeal seeking leave to appeal and for an extension of the time within which to bring such an application.
During the hearing, in the course of which Ms Ngo was at times quite agitated and distressed, Ms Ngo received support from a representative from Court Network Support Services. Towards the end of the hearing the representative from Court Network Support Services indicated her willingness to support Ms Ngo and to take her to the office of the Self Represented Litigants Coordinator where staff are available to assist with the necessary papers, should she wish to pursue a proceeding in the Court of Appeal. I wish to expressly acknowledge and thank that representative for her attendance at the hearing and for the provision by her of support to Ms Ngo.
While I appreciate that Ms Ngo is distressed and anxious about the litigation, it is important to note that, following my decision, any further actions that she may wish to take that involve the Court will need to be taken by her in the Court of Appeal pursuant to an application. In those circumstances, it is no longer appropriate that Ms Ngo should call or contact the Commercial Court Registry or for that matter the Common Law Registry of the Trial Division by telephone, email or in person. It is not the role of the staff in those registries to assist self‑represented litigants, and certainly it is not their role to do so when any proceeding which Ms Ngo may now wish to bring is appropriately commenced in the Court of Appeal.
The plaintiff in the proceeding, the Australia and New Zealand Banking Group Limited (the ‘ANZ’) was on notice of Ms Ngo’s application and was represented by counsel at the hearing.
It is necessary to say something about the history of the proceeding in which Ms Ngo issued her application and then to discuss the three discrete aspects of her application:
(a) The application to set aside the Orders and judgment dated 22 November 2022;
(b) The application for a stay of a warrant of possession; and
(c) The application to reopen the trial.
The history
The procedural history of the proceeding, including of Mr Ngo’s communications with the Court, her various applications for adjournment of the trial, details of the trial itself which commenced on 16 May 2022, but was adjourned after a short time and resumed on 18 July 2022 when the trial concluded, is set out in careful detail at paragraphs [14]‑[69] of the reasons and judgment in Australia and New Zealand Banking Group Limited v Ngo [2022] VSC 713 (the ‘trial reasons’).
As recorded in the trial reasons, for most of the proceeding, Mr Ngo, who is an accountant and tax adviser has been self‑represented. She was referred for assistance to the Victorian Bar’s Pro Bono Scheme and for a time was represented by counsel as a result of that referral. However, Ms Ngo decided that she did not wish to be represented by counsel and thereafter, including during the trial of the proceeding, she appeared on her own behalf and, with leave, on behalf of the second plaintiff by counterclaim, Jessica’s Public Pty Ltd, a company of which she is or was a director.
As recorded in the trial reasons, the proceeding was one commenced by the ANZ bank to recover debts owed by Ms Ngo pursuant to various loan facilities and to seek possession of two properties owned by Ms Ngo mortgaged as security for those facilities. One property is a residential property located at 37 Sheila Street, Preston (the ‘Preston Property’) and the other is a commercial office suite located at Unit 15, 471‑475 Sydney Road, Coburg (the ‘Coburg Property’).
Prior to the trial which commenced on 16 May 2022, including in the lead up to the trial, various applications were brought by Ms Ngo to adjourn the proceedings and the trial. A number of those applications relied on psychological stress and physical pain and injuries experienced by Ms Ngo.
In the course of communications with the Chambers of the trial judge, Osborne J, on 11 May 2022, Ms Ngo sought an adjournment of the 16 May 2022 trial due to illness.[1] On 14 May 2022, the adjournment application, which was opposed by the ANZ bank, was heard and was refused.
[1]Trial reasons, [40].
At 9:14am on 16 May 2022, the morning of the trial, Ms Ngo sent an email which read to the following effect:
Dear Justice Osborne,
The court book [was] amended in the last [minute]. Due to my illness I can’t do things in the last [minute], [the trial] hearing [needs to be rescheduled]. I [want a] … new date please. Matter of [life and death] threatens. I have witness[es] they are here[,] monks give me mental treatments, they [are] all here.
I … sincerely [apologise].
