Bank of Western Australia Limited v Coppola
[2012] NSWSC 359
•02 April 2012
Supreme Court
New South Wales
Medium Neutral Citation: Bank of Western Australia Limited v Coppola and Anor [2012] NSWSC 359 Hearing dates: 29 March 2012, 2 April 2012 Decision date: 02 April 2012 Jurisdiction: Common Law Before: Johnson J Decision: The application by Mrs Coppola for leave to bring an application to set aside the consent judgment entered on 18 August 2010 is declined.
The application by the Defendants to file and rely upon the Notice of Motion and material contained in MFI3 is declined.
Costs of this aspect of the litigation are reserved.
Catchwords: PRACTICE AND PROCEDURE - claim for possession of land for mortgage default - protracted litigation - repeated breaches of Court orders by Defendants - whether one Defendant should be granted leave to seek to set aside consent judgment - whether Defendants should have leave to rely upon material served out of time after repeated breaches of Court orders - applications refused Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: Fast Funds Pty Limited v Coppola [2010] NSWSC 470
Bank of Western Australia Limited v Coppola [2011] NSWSC 1326
Octapon Pty Limited v Esanda Finance Corporation Limited (Cole J, 3 February 1989)
Con-Stan Industries of Australia Pty Limited v Norwich Winterhur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226
Steele-Smith v Liberty Financial Pty Limited [2005] NSWSC 398
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Richards v Cornford (No. 3) [2010] NSWCA 134Texts Cited: --- Category: Interlocutory applications Parties: Bank of Western Australia Limited (Plaintiff)
Elio Coppola and Maria Coppola (Defendants)
Registrar General of New South Wales (Cross-Defendant)Representation: Counsel:
Mr PT Newton (Plaintiff)
Mr F Santisi (Defendant)
Mr H Altan (Registrar General)
Solicitors:
Gadens Lawyers (Plaintiff)
Denison Toyer (Defendants)
Gavin Bartier for Department of Finance & Services (Land & Property Information) (Registrar General)
File Number(s): 2009/296515 Publication restriction: ---
Judgment
JOHNSON J: In the course of hearing Notices of Motion brought by the Plaintiff, Bank of Western Australia Limited, and the Registrar General of New South Wales seeking various orders, including summary dismissal or the striking out of certain pleadings, application has been made on behalf of the Defendants, Elio Coppola and Maria Coppola, for leave to file a Notice of Motion which seeks to obtain leave to rely upon a substantial volume of affidavit and documentary material served out of time, together with an application by Maria Coppola for leave to bring an application to set aside a consent judgment entered on 18 August 2010.
The hearing of the Notices of Motion of the Plaintiff and the Registrar General, with the accompanying and related application by the Defendants, has now occupied nearly two Court sitting days.
The Plaintiff and the Registrar General oppose the applications for leave made by the Defendants.
The proposed Notice of Motion and the accompanying material, being a series of emails and accompanying documents provided between the evening of 14 March 2012 and the afternoon of 28 March 2012, together form MFI3.
Background to Applications of Defendants
For the purpose of ruling upon the Defendants' applications for leave, it is necessary to refer to aspects of the history of this litigation.
As it happens, these proceedings have been before me on a regular basis since mid-2010, and in particular in 2011. As a result of that direct involvement, I have derived knowledge of various interlocutory steps which have occurred. The transcripts of the interlocutory hearings are on the Court file, and are available to the parties to this litigation. As a result, the knowledge which I have of these interlocutory steps is all on the record. I will refer to some of those steps because they are relevant to the determination of the applications brought by the Defendants.
The present proceedings were commenced by the filing of a Statement of Claim in October 2009. The Plaintiff alleges mortgage default and seeks possession of a property at Concord (jointly owned by Mr and Mrs Coppola) and a property at Stanmore (owned solely by Mr Coppola).
In 2010, proceedings were heard by Slattery J in the Equity Division: Fast Funds Pty Limited v Coppola [2010] NSWSC 470. I will refer to aspects of the judgment of Slattery J in the course of these reasons. As will be seen, there is some considerable overlap between those proceedings and these.
