Costa -v- St George Bank - a Division of Westpac Banking Corporation
[2013] WASCA 137
•30 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: COSTA -v- ST GEORGE BANK - A DIVISION OF WESTPAC BANKING CORPORATION [2013] WASCA 137
CORAM: MURPHY JA
HEARD: 24 & 29 MAY 2013
DELIVERED : 29 MAY 2013
PUBLISHED : 30 MAY 2013
FILE NO/S: CACV 48 of 2013
BETWEEN: PETER RAYMOND COSTA
Appellant
AND
ST GEORGE BANK - A DIVISION OF WESTPAC BANKING CORPORATION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 1366 of 2013
Catchwords:
Application for stay of orders for vacant possession of property pending hearing and determination of appeal - Prospects of success of appeal - Balance of convenience - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J Lin
Solicitors:
Appellant: In person
Respondent: Jackson McDonald
Case(s) referred to in judgment(s):
McLean v Westpac Banking Corporation [2012] WASCA 152
McLean v Westpac Banking Corporation [2013] FCA 126
Palmer v Permanent Custodians Ltd [2009] VSCA 164
Raysun Investments Pty Ltd v Caruso [2013] WASCA 13
RHG Mortgage Corporation Ltd v Astolfi [2011] NSWSC 1526
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Westpac Banking Corporation v Mason [2011] NSWSC 1241
MURPHY JA: This is an application for a stay.
Background
On 23 April 2013, Master Sanderson ordered that the appellant deliver up vacant possession of three properties (strata titled units) in White Gum Valley, Western Australia. The orders were made pursuant to an application for summary judgment by the respondent. The summary judgment application was supported by affidavit of Ms Howarth, a bank officer of the respondent, who verified the statement of claim and referred to, and annexed, inter alia, copies of the loan agreement, mortgage and default notice referred to in the statement of claim. Prior to the hearing before the master, the appellant had filed a 'Conditional Statement of Defence' dated 22 April 2013. By that document, the appellant pleaded that he did 'not deny' the loan agreement alleged in the statement of claim, but said that it was unconscionable and unenforceable at law and that it lacked the three elements required for a valid contract - offer, acceptance and valuable consideration - and also said that there was not 'a true meeting of the minds'. The appellant also pleaded that he did 'not deny' the mortgage but said that it was 'not necessary', and that it was 'invalid and unenforceable' because it relied on documentation which did not form a 'true, legally binding contract'. The appellant also did 'not deny' the terms of the mortgage pleaded by the respondent in the statement of claim. The appellant did not deny that monies had been advanced to him as alleged, but said that any sums advanced were not 'by lawful means'. He also denied that there were any monies owing by him to the respondent.
In an affidavit dated 22 April 2013, the appellant deposed, in effect, to the matters pleaded in his defence, and also annexed a 'Notice to the Supreme Court of Western Australia' which, without any or any proper particularity, alleged fraud by the respondent and abuse of process, and concluded with these words:
Notice to parties and persons listed below [including the Chief Justice and the Attorney‑General of Western Australia].
Any pre‑emptive action undertaken to sustain any past finding or to compound the existing fraud makes the party an accomplice after the fact and binds them in any findings against the banks.
All parties are advised to desist from any further action regarding this matter and the said properties until legal clarity has been settled.
If any of your members assist in summary judgment proceedings on this matter be aware they will be held responsible.
I await your advice that you are immediately desisting from any and all further action in regard to this matter and the properties involved.
The appellant swore an affidavit on 14 May 2013 in support of his application for a stay. The affidavit annexed the notice referred to above. In his affidavit the appellant stated, in effect, that:
(a)the master lacked jurisdiction;
(b)he believes that the respondent is not the holder of the original documents and does not have standing;
(c)the master was biased;
(d)the respondent would not be prejudiced by a stay;
(e)he would be prejudiced if a stay were not granted; and
(f)the matters pleaded in his defence of 22 April 2013 were true and correct.
Apart from bare assertions, the affidavit contained no, or at least no proper, particularity of the events or matters to which reference is made in the affidavit.