The Chambers of Osborne J responded to Ms Ngo via email, confirming that the trial was to proceed as scheduled.
The 16 May 2022 trial was conducted by way of a Zoom hearing. The following paragraphs from the trial reasons describe what took place when the remote trial commenced:[2]
[2]Trial reasons [51]–[57] (citations omitted).
51 The matter was subsequently called on for hearing. On the screen, it could be seen that Ms Ngo was lying in bed, attended to by at least three people, presumably the monks, who were apparently providing her with care. It appeared as though one of the monks was holding a mobile phone, on which the hearing was accessible to Ms Ngo.
52 In order to be satisfied that the technical requirements were met for the trial to proceed such that orders could be made in accordance with ss 42E and G of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), I asked Ms Ngo whether she could see and hear me. In response, an unidentified speaker advised that he was ‘sorry’ and that Ms Ngo could not talk because she was ‘very sick’. I asked the speaker to identify himself, but he did not do so. When I sought clarification from Ms Ngo as to whether she was applying for an adjournment, she confirmed that she was and would be able to provide a medical certificate later that day. ANZ opposed the adjournment. I stated that I was not prepared to grant an adjournment without a medical certificate and noted that this was third application for an adjournment based on a suggestion of ill health, the most recent of which was made on the preceding Friday.
53 Ms Ngo and her attendants remained visible on screen while counsel for ANZ opened the case.
54 After approximately 15 minutes, Ms Ngo’s attendant moved the mobile phone camera to show the Court the arrival of paramedics at Ms Ngo’s home. The paramedics appeared to be hesitant at what seemed to be an individual filming their arrival and asked that the attendant stop filming. Subsequently, the mobile phone was moved to a separate room and the Court was no longer able to view Ms Ngo or ascertain what was occurring at her residence.
55 As a result, I stood the matter down and left the bench. During my absence from the bench, my associate informed an attending paramedic that a Court proceeding was occurring by Zoom, through the mobile phone. The paramedic advised that they had received a call regarding a medical emergency involving Ms Ngo. The paramedic also advised that Ms Ngo was awake and that they were attempting to understand Ms Ngo’s current circumstances. My associate obtained confirmation from the paramedic that a call was received at 10:16am, and that the call to the ambulance service was placed by one of the other occupants in the house.
56 Some short time later, once Ms Ngo’s circumstances had apparently been clarified, I returned to the bench. The paramedic confirmed that Ms Ngo was awake and was talking to them, but was quite distressed. The paramedic advised they had concerns for Ms Ngo’s mental wellbeing, based on what she had told them. For that reason, Ms Ngo was to be transported to the Austin Hospital for a mental health assessment. The paramedic also referred to Ms Ngo’s complaints of ongoing back pain. Ms Ngo was then taken out of her room for transportation to the Austin Hospital. In those circumstances, the trial was adjourned part heard to 18 July 2022. A date in July 2022 had previously been requested by Ms Ngo.
57 Accordingly, on 16 May 2022, orders were made adjourning the matter to 18 July 2022 and reserved the day’s costs. A copy of the orders was circulated to the parties.
On 17 June 2022, the Court not having received any further communication for either party made orders on its own motion:[3]
[3]Trial reasons, [58].
1 Subject to further order, the resumed trial fixed for 18 July 2022 shall take place in person in a courtroom to be advised.
2 In the event that Ms Ngo wishes to make any application to adjourn the further hearing of the trial listed for 18 July 2022 for medical reasons, she shall give notice of such application by no later than 4:00pm on 4 July 2022 and shall do so by way of provision of a copy of any of the following:
(a)a sworn affidavit in support;
(b)an affidavit of a medical professional or a report by a medical professional; or
(c)copies of any report or assessment provided to Ms Ngo from the Austin Hospital as a consequence of her admission to that hospital on 16 May 2022.
A further order was made that, in the event that Ms Ngo wished to rely on an affidavit from a medical professional or a medical report, she should take all reasonable steps to ensure that medical professional was available to be examined if required.[4]
[4]Trial reasons, [59].
