Australia and New Zealand Banking Group Ltd v Manny (No 4)
[2013] ACTSC 236
•2 December 2013
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
V JEFF MANNY (No 4)
[2013] ACTSC 236 (2 December 2013)
MORTGAGE – mortgage on the appellant’s property as security for home loan and investment loan – appellant defaulted – notice of default event given – respondent entitled to possession
APPEAL – General principles – appeals from the Master – appeals against interlocutory orders of the Master – requirement for appeals against interlocutory orders of the Master to be heard by a single judge of the Supreme Court – “outmoded and inappropriate”
PROCEDURE – Miscellaneous procedural matters – distinction between interlocutory and final orders
PROCEDURE – Miscellaneous procedural matters – allegation of contempt of orders of the Family Court of Australia – decisions of the Family Court of Australia as decisions of a superior court of record – decision of that Court valid until set aside
PROCEDURE – Miscellaneous procedural matters – counterclaims – validity of decision to split from the main claim under r 471 – decision valid
PROCEDURE – Miscellaneous procedural matters – filing of submissions after subsequent to conclusion of the hearing – requirement for leave – application to unrepresented litigants – leave granted
Corporations Act 2001 (Cth), s 420
Court Procedures Act 2004 (ACT), ss 80, 118
Family Law Act 1975 (Cth), ss 21, 78, 79, 90AE
Judiciary (Stay of Proceedings) Act 1933 (ACT), s 4
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 3
Land Titles Act 1925 (ACT), ss 58, 93, 96
Supreme Court Act 1933 (ACT), ss 9, 37E
Court Procedures Rules 2006 (ACT), rr 441, 447, 462, 471, 1146, 1153
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Ash v Hutchinson & Co (Publishers) Ltd [1936] 1 Ch 489
Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536
Australia and New Zealand Banking Group Ltd v Manny (Unreported, ACT Supreme Court, Burns J, 14 March 2012)
Australia and New Zealand Banking Group Ltd v Manny [2012] ACTSC 205
Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116
Australia and New Zealand Banking Group Ltd v Manny (No 2) [2013] ACTSC 143
Australia and New Zealand Banking Group Ltd v Manny (No 3) [2013] ACTSC 223
Bank of New South Wales v Murray [1963] NSWR 515
Browne v The Queen [2006] ACTCA 15
Callaghan v Hanson-Fox [1992] Fam 1
Cameron v Cole (1944) 68 CLR 571
CAO v HAT [2013] QCA 272
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
CDJ v VAJ (1998) 197 CLR 172
Chapman v Caska [2005] NSWCA 113
Citibank Savings Ltd v Stergiou (1996) 66 FCR 587
Cleary v Rinaudo [2012] ACTSC 179
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2003) 203 CLR 194
Cox Brothers (Australia) Ltd v Cox (1934) 50 CLR 314
Crosland v Crosland [1947] P 12
Daewoo Australia Pty Ltd v Porter Crane Imports Pty Ltd [2000] QSC 50
DMW v CGW (1982) 151 CLR 491
Duchess of Kingston’s Case [1775-1802] All ER Rep 623
Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48
Earl Bandon v Becher (1835) 3 Cl & Finn 479; 6 ER 1517
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Frazer v Walker [1967] 1 AC 569
Gray v Webb (1882) 21 Ch D 802
Hall v Nominal Defendant (1966) 117 CLR 423
Hillier v The Queen (2008) 1 ACTLR 235
Hip Foong Hong v H Neotia & Co [1918] AC 888
Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348
House v The King (1936) 55 CLR 499
Hunt v Knabe (No 2) (1992) 8 WAR 96
In the Marriage of Lanceley (1994) 18 Fam LR 71
In the Marriage of Warby (2001) 28 Fam LR 443
Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Jin v Ai [2011] ACTSC 70
John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd (1938) 60 CLR 1
Jonesco v Beard [1930] AC 298
Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Licul v Corney (1976) 50 ALJR 439
Luck v University of Southern Queensland (2009) 176 FCR 268
Manny v Australian New Zealand Banking Group Ltd [2012] ACTCA 40
Manny v Australian New Zealand Banking Group Ltd (No 2) [2012] ACTCA 41
Manny v Sims [2011] ACTSC 58
Manny v Sims [2012] ACTCA 42
Manny v Sims [2013] ACTCA 9
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462
New South Wales v Kable (2013) 298 ALR 144
Ousley v The Queen (1997) 192 CLR 69
Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451
Re an application by Chief Commissioner of Police (Vic) (2005) 79 ALJR 881
Re the will of F B Gilbert (dec’d) (1946) 46 SR(NSW) 318
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Re Macks; Ex parte Saint (2000) 204 CLR 158
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Sirius Shipping Corporation v The Ship ‘Sunrise’ [2007] NSWSC 766
Staniar v Evans (1886) 34 Ch D 470
State Bank of Victoria v Parry [1989] WAR 240
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Union Offset Pty Ltd v Whigham (1977) 14 ACTR 43
Wills v Australian Broadcasting Corporation (2009) 173 FCR 284
Witham v Holloway (1995) 183 CLR 525
No. SC 746 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 2 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 746 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
Plaintiff
AND:JEFF MANNY
Defendant
AND:ANTHONY SIMS AND STEPHEN PARBERY
First Defendants to the Amended Counterclaim
AND:SHANE O’KEEFFE AND MURRAY SMITH
Second Defendants to the Amended Counterclaim
ORDER
Judge: Refshauge J
Date: 2 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The parties be heard as to costs.
The order for summary judgment given on 26 July 2013 be stayed for 28 days, until
30 December 2013.
The defendant, Jeff Manny, has appealed against a decision of the Master in which his Honour entered summary judgment for the plaintiff, the Australia and New Zealand Banking Group Limited (the ANZ Bank), on one of its claims and made other orders.
BACKGROUND
The proceedings are to be seen in the context of, but are not necessarily directly related to, other proceedings involving Mr Manny.
A short background is therefore of assistance in understanding this proceeding.
Mr Manny was a developer who had, by mid-2009, built up, through trusts and companies which he controlled, a substantial portfolio of residential and commercial real property. It appears that some of the property was acquired as a result of funds advanced by the ANZ Bank, secured by various means over various properties.
In circumstances not directly relevant, the ANZ Bank appointed receivers of certain of the residential and commercial properties over which it had mortgages for the purpose of collecting the rents of the properties and subsequently sought to sell the properties. On 21 January 2011, the ANZ Bank extended the appointment of the receivers to be receivers and manager of the charged property generally. On 28 February 2011, the ANZ Bank appointed administrators of certain of the companies.
THESE PROCEEDINGS
The commencement of these proceedings
On 27 October 2011, the ANZ Bank commenced these proceedings against Mr Manny by Originating Claim which was accompanied by a Statement of Claim for debt and possession of land.
