Kozisek v Australia and New Zealand Banking Group Limited
[2019] WASCA 71
•9 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KOZISEK -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2019] WASCA 71
CORAM: MURPHY JA
BEECH JA
HEARD: 24 APRIL 2019
DELIVERED : 24 APRIL 2019
PUBLISHED : 9 MAY 2019
FILE NO/S: CACV 104 of 2018
BETWEEN: BENJAMIN ARTHUR TREVELYAN KOZISEK
CHERYL ANNE KOZISEK
Appellants
AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
First Respondent
BLUECOVE NOMINEES PTY LTD IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE B&C KOZISEK INVESTMENT TRUST
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
File Number : CIV 1979 of 2018
Catchwords:
Practice and procedure - Appeals - Whether any ground of appeal has a reasonable prospect of succeeding
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)
Result:
Oral application to transfer the matter to the Federal Court of Australia dismissed
Oral application to adjourn the registrar's notice to attend dated 27 March 2019 dismissed
Appeal dismissed
Appellants pay the first respondent's costs of the appeal to be assessed if not agreed
Category: B
Representation:
Counsel:
| Appellants | : | In person |
| First Respondent | : | J R Shepherd |
| Second Respondent | : | No appearance |
Solicitors:
| Appellants | : | In person |
| First Respondent | : | HWL Ebsworth Lawyers |
| Second Respondent | : | No appearance |
Case(s) referred to in decision(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
House v The King [1936] HCA 40; (1936) 55 CLR 499
O'Connell v The State of Western Australia [2012] WASCA 96
Shaw v McGinty [2006] WASCA 231
REASONS OF THE COURT:
Introduction
This matter came to hearing on 24 April 2019 by way of a registrar's notice, dated 27 March 2019, for the appellants (Mr and Mrs Kozisek) to show cause as to why the appeal should not be dismissed pursuant to rule 43(2)(g)(i) and/or 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).[1]
[1] Rule 43(2)(g)(i) of the Rules provides, in effect, that the court may dismiss the appeal if none of the grounds of appeal has a reasonable prospect of succeeding, and r 43(2)(g)(ii) provides, in effect, that the court may dismiss the appeal if the appellant has not obeyed the Rules or any order made under them.
Mr and Mrs Kozisek appealed against the orders of Master Sanderson made on 17 October 2018, granting the first respondent's (the Bank's) application dated 13 August 2018 for summary judgment against Mr and Mrs Kozisek:[2]
[2] See also the transcript of proceedings dated 17 October 2018 in the primary proceedings.
1.Within 60 days of judgment, [Mr and Mrs Kozisek] deliver up to the [Bank] vacant possession of all of [certain] land located at:
(a)[Bunbury] in the State of Western Australia … and
(b)[Withers] in the State of Western Australia ...
2.[Mr and Mrs Kozisek] pay to the [Bank] the sum of $982,261.82[3] being the amount outstanding under the Consumer Loan Agreements, Guarantee and the Mortgages together with interest continuing after judgment at the rate of $147.30 per day from Judgment until payment in full.
3.[Mr and Mrs Kozisek] pay to the [Bank] the [Bank's] costs of the action, including the costs of the application, on a full indemnity basis.
4.The application to set aside the default judgment [against the second respondent, Bluecove Nominees Pty Ltd (Bluecove)] is dismissed.
[3] A breakdown of these figures is contained in the affidavit of Cassandra Michelle Guy sworn 16 October 2018 in the primary proceedings.
At the conclusion of the hearing, we made the following orders:
1.Mr and Mrs Kozisek's oral application to transfer the matter to the Federal Court of Australia is dismissed.
2.Mr and Mrs Kozisek's oral application to adjourn the registrar's notice to attend dated 27 March 2019 is dismissed.
3.The appeal is dismissed.
4.The appellants pay the first respondent's costs of the appeal to be assessed if not agreed.
We said that we would provide written reasons. These are our reasons.