The proceeding was listed for directions on 8 July 2022, at which time Ms Ngo made a further application for an adjournment on two bases:[5]
[5]Trial reasons, [61].
(a) first, because Ms Ngo had lodged a further complaint with the Australian Financial Complaints Authority; and
(b) second, because Ms Ngo continued to experience depression and anxiety which was causing her back pain.
The adjournment application was refused.
On 18 July 2022, shortly prior to the recommencement of the trial, Ms Ngo sent another email applying for a further adjournment on health grounds. That adjournment was refused.
When the matter was called on for trial on 18 July 2022 Ms Ngo was not present in court. When the Associate to Osborne J called Ms Ngo three times outside the body of the Court, as set out in the trial reasons:
Ms Ngo responded by appearing on the screen located in the courtroom via an earlier provided Zoom link. Ms Ngo confirmed that she sought a further adjournment until a date in September 2022 on the basis of her health condition and indicated that she hoped her condition would be better then. ANZ opposed the application for a further adjournment, submitting that the matter was not suitable for another delay and that the medical evidence before the Court was not sufficient to enable the grant of another adjournment. Counsel noted that the medical material did not identify when Ms Ngo was likely to recover or when the trial would be able to proceed and submitted that all that the medical material did was set out Ms Ngo’s medical issues. Counsel for ANZ submitted that the trial could not be adjourned indefinitely and that there was nothing on the current material which suggested Ms Ngo’s condition would improve.
I rejected the adjournment application on substantially the same grounds as those the subject of the earlier refusals, including that I could not be satisfied that there was any reasonable prospect that Ms Ngo’s condition would improve by September 2022, noting that Ms Ngo had earlier sought an adjournment to July 2022 and that this date had now come and additionally, that both the March 2022 and May 2022 trials had been adjourned. I observed that it was clear from the medical reports that the stress of the litigation was a primary cause of Ms Ngo’s condition and that the only way that the litigation would go away was either if ANZ abandoned its case, which it was not willing to do, or if the case was heard and determined.
…
Ms Ngo participated in the trial by way of Zoom. Ms Ngo made her submissions courteously, coherently and to my observation, without obvious impediment from the health issues previously raised.
At the completion of the hearing on 18 July 2022 Osborne J reserved his decision. There was no application by Ms Ngo to reopen the trial or to induce further evidence prior to the publication of the 22 November 2022 trial reasons.
On 22 November 2022, the Court made orders, in substance, that the ANZ cover possession of the Coburg Property and the Preston Property. Ms Ngo was ordered to pay ANZ the sum of $834,703.10 together with interest on the Business Loan at the rate of $54.57 from 19 July 2022 to the date of judgment. The counterclaim was dismissed.
The application to set aside the Orders and judgment dated 22 November 2022
It is clear from the affidavit made by Ms Ngo in support of her summons that she wishes to appeal the decision of the trial judge. Her affidavit identifies various asserted errors in the trial reasons. During the hearing I discussed some of those alleged errors with Ms Ngo.
As I explained to Ms Ngo in the course of the hearing, if he wishes to file an appeal against the orders made by Osborne J on 22 November 2022 she will need to file a notice of appeal seeking leave to appeal and asking the Court of Appeal to extend the time for instituting her appeal. She will need to explain the reasons for her delay in instituting her application to the Court of Appeal.
The legal principles that govern the extension of time for an application for leave to appeal are summarised as follows in the submissions filed on the hearing of this application on behalf of the ANZ:
9. The power to extend time was considered by McLeish JA and Riordan AJA in Kambouris v Kiatos,[6] at [23]:
In deciding whether an extension of time to seek leave to appeal should be granted, the Court will take into account several factors, including: (a) the length of delay; (b) the reasons for delay; and (c) the extent of any prejudice suffered by the respondent if the extension is granted. An extension of time will not be granted if the appeal ‘is so devoid of merit that it would be futile to do so.
