Gheorghiu v Perpetual Trustees Victoria Limited

[2008] HCATrans 5

[2008] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 2007

B e t w e e n -

CHRISTIAN MIRCEA NICULAE GHEORGHIU

Applicant

and

PERPETUAL TRUSTEES VICTORIA LIMITED

Respondent

Application for stay

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 JANUARY 2008, AT 11.55 AM

Copyright in the High Court of Australia

MR C. GHEORGHIU appeared in person.

MS C.F. GOBBO:   May it please the Court, I appear for the respondent.  (instructed by Russell Kennedy)

HIS HONOUR:   Now, Mr Gheorghiu, firstly, do I pronounce your name correctly?

MR GHEORGHIU:   It is all right. 

HIS HONOUR:   There is nothing worse than having your name mispronounced.  So you are appearing on your own behalf, are you, sir?

MR GHEORGHIU:   Yes, your Honour.

HIS HONOUR:   Yes.  Perhaps you could be good enough to sit at the Bar table.  No, come forward and sit at the table, would you, Mr Gheorghiu.  Now, Ms Gobbo, you are appearing for Perpetual Trustees, is that right?

MS GOBBO:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Now, this is your application, Mr Gheorghiu, for a stay of the orders that have now already been carried into execution, is that not right?

MR GHEORGHIU:   Yes, your Honour.

HIS HONOUR:   What then am I to do?  What do you say I should do?  Perhaps if you can be good enough to come to the microphone and that will assist us.

MR GHEORGHIU:   Your Honour, I am in a situation which I am, as a parent and you will ask maybe in your mind what he is talking about.  I am an architect and when I design something it is a baby of mine.  It is my creation.  I dream about my house.  I had it in my mind.  I put it on a paper and like you see your child growing, I build that house with my hands and I saw my baby growing. 

Because I had no chance to have a proper representation in the court and my initial lawyer did not know much about the court procedure, I end up in the Supreme Court with a case which was no case, was no defence.  But that time I did not know much about the law because I am just an architect, but I could see from the judge’s opinion and question that they had already in their mind that something is wrong here, “But you, Mr Gheorghiu, did not have a defence, did not put” and they ask me, “What are you telling about this company Perpetual Trustees Limited and Perpetual Trustee Victoria?  You are saying that this one is the same company,” and they were saying to me, “You are not a lawyer to understand that this is not such a thing.  They are completely two different company”. 

Each judge, starting with Master Daly, ask the other party, is any connection between these two contracts, and every time they commit perjury before the court saying that – if you allow me to look in my notes I will repeat exactly what was his answer each time.

HIS HONOUR:   Take a moment to find what you need to find.  Just sit down, take a moment, find what you want to find.

MR GHEORGHIU:   Anyway, I can remember from memory because I am not able maybe to find – you must have in a file there.  The first answer, like I said, was “I do not know.  I do not think so”.  The second time was second judge on appeal.  He posed the same question to them and their answer was exactly the same, that they do not know what I am talking about.  Finally, when was my last appeal when I submit new evidence which I could find on the internet, which I could prove under no doubt, it was black and white that actually these two companies, it is one and the same.  Not only this, but they know about each other and they operate under the one licence.  The counsellor said to the judge that “It is too late for Mr Gheorghiu to rely on this evidence which were already there but he did not know how to look them or to find them”.  Obviously the court accept their point as a technicality and I lost.

Now, what has happened here is not just with me, your Honour.  Like me are maybe thousand and thousands of family which are destroyed by a big corporation using the law.  Not only this, they have got the clause, they have got a contract which is called “Loan Mortgage Origination Agreement”.  In this contract, which is made between the finance company and the originator, they are saying actually under this point they succeed to take the properties and nobody so far there to challenge because it is a law already.  If we make a piece of paper and we say that, “Look, I know you.  You work for me, but if you do something wrong we have nothing to do”.  It is like I am a master and I have got a servant and I said to him, “Go and kill that person, take his money and bring it to me” and obviously my servant, because he is my servant and I am the master, he goes and kills the person and brings me the money.  If the police come along and find him, obviously what is going to happen?  “No, no.  I am the master.  I had nothing to do with this”.   No, the master is more responsible for the crime because he was the one which masterminds the crime, not the hand.  The hand was just the hand which did the final task.  This is what has happened in this loan, in this agreement.

Now, I think that it is once for all the justice and this is my chance to go before the High Court to be able to prove once for all how they master and steal property.  I make an appeal to the High Court.  I do not have the date yet.  I put the submission before you to put a stop on them to sell under the Judiciary Act 1903 paragraph 77U and 77B. This was done before the courts – not being a lawyer, and I do not think that this is a point, because everyone knows there were a lot of cases which were put before the courts based on this actually – Judiciary Act and they won, they succeed. 

