Members Equity Bank Pty Ltd v Elefterescu
[2018] VSC 223
•9 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2017 03072
| MEMBERS EQUITY BANK PTY LIMITED (ACN 070 887 679) | Plaintiff |
| v | |
| HORIA ROMEO RAZVAN ELEFTERESCU | First Defendant |
| - and - | |
| ELENA ELEFTERESCU | Second Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May 2018 |
DATE OF JUDGMENT: | 9 May 2018 |
CASE MAY BE CITED AS: | Members Equity Bank Pty Ltd v Elefterescu |
MEDIUM NEUTRAL CITATION: | [2018] VSC 223 |
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PRACTICE AND PROCEDURE – Appeal from an Associate Justice’s refusal to permit a lay advocate to appear – Relevant principles to be applied with respect to applications for parties to be assisted in court by ‘McKenzie Friends’ and lay advocates – No error by the Associate Justice – Appeal dismissed.
PRACTICE AND PROCEDURE – Principles to be applied on application for summary judgment – Plaintiff granted summary judgment and defendants’ counterclaims summarily dismissed.
CONSTITUTIONAL LAW – Notice requirements under s 78B Judiciary Act (Cth) only arises if the constitutional point is real and substantial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Gobbo | Russell Kennedy |
| No appearance for or on behalf The Second Defendant appeared in person |
HIS HONOUR:
By writ filed 3 August 2017, the plaintiff claims orders for possession of the land known as 9 Pelican Point, Hopetoun Park, being Certificate of Title volume 11303 folio 252 (‘the Land’), and the payment of $327,006.63 plus interest pursuant to a loan agreement executed by the defendants on 28 July 2012 and a registered mortgage dated 13 July 2012.
By defence and counterclaim filed 15 September 2017, the second defendant, in summary, alleges that:
(a)the plaintiff has no legal standing to bring this matter, among other reasons because it was incorporated under the Corporations Act 2001 (Cth) which, the second defendant alleges, is ‘not an Act of the Parliament of the Commonwealth’;
(b) no moneys were loaned by the plaintiff to the defendants;
(c)the plaintiff fraudulently loaned to the defendants their own credit ‘at usury’, having ‘converted’ the defendants’ credit into the plaintiff’s credit;
(d)the plaintiff assigned or otherwise traded the loans on the ‘Equity market’ in ‘Credit Default Swaps’.
By her counterclaim, the second defendant alleges that if she did enter into the loan agreement with the plaintiff, it was in circumstances where she:
(a)relied upon and trusted the plaintiff in the management of her financial affairs;
(b)was not advised properly or at all by the plaintiff about the nature, scope and effect of the document she was executing;
(c)was not given the opportunity of obtaining independent accounting and or legal advice in respect thereto;
(d) was under a mistake of fact;
(e) received no consideration of value therefor;
(f) consequently was at a special disadvantage;
(g) entered into the loan agreement under a mistake of fact and law; and
by reason of the above, the loan agreement is void, voidable, unconscionable and unjust. Consequently, she claims that the loan agreement and the mortgage should be set aside and other relief including damages.
By defence filed 11 December 2017, the first defendant alleges as follows:
(a) He has been living in Europe for the past three years.
(b)The plaintiff has assigned its rights under the loan agreement ‘and therefore has no legal standing to bring this matter’.
(c)The mortgage is unenforceable because the plaintiff has not executed the document pursuant to the Corporations Act 2001 (Cth).
(d)The terms and conditions of the mortgage are unconscionable ‘and are designed to asset strip the people who obtain a mortgage loan’ with the plaintiff.
(e) The first defendant does not owe any money to the plaintiff.
(f)The plaintiff’s alleged indefeasibility was defeated by fraud pursuant to s 44(1) of the Transfer of Land Act 1958 (Vic).
By his counterclaim, the first defendant makes the same allegations and seeks the same relief as the counterclaim filed by the second defendant.
By summons filed 29 January 2018, the plaintiff seeks relief including summary judgment against the defendant and summary dismissal of the defendants’ counterclaims pursuant to s 63 of the Civil Procedure Act2010 (Vic).
At a directions hearing on 19 February 2018, Lansdowne AsJ made orders for the filing of affidavits and listed the hearing of the plaintiff’s summons on 29 March 2018. In Other Matters, she noted:
1.The plaintiff seeks summary judgment for possession and debt for default on a mortgage granted by the defendants. The plaintiff’s application was listed today for directions.
Appearances
2.Each of the defendants have filed notices of appearance and defences personally i.e. neither has a solicitor on the record. The second defendant appeared in person. There was no appearance by the first defendant in person. A Mr Dennis Jensen entered an appearance as ‘Advocate’ on the appearance sheet, without indicating for whom he sought to appear.
3.The second defendant described Mr Jensen to the Court as ‘my ex-husband’s advocate’. This may be inconsistent with the assertion in a letter dated 31 March 2017 from ‘Dennis Jensen Managing Director Common Law Resolutions Pty Ltd’ to the solicitors for the plaintiff stating ‘We act on behalf of Mrs Elena Elefterescu’. That letter and covering email are Exhibit PDM-5 to the affidavit of Paul Daniel McCarthy sworn 11 October 2017 in support of an application for substituted service of the writ on the first defendant.
4.In any event, the law is clear that only a party him or herself or a legal representative for a party is permitted to appear in the sense of addressing the Court or filing evidence, although an unrepresented party can seek leave for a lay person to assist him or her by taking notes at the bar table – Vella v Waybecca Pty Ltd [2014] VSC 443. That assisting person is known as a ‘McKenzie friend’ and may not speak to the Court.
5.As the Court endeavoured to explain this to the second defendant, Mr Jensen continually interjected and refused to take his seat when directed. When asked by the Court what his qualifications were and by what right he sought to appear, he stated that he was a representative of the Queen and he challenged the Court. On the Court ruling that he was unable to appear, Mr Jensen stated that the Court could not rule and again declined to take a seat, despite warning that if he did not do so he would be removed. The Court adjourned briefly and requested the security staff to remove Mr Jensen from the court room. On resuming, the directions hearing continued, the second defendant appearing in person and no appearance for the first defendant.
Directions hearing
6.The Court heard first from the plaintiff. The plaintiff does not seek to file any further evidence in support of its application.