The Statement of Claim pleaded two agreements by the ANZ Bank to provide credit to Mr Manny personally under the Agreements, included in the terms of each of which was a requirement that Mr Manny would make repayments during the term of each Agreement.
It further pleaded that Mr Manny had defaulted under each of the Agreements by failing to pay the sum of $11,683.45 on 2 September 2011.
Relevant default notices, it was pleaded, were served and thereupon the sums of $354,360.89 under the First Agreement and $70,330.60 under the Second Agreement became due and payable on 21 October 2011.
The Statement of Claim further pleaded that Mr Manny is the registered proprietor of certain property at Flynn and that he secured his performance under the Agreements by a Mortgage over that property granted to the ANZ Bank. The Mortgage required that Mr Manny pay the moneys due under the Agreements, where failing to make each such payment constituted a breach of his obligations under the Mortgage; that breach amounted to a default under the Mortgage.
Upon default, the Statement of Claim pleaded, the ANZ Bank was given a right to possession of the property. Mr Manny failed to pay the moneys that were due as at 2 September 2011 and, accordingly, the ANZ Bank served relevant notices of its intention to take possession of the property if the default was not remedied within thirty-one days after service of the notice, it was pleaded in the Statement of Claim.
The Statement of Claim further pleaded that the money unpaid as at 21 October 2011 was $424,691.49.
The Statement of Claim sought the following relief:
(a) Payment of the amount claimed of $424,691.49, being $354,360.89 owing under the First Agreement and $70,330.60 owing under the Second Agreement as at 21 October 2011;
(b) Possession of the Land, namely the residential lease at Flynn;
(c) Leave to issue an order for delivery of possession of the Land; and
(d) Payment of interest and costs.
The interest claimed under the provisions of both Agreements was currently 7.10% p.a. from 22 October 2011 until the day of judgment.
The Statement of Claim also claimed costs which were payable under the Mortgage.
The defence
Mr Manny filed a Notice of Intention to Respond on 6 January 2012. Although generally following the prescribed form, it unnecessarily contained what can only be described as a commentary on the Statement of Claim alleging a range of procedural and substantive errors and asserting what was described as “a strong defence and counter claims”. It was inappropriate to include this material in that document.
There were then a number of interlocutory skirmishes of various kinds made after that: Australia and New Zealand Banking Group Ltd v Manny (Unreported, ACT Supreme Court, Burns J, 14 March 2012), Manny v Australian New Zealand Banking Group Ltd [2012] ACTCA 40; Australia and New Zealand Banking Group Ltd v Manny [2012] ACTSC 205 and Manny v Australian New Zealand Banking Group Ltd (No 2) [2012] ACTCA 41.
In addition, Mr Manny commenced separate proceedings concerning the validity of the appointment of the receivers and administrators: Manny v Sims [2011] ACTSC 58. There were also appeals in those proceedings: Manny v Sims [2012] ACTCA 42; Manny v Sims [2013] ACTCA 9.
Finally, however, Mr Manny filed and served a Defence and Counterclaim on 16 November 2012. As Mr Manny had no legal representation, the rules of pleading were not observed but the following may be discerned from the document.
Mr Manny initially simply denied each of paragraphs 5 to 24 of the Statement of Claim. Thus, he admitted only the incorporation of the ANZ Bank and that it had agreed to provide credit to Mr Manny under the First Agreement. Every other allegation was, and was merely, denied. This, of course, is often insufficient for r 441 of the Court Procedures Rules 2006 (ACT).
It asserted, without required particularity, that the non-payment of the moneys due under the Mortgage (which mortgage, despite the denials, Mr Manny appears to have been admitted that he gave) was caused by the alleged unlawful appointment of the receivers and the administrators and their alleged unlawful behaviour. The best that can be said for these pleadings was that there might be a germ of a claim for an equitable set-off whereby the alleged conduct, were it to be properly claimed, and to sound in damages, might amount to an impeachment of the claim by the ANZ Bank. See Rawson v Samuel (1841) Cr & Ph 161 at 178; 41 ER 451 at 458. The pleadings, however, did not make out such a claim at all.
In addition, Mr Manny pleaded a Counterclaim alleging that there were terminations of Mr Manny’s employment and of contracts of one of his companies with some of those companies in receivership and under administration. He alleged that these terminations caused him cash flow problems. There were a number of other allegations of behaviour that he alleged was contrary to law or had detrimental effects but failed to plead any actual causes of action.
On 7 February 2013, Mr Manny filed an amended Defence and Counterclaim. So far as the Defence was concerned, it made some differences. For example, Mr Manny altered the denial of a number of facts alleged in the Statement of Claim to a plea that he “doesn’t deny” the relevant facts. Those would, in my view, amount to implied admissions under r 447 of the Court Procedures Rules, especially as the Statement of Claim clearly pleaded the relevant facts, as required by authorities such as Ash v Hutchinson & Co (Publishers) Ltd [1936] 1 Ch 489 at 503 (Greene LJ). There were, however, still denials to a number, but much reduced the number, of allegations in the Statement of Claim.
The matters to which I referred above (at [21]) were no longer pleaded in the Defence. Some seemed to be re-pleaded in the Amended Counterclaim. For reasons that will become apparent, I do not need to analyse the Counterclaim in detail. I note that it added the receivers and managers and administrators as additional parties, which is permitted in appropriate cases under r 462 of the Court Procedures Rules.
The original application
By Application in Proceedings dated 30 November 2012, the ANZ Bank sought judgment for the amounts claimed to be owing under the Agreements and for possession of the land mortgaged to secure the loans made under the Agreements.
The Application initially came on for hearing on 7 December 2012. On that day, Mr Manny sought and was granted leave to file a further Application in Proceedings seeking to set aside the ANZ Bank’s Application in Proceedings for judgment (though it referred to the wrong date) or, alternatively, time to “file Notice of Intention to respond or defence” (notwithstanding that both had already been filed). There were other orders sought. The learned Master, not being satisfied that the ANZ Bank’s Application should be dismissed, instead dismissed Mr Manny’s Application but confirmed directions I had earlier made to prepare the ANZ Bank’s Application for hearing. Mr Manny also filed, that day, an Amended Defence and Counterclaim.
Subsequently, the receivers and managers and the administrators each and separately (on 19 February 2013 and 22 February 2013, respectively) filed Applications in Proceedings seeking that the Amended Counterclaim be struck out so far as they were concerned, or for summary judgement for them on the Amended Counterclaim.
The Applications of the receivers and managers and the administrators came on for hearing on 7 June 2013 and, on 12 June 2013, the learned Master struck out certain portions of the Amended Defence and Counterclaim and ordered that Mr Manny pay the costs. See Australia and New Zealand Banking Group Ltd v Manny [2013] ACTSC 116. His Honour adjourned the proceedings for consequential orders and directions to 27 June 2013.
I do not need to record the tortuous history of the proceedings, but I note that the ANZ Bank’s Application for judgment came on for hearing before the learned Master on 27 June 2013. The Application was heard over two days.
