MA 46 Pty Ltd v Paglia Properties Pty Ltd
[2020] VSC 695
•20 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL DIVISION
PROPERTY LIST
S ECI 2020 01631
| MA 46 PTY LTD (ACN 632 738 848) & ANOR (according to the Schedule) | Plaintiffs |
| v | |
| PAGLIA PROPERTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 139 853 366) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE PAGLIA CURRY PROPERTY TRUST & ANOR (according to the Schedule) | Defendants |
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JUDGE: | Delany J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2020 |
DATE OF JUDGMENT: | 20 October 2020 |
CASE MAY BE CITED AS: | MA 46 Pty Ltd v Paglia Properties Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 695 |
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STATUTES – No inconsistency between provisions – Galloway v National Australia Bank Limited [2016] VSCA 330 applied – Tajon Pty Ltd v Arvanitis [2017] VSC 130 cited – No implied repeal – Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282 applied – Residential Tenancies Act 1997 (Vic) s 216, s 268 – Transfer of Land Act 1958 (Vic), s 78, s 87C.
PRACTICE AND PROCEDURE – Summary judgment granted in favour of mortgagee including against tenant under residential tenancy agreement – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158 – Civil Procedure Act 2010 (Vic), ss 63-64.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | D Gration | William James |
| For the First Defendant | S Thomas | Rothwell Lawyers Pty Ltd |
| For the Second Defendant | D Connors | Merton Lawyers |
HIS HONOUR:
The parties and the disputes
The first plaintiff, MA 46 Pty Ltd (ACN 632 738 848) (‘MA 46’) and the second plaintiff ALMA 003 Pty Ltd (ACN 632 699 506) (‘ALMA’) may conveniently be described as the ‘Lenders’.
The first defendant, Paglia Properties Pty Ltd (Receivers and Managers Appointed) (ACN 139 853 366) (in its own capacity and as trustee for The Paglia Curry Property Trust) (‘Paglia’) is the registered proprietor of the property located at 31 Guildford Lane, Melbourne Victoria 3000 (volume 9945/folio 204) (‘Property’). Paglia is a company that, until the appointment of receivers and managers to it in November 2019 by the Lenders, and by another company associated with the Lenders, Aura Loan Management Pty Ltd, was controlled by Steven Paglia.
The second defendant, Jeremy Paglia (‘Jeremy’), is the son of Steven Paglia.
On about 24 April 2019, by way of a letter of offer, MA 46 and ALMA as Lenders agreed to provide financial accommodation in the sum of $6,787,500 to Paglia (‘Loan Agreement’).[1]
[1]Plaintiffs, Statement of Claim, dated 3 April 2020, [4]; First Defendants, Defence, dated 19 May 2020, [4].
Podium 1 Pty Ltd (ACN 625 683 687), in its own capacity and as trustee for Podium 1 Trust and Steven Paglia are guarantors (‘Guarantors’) under the Loan Agreement.
As security for the financial accommodation, Paglia granted registered mortgage number AS120480 dated 26 April 2019, over the Property in favour of the Lenders (‘Mortgage’).
The Mortgage was registered on the title to the Property on 29 April 2019.
As alleged in the statement of claim, it was a term of the Loan Agreement that Paglia must pay the Lenders the aggregate of the Advances outstanding and the balance, if any, of the Secured Money on the Termination Date being nine months from the date of the initial advance, 2 May 2019.[2] Paglia did not do so.
[2]Capitalised terms in this judgment, unless otherwise defined, are those terms as defined in the Loan Agreement.
On 26 June 2019, the Lenders served a notice of default and demand on Paglia, amongst others, demanding immediate payment in full, of the amount outstanding under the Loan Agreement, being $6,889,033.56 as at 25 June 2019.
On 12 September 2019, a further notice of default and demand was served on Paglia, amongst others, demanding immediate payment in full, of the amount outstanding under the Loan Agreement, being $7,082,201.20 as at 26 August 2019.
In its defence and counterclaim Paglia denies that it defaulted in the performance of its obligations under the Loan Agreement or that it otherwise committed Events of Default.
As alleged in the statement of claim, it was a term of the Mortgage that Paglia must pay the Secured Moneys, as defined in the Mortgage, upon demand by the mortgagee at any time.
On 30 July 2019, the Lenders as mortgagee served a notice to pay, pursuant to s 76 of the Transfer of Land Act 1958 (Vic) (‘TLA’), on Paglia, demanding immediate and full payment of the amount outstanding under the Loan Agreement and the Mortgage (‘Notice to Pay’).
On 8 November 2019, Duncan Edward Clubb and Andrew Thomas Sallway were appointed as receivers and managers over the assets of Paglia (‘Receivers’), including over the Property.
The plaintiffs by counterclaim, being Paglia and others, allege that the Receivers were improperly appointed to Paglia.[3] They allege that at the time when the Receivers were appointed, there was no event of default under the Loan Agreement, the Mortgage or otherwise. The counterclaim against various parties, including the Receivers alleges that in breach of duty and in breach of the Corporations Act 2001 (Cth) the Receivers acted unreasonably with respect to the sales of secured properties at 4/80 Collins Street Thornbury VIC 3071, 5/80 Collins Street Thornbury VIC 3071, 73-77 Plenty Road Preston VIC 3071, Napier Street, G04/18 Robbs Parade Northcote VIC 3070 and the Guildford Lane Property itself, as a result of which the plaintiffs by counterclaim allege they suffered loss and damage.
[3]The plaintiffs by counterclaim are Paglia, 80 Collins Street Thornbury Pty Ltd ACN 607 878 026 in its own capacity and as trustee for the 80 Collins Street Thornbury Unit Trust, 73 Plenty Road Pty Ltd ACN 605 640 588 in its own capacity and as trustee for the 73 Plenty Road Unit Trust and SP Developments Vic Pty Ltd (ACN 612 205 991). The defendants by counterclaim are the Lenders, Mr Clubb and Mr Sallway.