7.The second defendant then stated that she was in agreement with Dennis Jensen and challenged the Court’s ‘standing’. The second defendant handed up an affidavit affirmed by her on 19 February 2018 deposing to service of an exhibited document at the Magistrates’ Court. The Court read the affidavit and exhibited document. The document asserts that a Damien Capobianco, described as ‘the Accused’ has committed various counts of ‘Common Law of Misprision of Treason’. The solicitor for the plaintiff informs the Court that the document appears to relate to a purported private prosecution of the criminal registrar of the Melbourne Magistrates’ Court. The Court ruled against the application by the second defendant that the proceeding be halted and against any application by the first defendant that Mr Jensen have leave to appear for him.
8.After discussion of the timetable, the second defendant asked about her application ‘to have the writ struck out’. The Court informed her that any such application needed to be made on summons on notice. She also asked if the Court was aware that ‘the Queen was removed without a referendum’, which challenges the Court’s ‘standing’. The submission is not one that is known to the law.
9.The plaintiff sought that the second defendant file her certificate under the Civil Procedure Act 2010. After debate, the second defendant did so. The Court informed the second defendant that any application she wished to make to the effect that the plaintiff had breached its obligations in relation to its certificate needs to be made on summons.
By Notice of Appeal filed 8 March 2018, the defendants appealed against the orders of Lansdowne AsJ made 19 February 2018.
By summons filed 13 March 2018, the second defendant seeks relief including summary judgment against the plaintiff ‘for the relief set forth in the Defence and Counterclaim of the First and Second Defendant’ pursuant to the Civil Procedure Act2010.
On 26 March 2018, I gave directions with respect to the plaintiff’s summons filed 29 January 2018, the second defendant’s summons filed 13 March 2018 and the defendants’ appeal filed 8 March 2018; and set each of these matters down for hearing on 2 May 2018.
Plaintiff’s affidavits
The plaintiff relies upon the following affidavits:
(a)Paul Daniel McCarthy, the solicitor for the plaintiff, sworn 19 January 2018 and separately on 20 April 2018;
(b) Katia Ferrante, police officer, sworn 23 January 2018; and
(c)Josef Livne, team leader in the plaintiff’s retail banking department, sworn 25 January 2018.
In summary, the plaintiff’s affidavits depose to the following:
(a)A home loan application was signed by the first defendant and the second defendant, dated 6 April 2012.
(b)A loan agreement (‘the Loan Agreement’) was signed by the first and second defendants on 28 July 2012, under which the plaintiff agreed to loan the defendants a total of $340,000 in the following two accounts:
(i)loan facility 1 account No 13576062, being an owner occupied variable interest rate facility for $50,000; and
(ii)loan facility 2 account No 13576119, being an owner occupied fixed interest rate facility for $290,000.
(c) Relevantly, the Loan Agreement included the following terms:
A. In Section 16 of Part B — ‘Assignment’
We may assign or otherwise deal with our rights under this loan contract in any way we consider appropriate.
(The Assignment clause)
B. In Section 16 of Part B — ‘Credit Legislation’
If:
(a)any credit legislation would otherwise make a provision of this mortgage illegal, void or unenforceable; or
(b)a provision of this mortgage would otherwise contravene a requirement of that legislation or impose an obligation or liability which is prohibited by that legislation,
this mortgage is to be read as if that provision were varied, or the amount of the obligation or liability reduced, to the extent necessary to comply with that legislation or, if necessary, omitted.
(The Credit Legislation clause’)
C. In ‘Section 3 — Security’:
We will take (or we have taken) the following as security for the amounts owing under this contract:
•first priority mortgage by Elena Elefterescu and Horia Romeo Razvan Elefterescu over the property known as:
Lot 105 PELICAN POINT HOPETOUN PARK VIC 3340.
(d)The Loan Agreement included the following Borrower’s Acknowledgement, which was signed by the defendants:
YOU HAVE THE RIGHT TO OBTAIN INDEPENDENT LEGAL ADVICE BEFORE SIGNING THIS LOAN CONTRACT. IT IS IMPORTANT THAT YOU UNDERSTAND WHAT YOU ARE SIGNING
I/we have read the loan contract (the letter of offer and the booklet(s) of additional terms and conditions) and I/we understand the nature and effect of the loan contract and my/our obligations under it, including without limitation:
· I/we understand that the amount being borrowed must be repaid with interest, fees and charges in accordance with the terms of the loan contract.
· I/we understand that, even though there may be other borrowers, the credit provider may require me/us to pay the whole of the amounts owing under the loan contract and may take legal action against me/us to recover the amounts owing under the loan contract.
· I/we understand that, if the loan contract says that I/we have to give a mortgage and there is a default, the credit provider may sell the mortgaged property and I/we may still owe money.
I/we have signed this loan contract freely and voluntarily.
I/we acknowledge that: (please tick one of the following)
□ I/we have obtained independent legal advice about the loan contract.
þI/we have chosen not to take independent legal advice about the loan contract.
________________________ _____________________________
Signature of Borrower Signature of BorrowerElena Elefterescu Horia Romeo Razvan Elefterescu
(e)An undated Customer Authority authorising the plaintiff and its solicitors to complete documents signed by the defendants in relation to the transaction with the plaintiff, including by dating or completing any blanks.
(f)A letter from the defendants’ solicitors to the plaintiff’s solicitors dated 11 July 2012 confirming the settlement details and the cheques required at settlement.
(g)A settlement instruction certificate dated 11 July 2012 prepared by the plaintiff’s solicitors with respect to a settlement on 13 July 2012 for the Land which confirms the distribution of the loan funds of $340,000:
Amount of Credit Method of Disbursement Payment 1. $395.00 Internal Transfer Payee: Package Fee 2. $1,279.00 Bank Cheque Land Titles Office 3. $17,620.00 Bank Cheque State Revenue Office 4. $318,700.42 Bank Cheque David Geer Lawyer Trust Account No 2 5. $1,045.00 Bank Cheque David Geer, Lawyer 6. $190.58 Bank Cheque SAI Global Property Division 7. $770.00 Bank Cheque Prompt Legal Services Total $340,000.00
(h)A mortgage over the Land to the plaintiff executed by the first and second defendants before Katia Ferrante dated 13 July 2012 incorporating Memorandum of Common Provisions No. AA558, which included the following terms:
(i) In Part 13 under the heading ‘Power of Attorney’:
(a)You appoint us as your attorney (with power to appoint substitutes) to execute all documents and do everything:
(1) which you must do under this mortgage;
(2) which we are entitled to do under this mortgage; or
(3)for protecting or preserving our interest in the property.
