Bank of Western Australia Limited v Coppola (No. 2)
[2012] NSWSC 1495
•06 December 2012
Supreme Court
New South Wales
Medium Neutral Citation: Bank of Western Australia Limited v Coppola and Anor (No. 2) [2012] NSWSC 1495 Hearing dates: 29 March 2012, 2 April 2012 Decision date: 06 December 2012 Jurisdiction: Common Law Before: Johnson J Decision: The Plaintiff is entitled to an order striking out the Defence to the Further Amended Statement of Claim filed on 17 January 2011 and to judgment against Elio Coppola. The Plaintiff is entitled to enforce the judgment already entered against Maria Coppola.
The Plaintiff and the Registrar General are entitled to orders summarily dismissing the Cross-Claims brought by Elio Coppola and Maria Coppola against each of those parties.
The Plaintiff is entitled to the following orders:
(a) an order for possession of 11 Shackel Avenue, Concord;
(b) judgment for the debt under the Home Loan Facility Agreement dated 23 October 2007;
(c) an order for possession of 255 Stanmore Road, Stanmore;
(d) judgment for the debt under the Business Facility Contract dated 23 October 2007.
An order should be made that Elio Coppola and Maria Coppola pay the costs of the Plaintiff and the Registrar General.
The Plaintiff and the Registrar General are to bring in short minutes to give effect to these proposed orders, including the quantum of monetary judgment to be included in the orders.
Catchwords: MORTGAGES - claim for possession of land and monetary judgment - mortgage default - application by Plaintiff for summary judgment - Cross-Claim against Plaintiff and Registrar General - application by Plaintiff and Registrar General for summary dismissal of Cross-Claim - Plaintiff granted summary judgment - summary dismissal of Cross-Claim granted Legislation Cited: Conveyancing Act 1919
Real Property Act 1900
Evidence Act 1995
Powers of Attorney Act 2003Cases Cited: Bank of Western Australia Limited v Coppola and Anor [2012] NSWSC 359
Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125
Webster v Lampard [1993] HCA 57; 177 CLR 598
Cosmos E-C Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81
Fancourt v Mercantile Credits Limited [1983] HCA 25; 154 CLR 87
Bank of Western Australia Limited v Coppola [2011] NSWSC 1326
Blair v Curran [1939] HCA 23; 62 CLR 464
Jackson v Goldsmith [1950] HCA 22; 81 CLR 446
Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589
Rippon v Chilcotin Pty Limited [2001] NSWCA 142; 53 NSWLR 198
Fast Funds Pty Limited v Coppola [2010] NSWSC 470
Provident Capital Limited v Printy [2008] NSWCA 131
Bahr v Nicolay (No. 2) [1988] HCA 16; 164 CLR 604
Assets Co Limited v Mere Roihi [1905] AC 176
Bank of South Australia Limited v Ferguson [1998] HCA 12; 192 CLR 248
Pyramid Building Society v Scorpion Hotels Pty Limited [1998] 1 VR 188
Macquarie Bank Limited v Sixty-Fourth Throne Pty Limited [1998] 3 VR 133Texts 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 (Defendants)
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: This judgment relates to applications:
(a) by the Plaintiff, Bank of Western Australia Limited, for the Defence to the Further Amended Statement of Claim filed on 17 January 2011 to be struck out and judgment to be entered for the Plaintiff against Elio Coppola;
(b) by the Plaintiff, a Cross-Defendant on a Cross-Claim filed on 17 January 2011 by Elio Coppola and Maria Coppola, that the claim against the Plaintiff be summarily dismissed or struck out;
(c) by the Registrar General, a Cross-Defendant on a Cross-Claim by Elio Coppola and Maria Coppola, that the claim against the Registrar General be summarily dismissed or struck out.
The Hearing of the Applications
The hearing of these applications proceeded on 29 March 2012 and 2 April 2012, with written submissions being made thereafter in accordance with a timetable fixed by the Court.
During the course of the hearing, I gave judgment refusing an application by Mrs Coppola for leave to seek to set aside a consent judgment, and refusing Mr and Mrs Coppola leave to file a Notice of Motion and to rely upon material served out of time in support of that Notice of Motion: Bank of Western Australia Limited v Coppola and Anor [2012] NSWSC 359.