I do not think it is necessary to enumerate all of them, but just putting that this is why I put this submission because if they sell the property, which they already did, they do not care. They do not care about the High Court. They do not care about the Constitution. They do not care about anything. They have got their own law. They lie before the court and when the last time I had evidence which proved what all along they are denying, you know what was answer when the judge asked the same question, the last one? They said, “We get the instruction as we go”. Then because they are lawyer, they are allowed to cheat and lie. No.

In my submission, which I put before you, you will say, “What am I going to do now?”  They sold the property.  The house is gone.  It is the same thing if you ask me “They took your kid away”.  I cannot do anything.  If a parent lose a kid, I think that it is God’s right to go to any courts in this world to get this kid back, because it is his child.  It is my child.  I work for that money and because I was cheated and I now I can prove it.  I learned a bit more about the law, about Australian law.  I am not a lawyer.  I know the European law.  It is no problem because I come from there.  But now I learn, I know, and I am sure that I can prove once for all how this company are stealing property not just from me. 

Look in the TV.  Every maybe week on A Current Affair you will see a new family which is evacuated from their home.  Why?  Because when the application was filled not by them, by their representative, they put false income.  The same thing happened with me.  I said to them, “Look, I do not have”.  Even my accountant.....says that, “Look, Mr Gheorghiu does not have this income, $700,000, $400,000 a year”.  Why I need money from them if I have such an account.

           

Not only this, but their representative send letter to my accountant to cover their side when all this hits the fan – I am sorry for expression – and ask my accountant to remove my wife, my ex-wife now, and my kids from the trust to make sure that they cannot have anything to be fear of, and I got this in black and white.  But the court said, “Mr Gheorghiu, it is too late now.  Why did you not bring this evidence before?”  “Why, your Honour?  Because I was relying on a justice”.  I was relying on a lawyer which I paid money initially, but he was incompetent.  Slowly, slowly I realised why should I be punished?  Why should I be punished?  Why my life, it is – because my life is gone. 

You look at the man 58 years old.  I came to this country with great expectation.  I had 100.....in my pocket.  I had my son which was four and a half years old.  The little one was born two months later.  I had to work to dig foundation as an architect and from where I come, I am telling you, I was one of the greatest in Romania.  I did all the work.  I suffer.  I said that this is my lucky country and I work hard for this.  To come to an end after 26 years because I was so naïve to accept their representative – how you say in English? – offer that, “Look, you come to us.  Leave alone the other lender.  You come to us.  Even if we ask you higher interest, even if you have to pay a penalty to the other lender to come to us, but we will sell you a property through our investor.  Do a simple mathematic.  A couple of months, divide by eight units is nothing.  You are in a front”. 

I accepted because it made sense and came from someone which had credibility.  He said to me, “I am the owner of Interstar.  I own Interstar.  I put my own money in Interstar”.  I did not know that he was lying, but, in reality, I checked that he had money in Interstar, but he was a manager of the Interstar.  He was employed by Challenger, which – Challenger is Kerry Packer’s company, bank, let us put it like this.  It is ahead which he creates a hundred subsidy, different names, and they work together and they train the originator together how to trick, how to lie and how to get property, but not any property.  Only property which has got a title, because if I am going – let us say I want to do a development, go to the Challengers and, “Look, I want money to do this development”, they is not going to give.  Why?  Because they do not have the title.  And until the title it was issue, they did not settle with me.

Now, coming back to the question, they took my property.  It is like someone will come and take your son away, boy, child.  You will ask yourself, “What can I do?” and I am sure that anyone with right mind will fight until the last straw to get his son back.  You will say, “We cannot because the new owner, he paid – he is an innocent man.  He did not know about this.  He came along, paid his money, paid his duty, his stamp and everything, and he moving in your property”.  He is wrong, because before the new owner of my house bought the property, I went myself to him and – first I called him, because I know who it was.  He came before to talk to me.  I said to him, “Look, this is the situation.  You are aware that we have got the case in the High Court?”  I told him everything.  He said, “I will discuss with my lawyer”.  Excuse me, sir, just a second.

Then he was aware about the situation.  But he said to me, “Look, I have got insurance from the Perpetual Trustee.  They are the biggest that actually – you lost and I have nothing more to discuss with you.  I am

buying the property anyway”.  But in order to buy the property from the date which he put the deposit, it was a long, long delay because they could not settle straight away.  But finally when actually I put the submission two days later or four days later or three days later, I think, they did the final settlement.  Then they say, “We do not know, it is not us”.  The lawyer, which we did – Perpetual Trustee, it is another, because I called them and asked.  I said, “Why?”  Said, “It is another department which actually settle your property.  It is nothing to do with us”.  It is like everyone try to say, “Look, it is not me, it is him”.  

Your question today – and I know is one of the most difficult one.  Like Master Daly said to me before she made the judgment, she said, “Mr Gheorghiu, it is one of the hardest decisions in my life to give it to you”, because she extend the decision for about a month and she said, “Try to settle somehow”.  She was a lady.  She understood what the situation, but because of the rules of the court and technicality and my case which was, I accept, was nothing, she could not see any other way.