On 26 July 2013, the learned Master made the following orders:
1. There be judgment for the plaintiff for possession of the land being Section 10, Block 45 on Deposited Plan 3404 Flynn, contained in certificate of title Volume 647, Folio 1, and known as 42 Barber Crescent, Flynn in the Australian Capital Territory.
2. The counterclaim brought by the defendant be heard separately from the hearing of the proceedings brought by the plaintiff.
3. The counterclaim filed on 7 February 2013 be struck out.
4. The defendant is not permitted to file any additional pleading for his counterclaim without the leave of the Court.
5. Any application for leave to file a further pleading for the counterclaim be filed and served within 28 days of the publication of these reasons and that any such application annex a copy of the proposed pleading.
6. If any proposed pleading for the counterclaim requires or results in the joinder of additional parties to the proceedings then any application to join those parties be heard at the same time as the application for leave to file the proposed pleading and the application for leave to file the pleading be served on any proposed new party to the proceedings.
7. The defendant is to pay the plaintiff’s costs of the application in proceeding dated 30 November 2012 and the amended application in proceeding dated 27 June 2013.
See Australia and New Zealand Banking Group Ltd v Manny (No 2) [2013] ACTSC 143.
The appeal
Being dissatisfied with that decision, Mr Manny appealed against it.
Initially, by Application in Proceedings dated 2 August 2013, he sought a stay of orders 1, 2, 3 and 7 of those made by the learned Master. That Application came on for hearing before Nield AJ who, with the consent of the ANZ Bank (the other parties neither consenting nor opposing), made the stay sought.
I later varied that order on 1 October 2013 as Mr Manny told me that he was proposing to file a Further Amended Counterclaim, making a stay of order 3 made by the learned Master on 26 July 2013 no longer appropriate.
On 2 August 2013, an appeal against the decision of the learned Master was lodged by Mr Manny. Mr Manny initially appealed only against orders 1, 2, 3 and 7 of the learned Master but by an Amended Notice of Appeal filed on 26 September 2013, appealed from all the orders of the learned Master.
The appeal was heard on 24 October 2013 by me, sitting as a single judge of the Supreme Court.
Five issues arose at the hearing of the appeal. A further issue as to further submissions arose subsequent to the proceedings. I will address these issues in turn. The six specific issues are:
1. Was the appeal validly constituted?
2. Should the hearing of the appeal have been vacated due to proceedings in the Family Court?
3. Was additional evidence able to be adduced on the appeal?
4. Should the appeal against the summary judgment be allowed?
5. Should the appeal against the orders on the Amended Counterclaim be allowed?
6. Should the further submissions of Mr Manny be allowed?
VALIDITY OF THE CONSTITUTION OF THE APPEAL
The ANZ Bank raised an initial argument that the appeal was not validly constituted because, it claimed, it was an appeal against a final order of the learned Master. Under s 9 of the Supreme Court Act 1933 (ACT), an appeal against a final order of the Master must be heard by the Court of Appeal; only an appeal from an interlocutory order of the Master is heard by a single judge. An appeal from an interlocutory order of a single judge of this court is to be taken, by leave, to the Court of Appeal (s 37E of the Supreme Court Act).
There are a number of issues, about this, which it is not inappropriate briefly to mention. In the first place, the width of the present jurisdiction of the Master, now coextensive with that of a single judge in civil matters (apart from appeals from the Magistrates Court and matters in the Court of Appeal), being a much wider a jurisdiction than that exercisable when the office of Master was first created, makes the distinction in the Court of where appeals from interlocutory orders are taken now quite outmoded and inappropriate. See Cleary v Rinaudo [2012] ACTSC 179 at [1]. This requires urgent legislative reform.
In the second place, the distinction between a final and an interlocutory order is never easy to draw. Indeed, as Gibbs CJ pointed out in Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248, “[t]he question [of] whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty”. There are a multitude of decisions on the question of what order is interlocutory and what is final, some of which are not always readily reconcilable with each other. While the underlying policy of the distinction has value, the difficulty of deciding on which side of the grey line between the two kinds of decision any particular decision falls means that such a distinction should be used sparingly and when there are not only good policy reasons for it but no reasonable alternatives.
Where the one appeal court can hear appeals from both kinds of orders, but only appeals from interlocutory appeals by leave, as is commonly the case, the court can grant leave, if necessary nunc pro tunc, if the appeal is before it on the wrong basis but ought to be heard, even though leave was not initially granted. This can avoid injustice. This is not possible here, where the appeals from the different kinds of orders are heard by different courts.
It is worth mentioning that to align appeals from the Master with those from a single judge of this Court would also introduce the need for leave to appeal from interlocutory orders. Presently, a litigant has a right of appeal from an interlocutory order of the Master, but, had the same decision been made by a single judge (which it could easily have been), it would have required leave before the appeal could be brought. The sifting process that the requirement for leave permits has significant benefits to the costs and efficiency of litigation at a time when both are challenging to courts. I referred to the rationale for the need for leave in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44 at 51; [23]-[27]. The points I made there remain valid.
The ANZ Bank submitted that the first order of the learned Master, as set out above (at [30]), was a final order and so any appeal had to be taken to the Court of Appeal.
The ANZ Bank submitted that an order granting summary judgment was a final order and this is what the learned Master had done.
Historically, the position of summary judgment orders was not clear cut. In Cox Brothers (Australia) Ltd v Cox (1934) 50 CLR 314, the High Court held that an order granting an application for summary judgment was an interlocutory order. That was, however, because, as the Court held (at 316), the order on the application was for leave to be given to enter judgment.
That is no longer required, however, and, as the learned Master did in this case as I set out above (at [30]), the judgment itself is now entered. Where that is the order made, the current weight of authority is very clearly that such an order is a final order. See Hunt v Knabe (No 2) (1992) 8 WAR 96 at 108-9; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462 at 464; [5]-[6]. The position may be different in the Federal Court of Australia because of the particular legislation regulating it: Luck v University of Southern Queensland (2009) 176 FCR 268 at 291-5; [96]-[112] (Rares J).
That, however, is only part of the requirement. The order itself must “finally determine the rights of the parties in a principal cause pending between them” as Windeyer J pointed out in Hall v Nominal Defendant (1966) 117 CLR 423 at 443. It is, however, not enough that it finally determine the particular application out of which the order arises. In Licul v Corney (1976) 50 ALJR 439 at 441 (Barwick CJ), 444 (Gibbs J), the High Court described a final order as one which finally determines the rights of the parties.
In this case, the judgment of the learned Master resolved the issue of whether the ANZ Bank was entitled to possession; it did not, however, resolve the question of what, if any, debt was payable by Mr Manny to the ANZ Bank. In this sense, then, it was a partial summary judgment.
