CBA v Young
[2010] VCC 1821
•14 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised from a tape |
| COMMERCIAL LIST | of the proceedings |
| BANKING AND FINANCE DIVISION | Not Restricted |
Case No. CI-09-01953
| COMMONWEALTH BANK OF AUSTRALIA | Plaintiff |
| v | |
| CATHRYN YOUNG | Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 December 2010 |
| DATE OF JUDGMENT: | 14 December 2010 |
| CASE MAY BE CITED AS: | CBA v Young |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1821 |
REASONS FOR JUDGMENT
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Catchwords: whether plaintiff should be granted leave to file a second warrant of possession- whether other orders appropriate under Rule 66.15
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Carew | Gadens Lawyers |
| For the Defendant/ | Mr D Tatana (on behalf of | |
| Respondents | himself) Mr G Donohue (on behalf of himself) | |
| HER HONOUR: |
Nature of application and representation
1 This is the return of a summons dated 1 December wherein the plaintiff seeks the issue of a second warrant of possession, or alternatively a warrant of restoration; as well as various orders against the defendant, Mr David Joseph Tatana, Mr Raymond Walter Tatana and Mr Gerard Donohue.
2 The application is supported by a number of affidavits, particularly: an affidavit of Natalie McCabe of 1 December 2010; an affidavit of John Porta of 30 November 2010; an affidavit of Gary Scates of 28 January 2010; an affidavit of Jason Storey of 30 November 2010; and an affidavit of service of Jason Storey of 14 December 2010.[1]
[1] This latter affidavit has been placed in a sealed envelope and is not to be opened without court order so as to protect the identity of certain persons
3 Mr Donohue (a non-lawyer) appeared for himself. Mr David Tatana (also a non-lawyer) also appeared on behalf of himself.
4 At the commencement of this hearing, I refused an application by Mr Tatana to represent Ms Young and Mr Raymond Tatana. In so doing I had regard to the principles in Skrijel v Mengler[2] wherein Nettle J (as his Honour then was), referred to a New Zealand authority which suggested that the circumstances in which a non-lawyer should be allowed to conduct a case for another should be “exceptional or unusual”. I was not satisfied the circumstances were either exceptional or unusual such as to warrant the grant of leave.
[2] [2003] VSC 128 at [11]
5 In the decision of Apostolou v Commissioner of State Revenue[3], Mandie J ( as his Honour then was) cited various factors to take into account which factors also applied in this case. Firstly, the conduct of a case by a lay person such as Mr Tatana is not under the disciplinary control of the Court. Another factor is that the Court is unlikely to receive the skilled and learned assistance it may expect from professionally qualified representatives. On previous occasions, when Mr Tatana had been permitted to address the court on behalf of Ms Young, he did not provide appropriate skilled and learned assistance. Finally, the represented party’s interests may not be well served by a lay representative. This latter factor appeared to have particular importance in this case where the persons concerned appeared to have different roles in the conduct alleged and thereby potentially different interests.
[3] [2008] VSC 332 at [21]
6 In the light of all these factors, I only permitted Mr Tatana and Mr Donahue to appear on their own behalf although Mr Tatana, in particular, was permitted to, and did, generally address the Court as to the orders sought insofar as they affected all named persons.
History of proceeding
7 This matter has a long history.
8 On 6 May 2009 a Writ and Statement of Claim were filed. The Statement of Claim sought, among other things, possession of land described in certificate of title volume 8171 folio 894 at 10 Ashmore Street, Brunswick 3056 (“the property”) together with an amount of $672,886.90.
9 On 1 June 2009 a notice of appearance was filed.
10 Then on 2 July 2009, judgment in default of appearance was entered for payment in an amount of $672,886.90 with interest and costs and also for an order that the plaintiff recover possession of the property.
11 On 22 July 2009, the defendant filed a summons to set aside the judgment of 2 July which summons was listed before the Court on 7 August 2009. At that time the defendant asked for, and was granted, an opportunity to put on more material in support of her summons. As a consequence of this opportunity, the hearing of the summons was adjourned until 21 August 2009.
12 On 21 August 2009 the defendant’s application to set aside the judgment was dismissed.
13 On 18 September 2009 a warrant of possession was issued.
14 On 17 December 2009 there was an execution of that warrant. The circumstances surrounding that execution are more fully set out in the affidavit of Mr Skates of 28 January 2010 and I will return to that in due course.
15 On 5 March 2010, and in the light of the fact that I formed the view that the property had been repossessed by the actions of Mr David Tatana, an order was made directing the Registrar to issue a warrant of restoration.
16 On 10 March 2010, the defendant and a Peter Alexander Gargan filed an application in the Magistrates’ Court to restrain execution of this warrant. That application was dismissed on 18 March 2010.