Background
The materials before the master indicate the following.[4]
[4] This background is drawn from the writ of summons indorsed with the statement of claim filed 11 June 2018, and the affidavit of Sean Yeoh in support of the application for summary judgment filed 13 August 2018 in CIV 1979 of 2018.
Mr and Mrs Kozisek are the registered proprietors of certain property in Bunbury and Withers (collectively, Properties). Mr Kozisek is the sole director of Bluecove.
On or about 4 October 2013, Mr and Mrs Kozisek entered into loan agreements with the Bank in relation to a residential investment loan, and on 20 May 2014 with the Bank in relation to a supplementary 'second' loan (collectively, the Consumer Loan Agreements). Pursuant to the Consumer Loan Agreements, Mr and Mrs Kozisek agreed to repay certain loan amounts plus interest each month.
On or about 21 September 2015, Bluecove entered into a loan agreement with the Bank (Business Loan Agreement).
The money owing under the Consumer Loan Agreements was secured by a first registered mortgage granted by Mr and Mrs Kozisek to the Bank over each of the Properties (collectively, Mortgages).
By a deed of guarantee dated 19 September 2015 between Mr and Mrs Kozisek and the Bank (Guarantee), Mr and Mrs Kozisek, amongst other things, guaranteed the payment by Bluecove of all money owing to the Bank under the Business Loan Agreement and secured all money owing under the Business Loan Agreement by the Mortgages.
Mr and Mrs Kozisek defaulted on the Consumer Loan Agreements and the Bluecove defaulted on the Business Loan Agreement. Mr and Mrs Kozisek became liable for the sums outstanding on the Business Loan accounts pursuant to the Guarantee.
By two written notices dated 19 April 2018, the Bank gave notice to Mr and Mrs Kozisek and Bluecove that they were in default. Mr and Mrs Kozisek failed to rectify the default.
The bank subsequently commenced the primary proceedings.
The primary proceedings
On 11 June 2018, the Bank filed a writ of summons indorsed with a statement of claim, claiming:
1.Against Mr and Mrs Kozisek, possession of the Properties, the amount outstanding under the Consumer Loan Agreements and Guarantee, interest, and costs on a full indemnity basis pursuant to the Mortgages and Guarantee.
2.Against Bluecove, the amount outstanding under the Business Loan Agreement, and costs on a full indemnity basis pursuant to the Business Loan Agreement.
On 22 June 2018, Mrs Kozisek filed a memorandum of appearance. No appearance was filed by Bluecove.
On or around 6 July 2018, Mr and Mrs Kozisek faxed a defence and counterclaim to the court.
A case management conference was listed for 20 July 2018.
On 16 and 17 July 2018, Mrs Kozisek wrote to the associate to Registrar Davies advising that Mr and Mrs Kozisek had not received any stamped defence and counterclaim from the court, and were concerned that the Bank had yet to be served with the defence and counterclaim in time for the case management conference scheduled for 20 July 2018.
On or about 19 July 2018, the associate to Registrar Davies advised the parties that Registrar Davies would adjourn the case management conference to 9 August 2018 to enable the defence and counterclaim to be served, and for the Bank to have time to consider it.
On 7 August 2018, Mr and Mrs Kozisek, and Bluecove, each filed a 'list of documents' with the court, seeking an order compelling the Bank to provide full discovery of all requested 'original wet ink' documents. Mr Kozisek's list and Bluecove's list concluded with the words:
We Benjamin Arthur Kozisek and Cheryl Anne Kozisek seek from the Court to evaluate the facts present and assist a layman.
All Natural and Indefeasible Rights Reserved.
I Benjamin -- Arthur Trevelyan Kozisek and I Cheryl -- Anne Kozisek Reserve our God-Given Natural Rights.
Mrs Kozisek's list concluded with the words:
I, Cheryl --Anne Kozisek a Flesh and Blood Living Soul … seek from the Court to evaluate the facts present and assist a layman.