A perusal of that judgment provides some context for the issues to be determined in the present judgment. There is a significant overlap between issues considered in that judgment and in this one.
The Plaintiff was represented by Mr PT Newton of counsel. The Registrar General was represented by Mr H Altan of counsel. The Defendants were represented by Mr F Santisi of counsel.
The Plaintiff read the following affidavits at the hearing:
(a) affidavits of Sarah Jane Ng sworn 19 December 2011 and 28 March 2012;
(b) affidavit of Karina Elizabeth Carter sworn 21 December 2011.
In addition, Mr Newton tendered a letter dated 18 February 2010 from his instructing solicitors, Gadens Lawyers, to the Defendants' then solicitors, Moloney Lawyers, relevant to the admission of certain facts (Exhibit A). Mr Newton tendered, as well, paragraphs 8(b) and 10(b) of a Draft Amended Cross-Claim (Exhibit B).
Mr Santisi had given notice that he wished to cross-examine Ms Ng, an officer of the Plaintiff based in Perth. Because of Ms Ng's advanced pregnancy, I made an order, in a judgment delivered on 27 March 2012, that she give evidence by way of audio-visual link. Ms Ng was cross-examined on 29 March 2012 (T29-T87 - I note that T69-T81 is a repetition of T56-T68).
Ms Carter was also cross-examined on her affidavit (T93-T105).
Mr Altan relied upon evidence adduced in the Plaintiff's case and, in addition, he read in the Registrar General's case the affidavit of Stephen Prent sworn 13 December 2011.
Mr Newton relied, as well, upon Mr Prent's affidavit in the Plaintiff's case.
Mr Prent was not required for cross-examination.
Mr Santisi read, in the Defendants' case, an affidavit of Mr Coppola sworn 22 April 2010. Objection was taken to parts of this affidavit, to which I will return. Mr Newton and Mr Altan indicated that, if this affidavit was allowed, neither counsel wished to cross-examine Mr Coppola.
Mr Santisi tendered, without objection, a bundle of documents used in cross-examination of Ms Ng (Exhibit 3), and a Notice to Produce addressed to the Plaintiff (Exhibit 4).
Mr Santisi made application to rely upon further material on behalf of Mr and Mrs Coppola. For reasons explained in my judgment on 2 April 2012, I refused that application.
The applications of the Plaintiff and the Registrar General fall to be determined by reference to the evidence adduced at the hearing before me, and the written and oral submissions made both before and after the hearing on 29 March 2012 and 2 April 2012.
I have had regard to all of this material for the purpose of reaching the conclusions expressed in this judgment.
Applicable Legal Principles
The applicable principles on a summary judgment application are clear. Before a Court will give summary judgment to a plaintiff, it is necessary for the Court to reach a high level of satisfaction that the order should be made. The principles are well known - a very clear case is required before summary judgment is granted and the power to order summary judgment should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-603 and Cosmos E-C Commerce Pty Limited v Bidwell & Associates Pty Limited [2005] NSWCA 81 at [37]-[348].
The power to order summary judgment should not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Limited [1983] HCA 25; 154 CLR 87 at 99.
Summary disposal is not confined to cases where argument is unnecessary to evoke the futility of the defence or claim. Argument, even extensive argument, may be necessary to demonstrate that the defence or claim is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner of Railways (NSW) at 130.
The stringent test for summary judgment set out in the preceding paragraphs extends, as well, to an application for summary dismissal such as that bought by the Plaintiff and the Registrar General with respect to the Cross-Claim. It is necessary for those parties to demonstrate a very clear case for summary dismissal before that power will be exercised.
Factual Matters
Elio Coppola and Maria Coppola are married. They have a daughter, Vanessa Coppola.
On or around 23 October 2007, Mr and Mrs Coppola entered into a Home Loan Facility Agreement with the Plaintiff pursuant to which the Plaintiff advanced to them the sum of $640,000.00. At or about the same time, Mr Coppola entered into a Business Facility Contract with the Plaintiff pursuant to which the Plaintiff advanced to him the sum of $570,000.00.
