Oberlechner v First Mortgage Managed Investments (FMMI)

[2007] HCATrans 711

[2007] HCATrans 711

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S545 of 2007

B e t w e e n -

ALFRED OBERLECHNER

Applicant

and

FIRST MORTGAGE MANAGED INVESTMENTS (FMMI)

Respondent

Summons for stay

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2007, AT 3.36 PM

Copyright in the High Court of Australia

MR A. OBERLECHNER appeared in person.

MR M.D. GROBEN:   If the Court pleases, I appear for the respondent.  (instructed by Gadens)

HIS HONOUR:   Mr Oberlechner, you have made an application for special leave to appeal against the decision of the Court of Appeal but this is an application that you are bringing, in effect, to get a stay pending the hearing of the special leave to appeal. When we hear oral argument on special leave to appeal we allow the parties 20 minutes each, so you will have 20 minutes in order to put any argument that you want to put today.

Before you start to put your argument and before the 20 minutes begins to run let me tell you that I have read the following documents.  I have read the reasons for judgment of Justice Rothman of 30 June 2006, the reasons for judgment of the Court of Appeal of 24 September 2007, the reasons for judgment of Justice Fullerton of 15 November 2007, the summons of Mr Oberlechner filed yesterday, an affidavit of Mr Oberlechner sworn 19 November 2007, another affidavit of Mr Oberlechner sworn 19 November 2007, Mr Oberlechner’s application for special leave to appeal dated 19 November 2007 and a document entitled Chronology of Events sent to the Registry by Gadens Lawyers which is said to be the chronology that was produced in the Supreme Court proceedings and that has been updated to include recent events, including the filing of the special leave application and the summons in this Court.

That is the material that I have read, Mr Oberlechner.  Now you go ahead and tell me what you want to say in support of your present application.

MR OBERLECHNER:   Yes.  Firstly, we were only notified late yesterday afternoon that the matter would be heard today.  I have been trying to get a barrister counsel to assist me in the matter.  I have made contacts ‑ ‑ ‑

HIS HONOUR:   When you say you were notified yesterday afternoon that the matter will be heard today, you started the matter yesterday?

MR OBERLECHNER:   Yes.

HIS HONOUR:   Yes.

MR OBERLECHNER:   What I am saying, I was trying to get a barrister counsel to assist me in the application.  I have made contact with one from the Queens Square Chambers.  They advised me that they were not able to attend today but they would be able to attend on a number of other days and suggested that I ought to ask for a short adjournment to brief the counsel properly.

HIS HONOUR:   But the reason the matter has been listed now is because you are trying to stop something that is going to happen at 9 o’clock tomorrow morning?

MR OBERLECHNER:   Yes, but ‑ ‑ ‑

HIS HONOUR:   What is the point of an adjournment?

MR OBERLECHNER:   The request was I should request his Honour to grant a short adjournment to brief counsel and – accompanied with an ex parte stay until that day, like a one week adjournment, to get an opportunity to properly brief counsel and to be assisted by counsel.

HIS HONOUR:   The matter has been started by you late, has been brought on urgently because it is to stop something that is going to happen at 9 o’clock tomorrow morning and I am not minded to grant an adjournment.  You go ahead with your application.

MR OBERLECHNER:   The chronology that was handed up is – first of all, it is very different to the – well, it is quite different to the chronology that was handed in the Supreme Court.  If I could give your Honour a copy of the chronology that was handed?  There is some very significant differences.

HIS HONOUR:   Thank you.

MR OBERLECHNER:   The latest payout loan statement, or whatever it is called, also significantly differs from the one that was handed up in the Supreme Court, in fact, by an amount of 782 – somewhere like, really, 55 –  $60,000 difference.  Again, if I could hand up the one that was produced in the Supreme Court.

HIS HONOUR:   Thank you.  Mr Oberlechner, what you are going to need to persuade me, amongst other things, is that there are substantial prospects that your application for special leave to appeal will be granted.  So that is the matter you ought to be concentrating on.

MR OBERLECHNER:   Yes, your Honour.  It goes back to the hearing of 30 June 2006 before his Honour Justice Rothman.  My counsel argued there I entered into a consent judgment – there was no default judgment, it was a consent judgement but being coaxed into it.  That was the argument and that is what was strongly emphasised on.  In the chronology your Honour would see that there used to be a vacant block of land which was taken possession of and sold and after proceedings against that – because  the way it was gone about it was not quite right and all that and I took separate proceedings. 