You cannot revoke this power of attorney until you have paid to us all of the money you owe us. You agree to ratify and confirm anything which we do in exercising this power of attorney.
…
(c)You also agree to give us on request a separate power of attorney on substantially the same conditions as the power of attorney in this mortgage. The power of attorney must be if we require in registrable form and in a form which complies with all relevant legislation concerning powers of attorney.
(‘the Power of Attorney clause’)
(ii) In Part 15 under the heading ‘Certificates we give you’:
If we give you a certificate which states any amount payable or any other matter relating to this mortgage, the certificate will be sufficient evidence of these matters unless it is proved to be incorrect.
(i)The defendants have not paid any instalments due under the Loan Agreement with respect to the loan facility 1 account No 13576062 from January 2017; and the loan facility 2 account No 13576119 from November 2016.
(j)A Notice of Default dated 23 March 2017 from the solicitors to the plaintiff alleging instalment arrears of $6,649.78.
(k)Notices to each of the defendants demanding repayment of the unpaid balances of the loan accounts.
The plaintiff also tendered a certificate, under cl 16.6 of the Loan Agreement, certifying that the sum due and payable by the defendants to the plaintiff under the mortgage, as at 2 May 2018, is $376,646.98.
Defendants’ affidavits
The defendants relied upon affidavits affirmed by the second defendant on 15 February 2018, 28 February 2018, 8 March 2018, 13 March 2018, 12 April 2018, 13 April 2018 (11 affidavits) and 26 April 2018 (3 affidavits); and affidavits affirmed by Dennis Jensen on 28 February 208 and 8 March 2018.
In summary, these affidavits deal with the following matters:
(a)An affidavit affirmed by the second defendant on 15 February 2018 contends the plaintiff’s application is an abuse of process and alleges the plaintiff has failed to provide further and better particulars or details of securitisation of the Credit Contract; and that the Corporations Act 2001 (Cth) is not an Act of the Commonwealth Parliament.
(b)An affidavit affirmed by the second defendant on 28 February 2018 asserts that Dennis Jensen is ‘the Common Law Advocate’ for the first defendant and herself and he has a right to speak on their behalf. She states that Mr Jensen was not forcibly removed from the Court before Associate Justice Lansdowne; but left of his own accord.
(c)An affidavit affirmed by Dennis Jensen on the same date is to the same effect.
(d)Affidavit No 2 affirmed by the second defendant on 8 March 2018 stated that Associate Justice Lansdowne refused the challenge to her standing, which raised the need to issue notices under s 78B of the Judiciary Act 1902 (Cth) on the basis of the effect of ‘the removal of Her Majesty Queen Elizabeth II – the Crown’ in two pieces of legislation being the Courts and Tribunal Further Amendment Act 2000 (Vic) and the Acts Amendment and Repeal of Courts Legal Practices Act 2004 (WA) (‘the Removal of the Queen Point’). Further, her Honour failed to address issues of:
(i)bias;
(ii)apprehension of bias;
(iii)indictable offences under s 34 of the Crimes Act 1914 (Cth), treason, misprision of treason and attempting to pervert the course of justice.
She states that 28 Grand Jury applications were lodged at the Melbourne Magistrates’ Court on 15 December 2006.
(e)An affidavit affirmed by Mr Dennis Jensen on the same date is to the same effect.
(f)The affidavit affirmed by the second defendant on 13 March 2018 asserts that the plaintiff’s claim has no prospect of success for reasons including the following:
(i)The Corporations Act 2001 (Cth) is not a law of the Commonwealth of Australia.
(ii)The plaintiff has no standing because it has sold the Loan Agreement and the mortgage to a third party.
(iii)The credit contract is not signed by the plaintiff and therefore is void.
(iv)There is no evidence as to where the plaintiff obtained the credit.
(v)The Credit Contract was signed on 28 July 2012 after the mortgage dated 13 July 2012.
(vi)After signing, the mortgage was altered by the insertion of the Certificate of Title volume and folio numbers and the date. Accordingly, the mortgage has been fraudulently altered and is void;
(vii)Perpetual Trustees is the real plaintiff because it is the trustee of the pool of housing loans originated by the plaintiff.
(viii)The defendants did not want to enter a loan agreement but rather a credit contract. The Notice of Default dated 23 March 2017 refers to a Credit Contract, but the writ refers to a Loan Agreement. Consequently, the writ is an abuse of process.
(ix)The Memorandum of Common Provisions includes a power of attorney to the plaintiff which was not disclosed (presumably the Power of Attorney clause). The plaintiff has used the power of attorney to alter documents, trade documents, issue proceedings and do other things.
(g)The affidavit affirmed by the second defendant on 12 April 2018 repeats allegations about the Memorandum of Common Provisions deceptively including a power of attorney and the plaintiff assigning or otherwise dealing with the mortgage. She complains about a lack of particulars and the plaintiff’s alleged failure to give discovery. She asserts that the terms of the Memorandum of Common Provisions, and in particular that the Credit Legislation clause, are treasonous.
(h)Affidavit No 3 affirmed by the second defendant on 13 April 2018 exhibits an article entitled ‘the Constitution and the Law of Treason’.
(i)Affidavit No 4 affirmed by the second defendant on 13 April 2018 exhibits 24 pages purporting to be a ‘Criminal Charge for Common Law Grand Jury’ against Kenneth Hayne, with Brian Shaw as the purported informant and witnessed by 24 individuals including the second defendant, Dennis Jensen and G J Donohue. The purported crimes being the subject of the ‘Criminal Charge’ are treason and misprision of treason.
(j)Affidavit No 5 affirmed by the second defendant on 13 April 2018 exhibits an article entitled ‘International Growth Fund — Class A’ by Fidelity Investments Institutional Services Company, Inc of Boston.
(k)Affidavit No 6 affirmed by the second defendant on 13 April 2018 exhibits a ‘Fidelity transaction printout revealing the actual financial trading via Fidelity Investments Boston of the actual Promissory Note id 943725256010 sent to [the plaintiff] by registered post on 22 December 2016’.
