Bendigo and Adelaide Bank Limited v Grahame

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2018 02347

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)	Plaintiff/Defendant by Counterclaim
v
HEATHER JEAN GRAHAME	Defendant/ Plaintiff by Counterclaim

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JUDGE:	SLOSS J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2019
DATE OF JUDGMENT:	2 March 2020
CASE MAY BE CITED AS:	Bendigo and Adelaide Bank Limited v Grahame
MEDIUM NEUTRAL CITATION:	[2020] VSC 86

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PRACTICE AND PROCEDURE – Appeal from decision of judicial registrar – Where appeal is by way of hearing de novo – Consideration of nature of appeal by way of hearing de novo – Parties not confined to material that was before the judicial registrar.

PRACTICE AND PROCEDURE – Appeal from decision of judicial registrar granting summary judgment on statement of claim and counterclaim – Where appeal is by way of hearing de novo – Where plaintiff seeks summary judgment against defendant – Whether defendant has real prospects of success on her defence and counterclaim – Where plaintiff’s cause of action is made out – Where defendant’s amended defence and amended counterclaim do not have any real prospects of success – Interests of justice favour summary disposal of proceeding and counterclaim – Civil Procedure Act (2010) (Vic), Part 4.4, ss 61-64 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C F Gobbo	Cornwalls
For the Defendant	The defendant appeared in person

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Notice of appeal filed by the defendant.................................................................................... 1
Developments since the notice of appeal was filed................................................................. 2
Summary of conclusions.............................................................................................................. 4

Appeal from a determination by a Judicial Registrar................................................................. 5

Hearing de novo............................................................................................................................ 5

Summary judgment application..................................................................................................... 6

Summary judgment - applicable principles................................................................................. 7

CPA requirements......................................................................................................................... 7
Summary judgment application by a defendant.................................................................... 12

Summary dismissal and strike out............................................................................................... 13

Material relied upon by the respective parties.......................................................................... 14

The plaintiff’s claim........................................................................................................................ 15

Initial loan agreement................................................................................................................. 17
Variation to increase loan.......................................................................................................... 18
Default under loan...................................................................................................................... 18
Plaintiff’s cause of action made out.......................................................................................... 22

The defendant’s amended defence and counterclaim.............................................................. 23

(a).... The named defendant is not the customer of the Bank............................................... 26
(b).... The Loan Agreement was not a loan but rather an exchange for a promissory note 31
(c).... The Bank engaged in misleading and deceptive conduct by falsely representing that the Loan Agreement was a loan............................................................................................. 37
(d).... The Bank engaged in unconscionable conduct by deliberately and fraudulently attempting to mislead the Customer so as to procure financial gain............................................. 38
(e).... The Loan Agreement is void and/or unenforceable.................................................... 44
(f)..... The contract is unenforceable because it is grossly unfair.......................................... 48
(g).... Previous loans to the defendant are relevant to be considered (and form the basis for the defendant’s restitution (unjust enrichment) counterclaim)........................................ 52
(h).... By performing an ‘acceptance for value’ on 18 November 2018, the defendant directed the Treasury to pay $166,381.53 to the plaintiff thereby offsetting the alleged debt..... 54
(i)..... The defendant claims non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim)................................................................................................................................... 66
(j)..... The defendant claims pecuniary penalties and injunctive relief................................ 69

Conclusion......................................................................................................................................... 70

HER HONOUR:

Introduction

The plaintiff, Bendigo and Adelaide Bank Limited (the Bank), commenced a proceeding by writ and statement of claim filed on 21 November 2018 seeking, amongst other things, recovery of the land situated at 6 Croom Street, Warburton in the State of Victoria (the land) over which it holds a first registered mortgage.

By summons filed on 1 March 2019, the plaintiff sought summary judgment in respect of its statement of claim and the defendant’s defence and dismissal of the counterclaim. The summons was heard by Matthews JR on 1 April 2019. On 19 July 2019, her Honour delivered her reasons for judgment[1] and granted the plaintiff’s application, following which her Honour made orders as follows:
[1]See Bendigo and Adelaide Bank v Grahame [2019] VSC 486.

1.The Plaintiff is entitled to possession of the land known as 6 Croom Street, Warburton in the State of Victoria being the land described as:
a.Lot 25 and 26 on Plan of Subdivision 001383 in Certificate of Title Volume 03330 Folio 872; and
b.Lot 1 on Title Plan 741833D in Certificate of Title Volume 05579 Folio 638.

2.The Defendant pay the Plaintiff the sum of $166,702.87 plus interest (calculated pursuant to a loan agreement dated 8 November 2016 (as varied on 17 November 2017)) from 16 November 2018 until the date of payment.
3.The Defendant's Counterclaim filed 30 December 2018 is dismissed.
4.The Defendant pay the Plaintiff's costs (including costs reserved and including the application for summary judgment) of and incidental to the claim and counterclaim in the proceeding on an indemnity basis, such costs to be taxed in lieu of agreement.

Notice of appeal filed by the defendant

By notice of appeal filed on 2 August 2019, the defendant, Ms Heather Jean Grahame, appeals against the whole of the orders and judgment made by Matthews JR on 19 July 2019.

In her notice of appeal,[2] the defendant lists five grounds of appeal, which may be summarised as follows:

(a)The defendant was not given adequate opportunity to provide explanation and supporting evidence for her claims;
(b)In her reasons the Judicial Registrar failed to consider the defendant’s claim that the plaintiff engaged in ‘deceit, fraud and unconscionable behaviour’;
(c)In paragraphs [50] and [51] of her reasons the Judicial Registrar ‘advance[d] her own argument in support of the plaintiff’s case’;
(d)The Judicial Registrar erred in concluding, at paragraph [108] of her reasons, that the defendant’s name refers to the defendant whether it is written in capital letters or not; and
(e)The Judicial Registrar failed to take into account the defendant’s submission that the defendant ‘had sent her assignment of reversionary interest documents to the Department of the Treasury [of the Commonwealth of Australia] and the [ATO] and that, as a result, she no longer pays tax.’

[2]Defendant’s Notice of Appeal from a Judicial Registrar filed on 2 August 2019.

The primary relief sought by the defendant is that the Court dismiss the plaintiff’s applications for summary judgment and summary dismissal of her counterclaim.

Developments since the notice of appeal was filed

There have been several developments since the notice of appeal was filed. On 14 August 2019, the plaintiff made application to the Sheriff for the issue of a warrant of possession. Following its issue, the warrant of possession was executed by the Sheriff on 17 October 2019, and the plaintiff has been in possession of the land since that date.[3]
[3]Affidavit of Bianca Josephine Quan sworn on 14 November 2019, at [5].

The defendant has also brought on several applications by summons pending the hearing of her appeal. She filed two applications on 5 September 2019, the first seeking leave to amend her defence and counterclaim, and the second being an application seeking a stay of the orders made by Matthews JR pending the outcome of the appeal. Those applications were heard on 19 September 2019 and the Court made orders that day giving the defendant leave to amend her defence and counterclaim and dismissing her application for a stay. Importantly, in giving the defendant leave to amend her defence and counterclaim in the manner indicated during the interlocutory hearing, the Court stated that this “is not an invitation to withdraw admissions and that if [the defendant] seeks to withdraw admissions, they would have to be the subject of an application for leave (which could probably be made orally at the hearing of the appeal) but on notice to the plaintiff.”[4]
[4]Transcript of Proceedings, Bendigo and Adelaide Bank Limited v Grahame (Ruling) (Supreme Court of Victoria, S ECI 2018 02347, Sloss J, 19 September 2019) at 56–7 (Sloss J).

The third application made by the defendant was one that was filed on 6 November 2019, seeking a stay of orders 1(a) and (b) made by Matthews JR pending the outcome of the appeal, and for orders allowing the defendant to live in the premises the subject of the plaintiff’s mortgage. That application was heard on 18 November 2019, and the Court made orders that day dismissing the application for a stay.

On 23 September 2019, the defendant filed and served her amended defence and counterclaim incorporating the additional grounds she sought to rely upon.[5] In her amended defence and counterclaim, the defendant also purported to withdraw several of the admissions she had made in her (original) defence.[6]
[5]Amended Defence and Counterclaim, AB, tab 17, 620ff.
[6]Ibid; see, e.g., [4], [5], [6], [9] and [15].

On 1 October 2019, the plaintiff filed and served its reply.[7]
[7]AB, tab 19, 653ff.

At the hearing of the appeal, in circumstances where the defendant had not given notice of any application for leave to withdraw admissions made in her (original) defence, counsel for the plaintiff raised the defendant’s purported withdrawals with the Court, and the following exchange ensued:[8]

HER HONOUR: Well, the leave that I gave the defendant at the hearing – the first hearing before me was for leave to amend the defence and counter-claim to raise additional matters that were mentioned before Judicial Registrar Matthews but were not actually pleaded, and there was no leave given to withdraw admissions.
MS GOBBO: No. But to the extent, Your Honour, that that has occurred, I simply raise it. And, again, I'm content for Your Honour to give whatever weight is appropriate to the pleading in its revised amended form. I just wouldn't want the bank to be criticised, Your Honour, because the bank has maintained its reliance on the Peace affidavit which was sworn prior to this document coming into existence.
So to the extent that there's now any argument about a variation in something having been admitted previously, such as execution of the mortgage, and now what is said in answer to that is an argument about the capitalisation of Ms Grahame's name, the matters are still, in my submission, proven by the Peace affidavit. But I just wanted to make that point upfront, that there is a slight disconnect now because of the way in which this has unfolded.

[8]Transcript 04/12/19 at 4.

Against that background, and notwithstanding the amendments that the defendant has made, the plaintiff submits that the defendant’s amended pleading, like its predecessor, fails to conform with the requirements of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). The plaintiff contends that the appeal is hopeless, without merit and ought to be dismissed. Alternatively, the plaintiff contends that the defendant’s amended defence and counterclaim does not disclose a defence or cause of action, its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.