The consent judgment in relation to which Mrs Coppola seeks leave to challenge is a judgment consented to by her then solicitor, Mr Moloney, on 18 May 2010. There is no doubt that Mr Moloney was the solicitor on the record at that time for the Defendants. That consent judgment was entered on 18 August 2010.
The terms of the consent judgment are contained in Annexures "A" and "B" to the affidavit of Karina Elizabeth Carter sworn 21 December 2011. Consent was given to judgment for possession against Mrs Coppola in respect of the Concord property, with judgment against her in a monetary sum exceeding $680,000.00, together with other provisions with respect to interest and other payments.
At some time after that date, Mr Moloney ceased to be the solicitor for the Defendants. According to the Court file, another firm of solicitors, G&D Lawyers (Mr Graeme Ulbrick) were on the record acting for the Defendants.
At a later time again, those solicitors ceased to act and another set of solicitors came onto the record, being Allied Lawyers instructing Mr AG Martin of counsel. Those lawyers remained on the record until December 2011, if not later.
In February 2012, the Defendants' present solicitors came onto the record, and Mr Santisi of counsel now appears for them.
As a result, four sets of lawyers have acted for the Defendants at different times during these proceedings.
It is not necessary, for present purposes, to recite the complete detail of pleadings. What is appropriate, in particular with respect to the application for leave to set aside the consent judgment, is to consider events on and after 28 June 2011.
By that time, the Defendants were into their third set of lawyers. Mr Moloney had not acted for them for some time. G&D Lawyers had come onto the record and they had moved on as well.
On 10 June 2011, Mrs Coppola appeared in person before me. She foreshadowed that Allied Lawyers were to act for the Defendants, and said that she had spoken to Mr Martin. She communicated with the Court in English in a manner which, according to the transcript, gave rise to no difficulty in comprehension. It was made clear to Mrs Coppola that the proceedings, which already had a long history, needed to move forward. The transcript of that day (pages 10-14) reveals, a number of observations of mine, which emphasised the need for progress. Despite the concerns of the other parties, the Plaintiff and the Registrar General (who by this stage had been joined on a Cross-Claim), I adjourned the proceedings as Mrs Coppola requested.
On 28 June 2011, Mr AG Martin of counsel appeared for the Defendants. Mr and Mrs Coppola were in Court. I pause for a moment to say that a daughter of Mr and Mrs Coppola is one Vanessa Coppola. Vanessa Coppola is much mentioned in the context of this litigation but is nowhere to be seen. She has not been in Court at all since these proceedings have been on foot.
Despite the fact that, in January 2011, a Cross-Claim issued joining the Plaintiff, Vanessa Coppola and the Registrar General, the position (at least as it was last Thursday 29 March 2012) according to Mr Santisi, was that Vanessa Coppola had not been served, although Mr and Mrs Coppola were well aware of her whereabouts.
A recurring theme on the occasions when the matter was before me in 2011 (as is made clear in the transcript of 28 June 2011) was the Court's concern to know what was happening with respect to Vanessa Coppola. After all, the Cross-Claim suggested that she was a pivotal figure in this litigation. Yet, if she was to be a pivotal figure, and if the Defendants were complying with their obligations under the Civil Procedure Act 2005, it might be thought that they would be taking urgent steps to serve her and bring her to Court to engage in the litigation.
On 28 June 2011, I asked Mr Martin "where is she [Vanessa Coppola]?". Mr Martin responded "That is the great unknown at the moment" (page 2). He informed the Court that a process server was seeking to locate her. Ms Carter, for the Plaintiff, assisted Mr Martin by informing him that searches that were being conducted revealed that Vanessa Coppola was appearing in a Local Court, and in fact had a solicitor appearing for her.
Towards the end of the directions hearing on 28 June 2011, Mr Martin stated that a consent judgment had been entered against Mrs Coppola in August 2010, and he flagged the fact that there may be an application to set aside that consent judgment (page 6). He said he "was taking instructions in relation to that at the moment" and that, if there was an application, it could be dealt with by way of Motion. As I have mentioned, both Mr and Mrs Coppola were in Court at that time.