(l)Affidavit No 7 affirmed by the second defendant on 13 April 2018 exhibits a certified extract from the Melbourne Magistrates’ Court of the order of the Magistrate on 29 January 2007, striking out a charge against the then-Attorney General Rob Hulls for treason, and with Brian Shaw named as the informant.
(m)Affidavit No 8 affirmed by the second defendant on 13 April 2018 exhibits an affidavit of Brian William Shaw affirmed 9 April 2018.
(n)Affidavit No 9 affirmed by the second defendant on 13 April 2018 exhibits 23 ‘charge sheets’ witnessed by 23 people and purported to be a ‘Criminal Charge for Common Law Grand Jury’ against a Magistrates’ Court registry officer, Damian Capobianco, with Dennis Jensen as the purported informant.
(o)Affidavit No 10 affirmed by the second defendant on 13 April 2018 exhibits two documents of 26 purported charges of Common Law Misprision of Treason on 19 February 2018 naming Lansdowne AsJ, in which Brian Shaw is the purported informant.
(p)Affidavit No 11 affirmed by the second defendant on 13 April 2018 exhibits the second defendant’s submissions purportedly in respect of the appeal but in fact relating to the alleged ‘Misprision of Treason’ and other materials relating to the Removal of the Queen Point. The affidavit also exhibited materials alleging a Masonic conspiracy to undermine the Australian Constitution, in which ‘[a]ll Judges, Magistrates, Registrars, Lawyers, Barristers have implicated themselves’.
(q)Affidavit affirmed by the second defendant on 13 April 2018 deposes that the second defendant served a document which purported to itemise 13 counts of Common Law Misprision of Treason to Damian Capobianco at the Magistrates’ Court on 16 February 2018.
(r)Affidavit No 2 Supporting Notice of Appeal affirmed by the second defendant on 13 April 2018 states that Associate Justice Lansdowne refused to entertain an application under s 78B of the Judiciary Act 1903 (Cth) which related to the Removal of the Queen Point (that application presumably being to stay proceedings until the requisite notices were issued).
(s)The first affidavit affirmed by the second defendant on 26 April 2018 purports to exhibit ‘documents proving fraudulent and criminal activity of Russell Kennedy Lawyers firm trading with Members Equity Bank in Fidelity’.
(t)The second affidavit affirmed by the second defendant on 26 April 2018 states that ‘all the questions present in all my other affidavits filed in this matter are questions of fact not questions of law’.
(u)The third affidavit affirmed by the second defendant on 26 April 2018 states that:
(i)none of the documents signed in 2012 were translated into the second defendant’s native language or clearly explained in the Romanian language;
(ii)the Power of Attorney clause was never mentioned to her;
(iii)the Power of Attorney clause should have been translated and explained.
In summary, the second defendant orally submitted as follows:
(a)The Removal of the Queen Point required the matter to be stayed under s 78B of the Judiciary Act 1903.
(b)The Corporations Act 2001 (Cth) is not an Act of the Commonwealth Parliament and therefore the plaintiff has no standing to bring this claim.
(c)The inclusion of the Power of Attorney clause in the mortgage was a fraud.
(d)The inclusion of the Credit Legislation clause was treasonous as an attempt to place itself above the law.
(e)The Loan Agreement and the mortgage were not signed by the plaintiff and therefore it has no standing.
(f)The inclusion of the certificate of title volume and folio particulars after execution of the mortgage was a fraud and invalidated the mortgage.
(g)The plaintiff had failed to provide further and better particulars and documents to enable the defendants to establish the assignment of, or other dealing with, the debt by the plaintiff.
The Defendants’ Appeal
The grounds of appeal and orders sought are as follows:
1)That Associate Justice Lansdowne did act oppressively (Crimes Act 1914 (Cth) section 34).
2)That Associate Justice Lansdowne did act when personally interested (Crimes Act 1914 (Cth) section 34).
3)That Associate Justice Lansdowne did not permit a 78B notice (Judiciary Act 1903 (Cth)).
4)That Associate Justice Lansdowne did not permit advocate Dennis Jensen to give valid reasons as to why he has standing in the matter.
5)That it was mentioned from the Bar table that the Queen has been removed from specific laws in Australia.
Specifically, from two relevant advert acts
Courts and Tribunals Further Amendments Act (Victoria)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2004 (WA)
6)That the judicial conduct of Associate Justice Lansdowne is the element that activates the criminal offence of attempting to pervert the course of justice as outlined in the High Court Matter of R v Murphy.
7)That the purported order of Associate Justice Lansdowne be ruled to be void in law because of the two acts specified at order number 5
8)That Associate Justice Lansdowne had to be exercising the constitutional confinements of a Chapter III court which was and remains a Constitutional Impossibility because of the removal of the Queen evidenced within the two acts mentioned in ground number 5.
9)That both defendants are relying on the Whistleblowers Act ‘Whistleblowers Protection Act 2001’.
10)That a delay in prosecution is a question of fact ‘Sec 43 Crimes Act 1914’.
JUDGMENT OR ORDER/S SOUGHT
1)That the civil matter be stayed permanently until the discovery of all Grand Jury Applications lodged in the Criminal Jurisdiction of the Full Court of the Supreme Court of Victoria be heard.
2)That the First Defendant, currently living in the UK, be allowed to nominate a natural person to speak on his behalf.
3)That every Constitutional issue discovered in this matter be treated correctly as is the rightful will of the people.
As best I can identify, the defendants’ grounds of appeal relate to the refusal to stay the proceeding under s 78B Judiciary Act 1903 (Cth), the related Removal of the Queen Point and the refusal to grant leave to Mr Jensen to appear as an advocate.
I reject the contention that the Associate Judge made an error in refusing to stay the proceeding under s 78B Judiciary Act 1903 (Cth) on the basis of the Removal of the Queen Point for the reasons set out below at paragraphs [32]-[48]. I will now deal with the refusal to allow Mr Jensen to appear ground.
At the hearing on 19 February 2018, the Associate Justice refused Mr Jensen leave to appear on behalf of the first defendant. The circumstances of the refusal are revealed by the relevant part of the transcript:
MR McCARTHY: If Your Honour pleases, I appear on behalf of the plaintiff in this matter.