Summary of conclusions

For the reasons which follow, I am satisfied that the Bank has established its cause of action against the defendant and I am not satisfied that any of the defendant’s defences and counterclaims (as set out in her pleadings and elaborated upon in her affidavits and submissions) have any real prospects of success. Further, having reviewed and considered all of the material relied upon by the defendant, I am not satisfied that there is any other question which emerges from that material that ought to proceed to be tried.

In those circumstances, it is in the interests of justice for the Court to summarily dispose of both the main proceeding and the counterclaim. Accordingly, the defendant’s appeal will be dismissed and the Bank’s application for summary judgment, in respect of both its statement of claim and the amended counterclaim will be granted.

Appeal from a determination by a Judicial Registrar
Hearing de novo

Where an appeal concerns a determination made by a Judicial Registrar, r 84.05 of the Rules applies, such that the appeal lies to ‘the Trial Division constituted by a Judge of the Court’[9] and ‘shall be conducted by way of hearing de novo.’[10]
[9]Rule 84.05(3).
[10]Rule 84.05(4).

Generally speaking, a matter that is heard ‘de novo’ is one that is heard over again from the beginning, and the court or body conducting the hearing is not confined to the evidence or materials that were presented in the original hearing.[11]
[11]Butterworths Australian Legal Dictionary, (1997), ‘de novo’.

An appeal conducted by way of ‘hearing de novo’ differs in an important respect from an appeal by way of ‘rehearing’. In Allesch v Maunz,[12] the plurality in the High Court explained the ‘critical difference’ between the two modes of appeal as being that in the case of an appeal by way of rehearing ‘the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error’, whereas in the case of a hearing de novo ‘those powers may be exercised regardless of error.’[13] Further, in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission,[14] Gleeson CJ, Gaudron and Hayne JJ, after observing that the nature of an appeal must ultimately depend on the terms of the statute conferring the appeal,[15] confirmed that ‘[i]n the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.’[16]
[12](2000) 203 CLR 172.
[13]Ibid, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[14](2000) 203 CLR 194.
[15]Ibid, 202-3 [11].
[16]Ibid, 203 [13].

Accordingly, as a matter of practice and procedure, what is contemplated by a hearing de novo is that on the hearing of the appeal, the party who was the applicant before the Judicial Registrar begins, and the appeal is determined on the evidence relied on before the judge and not that relied on before the Judicial Registrar, and the judge determines the appeal without being fettered by the decision of the Judicial Registrar, though giving such weight to that decision as appears proper.[17]
[17]See Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187, 190 (Starke, Murphy and Brooking JJ). In this decision, the Full Court made observations about the practice and procedure concerning appeals from a Master to a judge under Order 54, r 16 of the (then) Rules, where r 16(6) provided that the appeal be ‘by way of a re-hearing de novo of the application’.

Summary judgment application

By its summons filed on 1 March 2019,[18] the primary relief the plaintiff seeks is summary judgment in respect of both its statement of claim and the defendant’s amended defence and amended counterclaim, pursuant to ss 61, 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) and rr 22.03 and 22.16 of the Rules. Alternatively, the plaintiff seeks orders that the defendant’s amended defence and amended counterclaim be struck out pursuant to rr 23.01 and 23.02 of the Rules.
[18]AB, tab 4, 111.

In its written outline, the plaintiff submits that the amended defence does not identify any defence in respect of which it could be said the defendant has a reasonable prospect of success or, in the case of the amended counterclaim, a cause of action against the plaintiff on which she has a reasonable prospect of success.[19] Rather, the plaintiff contends, the allegations made by the defendant in her amended defence and amended counterclaim are ‘embarrassing, scandalous, vexatious and an abuse of the Court’s process’, ‘embarrassing and unintelligible and are not supported by any evidence’ and ‘do not disclose a cause of action against [the plaintiff]’.[20]
[19]Plaintiff’s submissions, [26].
[20]Ibid.

Accordingly, the plaintiff contends that the amendments the defendant has made to the defence and counterclaim do not render the defence and counterclaim in conformity with the Rules, and that the amended defence and counterclaim is amenable to summary dismissal or strike out in much the same manner as the document which preceded it.[21]
[21]Plaintiff’s submissions, [19].

Summary judgment - applicable principles

At this point, it is convenient to turn to the principles applicable to the grant of summary judgment.

CPA requirements

The principles in Victoria concerning the requirements which must be satisfied by a plaintiff in order to obtain summary judgment were aptly summarised by Matthews JR in Padella Pty Ltd v Elliott,[22] which I adopted in my decision in Israfoods (2006) Ltd v J & D Consortium Pty Ltd (Israfoods).[23] For present purposes, I again respectfully adopt Matthews JR’s summary in Padella as elaborated upon in my reasons in Israfoods.
[22][2018] VSC 301, [19]–[28].
[23][2019] VSC 323, [41].

Section 61 of the CPA permits a plaintiff to make an application for summary judgment on the ground that the defendant’s defence or part of that defence has no real prospect of success. Section 63 of the CPA provides that, subject to s 64, the Court may give summary judgment in a civil proceeding ‘if satisfied’ that a claim has ‘no real prospect of success’.

Section 64 of the CPA provides that:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a)it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.

In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[24] the Court of Appeal set out the relevant test to be applied in determining an application for summary judgment made under ss 61 and 63, as follows:[25]

(a)the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail test” essayed in [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125];
(c)it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail” test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

[24](2013) 42 VR 27.

[25]Ibid, 40 [35] (Warren CJ and Nettle JA, Neave JA agreeing in part at 42 [40]–[42]).

Section 7(1) of the CPA sets out its overarching purpose, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 8 of the CPA requires that the Court must ‘seek to give effect to the overarching purpose in the exercise of any of its powers’ and section 9 provides that when making any order or giving any direction in a civil proceeding, the Court is to further the overarching purpose by having regard to the objects specified in subsection (1), being:

(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;

(c)       the efficient conduct of the business of the court;
(d)      the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)        the fair and just determination of the real issues in dispute; and
(ii)       the preparation of the case for trial;

(f)       the timely determination of the civil proceeding;
(g)       dealing with a civil proceeding in a manner proportionate to—
(i)        the complexity or importance of the issues in dispute; and
(ii)       the amount in dispute.

Where a plaintiff in a civil proceeding seeks to bring an application under s 61 of the CPA, it must be made in accordance with Order 22 of the Rules.[26]
[26]Rule 22.03.

Rule 22.04 of the Rules sets out the material required to be filed in support of an application for summary judgment. It provides as follows:

(1) An application shall be made by summons supported by an affidavit—
(a)verifying the facts on which the claim or the part of the claim to which the application relates is based; and
(b)stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim—
(i) has no real prospect of success; or
(ii)has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.

(2)Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.
(3)An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.
(4)The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons.

Rule 22.05 of the Rules provides:

(1)The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.
(2)An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.
(3)Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons.

The requirements set out in rr 22.04 and 22.05 were considered by the Court of Appeal in Hausman v Abigroup Contractors Pty Ltd.[27] In relation to an affidavit in support of an application for summary judgment, the Court of Appeal stated that what ‘must be verified are the facts necessary to establish a good cause of action’.[28] Once the plaintiff has established the elements of its cause of action, there is ‘something akin’ to a shifting of the evidential burden to the defendant.[29]
[27](2009) 29 VR 213; [2009] VSCA 288 (Hausman v Abigroup).
[28]Hausman v Abigroup (2009) 29 VR 213, 225 [60].
[29]See Hausman v Abigroup (2009) 29 VR 213, 223–4 [53] n 13. ‘Whether there is in fact such a burden upon a plaintiff, once the prerequisites for summary judgment have been satisfied, is a difficult question. Rule [22.05] requires a defendant, who is the subject of an application, in proper form, for summary judgment, to “show cause” why such judgment should not be granted. It may be that this imposes upon a defendant an evidential burden, or something akin thereto’.

With regard to the equivalent of what is now r 22.05, the Court of the Appeal stated as follows:[30]

[62]…Assuming the plaintiff’s application is properly made, there will be judgment for the plaintiff unless the defendant shows cause against the application to the satisfaction of the court. The Rule provides that the defendant can show such cause ‘by affidavit or otherwise’.
[63]The defendant must satisfy the Court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The Court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The Court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
[64]Nonetheless, the defendant is required to use reasonable diligence to put before the Court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.
[65]The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.

[30]Hausman v Abigroup (2009) 29 VR 213, 225-6 [62]–[65] (citations omitted).

Those principles from Hausman v Abigroup extracted above remain good law since the advent of the CPA.[31]
[31]Innovateq Australia Pty Ltd v Barnes [2016] VSC 618, [11] (Ierodiaconou AsJ) citing Capital One Securities Pty Ltd v Soda Kids Holdings Pty Ltd [2012] VSC 163 and Portbury Development Pty Ltd v Ottedin Investments Pty Ltd [2012] VSC 490.

In Hausman v Abigroup, the Court of Appeal also made clear that on a summary judgment application the judge ‘should not be required to trawl through the defendant’s material in an effort to see whether there can be constructed from that material an answer to the plaintiff’s claim.’[32] Rather, the Court stated:[33]

[55]…It must be for the defendant to point to some material, whether legal or factual, that provides an arguable response to that claim. That is so even if it is the plaintiff who must ultimately discharge the burden of persuading the judge that there is no issue that warrants trial, and that summary judgment should therefore be granted.
[32]Hausman v Abigroup (2009) 29 VR 213, 224 [55].
[33]Ibid.

Summary judgment application by a defendant

The Bank also seeks summary judgment in its capacity as the defendant to the amended counterclaim filed by the defendant (as plaintiff by counterclaim), pursuant to s 62 of the CPA.

As Matthews JR noted, an application made pursuant to s 62 of the CPA is to be made in accordance with Part 3 of Order 22.[34]
[34]Rule 22.16.