No order was made at that time by me fixing a time for any such Motion to be filed. Despite some frustration on the part of the legal representatives for the Plaintiff and the Registrar General (which was understandable in the circumstances), I made certain orders and stood the matter over, as Mr Martin and his solicitors had only recently come into the matter. The proceedings were adjourned to 8 July 2011.
On 8 July 2011, in response to the Court's inquiry, it was indicated that efforts were still being made to serve Vanessa Coppola, apparently without success (page 1). In due course, in response to an inquiry from the Court, Mr Martin indicated that his instructions at that point were to seek to proceed with an application to set aside the consent judgment (page 6). He confirmed there was no application on foot. I determined to allow Mr Martin an opportunity to file a Notice of Motion and any affidavit in support, if such an application was to be brought, and to give a return date for such a Motion. I made an order that any Notice of Motion and affidavit in support of an application to set aside the consent judgment between Mrs Coppola and the Plaintiff, were to be filed and served by 22 July 2011, with that Motion to be returnable before me on 5 August 2011.
No Motion or affidavit was filed.
At the commencement of proceedings on 5 August 2011, I noted that no such application had been filed and Mr Martin confirmed that this was the case (page 1). There was no indication that there was going to be an application to set aside the consent judgment.
Clearly, Mrs Coppola's lawyers had sought time and flagged the prospect of such an application, but none was brought.
At that point, as well, there was an indication that the Defendants may not press a claim at all against Vanessa Coppola (pages 2-3). Having regard to what may flow from this approach, further directions were given and the proceedings were once against stood over.
The matter was adjourned until 18 August 2011, on which occasion Mr Martin of counsel again appeared. At this point, an affidavit of Elio Coppola sworn 4 August 2011 had been filed, and there was discussion concerning a then foreshadowed application for leave to withdraw an admission.
In due course, I was not in a position to hear any application for leave to withdraw the admission. The matter returned to the Registrar's list and, on 23 September 2011, that application was heard by Walmsley AJ. On 7 November 2011, Walmsley AJ dismissed the application and ordered Elio Coppola to pay the costs of the Plaintiff and the Registrar General: Bank of Western Australia Limited v Coppola [2011] NSWSC 1326.
The judgment of Walmsley AJ referred to the admission of Mr Coppola, which was sought to be withdrawn. It related to a Power of Attorney, said to have been given by Elio Coppola to Vanessa Coppola. The judgment of Walmsley AJ speaks for itself. His Honour declined the application.
Importantly, at [38], Walmsley AJ said:
"Although the defendant [Mr Coppola] in his existing pleading asserted his signatures on the mortgage and loan documents were forgeries, Mr Martin said that that pleading did not adequately put the position, which is really this: all mortgage and loan documents were executed under the power of attorney. Thus, Mr Martin submitted, the only factual issue on a hearing would be whether his client, Mr Coppola, had executed the power of attorney: on the cross-claim, the only evidence will be that of a forensic document examiner. As the proposed pleading deletes Vanessa Coppola as a party, the allegations against her of fraud will not be pursued. As to lay evidence, he said Mr Coppola would 'perhaps' put on an affidavit saying 'it is not my signature'. Further, no allegations of fraud would be ventilated, since the fraud claim against the first defendant's daughter would not be proceeding."
Those statements made by counsel who, by that time had been acting for both Defendants (and relevantly Mr Coppola), are significant.
At [46], Walmsley AJ noted that he accepted Mr Martin's submission that refusal of his application (to withdraw the admission) "is tantamount to an invitation to the Plaintiff to make a successful summary judgment application". His Honour observed "but that is the consequence of what I am satisfied is a lack of evidence to support the application".
Walmsley AJ adjourned the matter to the Registrar's list for directions on 14 November 2011.
The proceedings were adjourned again to the Registrar's list on 7 December 2011, at which time the Registrar was informed that the present Notices of Motion of the Plaintiff and the Registrar General were to be filed and served. Orders were made for filing and service of the Motions. The First Defendant (Mr Coppola) was directed to serve any evidence in response to any Motion by 20 January 2012. The Notices of Motion were made returnable on 3 February 2012.
