Jensen v Bank of Queensland Ltd

[2013] NSWCA 78

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jensen v Bank of Queensland Ltd [2013] NSWCA 78

Hearing dates:

28 March 2013

Decision date:

28 March 2013

Before:

Meagher JA at [1]
Emmett JA at [2]

Decision:

Application for leave 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:

APPEAL - application for leave to appeal - dismissal of two proceedings - dismissal of four motions in third proceeding - whether attempt to re-litigate

Legislation Cited:

Civil Procedure Act 2005
Consumer Credit (New South Wales) Act 1995
Contracts Review Act 1980
Trade Practices Act 1974 (Cth)

Category:

Interlocutory applications

Parties:

Paula Jensen (First Applicant)
Helena Jensen (Second Applicant)
Bank of Queensland Limited (Respondent)

Representation:

Counsel:
No appearance (Applicant)
D J Barrett (Respondent)
Solicitors:
No appearance (Applicant)
DibbsBarker (Respondent)

File Number(s):

CA 2012/101168

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2011] NSWSC 1566

Date of Decision:

2011-12-16 00:00:00

Before:

Schmidt J

File Number(s):

2009/292316; 2011/111525; 2011/117563

Judgment

1. MEAGHER JA: I agree that leave should be refused for the reasons given by Emmett JA. The orders of the Court are that the application for leave is dismissed with costs.

1. EMMETT JA: There is before the Court an application for leave to appeal from orders made by a judge of the Court on 16 December 2011. The orders were made in three separate proceedings. In proceeding 292316 of 2009 (the possession proceeding), her Honour ordered that four separate motions be dismissed. In proceeding 111525 of 2011 (the defensive caveat proceeding), her Honour ordered that the proceeding be dismissed. Finally, her Honour ordered that proceeding 117563 of 2011 (the reopening proceeding) be dismissed.

1. All of the matters before the primary judge arose out of the possession proceeding, in which the respondent to the present application, Bank of Queensland Limited (the Bank), sought possession of a property situated at Castle Hill (the Property). Possession of the Property was sought under a mortgage in favour of the Bank to secure advances made by the Bank (the Mortgage). The present applicants were defendants in the proceeding.

1. In the possession proceeding, default judgment was entered in favour of the Bank in September 2009. In December 2009, the Sheriff took possession of the Property. In January 2010, the first applicant, Ms Paula Jensen (Ms Jensen), filed a motion seeking that the default judgment be set aside and that enforcement be stayed. On 13 May 2010, Davies J dismissed that motion. Ms Jensen then filed successive applications for leave to appeal from the orders of Davies J, each of which was dismissed. An application for special leave to appeal to the High Court of Australia was also dismissed. Subsequently, the Property was sold. Neither of the applicants is any longer registered as proprietor of the Property. The Bank is no longer mortgagee in possession of the Property.

1. On 13 October 2010, Ms Jensen filed a motion in the possession proceeding seeking leave to file a cross-claim, seeking orders that the judgments be set aside and the orders stayed, that her eviction be reversed and that personal possessions be returned. On 11 May 2011, Ms Jensen filed another motion in the possession proceeding seeking that the cross-claim be referred to mediation and that the order for possession of the Property be stayed. On 29 October 2010, Ms Jensen and the second applicant, Mrs Helena Jensen (Mrs Jensen), together with a Mr Carmelo Vescio, filed a third motion in the possession proceeding seeking possession of the Property and return of goods. Finally, on 16 May 2011, Mrs Jensen filed a fourth motion in the possession proceeding seeking leave for her to file an amended defence and that the existing orders be stayed or set aside. All of the motions filed in the possession proceeding seek to re-agitate matters that have been resolved as a result of the orders made by Davies J. For that reason, the primary judge dismissed all four motions.

1. The relief sought in the defensive caveat proceeding was an order to file a defensive caveat in respect of the Property. The primary judge dismissed the defensive caveat proceeding on the basis that the caveat would be futile because the Property has been sold. That decision was clearly correct.

1. In the reopening proceeding, commenced by summons, orders were sought seeking the reopening of the Mortgage and the loan agreement secured by it, on the basis that they were unjust, harsh, oppressive and unconscionable under the Consumer Credit (New South Wales) Act 1995, the Banking Code of Practice, the Contracts Review Act 1980 and the Trade Practices Act 1974 (Cth). On 30 May 2011, the Bank filed a motion that the reopening proceeding be dismissed. The dismissal of the reopening proceeding was in accordance with orders sought in that motion. The primary judge held that the claims in the summons were no more than an attempt to re-litigate and re-agitate the issues that had been raised before Davies J and the Court of Appeal in the possession proceeding. Her Honour also held that, even if that were not the case, it was inappropriate that the reopening proceeding continue by way of summons and that it should have been commenced by way of statement of claim. Even then, her Honour was satisfied that the litigation of those issues would be inconsistent with the dictates of s 56 of the Civil Procedure Act 2005.

1. It is clear that the summonses in the possession proceeding, as well as the defensive caveat proceeding and reopening proceeding, are simply attempts to re-litigate and re-agitate the issues that have been resolved as between the parties. It is clear that any appeal from the orders would be futile and there would therefore be no utility in granting leave to appeal. Leave should be refused.

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Decision last updated: 17 April 2013