P D Mortgage Services Pty Ltd v Benz

[1999] QCA 488

SUPREME COURT OF QUEENSLAND

CITATION:	P D Mortgage Services P/L v Benz [1999] QCA 488
PARTIES:	P D MORTGAGE SERVICES PTY LTD (ACN 065 740 847) (plaintiff/respondent) v ELIZABETH MINA BENZ (defendant/appellant)
FILE NO/S:	Appeal No 4513 of 1999 Appeal No 1209 of 1999 SC No 7788 of 1996 SC No 61 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 1999
JUDGES:	McMurdo P, Williams and Atkinson JJ
ORDER:	Each appeal dismissed with costs. PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – statutory order for review – real purpose of application was not to review Deputy Registrar’s decision, but to set aside order of Thomas J – whether other more appropriate means of challenging decisions are available to appellant.
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – counterclaim – whether permissible to issue a counterclaim when action has already been terminated by judgment for the plaintiff – open to appellant to make issues which have not already been litigated the subject of fresh proceedings.
P D Mortgage Services Pty Ltd v D B Quinlan Pty Ltd & Ors SC No11339 of 1997, 23 September 1999.
P D Mortgage Services Pty Ltd v Marquart SC No 929 of 1997, 29 August 1997.
COUNSEL:	The appellant appeared on her own behalf. Mr R I M Lilley for the respondent.
SOLICITORS:	The appellant appeared on her own behalf. Deacon Graham & James for the respondent.

1. THE COURT: The court heard two appeals brought by the appellant-defendant against orders made by Trial Division judges in the action. The first was an appeal against the order of White J of 10 February 1999 dismissing with costs an application for statutory order of review of a decision made by a Deputy Registrar on 23 December 1998. The second was from an order of Derrington J of 20 April 1999 ordering that a counterclaim lodged by the appellant and others be struck out with costs. The appeals were heard together and the appellant made submissions on her own behalf.

2. There have been numerous proceedings in this court and the Federal Court between the parties relating in broad terms to the same issues. It is not necessary to set out that history in any detail; some of the relevant history can be gleaned from a reading of the reasons given by each of White J and Derrington J. However, it is necessary to say something of the history of this action in order to appreciate the issues raised by the appeals.

3. By the original action the respondent-plaintiff sought possession of certain land owned by the appellant over which it held a registered mortgage. The action was commenced consequent upon alleged default by the appellant in complying with terms of the mortgage. Thereafter the appellant sought summary judgment for possession of the land.

4. That application came on before Thomas J on 22 October 1996 and the appellant was represented by counsel. Summary judgment was opposed essentially on the ground that another company involved in the transaction, Private Mortgage Lending Limited (PMLL) was the real mortgagee; the respondent being simply its agent. It was then alleged that conduct on the part of PMLL disentitled either it or the respondent to recover possession of the mortgaged land.

5. In the light of the material then before him Thomas J granted the appellant conditional leave to defend. That leave was conditional, inter alia, upon the appellant paying the sum of $5,937.50 by way of interest each calendar month. The order provided that in the event of the failure of the appellant to meet any of the conditions “the plaintiff shall be at liberty to enter judgment for recovery of possession of the land the subject of the said mortgage together with its costs of and incidental to the action to be taxed and the affidavit of the solicitor for the plaintiff that such failure has occurred shall be sufficient proof of that failure.”

6. Thereafter the appellant brought proceedings in the Federal Court raising similar issues to those relied on in defence to the application for summary judgment. It is not necessary to refer to those proceedings in detail. Then on 1 December 1997 the appellant filed a summons in this action seeking a stay of the order of Thomas J or a variation of the conditions. At the appellant’s request that was adjourned to a date to be fixed without any substantive order being made. Thereafter the appellant prosecuted further proceedings in the Federal Court.

7. Up until December 1998 the appellant made payments of interest in accordance with the conditions imposed by Thomas J, but on 22 December 1998 she failed to pay the interest as required. It is not necessary for present purposes to consider reasons advanced on the appellant’s behalf for not paying that interest.

8. Thereafter the solicitor for the respondent presented an affidavit of the kind described in the order of Thomas J to a Deputy Registrar and sought judgment in conformity with the order of Thomas J. That was granted.

9. The response of the appellant was to apply to the court for a statutory order of review in relation to the decision of the Deputy Registrar. Amongst other things the appellant complained that she had been denied natural justice because she had been deprived of a hearing before the Deputy Registrar.

10. Included in the relief claimed pursuant to the statutory order of review was an order that the order of Thomas J be vacated.

11. As White J pointed out in her reasons for judgment the application in question duplicated other proceedings which were either still on foot or had been disposed of by orders of the Federal Court. The appellant’s summons for a stay of the order of Thomas J remained undecided; it was still adjourned to a date to be fixed. White J correctly identified that the purpose of the application for review was not to review the Deputy Registrar’s order but to set aside the order of Thomas J. There had been no appeal against that order and no formal application to have it vacated had been lodged. Her Honour correctly considered that there was adequate provision made by law pursuant to which the appellant was entitled to seek a review of the orders of Thomas J and the Deputy Registrar other than by application for statutory review.