HIS HONOUR:   Mr Gheorghiu, I have no doubt of the stakes that are in play here.  I have no doubt of the importance of this matter to you, not a shred of doubt of how important this is to you.  What is it that you say I should do?

MR GHEORGHIU:   You should follow your conscience, your Honour.

HIS HONOUR:   Yes, that too I accept.  Yes.  Is there anything else you would point to that I can or should do?

MR GHEORGHIU:   Your Honour, even at this moment when I could see how the justice works, I believe still in justice, no matter what and I will believe in justice until the last of my days.  I know that if I lose today or tomorrow, I know there is another court, higher court than this one, which I will go and there I will win.  To go there I have to lose here today.  Then I will leave up to your conscience.  If you believe that I am wrong, I am already punished.  The last ‑ ‑ ‑

HIS HONOUR:   My obligation, Mr Gheorghiu, is to do justice according to law.  That is my obligation.

MR GHEORGHIU:   Your duty is to do justice according to the law.  I think that you are going to give the right verdict today.

HIS HONOUR:   Yes, thank you, Mr Gheorghiu.

MR GHEORGHIU:   Thank you.

HIS HONOUR:   On 3 July 2007 in proceedings between the present applicant, Christian Gheorghiu, and the respondent, Perpetual Trustees Victoria Limited, the Court of Appeal of the Supreme Court of Victoria, President Maxwell and Justice Neave, dismissed an application by Mr Gheorghiu seeking leave to reopen an earlier application he had made for extension of time in which to serve notice of appeal.  The original application for extension of time in which to serve notice of appeal had been refused by the Court of Appeal, Justices Ashley and Neave, on 27 April 2007. 

The proceedings in which these applications were made arose out of the enforcement by Perpetual Trustees Victoria Limited of its rights as mortgagee over a property at Black Rock.  The property at Black Rock had been designed and built by Mr Gheorghiu, an architect, and it is a property of which he is proud and to which he feels considerable attachment.

In the Supreme Court of Victoria Mr Gheorghiu had contended that the loan agreement, which the mortgage secured, had been made by him as a result of misrepresentations and promises made to him by Claudio Zanelli who, together with a Mr Brett Haywood, had conducted business as Gladiator Finance.  Gladiator Finance was, so Mr Gheorghiu had alleged, a mortgage originator that had acted for Perpetual Trustees Victoria Limited and that Mr Gheorghiu further alleged Mr Zanelli had acted in the lender’s interest, not in his own. 

As a result of the orders made by President Maxwell and Justice Neave on 3 July 2007, Mr Gheorghiu’s attempts to appeal against the judgment that had been given at first instance in the Supreme Court of Victoria came to an end.

On 23 July 2007, Mr Gheorghiu filed application for special leave to appeal to this Court against the orders of the Court of Appeal of Victoria made on 3 July 2007. 

Some months later, in October 2007, Mr Gheorghiu applied for a stay of execution of the judgment of the Supreme Court of Victoria that he had sought leave to appeal in respect of to the Court of Appeal of Victoria.  An application for stay was necessary because, even if special leave to appeal had by then been granted, which of course it had not, the rules of court provide in rule 42.09 that:

Unless the Court or a Justice otherwise orders, an appeal shall not operate as a stay of proceedings.

The Court has, of course, inherent jurisdiction to grant a stay of proceedings to preserve the subject matter of litigation.  See, for example, Jennings Constructions Limited v Burgundy Royale Investments Proprietary Limited (No. 1) (1986) 161 CLR 681. But, as Justice Brennan pointed out in the Burgundy Royale Case, see 161 CLR 681 at 684:

A stay to preserve the subject‑matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

That is because, as Justice Brennan went on to point out:

If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. 

In the meantime, the respondent, Perpetual Trustees, has sold and completed the sale of the property in question.  The order and judgment which Mr Gheorghiu would seek now to intercept has been carried into execution.  That being so, it is not possible to fashion an order that would achieve the result which Mr Gheorghiu would desire.

When pressed to identify the way in which an order might be framed, Mr Gheorghiu, not unsurprisingly, could not identify a useful or effective form of order.  The orders of the sort which Mr Gheorghiu would have had made under his summons should not, therefore, be granted.  There would be no utility in granting those orders.  His application by summons of 22 October 2007 is dismissed. 

The appropriate order to make, disposing of the costs of that summons, would appear to me, subject to what counsel for the respondent may say, to be to make those costs costs in the application. 

Do you wish to be heard against that, Ms Gobbo?

MS GOBBO:   No, your Honour.

HIS HONOUR:   The application is dismissed.  The costs of the application by summons of 22 October 2007 are costs in the application for special leave.

AT 12.25 PM THE MATTER WAS CONCLUDED