The Lenders and Paglia were parties, together with others, to an earlier proceeding in this Court, proceeding No. S ECI 2019 03966, commenced by Paglia on 2 September 2019 (‘Earlier Proceeding’).
The relief sought by Paglia in the Earlier Proceeding included that MA 46 and ALMA be restrained from acting on or giving further effect to the 26 June 2019 and 3 September 2019 notices of default and the 30 July 2019 Notice to Pay.
Riordan J dismissed the Earlier Proceeding which sought to restrain the defendant lenders in that proceeding from enforcing securities. His Honour did so on the basis that there was no serious question to be tried nor a prima facie case established for the grant of the relief sought, delivering ex tempore reasons for judgment on 2 October 2019.[4]
[4]Paglia Properties Pty Ltd v Aura Loan Management Pty Ltd (Unreported, Supreme Court of Victoria, Riordan J, 2 October 2019), [52]—[53].
On 12 September 2019, prior to the appointment of the Receivers to Paglia, Jeremy entered into a residential tenancy agreement (‘RTA Lease’) with Paglia. At that time Paglia was under the control of Jeremy’s father. Jeremy is currently in occupation of the Property.
The Lenders say that Jeremy is in occupation of the Property without the consent or authority of the Lenders in their capacity as mortgagee. That fact is not in contest.
On 10 January 2020 the Lenders, not being aware of the RTA Lease, sent a letter, by their solicitors at the time, William James Law, to Jeremy, requiring Jeremy to vacate the Property by 31 January 2020, or otherwise provide evidence as to why he says he was entitled to remain in occupation as against their clients (‘Notice to Vacate’).
Jeremy’s only substantive defence on the pleadings is that the Notice to Vacate did not comply with the Residential Tenancies Act 1997 (Vic) (‘the RTA’).
As will be seen, the only issue of substance remaining in this proceeding is whether the Lenders as mortgagee are entitled to possession of the Property as against Jeremy. However, the resolution of that question does not turn on the terms of the Notice to Vacate. Instead, what is required is a consideration of the intersection between the rights of the Lenders as mortgagee of the Property to obtain an order for possession of the Property under the TLA and the rights that Jeremy asserts are held by him under the RTA, relying upon the RTA Lease, granted by Paglia without the consent of the Lenders.
The applications and the materials relied upon
Three applications by summons were listed for determination by the Court on 9 October 2020.
Mr Gration of counsel appeared on behalf of the Lenders and on behalf of the defendants to the counterclaim. Mr Connors of counsel appeared on behalf of Jeremy. Mr Thomas of counsel appeared on behalf of the plaintiffs by counterclaim.
The three applications were:
(a) the summons dated 3 July 2020 issued by the Lenders seeking summary judgment against Paglia and Jeremy, including orders for the ejectment of Jeremy from the Property and judgment for the Lenders for possession of the property;
(b) the summons dated 23 July 2020 issued by the plaintiffs by counterclaim for an order that they pay into Court the sum of $6,588,734.95, being the payout figure they contended at that time to be owing to the Lenders secured over the Property (’23 July 2020 Application’); and
(c) the summons dated 7 September 2020 by the defendants by counterclaim seeking summary judgment in their favour on the counterclaim, and other orders.
In support of the 3 July 2020 summary judgment application, the Lenders relied on an affidavit of Mr Clubb dated 3 July 2020, three affidavits of Mitchell Alexander Gray Atkins dated 3 July, 28 July and 7 September 2020 and written submissions dated 9 September 2020.
In opposition to the application for summary judgment against him, Jeremy relied on three affidavits made by him, the first dated 1 September 2020, and the second and third dated 8 October 2020. He also relied upon written submissions dated 8 October 2020.
Paglia made no submissions and filed no material in opposition to the 3 July and 7 September 2020 summary judgment applications against it.
By 9 October 2020, events had overtaken the subject matter of the 23 July 2020 Application.
On 29 July 2020, the Lenders, the plaintiffs by counterclaim, Stephen Paglia, Jeremy, Podium 1 Pty Ltd and William James Law Pty Ltd (ACN 602 009 432) entered into a settlement deed (‘Settlement Deed’). Pursuant to the Settlement Deed the plaintiffs by counterclaim, Podium 1 Pty Ltd and Steven Paglia agreed to pay the sum of $6,928,254.23 to the Lenders on 7 August 2020 or on some other date agreed between the parties. No other date was agreed. The amount of $6,928,254.23 was not paid to the Lenders.
Given that the subject matter of the 23 July 2020 summons has been overtaken by these events, it is accepted by all parties that an appropriate order to be made is an order that the summons be dismissed. It is also appropriate to make an order for costs of that summons in the terms sought by the Lenders. Namely, the defendants pay the Lenders costs of and incidental to their claim, in the case of Paglia, on an indemnity basis and, in the case of Jeremy, on a standard basis.
The third summons dated 7 September 2020, the application by the defendants by counterclaim for summary judgement in their favour of the counterclaim need only be dealt with very briefly. That is because, at the hearing on 9 October 2020, Mr Thomas informed the Court that whilst his clients did not consent to summary judgement on the counterclaim against them, nor did they oppose such an order.
The material relied upon by the defendants to the counterclaim makes good their entitlement to summary judgement in their favour. It is unnecessary to refer in any detail to the evidence relied upon. There was no affidavit evidence filed in opposition. It is sufficient to dispose of the 7 September 2020 summons and to grant summary judgment in favour of the defendants to the counterclaim to refer to clause 4(a) of the Settlement Deed. By that clause, on and from 7 August 2020, each of the plaintiffs by counterclaim, Podium 1 Pty Ltd, Steven Paglia and Jeremy, provided comprehensive releases in favour of the defendants to the counterclaim. Those releases were not conditional on any other event or circumstance.