Rule 22.17 of the Rules provides that an application for summary judgment by a defendant will be made by summons. Rule 22.18 of the Rules provides:

(1)If the defendant intends to rely on an affidavit in support of the application, the affidavit shall be filed with the summons.
(2)Where a statement in a document tends to establish a fact upon which the defendant relies and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit may set forth the statement.
(3)An affidavit relied upon by the defendant may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.
(4)The defendant shall serve the summons and a copy of any affidavit in support and of any exhibit referred to in the affidavit on the plaintiff not less than 14 days before the day for hearing named in the summons.

Rule 22.19 of the Rules provides:

(1)The plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court.
(2)An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.
(3)Unless the Court otherwise orders, the plaintiff shall serve a copy of any affidavit and of any exhibit referred to in the affidavit on the defendant not less than three days before the day for hearing named in the summons.

Summary dismissal and strike out

In the alternative to its primary case, the Bank seeks summary dismissal and strike out pursuant to r 23. Rule 23.01(1) of the Rules provides that:

(1)Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Rule 23.01(2) of the Rules provides that:

Where the defence to any claim in a proceeding is scandalous, frivolous or vexatious, the Court may give judgment in the proceeding generally or in relation to any claim.

Rule 23.02 of the Rules provides that:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

Material relied upon by the respective parties

The defendant has prepared an Appeal Book which contains the relevant material relied upon by each party, as follows:

(a) By the plaintiff

· affidavit of Kathryn Jane Peace affirmed on 1 March 2019 (Peace affidavit);[35]
[35]AB, tab 5, 113 ff.

· affidavit of Bianca Josephine Quan sworn on 14 November 2019 (Quan affidavit), solicitor for the plaintiff, which was tendered at the hearing of the defendant’s second stay application;[36] and
[36]AB, tab 23, 717 ff.

· plaintiff’s written submissions filed on 25 November 2019.[37]
[37]AB, tab 25, 753 ff.

(b) By the defendant

· affidavit of Heather Jean Grahame affirmed on 8 August 2019 (re appeal);[38]
[38]AB, tab 13, 435 ff.

· affidavit of Heather Jean Grahame affirmed on 5 September 2019 (re pleading amendments);[39]
[39]AB, tab 20, 658 ff.

· affidavit of Heather Jean Grahame affirmed on 26 September 2019 (re warrant of possession);[40]
[40]AB tab 18, 640 ff.

· affidavit of Heather Jean Grahame affirmed on 6 November 2019 (re second application for a stay);[41]
[41]AB tab 21, 663 ff.

· affidavit of Heather Jean Grahame affirmed on 21 November 2019 (re appeal);[42]

· defendant’s written submissions filed on 14 November 2019;[43]

· defendant’s further written submissions in response filed on 28 November 2019.[44]

[42]AB tab 24, 734 ff.

[43]AB tab 22, 681 ff.

[44]AB tab 26, 771 ff.

The plaintiff’s claim

In its statement of claim, the plaintiff pleads the essence of its case as follows:

(a) at the request of the defendant, it advanced monies to her under a loan agreement, as varied, conducted in account number 699466116 (Loan Agreement);

(b) there were terms and conditions of the Loan Agreement, inter alia, that:

(i) the defendant would make payments to the plaintiff pursuant to the Loan Agreement; and

(ii) the defendant would provide the plaintiff with security for the monies so advanced;

(c) by instrument of mortgage dated 12 May 2015 and registered in the Land Titles Office on 10 June 2015 in dealing number AL946995D, the defendant, being the registered proprietor of the land at 6 Croom Street, Warburton, mortgaged the land to the plaintiff;

(d) the defendant mortgaged the land to the plaintiff to secure her obligations under the Loan Agreement;

(e) the defendant has made default under the Loan Agreement and the Mortgage;

(f) by a default notice dated 19 September 2018, served on the defendant by post (in pre-paid priority post envelopes) the plaintiff required payment of arrears under the Loan Agreement and the Mortgage within 31 days after service;

(g) the defendant has failed, refused or neglected to remedy the default and pay to the plaintiff the amount outstanding under the Loan Agreement and the Mortgage within the time specified;

(h) in accordance with the Loan Agreement, the defendant must pay to the plaintiff interest charges at the variable interest rate applicable from time to time on any amount outstanding under the Loan Agreement and, as at 16 November 2018, the applicable rate was 4.48 per cent per annum;

(i) the defendant has made default under the instrument of Mortgage and the payment of monies thereby secured (including principal and interest) and is still in default of payment of those monies;

(j) the plaintiff is entitled to possession of the Land pursuant to the terms and conditions of the instrument of Mortgage and/or pursuant to the provisions of section 78(1)(b) of the Transfer of Land Act 1958 (Vic).[45]

[45]Section 78 deals with the power of a mortgagee or annuitant to enter into possession or bring ejectment. Section 78(1)(b) provides that:

(1)The mortgagee or annuitant upon default in payment of the principal sum or interest or annuity or any part thereof respectively at the due time—

(a). . . ; or

(b)may bring an action of ejectment to recover the land, either before or after entering into the receipt of the rents and profits and either before or after any sale of the land as aforesaid.

In support of its case, the plaintiff relies primarily on the material set out in the Peace affidavit. Relevantly, Ms Peace is the Team Manager, Legal and Recovery, of the plaintiff’s Mortgage Help Centre, and she has access to the books and records concerning the defendant’s loan and mortgage with the plaintiff. At the hearing, counsel for the plaintiff spent some time opening the material set out in the Peace affidavit, and referring the Court to relevant provisions of the transactional documents which are summarised below.

Initial loan agreement

By letter of offer dated 3 November 2016 the plaintiff offered to loan $145,000 (Initial Advance) to the defendant, on the terms set out in the letter of offer, and on 8 November 2016 the defendant accepted the offer (Initial Loan Agreement).[46] Therein, the ‘Borrower’ was identified as being ‘Heather Jean Grahame’, and in the ‘Acceptance by Borrower’ portion of the document she formally accepted the offer by signing her name.
[46]Peace affidavit [6]; Exhibit KJP-4.

Clause 3 of the Initial Loan Agreement comprised a ‘Financial Table’ which set out the essential details of the loan, the repayments (521 fortnightly repayments of $420.00 over 20 years) and the credit fees and charges to be paid by the borrower.

Clause 9 of the Initial Loan Agreement dealt with ‘Security’[47] and included that the defendant would provide security for the initial loan in the form of the existing mortgage over the 6 Croom Street Property that was registered with the Land Titles Office on 10 June 2015 in (an earlier) dealing number AL946995D (Mortgage),[48] and incorporated the plaintiff’s Memorandum of Common Provisions AA953 (MCP).[49] A search of the titles register shows that the defendant is the registered proprietor of the land and the registration of the Mortgage in favour of the Bank.[50]
[47]Ibid.
[48]Ibid [11]; Exhibit KJP–9. By paragraph [5] of her defence, the defendant admitted paragraph [5] of the plaintiff’s statement of claim, namely that by an instrument of mortgage dated 12 May 2015 registered with the Land Titles Office on 10 June 2015 in dealing number AL946995D and incorporating the Memorandum of Common Provisions AA953, she mortgaged the land to the plaintiff. However, in her amended defence and counterclaim filed on 23 September 2019, contrary to the terms of the leave granted by the Court, the defendant purported to withdraw that admission.
[49]Ibid.
[50]Peace affidavit [10]; Exhibit KJP–8. I note that the Mortgage records a further parcel of land, Volume 3335 Folio 996, which was not included as security for the Initial Loan Agreement. See also, transcript 04/12/19 at 51. At the hearing of the appeal, counsel for the plaintiff confirmed that in this proceeding the plaintiff sues only in respect of the two titles mentioned in the statement of claim, namely Certificate of Title Volume 03330 Folio 872 and Certificate of Title Volume 05579 Folio 638.

The defendant’s bank account statement for the period 26 October 2016 to 1 January 2017 records that the Bank advanced the sum of $144,650 to the defendant on 12 December 2016, being the Initial Advance less credit fees and charges comprising $350.[51]
[51]For copies of the disbursement authorities, see the Peace affidavit, exhibit KJP‑20.

Variation to increase loan

By a further letter of offer dated 15 November 2017 the Bank offered to increase the amount loaned to the defendant by $20,400 (Loan Increase) by increasing the amount lent under the Initial Loan Agreement (Variation Agreement).[52] Relevantly, the Variation Agreement set out the terms of the Initial Loan Agreement as varied, including recording that as at 15 November 2017 the sum of $140,170.81 was outstanding on the Initial Loan Agreement and that the total of that amount and the additional $20,400 would be $160,570.81 as at 15 November 2017. Further, the Variation Agreement provided that the security for the Loan Increase would be the Mortgage over the 6 Croom Street Property.[53]
[52]Peace affidavit [14]; Exhibit KJP-5.
[53]Ibid.

As with the Initial Loan Agreement, the ‘Borrower’ in the Variation Agreement was identified as being ‘Heather Jean Grahame’, and in the ‘Acceptance by Borrower’ she formally accepted the offer by signing her name on 17 November 2017.[54] Together, the Initial Loan Agreement and Variation Agreement form the Loan Agreement (as referred to in paragraph 2 of the Statement of Claim) which was conducted by the plaintiff in account number 699466116.
[54]Peace affidavit, [7]; Exhibit KJP-5.

The statement for the relevant bank account the defendant conducted with the Bank for the period 2 July 2017 to 1 January 2018 records that the Bank advanced the sum of $20,000, being the Loan Increase less credit fees and charges of $400 as stipulated in the Variation Agreement.[55]
[55]Peace affidavit, [9]; Exhibit KJP-7. For copies of the disbursement authorities, see the Peace affidavit exhibit KJP‑20.