So when that time came I made contact with Mr Boyce, one of the directors of the loan company, and in the discussion of that the agreement was between us – most of that was verbal – that he offered that if I stopped those other proceedings which I took against them wrongfully going about they way they sold the land and so on, that he would not pursue possession action against our home, No 8 Elizabeth Parade.  For that to happen he said, “If you could sign a consent judgment” – well, he did not say, “sign a consent judgment” he said, “I don’t want the house now.  I just want the land.  Don’t stand in the way of the land block” trying to get it settled and all that.  “I don’t want the house.  You let us sell the land and I will not pursue the possession of the house”.

I took that as gospel, right.  I believed him, trusted.  Then he got someone from Gadens Lawyers to come the morning of when it was on and he said he will instruct them to prepare whatever papers were necessary.  So I was shown this paper and it was a consent judgment and I signed it.  I did not read it.  Looking back, it was a very, very foolish thing of me to do because in there was – that I now know and understand – that there was, like, saying that they will proceed with possession and they are only going to give me limited.....I did not read it because it because I just trusted on what he said, what Mr Boyce told me verbally.  So I signed it, it was handed up and therefore it sort of went from there. 

Now, in the hearing on 30 June my barrister, Mr Tony Rogers, requested Mr Boyce to come and give evidence and be cross‑examined.  He did appear and in his evidence in the stand under oath he was asked whether he had any conversation with me at all in relation to that, any particulars and so on, and he flatly denied that any conversation ever happened.  He said, “I’ve never spoken to him.”  So, in other words, like, after – I was fighting with them in court already about.....like, all of a sudden, what sense would it make that I would have just come along and signed the consent judgment?  Like, it does not make any sense, right.  Why would I do that if it was not for the reason that he said, “You sign this and we won’t pursue the possession of the property”?

I guess he just – the way I probably – I was not thinking about it too much at the time but I thought, right, it just gives me peace of mind that one of these days in the future, whatever – honestly, I did not have a chance to take that document away and like get independent legal advice about it.  I was appearing for myself at that time.  So, really, I was really tricked into signing the consent judgment.  But the more important point is that under oath in evidence then he comes along and he says, “I never spoke to him”. 

Now, there was a person at Gadens Lawyers – his name is Mayank Gupta – he was the one that came that morning with the paper to ask me to sign it.  My counsel also requested that he be asked to come and give evidence because I told him, “This is what I discussed with Mr Boyce” and he said, “Yes, I know and that is why I have prepared this”, like that.  So he would have been the one person that could have come to give evidence to confirm whether there was a conversation between me and Mr Boyce, whatever the precise contents of it was, right.  The plaintiff did not call him and I requested to his Honour Rothman to call him.  It was not granted.  My counsel implied that the reason they are not calling him because maybe he was not prepared to not tell the truth under oath, like, he would have had to say there was a conversation which would have not been good for that case, that is the way it was explained to me.

Now, his Honour Justice Rothman said “I don’t think there was a conversation” right, in the end.  At the time in the hearing my barrister said, we would like the opportunity to explore telephone records from the plaintiff and my phone and so on and so on to try to work out if at least the phone records show, yes, there was a call made from my phone to their phone, blah, blah, et cetera.  Now, at the time at the hearing – and this will all be in transcripts – his Honour said, “That won’t be necessary”.  In other words, like – I think he did call or – but then in the judgment that he came down with he had actually said, “I don’t believe that there was a conversation”.

That is somewhere towards the end of the judgment that he actually is saying that either I - me, Mr Oberlechner, either mistakenly or otherwise thought that I had a conversation when I did not have one.  Your Honour might have seen it in there somewhere where he does not believe that there was a conversation.  It was certainly not in that context or what have you.  The problem we have there is that we have to overcome the hurdle of overcoming that consent judgment.  That would have had to be set aside in order to move on to get to the real argument and that is the mortgage contract and the fairness of it such as charging 17, 18 per cent interest and horrendous costs, et cetera.

So, we never got that far because my counsel believes that if we had been able to move that, pursuant to the Contracts Review Act, we would have strong arguments that the mortgage contract in itself is unfair, grossly unfair and unjust.  That is the main quarrel.  Now, I know it has gone on since then.  There has been a number of stays and a deed of charge was put in place with the plaintiff to wait what happens in appeal, et cetera, and an appeal – my view and as I am saying is simply that I was denied the opportunity to explore physical evidence, records of telephone conversations in an effort to prove that conversation was and that was in there. 