The appellant also relied on a further affidavit sworn 29 May 2013. By this affidavit the appellant deposed to the fact that he had built the properties in question and that they represent 'flesh and blood human being's toil in life'; that he wishes to assert a claim of unconscionable conduct against the respondent and that the Federal Court of Australia is the 'correct jurisdiction' to hear his claim and that, as recently as 27 May 2013, he set up an 'e‑lodgement' process to enable him to initiate proceedings in the Federal Court in that regard; and that the 'capacity of Respondent to bring the action must be challenged and as it is a foreclosed on Corporation as declared in the UCC Filings (See attachment 'A')'. Attachment A to the affidavit is, on its face, a 'financing statement' filed by Westpac Banking Corporation pursuant to the Uniform Commercial Code and an 'amendment addendum' thereto dated 2 September 2011.
The respondent, in opposition to the application for a stay, relies on an affidavit sworn by the respondent's solicitor, Mr Clayton. The effect of Mr Clayton's affidavit is that two of the three units are the subject of contracts for sale in respect of which settlement was originally due on 31 January 2013, and that if the respondent is unable to give the purchasers possession by 31 May 2013, the purchasers will be entitled to terminate those contracts.
The appellant's submissions
In support of the stay application the appellant's submissions, dated 23 May 2013, are as follows:
1.The Appellant submits that if the matter is to proceed, it is to do so in a court of competent jurisdiction, pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (UK), as was upheld by the High Court of Australia ruling in the matter of Forge v ASIC.
2.The Appellant notes that he does not and will not consent to the jurisdiction of any other so-called 'court' especially a 'Masters Chamber' - which is really just a Star Chamber, and which were outlawed centuries ago.
3.The appellant refers to the following cases in respect of the question of jurisdiction:
A)Hagens v Lavine, 415 U.S. 533 - 'Once jurisdiction is challenged, it must be proven.'
B)Standard and Olsen, 74 S. Ct. 768 - 'No sanctions can be imposed absent proof of jurisdiction.'
C)Basso v Utah Power and Light Co., 495 2nd 906 at 910 - 'Jurisdiction can be challenged at any time, even on final determination'[.]
D)Thompson v Tolmie, 2 Pet. 157,7 L.Ed. 381; Griffith v Frazier, 8 Cr. 9, 3L. Ed. 471 - 'Where there is an absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.'
E)Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed, P3) - '... the first business of the court is to try to issue whether or not the case is brought within the terms of statute, and only if this be proven by proper evidence can the court proceed to decide upon treatment.'
4.The Appellant submits that, as per paragraph 3. E) above, the case is not brought within the terms of the Statute as there is no Law or Act in existence within the Commonwealth of Australia that binds the flesh and blood human being, Peter Raymond Costa, to any Statute law that he neither consents nor agrees to. In the second instance, the Respondent has not proved that he has standing to issue Notices. Thirdly, there is no evidence that the agents for ST. GEORGE BANK - A DIVISION OF WESTPAC BANKING CORPORATION (ACN: 007 457 141) have any authority to bring this proceeding before the Court.
5.The Appellant further submits that if the Respondent maintains - after providing evidence to prove such - that this is a civil matter then the original of any contract, deed or agreement with consent between the parties must be provided before the matter can proceed any further because only the holder of the original contract, deed or agreement may have standing.
6.The Appellant submits that pursuant to the ruling of Justice Latham in the Uniform Tax Case in the High Court of Australia - HCA 1942 (65 CLR 373 at 408) - in this regard - 'Common expressions such as: "The Courts have declared a statute invalid",' says Chief Justice Latham, 'sometime lead to misunderstanding. A pretend law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decision of a court in his favour, but such a decision is not an element that produces invalidity in any law. The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is void ab initio'[.]
7.The Appellant submits that, pursuant to paragraphs 7 of his affidavit of 22 April 2012, the paperwork provided by the Respondent - specifically the copy of the 'residential loan agreement offer' - is fatally flawed, is false and misleading, as well as scandalous and embarrassing and beyond the scope of its jurisdiction. Any reliance upon said paperwork should be disallowed as not valid.
8.The Appellant submits that further, without valid paperwork to rely on, the Respondent cannot continue their case and again, the matter should be struck out/dismissed as it lacks the requisite jurisdiction to proceed.