Default under loan

Ms Peace deposes that having reviewed the Bank’s statements pertaining to the defendant and the Loan Agreement, they show that the defendant made regular repayments under the Loan Agreement until 8 January 2018 when the last repayment was received by the Bank, after which no further repayments were made.[56] Between 6 January 2017 and 8 January 2018 a total of $12,483.00 was paid.
[56]Peace affidavit, [16]-[17]; Exhibit KJP–10.

Under the MCP that was incorporated in the Mortgage, the borrower (here, the defendant) was informed that she ‘must carry out [her] obligations under this mortgage strictly on time’ and that if she does not she would be ‘in serious breach of this mortgage and [the Bank] can exercise [its] rights against [her].[57] Clause 3 of the MCP, which dealt with the borrower’s ‘payment obligations’ stated that the mortgage secured the ‘payment obligations’ which included a ‘promise to pay the secured money to [the Bank] on time’.[58]
[57]Peace affidavit exhibit KJP–9, cl. 1.2(c).
[58]Ibid, cl. 3.1.

Clause 8.1(a)(i) of the MCP, which deals with ‘Event of Default’, provides that it is an event of default if ‘you [the defendant] do not pay any part of the secured money under the regulated arrangement or this mortgage’. Clause 8.1(b) provides that in the event of default the Bank will notify the defendant in writing of the event of default, and that if the event of default continues for at least 31 days after service of the notice the Bank may require the defendant to repay all secured money (Acceleration Clause), further in the event of default other than for bankruptcy, the Bank may also do anything specified in cl 8.3 of the MCP. Clause 8.3 of the MCP deals with ‘Enforcement Powers’ and provides that the Bank may, amongst other things, take possession of the property.[59]
[59]Peace affidavit, [22]; Exhibit KJP–9.

Clause 10.1 of the MCP, which deals with ‘Expenses’, requires the defendant to reimburse the Bank for expenses including ‘(c) [t]he contemplated, actual, or attempted enforcement of, or exercise, preservation or consideration of [the Bank’s] rights, powers or remedies, under this mortgage’. Clause 10.1 further states that the expenses to be reimbursed include ‘legal fees (including in-house lawyers charged at their usual rates) on a full indemnity basis in relation to any of the above’.[60] Clause 10.2 also includes a general indemnity, which obligation is expressed to continue despite the release of the mortgage and repayment of the secured money.
[60]Ibid (emphasis added).

Clause 10.4 of the MCP deals with ‘Interest’ and requires the Customer to ‘pay interest on each part of the secured money’, relevantly as follows:[61]

Where an arrangement specifies a rate of interest on an amount, interest will accrue on that amount at the specified rate and in the currency of the amount (unless the arrangement says otherwise). Where an arrangement specifies a time for payment of interest, interest is payable at that time.
…
Interest accrues both before and after any judgment.
Unless we agree otherwise in writing, you must pay interest on the first day of each month (or it will be debited to your account). If you do not pay interest on time, then the interest will itself bear interest at the same time.

[61]Ibid.

In circumstances where the defendant had not made any payments to the Bank since 8 January 2018, Ms Peace deposes that as at 14 September 2018, the defendant was in default under the Loan Agreement and Mortgage (Default) pursuant to clause 8.1(a) of the MCP, and on 19 September 2018 the Bank sent a default notice to the defendant (Default Notice).[62] The Default Notice notified the defendant the she was in arrears by $7,805 as at 14 September 2018 and that she was required to pay these arrears together with $525.02 in enforcement costs of issuing the notice by 29 October 2018, failing which the entire account balance, being $161,618.50 as at 14 September 2018, would become immediately due and payable. The Default Notice also advised the defendant that the Bank may start proceedings to recover the balance due under the Loan Agreement and/or possession of the Property.[63] In her original defence, the defendant admitted service of the Default Notice,[64] but in her amended defence she impermissibly seeks to withdraw that admission and purports to deny that she is the defendant as listed on the Default Notice.[65]
[62]Peace affidavit, [19]; Exhibit KJP–11.
[63]Peace affidavit, [9]; Exhibit KJP–7.
[64]Defence, [9].
[65]Amended defence, [9] where the defendant pleads:
9.~~To paragraph 9, the Customer admits the Bank's statement of claim.~~ To paragraph 9, the Customer denies that she is the Defendant as listed on the default notice. The Customer admits that the default notice was posted to her along with a cover letter where the name given on the cover letter was her name, being Heather Jean Grahame.

Ms Peace deposes that the defendant did not remedy the Default under the Loan Agreement within 31 days of service of the Default Notice and as such, pursuant to cl 8.1(b) of the MCP, the entire unpaid balance became immediately due for payment. Further, Ms Peace states that as at the time of swearing her affidavit on 1 March 2019, the Bank has received no payment in satisfaction of the Default.[66]
[66]Peace affidavit, [22].

At the hearing before the Judicial Registrar, the defendant took issue with the sufficiency of the Peace affidavit , and submitted that it ‘fails to satisfy the necessary criteria for an affidavit in support of an application for summary judgment’[67] as set out in r 22.04(1)(b)(i), in that the deponent fails to state her belief that the defendant’s claims have no real prospect of success.
[67]Defendant’s outline of submissions filed 31 March 2019, [2].

Judicial Registrar Matthews addressed the defendant’s r 22.04(1)(b)(i) submission in her reasons for decision, as follows:[68]
[68][2019] VSC 486, [18]–[19].

[18]…While the Peace Affidavit does not state, in terms, that the deponent believes that the Defendant has no real prospects of success on her Defence and Counterclaim, Ms Peace does say that she has read the Defence and the Counterclaim,[69] and she also states that:[70]
I believe that the Defendant has no Defence to the Plaintiff’s claims in this Proceeding, nor does the Defendant have any basis on which to bring a Counterclaim against the Plaintiff.

[19]In the context of the entirety of the Peace Affidavit, I consider this to be sufficient for the purposes of Rule 22.04(1)(b)(i) of the Rules. Even if it were not sufficient, I would dispense with the need for the Bank to file a further affidavit in that regard, as I have power to do.

[69]Peace affidavit, [4].

[70]Ibid, [43].

I share that view and would likewise dispense with the need for the Bank to file a further affidavit in that regard.

Plaintiff’s cause of action made out

Against that background, I am satisfied that Ms Peace’s evidence establishes the essential elements of the plaintiff’s cause of action, as follows:

(a) A home loan offer was accepted and signed by the defendant and dated 8 November 2016.[71]
[71]Ibid, [6]; Exhibit KJP–4.

(b) On 12 December 2016, the plaintiff advanced the sum of $144,650 to the defendant pursuant to the home loan.[72]
[72]Peace affidavit, [9]; Exhibit KJP–6.

(c) The home loan obtained by the defendant was operated in account number 699466116.[73]
[73]Peace affidavit, [8].

(d) On 17 November 2017, the original home loan offer was varied and the amount offered to be loaned by the plaintiff was increased.[74]
[74]Ibid, [7]; Exhibit KJP-5.

(e) On 23 November 2017, the plaintiff advanced the further sum of $20,000 to the defendant.[75]
[75]Peace affidavit, [9]; Exhibit KJP-7.

(f) The defendant owns the Land.[76]
[76]Peace affidavit, [10]; Exhibit KJP-8.

(g) By mortgage dated 12 May 2015 and registered over the Land, the defendant mortgaged the Land to the plaintiff as security for the monies advanced under the home loan.[77]
[77]Peace affidavit, [11]–[14]; Exhibit KJP-9.

(h) The defendant has defaulted under the home loan.[78]

(i) The plaintiff has served default notices. Those notices have not been complied with by the defendant.[79]

(j) Pursuant to section 78(1) of the Transfer of Land Act 1958 (Vic), the plaintiff is entitled to possession of the Land.

[78]Peace affidavit, [15]–[18]; Exhibit KJP-10.

[79]Peace affidavit, [19]–[22]; Exhibit KJP-11.

In those circumstances, the plaintiff has demonstrated an entitlement to enforce its Mortgage and recover possession of the Land. Further or alternatively it is entitled to repayment and the monies outstanding pursuant to the Loan Agreement and Mortgage entered into by the defendant. In relation to the quantum of the ‘monies outstanding, the plaintiff also relied on the affidavit of Ms Quan that was filed on behalf of the plaintiff in respect of the defendant’s second application for a stay. Therein Ms Quan, the plaintiff’s solicitor, deposed that she was informed by Ms Rebekah McClure, Recoveries Officer of the plaintiff, that as at 11 November 2019 the amount owing to the plaintiff by the defendant pursuant to the Loan Agreement and the Mortgage (as those terms are defined in the statement of claim) is $225,004.03.[80] Ms Quan also noted that costs and interest continue to accrue on that amount pursuant to the terms of the Loan Agreement and the Mortgage.[81]
[80]Quan affidavit, [3].
[81]Ibid.

The defendant’s amended defence and counterclaim

In her amended defence and counterclaim, the defendant has now ‘pleaded’ all of the matters she relies upon, including the matters which she sought to raise before Matthews JR but which were not actually pleaded in her original defence and counterclaim.

The pleading, which has apparently been drafted by the defendant herself, and not by a lawyer, lacks the rigour and clarity one might ordinarily expect to find in a pleading. As noted earlier, the plaintiff has observed that the pleading does not conform with the requirements of the Rules, and that even allowing for the lack of adherence to the Rules, it is somewhat disjointed and difficult to follow. The plaintiff has also pointed out that the amended pleading has gone beyond the scope of the leave to amend that was given by the Court on 19 September 2019, insofar as the defendant has purported to withdraw admissions she had made. Having regard to the express terms in which the Court granted leave to the defendant to amend her defence and counterclaim, it is not open to the defendant to withdraw those admissions.