On or around 9 November 2007, Mr and Mrs Coppola granted a mortgage in favour of the Plaintiff over the whole of the land at 11 Shackel Avenue, Concord ("the Concord property") of which they are registered proprietors, in order to secure their obligations under the Home Loan Facility Agreement.
At the same time, Mr Coppola granted a mortgage in favour of the Plaintiff over the whole of the land at 255 Stanmore Road, Stanmore ("the Stanmore property") of which he is the registered proprietor, in order to secure his obligations under the Business Facility Contract.
Mrs Coppola admits that she signed the Home Loan Facility Agreement and the mortgage in respect of the Concord property.
Mr Coppola admits that his daughter, Vanessa Coppola, signed the Home Loan Facility Agreement, the Business Facility Contract and the two mortgages: Bank of Western Australia Limited v Coppola [2011] NSWSC 1326 at [38] (Walmsley AJ). These documents were signed by Vanessa Coppola after her appointment as Mr Coppola's attorney, and within the powers conferred on her as attorney.
The Defendants do not dispute that, on 9 November 2007, the Plaintiff advanced $640,000.00 under the Home Loan Facility Agreement and $570,000.00 under the Business Facility Contract. Mr and Mrs Coppola admit that these funds advanced by the Plaintiff under each agreement were sent to their account.
From the monies advanced by the Plaintiff to Mr and Mrs Coppola:
(a) amounts of $380,834.86 and $550,600.21 were paid to St George Bank Limited to satisfy monies secured by registered mortgages over the Concord property and the Stanmore property; and
(b) the amount of $254,516.13 was paid to DJ Capital Solutions Pty Limited to satisfy monies secured by registered mortgages over the Concord property and the Stanmore property.
Upon receipt of the amounts advanced by the Plaintiff, St George Bank Limited and DJ Capital Solutions Pty Limited discharged their mortgages.
Accordingly, Mr and Mrs Coppola have each received an incontrovertible benefit from the loans.
I am satisfied that events of default have occurred under the Home Loan Facility Agreement and the Business Facility Contract, giving rise to the Plaintiff commencing proceedings against Mr and Mrs Coppola for possession and debt.
The Present Proceedings
The present proceedings were commenced by Statement of Claim filed on 7 October 2009. In the Statement of Claim, the Plaintiff claims an order for possession of the Concord property, judgment for the amount owing under the Home Loan Facility Agreement, judgment for possession of the Stanmore property and judgment for the amount owing under the Business Facility Contract.
On 18 August 2010, Mrs Coppola consented to judgment being entered against her in these proceedings in favour of the Plaintiff for possession of her interest in the Concord property, as well as for the sum of $680,971.86 under the Home Loan Facility Agreement. Judgment was entered, in accordance with the Consent Judgment, on 30 August 2010.
It is this Consent Judgment which Mrs Coppola sought leave to impugn, an application refused in my judgment of 2 April 2012.
Notwithstanding the Consent Judgment entered against Mrs Coppola, on 17 January 2011, both Mr and Mrs Coppola filed the Cross-Claim that is the subject of the Motions bought by the Plaintiff and the Registrar General. In that Cross-Claim, Mrs Coppola seeks to assert that she did not understand what she was signing at the time she signed the mortgage pledging the Concord property as security, and that her signature on the mortgage was procured by the "pressure, deceit and dishonesty" of Vanessa Coppola who is named as the Second Cross-Defendant.
In the same Cross-Claim, Mr Coppola asserts that he did not sign either of the mortgages in which the Concord property and the Stanmore property were pledged as securities. He asserted that these mortgages were signed by Vanessa Coppola without his authorisation.
On these bases, Mr and Mrs Coppola seek declarations that the mortgages were procured by fraud, and that they do not secure any loan to the Plaintiff, and seek compensation from the Torrens Assurance Fund ("the Fund") as against the Registrar General.
In my judgment of 2 April 2012, I recounted (at [17]ff) the tortuous history whereby Mr and Mrs Coppola had taken no meaningful step (even service) between January 2011 and April 2012 to prosecute the Cross-Claim against Vanessa Coppola. This inertia, accompanied by repeated breaches of Court orders, operated strongly against the Defendants in the applications decided adversely to them in that judgment.