The defendants to the counterclaim are entitled to summary judgement dismissing the counterclaim. They are also entitled to costs orders in their favour in the form contended for by them. Namely, that as parties to the Loan Agreement, the plaintiffs by counterclaim are obliged to pay the defendants by counterclaim’s costs of and incidental to the counterclaim on an indemnity basis.[5]
[5]Plaintiffs, Submissions of the Lenders and Receivers in Support of Application for Summary Judgment on Counterclaim, dated 30 September 2020, [15]. The submissions refer to the Loan Agreement as the Facility Agreement.
It is necessary now to turn to the 3 July 2020 application for summary judgment.
The requirements for summary judgment
The requirements for summary judgment are set out in s 63 of the Civil Procedure Act 2010 (Vic):
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
Section 64 of the Civil Procedure Act 2010 (Vic), as referred to in s 63 above, provides that:
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a)it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The leading authority concerning s 63 is the decision of the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’).[6] Warren CJ and Nettle JA made the following authoritative statement of the test to be applied:
[29] [T]he test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success; that the “real chance of success” test is to some degree a more liberal test than the “hopeless” or “bound to fail” test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not “hopeless” or “bound to fail”, it does not have a real prospect of succeeding.[7]
[6][2013] VSCA 158; (2013) 42 VR 27.
[7]Ibid, [29] (Neave JA agreeing, [36]).
The summary judgment claim by the Lenders against Paglia
Paglia filed no material in opposition to the application for summary judgment against it. The company in receivership did not separately appear on the application.
There is no doubt that the affidavit material relied upon by the Lenders entitles them to summary judgment against Paglia. Paglia failed to comply with the notices of default and the Notice to Pay when due. As submitted on behalf of the Lenders, most recently it agreed to the quantum of the outstanding amount in the Settlement Deed and agreed to pay that amount on 7 August 2020. Paglia did not pay the agreed quantum or any part of it. Paglia’s defence of the proceeding has no real prospect of success and summary judgment must be entered against it in favour of the Lenders.
It is also the case as submitted on behalf of the Lenders, that pursuant to clause 12.2 of the Loan Agreement, Paglia should pay the Lenders’ costs of the summons and of the proceeding against it on an indemnity basis.[8]
[8]Plaintiffs, Submissions of the Lenders In Support of Application for Summary Judgment, dated 9 September 2020, [33].
The summary judgment claim by the Lenders against Jeremy: the residential tenancy dispute
It is accepted by all parties that Jeremy is a party to a RTA Lease dated 12 September 2019, for a term of one year.
On 10 January 2020, the Lenders served the Notice to Vacate. It is common ground that it was not given under the RTA.
At the time the Notice to Vacate was given by the Lenders, they did not know there was a residential tenancy agreement in place. No attempt was made by the Lenders for the Notice to Vacate to comply with the provisions of the RTA.[9]
[9]Plaintiffs, Affidavit of Mitchell Alexander Gray Atkins, dated 3 July 2020, [20].
The Notice to Vacate was contested at the Victorian Civil and Administrative Tribunal (‘VCAT’). Jeremy issued the VCAT proceeding. The Lenders, and Aura Loan Management Pty Ltd, were the respondents to that proceeding. On 24 February 2020 VCAT made an order in proceeding R2020/2879/00 including findings that:
(a)the Notice to Vacate did not comply with the requirements of the RTA as it did not set out the relevant provision under which the notice was issued or provide the correct notice period; and
(b)the Lenders acknowledged that the Notice to Vacate did not comply with the requirements of the RTA.
On behalf of Jeremy it was submitted that the Lenders were estopped from denying the validity of the RTA Lease by reason of the Notice to Vacate and the VCAT determination. Further, that by reason of the VCAT determination Jeremy was entitled to rely upon res judicata in relation to the validity of the RTA lease as against the Lenders. Neither of these arguments has any substance.
The Lenders had no prior notice of and did not consent to the RTA Lease.
As the Lenders correctly submit, as they did not know there was a residential tenancy agreement in place and made no attempt to comply with provisions of the relevant legislation concerning such tenancies, the giving by them of the Notice to Vacate cannot give rise to any form of estoppel against them. They were the respondent to the VCAT proceeding. VCAT did not need to determine whether the RTA Lease was valid as between the Lenders and Jeremy and it did not purport to do so. No estoppel arises from the participation by the Lenders in the VCAT proceeding, and there is no res judicata.
Further, even if there were to have been some form of estoppel or res judicata, when Jeremy signed the Settlement Deed, the release in clause 4.1(a) in favour of the Lenders, included a release from any such claims. It released the Lenders:
[F]rom all Claims and Liabilities of every description and whenever occurring that they might have now, or but for the execution of this Deed may have had, against the Released Parties as a direct result of, or arising from or in connection with, the Transaction, other than a Claim in respect of the enforcement of this Deed.
The Transaction was in turn defined in clause 1.2 of the Settlement Deed to include all matters the subject of VCAT proceedings, including the proceeding in which the 24 February 2020 order was made.
On 3 March 2020 a letter and its enclosure was sent by the Receivers relying upon s 88 of the RTA, seeking entry to the Property in order to show prospective purchasers and to have the Property valued.[10] In submissions on behalf of Jeremy, it was said that the notice enclosed in this letter estopped the Lenders from arguing that the RTA has no application to the RTA Lease. That argument fails. The notice was not a notice given by the Lenders, it was a notice given by the landlord, the Receivers. Separately, the Settlement Deed also included releases by Jeremy in favour of the Receivers.
[10]Second Defendant, Affidavit of Jeremy Paglia, dated 8 October 2020, exhibit JP-4.
Those matters not providing any basis for even a ‘fanciful’ defence, the sole matter that potentially stands between the Lenders and summary judgment against Jeremy is the reliance by Jeremy upon s 216 of the RTA. That section provides:
Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.
Jeremy relies upon s 216 of the RTA to contend that the existence of the RTA Lease displaces the rights of the Lender as mortgagee relying upon the TLA to obtain possession of the Property. He submits that the Lenders may only obtain possession of the Property the subject of the RTA Lease by adhering to the procedures to obtain possession specified under the RTA.