…
All Natural and Indefeasible Rights Reserved.
I Cheryl -- Anne Kozisek Reserve all my God-Given Natural Rights.
On 8 August 2018, Mrs Kozisek filed an affidavit. On 8 August 2018, Mr Kozisek filed an affidavit on behalf of Bluecove. Each affidavit contains, amongst other things, a series of rhetorical questions and allegations of fraud against the Bank. Each of the affidavits included what purported to be a 'seizure' of the Properties under Magna Carta:
This Property being [the Bunbury and Withers Properties]
Has on 17th July 2018 been Lawfully Seized by
Benjamin Arthur Trevelyan of the family Kozisek
Ad Dip OH & S
Cheryl Anne of the family Kozisek
Ad Dip Int Design
Under Clause 61 of Magna Carta and is Held under the Crown
Dated 17 July 2018
…
PROPERTY SEIZURE UNDER THE
AUTHORITY OF CLAUSE 61 OF
MAGNA CARTA
THE PROPERTY SITUATED AT [Bunbury and Withers] IS FORMERLY SEIZED BY
Benjamin Arthur Trevelyan of the family Kozisek
Ad Dip OH & S
Cheryl Anne of the family Kozisek
Ad Dip Int Design
And held under the Crown until such time
as a Lawful Court rules otherwise
Dated 17th July 2018
…
A Reminder to the Corrupt Judges
…
Keep in mind sections 118 and 109 of An Act to Constitute the Commonwealth of Australia
You may legally and lawfully use these acts regardless of what state or territory you are in, the Constitution says so!!!
…
MAGNA CARTA 1297 Still valid today
BILL OF RIGHTS 1688 Still valid today
HABEAS CORPUS ACT Still valid today
DUE PROCESS OF LAW ACT 1354 Still valid today
DUE PROCESS OF LAW ACT 1368 Still valid today
FREE ACCESS TO COURTS ACT 1400 Still valid today
PETITION OF RIGHT 1627 Still valid today.
On 8 August 2018, Mr Kozisek wrote to the associate to Registrar Davies advising that Mr and Mrs Kozisek had not received a filed copy of Bluecove's defence and counterclaim which was faxed to the court on 6 July 2018 along with a request for Mr Kozisek to represent Bluecove. On 8 August 2018, the associate to Registrar Davies advised, in effect, that since the introduction of elodgment, a seal is applied electronically, the defence would be visible to the Bank on the electronic file, and the case management conference would proceed on 9 August 2018.
On 13 August 2018, the Bank filed a chamber summons applying for summary judgment against Mr and Mrs Kozisek pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) for orders that:
1.Mr and Mrs Kozisek to deliver up vacant possession of the Properties;
2.Mr and Mrs Kozisek to pay the Bank the amount outstanding under the Consumer Loan Agreements, Business Loan Agreement, Guarantee and Mortgages together with interest under the Loan Agreements and Mortgages from judgment until payment in full; and
3.Mr and Mrs Kozisek to pay the Bank's costs of the action, including the costs of the application, on a full indemnity basis.
On 14 August 2018, the Bank applied for default judgment to be entered against Bluecove. On 15 August 2018, there being no appearance entered by Bluecove, Registrar Davies entered default judgment against Bluecove.
On 21 August 2018, Mr and Mrs Kozisek and Bluecove wrote to Registrar Davies asking her to 'advise when [she] swore an oath of allegiance to the Queen, as an officer of the Bar of the British Accreditation Registry'. The letter attached two bundles of documents addressed to Mr and Mrs Kozisek from the Bank's solicitors.
On 24 August 2018, the associate to Registrar Davies returned the bundles to Mr and Mrs Kozisek.
