Integrated Growth Solutions Pty Limited v Latesha Elizabeth Campbell (No 2)
[2015] NSWSC 765
•12 June 2015
Supreme Court
New South Wales
Medium Neutral Citation: Integrated Growth Solutions Pty Limited v Latesha Elizabeth Campbell (No 2) [2015] NSWSC 765 Hearing dates: 12 June 2015 Date of orders: 12 June 2015 Decision date: 12 June 2015 Jurisdiction: Equity Division - Duty List Before: Kunc J Decision: Application to set aside judgment refused
Catchwords: JUDGMENTS AND ORDERS – Amending, varying and setting aside – Setting aside judgment entered in absence of party – No issue of principle – UCPR Part 36 r 36.16(2)(b) Legislation Cited: UCPR Part 36 r 36.16(2)(b) Cases Cited: Northey v Bega Shire Council [2012] NSWCA 28 Category: Procedural and other rulings Parties: Integrated Growth Solutions Pty Limited (Plaintiff)
Latesha Elizabeth Campbell (Defendant)Representation: Counsel:
C. Robinson (Plaintiff)
Solicitors:
L. Campbell (in person)
A & J Montgomery Legal (Plaintiff)
File Number(s): 2014/84779 Publication restriction: No
EX TEMPORE Judgment
-
HIS HONOUR: This is an application brought by the defendant, Ms Campbell, by notice of motion filed 28 May 2015 to set aside a judgment entered against her by Stevenson J on 29 April 2015. That judgment was entered in favour of the plaintiff, Integrated Growth Solutions Pty Ltd ("IGS"). For the reasons which follow, Ms Campbell’s notice of motion will be dismissed with costs.
-
The evidence on the motion primarily consisted of Ms Campbell’s affidavit sworn on 28 May 2015. Ms Campbell appeared, without objection by IGS, with the assistance of her husband, Mr Helal Safi, who spoke on Ms Campbell's behalf. Mr C Robinson of Counsel appeared for IGS.
-
In addition to Ms Campbell's affidavit, Mr Safi provided to the Court what I might, without any disrespect, describe as an undifferentiated bundle of material comprising trust account statements, affidavits, email and other correspondence which he said was material which, if the judgment were to be set aside, was evidence Ms Campbell would wish the Court to take into account on any new hearing of the proceedings against her. Mr Safi also suggested that I should review the transcript of what occurred before Stevenson J on 29 April 2015. Mr Robinson did not object to my doing so.
-
Furthermore, I indicated to the parties that, unless anyone objected, I would also review and take into account the entirety of the material on the Court file in order, as best possible, to understand the history of these proceedings. Neither party objected to that course and I have reviewed the Court’s file over the lunch adjournment.
The facts
-
Ms Campbell was the registered proprietor of land at Bass Hill. That land was subject to a first mortgage to National Australia Bank. IGS claimed to be the unregistered second mortgagee of Ms Campbell's land. IGS said that its mortgage secured advances made by it to Ms Campbell or at her direction between 6 and 12 June 2012 pursuant to a deed of loan and guarantee (the "deed"). IGS protected its interest by lodging a caveat against the title of Ms Campbell's land.
-
These proceedings were commenced by a summons filed on 20 March 2014 which sought orders for the extension of the caveat over Ms Campbell's land. As the proceedings progressed, that summons was replaced by an amended summons which, among other things, sought judgment against Ms Campbell in reliance on the deed.
-
From shortly after the proceedings were commenced Ms Campbell was represented by Macquarie Lawyers of Burwood, principally by Ms L Belovic, solicitor.
-
As matters developed, it became apparent that Ms Campbell's only defence to the claim against her was an allegation on her part that she had not signed the deed. That case was crystallised by the filing of a cross-summons on 4 July 2014 which claimed:
1. A declaration that the cross defendant has no estate or interest in [Ms Campbell's Bass Hill land] pursuant to the charging clause within the loan agreement and mortgage documents allegedly entered into by the cross-claimant on or about 6 June 2012 as pleaded in the cross-defendant's summons by reason of the facts that the cross-claimant was not party to, nor signed the loan agreement and mortgage documents, and they have no binding effect on the cross-claimant.
-
The case management of the proceedings was largely undertaken by Brereton J. When the matter was before his Honour for directions on 23 June 2014 Ms Campbell was represented by Mr Walton of counsel. Among other things, his Honour directed:
Extend to 30 June 2014 the time for the defendant to file a cross-claim substantially in the form initialled by me, dated this day and placed with the papers.