As mentioned in Jeremy’s submissions, a mortgagee may terminate a residential tenancy agreement in accordance with s 223 of the RTA, by serving a 28 day notice under s 268 of the RTA.[11] If that were to occur, ordinarily, the RTA lease would be at an end and the tenant, in this case, Jeremy would be required to vacate the property. However, the Lenders have not served such a notice, and further, these are not ordinary times.
[11]Residential Tenancies Act 1997 (Vic) (‘RTA’), s 268. Section 223 of the RTA provides for termination upon notice being given under s 268 of the RTA. A tenancy agreement terminates in accordance with s 334 of the RTA.
From 29 March 2020, Part 16 of the RTA titled ‘COVID–19 temporary measures’ has been and remains in operation.[12] Section 544(1) of the RTA specifies that a landlord or mortgagee in respect of rented premises must not give a tenant a notice to vacate such premises. That includes a notice as provided for in s 268 of the RTA. Section 268 provides:
[12]RTA, s 535.
Notice by mortgagee
(1)If a mortgagee in respect of rented premises under a mortgage entered into before the tenancy agreement was entered into becomes entitled to possession of, or to exercise a power of sale in respect of, the premises under a mortgage, the mortgagee may give the tenant a notice to vacate the premises.
(2)The notice must specify a termination date that is not less than 28 days after the date on which the notice is given.
Section 550 specifies circumstances where, during the period in which the COVID-19 temporary measures remain in place, a mortgagee can nonetheless give notice. However, it is agreed none of those circumstances have application on the facts of this case.
The relationship between the rights of the Lenders as mortgagee under the TLA and the rights of Jeremy under the RTA as tenant pursuant to the RTA Lease
Whether the Lenders are entitled to summary judgement against Jeremy requires the Court to construe relevant provisions of the TLA and the RTA and to consider the relationship between those provisions.
In support of summary judgment against Jeremy, the Lenders rely upon both the Loan Agreement and the Mortgage.
Clause 8.3(a) of the Loan Agreement between the Lenders and Paglia provides that:[13]
No Obligor may, without the prior written consent of the Lender, assign or otherwise Dispose Of or Deal With any Security Property or any chattels held in connection with any Security.
[13]Plaintiffs, Affidavit of Mitchell Alexander Gray Atkins, dated 3 July 2020, [18], exhibit MAGA-6.
Clause 5(c) of the Mortgage, prohibits the mortgagor leasing the Property without the prior written consent of the mortgagee.[14]
[14]Ibid, [17], exhibit MAGA-6.
The Lenders did not consent to the lease of the Property to Jeremy.[15]
[15]Ibid, [19].
In written submissions filed on his behalf, Jeremy notes the asserted rights of the Lenders pursuant to the Mortgage and Loan Agreement and does not contend against those rights.[16] Similarly, he notes the assertion that the Lenders did not provide their consent to the RTA Lease under which he commenced living at the Property and does not join issue with that assertion.[17]
[16]Second defendant, Submissions on behalf of Jeremy Paglia (Second Defendant), dated 8 October 2020, [19].
[17]Ibid, [20].
The Lenders submit that the effect of s 87C of the TLA is that the RTA Lease of the Property to Jeremy, without their consent, is not valid or binding against the Lenders.[18] The Lenders submit that, as mortgagees, they are entitled to enter into possession of the Property and bring an action for ejectment against Jeremy as occupier of the property under s 78 of the TLA. That section provides as follows:
[18]Galloway v National Australia Bank Limited [2016] VSCA 330, [16]—[17] (per Osborn JA, Santamaria JA agreeing) (‘Galloway’).
Power to mortgagee or annuitant to enter into possession or bring ejectment
(1)The mortgagee or annuitant upon default in payment of the principal sum or interest or annuity or any part thereof respectively at the due time—
(a)may enter into possession of the mortgaged or charged land by receiving the rents and profits thereof; or
(b)may bring an action of ejectment to recover the land, either before or after entering into the receipt of the rents and profits and either before or after any sale of the land as aforesaid.
(2)A mortgagee of or annuitant upon leasehold land after entering into possession of the land or the receipt of the rents and profits thereof shall, during such possession or receipt and to the extent of any benefit rents and profits which are received, be subject to and liable for the payment of the rent reserved and the performance and observance of the covenants contained or implied in the lease on the part of the lessee.
Section 87C of the TLA provides:
Mortgagee or annuitant consent required for lease, easement or restrictive covenant
The creation, variation or surrender of a lease or the creation or variation of an easement or restrictive covenant, in respect of land subject to a mortgage or charge, is not valid or binding against a mortgagee or annuitant unless the mortgagee or annuitant has consented in writing to (as the case requires)—
(a)the creation, variation or surrender of the lease; or
(b)the creation or variation of the easement or restrictive covenant.
Jeremy accepts that the operation of s 87C of the TLA will have the effect that he cannot assert a right to remain in the Property as against the Lenders were there to be a further term remaining on the Lease. However, he contends the operation of s 87C does not remove the rights and due process upon which he says he is entitled to rely governing how and when he may be removed from the Property pursuant to the RTA.
Jeremy submits that ss 216 and 268 of the RTA have application where the Lenders wish to obtain vacant possession of the Property.
Galloway v National Australia Bank Ltd
In answer to Jeremy’s submissions, the Lenders rely upon Galloway v National Australia Bank Ltd as authority entitling them to obtain an order for possession.[19] They submit that, applying Galloway the provisions of the RTA have no application to this case.[20]
[19][2016] VSCA 330.
[20]Plaintiffs, Submissions of the Lenders in Support of Application for Summary Judgment, dated 9 September 2020, [30]—[31], relying on Galloway v National Australia Bank Limited [2016] VSCA 330, [18]; see also Balanced Securities Ltd v Bianco [2010] VSC 162 (per Forrest J); Tajon Pty Ltd v Arvantis [2017] VSC 130 at [54]—[63] (per Derham AsJ).