On or around 27 August 2018, Mr Kozisek sought to lodge, on behalf of Bluecove, an application to set aside default judgment against Bluecove. The application exceeded 100 pages. The application contains statements to the effect that (1) Mr Kozisek had omitted to file a memorandum of appearance on behalf of Bluecove, (2) on 6 July 2018, Mr Kozisek had sought to file a defence and counterclaim on behalf of Bluecove and an application to represent Bluecove, (3) default judgment must be set aside on the grounds of 'so many unlawful and biased actions' by Registrar Davies'. The application attached, amongst other things, Mr and Mrs Kozisek's and Bluecove's 'list of documents' filed 7 August 2018, and Mr Kozisek's affidavit on behalf of Bluecove filed 8 August 2018.
On 28 August 2018, Registrar Whitbread wrote to Mr Kozisek and Bluecove, advising that the above document had been refused for filing pursuant to O 67 r 5 of the RSC, and that Mr Kozisek and Bluecove would need to obtain the leave of the court.[5]
[5] Order 67 r 5 of the RSC provides that if any application, which is presented for filing, appears to the registrar to be an abuse of process or a frivolous or vexatious proceeding, the registrar shall refuse to file such application without the leave of a judge or master.
On 29 August 2018, Mr and Mrs Kozisek and Bluecove attempted to apply to the court to issue subpoenas against the Bank's solicitors, and the Bank's litigation officer to produce documents that must be 'original certified wet ink documents of all and sundry no copies', all returnable by 14 September 2018.
On 3 September 2018, Principal Registrar Strk wrote to Mr and Mrs Kozisek and Bluecove advising that she had directed that the subpoenas not be issued.
On 4 September 2018, Mr Kozisek sought to file, on behalf of the Bluecove, an application to the master for leave, pursuant to O 67 r 5 of the RSC, to file the application to set aside default judgment against Bluecove.
On 5 September 2018, the court wrote to the parties advising that the master would hear the application to set aside default judgment against Bluecove, at the hearing for summary judgment against Mr and Mrs Kozisek, which at the time was listed for 19 September 2018.
On or around 6 September 2018, Mrs Kozisek sought to file an application for leave 'to defend the [Bank's] application for summary judgment' on the following 11 bases:
1.There was no lawful dispute for the court to adjudicate.
2.The Bank has 'completely regarded my request for full discovery of the documents dated 7 August 2018'.
3.The Bank had not rebutted her affidavit of 8 August 2018.
4.The Bank has 'denied and blocked all requests at every stage of the process'.
5.At the 'mediation conference' on 9 August 2018 before Registrar Davies, the Bank's solicitor, when asked about a response to the request for full discovery, replied 'that is not going to happen'.
6.Registrar Davies agreed that she thought copies would suffice.
7.The Bank 'cannot/will not provide the original wet ink documents as requested in full discovery'.
8.'To provide factual evidence to prove their claim/proof of standing. Not copies'.
9.'No proof of standing, no claim'.
10.The Bank has refused to provide 'actual lawful evidence, only a presumption of a defence'.
11.'Truth in law not presumption in law'.
On 13 September 2018, to accommodate the unavailability of Mr and Mrs Kozisek, and Bluecove, the master vacated the special appointment listed for 19 September 2018 and relisted it relisted to 17 October 2018.
On 11 October 2018, Mr and Mrs Kozisek and Bluecove each wrote to the master requesting an adjournment of the special appointment listed for 17 October 2018 to accommodate Mr Kozisek's working roster.
On 12 October 2018, the Bank's solicitors wrote to the court advising that they were instructed to proceed with the application for summary judgment as soon as possible, and suggested that the matter be relisted for directions.
On 12 October 2018, the court wrote to the parties advising that the matter had been listed for directions on 16 October 2018, and that the special appointment remained listed for 17 October 2018.
On 12 and 15 October 2018, Mr Kozisek wrote to the court to the effect that 'as I work out in the field an audio link is not going to work, however I will accept the date of the 8th of November and rearrange other appointments' and that he did 'not give consent to any hearing to proceed in my absence'.