HER HONOUR: Yes. And Mrs Elefterescu. I will just speak to Mrs Elefterescu. Thank you. Just have a seat, sir. You're here in person?
MS ELEFTERESCU: Yes.
HER HONOUR: Now, a Mr Jensen, who I take it is the man sitting next to you, has - please remain standing when I'm speaking to you - has indicated that he's an advocate. Does Mr Jensen have any legal qualifications?
MS ELEFTERESCU: He is my ex-husband's advocate. That's what I know.
HER HONOUR: All right. Well, in this court the only people who are entitled to speak for themselves are either people - sit down, Mr Jensen.
MR JENSEN: Excuse me, Your Honour - - -
HER HONOUR: Sit down, Mr Jensen. The only people who are entitled to speak are people themselves or lawyers for them. So Mr Jensen is not your lawyer I take it?
MR JENSEN: Excuse me, Your Honour - - -
HER HONOUR: I'm speaking to Mrs - - -
MR JENSEN: - - - I'm going to challenge your standing right now.
HER HONOUR: Mr Jensen, please sit down.
MR JENSEN: Your Honour, I am an advocate for the defendant and I - I am challenging your standing. With the Queen being removed, Your Honour, I'm going to invoke a 78B issue right now.
HER HONOUR: Just sit down, Mr Jensen.
MR JENSEN: No.
HER HONOUR: As a matter of common courtesy, if nothing else, I'm speaking to another person. Please sit down.
MR JENSEN: You're eliminating me from the equation, Your Honour.
HER HONOUR: I'm speaking to another person. Sit down. If you don't sit down I'm going to remove both you and Mrs Elefterescu from this room. Now, is Mr Jensen your lawyer?
MS ELEFTERESCU: Not my lawyer.
HER HONOUR: Is he a lawyer?
MS ELEFTERESCU: Yes, he is representing my ex-husband.
HER HONOUR: Thank you. Just have a seat. Mr Jensen, what are your qualifications and by what right do you seek to appear for Mrs Elefterescu?
MR JENSEN: Well, I'm - I'm here, I'm a representative of the Queen, Your Honour, and, um - and I now invoke a 78B because the Queen has been removed from the Legal Practices Act. This is not (foreign words spoken).
HER HONOUR: All right. I don't consider that to be a submission that in any way changes what I've said. You're not permitted - I'm sorry, Mr Jensen, I'm - - -
MR JENSEN: Look, I've challenged you, Your Honour.
HER HONOUR: Well, I know, you've challenged me and I'm ruling. My ruling is you are - - -
MR JENSEN: No, you cannot rule.
HER HONOUR: Mr Jensen, if you don't sit down I'm going to ask the security staff to come in - - -
MR JENSEN: So then that will be criminal.
HER HONOUR: - - - and escort you out of the room.
MR JENSEN: Then you'll invoke a criminal offence. So this court is closed.
HER HONOUR: Well, it's a - will you sit down, please, Mr Jensen?
MR JENSEN: Your Honour, have you heard what I've said?
HER HONOUR: All right. I'm just about to go off the Bench. I'll ask the PSOs to come in and remove this gentleman.
MR JENSEN: So that's a criminal offence. So this court is closed.
HER HONOUR: Yes, I'm adjourning.
As mentioned above, the defendants appeal against the decision of the Associate Justice to refuse leave to Mr Jensen to appear. It is incumbent on the defendants, as the appellants, to show error on the part of the Associate Justice because it is an appeal by way of rehearing and not a hearing de novo.[1]
[1]Oswal v Carson [2013] VSC 355 [11] (Ferguson J).
The relevant principles to be applied with respect to parties being assisted in court are as follows:
(a)Only a qualified legal practitioner has a right of appearance before a court. Certainly a lay advocate has no right of audience other than is conferred by statute.[2]
[2]Waddington v Dandenong Magistrates’ Court [2014] VSCA 12 [18] (Nettle JA, with whom Beach JA and McMillan AJA agreed).
(b)A person may attend as a friend of a party, sitting in proximity to the party, taking notes, quietly making suggestions and give advice if given leave by the Court.[3] Such a person is described as a ‘McKenzie friend’. This assistance is subject to the discretion of the Court, but permission ought, in the ordinary case, be granted when application is made.[4]
[3]McKenzie v McKenzie [1971] LR (Probate) 33, 38; Apostolou v Commissioner of State Revenue [2008] VSC 332 [20] (Mandie J).
[4]Cornall v Nagle (1995) 2 VR 188, 202 (JD Phillips J).
(c)A court is entitled to exercise control over its own procedures and proceedings and may allow itself to be addressed in a proper case by any person it considers a proper person to be allowed an audience.[5]
(d)The guiding principle, as to whether the Court should exercise its discretion and permit an unqualified person to appear on behalf of a party, is the public interest in the attainment of the ends of justice.[6]
(e)The relevant considerations in determining whether a grant of leave is in the interests of justice include:
(i)the complexity of the case;
(ii)the genuine difficulties of the unrepresented party;
(iii)the unavailability of disparate measures and a duty to the Court by lay advocates;
(iv)the protection of the client and the opponent;
(v)whether the application is made in inferior courts and tribunals.[7]
[5]Hubbard Association of Scientologists International v Anderson [1972] VR 340, 342 (Smith, Little and Gowans JJ).
[6]Danjanovic v Maley (2002) 195 ALR 256, 269 [83] (Stein JA, with whom Mason P and Sheller JA agreed).
[7]For a discussion of these factors, see Danjanovic v Maley (2002) 195 ALR 256, 267-268 [70]-[82] (Stein JA with whom Mason P and Sheller JA agreed).
The following conduct and circumstances of the proposed lay advocate have also been held to constitute relevant considerations:
(a)The appearance by the proposed lay advocate is in contravention of the prohibition on a person from engaging in legal practice unless qualified to do so.[8] The representation of a party before a court, even without charging a fee, will normally involve engaging in legal practice;[9] and, if the person purports to act in effect as the solicitor in the proceeding, it will constitute unqualified practice.[10] However, as Nettle JA observed in Waddington v Dandenong Magistrates’ Court:[11]
[8]For the prohibition, see the Legal Profession Uniform Law, section 10; schedule 1 of the Legal Profession Uniform Law Application Act 2014.