17 A second application was then issued in the Magistrates’ Court on 24 March 2010 to again restrain execution of the warrant. The Magistrates’ Court dismissed this summons on 7 April 2010.
18 Then on 9 September 2010, the warrant of restoration was executed. The circumstances surrounding that execution on 9 September are fully set out in an affidavit of Jason Robert Storey of 30 November 2010.
19 On 20 November 2010, possession was again retaken of the property by Mr Raymond Tatana and others in circumstances more fully described by John Porta in an affidavit of 30 November 2010.
Submissions of Mr Tatana and Mr Donohue
20 Neither Mr Donohue nor Mr Tatana challenged the evidence that possession of the property had been retaken by Mr Raymond Tatana and others.
21 Instead, Mr Donohue:
• tabled a document entitled “Heads of Argument”; •
claimed to be a Commonwealth Public Officer and that he had filed charges against Mr Reichenberg who is a solicitor at Gadens Lawyers acting on behalf of the plaintiff bank and also against a Mr Lionetti, a real estate agent;
• claimed that he wanted to invoke s.78 B of the Judiciary Act 1903. 22 Mr Tatana raised various matters. In particular:
•
he purported to challenge the legitimacy of the judgment in default that I have referred to above, and, in particular, challenged a “filing confirmation notice” produced in court;
• he handed up a bundle of documents which I will refer to shortly; • he also challenged the quantum of the judgment through reliance on some bank statements;
• he alleged that there was some “inconsistency” with a Commonwealth law.
23 It was difficult to determine precisely the nature of the application by the two men. Both appeared to be applying at one point to stay the execution of the judgment which they are able to do under Rule 66.16.
24 In any event, none of the matters raised suggested that it was inappropriate to make the orders sought, nor that it was appropriate to otherwise stay the execution of the judgment.
25 In terms of the matters raised by Mr Donohue:
•
Having read the “heads of argument”, there is nothing therein which justifies any stay or otherwise justifies a refusal to accede to the orders. More particularly, there appears to be no proof that Mr Donohue is in fact a Commonwealth Officer beyond a document described as a “Certificate of acknowledgment” that he himself appears to have signed;
•
the charges that have been filed in the Magistrates’ Court by Mr Donohue are apparently those charges annexed to the affidavit of Ms McCabe at Exhibit NCM9 and NCM10. They do not impeach the bank’s entitlement to possession pursuant to the judgment of this court;
•
no relevant “matter arising under the Constitution” under s.78B was identified. Rather, when Mr Donohue was queried about the issue, he referred to some alleged matter against the former Attorney-General, Mr Hulls, which was not relevant to the matters before me today.
26 In terms of the matters raised by Mr Tatana:
•
Order 28 Part 2 provides for the electronic filing of documents. Specific provision is made for the production of a “Filing Confirmation Notice” under Rule 28.11(1)(c). Order 28 Rule 14 further provides that Rule 40.08 applies to a document referred to as a filing confirmation notice as if the document was a document purporting to be sealed with the seal of the Court. Rule 40.08(1) provides that a document purporting to be sealed with the seal of the Court shall be admissible in evidence without further proof. I am satisfied that a judgment in default was entered on 2 July 2009 as set out already. The defendant has also effectively accepted the legitimacy of the judgment by previously applying to set it aside;
•
the bundle of documents do not justify any refusal of the orders sought. In fact, the letter that Mr Tatana has provided to the Court dated 2 November 2009 wrongly purports to suggest that he had an entitlement to possession of the property, despite having been served with a Notice to Vacate from the Sherrif’s office and despite the fact that the defendant had been unsuccessful in setting aside the judgment;
•
In terms of the quantum of the judgment, in Talston Pty Ltd v Daisley[4] Justice Kaye states that the circumstances which relate to the issue of whether or not a stay should go must be matters relating to the enforcement of the order, and must not be matters that go to the correctness of the order. I note in any event that the defendant has previously been given an opportunity to apply to set the judgment aside and was unsuccessful in taking advantage of that opportunity;
•
there has been no inconsistency identified in terms of any Commonwealth law.
[4] [2004] VSC 23 at [10]
27 It follows that the matters raised did not justify any stay nor provide any cogent reasons against the making of the orders sought.
28 Nevertheless it is appropriate that I consider for myself whether or not the orders sought should be made.
Whether orders appropriate
29 In terms of the first proposed order for substituted service, I was satisfied, on the basis of the affidavit of Mr Storey of 14 December, that the order was an appropriate order. In particular I was satisfied that actual service was impractical and that this application had in all probability been brought to the attention of those named. In any event, Mr David Tatana stated that Mr Raymond Tatana was present in Court this morning (although he refused an invitation to address the court). The evidence also suggests that Ms Young is aware of this application as Mr Tatana claimed that he had been authorised to act on her behalf.