On 15 October 2018, the court wrote to Mr Kozisek advising that (1) unless orders to the contrary are made, or the Bank consents to relisting, the special appointment remained listed for 17 October 2018, (2) the date of 17 October 2018 was to accommodate the dates Mr and Mrs Kozisek and Bluecove had previously provided to the court, and (3) at the directions hearing on 16 October 2018, the master may or may not make orders that the matter be relisted to a different date.
On 16 October 2018, a directions hearing was held before the master. Mr and Mrs Kozisek and Bluecove did not attend. The master ordered that Mr and Mrs Kozisek's and Bluecove's application to further adjourn the special appointment listed for 17 October 2018 be dismissed, on the basis that there was no affidavit material which would justify an adjournment, nor was any basis upon which it would be in the interests of justice to do so.[6]
[6] Extract of transcript of proceedings before Master Sanderson on 16 October 2018, 2.
On 16 October 2018, the court advised the parties that Mr and Mrs Kozisek's, and Bluecove's, application to adjourn the special appointment had been dismissed, and encouraged Mrs Kozisek to attend the special appointment on 17 October 2018.
On 16 October 2018, Mr and Mrs Kozisek wrote to the court and said that he and Bluecove would not be able to attend in person and requested that an audio link be arranged to allow him to attend by mobile.
On 16 October 2018, the court confirmed with Mr and Mrs Kozisek that an audio link would be arranged to allow Mr Kozisek to attend by mobile.
The primary decision
On 17 October 2018, a special appointment was heard before the master. Mrs Kozisek attended on behalf of herself, but not on behalf of Mr Kozisek or Bluecove.[7] Mrs Kozisek told the master that Mr Kozisek (and, in effect, also Bluecove) were unable to attend by audio link as Mr Kozisek was working on a mine site. Mrs Kozisek did not dispute the amounts owing to the bank,[8] nor did she contend that the money did not have to be repaid.[9]
[7] Transcript of proceedings before Master Sanderson on 17 October 2018, 4.
[8] Transcript of proceedings before Master Sanderson on 17 October 2018, 3.
[9] Transcript of proceedings before Master Sanderson on 17 October 2018, 5.
The master found that (1) there was no defence,[10] and (2) there was no basis for not granting the relief sought by the Bank.[11] The master granted the Bank's application for summary judgment against Mr and Mrs Kozisek, dismissed the application to set aside default judgment against the Bluecove, and made the orders referred to in [2] above.
[10] Transcript of proceedings before Master Sanderson on 17 October 2018, 8.
[11] Transcript of proceedings before Master Sanderson on 17 October 2018, 6 - 8.
Appeal chronology
On 31 November 2018, Mr and Mrs Kozisek filed an appeal notice. The appeal notice stated that Mr and Mrs Kozisek required an extension of time to appeal.
On 6 November 2018, the Bank filed a notice of intention to take part in the appeal.
On 2 November 2018, the registrar advised Mr and Mrs Kozisek that the appellants' case was due on 5 December 2018.
On 5 December 2018, Mr and Mrs Kozisek filed an application in the appeal for an extension of 28 days to lodge 'Appeal Documents' due to the 'extreme ill health' of Mr and Mrs Kozisek.
On 5 December 2018, Mr Kozisek filed an affidavit sworn by Mr Kozisek attaching a medical certificate certifying that Mr Kozisek was unfit for normal work from 28 November 2018 to 1 December 2018.
On 5 December 2018, Mrs Kozisek filed an affidavit sworn by Mrs Kozisek attaching a letter from an osteopath to the effect that Mrs Kozisek had been unwell since about three weeks ago, and that Mrs Kozisek had been advised to not do any work on any screen device.
On 17 December 2018, the court ordered that Mr and Mrs Kozisek be granted an extension of time to file and serve the appellants' case to 4.00 pm on 5 January 2019.
On 5 January 2019, Mr and Mrs Kozisek sought to file an appellants' case.