It is, however, clear that a partial summary judgment is not a final judgment, but is an interlocutory judgment, as held in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 392-3; [64]-[70] (Rares J), 418-22; [174]-[191] (Gordon J). See also Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348 at 360; John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd (1938) 60 CLR 1 at 35, and Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 290; [30].
Accordingly, I dismissed the challenge to the competency of the appeal.
VACATION OF THE APPEAL HEARING DATE
Mr Manny sought that the hearing of the appeal not proceed. The basis for his application was that he had commenced proceedings in the Family Court of Australia against the ANZ Bank for contempt of the orders of that Court and that he would be seeking to have these matters cross-vested to that Court.
It was not clear to me what the basis was for the contempt. It seemed to arise from orders made by that Court on 13 July 2010 when the Court made an order, inter alia, that:
The husband [Mr Manny] is declared to be the owner both at law and in equity of the property situate and known as 42 Barber Crescent, Flynn, ACT
In its very literal form, this declaration might be suggested to be a declaration that Mr Manny is the legal and equitable owner of the property to the exclusion of the ANZ Bank as mortgagee. It appears that, at least at some stage, the ANZ Bank was a party to those Family Court proceedings (it is so described in the title to the order). At the very least, it was clear it had notice of the proposed orders. That would permit, it would appear, the Court to make a declaration binding the ANZ Bank, as a third party, as held in In the Marriage of Warby (2001) 28 Fam LR 443 at 477; [87]. See also In the Marriage of Lanceley (1994) 18 Fam LR 71 at 89-90.
I was, however, provided with little assistance to determine the exact extent of the order. Nevertheless, doing the best I can, I considered that it did not extinguish the rights of the ANZ Bank as mortgagee for the following reasons:
1. It did not say so. The declaration, presumably made under s 78 of the Family Law Act 1975 (Cth), was not made to quell any controversy between the parties to the marriage (that is, Mr Manny and his former wife) and the ANZ Bank in respect of the subject property. Thus, it was not an exercise of the accrued jurisdiction. See In the Marriage of Warby.
2. It would require very clear words to extinguish rights of the ANZ Bank for no apparent juridical reason. See Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 355. The declaration did not seem to be in such clear terms so far at least as the ANZ Bank was concerned.
3. There were no consequential orders, which may be made under s 78(2) of the Family Law Act, and which would be required to remove the mortgage on the property. Without such orders, the indefeasibility of the Register of Titles would maintain the interest of the ANZ Bank in the property as mortgagee, as provided for in s 58 of the Land Titles Act 1925 (ACT). See Frazer v Walker [1967] 1 AC 569.
4. It is clear from the terms of the order as a whole, particularly what is noted at paragraph 4 of the order, that the intention of the Order is not, in this respect, to alter the interests of the parties. Paragraph 4 of the Order was in the following terms:
As a consequence of the orders I make hereunder, the parties are to retain proprietary ownership of the houses in which they presently reside, and, thereafter, the wife is to receive 57 per cent of the total remaining net assets of the parties and the husband is to receive 43 per cent of the total value of the remaining net assets of the parties.
5. It seems to me that the matrimonial property the subject of the proceedings and to which s 78 of the Family Law Act gave the Family Court power to make declarations was the interest that Mr Manny (or his former wife) had in the subject property; that was the interest subject to the interest of the ANZ Bank.
6. It also seems to me that, if there were to be alterations to property interests, these would have to be made under s 79 of the Family Law Act, in which case the Court would have to make an order under s 90AE of the Family Law Act, namely, an order binding a third party. In my view, the subject order was not an order under any of these provisions.
7. Finally, the history of the proceedings seems to support this. On 21 May 2010, Faulks DCJ made orders that required the ANZ Bank to notify the Registrar if it wished to be heard in relation to certain attached proposed orders. One of these was in the following terms:
Kazuko Manny (‘the wife’), is declared to be the sole registered proprietor of the property situate and known as 58 Barnard Crescent, Florey, in the Australian Capital Territory (‘the Barnard Crescent property’).
Three points arise from this. In the first place, there was no similar order proposed in those orders in relation to the subject property at Flynn. Secondly, the orders actually made on 13 July 2010 omitted the word “sole”, and thirdly the ANZ Bank appears to have sought to be heard as the orders of 13 July 2010 were in somewhat different terms.
Therefore, it would appear that there is no identifiable claim for contempt.
Notwithstanding that Mr Manny has, he now informed me on the day of the hearing of the appeal, commenced proceedings in the Family Court of Australia for the ANZ Bank to be dealt with for contempt over the proceedings in this Court, I did not consider that it was appropriate to vacate the hearing of the appeal.
As noted above, I am satisfied that the orders of the Family Court did not alter the property rights of the ANZ Bank. Further, the indefeasibility of the ANZ Bank’s title as mortgagee remains unaffected by any proceedings in the Family Court, unless or until any relevant orders are made by that Court, if within power, to order the Registrar of Titles to alter the Register.
The second reason that I should vacate the hearing advanced by Mr Manny was the cross-vesting application. However, it does not seem to me that these proceedings could be cross-vested to the Family Court, since the only proceedings there are proceedings for contempt. Such a proceeding is, or appears to me to be, a criminal or, at the very least, a quasi-criminal proceeding: Witham v Holloway (1995) 183 CLR 525. That would appear to prevent cross-vesting as the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) does not apply to a criminal proceeding: Jurisdiction of Courts (Cross-Vesting) Act, s 3. That appears to include a quasi-criminal proceeding: CAO v HAT [2013] QCA 272. Despite the fact that the proceedings in the Family Court included other matters which were civil proceedings, it appears that the only pending proceeding (note the statutory use of the singular: Jackson v John Fairfax & Sons Ltd (1988) 96 FLR 145 at 152) is the contempt proceeding, to which, it would appear, these proceedings cannot be joined under that Act.
So far as the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) is concerned, it seems to me that there is no matter arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth in the claim and defence (I do not consider the Counterclaim, as it is not existent in such proceeding at this time given it was struck out by order 3 set out above (at [30])) and so there is no occasion for transfer under that Act.
Accordingly, there was no basis for the hearing of the appeal not to proceed and I heard it.
RECEIPT OF ADDITIONAL EVIDENCE AT THE HEARING
In Jin v Ai [2011] ACTSC 70 at [9], I said the following about appeals from the Master in respect of interlocutory orders:
I addressed the issue of appeals from the Master in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [65] to [87]). I formed the view that Hogan AJ was correct in Re Milosevic (1996) 134 FLR 429 when his Honour held that the approach to such appeals that had been adopted by Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 was applicable to such appeals. These principles were that:
(a)the appeal is one on fact as well as on law;
(b)the court on appeal may apply the law as it exists at the date of the appeal;
(c)where additional evidence is adduced, the appellate court may decide the appeal in the light of that evidence along with the evidence before the Master;
(d)if no additional evidence is adduced to warrant a departure from the Master’s findings of fact, those findings are binding on the appeal court, unless they, or the inferences from them are so flawed as to attract intervention in accordance with the principles as enunciated in Warren v Coombes (1979) 142 CLR 531;
(e)where the Master’s decision arises from the exercise of a discretion, the principles enunciated in House v The King (1936) 55 CLR 499 apply.