Grant leave to both parties to adduce the evidence of one forensic handwriting expert each as to the authenticity of the signatures affixed on the mortgage and other security documentation the subject of the proceedings...
Direct that each party serve any expert report upon which it intends to rely by 21 July 2014.
-
The proceedings were again before Brereton J on 28 July 2014. On that occasion Ms Campbell was represented by Ms Belovic. Among other things, his Honour directed:
2. Time for each party to file and serve an expert forensic handwriting report be extended to 13 October 2014.
-
Further directions occurred before Brereton J on 10 October 2014. Again, Ms Campbell was represented by Ms Belovic. Among other things his Honour directed:
3. Time for to each party to file and serve an expert handwriting report be extended to 15 December 2014.
-
The proceedings were next before Brereton J on 18 December 2014, when Ms Campbell was represented by Mr J Chen, solicitor. At that time his Honour fixed the proceedings for hearing on 29 April 2015. The pre-trial directions which his Honour made on that day included:
2. No party be entitled to rely at the hearing on any evidence that has not yet been served, provided that either party may file and serve an expert handwriting report by 15 February 2014 and rely on such report if so filed.
-
On 17 February 2015 IGS filed an affidavit of Christopher Ian Anderson sworn on 16 February 2015 attaching his expert report. Mr Anderson is a forensic document examiner who is well known to the Court as one of the leading experts in that field.
-
The conclusion of Mr Anderson's report was:
Conclusion
21. On the material available and in consideration of all the factors and limitations present in this examination, I am of the opinion that there is very strong support that the writer of the L Campbell signatures on the specimen document referred to in item 21 and the L Campbell signatures on the originals of the specimen documents referred to in items 9 to 20 and 22 to 23, 25 wrote the L Campbell signatures on questioned of the documents referred to items 1 to 8 compared to the support for the alternate proposition that another wrote the questioned signatures.
22. This is a level two conclusion where there are a sufficient number of significant similarities and no significant differences which strongly support that the signatures have been written by the same person. However, the limiting factor being the reproduced nature of the majority of specimen signatures which has slightly lessened the level of "practical certainty" thus raising the possibility, albeit very remote, of another writer having written the questioned signatures, giving very limited support for the occurrence of the alternate proposition, despite there being no evidence of this occurring.
-
The proceedings were again before Brereton J on 3 March 2015, at which time his Honour confirmed the hearing fixed for 29 April 2015. At that directions hearing Ms Campbell was again represented by Mr J Chen, solicitor.
-
On 25 March 2015 Macquarie Lawyers filed a notice of ceasing to act, having served their notice of intention to do so on Ms Campbell on 25 February 2015.
-
On 29 April 2015 the proceedings came on for hearing before Stevenson J. An examination of the transcript of the hearing before his Honour discloses that, the proceedings having commenced (I infer) at 10am, Ms Campbell was called outside the courtroom and there was no appearance on her behalf.
-
In her affidavit of 28 May 2015 relied upon by Ms Campbell before me, she says:
8. On 29 April 2015 I went to Legal Aid at 8.30am to apply for Legal Aid. I was not attended to until 10.30am. During this period I sent an e-mail message to Judge Stevenson's clerk and Montgomery Lawyers to explain my situation at 9.30am in Annexure A. After speaking with Legal Aid and putting in my application, I went to Court between 11.30am and 2pm.
9. When I arrived at the Supreme Court, I was told the matter was heard already.
10. I was able to see Judge Stevenson. I told him my story and he told me that the only thing to do is lodge a notice of motion and this affidavit to set aside the decision.
-
I have reviewed the transcript of what occurred when Ms Campbell appeared before Stevenson J. His Honour’s chambers had not received the email Ms Campbell says she had sent. The transcript discloses that she provided a copy of her legal aid application to his Honour. Ms Campbell's affidavit correctly summarises what she was told by Stevenson J as to the course of action open to her if she wished to do something about the judgment that had been entered against her earlier that day.
