Perpetual Trustee Company Limited v De Van Der Schueren
[2012] VSC 5
•23 January 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2006 6945
| PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) | Plaintiff |
| v | |
| MARIA DE VAN DER SCHUEREN | Defendant |
---
JUDGE: | ZAMMIT AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2011 and 15 December 2011 | |
DATE OF JUDGMENT: | 23 January 2012 | |
CASE MAY BE CITED AS: | Perpetual Trustee Company Limited v De Van Der Schueren | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 5 | |
---
MORTGAGE – Default – Action for possession – Action proved at trial in the absence of the defendant – Application to set aside judgment – Application brought out of time – Insufficient explanation for delay and for non-appearance at trial – No defence on the merits - Rule 49.02(2) & (3), Supreme Court (General Civil Procedure) Rules 2005.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G.L. Meehan | Gadens Lawyers |
| For the Defendant | Mr V. Peters | Coolabah Law Chambers |
HER HONOUR:
The defendant, Ms De Van Der Schueren, filed a summons in this Court dated 7 October 2011 seeking the following orders:
1.That leave be given to the defendant to apply to this honourable court to set aside the judgment of Zammit AsJ made on the first day of July 2011;
2.that pursuant to Order 49.02(2) of the Supreme Court Rules 2005 the judgment of Zammit AsJ made on the first day of July 2011 be set aside.
The plaintiff, Perpetual Trustee Co Ltd, opposes the application to set aside judgment given on 1 July 2011 following a trial which took place on 15 and 16 June 2011.
Rule 49.02(3) provides that an application under Rule 49.02(2) shall be made within 14 days after the trial. The defendant seeks leave to make her application out of time.
Evidence before the Court
The defendant filed the affidavits of:
(a)Ms De Van Der Schueren affirmed 20 November 2011;
(b)John Sidney Brown sworn 16 November 2011;
(c)Christopher John Millar sworn 17 November 2011;
(d)Christine May Thorpe sworn 27 November 2011; and
(e)Shane Patrick Kennedy sworn 12 December 2011.
The plaintiff filed the affidavits of:
(a)Sonia Apikian sworn 24 November 2011; and
(b)Annette Gaber sworn 24 November 2011.
The defendant did not seek to rely on the Brown affidavit.
I delivered a ruling on 15 December 2011 dealing with the plaintiff’s objections to the De Van Der Schueren and Millar affidavits.
I determined that significant sections of Ms De Van Der Schueren’s affidavit were inadmissible. I allowed the Millar affidavit into evidence.
Mr Meehan, counsel for the plaintiff, objected to the Thorpe and Kennedy affidavits but agreed for expediency to continue with the hearing on the basis that the Court would determine the objections in due course.
The plaintiff objects to the Kennedy affidavit primarily on the ground of relevance and that Mr Kennedy expresses a medical opinion. I consider the affidavit is relevant in that it goes to the reasons why the defendant was unable to appear at the trial on 15 and 16 June 2011. I consider that the first sentence and last sentence of paragraph 5 of the Kennedy affidavit is double hearsay and therefore not admissible.
In relation to the Thorpe affidavit, I consider the entirety of the affidavit to be irrelevant and therefore inadmissible.
Legal principles
The defendant’s application for leave to apply to set the judgment aside out of time requires the judicial exercise of the Court’s discretion by reference to the interests of justice. In Vacuum Oil v Stockdale,[1] Jordan CJ, speaking of an application by a defendant to set aside a judgment regularly entered in his absence of trial, said:
The Court has inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained.
[1](1942) 42 SR (NSW) 239 at 243.
In Brygel v Stoneham,[2] Batt J adopted the above passage by Jordan CJ in Vacuum Oil and considered the Court’s discretion is to be exercised in the interests of justice. The parties agree that relevant to the discretion in a leave application the Court can take into account the following considerations:
(a)the defendant’s explanation, if any, for the delay in making the application under Rule 49.02(2);
(b)the prejudice suffered by the plaintiff;
(c)the requirement that in making any order in a civil proceeding a court shall further the overarching purpose set out in s 7 of the Civil Procedure Act 2010 by having regard to the object set forth in s 9 thereof;
(d)whether a grant of leave would be futile having regard to the substance of the defendant’s application to set the judgment aside.
[2]Unreported, SCV, Batt J, 4 April 1997.
The principles applicable to setting aside a judgment where the defendant was not present are similar to the considerations on the leave question. In Kostokanellis v Allen,[3] the Full Court considered that in such an application:
… what the judge is required to do is to determine what, in his opinion, is the just way in which the Court’s discretion should be exercised. To do this must involve weighing up the extent to which the defendant is prejudiced by allowing the order and judgment to stand and the prejudice to the plaintiff in setting them aside. In many cases the situation will be that the plaintiff will not suffer any prejudice that cannot be remedied by an appropriate order as to costs. So far as the defendant is concerned, if he is unable to comply with Rule 14(b), the order and judgment cannot be set aside and there would appear to be little purpose in doing so. On the other hand, if the defendant does show on affidavit a prima facie defence on the merits it would seem that usually he will be seriously prejudiced if he is debarred from being able to present his defence at a trial of the action. One cannot tell until this has been done whether or not the defendant will succeed in such a defence. While it is undoubtedly relevant to the judge to consider what explanation the defendant has for not appearing on the return of the summons of final judgment, the weight to be attached to this explanation will depend upon the circumstances.