[9]Waddington v The Magistrates’ Court and Kha (No 2) [2013] VSC 340 [37] (Emerton J).
[10]Vella v Wybecca Pty Ltd [2014] VSC 443 [21] (Hargrave J).
[11][2014] VSC 12 [17].
Possibly, an occasional honorary appearance by a lay spokesperson on behalf of a party would not without more rise to the level of engaging in legal practice.
(b)The proposed lay advocate asserts a right to appear. A court is entitled to refuse leave to an unqualified person who does not apply for leave to appear on behalf of a person but, wrongfully, asserts a right to do so.[12]
[12]Vella v Wybecca Pty Ltd [2014] VSC 443 [29] (Hargrave J).
(c) The proposed lay advocate:
(iii) displays no proper understanding of the legal process or the issues involved in the case;
(iv)would not conduct the party’s case in an orderly or responsible manner; or
(v) may otherwise cause the waste of court time. [13]
(d)The proposed lay advocate may have an ulterior interest in appearing. In R v Bow County Court, Ex parte Pelling,[14] the English Court of Appeal refused an application for a person, who regularly appeared as a McKenzie friend, to appear as a McKenzie friend because of concerns about the ‘difficulty in divorcing his campaigning role as chairman of the pressure group … from that as an assistant of litigants in person’; and the risk that ‘he will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet’.[15] This consideration would apply a fortiori with respect to an application for leave to appear.
[13]Ibid [27].
[14][1999] 1 WLR 1807 (Lord Woolf MR, Brooke and Robert Walker LJJ).
[15]Ibid 1825.
In my opinion, the Associate Justice was right to refuse to exercise her discretion to grant Mr Jensen leave to appear on behalf of the first defendant. In the short exchange referred to above, he referred to himself as being a ‘representative of the Queen’ (a title unknown to Australian Law), wrongfully asserted a right to appear, adverted to the Removal of the Queen Point, refused to be seated when asked, and accused the Associate Justice of criminal conduct. The Associate Justice was more than entitled to conclude that granting leave to Mr Jensen to appear would disrupt the hearing before her, result in bizarre and irrelevant issues being raised and not assist either defendant.
I propose to dismiss the appeal.
Principles on application of summary judgment
The applications for summary judgment and dismissal are made respectively by the plaintiff and the defendants under s 61, s 62 and s 63(1) of the Civil Procedure Act 2010.
Sections 61, 62 and 63(1) of the Civil Procedure Act 2010 provide:
61A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.
62A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63(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.
The proper approach to the determination of an application under ss 61 and 62 was explained in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd[16] as follows:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ’real’ as opposed to a ’fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ’hopeless’ or ’bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ’hopeless’ or ’bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might 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 success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[17]
[16](2013) 42 VR 27 (Warren CJ, Nettle and Neave JJA).
[17]Ibid 40 [35] (Warren CJ and Nettle JA).
If the Court finds that the proceeding has no real prospect of success, it has a broad residual discretion,[18] to be exercised consistently with the overarching purposes of the Civil Procedure Act 2010,[19] to nonetheless refuse the application 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.
[18]Civil Procedure Act 2010 s 64; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1, 8–9 [12] (Dixon J).
[19]Ibid 42 [41]–[42] (Neave JA).
Consideration of the Applications under the Civil Procedure Act 2010
The evidence in support of the plaintiff’s claim, being:
(a) the advance of $340,000 under the Loan Agreement and mortgage;
(b)the default of the defendants under the Loan Agreement and mortgage; and
(c)the service of the requisite notices on the defendants under the Loan Agreement and mortgage;
are not disputed in the evidence filed by the defendants; and I consider there is no real prospect of the defendants successfully disputing them.
Accordingly, subject to the allegations raised by the defences and counterclaims of the defendants, the plaintiff is entitled to summary judgment. I will now deal with the issues, which I am able to identify as being raised in the defendants’ pleadings and submissions.
The Removal of the Queen Point required the matter to be stayed under s 78B of the Judiciary Act 1903?
Section 78B of the Judiciary Act 1903 provides as follows:
Notice to Attorneys-General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
The second defendant submits that the Removal of the Queen Point involves a matter arising out of the Constitution and therefore it is the duty of this Court not to proceed until compliance with the notice requirements of s 78B.
It is well established that the duty of the Court ‘not to proceed’ pending compliance with the notice requirements under s 78B only arises if the constitutional point is real and substantial.[20] As Gageler J said in Re Culleton:[21]
Section 78B of the Judiciary Act does not, in my opinion, prevent me from dismissing so much of the summons as seeks to give effect to Senator Culleton’s attempt to raise the constitutional objection to jurisdiction. French J made the point in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd that s 78B “does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be”. To give rise to the obligation not to proceed without notice a cause pending in court must truly “involve” a matter arising under the Constitution or involving its interpretation. As Toohey J stated in Re Finlayson; Ex parte Finlayson, in a passage quoted with approval by Gummow, Hayne and Callinan JJ in Glennan v Cmr of Taxation,“[I]n terms of s 78B, a cause does not ‘involve’ a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does”. In short, the constitutional point must be real and substantial.
[20]Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 [22] (French J); Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 [12] (French, Lindgren and Jacobson JJ), where the the Federal Court disregarded notices under s 78B because they raised matters which were characterised as ‘frivolous or vexatious or do not arise under the Constitution or involve its interpretation’; KS v Veitch (2012) 300 ALR 181, 190 [37]-[38] (Basten JA, Harrison and Beech-Jones JJ).
[21](2017) 340 ALR 550, 556 [29].
In my opinion, for the reasons set out below, the Removal of the Queen Point is not only not real and insubstantial, it is a nonsense.
In Attorney-General for the State of Victoria v Shaw (No 2),[22] Beach J considered an application for leave to file a proceeding by Brian Shaw, who had been declared to be a vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic) on 17 May 2007. The proposed relief included:
(a)leave to commence proceedings against the Premier of Victoria, the Electoral Commissioner of Victoria, the Victorian Electoral Commission and seven candidates for the State seat of Altona; and
(b)a declaration that the Altona by-election was void on the grounds of ‘Fraud, Treason and Misprision of Treason’; and
(c)transfer of the ‘criminal aspects [of the electoral process]’ into ‘the criminal Jurisdiction of the Full Court of Victoria for grand jury process’.