No evidence was served by Mr Coppola in accordance with the order of Registrar Bradford made on 7 December 2011.
On 3 February 2012, Mr Santisi appeared (effectively as amicus) to indicate that new solicitors were coming into the matter for the Defendants, briefing him as counsel. The Registrar listed the matter for directions before me on 23 February 2012.
On 23 February 2012, the matter came before me once again. Mr Santisi informed the Court that he and his solicitors had only recently come into the matter, and wished time to gather and put on material relevant to the Notices of Motion of the Plaintiff and the Registrar General. He also foreshadowed that there may be other applications, including an application for leave to set aside the consent judgment.
The transcript of 23 February 2012 gives rise to a feeling of deja vu, by reference to the transcripts of 2011 hearings before me.
The practical difficulty for lawyers coming into a matter such as this, as the fourth set of lawyers, is one which is understood professionally and I do not underestimate it. On the other hand, it is the Defendants, Elio Coppola and Maria Coppola, who are the parties to the litigation who have had obligations to the Court throughout, which were sought to be discharged by them and by their lawyers. They had at times, appeared in Court themselves, as I have mentioned.
On 23 February 2012, I formed the view that the appropriate course was to fix a date for the hearing of the Registrar General's and Plaintiff's Notices of Motion. That hearing date was 29 March 2012. I determined that I would allow the Defendants an opportunity to put on material, despite a history of non-compliance with Court orders, the fact that an application to set aside the consent judgment had been raised and not made in 2011, and the fact that Mr Coppola had not complied with the order that required evidence to go on by 20 January 2012. Despite all those things, but recognising the fact that new lawyers were in the matter, I gave the Defendants until 4.00 pm on 14 March 2012 to put on material, indicating that strict compliance with that order was required (page 11).
I made it clear that what was required was service of material, together with provision of the material to my Associate by email, for information purposes. I indicated that the matter would come before me for mention on 21 March 2012 to allow an assessment of what was happening with the hearing of the Notices of Motion, in the light of the steps which the Defendants took in compliance with the order of the Court made on 23 February 2012.
Put shortly, the Defendants did not comply with that order. MFI3 reveals the provision of some material on the evening of 14 March 2012, more material provided on 15 March 2012 and more again on 20, 26, 27 and 28 March 2012. When the matter came before the Court on 21 March 2012, I made clear that I was not granting leave for anything to be done by the Defendants, given their repeated breaches of Court orders, but the material that was being put on would be the subject of such application as may be made at this hearing.
The Decision of Slattery J
I have heard detailed submissions on these applications, many of which will be pertinent as well to the determination of the Notices of Motion of the Plaintiff and the Registrar General.
I pause, at this stage, to refer to parts of the judgment of Slattery J of 14 May 2010. The Bank of Western Australia was a party to the proceedings before Slattery J (as the Fifth Defendant). The Registrar General was not. His Honour's very helpful and detailed judgment provides substantial information about the history of ownership and mortgaging of a number of properties in which Mr and Mrs Coppola have an interest, and in particular, the Concord and Stanmore properties.
The judgment also provides a good deal of information about the arrangements made by Mr and Mrs Coppola, and indeed, their daughter Vanessa, with respect to events relevant to the present proceedings.
There is no doubt that, at the time when the mortgages were given (as undoubtedly they were) by the Plaintiff, secured by mortgages over the Concord and Stanmore properties, there were pre-existing mortgages to St George Bank. Those mortgages were paid out by moneys advanced by the Plaintiff to the Defendants.
There has been considerable debate and matters have been agitated concerning how those loans came about, and the role of Vanessa Coppola in that respect. I note again that Vanessa Coppola has not been at all actively engaged in this litigation, although the present indication from the Defendants' current set of lawyers is that the Cross-Claim against Vanessa Coppola will proceed.
In my view, it is entirely clear that the moneys advanced by the Plaintiff were utilised in a way whereby Elio Coppola and Maria Coppola received an incontrovertible and very substantial benefit. That is important given the issues which are presently before the Court.
