Permanent Custodians Ltd v Wheeley

[2007] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:	Permanent Custodians Ltd v Wheeley [2007] QCA 110
PARTIES:	PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) (plaintiff/respondent) v DARRYL JOHN WHEELEY (defendant/applicant/appellant)
FILE NO/S:	Appeal No 984 of 2007 Appeal No 985 of 2007 DC No 3217 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Civil
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2007
JUDGES:	Williams and Keane JJA and Wilson J
ORDER:	1. Application and appeal dismissed 2. Applicant/appellant to pay respondent's costs on the indemnity basis
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE – POSSESSION – RIGHT OF MORTGAGEE TO POSSESSION – where respondent claimed possession of land pursuant to mortgage – whether respondent should have been granted summary judgment against applicant/appellant – whether applicant/appellant should be granted extension of time to appeal against other orders
COUNSEL:	The applicant/appellant appeared on his own behalf D K Kanitz for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Dunstan Hardcastle for the respondent

WILLIAMS JA:  I will ask Justice Keane to deliver his reasons first.

KEANE JA:  The respondent to these proceedings had the misfortune to lend money to Mr Wheeley.  Repayment of the respondent's loan to Mr Wheeley was secured by a mortgage over land at Moorooka.  Mr Wheeley, in turn, has the misfortune, as it would seem, to believe that his obligations as a debtor are in some way affected by his adherence, real or pretended, to an imaginary theocracy known as the Independent Sovereign State of Australia of which the Prime Minister, Chief Justice and Archbishop is one Donald Cameron, a former inmate of Queensland prisons.

In 2006, in consequence of default by Mr Wheeley in respect of his mortgage, the respondent commenced proceedings in the District Court to enforce its rights under the mortgage. 

Mr Wheeley filed a conditional notice of intention to defend the respondent's claim, and an application to strike out the respondent's claim.  On 21 November 2006, Nase DCJ dismissed Mr Wheeley's application and struck out his conditional notice of intention to defend. 

Mr Wheeley now wishes to appeal against these orders, but he requires an extension of time to enable the appeal to proceed.  No good reason is shown to warrant the extension of time.  Mr Wheeley's arguments are simply incomprehensible.

On 31 January 2007, Botting DCJ granted the respondent summary judgment in its claim against Mr Wheeley.  Botting DCJ found that Mr Wheeley was in breach of his obligations under the mortgage and that the respondent was in consequence entitled to exercise its rights to call in the whole of the unsatisfied debt.  Mr Wheeley seeks to appeal against that judgment.  Once again, Mr Wheeley's arguments are incomprehensible. 

Mr Wheeley does not seem to dispute that he borrowed money or executed the mortgage as alleged by the respondent.  Doing the best one can to understand the basis of Mr Wheeley's unwillingness to meet his obligations, it appears to be the case that Mr Wheeley is of the view that the freedom of religion he enjoys, either by reason of his association with the Independent Sovereign State of Australia and its church or by reason of s 116 to s 118 of the Constitution of the Commonwealth of Australia 1901 (Cth) is inconsistent with the performance of the obligations he voluntarily assumed, and the promises which he made, when he entered into the mortgage with the respondent.

Not surprisingly perhaps, it does not appear that the terms of the mortgage executed by Mr Wheeley included a provision that Mr Wheeley reserve the liberty not to keep his side of the bargain if he should be stricken by religious scruples against repaying the money he owed.  The provisions of the Constitution to which Mr Wheeley refers do not purport to liberate Mr Wheeley from his obligations as the respondent's debtor.

Mr Wheeley also seems to argue that the respondent's rights under its mortgage have been, without its consent, diminished by a subsequent lease over the Moorooka property in favour of the church associated with Mr Cameron.  There is no legal substance in this argument.  No honest man could ever dream that there could be.

It also appears that Mr Wheeley relies upon an alleged payment of the debt by a cheque drawn on a fictional bank.  The alleged payment too is a fiction. 

It is simply not possible to discern any legal merit in Mr Wheeley's arguments. 

Both his application and his appeal should be dismissed. 

In relation to the question of costs, the grounds of defence pursued by Mr Wheeley might be a source of amusement were they not so vexatious and indeed, deeply dishonourable.  Mr Wheeley should pay the respondent's costs of the application and appeal on the indemnity basis.

WILLIAMS JA:  I agree.

WILSON J:  I agree.

WILLIAMS JA:  All the applications are dismissed with costs to be assessed on an indemnity basis.

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