Cini v First Mortgage Capital Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cini v First Mortgage Capital Pty Ltd [2023] NSWCA 53

Hearing dates:

10 March 2023

Date of orders:

27 March 2023

Decision date:

27 March 2023

Before:

Gleeson JA at [1]
Kirk JA at [2]
Basten AJA at [67]

Decision:

(1) The appellant’s motions dated 26 October 2022 and 28 February 2023 are dismissed.

(2) The appeal is dismissed.

(3) The appellant is to pay the respondent’s costs of the appeal, including on the appellant’s motions, on an indemnity basis.

Catchwords:

LAND LAW — Co-ownership — Statutory trust for sale — Whether primary judge erred in ordering statutory trust for sale — Baseless contentions that court has no jurisdiction over the appellant or that the law does not apply to him — Baseless allegations of forgery and fraud — No issue of principle

Legislation Cited:

Conveyancing Act 1919 (NSW), ss 66F, 66G

Supreme Court Act 1970 (NSW), ss 22, 23, 75A

Cases Cited:

Foundas v Arambatzis [2020] NSWCA 47

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Category:

Principal judgment

Parties:

John William Cini (Appellant)

First Mortgage Capital Pty Ltd (Respondent)

Representation:

Advocates:

John William Cini (Appellant in person)

A Djurdjevic (Respondent)

Solicitors:

Summer Lawyers (Respondent)

File Number(s):

2022/00226932

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

None

Date of Decision:

4 July 2022

Before:

Darke J

File Number(s):

2021/00286634

JUDGMENT

1. GLEESON JA: I agree with Kirk JA.

2. KIRK JA: The appellant appeals from orders made by Darke J on 4 July 2022 under s 66G of the Conveyancing Act 1919 (NSW). The orders provided for the vesting of land in trustees for sale and for the payment of part of the proceeds of sale to the respondent, First Mortgage Capital Pty Ltd, in satisfaction of a loan in respect of which the appellant was a guarantor.

3. The appellant now denotes himself as “John-William.:Cini”, although he signed relevant loan documents in 2019 in which he is described as “John William Cini”, and that is how he is named in the respondent’s summons which commenced this proceeding. He represented himself both in this Court and in the Court below.

4. The appeal raises a large number of grounds, most of which raise no meaningful legal issue within Australian law. The others disclose no error in the reasoning and conclusion of the primary judge. The appeal should be dismissed with costs.

5. I address the grounds of appeal in turn below, along with two notices of motion that were filed by the appellant. Before doing so it is appropriate to explain the context in which they are raised.

Background

6. On about 12 April 2019 the respondent loaned $712,366 to a company named Turba Trium Pty Ltd. That loan occurred pursuant to a number of contractual documents. First, there was a “Formal Letter of Offer for Mortgage Loan”. That document records that the loan was to be secured by way of a mortgage…