On any view of this case, Elio and Maria Coppola derived the benefit of the discharge of very substantial mortgages on their properties. This is not a case of entirely unencumbered properties, in relation to which some member of the family has encumbered the properties for the first time, and then utilised funds for the benefit only of that family member.
This case is one where the Defendants had existing mortgages, and have obtained a clear and very substantial benefit as a result of the mortgages which were the subject of loans from the Plaintiff.
The judgment of Slattery J, at [29], explains the association of the Defendants to the Concord property at 11 Shackel Avenue. At [34], his Honour describes the connection of the Defendants to the Stanmore property. At [37], more is said about the connection of the Defendants to 11 Shackel Avenue, Concord.
Express reference is made at [45] to a Power of Attorney from Elio Coppola to Vanessa Coppola. A significant part of the judgment appears at [48]-[58], where Slattery J gave a detailed account of the indebtedness of the Defendants in late 2006 and into 2007, which gave rise to defaults on loans to the St George Bank and the taking out of further mortgages from different entities including the Plaintiff, DJ Capital Solutions Limited and MDN Mortgages Pty Limited. Slattery J said:
"The St George Bank Loans Begin to Default
48 Commencing in late 2006 and progressively throughout 2007, Elio and Maria Coppola began to default on the St George Bank loans and the various mortgages that then existed over the family properties identified above. There were several conventional financial explanations for this.
(a) Periods of vacancy reduced the rental income from the Stanmore property, the Coledale property and the Kandos property. This reduced the capacity of Elio and Maria Coppola to pay interest to St George Bank on the mortgages over those properties.
(b) From late 2000 Elio Coppola had retired and was unable to supplement any shortfall in mortgage payments falling due from his income from personal exertion.
(c) Prior to 2005 Vanessa subsidised out of her own income any shortfall in interest payable on family investment properties. But by 2007 she had understandably diverted most of her income towards paying the interest on the Greenacre property.
49 In the second half of 2007 their defaults led the Coppola family to refinance their St George Bank loans. This increased their indebtedness but it rationalised their financial position to an extent. The refinancing was structured through the following facilities.
(a) In June 2007 the family took out a $250,000 short-term high interest rate loan from DG Capital Solutions Pty Limited secured by second mortgage over Number 9, Number 11, the Coledale property and the Stanmore property.
(b) In approximately October 2007 the family took out a loan from BankWest of approximately $650,000 secured against Number 11.
(c) In October 2007 the family borrowed approximately $540,000 from BankWest secured by the Stanmore property.
(d) In November 2007 the family took out a loan from MDN Mortgages Pty Limited (MDN) for $650,000 secured against Number 9.
50 The family's refinancing plan was that the funds advanced by BankWest would be used to discharge the initial short term higher interest rate loan from DG Capital Solutions and would also be applied to repay the balance of monies due to St George Bank.
The DJ Capital Solutions Advance
51 The first step in the 2007 refinancing was an advance from DJ Capital Solutions. When Maria saw the St George Bank loan defaulting she arranged the advance from DJ Capital Solutions in June 2007. She had been borrowing small amounts of money from Laura's partner, Mr Mohamad Harmouche for some time to meet the growing shortfall in the family budget. Maria and Vanessa organised the DJ Capital Solutions facility through a mortgage broker, Roy Skaf, an acquaintance of Vanessa's then boyfriend Mayez Elriche. It was a temporary loan of $250,000 to pay off the St George Bank arrears and provide some money to live on whilst the larger refinancing was being negotiated.
52 From the DJ Capital Solutions advance of $250,000, the sum of $220,000 was made available to the borrowers after the deduction of $30,000 in loan fees, interest and facility expenses. The remaining $220,000 was applied to both domestic and investment purposes. Of the $220,000 the sum of $100,000 was given to Gabriella to assist her in the purchase of a family home. The balance was utilised to repay the arrears to St George Bank and to renovate the kitchen and bathroom of the Coledale and Stanmore properties. This would have made them more attractive as rental properties.
