Permanent Custodians Limited v Virgin Investments Pty Ltd & Anor

[2009] VSC 246

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 6452 of 2008

PERMANENT CUSTODIANS LIMITED (ACN 001 426 384)	Plaintiff
v
VIRGIN INVESTMENTS PTY LTD (ACN 067 539 520) & ANOR	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2009
DATE OF JUDGMENT:	28 May 2009 (Ex tempore reasons revised 17 June 2009)
CASE MAY BE CITED AS:	Permanent Custodians Ltd v Virgin Investments Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 246

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PRACTICE AND PROCEDURE – Default judgment – Appeal against decision of Associate Justice – Whether an arguable defence – Arguments previously rejected by single judge and Court of Appeal – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Moffat	Mills Oakley Lawyers
For the First Defendant	Mr M Palmer (the second defendant and a director of the first defendant) appeared by leave for the first defendant.

HIS HONOUR:

1. In this matter the first defendant, Virgin Investments Pty Ltd, has been permitted to be represented by Mr Palmer, the second defendant. 

1. Virgin Investments appeals from a decision of Associate Justice Evans dismissing a summons issued by Virgin Investments on 5 May 2009.  That was a summons whereby Virgin Investments sought to have set aside a default judgment entered against it in this Court in July 2008. 

1. Associate Justice Evans dismissed the summons, apparently after having ruled that the Court would not permit Mr Palmer to appear on behalf of the first defendant.

1. As I have said, when the matter came on before me, I heard submissions and decided to allow Mr Palmer to represent the first defendant in the appeal and the application by summons has been heard afresh. 

1. The application, however, is supported by an affidavit which largely regurgitates the matters that have already been relied upon by Virgin, represented by Mr Palmer, in previous proceedings and in particular before Smith J in the Practice Court in March of this year. 

1. Smith J’s decision was to hold that the writ in this proceeding was regularly served in accordance with the rules, whereby, in order to obtain leave to defend, the first defendant needed to show an arguable defence to the proceeding.  Smith J was not satisfied that the first defendant had shown an arguable defence.  The first defendant applied to the Court of Appeal for leave to appeal from the decision of Smith J.  The Court of Appeal dismissed the application[1] saying, in paragraph 11:

There is no merit in any of Mr Palmer’s submissions.

[1][2009] VSCA 80 (24 April 2009).

1. The Court of Appeal also said, in paragraph 20:

It follows that Mr Palmer has not established that the decision below was wrong or attended with sufficient doubt to justify the grant of leave.  No substantial injustice would be done if the decision was to stand because any appeal from that decision would be bound to fail. 

1. The points that were put to Smith J, and then again to the Court of Appeal, were relied upon again before me.  I have listened to them and in my opinion, there is indeed, as the Court of Appeal said, no merit in any of Mr Palmer’s submissions that correspond with the submissions that he put to Smith J and/or to the Court of Appeal. 

1. I asked whether there was anything new that was relied upon.  I was told that there was a document that had not been put before Smith J or the Court of Appeal, namely discovered document 113 in the proceeding (which goes on as between the plaintiff and Mr Palmer personally).  I have marked that document “NGP1” as an exhibit in this application.  I have read it carefully.  I have invited Mr Palmer to explain to me how it assists him to support his application to have the default judgment set aside.  He has not pointed to anything that, in my opinion, goes any distance at all to assist him in that regard. 

1. It relates to the circumstances which apparently arose when Mr Palmer contacted the lender, or the lender’s representative, seeking to get a waiver of a deferred establishment fee for the relevant loan.  Mr Palmer, according to this document, sought to achieve a benefit along those lines by suggesting to the lender, or the lender’s representative, that the loan documents, including the mortgage, had not been signed appropriately or at all by or on behalf of the Virgin Investments Pty Ltd or by or on behalf of himself as guarantor. 

1. The exhibit itself shows that Mr Palmer’s assertions in that regard are misconceived and again this is a matter that has already been dealt with in previous decisions.  The fact that he wrote “without prejudice”, or that someone wrote “without prejudice”, in connection with the signature of the documents does not indicate to any extent at all that at the trial it would be likely to be found that Virgin Investments and Mr Palmer did not consciously and deliberately apply for this loan, take the benefit of the moneys, and commit themselves to the mortgage.  In my opinion, if anything, Exhibit NGP1 only confirms the case against the defendants.

1. There was one other matter that Mr Palmer asserted was a new matter, namely the fact that he had not previously, he says, relied upon section 109X(6)(b) of the Corporations Act.  Even if that is right and he had not made submissions based on it before, it matters not.  The section does not assist Mr Palmer or the first defendant.  It is merely a section which makes clear that the provisions of sub‑section (1) and indeed the provisions of section 109X generally, insofar as they authorise service on a company by particular means, are not exhaustive.  Sub‑section 109(6)(b) simply confirms that the section is not intended to affect the power of courts to authorise the service of documents on corporations in different ways.  That does not assist Mr Palmer or the first defendant at all because, as Mr Palmer has now conceded, the writ was regularly served under the provisions of the Supreme Court Rules.  That was found both by Smith J and the Court of Appeal.

1. Contrary to Mr Palmer’s submission, there is no occasion to consider r 2.04 of the Supreme Court (General Civil Procedure) Rules 2005 which permits the Court to excuse non-compliance with the rules. There simply was no non-compliance with the rules on the part of the plaintiff in terms of the service of the writ.

1. So it seems to me, for those reasons and for the added reason that this application represents an attempt to relitigate, in substance, what has already been litigated unsuccessfully, that I should not accept Mr Palmer’s submissions.  I am aware, of course, that because the decisions of Smith J and of the Court of Appeal are interlocutory decisions the rules of issue estoppel and res judicata do not apply in full force, but nonetheless the courts are very cautious to ensure that injustices are not done by misguided attempts to relitigate issues that have already been decided even in interlocutory proceedings.  In that regard I refer to Philip Morris Ltd v Attorney‑General for the State of Victoria[2] and the cases referred to in that decision, including DA Christie Pty Ltd v Baker[3] and Nominal Defendant v Manning[4]. 

   [2](2006) 14 VR 538.

   [3][1996] 2 VR 582.

   [4](2000) 50 NSWLR 139.

1. There is probably no need for me to repeat it because it is covered by what I have already said, but Mr Palmer did, again, raise the question of the way in which the writ was signed by Mills Oakley.  That matter has been dealt with already by Smith J and the Court of Appeal and I adopt their response to that argument, and similarly, I adopt the response of Smith J and the Court of Appeal to the other points that were raised before them and repeated before me.

1. For those reasons, this summons, dated 5 May 2009, will be dismissed.

1. (Submissions re costs)

1. The order made by Associate Justice Evans for costs against Mr Palmer personally will be set aside but there will be an order against Virgin Investments Pty Ltd for the costs below and the costs of this appeal.