On 9 January 2019, the registrar wrote to Mr and Mrs Kozisek advising that the appellants' case did not comply with r 32 of the Rules and had not been accepted for filing. Among other things, the registrar noted that because certain grounds of appeal allege that the master erred in fact and in law, Mr and Mrs Kozisek were required to comply with Practice Direction 7.4 of the Consolidated Practice Directions.
On 9 January 2019, the registrar ordered that the time for Mr and Mrs Kozisek to file and serve the appellants' case be extended to 23 January 2019.
On 14 January 2019, Bluecove, through Mr Kozisek, attempted to file an application in the appeal for orders to the effect that Mr Kozisek be granted leave to represent Bluecove. The application was accompanied by an affidavit sworn by Mr Kozisek in support.
On 23 January 2019, Mr and Mrs Kozisek filed the appellants' case, the grounds of which are referred to in [67] below.
On 29 January 2019, the registrar wrote to Mr and Mrs Kozisek, advising that Mr Kozisek, who is not a solicitor, was not permitted to file an application on behalf of Bluecove. Accordingly, the application and affidavit dated 14 January 2019 could not be accepted for filing.
On 31 January 2019, the registrar issued a notice to attend on 22 March 2019 for Mr and Mrs Kozisek to show cause as to why the appeal should not be dismissed pursuant to rule 43(2)(g)(i) and/or 43(2)(g)(ii) of the Rules.
On 20 February 2019, Mr Kozisek attempted to file an application on behalf of Bluecove seeking leave to represent Bluecove at the hearing on 22 March 2019.
On 22 February 2019, the Court of Appeal office wrote to Mr and Mrs Kozisek advising that Mr Kozisek could not file an application on behalf of Bluecove as he is not a solicitor.
Further events
On 20 March 2019, Mr and Mrs Kozisek filed an application in the appeal for 'leave of the court for an adjournment for Friday, 22 March 2019 10.30 am'.
On 20 March 2019, Mr and Mrs Kozisek each filed an affidavit in support of their application filed 20 March 2019. Each affidavit deposes to the following:
1.On 19 March 2019, Mrs Kozisek filed a chamber summons in the Supreme Court of Western Australia for the matter to be transferred to the Federal Court of Australia (in Western Australia).
2.On 6 March 2019, Mr Kozisek in his personal capacity and in the name of Bluecove filed a chamber summons in the Supreme Court of Western Australia for the matter to be transferred to the Federal Court of Australia (in Western Australia).
3.Mr and Mrs Kozisek seek an adjournment 'as we are waiting on the outcome of the chamber summons'.
On 22 March 2019, the matter came for hearing before Murphy and Pritchard JJA. At the hearing, Mrs Kozisek indicated that Mr and Mrs Kozisek had recently engaged a solicitor who had advised them to press the application for an adjournment to enable the solicitor to review the matter. Their Honours granted an adjournment on the basis that it appeared that Mr and Mrs Kozisek have only recently instructed a solicitor. Their Honours ordered that the registrar's notice to attend dated 31 January 2019 be adjourned for hearing on 24 April 2019.
On 27 March 2019, the registrar issued a notice to attend on 24 April 2019 for Mr and Mrs Kozisek to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) and/or r 43(2)(g)(ii) of the Rules.
Grounds of appeal
Mr and Mrs Kozisek rely upon 19 grounds of appeal to the following effect:
1.Because Mr and Mrs Kozisek offered to 'settle any financial obligation that we may lawfully owe', there was 'no lawful dispute' for the court to adjudicate.
2.The writ of summons and an affidavit filed on behalf of the Bank refers to a loan account, with false or incorrect account numbers, that is not held in their name, rendering the writ void, and on these grounds, the orders and primary proceedings 'must be dismissed against [them and Bluecove]'.[12]
[12] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 14.
3.Despite the statement in the writ that Mr and Mrs Kozisek had failed to rectify the default in the time specified, the Bank had refused the requests of Mr and Mrs Kozisek to view the 'original wet ink documentation'. By failing to mention this in the writ of summons, the Bank has 'erred by Omission … [and] Lied'.
