Maria De Van Der Schueren v Perpetual Trustee Company Ltd

[2012] HCASL 145

MARIA DE VAN DER SCHUEREN

v

PERPETUAL TRUSTEE COMPANY LTD

[2012] HCASL 145
M51/2012

1. On 1 August 2005, the applicant entered a written loan agreement with the respondent.  The sum of $560,000 was advanced.  The advance was secured over some land owned by the applicant.  By 18 April 2006, the applicant was in arrears of loan repayments to the extent of $3,407.85.  On 26 April 2006, the respondent's solicitors posted a default notice requiring payment of the arrears within 31 days.  By the end of that period the applicant was in default to the extent of $2,552.43.  Pursuant to the loan agreement, the full amount owing thereby became due and payable.

2. The respondent filed a writ on 14 June 2006 seeking repayment.  No repayment was made after 2 November 2006.  A second default order relating to arrears of $155,320.28 plus costs was given in 2009, but no payment was made in response.

3. On 1 July 2011, the Supreme Court of Victoria (Zammit AsJ) gave judgment to the respondent in the sum of $1,287,122.04 and made an order for possession of the land.  The applicant did not attend the hearing on 15 and 16 June 2011.  In Zammit AsJ's view, the failure to attend was never convincingly explained.

4. On 23 January 2012, Zammit As J dismissed a summons by the applicant seeking to set aside the 1 July 2011 orders.  Although her Honour was not sufficiently satisfied with the applicant's explanations for delay in bringing the application to set the earlier judgment aside, she considered that the central issue in relation to whether that judgment should be set aside was the strength of the applicant's case.  She noted that certain statutory defences on which the applicant wished to rely had been raised for the first time in the course of the application, that there was no pleading or evidence before the court in support of those defences, and that to entertain them six years after the writ had been initially filed would be manifestly unfair to the respondent.  In relation to other defences, there was no evidence, but only an assertion, that the applicant had an arguable case.

5. The Court of Appeal of the Supreme Court of Victoria (Buchanan and Mandie JJA) refused leave to appeal.  The Court examined closely various arguments which the applicant advanced.  It concluded that the applicant had failed to establish that Zammit AsJ's discretion had miscarried.

6. The papers filed by the applicant in support of her application for special leave to appeal to this Court do not reveal any misapplication by the courts below of the settled principles which apply to Zammit AsJ's discretionary judgment on a matter of practice and procedure.  As the Court of Appeal pointed out, once it is accepted, as it must be, that the applicant is contractually obliged to repay the loan, there is a very powerful discretionary factor operating against the applicant:  her failure to make any offer to do equity in relation to the very large sum she now owes, in circumstances where she has made no repayments for years.

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
13 November 2012 V.M. Bell