Galloway came before the Court of Appeal as an urgent application to restrain the bank from enforcing its security.[21] There was a residential tenancy agreement in place between the registered proprietor, Galloway, and a tenant. Prior to that residential tenancy agreement being entered into, the bank had obtained an order for possession, as a result of obtaining judgement in default of defence. Following entry of judgment in default and, a time when it appears there were negotiations taking place between the bank and Galloway, the tenancy agreement was entered into, without the consent of the bank.
[21]Galloway v National Australia Bank Limited [2016] VSCA 330, [1], [7].
In Galloway, the tenant sought to rely on the fact that he had not been given a notice to vacate in accordance with the provisions of the RTA and that unless such a notice was given, the tenancy agreement remained on foot and the bank was not entitled to sell the land with vacant possession.[22] The bank advanced three arguments in opposition to the application to restrain it from entering into possession. The third argument, described as being at the forefront of the bank’s submission relied on s 87C of the TLA.[23]
[22]Ibid, [11].
[23]Ibid, [15].
Osborn JA, with whom Santamaria JA agreed, dealt with that argument as follows:
17.The provision provides in substance that a lease is not valid or binding against the mortgagee unless the mortgagee has consented in writing to the creating of the lease. It is in deliberately broader terms than the former s 66(2) of the Transfer of Land Act 1958.[24] Because it is common ground that the mortgagee did not consent to the creation of the lease, it follows that the purported lease is not valid or binding against the Bank.
18.The solicitor for the applicant submitted that the provisions of the Residential Tenancies Act 1997 overlay the provisions of the Transfer of Land Act 1958. I do not see that this can be so. If the lease is not valid against the mortgagee, then there is no lease upon which the notice provisions can operate. Similar reasoning applies to the arguments to which I first referred relating to the capacity of the applicant to grant a lease when the land was subject to an order for possession made by the County Court, and subject to a mortgage containing the limitations upon which the Bank relies.
19.It follows that I am not persuaded that the fundamental point of law on which the applicant relies is seriously arguable or has any real prospects of success...[25]
[24]As to which, see Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589, 598–9 (Hayne J) (citation as in original).
[25][2016] VSCA 330, [17]—[19].
As there is no dispute that in this case the RTA Lease was not entered into with the prior consent of the Lenders as mortgagee, the passage from Galloway, upon which the Lenders rely has direct application.[26] It is true as submitted on behalf of Jeremy that in Galloway, there had been an earlier order of the Court granting possession in favour of the bank.[27] It is also true that the dispute in Galloway was between the registered proprietor and the mortgagee; it did not involve an assertion of rights by a tenant under the RTA. However neither of those factors, upon which Jeremy relied to seek to distinguish Galloway detract from the critical finding by the Court of Appeal that a residential tenancy created without the prior consent of the mortgagee is not a lease to which the notice provisions of the RTA can operate.
[26]Ibid, [17]—[18].
[27]Second defendant, Submissions on behalf of Jeremy Paglia (Second Defendant), dated 8 October 2020, [41(a)]; Galloway v National Australia Bank Limited [2016] VSCA 330, [4].
On behalf of Jeremy, Mr Connors submitted, first, that there is an inconsistency between s 87C of the TLA and s 216 and s 268 of the RTA. Second, that the inconsistency and tension between the two provisions means that they cannot be reconciled and read together. Third, that because the RTA is a statutory provision that is later in time, in the case of an inconsistency, the later statute prevails.[28] Finally, that as the asserted legislative inconsistency was not considered by the Court of Appeal, and the Court did not rule on that question, the submission that he seeks to advance is not precluded by binding authority.
[28]Ibid, [35], relying upon Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 (per Gibbs J) citing with approval South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, 616, 625.
Responding to the inconsistency argument, Mr Gration, on behalf of the Lenders, referred first to two decisions of this Court dealing with s 42(2)(e) of the TLA, Balanced Securities Ltd v Bianco[29] and Commonwealth Bank of Australia v Baranyay.[30] Both of those decisions reinforced the primacy of the indefeasibility provisions of the TLA in favour of a mortgagee over the interests of a tenant in possession where the tenancy arose subsequent to the mortgage.
[29][2010] VSC 162; (2010) 27 VR 599.
[30][1993] 1 VR 589, 598 (‘Baranyay’).
In Tajon Pty Ltd v Arvanitis,[31] arguments similar to those relied upon by Jeremy were relied upon by a residential tenant seeking to resist a summary judgment application by a mortgagee seeking possession. Derham AsJ gave detailed consideration to the relationship between the provisions of the TLA and the RTA and to the relevant authorities:
[31][2017] VSC 130 (‘Tajon’).
55Section 216 of the RTA provides that despite any other Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.[32] Under the RTA a ‘tenancy agreement’ is defined to mean an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence.[33]
[32]Section 216 is in Division 1 of Part 6. Part 6 is headed ‘Termination’. Division 1 is headed ‘Termination of Residential Tenancies’. Part 7 is concerned with regaining possession and Part 8 with violence on certain premises.
[33]Definition of ‘tenancy agreement’ in s 3 of the RTA.
56Section 223 of the RTA provides for termination of a tenancy agreement where a mortgage gives a notice to vacate under s 268.
57Section 268 provides that:
(1)If a mortgagee in respect of rented premises under a mortgage entered into before the tenancy agreement was entered into becomes entitled to possession of, or to exercise a power of sale in respect of, the premises under a mortgage, the mortgagee may give the tenant a notice to vacate the premises. [emphasis added]
(2)The notice must specify a termination date that is not less than 28 days after the date on which the notice is given.
58Section 325 of the RTA enables a mortgagee to apply to the Tribunal for a possession order if the mortgagee has given a notice to vacate and the tenant has not delivered up vacant possession. Section 334 of the RTA provides, so far as relevant, that if a possession order is made under Division 1 of Part 7 in respect of rented premises, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord or mortgagee. Section 448 of the RTA excludes the jurisdiction of courts other than the Supreme Court where proceedings are before the Tribunal, as long as the Tribunal proceedings came first. Sections 509 and 510 provide, so far as relevant, that the Supreme Court has jurisdiction to hear and determine applications in relation to a tenancy agreement of premises situated in Victoria, and has the same powers as the Tribunal would have had if the application had been heard and determined by it.