4.Mr and Mrs Kozisek were 'denied any possibility of a successful outcome'.
5.The Bank has not responded to Mr and Mrs Kozisek's counterclaim, and thereby acquiesced to the counterclaim, and the master erred in failing to address the counterclaim.[13]
[13] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 2.
6.The primary court 'misconstrued the events to suit the registrar'.
7.Mr and Mrs Kozisek were 'denied any possibility of a successful outcome' in that (1) the Bank has refused to make available for viewing the 'original wet ink documentation of all and sundry', (2) Registrar Davies 'made a decision not to allow discovery, a very biased decision',[14] and (3) Principal Registrar Strk had denied their request to subpoena the documents.[15] Accordingly, Mr and Mrs Kozisek were denied any opportunity to defend themselves.[16] They allege 'fraudulent intent' on the part of the Bank's solicitor, Registrar Davies,[17] and Principal Registrar Strk.[18]
[14] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 5.
[15] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 7.
[16] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 7.
[17] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 6.
[18] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 7.
8.Mr and Mrs Kozisek's affidavits of 8 August 2018 'were not and never have been rebutted verbatim'. The Bank has 'accepted [the affidavits] in its entirety' including the 'lawful seizure' of Mr and Mrs Kozisek's Properties.[19]
[19] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 7. (This appears to be a reference to the 'seizure' referred to in [22] above.)
9.There was a 'denial of due process'. Mr and Mrs Kozisek had applied for an adjournment of the special appointment on the basis that Mr Kozisek would be unable to attend in person due to his remote working arrangements. The master erred in refusing the application on the basis that there was no affidavit material that justified the adjournment, nor would it be in the interests of justice to adjourn. Mr and Mrs Kozisek allege that the master was biased in denying Mr Kozisek 'his lawful rights'.[20]
[20] Appellants' submissions in support of grounds of appeal filed 23 January 2019, pages 10 - 11.
10.There was a 'fraudulent misrepresentation … [of] the nature of the proceedings' in that Mr and Mrs Kozisek mistakenly believed that the special appointment before the master was a pre-trial conference.
11.Order 13 r 6(5) of the RSC provides that if there is more than one defendant, judgment entered under this rule cannot be enforced against any defendant unless judgment has been entered or obtained against all the defendants. Only Mrs Kozisek has had a judgment made against her, but not Mr Kozisek nor Bluecove. Mr Kozisek and Bluecove were not able to defend themselves.[21] The master 'has committed fraud upon the court by proceeding with the matter'.[22]
12.There has been 'fraudulent intent' in that 'judgment [was] made in the absence of the [Mr Kozisek] and [Bluecove]. They allege 'fraudulent intent and fraud upon the court' by the master and the Bank's solicitors.[23]
13.Ground 13 is to the same effect as ground 11.
14.The 'alleged mortgage documents' are only signed by Mr and Mrs Kozisek, but not the Bank, making the documents 'not lawful binding contracts'. The Bank, by its refusal to 'allow full discovery of the original wet ink documents', is hiding 'unconscionable conduct'. The documents are 'void ab initio'.[24]
15.The mortgage registered against one of the Properties states that the property is subject to 'nil limitations, interests, encumbrances and notifications'[25] and no one can take away property held in fee simple.[26] The mortgage is 'void ab initio' as there is no principal sum being secured and interest expressed in the mortgage.[27]
16.Mr and Mrs Kozisek's request 'for the original wet ink documentation of all and sundry', which is 'vital to the case', has been denied. Instead, the Bank sent a bundle of photocopies and 'none of what was requested'.
17.The balance of the outstanding moneys are to be paid at the end of the term. There has been no default because default can only occur upon maturity.
18.The Bank is 'Breaking the Law of God' by charging interest.
19.By presenting the names of Mr and Mrs Kozisek in uppercase and lowercase on the writ, Mr and Mrs Kozisek's 'persona has been represented in three different personas'.[28]
[21] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 13.