By Further Amended Statement of Claim filed on 13 October 2010, the Plaintiff claimed additional relief in the alternative to the orders for possession and debt. This alternative claim for relief comprised a declaration that the mortgage over the Concord property had full force and effect as against Mr Coppola and sought orders under s.66G Conveyancing Act 1919.
Following the protracted course of events in this litigation outlined in my judgment of 2 April 2012 (which I will not repeat in this judgment), the Plaintiff and the Registrar General filed Notices of Motion in December 2011 seeking the orders referred to above.
Claims for Relief by the Plaintiff and the Registrar General Against Maria Coppola
As a result of the decision made by me on 2 April 2012, the judgment entered against Mrs Coppola, by consent, stands. By that judgment, the Plaintiff is entitled, as against Mrs Coppola, to possession of her interest in the Concord property as well as the sum of $680,971.86 under the Home Loan Facility Agreement.
As Mrs Coppola has no interest in the Stanmore property, then the effect of this judgment standing is that the Plaintiff is now entitled to enforce that judgment against Mrs Coppola.
Mrs Coppola purported to bring a Cross-Claim against the Plaintiff and the Registrar General in the pleading filed on 17 January 2011. I accept the submissions made on behalf of the Plaintiff and the Registrar General that the judgment entered against Mrs Coppola is final, and that she is estopped or precluded from bringing any claim against the Plaintiff and the Registrar General as sought to be advanced by her.
This position is reached by application of the principle of res judicata, founded on the necessity of avoiding re-agitation of issues and prevention of the raising of issues which could have been, and should have been, decided in earlier litigation. The judgment entered by consent against Mrs Coppola on 30 August 2010 finally determined and disposed of the claim on the action against her.
The judgment prevents her from raising, in these proceedings, the issues or causes of action determined by the judgment, and any issue or cause of action which could or should have been raised in the prior litigation.
I accept that the following facts should be taken to be legally indispensable to the judgment entered against Mrs Coppola:
(a) she entered into the Home Loan Facility Agreement;
(b) the Plaintiff advanced funds to her pursuant to that Agreement;
(c) a sum exceeding $648,000.00 was owing under that Agreement;
(d) she gave a mortgage over the Concord property to secure her obligations under that Agreement; and
(e) she defaulted.
To the extent that Mrs Coppola's Cross-Claim was apparently intended to assert that her signature on the relevant mortgage was procured by the pressure, deceit and dishonesty of Vanessa Coppola, I accept the submission for the Plaintiff and the Registrar General that Mrs Coppola cannot now assert these matters, given the entry of judgment against her. Mrs Coppola is estopped from bringing the Cross-Claim against the Plaintiff and the Registrar General: Blair v Curran [1939] HCA 23; 62 CLR 464 at 531-532; Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 at 466 and Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589 at 597.
I accept the Registrar General's submission that the Cross-Claim by Mrs Coppola against the Registrar General in this case is an abuse of process. It involves an attempt to relitigate a matter already determined in prior proceedings: Rippon v Chilcotin Pty Limited [2001] NSWCA 142; 53 NSWLR 198. I accept the Registrar General's submission that, although only the Plaintiff (as a party in whose favour the judgment has been entered) is able to rely upon the doctrines of res judicata and Anshun estoppel as a complete bar to Mrs Coppola's claim, the Cross-Claim by Mrs Coppola against the Registrar General constitutes an impermissible collateral attack on the judgment which, for the same reasons, also constitutes an abuse of process.
Mrs Coppola's Cross-Claim against the Plaintiff seeks a declaration that the mortgage in respect of the Concord property does not secure any loan to the Plaintiff. In order to succeed in her Cross-Claim against the Registrar General, Mrs Coppola would need to prove, as a starting point, the allegations contained in paragraph 8 of the Cross-Claim that her entry into the Home Loan Facility Agreement, and the subsequent advance of money by the Plaintiff to her pursuant to that Agreement, were procured by fraud, and that her execution of the mortgage over the Concord property was also procured by fraud.
If Mrs Coppola was permitted to raise such issues on her Cross-Claim, then any conclusion which may be reached in her favour in this respect would result in a clear inconsistency with the facts that are legally indispensable to the judgment.
