Jensen v Bank of Queensland

[2011] NSWCA 132

Court of Appeal

New South Wales

Case Title:	Jensen v Bank of Queensland
Medium Neutral Citation:	[2011] NSWCA 132
Hearing Date(s):	6 May 2011
Decision Date:	06 May 2011
Jurisdiction:
Before:	Hodgson JA at [1], [15], [16]; McColl JA at [13]; Macfarlan JA at [14]
Decision:	(1) The notice of motion filed 25 March 2011 is dismissed with costs. (2) The notice of motion filed 4 April 2011 is dismissed with costs. (3) The summons for leave to appeal filed 4 April 2011 is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - Successive applications for leave to appeal - Whether circumstances supporting a second application shown.
Legislation Cited:	Banking Code of Conduct Consumer Credit Code
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Paula Ann Charlotte JENSEN  (applicant) BANK OF QUEENSLAND LIMITED ACN 009 656 740 (respondent)
Representation
- Counsel:	In person (applicant) C R C Newlinds SC/ D Barnett (respondent)
- Solicitors:	Self-represented (applicant) Dibbs Barker  (respondent)
File number(s):	2011/44879; 2011/108454
Decision Under Appeal
- Court / Tribunal:
- Before:	Davies J
- Date of Decision:	13 May 2010
- Citation:	Bank of Queensland Limited ACN 009 656 740 v Paula Ann Charlotte Jensen
- Court File Number(s)	2009/292316
Publication Restriction:

Judgment

1. HODGSON JA: This Court is dealing with two applications. One is a notice of motion seeking a stay of all orders against the applicant and certain other relief. The other is a summons for leave to appeal filed 4 April 2011, seeking leave to appeal from what was described as a ruling dated 24 February 2011 and the judgment of Justice Davies of 13 May 2010.

1. Before dealing with the substance of these applications, I note that the first notice of motion also seeks relief in relation to the return of personal possessions. That is not a matter that is properly before this Court. If there is a dispute with the Bank concerning personal possessions, that will have to be taken up in some other way.

1. The substance of what the Court needs to determine in these two applications is whether leave should be granted to appeal against the judgment of Justice Davies of 13 May 2010. The ruling dated 24 February 2011, to which I have referred, was the decision given in a previous application for leave to appeal from that judgment, which was refused.

1. Where there has already been refusal of one application for leave to appeal, exceptional circumstances need to be shown for leave to appeal to be granted on a second application. In my opinion those exceptional circumstances are not shown in this case.

1. The principal basis on which leave is now sought is a contention that the significant documents on which the Bank relied to obtain the relief obtained in the Court below contained forged signatures. It is put that that was a contention that was not made before, because the applicant did not have access to documents and for that reason felt unable to make that assertion. It is put, having had access to the documents, that this assertion can now be made because of apparent differences in the signatures which assure Ms Jensen that, at least in relation to her signature, the signature on the significant documents was not hers.

1. The Court has been provided with samples of the signatures of Ms Jensen and her parents, and has compared them with the signatures on the documents. In my view, the suggestion that there is a forgery does not have sufficient apparent plausibility to justify reopening the matter and giving leave to appeal. The previous assertions by Ms Jensen and her mother have been more to the effect that they could not recall signing, and it is only today that Ms Jensen has asserted that she did not sign. The plausibility of those assertions needs to be assessed, having regard to the unlikelihood that, in order to enter into an ordinary kind of mortgage on ordinary terms, the Bank employees would engage in forgery.

1. Apart from that matter, the applicant seeks to rely on alleged non-compliance with the Consumer Credit Code and Banking Code of Conduct in relation to the provision of account information. In my view, that is a matter that is not something that arises from new information that the applicant has since the previous leave application. In any event, in my view, it is not a matter that has any prospect of leading to a different result in the case.

1. This was a case where the Bank advanced over $800,000 to pay out an existing mortgage, payments under which were apparently about $7,500 per month, interest only. The subject mortgage in this case was one in which there were to be monthly payments of principal and interest of about $5,667, of which $4,900 was interest. In that sense, the mortgage would appear to be on more favourable terms.

1. The complaint is made that it was a mortgage that locked the applicants in for a lengthy period of time, and did not give them the opportunity to refinance; but any refinance of the mortgage would require monthly payments of interest in any event. There is no plausible prima facie case made out that this mortgage, considered in its terms, was in any sense unconscionable.

1. For these reasons, it seems to me that the complaint about the Consumer Credit Commission and the Banking Code of Conduct is not one which has any prospect of producing any different result.

1. The other matter relied on concerns unsatisfactory service of documents. That is a matter that has been raised before, and it is not a matter that could possibly constitute exceptional or special circumstances justifying the grant of leave to appeal on a second application. The documents were ultimately obtained. There was an appearance defending or attempting to defend the case in the Court below and, as I have said, the matter of unsatisfactory service was previously dealt with.

1. For these reasons, in my opinion both the applications I mentioned should be dismissed with costs.

1. McCOLL JA: I agree.

1. MACFARLAN JA: I agree also.

1. HODGSON JA: Those will be the orders the Court makes.

________

1. HODGSON JA: In relation to the notice of motion filed 25 March 2011 in substance seeking a stay of all orders in the High Court case, we have heard submissions from Ms Jensen concerning the substance of her case to the effect that there has been an effective secession from Australia. The Court is of the view that there is not sufficient substance in that contention to justify the staying of orders, and the Court proposes to dismiss that notice of motion also.

1. I will now specify the orders that are made:

(1) The notice of motion filed 25 March 2011 is dismissed with costs.

(2) The notice of motion filed 4 April 2011 is dismissed with costs.

(3) The summons for leave to appeal filed 4 April 2011 is dismissed with costs.

Exhibit D, namely, the licence and pension cards, is to be returned to Ms Jensen.

Exhibit C, the original mortgage document, is to be returned to the Bank.

oOo