The question of the admission of further evidence was addressed by me in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [85], where I said:
The admission of fresh evidence, is, as the court held in Re Milosevic, governed by s 9(3)(c) of the Supreme Court Act 1933 (ACT), though without the criteria applicable in appeals from the Magistrates Court as considered by Miles CJ in Campbell v Fortey (1987) 85 FLR 462. Such decisions now appear to be governed by the principles enunciated in CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz.
In CDJ v VAJ (1998) 197 CLR 172, the High Court considered a provision very similar to s 9(3)(c) of the Supreme Court Act. In the decision (at 200-4; [104]-[116]), McHugh, Gummow and Callinan JJ set out some principles that inform a court when faced with an application to adduce further evidence in such an appeal.
That the principles enunciated in that case apply can be seen from decisions of that Court of Appeal in Browne v The Queen [2006] ACTCA 15 at [8]-[14]; Hillier v The Queen (2008) 1 ACTLR 235 at 266-8; [159]-[165].
Those principles may be summarised as follows:
1. There is a discretion to receive further evidence (not “fresh evidence” or “new evidence”), which exists to serve the demands of justice.
2. The width and limits of the discretion is dependent on the construction of the statutory provision; that is, it is conferred on a court exercising appellate jurisdiction in the context of an appeal by way of rehearing.
3. Thus, the critical factor is the subject matter of the proceedings, that is, the purpose of the admission of the further evidence is to ensure that the proceedings do not miscarry. The discretion, therefore, is likely to be exercised in favour of the admission of the evidence where it is cogent and where, if accepted, it would demonstrate that the decision the subject of the appeal was in error.
4. Further evidence is not limited to evidence that challenges the decision under appeal; it can be used to support that decision.
5. That is to say, the principal purpose of the admission of further evidence is to give the Court a discretionary power to admit such evidence where that evidence, if accepted, would demonstrate whether the order under appeal is erroneous. Thus the discretion exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of conventional appellate procedures.
6. A further, but subsidiary, purpose of the discretion is to admit the further evidence to buttress the decision already made.
7. The discretion involves the weighing of relevant factors and is not to be approached as the common law required the admission of fresh evidence to be approached, that is, by the application of principles “bordering on fixed rules”.
8. The statute gives an ample power, which is remedial in nature, which should be construed liberally and flexibly without implications or limitations, whether from the common law or otherwise, which are not in the statute.
9. The exercise of the discretion is not limited by a need to show “special grounds” or “special circumstances”.
10. Nevertheless, the discretion is not unfettered and must be exercised having regard to the subject matter, scope and purpose of the appeal provisions.
11. Thus, the discretion must be exercised judicially, that is, consistent with proper judicial processes and the interests of justice.
12. Accordingly, any further evidence must and may only be admitted if it is admissible in accordance with the principles of the admissibility of evidence or by statute and if there is no reason to believe that it is not credible.
13. It is to be borne in mind that, in conferring the discretion, the statute should not be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdictions. Thus, the court must decide the rights of the parties at the time of the appeal.
14. The further evidence should not be admitted merely because it is “useful”.
15. Further evidence will readily be admitted where it is not in dispute and where the court can readily evaluate it and take it into account without the necessity of having the proceedings reheard.
16. Further evidence may be admitted by consent and, where there is consent, it may be admitted without need for prior consideration of the effect it may have on the decision the subject of the appeal. Otherwise, it should only be admitted where it is likely to have an effect on the decision the subject of the appeal.
17. A failure to adduce evidence which is sought to be admitted as further evidence will be of variable relevance, depending on the case. Where the evidence was deliberately withheld, the failure to adduce it at trial will weigh heavily against its admission. In other circumstances, the fact that the further evidence could have been admitted by ordinary diligence may be of little significance. There is no invariable rule about this.
18. Factors that need to be weighed include the finality of litigation, and whether the evidence could have been obtained at trial. The weight given to these factors depends on the nature of the case.
Mr Manny did not apply for leave to adduce further evidence formally and it did not seem to me that, applying these principles, any material to which he referred would have been admissible by these tests.
THE APPEAL AGAINST SUMMARY JUDGMENT
The next issue was the appeal against order 1 of the Master set out above (at [30]).
The learned Master, in his decision, carefully set out the circumstances under which Mr Manny came to default under the Agreements and the documentary basis for the right which the ANZ Bank sought to exercise: Australia and New Zealand Banking Group Ltd v Manny (No 2) at [1]-[24].
In summary, the two loan documents signed by Mr Manny each incorporated a term that provided that an “event of default” occurred if Mr Manny did not make a payment by its due date. The mortgage also provided that a default event occurred if Mr Manny did not pay any part of the secured money in accordance with the relevant arrangement or on time. The payments were to be made monthly.
If a default event occurred under the mortgage, the ANZ Bank was entitled, inter alia, to take possession of the mortgaged property and sell it.
The learned Master found (at [25]) that Mr Manny failed to make the payments due on 21 May and 21 June 2011. These amounted to default events. The ANZ Bank sent a letter to Mr Manny on 2 September 2011 with a default notice with which he did not comply. As a result, the learned Master found that the ANZ Bank was entitled to take possession of the property secured under the mortgage.
The learned Master then considered a number of arguments made by Mr Manny as to why summary judgment should not be given to the ANZ Bank. Mr Manny submitted that the learned Master had erred in considering them.
Mr Manny submitted that he was not in default because the two loans were not fully drawn or because, when one was, the other was not and there could be a drawing from one loan to bring the other over limit loan within limit. As the learned Master pointed out (at [31]), however, the issue was not the limits of the loans but whether payments had been made in accordance with the terms of the Agreements and, as his Honour found, apparently with no challenge by Mr Manny, he had not made the payments. Indeed, Mr Manny conceded to me that he had not made the payments required.
Mr Manny also referred to the ANZ Bank reversing a payment that had been made to his personal account from a bank account of one of the companies to which the receivers had been appointed. This sum could, he submitted, have provided funds from which he could have paid the outstanding amounts. Since the payment on which he was relying was made after the receivers had been appointed and was not authorised by them, the ANZ Bank repaid it to the company’s account. This may have been required by virtue of s 420(2)(a) of the Corporations Act 2001 (Cth). As the learned Master noted (at [32]), this amount was, in any event, not sufficient to pay the outstanding amount.
A further argument by Mr Manny was that, as the amount of the ANZ Bank’s money claim had not been determined by judgment, possession was not available. The learned Master held (at [33]), relying on r 1146 of the Court Procedures Rules, that the Court did have such a power. In that, the learned Master was quite correct.
There were other arguments put on appeal which it is not necessary to rehearse. In none of them could Mr Manny identify a sustainable error made by the learned Master.