[22][2010] VSC 73.
Beach J noted that Mr Shaw sought to allege that by enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria has committed an act of treason and this act of treason had been ‘compounded thereafter by every judicial officer and court within the State of Victoria’.[23]
[23]Ibid [8].
Beach J refused the application on the basis that ‘a proceeding of the kind foreshadowed in which serious allegations are made without any evidentiary foundation would be an abuse of process’.[24] With respect to the proposed grand jury, his Honour noted that, on 1 January 2010, the common law procedure of calling a Grand Jury was abolished by s 253 of the Criminal Procedure Act 2009, which provided for the abolition in terms, and s 422(2)(a), which repealed the former s 254 of the Crimes Act 1958. Mr Shaw contended that s 354 of the Crimes Act 1958 remained in force because the repealing Acts were invalid, citing Byrne v Armstrong,[25] which Beach J noted was overruled in Re Shaw & Anor.[26] Of Mr Shaw’s arguments, Beach J said:
At the foundation of Mr Shaw’s proposed claim is the proposition that any legislative provision of the State of Victoria or decision of this Court which cuts across the argument he wishes to run is invalid because of some fraud and/or treason and/or misprision of treason. Arguments based upon such a foundation are foredoomed to fail. This, of itself, is a sufficient ground for dismissing Mr Shaw’s application.[27]
[24]Ibid [15].
[25](1899) 25 VLR 126.
[26](2001) 4 VR 103, 108 [11] (Winneke P, Brooking, Charles, Buchanan and Chernov JJA).
[27][2010] VSC 73 [14].
In Attorney-General for the State of Victoria v Shaw,[28] J Forrest J considered an application by Mr Shaw to set aside the order of Hansen J made on 17 May 2007. His Honour noted that the order of Hansen J was based on Shaw’s conduct in issuing proceedings alleging treason against numerous public officials based on assertions that the Victorian Constitution Act 1975 (Vic) was invalid and the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) was an illegal conspiracy.[29]
[28][2012] VSC 334.
[29]Ibid [21].
In support of his application for the order to be lifted, Mr Shaw raised arguments, which J Forrest J noted were similar to those raised before Hansen J. J Forrest J dismissed the application noting that ‘but for the fact that 5 years had elapsed since the order of Hansen J, I would have dismissed it as an abuse of process’.[30]
[30]Ibid [26].
In Attorney-General for the State of Victoria v Shaw (No 5),[31] Beach J considered an application by Mr Shaw for leave to file criminal charges against the then Chief Justice, including on the following basis:
[The Chief Justice] did commit the Common Law offence of Treason by sitting in Federal Jurisdiction with knowledge that the oath of allegiance to Queen Elizabeth the Second has been removed from The Legal Practices (scil, Practice) Act 1994 Victoria by enactment of The Courts and Tribunals Legislation (Further Amendment) Act 2000 (51/2000).
[31][2013] VSC 106.
Beach J noted that Mr Shaw again based his claim on the allegation that in enacting the Courts and Tribunals Legislation (Further Amendment) Act 2000, the Parliament of Victoria had committed a treason. Beach J dismissed the application as an abuse of process on the following five bases:
First, the proceeding would be premised upon a number of propositions which have been already rejected by a number of different courts. Secondly, there is no basis in law or in fact for the laying of the charges Mr Shaw seeks to lay. Thirdly, Mr Shaw’s application demonstrates that if he was given leave to commence the proceedings he proposes, such proceeding would be mired in an array of irrelevant, misconceived and baseless allegations. Fourthly, as Mr Shaw’s applications to date demonstrate, if Mr Shaw was given leave to commence the proceeding he wishes to commence, he would conduct it in open disregard of any binding authority with which he does not agree (generally asserting that the court responsible for that authority has itself committed treason or fraud). Fifthly, any proceeding issued would have no prospects of success.[32]
[32]Ibid [16].
In The ANZ Executors and Trustee Co Ltd v Shaw,[33] Rush J considered an application by Mr Shaw to continue proceedings in three matters where costs orders were made against him.
[33][2015] VSC 288.
The plaintiff company was the trustee of the estate of Mr Shaw’s deceased father and Shaw’s allegations against the trustee included:
(a)The real corporate entity was not the plaintiff but rather ‘Fidelity Investments Institutional Services Co Inc of Boston, USA’;
(b)Birth certificates are being converted into bonds and treated as securities held by Fidelity Investments;
(c)The solicitors for the plaintiff and numerous judges and officers of the Supreme Court were guilty of treason by reason of the removal of the oath of allegiance to Queen Elizabeth II from the Legal Profession Act.
Rush J dismissed the application on the basis that the ‘various extraordinary allegations’ were ‘sufficient to demonstrate the applications are based on hopeless, untenable, indeed bizarre, materials’.[34]
[34]Ibid [12].
In Donohue v Victorian Electoral Commission,[35] Garde J considered an application by GJ Donohue to restrain the State general election. The statement of issues relied upon included the following relating to the Removal of the Queen Point:
[35][2015] VSC 98.
…
2.The removal of Her Majesty Queen Elizabeth the Second, Her heirs and successors and subjects from statute law within the State of Western Australia.
…
5.The creation of invalid Acts and activation and use of such invalid Acts creating criminal offences.
6.The involvement of respective State Governors in the concealment of the criminal removal of Her Majesty and substitution of the Governor of Western Australia beginning 1 January 2004.
a. Governor John Sanderson (WA)
b. Governor Ken Michael (WA)
c. Governor Malcolm McCusker (WA)
d. Governor Kerry Sanderson (WA)
7.The illegal and criminal removal of Her Majesty creates the twin criminal offences of treason defined in law as breach of Allegiance and misprision of treason. Such offences are both common law and statue law in both State and Commonwealth Codes in addition to common law.
…
19.The criminal converting and trading of Australian Birth Certificates on world stock exchanges without the knowledge nor consent of each Australian named on such Birth Certificate criminally converted to trading bonds.
A.The receiving entity (the trustee) is Fidelity Investments (USA); such entity also trades all court room transactions inclusive of all lawyers trust accounts, involving every lawyer, magistrate and judge in the criminal offence of trading Australians on world stock exchanges via Fidelity Investments using CUSIP or QCINS references.