The result of the judgment is that it must now be taken as settled that Mrs Coppola entered into the Home Loan Facility Agreement, and that she provided a mortgage over the Concord property as security for that Agreement. Part 14 of the Real Property Act 1900 was enacted to address the hardship that may be caused by the effects of indefeasibility.
In light of the facts which cannot be challenged because of the judgment entered against Mrs Coppola, I accept that any loss that she seeks to allege in the Cross-Claim cannot be "as a result of the operation of this Act in respect of any land", this being the threshold requirement in s.129 Real Property Act 1900 to entitlement to compensation from the Fund. Any loss which Mrs Coppola claims can only be viewed as a loss resulting from her entry into the Home Loan Facility Agreement and her providing a mortgage as security for her obligations in respect of that agreement which, in light of the judgment, cannot be impugned as having been procured by fraud.
I accept the submissions of the Plaintiff and the Registrar General that Mrs Coppola's Cross-Claim ought be dismissed because, in the light of the judgment against her, she was not competent to bring the claim in the first place and she remains incompetent to maintain a claim against the Registrar General.
The Registrar General is entitled to rely upon the principles of res judicata in support of its application for summary dismissal, even though it was not a party to the consent judgment or the Statement of Claim.
Upon this analysis, which I accept, the Defence to the Further Amended Statement of Claim and the Cross-Claim, to the extent that it purports to be brought on behalf of Mrs Coppola, should be struck out or dismissed pursuant to rule 13.1 or Rule 14.28 Uniform Civil Procedure Rules 2005 ("UCPR"). In my view, the appropriate course is an order for dismissal under Rule 13.1 UCPR.
I am satisfied that the Plaintiff and the Registrar General are entitled to the orders which they seek in their Notices of Motion against Mrs Coppola.
Claims by Plaintiff and Registrar General for Relief Against Elio Coppola
As mentioned above, Mr Newton and Mr Altan objected to the affidavit of Mr Coppola sworn 22 April 2010. Mr Newton objected to those parts of the affidavit which sought to express conclusions on the effect of the registered Power of Attorney signed by Mr Coppola on 26 June 2007: s.48 Evidence Act 1995. Mr Newton submitted that it had been admitted that Vanessa Coppola signed the mortgages to the Plaintiff registered on the titles to the Concord property and the Stanmore property, and that Mr Coppola had admitted that he had signed the registered Power of Attorney to Vanessa Coppola. He submitted that it had been admitted that all loan and mortgage documents had been executed by Vanessa Coppola under the Power of Attorney. Reliance was placed upon the contents of Exhibits A and B, and the judgment of Walmsley AJ in Bank of Western Australia Limited v Coppola [2011] NSWSC 1326 at [38] (reproduced in my judgment in Bank of Western Australia Limited v Coppola and Anor [2012] NSWSC 359 at [32]).
Mr Altan made similar objections upon the basis that parts of the affidavit expressed conclusions on the effect of a registered Power of Attorney which should speak for itself: s.48 Evidence Act 1995.
Mr Santisi submitted that the affidavit of Mr Coppola ought be received in evidence in its entirety, including the parts objected to by the Plaintiff and the Registrar General.
Given the nature of the present application for summary judgment by the Plaintiff and summary dismissal of the Cross-Claims against the Plaintiff and the Registrar General, I propose to admit the affidavit of Mr Coppola in its entirety. The affidavit should be read in conjunction with the other evidence adduced at the hearing. The remaining question is what conclusions ought be reached by reference to the totality of the evidence.
I accept that Mr Coppola gave a Power of Attorney to Vanessa Coppola on 26 June 2007 and that that Power of Attorney was registered. The Power of Attorney speaks for itself: s.48 Evidence Act 1995. The affidavit of Mr Coppola does not, in my view, materially reduce the weight that can be given to the Power of Attorney.
I accept the submissions of the Plaintiff and the Registrar General that the admissions in evidence before me (Exhibits A and B), taken together with the judgment of Walmsley AJ at [38], demonstrate an admission by Mr Coppola that Vanessa Coppola signed the mortgages to the Plaintiff registered on the titles to the Concord property and the Stanmore property, and signed other documents relating to the two loans from the Plaintiff, and that the loan and mortgage documents were executed by Vanessa Coppola under the Power of Attorney given by Mr Coppola.