Consideration
-
Mr Robinson fairly accepted that the Court had power to set aside the judgment entered against Ms Campbell by Stevenson J pursuant to UCPR Part 36, Rule 36.16(2)(b), which provides:
(2) the Court may set aside or vary a judgment or order after it has been entered if:
…
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
…
-
Mr Robinson also helpfully drew my attention to the judgment of Barrett JA in Northey v Bega Shire Council [2012] NSWCA 28, where his Honour summarised the legal principles relevant to an application of this kind:
12. I turn, therefore, to rule 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called "an elementary rule of justice".
13. It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand.
14. In arguing that a court should set aside an order that was regularly made, an applicant under rule 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3:
It may be assumed, without deciding, that the Court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard.
15. This passage enjoins "great caution" in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the Court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard.
16. The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale [1942] NSWStRp 31; (1942) 42 SR NSW 239 at 243-4:
The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere."
17. Examples of cases in which such a factor indicative of injustice has been found to be at work are:
(a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131;
(b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that "nothing would happen" while negotiations continued: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755;
(c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and
(d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404.
…
29. Against the background of this evidence, I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the perfected order to stand.
-
I gratefully adopt his Honour's statement of the principles governing the exercise of the Court's discretion under r 36.16(2)(b).
-
To adopt the language of Barrett JA, the Court is not satisfied that the evidence adduced by Ms Campbell on this application establishes any additional factor over and above the fact that she was absent when the judgment was entered against her that makes it unjust for the perfected judgment to stand. In particular, Ms Campbell has failed to satisfy the Court that she had evidence or has any prospect of obtaining evidence in support of her case that she did not sign the deed and related documents. There are six reasons for this conclusion.
-
First, Ms Campbell had every opportunity over a period of many months to file handwriting evidence in support of her contention that the signature on the deed and related documents was not hers. No evidence was led by Ms Campbell on this application as to why that was not done. From the Bar table, Mr Safi made a number of allegations about difficulties which he and Ms Campbell had had with their solicitors, including apparently in relation to the payment of fees.
-
Mr Safi also said that he and Ms Campbell were not informed by the solicitors of the need to file a handwriting expert's report or that the matter had been fixed for hearing. I am not prepared to accept those statements from the Bar table. Having regard to the Court's own records of proceedings which demonstrate that either a solicitor or barrister representing Ms Campbell was present at every relevant directions hearing, I am not prepared to make a finding on the basis of Mr Safi's assertions from the Bar table of what would be serious derelictions on the part of Ms Campbell’s then lawyers.
-
Second, the Court takes into account the very strong opinion of Mr Anderson as to the likelihood that the signatures on the deed and related documents were Ms Campbell's.
-
Third, there has been no explanation for the delay between when the judgment was entered on 29 April 2015 (and when Stevenson J clearly indicated to Ms Campbell that the appropriate course was for her to file a notice of motion to have the judgment set aside) and the filing of Ms Campbell's motion on 28 May 2015.
-
Fourth, there is no evidence of what has happened since 29 April 2015 in relation to the progress of her application for legal aid. The evidence rises no higher than the statement in her affidavit of 28 May 2015 that "Legal Aid needs more documents to process my application. If I’m given the opportunity, I will be represented by Legal Aid". No correspondence with Legal Aid at all, let alone correspondence giving any indication of the likely success of her application, has been provided to the Court by Ms Campbell.
-
Fifth, Mr Safi informed me from the Bar table that he and Ms Campbell were now in a position to retain a lawyer and a handwriting expert. However, again, there is no evidence in support of that or that they have done anything towards retaining anyone, for example, even obtaining a short form preliminary report from a handwriting expert that might have suggested that there was a proper basis for traversing the strong conclusions expressed by Mr Anderson in his report.
-
Sixth, what I referred to above as the undifferentiated bundle of documents neither explains the failure to obtain any handwriting evidence earlier nor do any of those documents appear to falsify in any respect IGS’ entitlement to the judgment obtained from Stevenson J on 29 April 2015. Nor is it suggested that any of the material in the bundle of documents was not available for submission to and consideration by Ms Campbell's lawyers in the course of preparation for the hearing. In other words, none of those documents is a document of which it could be said that it provided a basis for supporting Ms Campbell's contention that the signatures on the deed and related documents were not hers or that any such document was only recently discovered.
-
For these reasons, the Court will dismiss Ms Campbell's notice of motion.
-
The orders of the Court are:
The defendant’s notice of motion filed 28 May 2015 is dismissed.
The defendant is to pay the plaintiff's costs of the motion.
**********
Decision last updated: 16 June 2015
3
9
1