…
24.It is also to be noted that Mr Mark Pedley sits in the Supreme Court, Court of Appeal as the Judicial Review Officer to handle and/or suppress all grand jury lodgements and/or grand jury documents. In the year 2004 Mr Pedley was the Deputy Director of the Commonwealth Public Prosecution Office subject to Damian Bugg, the Director.
…
27.The criminal offence set out at Section 34 Crimes Act 1914 (Cth) in relation to judges and magistrates exercising federal jurisdiction with a personal interest.
…
29.The judicial corruption involving the concealment of all Grand Jury Applications lodged at the Victorian Supreme Court Criminal Jurisdiction prior to any purported abolition of such grand jury statute right, inclusive of the ten Grand Jury Applications lodged in March 2008 relating to Justice Nettle and the involvement of Mr Mark Pedley in the concealment of such, meaning the collusion between the Office of Public Prosecutions (Cth) and the Victorian Supreme Court in particular the Full Court or Court of Appeal.
Garde J dismissed the application on the basis that the allegations in the petition, including those set out above, were an abuse of process, irrelevant and in some cases scandalous.
I agree with the views expressed by Beach J, J Forrest J, Rush J and Garde J. The Removal of the Queen Point is hopeless, and submissions to substantially the same effect have been previously rejected by this Court.
The other defences raised by the defendants are also hopeless, and I will deal with them briefly as follows:
The Corporations Act 2001 (Cth) is not an Act of the Commonwealth Parliament and therefore the plaintiff has no standing to bring this claim
No intelligible argument was put as to why the Corporations Act 2001 (Cth) was invalid.
The inclusion of the Power of Attorney clause in the mortgage was a fraud
No intelligible argument was put as to why the Power of Attorney clause constituted anything but a common and proper clause in the Memorandum of Common Provisions — much less a fraud. Further, there was no evidence that the plaintiff had exercised any rights as the defendants’ attorney under power.
The inclusion of the Credit Legislation clause was treasonous as an attempt to place itself above the law
No intelligible argument was put as to why the Credit Legislation clause constituted anything but a common and proper clause in a loan agreement — much less an act of treason. Further, there was no evidence that the plaintiff had relied upon the clause.
The Loan Agreement and the mortgage were not signed by the plaintiff and therefore it had no standing
On the evidence, it was indisputable that the plaintiff was the lender and mortgagee; and therefore its standing was not affected by the fact that it did not sign the documents.
The inclusion of the certificate of title volume and folio particulars and date after execution of the mortgage was a fraud and invalidated the mortgage
The evidence of the second defendant that the certificate of title volume and folio particulars and date were inserted after execution was not disputed. However, the subsequent insertion of such matters do not necessarily invalidate a contract. As Gleeson CJ explained in Wright v Gasweld:[36]
It is true that in appropriate circumstances it may be open to a court to reach a conclusion that by signing a document containing blanks and handing it over to the other party a person should be regarded as having conferred on that party implied authority to fill up the blanks, and the document will then operate according to its terms with the blanks filled in. That may be so, for example, in a case where the parties have reached express agreement upon the terms of a contract and one party signs it leaving in blank certain aspects of the agreement. If the document is handed over to the other party in that condition it may readily be inferred that there is authority in the other party to fill in the blanks in accordance with the prior agreement.[37]
[36](1991) 22 NSWLR 317, 323 (Gleeson CJ, Kirby P and Samuels JA).
[37]Ibid 323 (Gleeson J). Also see Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238.
The mortgage over the Land was the agreed security under the Loan Agreement and so the defendants’ consent to complete the mortgage, in accordance with the Loan Agreement, would have been readily implied. However, in this case the defendants had expressly consented to the completion of the documents by the plaintiff in the Customer Authority.
The plaintiff failed to provide further and better particulars and documents to enable the defendants to establish the assignment of, or other dealing with, the debt by the plaintiff
The evidence was that the Loan Agreement and the mortgage had not been assigned; and that the plaintiff would have been entitled, under the terms of those documents, to assign its rights, in any event. In those circumstances, the request for documents and particulars was, at best, a fishing expedition and was not appropriate.
Mortgage and Loan Agreement vitiated by unconscionable conduct
The defendants’ counterclaims allege unconscionability, on the basis that each defendant suffered from a special disability arising from matters, including a lack of advice and opportunity to get advice about the Loan Agreement. The second defendant made no submissions in support of this allegation and her evidence was limited to allegations that:
(a)none of the documents assigned in 2012 were translated into the second defendant’s native language or clearly explained in the Romanian language;
(b)the power of attorney (presumably the Power of Attorney clause) was never mentioned to her; and
(c) the power of attorney should have been translated and explained.
In oral argument, the second defendant suggested that the Court should infer from the fact that she was unaware of the Power of Attorney clause that she did not understand the whole of the suite of documents she executed. She suggested no reasonable person who understood the full effect of those documents would execute them.
I consider that there is no real prospect of this claim succeeding for the following reasons:
(a)There is no evidence that the defendants were unable to read or understand the Loan Agreement or the mortgage or that they were disadvantaged by entering into this transaction for the purpose of buying a residential property — much less that the plaintiff knew or ought to have known of such disadvantage. Certainly, the second defendant demonstrated no difficulty in making oral submissions at the hearing before me on 2 May 2018.
(b)The Power of Attorney clause has been of no consequence in the transaction and, in usual circumstances, a lender would not be required to specifically give advice about it.
Orders
I consider that there is no real prospect of either of the defendants succeeding in their defence of the plaintiff’s claim or on their counterclaims. Accordingly, on plaintiff’s summons filed 29 January 2018, I give summary judgment for the plaintiff on its claim and order as follows:
(a)The plaintiff is granted possession of the land known as 9 Pelican Point, Hopetoun Park, being the land described in Certificate of Title volume 11303 folio 252.
(b)The defendants pay the plaintiff the sum of $376,646.98 plus interest from 2 May 2018 until the date of payment.
(c)The defendants’ appeal filed 8 March 2018 is dismissed with costs.
(d) The second defendant’s summons filed 13 March 2018 is dismissed with costs.
(e) Each of the defendants’ counterclaims is dismissed.
(f)The defendants pay the plaintiffs’ costs (including reserved costs) of and incidental to the claim and counterclaims in the proceeding to be taxed.
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