The Power of Attorney is a general Power of Attorney made under Part 2 of the Powers of Attorney Act 2003. It appointed Mrs Coppola and Vanessa Coppola to do anything on behalf of Mr Coppola that he might lawfully authorise an attorney to do. The Power of Attorney operated immediately. It contains no additional powers and restrictions: Fast Funds Pty Limited v Coppola [2010] NSWSC 470 at [45] (Slattery J).
Furthermore, s.43 Powers of Attorney Act 2003 expressly validates acts done by an attorney in the authorised manner.
The evidence demonstrates that the Power of Attorney from Mr Coppola to Vanessa Coppola is held on the Plaintiff's loan file and on the Plaintiff's security packet. I do not consider that the submissions advanced by Mr Santisi which sought to raise questions concerning the location of the Power of Attorney and the reliance upon it by the Plaintiff assists Mr Coppola on the present applications.
The Power of Attorney is registered and has not been revoked or set aside. I accept that Vanessa Coppola acted within the authority conferred upon her by the Power of Attorney and, by signing the loan agreements and mortgages, bound Mr Coppola. As a result of this, Mr Coppola and Mrs Coppola obtained incontrovertible benefits in the form of the discharge of substantial existing mortgages over the properties in question. These incontrovertible benefits resulted from Mr and Mrs Coppola receiving the monies advanced by the Plaintiff. I am satisfied that the Plaintiff is entitled to enforce the loan agreements and mortgages against Mr Coppola.
I am satisfied that, upon Vanessa Coppola signing each loan agreement and mortgage, Mr Coppola became bound by each loan agreement and mortgage.
Additional protection was provided by registration of the mortgages. The mortgages to the Plaintiff over the Concord property and the Stanmore property have been registered. Section 42(1) Real Property Act 1900 confers protection by way of indefeasibility of title upon not only the registered holder of the fee simple, but also the registered holder of any lesser or derivative interest in the land, such as a mortgagee. The Plaintiff is a "proprietor" within the meaning of ss.3(1)(a) and 42(1) Real Property Act 1900.
Upon registration of each mortgage, the Concord property and the Stanmore property became liable as security in a manner and subject to the covenants set forth in each mortgage: s.41(1) Real Property Act 1900; Provident Capital Limited v Printy [2008] NSWCA 131 at [25]. On registration of each mortgage, the Plaintiff acquired an "estate or interest" as mortgagee in each property. The registration validates the terms and conditions of each mortgage, which delimits or qualifies the estate or interest or are otherwise necessary to assure that estate or interest in the registered proprietor.
I accept the Plaintiff's submission that, on its true construction, the mortgage over the Concord property is security for all monies owing to the Plaintiff by Mr and Mrs Coppola. Likewise, I accept the submission of the Plaintiff that the mortgage over the Stanmore property is security for all amounts owing by Mr Coppola to the Plaintiff.
I accept that defaults have occurred under each mortgage and that the defaults have not been rectified after default notices have been given to Mr and Mrs Coppola.
To the extent that the Defendants submitted that there was some material supporting a conclusion that a mortgage broker, Roy Skaf, was an agent of the Plaintiff, I repeat my observations at [59]-[61] of the judgment of 2 April 2012.