On appeal, Mr Manny largely repeated the arguments that had been made to the learned Master.
He submitted, however, that the learned Master has not applied the correct test for the entry of summary judgment and submitted that there was a triable issue of fact or law that required consideration. It was not possible, however, for me to discern the triable issue Mr Manny suggested had not been considered.
One of the difficulties was that Mr Manny was unable to keep separate in his submissions the necessary distinction between the claim by ANZ Bank and his Counterclaim.
It is clear that Mr Manny is very dissatisfied with the actions that the ANZ Bank has taken since the appointment of the receivers. He says, not unlike many debtors, that had he been granted further indulgence, or given some time, or been allowed to sell his own assets, the present outcome would have been different.
That may sometimes be true. It may be true in this case. That, however, will rarely permit the court to interfere with debt recovery, insolvency or similar proceedings though, in some cases, it may provide a debtor with a remedy against an overly officious or peremptory creditor. Those issues may sound in a Counterclaim, or, indeed, separate proceedings (as, indeed, a Counterclaim, in truth, is), against the ANZ Bank or the receivers or the administrators, or all of them. Ordinarily, however, it is no defence to a claim such as that made by the ANZ Bank.
Thus, matters which might be able to be pleaded by Mr Manny in a Counterclaim – bearing in mind that he has so far not been able to do so – are not, especially as unformulated, a defence to the ANZ Bank’s claim and are no reason why summary judgment should not be entered.
Thus, Mr Manny made a number of criticisms of the ANZ Bank, including:
(a) that it had a duty to provide him with a copy of his account;
(b) that it had no power to transfer back to JK3L Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) money paid after the appointment of the receivers but without their authority;
(c) that the ANZ Bank should have afforded him the indulgence that it included in its documentation relating to “Hardship” and, at least not acted until it had responded;
(d) that the ANZ Bank should have given him time to re-finance;
(e) that Mr Manny had not seen the terms of the Mortgage;
(f) that the Receivers and the ANZ Bank did not use the proceeds of the sale of one of the properties belonging to Lonagann Pty Ltd (Receivers and Managers Appointed) (Administration Appointed) to pay his house loan; and
(g) that the Receivers had sold properties at an undervalue.
Mr Manny also claimed that the learned Master failed to give proper weight to the hardship to him that the possession order would cause.
Consideration
None of Mr Manny’s claims, including those set out at [83] above, amount to a viable defence to the ANZ Bank’s claim for possession. That action was, in essence, relatively simple. Section 96 of the Land Titles Act provides, relevantly, that upon default in payment under a mortgage the mortgagee may bring an action to recover the land.
The ANZ Bank, therefore, had to show was that:
(a) Mr Manny had granted it a mortgage over land of which he was the registered proprietor;
(b) the mortgage secured payment of moneys lent by the ANZ Bank to Mr Manny; and
(c) he defaulted in payment of the moneys due under the mortgage.
See, for example, Bank of New South Wales v Murray [1963] NSWR 515 at 518.
As the learned Master pointed out, although a notice was given to Mr Manny under s 93 of the Land Titles Act, the Full Court of the Federal Court had held in Citibank Savings Ltd v Stergiou (1996) 66 FCR 587 that such a notice is not a pre-condition to the exercise of the power under s 96 of the Land Titles Act for possession of mortgaged land.
Mr Manny did not, in fact, dispute any of these matters. He claimed that he had not been given a copy of the terms of the mortgage, but he did agree that he had entered into the mortgage. On the evidence, I am satisfied that he signed a document which clearly and unambiguously incorporated the relevant terms of the mortgage.
He has not disputed and, indeed, could not, as this is the basis of his Defence and Counterclaim, that he is registered proprietor of the mortgaged property.
He conceded during the hearing that he had not made payments when they were due, in particular the payment demanded on 2 September 2011. Of course, on every occasion he made that concession, he hastened to add that this was because the ANZ Bank had prevented him from doing so. That did not detract from the effect of the concession on the proceedings.
Accordingly, subject to the allegations that the ANZ Bank had prevented him from making due payments, he had no defence to the ANZ Bank’s claim for possession.
The one claim that Mr Manny pressed on me as to why the ANZ Bank had prevented him from making the due payment was that it had reversed a transfer into his ANZ credit card account. This is the same claim Mr Manny made before the Master (see [74])
The evidence on which he relied was unclear, but it appears that a payment was made by JK3L Pty Ltd (Receivers and Managers Appointed) (Administrators Appointed) through its St George Bank account to Mr Manny’s credit card account. The purpose of that payment was unclear but it was made after the receivers were appointed and without their authority.
Mr Manny submitted that the ANZ Bank was not entitled to reverse that entry without a request from the receivers or from the St George Bank or himself. He submitted that it was required to obtain his authority. He pointed to no contractual or other basis for this obligation. Like the learned Master, I am not satisfied that there is one.
In any event, the amount paid was $10,000 and the amount due by Mr Manny was $11,683.45. Thus, even had Mr Manny paid all that had been in the credit card account, he would still have been in default.
The other claims by Mr Manny are, similarly, not matters of defence to the claim by the ANZ Bank but matters which may be able to be raised by way of Counterclaim. I do not say that they are maintainable or sound in a good cause of action; I only say that if some cause of action can be fashioned out of them, that is how they would have to be pleaded and prosecuted.
Mr Manny did say that hardship to him should have caused the court to stay the learned Master’s decision to grant summary judgment. At one time in this Territory, such a claim could have been made under s 4 of the Judiciary (Stay of Proceedings) Act 1933 (ACT). That provision was, in 2004, relocated as s 80 of the Court Procedures Act 2004 (ACT) and then, in 2005, renumbered as s 118 of that Act. It expired, however, on 1 July 2006.
Rule 1153 of the Court Procedure Rules could have provided a similar opportunity of a stay on the grounds of hardship. It is difficult, however, not to consider that such an application would have to be dealt with according to the same principles as applied to s 4 of the Judiciary (Stay of Proceedings) Act. Connor J in Union Offset Pty Ltd v Whigham (1977) 14 ACTR 43 at 46 set out the applicable principles for such a stay, the most relevant being:
(c)The section is designed primarily to deal with a situation of relatively short duration to enable that situation to be improved or overcome so that an immediate execution will not produce a serious hardship. It is not designed to provide for a partial or total moratorium for a long period: see Deputy Commissioner of Taxation v Muller (Supreme Court (ACT) – Fox J – 12 November 1971).
I do not make a definitive finding on this, but it seems to me likely that this is an appropriate principle to apply when considering the rule.
That there is a prospective Counterclaim may be a circumstance that would justify a stay, but, again, only where that is likely to be for a short period. This is considered in authorities such as Daewoo Australia Pty Ltd v Porter Crane Imports Pty Ltd [2000] QSC 50 at [21]-[23] and State Bank of Victoria v Parry [1989] WAR 240.