53 The DJ Capital Solutions advance was clearly for Elio's benefit. It remedied defaults on the St George Bank loan. It prevented St George Bank from taking legal action against him and seeking possession of its security properties held in Elio's name, Number 9 and the Stanmore property. I do not accept Elio's evidence that he does not know how the DJ Capital Solutions advances were applied.
54 Elio was aware of the DJ Capital Solutions advance. DJ Capital Solutions lodged caveats against the title to Number 9 and Number 11 to secure its advance to Elio and Maria. Elio signed these mortgages and consented in writing to caveats being placed on these titles. Elio says that he has no recollection of this transaction and does not know how the money from the advance was paid or dispersed. He says that he did not participate in applying for a loan from DJ Capital Solutions and that he was not involved in applying the funds advanced. Whilst he may not have actually applied for the loan from DJ Capital Solutions, it is likely that Maria and Vanessa gave him sufficient information about the elements of the transaction to procure his signature. Elio signed the DJ Capital Solutions mortgage documents with his wife Maria in early June 2007 in the presence of a solicitor known to him, Mr Angelo Andresakis. Neither Maria nor Vanessa specifically says that he was actively misled about this early loan.
55 It is likely that at the time that the DJ Capital Solutions loan was arranged that Elio understood that the loan was a necessary temporary measure while a larger refinancing was arranged. I find that is what he understood. He had some general awareness of default having occurred in the St George Bank loans. Given that the DJ Capital Solutions loan was applied to remedy the St George Bank defaults and it was for his benefit, there is little reason why at this early stage Maria and Vanessa would not tell him about this transaction. Similarly there was little reason for him not to be told that the same transaction would help facilitate the generous gift that was being made to their daughter Gabriella on her marriage.
56 By October 2007 the mortgage broker Roy Skaf had also arranged loans from BankWest and MDN. I find that Elio was given basically correct information about these loans too.
The BankWest and MDN Loans
57 Roy Skaf arranged the mortgage advance for $656,000 by MDN Mortgages Pty Limited secured over Number 9. This was a 12 month interest only loan. He also arranged a BankWest advance for $650,000 secured over Number 11 and a further BankWest loan for $540,000 secured over the Stanmore property.
58 The funds BankWest advanced secured over Number 11 and the Stanmore property were used to pay out the DJ Capital Solutions advance and to pay out the balance of Elio and Maria's existing borrowings with St George Bank. The BankWest money was also applied to assist Vanessa to partially pay out (as to $145,000) her loan with St George Bank secured over the Greenacre property so as to give her some equity in that property. She had originally borrowed 100% of the purchase price."
Some Issues Emerging From the Decision of Slattery J
I note that at the hearing before Slattery J, Elio Coppola, Maria Coppola, Vanessa Coppola, and no doubt, other witnesses gave evidence.
I have asked Mr Santisi whether there is anything controversial in the particular paragraphs of Slattery J's judgment to which I made mention. His response was, by reference to material which is sought to be put on as part of the present application for leave, that Elio Coppola and Maria Coppola succumbed to the pressure from their then solicitor to swear false affidavits before Slattery J.
The submission that is put is that the Defendants, effectively, provided a false body of evidence to Slattery J. This gave rise to the relatively straightforward findings and conclusions of Slattery J, in which his Honour described the family financial circumstances from late 2006 onwards and, in particular, explained how the Defendants came to be involved in getting loans and giving mortgages to the Plaintiff.
What is now put is that, on the basis of a false body of evidence which the Defendants gave because their solicitor pressured them to do so, there was not revealed what are said to be the true facts upon which they now seek to rely. I have to say that this submission is a rather extraordinary one. However, it has been put on this application.
The Defendants have sought to derive some comfort from parts of the judgment of Slattery J at [57] and [58], in particular, where a Roy Skaf is mentioned. I will deal at this point (perhaps out of turn) with a submission that was put that the material before the Court on the application generally indicates that Mr Skaf, who is a mortgage broker, was an agent of the Plaintiff and was not, in accordance with ordinary legal principles, the agent of the borrowers Octapon Pty Limited v Esanda Finance Corporation Limited (Cole J, 3 February 1989, BC8902608, page 27), applying Con-Stan Industries of Australia Pty Limited v Norwich Winterhur Insurance (Australia) Limited [1986] HCA 14; 160 CLR 226 at 234; Steele-Smith v Liberty Financial Pty Limited [2005] NSWSC 398 at [104]).