59Section 87C of the TLA provides for the consequences which flow from a failure to obtain the consent of the mortgagee to a purported lease of mortgaged land:
Mortgagee or annuitant consent required for lease, easement or restrictive covenant
The creation, variation or surrender of a lease or the creation or variation of an easement or restrictive covenant, in respect of land subject to a mortgage or charge, is not valid or binding against a mortgagee or annuitant unless the mortgagee or annuitant has consented in writing to (as the case requires) –
(a)the creation, variation or surrender of the lease; or
(b)the creation or variation of the easement or restrictive covenant.
60The Court of Appeal in Galloway v National Australia Bank Limited[34] considered the operation of this provision in relation to the provisions of the RTA. Osborn JJA (with whom Santamaria JJA agreed), said:
[34][2016] VSCA 330.
The solicitor for the applicant submitted that the provisions of the Residential Tenancies Act 1997 overlay the provisions of the Transfer of Land Act 1958. I do not see that this can be so. If the lease is not valid against the mortgagee, then there is no lease upon which the notice provisions can operate. Similar reasoning applies to the arguments to which I first referred relating to the capacity of the applicant to grant a lease when the land was subject to an order for possession made by the County Court, and subject to a mortgage containing the limitations upon which the Bank relies.
61The plaintiff also relied upon the principles laid down by J Forrest J in Balanced Securities Limited v Bianco & Ors. In that case, a tenancy arose after the execution of a mortgage, but prior to its registration. The tenant defended the mortgagee’s claim for possession on the basis that it was a tenant in possession for the purposes of the exception to indefeasibility in s 42(2) of the TLA. His Honour rejected this argument holding:[35]
The specific question of the competing rights under the TLA of a mortgagee as against that of a tenant in possession has been considered on a number of occasions by judges of this Court and the Federal Court. In each case the Court recognised (implicitly or explicitly) that the rights of the mortgagee as against the tenant, contrary to the argument of the defendants, arise at the time of the creation of the mortgage and that a tenant taking possession subsequently does so subject to the mortgagee’s rights.[36]
62Accordingly, because any tenancy agreement arose after the creation of the mortgages, no protection is conferred on the tenants either by the provisions of the RTA or by s 42(2)(e) of the TLA.[37]
[35]Ibid [92].
[36]See also Independent Order of Oddfellows Victoria Friendly Society v Telford (1991) V Conv R 54-419;
Commonwealth Bank of Australia v Baranyay [1993] Vic Rep 43; (1993) 1 VR 589; and Burke v Dawes (1938) 59 CLR 1 at 18.
[37][2017] VSC 130 (citations in original).
Derham AsJ went on to say:
63I add that this is not the place to attempt to work through the interaction between the provisions of the RTA to which I have referred and the provisions of the TLA. Suffice it to say that in light of the decision of the Court of Appeal in Galloway, it is likely that a mortgagee would seek to proceed in the Tribunal to recover possession from a tenant, under a tenancy agreement entered into after the mortgage, on costs grounds.[38]
[38]Ibid, [63].
On behalf of Jeremy, Mr Connors submitted that there is an inconsistency between s 87C of the TLA and the RTA, in particular ss 216 and 268. He submitted that this asserted inconsistency and tension between the provisions means that they cannot be reconciled and read together. To resolve the inconsistency, Mr Connors submitted that the RTA should prevail over the provisions of s 87C of the TLA, the RTA being a later statute. Reliance was placed upon the principle of statutory construction that:
[W]here there is an inconsistency between one statute and a later statute, ‘the later statute prevails’. If the later enactment contains clear language from which it is plain that its provisions were intended to apply to land under the Act and to apply in a manner inconsistent with the Real Property Act, then they must operate according to their meaning. For the later enactment of the legislature must be given effect at the expense of the earlier.[39]
[39]Second defendant, Submissions on behalf of Jeremy Paglia (Second Defendant), dated 8 October 2020, [35], relying upon Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 (per Gibbs J) citing with approval South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, 616, 625.
One alternative, it was submitted, but giving the same result, was that the inconsistency could be resolved by considering that there is an implied repeal of the former provisions inconsistent with the later legislation.
A further alternative submitted was that, where the later statute prevails, the approach of Ormiston J in Horvath v Commonwealth Bank of Australia could be applied, with the inconsistency of the two provisions being resolved by sequential assessment such that each operates in its own sphere to the extent that neither impinges on the other.[40] It was submitted that if this approach were to be adopted the rights of a tenant as against a non-consenting mortgagee would be defeated but that the mortgagee would have to terminate the residential tenancy agreement and obtain vacant possession through the process and mechanism of the RTA.
[40][1998] VSCA 51; [1999] 1 VR 643, [34].
Finally it was submitted that if s 87C of the TLA were to prevail over the termination and vacant possession sections of the RTA, there would be significant unintended consequences. In circumstances where a tenant commences residing in a property under a residential tenancy agreement that has not been consented to by a mortgagee, as soon as the mortgagee displaces the mortgager, without notice and without the requirement of any process, whether in VCAT or the Supreme Court, the mortgagee could send in agents to force entry and remove the tenant from the property. Even a person who has no license or consent to be in possession of a property is afforded the protections of s 344 and Division 2 of Part 7 of the RTA.
Consideration and disposition
Whilst it was not necessary for Derham AsJ to resolve the inconsistency issue to which his Honour referred in Tajon,[41] it is necessary to consider that issue in the present case in order to determine whether or not Jeremy’s defence has a real prospect of success.
[41][2017] VSC 130.