Mr Manny has had since 27 October 2011 within which to make provision for the possibility that he would have to vacate his house. He has not been able since then to formulate a Counterclaim. He has already amended it once. Since the hearing of the appeal he has unsuccessfully attempted to re-plead it: Australia and New Zealand Banking Group Ltd v Manny (No 3) [2013] ACTSC 223. While I must make due allowance for the fact that he is not represented by a lawyer, I must also be careful not to allow that fact to prejudice the other parties to the proceedings.
The delay and the inability of Mr Manny to formulate a cause of action to plead and pursue in his Counterclaim mean that there will not be a short-term opportunity for Mr Manny to be permitted a moratorium from the rights to possession of the property to which the ANZ Bank are clearly entitled. It is not possible to say with any confidence that Mr Manny has a claim that has reasonable prospects of success.
In those circumstances, it is not appropriate to grant Mr Manny a stay. The appeal against summary judgment, that is, order 1 of the Master, cannot be maintained and will be dismissed.
THE APPEAL AGAINST ORDERS ON THE COUNTERCLAIM
Mr Manny also sought to challenge the orders striking out the Amended Counterclaim and ordering that any Counterclaim be heard separately, that is, orders 2 to 6 recorded above (at [30])
The learned Master described the Amended Counterclaim in the following terms (at [41]):
In summary, the pleadings fail to comply with the rules of pleading in that they fail to identify material facts which constitute a cause of action or are so unintelligible, ambiguous, vague or imprecise as to be embarrassing in the sense of likely to cause delay to the proceedings. Further, the connection between the various assertions in the paragraphs that relate to ANZ fail to identify either expressly or impliedly the link between them and the various claims for relief which are stated.
I have read carefully the Amended Counterclaim. It is accurately described by his Honour in those remarks. It was perfectly proper for his Honour to have struck it out and I did not really hear from Mr Manny that he contended otherwise.
There are, of course, further matters which substantially militate against Mr Manny’s appeal against these orders.
In the first place, the decisions of the learned Master to strike out the Amended Counterclaim and to direct that it be heard separately from the claim of the ANZ Bank are both discretionary decisions. The bar is high in appeals from such decisions and, unless an error of principle or law is clear, there is no basis for appellate intervention: House v The King (1936) 55 CLR 499 at 504-5; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2003) 203 CLR 194 at 204-5; [19].
In addition, the decisions relate to matters of practice and procedure. The courts have always been hesitant about appellate interference with such decisions. In Re the will of F B Gilbert (dec’d) (1946) 46 SR(NSW) 318 at 323, Jordan CJ said:
I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
The learned Master clearly considered the Amended Counterclaim carefully. Not only did his Honour do so, he gave Mr Manny the benefit of the doubt as to whether there was a cause of action lurking behind the assertions and polemic. His Honour said (at [43]):
None of these arguments demonstrated to me a clear cause of action. However, I am not satisfied at this stage that I should dismiss the counterclaim proceedings since I cannot be confident to the relevant degree that the plaintiff has no arguable cause of action amongst the numerous allegations that are made or amongst the volumes of material which [have] been tendered. At this stage I think it is unlikely that there is a viable cause of action but, in my view Mr Manny, given that he is unrepresented, should be given a further opportunity to attempt to articulate one.
I note that, at the hearing of the appeal, Mr Manny made it quite clear that he had already commenced drafting a Further Amended Counterclaim. In these circumstances, it seems to me that there would be no utility in re-considering the order of the learned Master to strike out the Amended Counterclaim.
As to the decision to separate the hearing of the claim by ANZ Bank and the hearing of any Counterclaim, it seems to me that the continuing delay in Mr Manny progressing a Counterclaim, with consequent delay and prejudice to the ANZ Bank, is a very relevant reason for separating the two hearings. Thus, for example, in circumstances similar to this, Kay J in Gray v Webb (1882) 21 Ch D 802 at 806 directed that the Counterclaim be heard separately from the plaintiff’s claim. Rule 471(1)(b) of the Court Procedures Rules clearly contemplates such a decision.
Mr Manny was not able to point to any error in the decision of the learned Master of the kind that would justify the appeal being upheld. I will dismiss the appeal from these orders.
MR MANNY’S FURTHER SUBMISSIONS
After the hearing of the appeal had concluded, Mr Manny sent some further submissions by email to my Associate. I rejected them.
Ordinarily, unless leave is expressly given, courts will not receive further submissions after a hearing has concluded. That is a long-standing and widely applied approach: Carr v Finance Corporation of Australia Ltd (No 1) at 258; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 329-30; [27]-[31]; Re an application by Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at 890; [53]-[54]; Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 550; Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48 at 57-8; Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21 at 97; [340]; Chapman v Caska [2005] NSWCA 113 at [19].
Young CJ in Eq said, in Kirwan v Cresvale Far East Ltd (in liq) at 97; [340], that the rule had been “perhaps not always strictly enforced in [the NSW Court of Appeal]”. However, it is clearly highly desirable that the courts and the parties adhered to it. As Young CJ in Eq pointed out, such submissions may be received after the court has prepared a draft decision and this may require revision which wastes court time. It also, as Sheller JA pointed out in Dwyer v Commonwealth Bank of Australia at 58, would put the other parties to additional expense. Nevertheless, leave may be granted in particular instances, though these should be exceptional and limited and not seen as any kind of encouragement for the practice. It seems to me it will almost never be permissible in the case of represented parties.
In this case, however, Mr Manny clearly considered that the appeal would not be heard on the day listed and considered himself unprepared. He should, of course, not have assumed that his application for an adjournment would succeed and should have been ready to proceed.
As an unrepresented litigant, however, it did seem to me that the rule of practice to which I have referred (at [116]) should be relaxed in all the circumstances. I permitted Mr Manny to file further submissions formally. I have received and read those submissions. Having done so, however, I did not require the ANZ Bank or the other parties to respond.
There are a number of difficulties with the further submissions. In the first place, they include assertions of fact and, indeed, annex a number of documents that were not before the learned Master. Unrepresented litigants do not always appreciate the difference between submissions and evidence and include the latter in the former. I have to say that some practitioners (though not in this case) fall into the same error.
Nevertheless, a court cannot, except by consent, accept such evidence which is not sworn and, for other reasons such as the hearsay rule, is inadmissible. In this case, no application was made for further evidence to be received. In the light of those difficulties, I do not rely on any of the further evidence.
So far as the balance of the material is concerned, it largely consisted of assertions of wrongdoing by the ANZ Bank and assertions that the ANZ Bank was in contempt of the orders of Faulks DCJ of the Family Court of Australia made on 13 July 2010.