I find no support for that proposition in anything said by Slattery J, or in the banking documents behind Tabs 10 and 11 in MFI1. It seems to me the position rises no higher than demonstrating that Mr Skaf was involved, in some way, in the documentary process. The judgment of Slattery J (at [57]) indicated that Mr Skaf was involved in arrangements that were made (his Honour having described Mr Skaf's association with the Defendants at [51]).
To the extent that the Defendants submit that the documents (Tabs 10 and 11 in MFI1) point to at least an open question that Mr Skaf was an agent of the Plaintiff, and that this may bear upon matters which they would wish to agitate in a Cross-Claim, I am not persuaded that the evidence indicates that at all. It seems to me that a construction is being advanced for the Defendants which does not readily arise from the documents. The fact that Mr Skaf may have been involved, and that there is a document which is said to be a disclosure statement referable to a financial services origination agreement with Bank of Western Australia Limited does not, it seems to me, constitute any evidence of an agency between the Plaintiff and Mr Skaf.
I have referred to the judgments of Slattery J and Walmsley AJ because they constitute a practical measure of the conduct of the present litigation by the Defendants. The judgments indicate relatively straightforward transactions, as a result of which the Defendants clearly received a substantial benefit and are in default. These considerations do not readily lend themselves to yet another grant of leave to the Defendants to do something in this litigation.
Whether Leave Should Be Granted to Maria Coppola to Apply to Set Aside the Consent Judgment
I turn directly to the question as to whether leave should be granted to Mrs Coppola to bring an application to set aside the consent judgment. It will be immediately apparent that the events which are sought to be impugned occurred as long ago as 2010. There is no doubt, from what has been put, that there is an attack which the Defendants seek to bring upon Mr Moloney, their then solicitor.
Submissions have been put by Mr Santisi, by reference to the material in MFI3, and I have listened carefully to those submissions. A number of problems immediately present themselves for the Defendants.
The first is that Rule 36.15 Uniform Civil Procedure Rules 2005 ("UCPR"), does not seem to provide a basis upon which there can be an application to set aside a consent judgment which has been entered. When invited to identify the suggested irregularity, illegality or why it would be against good faith, Mr Santisi focused upon what he said were irregularities in the way that Mr Moloney had behaved. Mr Moloney was the solicitor on the record for Mrs Coppola for the purpose of Rule 7 UCPR. What he did at that time, including the execution of the consent judgment, was done on behalf of Mrs Coppola.
There was consent to judgment being given against Mrs Coppola and that judgment was entered. There was no rush to enter it. In fact, it happened three months later. There is no sign of any application to set aside the consent judgment being foreshadowed by the next set of lawyers who took over from Mr Moloney.
I am not persuaded that the matters relied upon by Mr Santisi are capable of being irregularities for the purpose of Rule 7 UCPR.
Rule 36.16 UCPR involves application being made either before entry or within certain time after entry. There has never been a Notice of Motion actually filed seeking to set aside the consent judgment. The closest that one has got to it is the current application, where leave is sought now to put on a Notice of Motion in early April 2012 seeking to impugn what happened in May and August 2010.
I accept the submissions made on behalf of the Plaintiff and the Registrar General that there is no proper legal basis for the bringing of this application.
Further, I accept the submissions put on behalf of the Plaintiff and the Registrar General that, in any event, there have been ample opportunities given for the bringing of such an application. I have in mind in this respect, the provisions contained in s.56 and following of the Civil Procedure Act 2005. In Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230, Allsop ACJ, at [36]ff, identified what was described as:
"The new statutory balance among various factors in litigation including Court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the Courts to provide individual justice."
Six days after Allsop ACJ made these observations, the High Court delivered judgment in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175.