9.The Appellant submits that without a stay the Appellant will be irreparably prejudiced because the Respondent has already obtained offers to purchase against the Appellant's will on the three properties and will proceed to dispose of the properties to third parties immediately.
10.The Appellant submits that the offers received by the Respondent are around 30% below the market value and sale at those amounts will leave a residual that the Respondent may unjustly seek to recover from the Appellant.
11.The Appellant submits that a Respondent with standing would behave in a manner that respects the custodian nature of the purported contract, deed or agreement, not that it is admitted one exists, and would dispose of the properties at market value.
12.The Appellant submits that with a stay of execution of the Summary Judgment of the 23 April 2013 the findings of 3. B above will be respected.
13.The Appellant submits that with a stay of execution of the Summary Judgment of the 23 April 2013 the findings of 3. D above will be respected.
14.The Appellant submits that his defence is filed and served and he must be heard.
15.The Appellant submits that the properties are owned by the Appellant by purchase right.
16.The Appellant submits that Supreme Court orders made on the 23 April 2013 on which the Respondent seeks to rely were provided without the matter being duly heard at law as it was dealt with as a summary judgement.
17.The Appellant submits that the summary judgement referred to in 16 above was faulty because authority of the Respondent to issue its notices was not questioned or established by the court.
18.The Appellant submits that claims by the Respondent to have standing as mortgagee were not proved.
19.The Appellant submits that Respondent's administrative processes were defective.
20.The Appellant submits that the standing of the Respondent in this matter is further compromised by Predatory lending, Loan Application Fraud and Serviceability Fraud.
In oral submissions, the appellant also contended, in effect, that the reason he had no evidence of the respondent's alleged 'fraud' was that the respondent had not given discovery of documents.
Disposition
The relevant principles, for present purposes, were set out by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22]:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
In relation to an application to stay orders for possession, one of the considerations which may be taken into account in assessing where the balance of convenience lies is whether the property in question has irreplaceable value such that damages would not be adequate compensation in the event of a successful appeal - see, eg, Palmer v Permanent Custodians Ltd [2009] VSCA 164 [62]; Raysun Investments Pty Ltd v Caruso [2013] WASCA 13 [15].
Having regard to the appellant's affidavit and submissions in support of the stay application referred to earlier, it is apparent that there is nothing in them which would indicate that the appellant would have any prospect of success in overturning the decision of Master Sanderson. The appellant's submission to the effect that he could provide no evidence of the alleged 'fraud' until after discovery, fails to address the central issue, which is that bare assertion was insufficient before Master Sanderson to show cause why summary judgment should not be entered. There is nothing on the face of the 'financing statement', apparently filed by Westpac pursuant to the Uniform Commercial Code, which would indicate that Westpac is deprived of standing to enforce the relevant mortgage. See also in this regard Westpac Banking Corporation v Mason [2011] NSWSC 1241; RHG Mortgage Corporation Ltd v Astolfi [2011] NSWSC 1526; McLean v Westpac Banking Corporation [2012] WASCA 152; McLean v Westpac Banking Corporation [2013] FCA 126. In relation to the appellant's intention to pursue claims for unconscionable conduct in the Federal Court of Australia, two observations should be made. The first is that the allegations remain no more than bare assertion. Secondly, it is significant that the appellant has left it until after the determination of the summary judgment application and, indeed, after the first commencement of the hearing of the stay application on 24 May 2013 and prior to the resumed hearing on 29 May 2013, to seek to initiate any proceedings in that regard. The units in question were, according to the appellant, built by him for the purpose of living in one in due course and putting the others into a superannuation fund. Although the appellant will no doubt feel disappointment if the units are sold, the sense of disappointment does not mean that, for the purposes of this application, damages would not be adequate compensation in the event of a successful appeal. Moreover, it is plain that the respondent would be good for any damages if the appellant were successful in any appeal. In addition, it is important to note that there are contracts presently on foot, which have been the subject of delay already, and there is the risk to the respondent that the contracts will be terminated if a stay were granted. In all the circumstances of this case, I would refuse the application for a stay.
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