10. The power to extend time was also considered by Kaye JA and Niall JA in Beling v Victorian Legal Services Commissioner,[7] at [48]:
The exercise of the discretion must be undertaken taking into account that the overarching purpose of the Rules is to facilitate ‘the just, efficient, timely and cost effective resolution of the real issues in dispute’, and that, upon the expiry of the time limited for the appeal, the respondent had a vested right to retain the judgment obtained at first instance unless the application for an extension of time is granted.
[6][2016] VSCA 266.
[7][2021] VSCA 256.
During the hearing my Associates provided Ms Ngo with a hard copy publication titled “A guide to representing yourself in a Court of Appeal civil proceeding.” I also provided Ms Ngo with information about how to get in contact with the Self‑Represented Litigants Coordinator who may be able to assist with the forms and processes that she will need to complete if she wishes to pursue an application to the Court of Appeal.
As I told Ms Ngo, any application to set aside the orders and the judgment dated 22 November 2022 needs to be brought before the Court of Appeal rather than before a judge of the trial division. That elements of the relief sought by Ms Ngo’s summons is refused.
The application for a stay of a warrant of possession
The Summons dated 22 November 2023 seeks an order to stay a warrant of possession.
There is currently no warrant of possession in respect of either the Coburg Property or the Preston Property. Ms Ngo did not produce a copy of a warrant and counsel for the ANZ informed me that there is currently no “live” warrant of possession. I was informed that the Coburg property has been sold and that the ANZ has not made an application for a warrant in relation to the Preston property.
Because there is currently no warrant, there is no basis to grant a stay of a warrant of possession. That element of the relief sought by the Summons is refused.
The application to re-open the trial
The Summons dated 22 November 2023 also seeks to re‑open the trial. The affidavit in support of the Summons does not identify what is the more usual basis for an application to reopen, evidence that was unavailable or not reasonably discoverable before the end of the trial which has now been discovered.
Understandably, courts are very reluctant to allow a trial to be re‑opened once the evidence is complete and, even more so, once the court has published its reasons for decision.
In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2),[8] the State Rail Authority of New South Wales sought an order to vacate certain orders made by the High Court which were made in part determination of appeals from two decisions in the New South Wales Court of Appeal. On the power to re‑hear a case, the High Court held that:[9]
it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprison is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae’s case, Lord Brougham said, in words which the Authority claims are apposite to the present case (at 220; ER at 284): “It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of the last resort, where by some accident, without any blame, the party has not been heard, and an order has been inadvertently made as if the party had been heard.”
[8][1982] HCA 51; (1982) 150 CLR 29.
[9]Ibid, 296 (Mason, Wilson and Brennan JJ).
In Wentworth v Woollahra Municipal Council,[10] the applicant sought to reopen a decision of the High Court. The High Court held that:[11]
as we had occasion to point out recently in State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 ALR 289, the circumstances in which this court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.
[10](1982) 56 ALJR 745.
[11]Ibid, 241 (Mason ACJ, Wilson and Brennan JJ).
Although the Summons seeks an order that the trial be re‑opened, nothing in the affidavit in support addresses why it may be appropriate for the trial to be re‑opened. There was no application re‑open the trial between the closing submissions in July 2022 and publication of the reasons in November 2022.
Although the categories in which a Court might determine to re‑open a trial are not closed, there is nothing about this case that suggests that it is one of those “extremely rare” cases where it would be appropriate to re‑open the trial. As I have earlier mentioned, the real complaint raised by Ms Ngo is a complaint of alleged error on the part of the trial judge. Such a complaint, if it is to be pursued, should be pursued on appeal.
The application to re‑open the trial is refused.
Costs
The ANZ seeks an order that Ms Ngo pay the plaintiff’s costs of the summons, including the costs of the hearing. The ANZ has been successful, Ms Ngo has been unsuccessful. There is no reason in the present case why costs should not follow the event. I will order that Ms Ngo pay the ANZ’s costs of the summons dated 22 November 2023 and of the hearing on a standard basis.
---
0
1
0