The emphatic message from the Aon decision, taken with the statutory scheme in the Civil Procedure Act 2005, and decisions such as Hans Pet Constructions and later decisions of the Court of Appeal which have applied Aon (such as Richards v Cornford (No. 3) [2010] NSWCA 134 at [98]-[119]), is that the Court will look to parties and their legal representatives to comply with the new statutory balance contained in that Act. All of this is not done for the purpose of driving parties to a sudden and premature hearing which may resolve matters. Rather, it is to keep litigation moving in circumstances where the interests of justice are a critical component.
The interests of justice, of course, operate in favour of all parties to the litigation. It is not a matter of persons in the position of the Defendants having open-ended opportunities to litigate matters, despite previous opportunities being given to do so which were not acted upon. That does not mean, of course, that there is a type of one-strike scenario, where things must be done the first time or not at all.
On the other hand, the Court looks at the history of the litigation and the fact that the decision of Slattery J has laid down a clear framework of the matters under consideration. One looks, as well, at what are said to be the issues in the proceedings. One looks at what the parties have done, in this case a consent judgment. If there is said to be a controversy about that consent judgment, the Court looks to see what has been done by the complaining party to seek to undo that situation.
What does that examination reveal here? It reveals the events of 2010, with judgment being entered in August 2010. New lawyers come in thereafter, and no application was made. Another set of lawyers came in. An application was flagged. Orders of the Court were made. No application was made. The Court was told that no application was to be made. Months then passed. Another application was brought by those lawyers, being the application determined by Walmsley AJ. The 2011 lawyers were not sitting on their hands.
Finally, the Plaintiff and the Registrar General move for summary relief. A new set of lawyers come in for the Defendants. It is said (now in 2012) there is a desire to bring an application to set aside the consent judgment. In my view, quite apart from what I think is the lack of legal foundation for the application, there is a powerful, indeed overwhelming discretionary basis upon which Mrs Coppola should not be allowed to bring this application at this time.
I have listened to what Mr Santisi has said as to various explanations in that respect. This is a decision to be made in the context of what has happened in the litigation generally and, in particular, the application foreshadowed and not pressed last year. All the factors which I have mentioned bear upon the resolution of that question.
I do not propose to allow this application to be brought by Mrs Coppola.
Application by Defendants For Leave to Rely Upon Material Out of Time
The second (and broader) application is that the Defendants have leave to put on all the material which was served yet again outside a Court timetable.
Courts allow parties some flexibility in the conduct of litigation. Guillotine orders are not made lightly. In this case, the order of 23 February 2012 was not, in terms, a guillotine order. However, it was made entirely clear to Mr Santisi that, against the background of breaches of orders, strict compliance with that order was expected.
Compliance with the order was expected to allow the other parties to the litigation (whose interests should not be lost sight of) to assess what they were being given by 21 March 2012, so as to make any meaningful submission as to what was expected to happen on 29 March 2012. As it happens, as I have said, the documents in MFI3 continued to come in up to and including 28 March 2012.
I have considered, amongst other things, what has been said about the general merits of the litigation. Mr Santisi has addressed the Court on a number of matters, as indeed has Mr Newton, counsel for the Plaintiff, and Mr Altan, counsel for the Registrar General.
The position remains that there is a consent judgment given by Mrs Coppola, which I will not allow to be challenged at this time, in all the circumstances of the case.
As to Mr Coppola, there are other matters to which I have adverted in the judgment of Walmsley AJ. Beyond that, there is a variety of matters to which I have adverted in the judgment of Slattery J.
I am simply not persuaded that the provision of this material, yet again out of time (and out of time at a crucial time), ought see the discretionary grant of leave to the Defendants.
In this respect, I have regard once again, to the principles in the Civil Procedure Act2005, and to the statements of principle in Hans Pet Constructions and in Aon. (A costs order alone is not sufficient in the circumstances of this case).
I will proceed to consider the Notices of Motion of the Plaintiff and the Registrar General, which have been heard now for nearly two days.
However, I decline the application by Mrs Coppola for leave to bring an application to set aside the consent judgment entered on 18 August 2010, and I decline the application by the Defendants to file and rely upon the Notice of Motion and material contained in MFI3.
I reserve the question of costs of this aspect of the litigation.
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Decision last updated: 06 December 2012
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