12. The order of Thomas J provided the mechanism for obtaining judgment and the appellant had no right to be heard before the Deputy Registrar. She was not precluded from applying to have that judgment set aside if proper grounds existed.

13. As already noted the appellant appeared in person before this court and had difficulty in formulating any argument strictly relevant to the appeal against the decision of White J. Generally she maintained that there had been some collusion between the respondent and PMLL which necessitated a hearing on the merits. The Court will say more about that later, but that contention is not relevant to the issue whether the decision of White J should be overturned. Given that the order of Thomas J remains on foot there is absolutely no basis for interfering with the decision of White J. Though the notice of appeal sought an order from this court vacating or staying the order of Thomas J that relief cannot be granted on the appeal from the decision of White J dismissing the application for statutory order of review of the decision of the Deputy Registrar. The decision of White J was clearly the only order open on the material.

14. Subsequent to the decision of the Deputy Registrar entering judgment in the action for the plaintiff the appellant and others lodged a counterclaim on 29 December 1998. The respondent applied to have that counterclaim struck out and that application came before Derrington J on 20 April 1999. For reasons which he then gave he struck out the counterclaim and the appellant has also appealed against that order. The formal Notice of Appeal does not really address relevant issues. Amongst other things it seeks an order that the order of Thomas J of 22 October 1996 and the order of the Deputy Registrar of 23 December 1998 be vacated, varied or stayed. There is no proper basis on this appeal for this court reviewing those decisions.

15. The document purporting to be the counterclaim named as plaintiff “Howard Benz Cameron (a partnership)”. It is clear that the document purports to be a claim against the plaintiff in the original action by a party other than the defendant to the original action. Neither the Rules of the Supreme Court which were in force at the material time nor the Uniform Civil Procedure Rules permit that course. But perhaps more importantly the action had been terminated by judgment for the plaintiff prior to the delivery of the counterclaim. Again it is not permissible to counterclaim in these circumstances. The appropriate course in those circumstances is to commence a fresh action.

16. There are further complications because in addition to the present appellant the other members of the partnership as pleaded are Donald Cameron and John Howard. Each of those persons is an undischarged bankrupt and the former is a declared vexatious litigant. Any rights either Cameron or Howard may have would be vested in their respective trustees in bankruptcy. It would also appear that any partnership would have been dissolved upon the bankruptcy, but as such points were not argued they will not be taken further.

17. In his reasons Derrington J referred to those matters and also to the proceedings in the Federal Court. As he also pointed out, apart from the issue of undue influence raised in the counterclaim, it is arguable that at least some of the points sought to be raised by the counterclaim are subject to res judicata or issue estoppel in consequence of the proceedings in the Federal Court.

18. His Honour concluded that in all the circumstances the delivery of the purported counterclaim was an abuse of process and struck it out.

19. Again the appellant had difficulty in making her submissions relevant to the precise points in issue on the hearing of the appeal. As noted above much was said about collusion between the respondent and PMLL and that there should be a trial to determine the relationship between those two entities and the effect of that relationship on the consequent losses sustained by the appellant.

20. In the course of argument the appellant asserted that Ambrose J said something in his judgment in PD Mortgage Services Pty Ltd v DB Quinlan Pty Ltd and Ors SC No11339 of 1997, judgment 23 September 1999) which suggested some basis for concluding there was a relationship between the respondent and PMLL. Subsequently the Court has perused a copy of that judgment and there is no mention in it of PMLL. There is nothing in the reasons for judgment of Ambrose J which is relevant to any issue raised by this appeal.

21. The appellant also referred to a judgment of Fryberg J delivered 29 August 1997 in PD Mortgage Services Pty Ltd v Marquart (SC No 929 of 1997). In that case the borrower had lodged a caveat forbidding registration of any instrument affecting the land of which the mortgagee was in possession. The borrower alleged misleading, deceptive or unconscionable conduct against the mortgagee, asserting that it was the agent for PMLL. His Honour concluded that there was a serious question to be tried in relation to that. However, that does not amount to any positive finding of some relationship between the respondent and PMLL, particularly so far as the transaction involving this appellant is concerned.

[22]     The loan giving rise to these proceedings was advanced on or about 22 September 1994, and it would appear that any limitation period with respect to causes of action associated with the transaction has not yet expired. The plaintiff has time in which to commence proceedings, with other appropriate parties if necessary, seeking relief where the obtaining of such relief has not been precluded by actions already determined in this and the Federal Court. If, for example, there is an issue of undue influence which has not been determined and which can properly be made the subject of an appropriate action then the appellant is not precluded from commencing such action by the order under appeal.

1. It is clear that for a number of reasons the purported counterclaim was essentially an abuse of process and Derrington J was correct in striking it out.

2. In the circumstances each appeal should be dismissed with costs.