Jensen v Bank of Queensland

[2013] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation:

Jensen v Bank of Queensland [2013] NSWSC 1310

Hearing dates:

5 July 2013

Decision date:

05 July 2013

Jurisdiction:

Common Law

Before:

Adams J

Decision:

In respect of the notice of motion filed by the Bank of Queensland:

1. The notice of motion is adjourned.

2. The bank is to file and serve written submissions in support of its motion on or before the close of business on 12 July 2013. Service may be effected by email addressed to Ms Jensen at [email protected]

3. Noting the submissions of Ms Paula Jensen of 12 April 2013, any further submissions are to be filed and served on or before 2 August 2013. Service may be effected by email addressed to [email protected]

4. The matter is to proceed by way of submissions with no further hearing.

In respect of the notice of motion filed by Helena Jensen:

5. The first order is not opposed and accordingly Helena Jensen is joined as a second plaintiff to the statement of claim.

6. The second, third and fourth orders are refused.

Catchwords:

PRACTICE AND PROCEDURE - notice of seeking substantive relief - inappropriate to proceed by motion - res judicata

Legislation Cited:

Consumer Credit Code
Banking Code of Conduct

Cases Cited:

Jensen v Bank of Queensland Ltd [2011] NSWCA 36
Jensen v Bank of Queensland Ltd [2011] HCASL 92
Jensen v Bank of Queensland [2011] NSWCA 132
Bank of Queensland Ltd v Jensen [2011] NSWSC 1566

Category:

Interlocutory applications

Parties:

Paula Ann-Charlotte Jensen (First Plaintiff)
Helena Jensen (Second Plaintiff)
Bank of Queensland Ltd (Defendant)

Representation:

Counsel:
D J Barnett (Defendant)
Solicitors:
Self-represented (First Plaintiff)
Self-represented (Second Defendant)
Dibbs Barker (Defendant)

File Number(s):

2011/135313

Judgment

1. The proceedings in respect of which the notice of motion was brought by Helena Jensen were commenced by statement of claim which specified Paula Ann-Charlotte Jensen as plaintiff and the Bank of Queensland Limited as defendant. When the matter was called on, there was no appearance by Helena Jensen. There was no opposition to her being joined as a plaintiff to the proceedings and, accordingly, I made an order to that effect. Helena Jensen also sought -

2. Return of our property as the claim of the other party was without any legal basis.

3. Reversal of the fraudulent sale of the property/territory by the Defendant as per s 30 of the Real Property Act.

4. Payment of rent for the time we have been illegally deprived of our property/territory.

1. The balance of the relief sought was opposed by the defendant as plainly untenable. I agreed with this submission and refused those orders. These are the reasons for doing so.

Background

1. Pursuant to a possession proceeding in this Court, the Bank of Queensland sought possession of a property at Castle Hill in respect of advances secured on that property. The defendants in the proceedings were Paula Jensen, Paul Jensen and Helena Jensen. On 29 September 2009 the Bank obtained default judgment and, on 3 December 2009, possession of the property. The property was sold by auction on 19 June 2010, which sale was completed on 25 May 2011. On 15 January 2010 Ms Paula Jensen filed a notice of motion seeking, amongst other things, the setting aside of the default judgment. On 13 May 2010 Davies J dealt with the substantive issues raised in the notice of motion, in particular rejecting the application to set aside the default judgment and an application for pro bono legal assistance. On 24 February 2011 Beazley JA (as her Honour then was) and Macfarlan JA heard an application for leave to appeal from this judgment and refused leave. Their Honours concluded that there was no evidence to support the allegation in effect that the debt was claimed by the Bank because of its own fraud. The second matter relied on was the contention that they were not subject to the jurisdiction of this Court despite the property which is the subject of the proceedings being registered and situated within the State of New South Wales. Not surprisingly this argument was also rejected. The third matter raised concerned service of the initiating process, which the Court of Appeal concluded was valid. The Court held that the prospects of success of an appeal were minimal and thus refused leave to appeal: Jensen v Bank of Queensland Ltd [2011] NSWCA 36. On 7 June 2011 the High Court of Australia dismissed an application for special leave to appeal: Jensen v Bank of Queensland Ltd [2011] HCASL 92.

1. On 4 April 2011 Paula Jensen filed a further summons in the Court of Appeal seeking leave to appeal from the orders of Davies J. Leave was refused on 6 May 2011: Jensen v Bank of Queensland [2011] NSWCA 132. The principal ground relied on by the applicant was a contention that a significant document upon which the Bank relied to obtain judgment contained forged signatures, this not having been earlier raised because, it was contended, the applicant did not have access to the documents and thus felt unable to make the allegation. The court concluded that the suggestion that there was a forgery "does not have sufficient apparent plausibility to justify reopening the matter". The applicant also sought to rely on alleged non-compliance with the Consumer Credit Code and Banking Code of Conduct but this, also, was not accepted as having any prospect of leading to a different outcome in the case. Further motions and summonses were brought by Paula and Helena Jensen, which were heard and dismissed by Schmidt J on 16 December 2011: Bank of Queensland Ltd v Jensen [2011] NSWSC 1566. It is not necessary for present purposes to do more than note that her Honour said (at [28]) that -

"none of the many claims which Ms Jensen now seeks to advance by way of cross-claim, either for damages and compensation for personal injury; or in defamation; or for restitution to her former position as a registered proprietor of the property; the stay of the Bank's actions and the setting aside of all judgments made against [her and the other defendants], may be permitted to be pursued".

1. The Bank of Queensland also sought orders by notice of motion against the then plaintiff, but now both plaintiffs, for summary judgment or, in the alternative striking out a number of paragraphs of the statement of claim, setting aside a notice to produce and costs. Paula Ann-Charlotte Jensen had communicated with Court that she was too ill to attend, supported by a report from her doctor. In the circumstances, I ordered that the matter proceed by written submissions.

Conclusion

1. It is apparent that the orders sought by prayers two, three and four in the motion have already been decided and cannot now be re-litigated. At all events, substantive orders of this kind cannot be sought by way of notice of motion.

1. The following orders were made -

In respect of the notice of motion filed by the Bank of Queensland:

1. The notice of motion is adjourned.

2. The bank is to file and serve written submissions in support of its motion on or before the close of business on 12 July 2013. Service may be effected by email addressed to Ms Jensen at [email protected]

3. Noting the submissions of Ms Paula Jensen of 12 April 2013, any further submissions are to be filed and served on or before 2 August 2013. Service may be effected by email addressed to [email protected]

4. The matter is to proceed by way of submissions with no further hearing.

In respect of the notice of motion filed by Helena Jensen:

5. The first order is not opposed and accordingly Helena Jensen is joined as a second plaintiff to the statement of claim.

6. The second, third and fourth orders are refused.

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