The starting point is to determine whether in fact there is an inconsistency between the two legislative provisions. Second, if there is an inconsistency, can the two provisions be read in a manner that enables them to work harmoniously together? Third, if not, are the provisions of the RTA legislation relied upon, provisions that are later in time than s 87C of the TLA? Fourth, if so, does that have the consequence contended on behalf of Jeremy that s 216 of the RTA takes priority over s 87C of the TLA?
To determine whether there is an inconsistency requires a comparison of the actual language of each statute to see whether they stand together or whether the later statute has abrogated the earlier statute.[42] When comparing two intersecting statutory provisions it is to be assumed that Parliament normally intends both statutes to work harmoniously together so that each operates within its respective field of application; this position is only displaced by clear and unmistakeable implication.[43] It is with these principles in mind that the question of the asserted inconsistency between s 87C of the TLA and s 216 of the RTA is to be approached.
[42]Cobiac v Liddy (1969) 119 CLR 257, 268 (per Windeyer J); Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, 137—138 [18] (Gummow and Hayne JJ), approved in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1, 19 [47]—[48] (Crennan, Kiefel and Bell JJ).
[43]South Australia v Tanner (1989) 166 CLR 161, 171 (per Wilson, Dawson, Toohey and Gaudron JJ) citing Butler v Attorney-General (Victoria) (1961) 106 CLR 268, 275—276; Sherhold v Tanner (2002) 209 CLR 126, 136 [34] (per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ); Re Maritime Union; Ex Parte CSL Pacific (2003) 214 CLR 397, 411 [28] (per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1, 19 [48] (Crennan, Kiefel and Bell JJ), [98] (Gaegler J); South–Eastern Drainage Board (SA) v The Savings Bank of South Australia (1939) 62 CLR 603, 626.
Section 216 of the RTA, is broad in its language; ‘Despite any Act or law to the contrary’. However, that broad statement is not a statement that applies to the RTA as a whole. It is found within the opening section of and applies only to Part 6 of the RTA titled ‘Termination’. Part 6 and s 216 of the RTA are only concerned with termination under the RTA and for that reason, pre-suppose the existence of a tenancy agreement to which the RTA has application. Part 6 says nothing about and is not directed to the question of what constitutes ‘a tenancy agreement’ to which the RTA has application.
In Galloway the Court of Appeal held there was no valid lease under the RTA, because the consent of the mortgagee to the grant of that lease, as required by s 87C of the TLA, had not first been obtained.[44] As there was never a valid residential tenancy agreement, the provisions of the RTA had no application. Section 216 of the RTA and Part 6 of that Act are not relevant to the enquiry as to what constitutes a valid residential tenancy agreement when the Court is called upon to determine a contest between a mortgagee who has not consented to a residential tenancy, relying upon s 87C of the TLA, and a tenant, a party to such an agreement. There is no inconsistency.
[44][2016] VSCA 330.
What constitutes a ‘tenancy agreement’ is defined in s 3 of the RTA as:
tenancy agreement means an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence, but does not include an SDA residency agreement.
The general requirements for tenancy agreements, including the requirement that, when created, tenancy agreements are required to be in standard form, and to be in writing are found in Part 2 of the RTA.[45] Part 2 does not contain a section the equivalent of s 216. There is nothing in either Part 2 of the RTA, or in the definition of ‘tenancy agreement’ in the RTA, that seeks to give priority either to a tenancy agreement, or to the rights of a tenant under a tenancy agreement, over the interests of a mortgagee to whom s 87C of the TLA has application.
[45]RTA, s 26.
Section 87C of the TLA, expressly provides that a lease is ‘not valid or binding against a mortgagee … unless the mortgagee … has consented in writing to … (a) the creation … of the lease’. Where those circumstances occur, as held in Galloway,[46] there is no residential tenancy to which the Act applies. The express language of s 87C covers the field. Any lease to which s 87C applies, including a residential tenancy agreement to which the RTA might otherwise apply, is not valid or binding against a mortgagee for any purpose.
[46][2016] VSCA 330.
There are specific provisions within the RTA that deal with the relationship between a mortgagee and a tenant under a tenancy agreement. These are discussed by Derham AsJ in Tajon in the passages set out above.[47] Section 223 is an example. That section provides in substance that a tenancy agreement terminates if a mortgagee gives a notice to vacate under s 268. However, s 223 does not address the more fundamental question of the application of the RTA to a tenancy agreement entered into without the consent of the mortgagee. Sections 223 and 335 of the RTA, concerning the right of the mortgagee to obtain possession of residential premises the subject of a tenancy agreement, are predicated upon the existence of a tenancy agreement to which the RTA has application.
[47][2017] VSC 130.
Tenancy agreements entered into without the consent of the mortgagee contrary to s 87C of the TLA are not tenancy agreements to which the RTA has application. So far as residential tenancy agreements are entered into with the consent of the mortgagee, then ss 223 and 335 and the other sections identified in Tajon[48] have work to do. In cases where the tenancy agreement has been entered into with the consent of the mortgagee, the mortgagee is obliged to proceed in any action for possession relying upon these provisions.
[48]Ibid.
Although the inconsistency argument advanced on behalf of Jeremy was not expressly considered by the Court of Appeal in Galloway,[49] for the reasons discussed above, no inconsistency arises between the two Acts. The two Acts can be read so as to operate harmoniously with one another, each within its own sphere of operation. Section 87C has priority and operates where there has been no prior mortgagee consent to a residential tenancy. The RTA, including s 216 and Part 6, applies where the residential tenancy agreement has been entered into with the prior consent of the mortgagee.
[49][2016] VSCA 330.
However, there is another reason why, even if there is an inconsistency as asserted, that the argument advanced on behalf of Jeremy fails. It is central to the submission advanced on his behalf that the RTA is later in time and therefore prevails over s 87C of the TLA. However, that is not what the relevant legislative history shows.