30 In terms of the second order to be made, I am satisfied on the material before me, that it is appropriate to grant leave to the plaintiff to file a second warrant of possession. This is particularly so in the light of the affidavit of Mr Porta which satisfies me that the plaintiff has again been dispossessed.
31 Counsel for the plaintiff cited a decision of Perpetual Ltd v Field[5]. On the basis of that decision, I am satisfied that I do have power to issue a second warrant. I also adopt, with respect, what Mukhtar AsJ observed, which is that this is a more convenient course to take rather than again issuing a species of warrant (being a warrant of restoration) that is not specifically known under the Rules.
[5] [2010] VSC 445
32 In terms of the orders sought against the individuals under Order 66 Rule 15, I am satisfied, given the history I have cited above and the material in front of me today, that it is appropriate to make the orders sought.
33 Firstly, in relation to Mr David Tatana, the affidavit of Mr Gary Skates suggests that the orders are appropriate. In particular I am satisfied that Mr David Tatana wrongly retook possession of the property on 17 December 2009 ( see in particular paragraph 4(d) and paragraph 4(i)).
34 I also note the affidavit of Mr Storey, particularly at paragraphs 11 and 12. This details that on 9 September 2010 Mr Tatana again attended at the property. It is apparent from that affidavit that Mr David Tatana alleged that the repossession of the property was “illegal,” thus refusing to recognise the bank’s rights to repossession which flow from the judgment delivered by this Court. That approach has been echoed in the approach of Mr Tatana before me today. The affidavit of Mr Storey of 14 December also suggests that Mr David Tatana wrongly possesses the property at the present time.
35 In terms of Mr Raymond Tatana, the affidavit of Mr Storey details his involvement on 9 September 2010. I am satisfied that Mr Raymond Tatana was present at the property and that after a struggle with police he was arrested and removed from the property (see paragraph 5). Pursuant to the affidavit of Mr Porta, I am also satisfied that Mr Raymond Tatana was present at the property on 20 November and in fact repossessed the property at that time. The affidavit of Mr Storey of 14 December suggests that he also continues to possess the property.
36 In terms of Mr Donohue, I am satisfied, on the basis of the affidavit of Mr Porta, that he assisted in the wrongful retaking of possession of the property on 20 November. This has been consistent with his approach today, which evinces a refusal to abide by a judgment of this Court.
37 In terms of the defendant, Ms Young, it appears that she consents to and is a willing participant in at least some of the actions of the other parties I have cited. She has signed authorities to act which apparently have been given to Mr David Tatana. The affidavit of Mr Storey of 14 December also suggests that she wrongfully remains in possession of the property.
38 I am therefore satisfied in all the circumstances that it is necessary and appropriate to make the orders sought against the non-parties as well as Ms Young, under Order 66.15 “in aid of the enforcement of” the warrant of execution. On the material before me, unless these persons are restrained as proposed, the enforcement of the warrant will in all probability be rendered nugatory.
39 I will accordingly now read out the orders and will hear from the parties solely as to the question of costs.
(1)
It is ordered nun pro tunc that the leaving of three envelopes each containing copies of a cover letter of Gadens Lawyers dated 2 December 2010, the summons filed 1 December 2010, an affidavit of John Porter sworn 30 November 2010, a copy of the affidavit of Natalie Clair McCabe sworn 1 December 2010 and the exhibits thereto, a copy of the affidavit of Maree Bunce sworn 15 January 2010, a copy of the affidavit of Gary Skates sworn 29 January 2010, a copy of the affidavit of Kirsten Ganley sworn 8 February 2010, and a copy of the affidavit of Jason Storey sworn 30 November 2010 at the land known as 10 Ashmore Street, Brunswick, Victoria 3056 on 6 December 2010 is deemed to be good and sufficient service of those documents upon Cathryn Young and Raymond Walter Tatana.
(2)
The plaintiff is granted leave to file a second warrant of possession in respect of the land described in Certificate of Title Volume 08171 Folio 894 and being land known as 10 Ashmore Street, Brunswick, Victoria 3056 which is referred to as “the land”.
(3)
Pursuant to Rule 66.15, each of Cathryn Young, David Joseph Tatana, Raymond Walter Tatana, Gerard Donohue and any of their servants or agents is restrained from preventing, hindering or interfering with the Sheriff’s entry upon the land in execution of the warrant issued pursuant to these orders and is further restrained from preventing, hindering or interfering with the actions of any police officers, council officers, Sheriff’s employees, plaintiff’s employees and any persons engaged by the plaintiff in entering upon and taking possession of the land.
(4)
Pursuant to Rule 66.15, upon the Sheriff entering upon the land and executing a warrant issued pursuant to these orders, each of Cathryn Young, David Joseph Tatana, Raymond Walter Tatana, Gerard Donohue and any of their servants or agents is restrained from entering upon the land or making any attempt whatsoever to enter upon the land.
40 I will hear from the parties on the question of costs.
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