Part 2 of Mr Manny’s further submissions was directed to his “belief” that the ANZ Bank had “misled Australian family [sic] court, Jeff Manny and Kazuko Manny on 6 and 12 July 2010”. This was by, inter alia, not providing its valuation to the Family Court. Whether that is correct or not is, however, entirely a matter for the Family Court of Australia. It does not and cannot provide a defence to the claim by the ANZ Bank for possession of the subject land. Indeed, even if the complaints made by Mr Manny could be substantiated by sworn evidence, the order of the Family Court must stand until it has been set aside on appeal or otherwise.
The Family Court is a superior court of record (Family Law Act, s 21) and it has long been held that the orders of a superior court of record are valid until set aside: Cameron v Cole (1944) 68 CLR 571 at 590-1 (Rich J), 598 (McTiernan J), 605-6 (Williams J); DMW v CGW (1982) 151 CLR 491 at 505; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 213-4 (Wilson and Dawson JJ), 222-3 (Deane J); R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 374-5; Ousley v The Queen (1997) 192 CLR 69 at 99; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-8; [19]-[23] (Gleeson CJ), 184-5; [49]-[50] (Gaudron J), 209-10; [135] (McHugh J), 274-5; [328]-[329], 279; [343]-[344] (Hayne and Callinan JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 645-6; [151] (Hayne J). This has most recently been affirmed by the High Court in New South Wales v Kable (2013) 298 ALR 144 at 152-3; [32]-[34].
There has been, so far as I am aware, no appeal from the decision of Faulks DCJ. Whether that order can be the subject of an appeal now or whether it could be set aside (see, eg, Sirius Shipping Corporation v The Ship ‘Sunrise’ [2007] NSWSC 766 at [37]-[42]) is not relevant. The orders stand as valid and binding until set aside. I must respect that and I will.
I am not at all certain that Mr Manny is alleging fraud. That is, of course, a very serious allegation and should only be made sparingly and where there is clear evidence on which it could be found. The position of a judgment of a superior court of record, even where it is alleged that it has been secured by fraud, is somewhat complex. In certain cases, it is clear that it remains valid and enforceable until set aside: Crosland v Crosland [1947] P 12 at 15-6; Callaghan v Hanson-Fox [1992] Fam 1 at 9-10.
It is clear that the appropriate approach to a judgment of such a court said to be obtained by fraud is to take independent proceedings to set the challenged order aside. See Hip Foong Hong v H Neotia & Co [1918] AC 888 at 894. Such decisions would also be set aside as “a matter of course” on appeal, as stated in Staniar v Evans (1886) 34 Ch D 470 at 475.
There are, however, judicial statements which suggest that such decisions are nullities, as, for example, Duchess of Kingston’s Case [1775-1802] All ER Rep 623 at 629. Thus, in Lazarus Estates Ltd v Beasley [1956] 1 QB 702, it was held that a tenant whose rent increase had been obtained in the county court by fraud could raise the fraud in subsequent proceedings for the payment of arrears of the increased rent. That was, of course, the county court and not a superior court of record, but see Earl Bandon v Becher (1835) 3 Cl & Finn 479 at 510; 6 ER 1517 at 1528-9.
Even if there was fraud, however, there are two problems for Mr Manny, however, which I find insuperable. In the first place, as held in Jonesco v Beard [1930] AC 298 at 300, the particulars of any fraud must be exactly and precisely given and the allegation established by the strict proof that a charge of fraud requires. I am not at all satisfied that the alleged failure of the ANZ Bank to produce its valuations to the Family Court amounts to a fraud. Indeed, on a number of occasions, Mr Manny made it clear that, on a sale, the equity in his companies’ properties would be zero, a result of which he was clearly aware.
The second and more significant problem, however, is that the proceedings in the Family Court have nothing to do with the claim by the ANZ Bank on which it was granted summary judgment. That judgment did not alter any of the interests of the ANZ Bank under its mortgage and did not affect its claim one way or another. Even were the orders made by the Family Court to be set aside, that would have no effect on the judgment.
Part 3 of Mr Manny’s submissions suggested that the ANZ Bank was in contempt of the orders of Faulks DCJ of the Family Court of Australia of 13 July 2010.
The submissions were entirely unclear as to the way in which the ANZ Bank was alleged to be in contempt of the orders. The orders did not require the ANZ Bank to do or to refrain from doing anything. Indeed, the order of Faulks DCJ from 13 July 2010 specifically preserved the ANZ Bank’s right “to enforce their [sic] security in accordance with [its current documentation between it and Mr Manny].”
The contempt alleged appears to be in relation to two orders. The first is that with respect to a proposed sale by Mr Manny of certain properties. As noted above (at [132]), the ANZ Bank’s rights were expressly preserved despite that order. I cannot see from the submissions any contempt by the ANZ Bank of that order.
The second is that in relation to the subject property as set out above (at [51]-[57]). I have already held that the exercise by the ANZ Bank of its rights under the registered mortgage do not appear to me to be inconsistent with that order. I may be wrong, but nothing put to me by Mr Manny raises in my mind any basis for such error.
Nothing in the further submissions satisfies me that the learned Master was in error in the decisions that his Honour made.
SUBSEQUENT FURTHER SUBMISSIONS FROM MR MANNY
Mr Manny, subsequent to formally filing the further submissions mentioned above (at [119]), submitted still further additional submissions. I initially rejected them but Mr Manny sought that I take them into account. In electronic correspondence with my Associate, he said that I had never informed him “that [he had] to submit [his] submissions in one part”. While strictly true, I did not give him leave to file two submissions or to file one submission in two parts.
In fact, it was only when he had filed the first submission that I gave him leave. That leave related to the document initially electronically received and rejected, but then properly filed in a proper form. It did not extend to any further document.
Further, the first submission did not state that it was “Part 1” or similar, or that there was more to come. Indeed, the second submission is not marked “Part 2” or similar.
As Mason J states in Carr v Finance Corporation of Australia Ltd (No 1) at 258, “the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions”. Further subsequent submissions of this kind are undesirable and I reject the second or subsequent further (or Part 2) submissions and do not take them into account.
CONCLUSION
In all the circumstances, the appeal must be dismissed. This includes the appeal from order 7, about which I heard no submissions from Mr Manny on appeal. I shall so order. There seems no reason why costs should not follow the event, but I shall hear the parties before making such an order.
Given the serious consequences of the dismissal of the appeal, however, I shall stay the enforcement of the judgment entered by the learned Master for 28 days. Thereafter, any further stay will be a question for the Court of Appeal if Mr Manny wishes to challenge my decision and, of course, he will need to show proper grounds for such a stay.
I certify that the preceding one-hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the plaintiff: Mr A Casselden
Solicitor for the plaintiff: Gadens Lawyers
For the defendant: In person
Counsel for the first defendants
to the Amended Counterclaim: Mr J Bird
Solicitor for the first defendants
to the Amended Counterclaim: Dibbs Barker
Counsel for the second defendants
to the Amended Counterclaim: Mr M Carmody
Solicitor for the second defendants
to the Amended Counterclaim: Ashurst Australia
Date of hearing: 24 October 2013
Date of judgment: 2 December 2013
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