At the directions hearing held on 28 August 2019, the defendant informed the Court that she prefers to present her arguments and submissions in writing rather than by making extensive oral submissions. In pursuing her appeal and in presenting her response to the plaintiff’s application, the defendant addressed the Court with relatively brief oral submissions and relied for the most part upon matters set out in her various affidavits and outlines of submissions by way of elaboration of the matters set out in her amended defence and counterclaim. In those circumstances, I have had regard to all of the material relied upon by the defendant, and have attempted to distil the essence of her defence and counterclaim below.

In answer to the plaintiff’s claim, by way of defence and counterclaim, the defendant pleads variously (in several paragraphs) to the following effect:

(a) The named defendant is not the customer of the Bank;

(b) The Loan Agreement was not a loan but rather an exchange for a promissory note;

(c) The Bank engaged in misleading and deceptive conduct by falsely representing that the Loan Agreement was a loan;

(d) The Bank engaged in unconscionable conduct by deliberately and fraudulently attempting to mislead the Customer so as to procure financial gain;

(e) The Loan Agreement is void and/or unenforceable;

(f) The contract is unenforceable because it is grossly unfair;

(g) Previous loans to the defendant are relevant to be considered (and form the basis for the defendant’s restitution (unjust enrichment) counterclaim);

(h) By performing an ‘acceptance for value’ on 18 November 2018, the defendant directed the Treasury to pay $166,381.53 to the plaintiff thereby offsetting the alleged debt;

(i) The defendant claims non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim);

(j) The defendant claims pecuniary penalties and injunctive relief.

In her affidavit affirmed on 21 November 2019, Ms Grahame acknowledges that she has ‘put forward a variety of unusual claims in this case’, stating:[82]

[1]I have put forward a variety of unusual claims in this case, including the proposition that banks don’t loan money, the existence of the corporate entity that has my full name in all-capital letters, and the use of commercial administrative procedures such as acceptance for value and assignment of the reversionary interest of the birth certificate.
[2]I am aware that there is a plethora of cases in which other self-represented litigants have advanced similar arguments and been unsuccessful. Counsel for the plaintiff have, in their various submissions, listed several of these authorities.

[82]Affidavit of Ms Grahame affirmed on 21 November 2019, [1]–[2] (Grahame 21.11.19 affidavit).

Several of the cases in which similar arguments were advanced by other self-represented litigants are noted by Black J in the recent decision in K Sheridan v Colin Biggers Paisley.[83]
[83][2019] NSWSC 528, [10], where his Honour stated:
[10]The reference to “i, a man” in the Plaintiff’s Statement of Claim and other documents which he seeks to file, to which I refer below, appears to have something in common origin with the references to a “flesh and blood man”, noted to have many variations, in Meads v Meads [2012] ABQB 571, where the Court of Queen’s Bench of Alberta, Canada, undertook a comprehensive review of the characteristic features of what it described as “organized pseudolegal commercial argument”. That decision has in turn been noted by the High Court of New Zealand in Meenken v Family Court at Masterton [2017] NZHC 2103 and in decisions of the Federal Circuit Court of Australia, including Ennis v Credit Union Australia [2016] FCCA 1705, Deputy Commissioner of Taxation vWoods [2018] FCCA 1815 and Lion Finance Pty Ltd v Johnston [2018] FCCA 2745, with reference to a class of arguments deployed by self-represented creditors in a different context, in order to seek to avoid payment of debts: see also T Bloy, “Pseudolaw and Debt Enforcement” [2013] NZLJ 47.

In the course of dealing with the plaintiff’s summary judgment application, I have considered at some length the affidavit material filed by the defendant in support of her claims, her written submissions and her oral submissions on the hearing of the appeal. Having done so, I am of the view that none of the grounds advanced by Ms Grahame in either her amended defence or amended counterclaim demonstrates a defence or a tenable cause of action that could be viewed as having any real prospects of success. I have set out in a summary way below the conclusions I have reached on each of the major grounds advanced by the defendant. As will be noted, there is a degree of overlap between some of those grounds.

(a) The named defendant is not the customer of the Bank

At the outset, Ms Grahame seeks to draw a legal distinction between herself (whom she refers to as the living person, ‘Heather Jean Grahame’) on the one hand, and the named defendant in the proceeding (whom she refers to as the corporate entity ‘HEATHER JEAN GRAHAME’ (in capital letters)) on the other.

In her amended defence Ms Grahame acknowledges that she, the living person ‘Heather Jean Grahame’, is the ‘Customer’ of the plaintiff and that she did sign the “loan agreement” and agreed to provide security,[84] but contends that she is not the defendant as listed on the Bank's statement of claim, “loan” agreement, mortgage and default notice.[85] Rather, she says, the defendant as listed on these documents is the corporate entity ‘HEATHER JEAN GRAHAME’.[86] She admits that the defendant as listed in the Bank’s statement of claim (that is, the corporate entity HEATHER JEAN GRAHAME) is the registered proprietor of the land[87] but maintains that the Customer (i.e., the living person, ‘Heather Jean Grahame’) is, however, the secured creditor of the corporate entity HEATHER JEAN GRAHAME and therefore has the highest claim on any proceeds from the sale of the land.[88] Further, Ms Grahame says, that she has never knowingly agreed to be the surety or payer of debts in the name of the corporate entity HEATHER JEAN GRAHAME or H J GRAHAME.[89]
[84]Amended defence, [3].
[85]Amended defence, [3].
[86]Amended defence, [10], [11(d)], [12], [13], [14], [15].
[87]Amended defence, [4].
[88]Amended defence, [15].
[89]Amended defence, [7].

Ms Grahame, the Customer, states that she has sole and private use of the land and equitable title, and while she denies that she is the defendant as listed on the default notice, she nevertheless admits that the default notice was posted to her along with a cover letter where the name given on the cover letter was her name, being ‘Heather Jean Grahame’.[90]
[90]Amended defence, [9].

In paragraph 19 of her amended defence, Ms Grahame also pleads that the Bank engaged in unconscionable conduct by requiring her name to be spelt in all-capital letters, as follows:[91]

(f)The Bank acted unconscionably by requiring the Customer to write her name on the “loan” and mortgage contracts in all-capital letters and not informing the Customer that when her name is spelt in all-capital letters, it is referring to a corporate entity debtor that is a creation of the government.

[91]Amended defence, [19(f)].

In her affidavit affirmed on 6 November 2019 and filed in support of her second stay application,[92] Ms Grahame refers to the two entities and elaborates on their respective status. She explains that the first entity, ‘HEATHER JEAN GRAHAME’ (all in capital letters), ‘is a corporate entity that was created by the federal government at around the time of [her] birth.’[93] The second entity is the living person, ‘Heather Jean Grahame’, whom she contends is the secured creditor and controller of the corporate entity ‘HEATHER JEAN GRAHAME’.
[92]Affidavit of Heather Jean Grahame filed on 6 November 2019 (Grahame 6.11.19 affidavit).
[93]Grahame 6.11.19 affidavit, [1]. See also, Grahame 21.11.19 affidavit, [11]–[31] where she describes what she understands to be the process by which the government would create and issue a birth certificate bond in the name of a living baby and the creditors would give the government a "loan" in exchange for the bond.

Ms Grahame deposes that the corporate entity ‘HEATHER JEAN GRAHAME’, rather than her the living person Heather Jean Grahame, is the registered proprietor of the 6 Croom Street property. She maintains that this corporate entity is ‘a creation of the government’ and says ‘[i]t carries the burden of the government’s debts to banks.’[94]
[94]Grahame 6.11.19 affidavit, [23].

Ms Grahame contends that by an ‘administrative commercial legal process’[95] which she completed on 21 September 2019, she ‘gained control of the legal title to the [6 Croom Street] property by completing the UCC [Uniform Commercial Code] financing statement amendment on 21 September 2019 wherein [she] attached a copy of the register search statement as an item of collateral.’[96] Further, she says this ‘commercial legal process’ which she performed ‘gave [her] control of the legal title to the property.’[97] Accordingly, she pleads that she now has sole and private use of the land and equitable title.
[95]Ibid, [3].
[96]Ibid, [4].
[97]Ibid, [5].

Ms Grahame was unable to refer the Court to any legal authorities in support of her proposition that the ‘administrative commercial legal process’ she undertook had the effect contended for.

By way of response, the plaintiff denies that there is relevantly any corporate entity named ‘HEATHER JEAN GRAHAME’ and contends that the defendant is the natural person named in the Loan Agreement, the Variation, the Mortgage and the Default Notice.

In the Quan affidavit filed on behalf of the plaintiff, Ms Quan exhibits:

(a) current title searches for the 6 Croom Street property. These searches record that the defendant is the registered proprietor of each of the lots that constitute the property, that the plaintiff is the registered mortgagee in each case and that the title is held by it in safe custody.

(b) searches conducted of the records maintained by the Australian Securities and Investments Commission (ASIC). These searches reveal that Heather Jean Grahame is not a director of any Australian company and that there is no Australian company known as Heather Jean Grahame.

In its reply, the plaintiff also relies upon sections 41 (Certificate to be conclusive evidence of title) and 42 (Estate of registered proprietor paramount) of the Transfer of Land Act 1958 (Vic).[98] Relevantly, section 41 provides:

41 Certificate to be conclusive evidence of title
No folio of the Register under this Act shall be impeached or defeasible by reasons or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio or the making of any recording on it; and every folio of the Register shall be received in all courts as evidence of the particulars recorded in it and all the recordings of those particulars in the Register, and shall be conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.

[98]Reply, [5(d)].

Accordingly, the plaintiff having produced current title searches for the 6 Croom Street property, those searches stand as ‘conclusive evidence’ of the matters recorded therein and, in particular, that the defendant is the registered proprietor of each of the lots that constitute the 6 Croom Street property and that the plaintiff is the registered mortgagee in each case.