To the extent that Mr Coppola and Mrs Coppola seek to rely upon the fraud exception under s.42 Real Property Act 1900, I accept the Plaintiff's submissions that this argument ignores the fact that Vanessa Coppola was not the agent of the Plaintiff and was, at all material times, the duly appointed attorney of Mr Coppola. In addition, I accept the Plaintiff's submissions that the arguments advanced for Mr and Mrs Coppola ignore the following principles:
(a) that fraud in s.42 Real Property Act 1900 means actual fraud, not constructive or equitable fraud: Bahr v Nicolay (No. 2) [1988] HCA 16; 164 CLR 604 at 614;
(b) the fraud must be brought home to the person whose registered title is impeached, or to his agents: Bahr v Nicolay (No. 2);
(c) fraud by a person from whom the registered proprietor claims does not affect him, unless knowledge of it is brought home to him or his agents: Assets Co Limited v Mere Roihi [1905] AC 176;
(d) the mere fact that the registered proprietor might have discovered the fraud had he been more vigilant is irrelevant (unless the person's suspicions were aroused and he deliberately abstained from making further enquiries): Assets Co Limited v Mere Roihi;
(e) ordinarily, merely having notice of an unregistered interest does not constitute fraud;
(f) normally the fraud must have operated on the mind of the person said to be defrauded, and to have induced detrimental action by that person: Bank of South Australia Limited v Ferguson [1998] HCA 12; 192 CLR 248 at 258, and
(g) wilful blindness or indifference to the truth does not constitute fraud: Pyramid Building Society v Scorpion Hotels Pty Limited [1998] 1 VR 188; Macquarie Bank Limited v Sixty-Fourth Throne Pty Limited [1998] 3 VR 133.
I am satisfied that, on no view of the evidence, was the Plaintiff privy to or aware of any alleged fraud. Likewise, I am satisfied that the Plaintiff was not on notice of any allegation of fraud at the time it entered into the loan agreements, advanced the monies and registered the mortgages. I accept that the first time that the Plaintiff was given notice of an allegation of a fraud was after the commencement of these proceedings.
In these circumstances, I am satisfied that Mr and Mrs Coppola cannot make out an exception to the indefeasibility provisions, and do not have a defence to the Plaintiff's claims under the loan agreements and mortgages.
With respect to Mr Coppola, the Registrar General submits that his claim against the Registrar General is based on an allegation that, notwithstanding that Vanessa Coppola signed the mortgages under the Power of Attorney, he did not authorise her to do so. I accept the submission of the Registrar General that s.129(2)(l) Real Property Act 1900 excludes a claim of this type from the available range of claims on the Fund. Compensation is not payable in relation to any loss or damage suffered by any person where the loss or damage arises from the execution of an instrument by an attorney (under a Power of Attorney) acting contrary to, or outside of, the authority conferred on him or her by the Power of Attorney.
Section 129(2)(l) Real Property Act 1900 operates as a statutory bar to the claim that Mr Coppola seeks to bring against the Registrar General on his Cross-Claim. Accordingly, I accept that even on Mr Coppola's pleaded claim, he cannot succeed against the Registrar General. This constitutes a further basis upon which the Registrar General is entitled to the relief sought against Mr Coppola.
The conclusions I have reached in this judgment should be read in conjunction with my judgment of 2 April 2012. As that judgment makes clear, important findings were made by Slattery J (in 2010) and Walmsley AJ (in 2011) which serve to fortify the firm conclusions which I have reached in the present judgment.
I am well satisfied that the Plaintiff and the Registrar General have discharged the substantial onus to demonstrate an entitlement to summary relief, in accordance with the principles set out at [18]-[21] above.
Conclusion and Orders
I am satisfied that the Plaintiff is entitled to an order striking out the Defence to the Further Amended Statement of Claim filed on 17 January 2011 and to judgment against Mr Coppola. Likewise, I am satisfied that the Plaintiff is entitled to enforce the judgment already entered against Mrs Coppola.
I am satisfied that the Plaintiff and the Registrar General are entitled to orders summarily dismissing the Cross-Claims brought by Mr and Mrs Coppola against each of those parties.
The Plaintiff is entitled to the following orders:
(a) an order for possession of 11 Shackel Avenue, Concord;
(b) judgment for the debt under the Home Loan Facility Agreement dated 23 October 2007;
(c) an order for possession of 255 Stanmore Road, Stanmore;
(d) judgment for the debt under the Business Facility Contract dated 23 October 2007.
In circumstances where the Plaintiff and the Registrar General have succeeded entirely against Mr and Mrs Coppola on these various applications, it is appropriate that costs should follow the event. Elio Coppola and Maria Coppola should pay the costs of the Plaintiff and the Registrar General with respect to the proceedings, including the costs reserved in my judgment of 2 April 2012 (at [89]).
I will allow the Plaintiff and the Registrar General to bring in short minutes to give effect to these proposed orders, including the quantum of monetary judgments to be included in the orders.
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Decision last updated: 06 December 2012
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