In order to determine which of two allegedly competing statutory provisions is later in time, it is not sufficient to simply compare the date of the two Acts, the RTA being a 1997 Act and the TLA being a 1958 Act. What is required is to compare the dates of the provisions said to be inconsistent with one another. In Royal Automobile Club of Australia Incorporating Imperial Service Club v Sydney City Council, Kirby P (with whom Clarke and Handley JJA agreed) stated:
Where implied repeal is argued it is erroneous to consider nothing more than the dates of the original enactment of the statutes said to be in conflict. More pertinent is the consideration of the enactment of the particular provisions said to give rise to the implied repeal.[50]
[50](1992) 27 NSWLR 282, 287.
The RTA is a 1997 Act; ss 216 and 268 relied upon by Jeremy have remained in the same form since 1997. Whilst it is true that the TLA is a 1958 enactment, s 87C of the TLA was introduced to the 1958 Act as an amendment by Act No. 70 of 2014.
Clause 17 of the Explanatory Memorandum to the Transfer of Land Amendment Bill 2014 (No.70/2014), the Bill that introduced the amending Act, states that s 87C was inserted as a replacement of the old ss 66(2), 67A(2) and 69(1) which were repealed as part of the same legislative amendment. The repealed sections provided that a lease, or a variation to a lease, or a surrender of a lease would not be valid if a mortgagee’s consent had not been given to it.[51] The new s 87C was intended to cover these existing provisions but expanded the protection in favour of the mortgagee to also cover easements and restrictive covenants. It should be noted that the repealed ss 67A(2) and 69(1) had, in turn, been inserted into the TLA by the Transfer of Land (Alpine Resorts) Act 2006 (Vic). Section 66(2) had remained in the Act since its conception in the 1950s having originally been enacted as part of Act No. 5842, Transfer of Land Act 1954 (Vic), and was passed, unamended, into the consolidated Transfer of Land Act 1958.
[51]Transfer of Land Amendment Bill 2014 (No.70/2014), clauses 11—13. Section 66(2) provided that a lease is not valid if a mortgagee's consent had not been given to it; section 67A(2) provided that a variation to a lease is not valid without a mortgagee's consent; and section 69(1) included a requirement for a mortgagee's consent to the surrender of a lease.
As the legislative history shows, the relevant predecessor provision of what is now s 87C (namely s 66(2)) has been part of the TLA since 1958. This predecessor provision was in place in 1997 when the RTA was enacted. Since that time, on two separate occasions, first in 2006 and then in 2014, Parliament has sought to vary this position, but at no time has there been any departure from the protection afforded in favour of mortgagees against a lease entered into after the mortgage and without the prior consent of the mortgagee.
If it were necessary to resolve a conflict between the statutory provisions by reference to which statutory provision is later in time, as is shown by the history of s 87C, it is the provision of the TLA which is later in time and must be given precedence in the event of conflict. The legislative history makes it clear that, if there were any conflict, that conflict, contrary to the submissions made on behalf of Jeremy, would need to be resolved in favour of s 87C of the TLA.
The ‘unintended consequences’ to which counsel for Jeremy referred in submissions – the fact that a mortgagee who displaces the mortgagor without notice in circumstances where there has been non-compliance with s 87C can obtain possession without the need to comply with the provisions of the RTA – can equally be viewed as an intended consequence. That is, an intended consequence of the priority given both by s 87C and by other provisions of the TLA, including s 42(2)(e) in favour of the interests of a mortgagee over those of a tenant who enters into a lease of a mortgaged property from the registered proprietor without the prior consent of the mortgagee.
It is clear that Jeremy’s defence has no real prospect of success. Summary judgment will be entered for the Lenders against Jeremy under s 63 of the Civil Procedure Act 2010 (Vic).
I will make orders in accordance with minutes submitted on behalf of the Lenders, in substance as follows:
(a) The summons dated 23 July 2020 by the plaintiffs by counterclaim is dismissed;
(b) Summary judgment is entered in favour of the defendants to the counterclaim against the plaintiffs by counterclaim pursuant to s 63 of the Civil Procedure Act 2010 (Vic);
(c) Summary judgment is entered in favour of the plaintiffs against the defendants pursuant to s 63 of the Civil Procedure Act 2010 (Vic), including orders for possession of the Property and orders that Jeremy and any other occupier be ejected from the Property;
(d) The defendants pay the Lenders costs of and incidental to the summons dated 23 July 2020, in the case of Paglia, on an indemnity basis and, in the case of Jeremy, on a standard basis;
(e) The plaintiffs by counterclaim pay the defendants by counterclaim’s costs of and incidental to the counterclaim on an indemnity basis;
(f) The defendants pay the plaintiffs costs of the claim against them, in the case of Paglia, on an indemnity basis and, in the case of Jeremy, on a standard basis; and
(g) The proceeding is otherwise dismissed.
Schedule of Parties
Original Proceeding
MA 46 PTY LTD ACN 632 738 848
First Plaintiff
ALMA 003 PTY LTD ACN 632 699 506
Second Plaintiff
and
PAGLIA PROPERTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 853 366 IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE PAGLIA CURRY PROPERTY TRUST
First Defendant
JEREMY PAGLIA
Second Defendant
Counterclaim
PAGLIA PROPERTIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 139 853 366 IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE PAGLIA CURRY PROPERTY TRUST
First Plaintiff by Counterclaim
80 COLLINS STREET THORNBURY PTY LTD ACN 607 878 026 in its own capacity and as trustee for the 80 Collins Street Thornbury Unit Trust
Second Plaintiff by Counterclaim
73 PLENTY ROAD PTY LTD ACN 605 640 588 in its own capacity and as trustee for the 73 Plenty Road Unit Trust
Third Plaintiff by Counterclaim
SP DEVELOPMENTS VIC PTY LTD ACN 612 205 991
Fourth Plaintiff by Counterclaim
and
MA 46 PTY LTD ACN 632 738 848
First Defendant by Counterclaim
ALMA 003 PTY LTD 632 699 506
Second Defendant by Counterclaim
DUNCAN EDWARD CLUBB
Third Defendant by Counterclaim
ANDREW THOMAS SALLWAY
Fourth Defendant by Counterclaim
0
13
0