In its reply, in further answer to the defendant’s defence, the plaintiff also pleads that it was a term of the mortgage that the defendant would not assign or transfer any of her rights and obligations under the mortgage without the plaintiff’s prior written consent, and no such consent has been sought or provided.[99] Further, the plaintiff pleads it ‘has not received any monies from any natural person, corporation, government body or any other entity whatsoever on account of the acceptance for value allegedly performed by the [d]efendant’[100] and she ‘remains in default under the Loan Agreement and the Mortgage.’[101]
[99]Ibid, [7].
[100]Ibid, [7(c)].
[101]Ibid, [7(d)].

The Bank submitted that to the extent there is any legal basis for the purported security agreement between the defendant’s capitalised name (or alleged corporate entity) and the defendant (which is not admitted but expressly denied), such an agreement is expressly not permitted under the Mortgage. In that regard, clause 12.6 of the MCP provides:[102]

You may not assign or transfer any of your rights or obligations under this mortgage without our prior written consent.

As the Bank observes, nowhere in the defendant’s material does Ms Grahame allege, let alone prove, that she has obtained such a consent from the Bank.

[102]Exhibit KJP-9, cl 12.6.

Ms Grahame was unable to refer the Court to any decided cases, or propositions of law, that support her contention that there is in existence a corporate entity ‘HEATHER JEAN GRAHAME’, that is separate and distinct from her – the living person Heather Jean Grahame – that is the defendant as listed on the Bank’s statement of claim, Loan Agreement, Mortgage and default notice. The position is that Ms Grahame is actively defending the present case. She acknowledges that she is the ‘Customer’ of the plaintiff and that she did sign the Loan Agreement and agreed to provide security,[103] and that she received the default notice from the plaintiff.
[103]Amended defence, [3].

In the circumstances, I am not satisfied that Ms Grahame has demonstrated any basis upon which the Court could reasonably find that the person listed on the Bank’s statement of claim, Loan Agreement, Mortgage and default notice is other than the named defendant, Heather Jean Grahame, whether spelt in capital letters or a mixture of capital and lower case letters. In my view, her contention that there is relevantly in existence a corporate entity that is separate and distinct from her is untenable.

(b)The Loan Agreement was not a loanbut rather an exchange for a promissory note

The defendant contends that the Loan Agreement is not a loan. She presents this argument in a number of ways in both her amended defence[104] and her amended counterclaim.
[104]I note that the argument now advanced is different from that which was advanced before the Judicial Registrar. In her (original) defence, the defendant had pleaded that ‘the Bank did not advance moneys’ whereas she now acknowledges that ‘the Bank advanced moneys to the Customer’.

In paragraph 2(b) of her amended defence, the defendant pleads that the contract that the Customer signed is a ‘promissory note’, as follows:[105]

(b)~~The Customer says that the Bank did not advance moneys.~~ The Bank exchanged one form of currency for another form of currency. The contract that the Customer signed is a promissory note and a money instrument capable of being exchanged for value just as any other form of money can be. The Bank received this promissory note and held it as an asset belonging to the Bank. The Bank then created new credit and gave this credit to the Customer in exchange for the promissory note. Although both the Customer and Bank created new money, the promissory note is not usable or liquid money, whilst the credit created by the Bank is usable or liquid money. Because the Customer benefitted from the receipt of the liquid credit created by the Bank, it is fair to say that the Bank advanced moneys to the Customer.

[105]Amended defence, [2(b)] (strike-through and underlining to show amendments).

I note, however, that at the same time as the recent amendments were made, the defendant removed all of the references to the ‘promissory note’ argument that hitherto were pleaded in her counterclaim at paragraphs 8(d), 8(e), 9(c) and 21(c).

In her amended counterclaim, the defendant pleads that the Bank engaged in ‘[m]isleading and deceptive’ conduct by ‘falsely represent[ing] that the contract [i.e., the Loan Agreement] was or is a loan’,[106] as follows:[107]
[106]Amended counterclaim, [8].
[107]Ibid.

(a)The Bank made the express representation that the contract is a “loan” in its information, website, advertising material, and in the contract documents signed by the Customer. The Bank also refers to the contract as a “loan agreement” in its statement of claim to the Supreme Court.
(b)The meaning of the term “loan” is clear and unambiguous. It means to lend something temporarily and, by logical inference, a lender must first possess the thing in order to be able to lend it.
(c)The Customer entered into the contract on the understanding that the arrangement was a loan where the Bank was lending money it possessed from its own stores, such as the deposits of other customers.
(d)The contract arrangement was not a loan. The Bank did not loan any money it already had in its possession and stores. Instead, the arrangement is such that the Bank creates credit and later destroys an equivalent amount of credit when a customer pays the principal amount previously advanced.
(e)The Bank advanced credit to the Customer but the Bank did not loan credit because it is not possible to loan credit.
(f)The Bank engaged in misleading and deceptive conduct by describing the contract arrangement as a loan when it was not a loan. The Bank thereby contravened sections 12DA, 12DC and 12DF of the ASIC Act, sections 1041E and 1041H of the Corporations Act 2001 and section 160D of the National Consumer Credit Protection Act 2009.

The defendant also relies on the alleged conduct discussed above to advance a similar plea under the heading of ‘Unconscionable conduct’, contending that the Bank engaged in unconscionable conduct in contravention of ss 12CB and 12CC of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), and s 991A of the Corporations Act 2001 (Cth) (Corporations Act). This claim is addressed further below.

The Bank submits that there can be no dispute that monies were advanced by it to the defendant. It points to the bank account statements pertaining to the Loan Agreement as evidencing the advance of those monies to the defendant.[108] Further, it also relies on the (recent) admission made by the defendant in her amended defence that ‘it is fair to say that the Bank advanced monies to the Customer.’[109]
[108]Peace affidavit, [9]-[10]; Exhibit KJP-6; Exhibit KJP-7.
[109]Amended defence, [2(b)] (underlining in original to show amendments).

There is no clear articulation of the defendant’s position in the material before the Court. The defendant appears to contend that the Bank is not loaning actual money but rather is creating credit, and as a result the Bank is not justified in charging interest to the Customer. So much appears from the amended defence (where the defendant now acknowledges that the Bank did advance monies to her), and her oral submissions, during which the defendant accepted that she is obliged to repay the principal sum that was advanced (together with any applicable administration fee for the work performed[110]) but disputes any liability to pay the interest accrued thereon, as follows:[111]

HER HONOUR: So they [the Bank] say they advanced funds.
MS GRAHAME: Yes, and I agree and I have admitted that I have benefited from that and that therefore it is my responsibility to ensure that the amount, the principal amounts is returned to the bank.
HER HONOUR: Well, why just the principal because there’s nothing in the document that says you will only have to repay the principal?
MS GRAHAME: Because I believe – my argument is that the charging interest is – they have no justification for charging interest.

[110]Transcript 04/12/19 at 80–1.

[111]Ibid, 60 (emphasis added).

As the ‘interest’ argument had not been articulated in the material filed by the defendant, the Court sought to better understand the way in which the argument was being advanced. Relevantly, during the defendant’s oral submissions the following exchanges ensued:

HER HONOUR: And that’s a transaction where there’s a requirement to make 521 fortnightly payments over 20 years, each repayment $420, with the variable, residential variable rate being disclosed in the document at p.148. So there’s a notification to you that interest will be charged on the loan.
MS GRAHAME: Yes, I understood – at the time that I signed these documents I was aware that interest was charged and when I signed them I believed that the bank was, that it was a fair and reasonable contract. It was only subsequent to signing it that I became aware that the bank doesn’t actually loan money and it has no – it’s completely unreasonable for it to charge interest.[112]
…
HER HONOUR:…Why do you need to know where the money was sourced from? The bank lent you the money and the bank’s saying to you, ‘You have to repay the money because we lent it to you’.
MS GRAHAME: Because whether a person is justified in charging interest depends on whether they've actually taken any risk with their own money.
HER HONOUR: Well, the bank has taken a risk demonstrably because they’ve lent you $145,000 in the first instance and they’ve not received it back.
MS GRAHAME: Well, I would say, Your Honour, that they haven’t lent the money. They created the credit and it was an exchange of promissory note that I signed, that the bank exchanged the IOU for credit.
HER HONOUR: Well ‑ ‑ ‑
MS GRAHAME: It wasn’t money that came from the bank’s own stores – that’s my argument.[113]

[112]Ibid, 62 (emphasis added).

[113]Ibid, 63–4.

When the defendant was taken to the bank account statements for the alleged loan, she confirmed that she is not challenging that the statements recorded the advance of monies; rather, she is challenging that the Bank has ‘loaned’ money. She acknowledges that while the Bank statement ‘shows that there's a debit…under the title of HJ Grahame’ and that ‘it does show that money has been advanced’, she submits that ‘the bank account statement doesn't show the source of the funds that it has advanced therefore it's no proof that the money has been loaned.’[114]
[114]Ibid, 65.

The defendant did not point to any legal requirement that the Bank must identify the source of the funds it has advanced before the transaction can be treated as a ‘loan’, and I am unaware of any such requirement. In the present case, the documentation relied upon by the Bank records that monies were advanced by it to the defendant. Given the clear acknowledgements made by the defendant to the effect that the Bank has advanced monies to her, and that she is required to ensure that both the principal and associated administrative fees are repaid, it is difficult to understand why the interest payments she undertook to make as part of those same arrangements would stand in any different position. The contractual arrangement entered into between the Bank and the defendant made clear that interest was payable on the amounts advanced. In circumstances where the Bank has advanced those sums to the defendant, and there is no legal requirement upon the Bank to disclose the source of the funds it has advanced, the Bank is entitled to recover the outstanding interest that has accrued.

The ‘promissory note’ argument advanced by the defendant in her defence is elaborated upon in her affidavit affirmed on 8 August 2019. In essence, she states:[115]
[115]Affidavit of Ms Grahame affirmed on 8 August 2019 (Grahame 8.08.19 affidavit), [18], [22]–[26].

Promissory note
(18)The “loan” contract that the customer signs is a promise to pay money. As such, it is a promissory note.