As I indicated, Mr Boyce did not tell the truth under oath.  I know that because I have a very clear recollection of what happened.  We were never given a chance to prove that that was so and the Court of Appeal just did not really look at it very closely except, like, I do not know if it was put in the too hard basket or something like that but, you know, I think there is fundamental – his Honour Justice Rothman, with all due respect, ought to have given consideration to the request by my counsel to explore further evidence.

Now, I have not got the physical transcripts but they are available and I can get them and in there it will be clear that Mr Tony Rogers requesting his Honour Justice Rothman the opportunity to explore physical records to prove that conversation was.  I was then and I still am very upset about that because it just does not seem right.  It just does not seem right why somebody can come up and lie under oath which changes the whole outcome of the case. 

Now, I am not trying to second guess and so on, but if Justice Rothman was convinced that the conversation was had and I entered it in good faith with “trust” to the other party that he may well have decided that the consent judgment was really entered by deception or coaxing or leading on and that we just simply did not have the opportunity to prove that and move on to actually argue the fairness of the contract.  I do not know how much else to say but, you know, I feel very cheated about all this.  I do not really know what else to say at this stage except that I am asking this Court, would you please consider giving me an opportunity to prove what I am alleging in there.

I probably would need counsel but, look, I do not – I am asking for an opportunity to set a wrong right.  I do not believe I was heard properly in the Supreme Court Court of Appeal and the errors that I believe were made by the single judge I have explained quite clearly in my documents.  I do not what else to say except like, you know, it is very upsetting for us.  I have reached a point where I am saying like there is no justice in this system, in the legal system.  Anywhere you go, even the staff of courts occasionally tell you you come to the court to get justice, you will not get justice, you get the law.

Now, I refuse to believe that because I do not think it is right but how many times have I been told that?  In other words, like, you have got to apply the law and you will get the interpretation of the law to the letter.  You will not get justice.  Now, it has always been my understanding and belief that one of the basic principles of a justice system is for parties to be

able to get justice.  Now, I do not think justice has been done here and I feel very strongly about it.  I do not know what else I can say, your Honour.  If your Honour would like to ask me some ‑ ‑ ‑

HIS HONOUR:   All right.  Thank you.

The history of this matter is set out in some detail in a judgment of Justice Fullerton of the Supreme Court of New South Wales delivered on 15 November 2007.  Her Honour referred to the numerous attempts that have been made by the present applicant to delay execution of an eviction order in respect of certain land at Tura Beach.  The order, as I understand it, will take effect at 9 o’clock tomorrow which is why the present application was listed urgently today.

The present proceedings are not by way of appeal or application for leave to appeal from the judgment of Justice Fullerton.  Yesterday the applicant filed in this Court an application for special leave to appeal against a decision of the Court of Appeal of New South Wales given on 24 September 2007.  By that decision the Court of Appeal dismissed an application for leave to appeal against a decision of Justice Rothman delivered on 19 December 2006.

In his application for special leave to appeal to this Court, the applicant has also applied for special leave to appeal against the judgment of Justice Rothman.  The application for special leave to appeal to this Court was filed out of time but the applicant also sought injunctive relief against the possession order to which I have already made reference and consequently that application was listed for urgent hearing today, notwithstanding the failure of the applicant to comply with the time limits fixed by the Rules. 

I think I should treat today’s application as in substance an application for a stay of proceedings pending the hearing of the application for special leave to appeal to this Court.  The principles to be applied are those stated by Justice Brennan in Jennings Construction v Burgundy Royale (1986) 161 CLR 681 at 685. The first matter that I am required to consider is whether there is a substantial prospect that special leave to appeal will be granted.

The reasons given by the Court of Appeal for the decision made on 24 September 2007 were brief and were delivered by the President of the Court, Justice Mason.  His Honour said that he did not see any basis for thinking there was even an arguable case that Justice Rothman was wrong on the issue he had to decide.  The substantial criticism that is made by the applicant of the decision of Justice Rothman turns on a factual matter concerning some evidence given by a solicitor in the proceedings before Justice Rothman. 

As I indicated earlier, this matter shows a long history of various unsuccessful attempts by the applicant to delay the action taken against his land by a creditor.  The applicant says that the proposed action is a matter of great personal concern to him and I do not doubt that that is true.  However, nothing in the written material before me, which includes two affidavits of the applicant, and nothing in the oral argument that has been put by the applicant this afternoon persuades me that there is a substantial or indeed any prospect that special leave to appeal will be granted.

In those circumstances, the application is dismissed with costs.

I will adjourn.

AT 4.04 PM THE MATTER WAS CONCLUDED