Liberty Funding Pty Ltd v Douglas

[2002] VSC 266

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4444 of 2002

LIBERTY FUNDING PTY LTD	Plaintiff
v
STEPHEN ROSS DOUGLAS AND NELLA DOUGLAS	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 JUNE 2002
DATE OF JUDGMENT:	19 JUNE 2002
CASE MAY BE CITED AS:	LIBERTY FUNDING PTY LTD v DOUGLAS & ANOR
MEDIUM NEUTRAL CITATION:	[2002] VSC 266

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.J. Corrigan
For the First Defendant
For the Second Defendant

HIS HONOUR:

1. This is an appeal from the order of Master Evans made on 23 May 2002.  The claim is for money, due under a mortgage.  In substance, the defendants rely upon a series of matters set out in a notice of defence.  In my view, none of the matters set out in the notice of defence constitute proper grounds of defence or arguable grounds of defence.

1. The first matter in issue is raised by points 1 and 2 of the notice.  This goes to the fact that the defendants are named by way of capital letters in the relevant court documents relied on by the plaintiff, rather than in lower case as was the situation in the relevant loan documents.  In my view, this does not give rise to a point of substance and I do not accept that it is a basis upon which the defendants could avoid liability.

1. The second matter raised by the notice of defence goes to the delivery of certain documents to the defendants.  This aspect is raised by paragraphs 3 and 4 of the notice of defence and no argument was addressed to me in support of those grounds by or on behalf of the defendants.  Nevertheless, the allegations made are directly contradicted by the affidavit material before me, and in any event they do not in my view constitute matters which would enable the defendants to avoid the effect of the contractual obligations which they entered into.

1. The next series of matters go to procedural aspects of this proceeding, and points 5, 6, 7 and 8 have been expressly withdrawn and not relied upon before me. 

1. The next series of matters go to the nature of the consideration which was provided by the plaintiff in respect of the credit arrangements which were entered into with the defendants.  This aspect is raised by paragraphs 9, 10, 11 and 16 of the notice of defence.  In essence, the defendants contend that the agreements in issue should be understood as providing for the loan of moneys as defined by the Commonwealth Constitution.  Further it is said that this did not occur, although, as I understand it, there is no dispute that consideration to the value of the amount claimed by way of principal was supplied to the defendants.  In my view, the defendants' arguments turn upon a misapprehension of the effect of the Commonwealth Constitution, and in particular s.51(12) of the Constitution, which sets out the powers of the Commonwealth to make a particular type of law.  The matters raised, in my view, do not give rise to an arguable defence.

1. The next category of matters raised is raised by paragraphs 12, 13 and 14 of the notice of defence.  These paragraphs in effect seek to query the existence of, and validity of, any relevant statute law.  They do not, in my view, provide an arguable defence, and indeed are so general as to be embarrassing, in the technical sense.

1. The final category of matters raised under the notice of defence turns on the fact that it is asserted that the first-named defendant has a claim by way of native title to the land which is the subject of the mortgage relied upon by the plaintiff.  In this regard I observe, firstly, that no claim for native title with respect to this land has been made in the relevant jurisdiction.  Secondly, it is apparent that there has been a grant of freehold title to the relevant land and this is fundamentally inconsistent with the continuance of native title to the land.  Thirdly, if some native title rights persist with respect to the land, the first-named defendant has expressly and specifically charged his interest in the land in favour of the plaintiff.

1. For the above reasons I find that the notice of defence does not state an arguable defence, and for that reason I find that the plaintiff is entitled to judgment in accordance with Order 23 of the Supreme Court Rules. 

1. I further observe that the affidavit material lodged on behalf of the plaintiff also justifies judgment against the defendants pursuant to Order 22. 

1. In the circumstances I propose to order that the defendants' notice of defence dated 28 March 2002 be struck out pursuant to rule 23.02, or, alternatively, in the inherent jurisdiction of the Court.  I further propose to order, as the Master did, that there be judgment for the plaintiff.

(Discussion ensued.)

HIS HONOUR:  I will dismiss the appeal.

(Discussion ensued as to costs.)

HIS HONOUR:  The term of the mortgage upon which the plaintiff relies is specifically pleaded in paragraph 12 of the statement of claim and the Master's order responds to the pleading of that term.  I accept that expenses formed part of the body of the claim in this case and are not simply claimed as a consequence of the claim.  In those circumstances, the relevant mortgage documents having been proved before me, I am prepared to award costs of the appeal on the same basis that the Master did, and I adopt the same general formulation, which is that the defendants pay the plaintiff's costs of this appeal, being the costs of this application reasonably incurred by the plaintiff in enforcing its mortgage.  I have somewhat refined the Master's formulation in expressing that order but the intent is the same.

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