. . .
(22)The money that the banks use is credit, and credit is an “I owe you” and therefore also a “promise to pay”. . . .
(23)What constitutes “money” or “real money” is a vague area and open to conjecture. Having considered these issues myself, I would assert that I created money by signing a promissory note. The promissory note is real money but it is not usable or liquid money. The bank created credit which is not real money but is usable or liquid money. The promissory note is real money because it is based upon my future capacity as a human being to do work that has genuine value to another human being. In contrast, a bank creates credit by placing a few numbers into a bookkeeping ledger, so bank credit has no substance and is therefore not real money. Some others would say that the only “real money” is the world is “old money” or money that has been earned through labour. Whatever the definitions though, our whole system of commerce revolves around banks and the credit they create, so it is their credit which we use and commonly call money.
Exchange
(24)Banks describe the process of receiving an asset (such as a promissory note) and issuing credit as a “loan”, but the use of this term is deceitful because the bank does not lend any money that it already has in its own stores.
(25)Although the majority of people believe that the banks lend the deposits of other customers or money held in bank reserves, this is factually incorrect. The credit issued or advanced to the customer as part of a “loan” is newly-created money which was created as a bookkeeping entry.
(26)The process of the contract or promissory note being signed by the customer or the bank issuing credit is therefore an exchange. The customer creates one kind of currency, the bank creates another type of currency, and the two are exchanged. . . .

Later in her affidavit, Ms Grahame addresses the question of whether the transaction outlined above is a ‘loan’? She states:[116]
[116]Grahame 8.08.19 affidavit, [38]–[40], [47].

Is it a Loan?
(38)The question that arises (in my mind at least) does this arrangement constitute a “loan”? Unfortunately, I have been unable to find any references that tackle this question.
(39)It could be said that the process of creating and destroying credit achieves the same purpose or function as a loan, however the bank is not actually lending any money that it has in its possession, so the process would more accurately be described as issuing credit rather than “loaning” money (in the same way that a bank issues credit to credit card holders). Also, there is the fact that it is not possible to loan credit.
(40)Another important facet of a loan, I think, is that it involves some element of risk to the lender. I previously submitted that the bank took no risk and therefore it was fraudulent to describe the arrangement as a loan. I still take the view that the bank takes virtually no risk, and I will explain why.

116In my letters to the bank and in my original pleadings, I claimed that the “loan” contract was unlawful and void, and that all parties had agreed to this fact. At that time, I believed that the bank retained the benefit of both the interest charges and principal repayments. I have since come to realise that Bendigo and Adelaide bank does not profit from principal repayments but, rather, these are most likely passed onto the central bank and effectively destroyed as a result of being removed from the circulating economy.
117At the time this new information became available I decided that, as I had benefitted from the credit advanced to me, it was appropriate that I give the bank an amount of money equivalent to that which I had received. I also consider it appropriate to pay the administration and monthly account fees for the work that the bank performed.
118. . . [T]he total amount payable to the bank (in principal repayments and administration costs) is $485,098.10. The total principal payments I have made total $385,035.22.
119Restitution requires, I believe, that I be compensated for all interest payments that I have previously paid to the bank. As I am not currently living at my home where my bank records are kept, I am unable to make a calculation of the interest charges I have paid, however I am sure that the bank could calculate how much interest I have paid in total on the various loan iterations from 6 May 2014 to the present day.
120. . . In total I have paid $135 in default fees . . .
121Once all of the various amounts listed above are taken into account, there will still be an amount owing to the bank of around $85,000. Given that I have performed an acceptance for value on the debt listed in the court’s orders dated 19 July 2019 in the amount of $166,702.87 . . ., any outstanding debt will have been set off by this acceptance for value.
122Personally, I believe it would be a case of unjust enrichment for either the bank or myself to retain what extra credit remains from the $166,702.87.

To the extent that the defendant seeks to maintain some type of ‘acceptance for value’ or ‘strawman’ argument, the Bank submits that similar claims have been determined by the Courts in a manner adverse to the defendant.[189]
[189]Plaintiff’s outline of submissions, [70], where the Bank referred to the following cases, by way of example only, submitting as follows:

Having reviewed the material the defendant relies upon for her acceptance for value argument, I am not satisfied that it could be regarded as having any real prospects of success. The defendant was unable to point to any principle of law underlying it and so far as I can ascertain the concept has no support, acceptance or recognition under Australian law. But even if it did, the acceptance for value concept as explained by Ms Grahame could not operate to offset the debt she has incurred to the Bank. Indeed, during the course of her oral submissions, in the course of answering questions raised by the Court, Ms Grahame acknowledged that in circumstances where she – the living person – is the customer of the Bank, any acceptance for value performed in the name of the alleged corporate entity is ineffective and does not operate to offset that personal debt. When explaining to the Court how the acceptance for value operates at a practical level, Ms Grahame stated:[190]

MS GRAHAME: I agree that I, I as a living entity owe the bank the return of the principal amounts and the administration costs. I completely agree that I am responsible for the return of that money.
But my extra point to that is that because I have learned about this all capitals entity and because I have become a secured creditor of it, I have the ability to, if I’m given a debt notice where the debtor is listed as the all capitals entity, whether it’s tax, whether it’s a court document, whether it’s a bank statement, if the debtor is the all capitals entity; whether it’s tax, whether it’s a court document, whether it’s a bank statement; if the debtor is the all capitals entity I have the authority to direct that credit from the Treasury should be issued to offset the debt.
So that’s subsequent – so if – if the bank wants to issue me a debt notice in my lower case name then I’m liable for it and I can’t perform an acceptance to value on that. But – and I – I – I accept liability for my – my debts. But – but as a beneficiary of the birth certificate on trust, the credit that the government was issued with is for my benefit and I, as the secured creditor and – and trustee, I have the right, the authority, to say, ‘Well, I want that credit, or some of that credit, to benefit me by paying off this particular debt’.

[190]Transcript 04/12/19 at 82–3 (emphasis added).

Having acknowledged that the indebtedness to the Bank was incurred in her personal capacity, and that she could not perform an acceptance for value if the debt was in her lower case name, the defendant effectively accepted that any acceptance for value she may have performed on a debt in the corporate entity name does not operate to offset that personal debt. This position is confirmed by the following exchanges with her during oral submissions:

HER HONOUR: Well, I’ve taken you to the documents so I could – I’ve asked you the question based on the documentation which has got the borrower being Heather Jean Grahame in ordinary type.
MS GRAHAME: Yes. I – I have – I completely agree that the bank has absolute right to require the repayment of that debt, and the administration fees. Absolutely. And to sell the property if that’s its way of recovery the amount – the money. I have – I have no disagreement with that whatsoever.
HER HONOUR: Because all of the arguments that – acceptance for debt or the assignment of the reversionary interest all pertain to the entity that’s in the all capital letters?
MS GRAHAME: Yes.
HER HONOUR: Yes. I was just wanting to try and make sure I hadn’t misunderstood.
MS GRAHAME: No. No. I – I – I – yes. The – the – yes. No. I – I think you do understand. Yes. So my – my pleadings are probably not very good in that regard, because when I first wrote them I was of the understanding my – my – that it – it was different. I – I believed the bank had no right to recover the money but I agree now it does.[191]
[191]Transcript 04/12/19 at 91 (emphasis added).
. . .
HER HONOUR: ‑ ‑ ‑ that’s the difficulty I run into, even taking your case at its highest, because of the acknowledgements you’ve made, there’s an acknowledgement of indebtedness in the name of Heather Jane Grahame, the living entity.
MS GRAHAME: Yes.
HER HONOUR: And on this sort of application there's not anything I can do about that.
MS GRAHAME: I – I don’t expect you to. I – I – I agree. I agree that – that – that I am liable for the repayment of those amounts. And – but how those repayments are – are made, as long as the repayments are – are made I – I still – if – if – if I can provide some money through money that I have earnt and provide some credit – some money via credit from the Treasury, well, so be it. As long as the ‑ ‑ ‑
HER HONOUR: Well – but, no, the Treasury credit doesn’t enter into it, because you can’t do the acceptance for value in respect of something which is an indebtedness in your personal name. You’ve explained that to me.
MS GRAHAME: I see.
HER HONOUR: And that’s the difficulty I'm having. You can’t enliven that body of what you say ‑ ‑ ‑
MS GRAHAME: Yes.
HER HONOUR: ‑ ‑ ‑ is understanding, to assist your cause.
MS GRAHAME: The penny’s just dropped. Yes, I see. I see. Yes.
HER HONOUR: And that’s – I’m raising that because, as I said, I’ve tried to follow all of your arguments, but that’s where ‑ ‑ ‑
MS GRAHAME: No, you’ve – you’ve – your point.
HER HONOUR: ‑ ‑ ‑you get to the end point, and you say ‑ ‑ ‑
MS GRAHAME: Yes.
HER HONOUR: ‑ ‑ ‑ ‘Well, what’ – even if your arguments were right, because of the documentation – and I know you had a different understanding of it, but you do accept that in your personal entity name ‑ ‑ ‑
MS GRAHAME: Yes.
HER HONOUR: ‑ ‑ ‑ you have an indebtedness to the bank, at least on your own case, for the principal and the administration fees.
MS GRAHAME: Yes.
HER HONOUR: So it comes down to a question of how much quantum the bank’s entitled to recover on your case. And at the moment the bank’s saying, ‘Well, nothing’s been paid and we have to re-enter and recover possession for that purpose’.
MS GRAHAME: Yes.[192]
(i)The defendant claims non-economic damages for emotional distress (arising from the alleged unconscionable conduct, misleading and deceptive conduct and unfair contract claim)

[192]Transcript 04/12/19 at 97–8 (emphasis added).

In her amended counterclaim, the defendant pleads claims for ‘non-economic damages’ that are said to arise from the alleged unconscionable conduct, misleading and deceptive conduct engaged in by the bank and the unfair (standard form) contract employed by the Bank, as follows:[193]
[193]Amended counterclaim, [27], [28], [30].