[22] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 12.
[23] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 16.
[24] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 18.
[25] The appellants refer to Form B3583. This is annexure G of the affidavit sworn on behalf of the first respondent on 8 August 2018 in the primary proceedings.
[26] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 20.
[27] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 19.
[28] Appellants' submissions in support of grounds of appeal filed 23 January 2019, pages 21 - 22.
Mr and Mrs Kozisek conclude, in effect, that:[29]
This Court has no Jurisdiction over a Living man or woman.
All legal presumptions held against individual people obligating them to perform under commercial contracts that are and always manifestly were NOT in-kind and NOT fully disclosed should be dropped immediately and without recourse as unconscionable and the people should not suffer any loss or claim against their labour, their private property, or their public property interests as a result of the constructive fraud being practiced against them by these corporations - including and especially governmental services corporations which have passed themselves off as the lawful government owed this nation.
[29] Appellants' submissions in support of grounds of appeal filed 23 January 2019, page 25.
Disposition
We dismissed the oral application to transfer the matter to the Federal Court of Australia because no grounds for the transfer had been established and it would have been pointless to do so.
We also dismissed the oral application to adjourn as both Mr and Mrs Kozisek were in attendance, and the matter was fully argued on 24 April 2019. Insofar as the adjournment application was put on the basis of the need to serve notices under s 78B of the Judiciary Act 1903 (Cth), because the alleged constitutional issues are wholly without substance, there is in truth no constitutional issue and thus no need for any adjournment.[30]
[30] Shaw v McGinty [2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90].
We dismissed the appeal for the reasons referred to below, and we ordered costs against Mr and Mrs Kozisek because there was no reason to depart from the general rule that costs follow the event.
Our reasons for dismissing the appeal may be summarised as follows:
1.The grounds of appeal failed to grapple with the bases upon which the master had granted the bank's application for summary judgment, and dismissed the application to set aside default judgment against Bluecove. In substance, the master granted the applications because there was no evidence before him which raised a triable issue in respect of the Bank's claims, and Mrs Kozisek (at least for her part) told the master that the amounts owing were not in dispute, and that she did not contend that the money had to be repaid to the Bank. Nothing in the material filed by Mr and Mrs Kozisek gives rise to any arguable basis to challenge the master's conclusions that the Bank was entitled to possession and to the amount for which judgment was entered.
2.Mr and Mrs Kozisek were unable to establish that the range of allegations in grounds 1, 2, 3, 4, 5, 8, 15, 17, 18 and 19 had any arguable basis in fact or in law.
3.Grounds 6, 7, 10, 11, 12, 13 and 14 contained, or conveyed, conclusory and scandalous statements of alleged impropriety by the master, the registrar, the principal registrar, the Bank and the Bank's legal representatives, in the absence of any evidence.
4.Ground 9 failed to allege any appellable error of the kind required to challenge successfully an interlocutory decision with respect to practice and procedure,[31] particularly in the context where the special appointment had already been vacated and relisted to suit Mr and Mrs Kozisek and Bluecove. Moreover, the appellants have not demonstrated any prejudice arising from the refusal to further adjourn the application for summary judgment, as they have not, on appeal, articulated, or provided evidence of, any reasonable basis to oppose the grant of summary judgment.
5.Grounds 11 and 13 appear to assume, contrary to the fact, that judgment had not been entered against Mr and Mrs Kozisek.
6.Ground 16 does not assert any error on the part of the master.
[31] See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177.
Making full allowance for the fact that Mr and Mrs Kozisek are litigants in person, we were of the view that none of the grounds of appeal had a reasonable prospect of succeeding in the appeal. Also, the appellants' case was so deficient in form and content that there had been a failure to comply with r 32 of the Rules that justified the dismissal of the appeal.
For these reasons, we considered that the appeal should be dismissed pursuant to r 43(2)(g)(i) and r 43(2)(g)(ii) of the Rules.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech9 MAY 2019
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