27The Customer was damaged by the misleading and deceptive representations of the Bank, the unfair standard form contract employed by the Bank, and by the unconscionable conduct of the Bank. Such profound deceit and lack of morality by an organisation which plays a pivotal role in society completely undermines trust between people and a sense of peace and security.
The Customer was damaged by the Bank’s unfair and unconscionable charging of interest. Such interest charges placed the Customer in a state of financial stress because the funds to pay such interest can only come from either borrowing further funds or taking money from others in society.
The Customer was also damaged by the Bank’s unfair and unconscionable requirement for the Customer to enter into a mortgage contract despite the Bank taking virtually no risk and such security being unjustifiable. The Customer experienced great distress at the ongoing threat of foreclosure proceedings where the Bank would use its money and power to take the Customer's home from her.
28The Customer was led into error by the Bank’s deceptive representations, and unknowingly the Customer agreed to the creation of new money, thereby contributing to inflation and financial stress for the whole community. Had the Customer been aware that new money was created to fund the “loan”, she would not have engaged in such a detrimental scheme. Had the Customer been aware that the Bank had no lawful right to charge interest and that such interest has a devastating impact upon the economy and society as a whole, she would not have engaged in such a detrimental scheme.
29The [Defendant] experienced great emotional distress as a result of believing she must pay the Bank large sums of money on a regular basis for many years and risked losing her home if she failed to make such payments.
30The Customer experienced emotional distress as a result of the Bank’s attempts to intimidate and frighten her after she had informed the Bank that the contract was unlawful. The Bank’s methods in this regard included repeatedly sending notices of default and threats of legal action, arranging for the Customer to be watched as she collected mail from the post office, charging the Customer with extra fees, and initiating proceedings against the Customer in the Supreme Court.

In the prayer for relief in her amended counterclaim, the defendant seeks ‘general damages in the amount of $1,500,000 for non-economic injury and loss as a result of the Bank’s deceitful, unfair, unconscionable and harassing conduct in accordance with s 12GF of the ASIC Act, s 1041 of the Corporations Act 2001, and s 179 of the National Consumer Credit Protection Act 2009.’[194]
[194]Amended counterclaim, under the heading ‘Orders sought’, [4].

In her outline of submissions filed on 14 November 2019, the defendant confirmed that she claims damages in respect of the Bank’s alleged unconscionable conduct, misleading and deceptive conduct and grossly unfair contract, in accordance with s 12GF of the ASIC Act, s 1041 of the Corporations Act, and s 179 of the National Consumer Credit Protection Act 2009 (Cth). Therein she outlines the gist of her claim for ‘non-economic damages’ and her calculation of loss stating:[195]
[195]Defendant’s outline of submissions, [124]–[128], [132]–[134].

124It is impossible for me to describe in a few paragraphs the profoundly negative impact that the bank’s interest charges cause. . . .
125. . . I have been directly affected by the bank’s charging of interest. I am, in fact, damaged by the bank’s interest charges even if I had never entered into a “loan” contract. Interest charges create an unstable economy and a sinking hole of debt for almost the entire population. . . .
126I have suffered the ongoing stress of wondering if I will be able to meet the bank’s demands for repayment each month and the threat of foreclosure and losing my home if I fail to meet those unconscionable demands. . . .
127I have suffered the emotional distress of being unlawfully evicted from my home. . . .
128I have provided a letter from my general practitioner evidencing some of the negative effects that the bank’s actions have had upon me psychologically and physically (see Exhibit C of my affidavit dated 6 November 2019).
. . .

132No amount of damages can undo the personal and psychological injury that the bank has caused to me. However, an award of damages should be commensurate with the financial gains the bank has received as a result of its unscrupulous behaviour, and should also take into account the bank’s capacity to pay an amount of damages. . . .
133I make a claim for general damages in the amount of $1,500,000. Without any prior cases to follow as an example, I have turned to a phrase from the Bible for guidance. . . .
134The bank attempted to use its misleading and unconscionable schemes to steal my house. As the house is worth approximately $500,000 and the bank attempted to steal it – rather than actually succeeding in stealing it – then I calculate that restoration of “three houses for a house” is appropriate.

No doubt the defendant has experienced real emotional distress as a result of her eviction from the property, but in pursuing execution of the Warrant of Possession the material before the Court demonstrates that the Bank has acted lawfully, and the defendant was unsuccessful in the applications she made to the Court for a stay. Furthermore, during her oral submissions, the defendant acknowledged that in circumstances where she has not repaid the principal sum or the administration fees, the Bank has the right to require repayment of the debt and to sell the property to recover its money.[196]
[196]Transcript 04/12/19 at 91 (Ms Grahame).

As the defendant has not succeeded in demonstrating that any of her pleaded claims for the alleged unconscionable conduct and misleading and deceptive conduct engaged in by the Bank and the alleged unfair (standard form) contract employed by the Bank have real prospects of success, no occasion arises for the Court to consider her claim for ‘non-economic damages’.

(j)The defendant claims pecuniary penalties and injunctive relief

In her amended counterclaim, the defendant also seeks pecuniary penalties in accordance with s 12GB of the ASIC Act (for contraventions of ss 12DC, 12DF and 12DJ), s 1311 of the Corporations Act (for contravention of s 1041E) and s 160D of the National Consumer Credit Protection Act 2009 (Cth).[197]
[197]Amended counterclaim, under the heading ‘Orders sought’, [5].

She submits that pecuniary penalties are ‘necessary and appropriate in this case as they serve an important deterrent function not only for the [Bank] but for all other commercial banks that engage in such conduct.’[198]
[198]Defendant’s outline of submissions, [140].

In addition, the defendant seeks a range of injunctive relief, including:[199]

(6)That the bank be restrained from using the term “loan” in relation to goods and services where those goods and/or services do not involve the Bank loaning money already held in its possession and stores or where the money advanced is in the form of credit.
. . .
(10)That the bank be prohibited from charging customers interest on any new agreements entered into where the bank performs the administrative task of credit creation/destruction and takes virtually no risk or is able to reduce its risk to zero. This includes, but is not limited to, so-called “loan” agreements and credit card agreements.
(11)That the bank be prohibited from requiring customers to enter into security agreements, such as mortgage contracts, when advancing credit to customers as the bank takes virtually no risk or is able to reduce its risk to zero and therefore cannot justify such security agreements.
(12)That the bank be prohibited from taking legal action against any customer who has performed an acceptance for value on a bank debt in the name of the corporate entity.

[199]Ibid, [141].

In circumstances where I have found that none of the defendant’s claims in relation to the Bank’s alleged conduct have any real prospect of success, the claimed contraventions will not be made out, and no occasion for the grant of any injunctive relief will arise.

Conclusion

For the reasons set out above, I am satisfied that the Bank has established its cause of action against the defendant. Accordingly, the Bank is entitled to enforce its Mortgage and recover possession of the 6 Croom Street property; further or alternatively, the Bank is entitled to repayment in full of the amount outstanding pursuant to the Loan Agreement.

I am also satisfied that none of the defendant’s defences and counterclaims (as set out in her pleadings and elaborated upon in her affidavits and submissions) have any real prospects of success. Further, having reviewed and considered all of the material relied upon by the defendant, I am not satisfied that there is any other question which emerges that ought to be tried. In those circumstances, I am satisfied that it is in the interests of justice to summarily dispose of both the main proceeding and the counterclaim. Accordingly, the Bank’s application for summary judgment, in respect of both its statement of claim and the amended counterclaim will be granted, and the defendant’s appeal will be dismissed.

Having found for the Bank on its primary claim, it is not necessary for the Court to consider the residual relief sought by the Bank in the alternative, by way of a striking out of the amended defence and counterclaim pursuant to rr 23.01 and 23.02 of the Rules. Had it been necessary to consider the claim for residual relief, I would have granted it, essentially for the reasons advanced by the Bank, to the effect that:[200]

no proper amendment of the pleading can raise a good defence or, in respect of the amended counterclaim, a cause of action again [the Bank] because the amended defence and counterclaim so completely lack foundation in fact or law that no legitimate pleading amendment could save it.

[200]Plaintiff’s outline of submissions, [18].

I will hear from the parties as to the appropriate form of orders and as to costs.

(a)Deputy Commissioner of Taxation v Casley [2017] WASC 161; in this matter Casley effectively argued that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man. His contention was that an individual’s debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations. Le Miere J dismissed those arguments as ‘gobbledygook’.

(b)In both Rural Bank Limited v Lloyd [2013] NSWSC 1214 and Commonwealth Bank of Australia v Roskott [2014] NSWSC 146 the Court dismissed the claims of the borrower who drew their own worthless bill of exchange.
(c)Bertola v Australian and New Zealand Banking Corporation [2014] FCA 609; in this matter, Mr Bertola sought, having created his own documentation with the bank, to rely on its delivery to create an accord and satisfaction. His arguments were dismissed.
(d)In Smadu v Stone [2016] WASC 80 Le Miere J held, in considering an application for leave to appeal against sentence and conviction for driving offences, at [5]:
The appeal is grounded primarily on the notion that the appellant has separate legal personalities. It appears the appellant asserts that one such personality owned the motor vehicle and another held the appellant’s driver's licence and drove the vehicle. The appellant says that the wrong legal person was charged and raises various arguments which appear to be based on the separate legal personality fiction. This is all nonsense. It would be a waste of judicial resources and an affront to the dignity of this court to answer the pseudolegal arguments raised by the appeal in anything but a summary way.
(e)The ‘strawman theory’ was otherwise comprehensively addressed, including claims of ‘acceptance for value’ in Meads v Meads (2012) ABQB 571, a 188 page judgment of Rooke ACJ, whereby the many types of arguments of pseudo-legal litigants was traversed.

[2020] VSC 86

2 March 2020