[3][1974] VR 596 at 605.
The Full Court went on to refer to a passage in the judgment of Smith J in Shepperdson v Lewis,[4] and noted:[5]
In this connection reference may be made to passages in the judgment of Smith J, in Shepperdson v Lewis where, in dealing with the discretion to be exercised on an application to dismiss an action for want of prosecution, it was pointed out that the adoption of a formula created by erecting what are merely relevant factors into arbitrary principles so as to allow the automatic production of a solution in all but the exceptional case, is a quite fallacious approach to the exercise of a discretion (citation omitted).
[4](1966) VR 418.
[5][1974] VR 596 at 605-6.
While there is no specific formula to be adopted in the exercise of the discretion, the following are relevant considerations in an application pursuant to Rule 49.02(2):
(a)whether the defendant has a defence on the merits;
(b)the reason for not attending the trial;
(c)whether the application to set aside judgment was promptly made after the judgment came to the attention of the defendant; and
(d)whether if the judgment was set aside, the plaintiff would be prejudiced in any way which could not be adequately compensated by a suitable award of costs and giving of security.
Procedural history
The plaintiff filed a writ and statement of claim on 14 June 2006. The plaintiff subsequently amended its claim and filed a further amended statement of claim dated 4 September 2009. I refer to Exhibit ALG-1 to the affidavit of Annette Leigh Gaber affirmed 24 November 2011 for a chronology of events since June 2006.
The proceeding was fixed for trial by Associate Justice Daly on 21 December 2010.
On 13 May 2011, Associate Justice Mukhtar made orders including granting leave for the defendant’s former solicitors to file immediately:
1.a notice to cease to act;
2.the defendant have leave to apply for an adjournment of the trial date of 18 May 2011, and his Honour made an order that the application for adjournment be refused.
From 13 May 2011 the defendant was unrepresented.
The defendant appealed Associate Justice Mukhtar’s orders dated 13 May 2011. The appeal was heard by Justice Hollingworth on 17 May 2011. On that occasion the defendant did not appear in court. Leave was given by Justice Hollingworth to the defendant to be represented only for the day by Mr John Gerard Moran. Justice Hollingworth made orders dated 17 April 2011 that the defendant’s appeal by notice of appeal dated 16 May 2011 be dismissed and the proceeding be referred pursuant to Rule 77.05 to be heard and determined by an Associate Justice.
The matter came before me on 18 May 2011. The defendant did not appear. Mr Moran sought leave to appear on behalf of the defendant to make an adjournment application of the trial. Leave was not granted but Mr Moran was allowed to provide an affidavit that he had sworn dated 17 May 2011 to provide information to the Court. The Court vacated the trial date of 18 May 2011 and adjourned the trial date to 15 June 2011 with an estimate of three days.
On 18 May 2011, the Court ordered inter alia:
. . .
3.Any application by the defendant to adjourn the trial on 15 June 2011 be made returnable before Associate Justice Zammit and be filed and served by 10 June 2011. Such application should be accompanied by an affidavit of the defendant outlining the basis of the adjournment and exhibiting any relevant documents in support.
4.If any application made under paragraph 3 above is on medical grounds, the defendant must also file and serve by 10 June 2011 a medical certificate and detailed medical report outlining the defendant’s condition, prescribed medications, prognosis and capacity to conduct the trial on 15 June 2011, such medical certificate and medical report to be exhibited to an affidavit by the relevant treating doctor or appropriate representative of a hospital (as the case may be), from which the certificate and report are obtained.
5.Any treating doctor or representative of a hospital who gives an affidavit under paragraph 4 above, shall be provided with a copy of this order by the defendant and must attend the hearing of the defendant’s adjournment application to be cross-examined by the plaintiff.
The parties appeared before me on 1 June 2011 at a directions hearing. The defendant appeared in person. On that occasion I reminded the defendant that any application for an adjournment had to comply with the requirements of the orders made on 18 May 2011. The defendant informed the Court that she understood what was required if she intended to make any adjournment application of the trial which was now to commence on 15 June 2011.
On 10 June 2011, the Court received a handwritten letter with attachments faxed to the Court’s Associate, Mr Tom Baker, from the defendant. The letter and attachments were sent to the plaintiff’s solicitors. The letter stated that the defendant was informed by Mr Baker of the need to file and serve an application for an adjournment but that the defendant was physically not well enough to do so. The defendant acknowledged in the letter that the steps she was taking were not in compliance with the orders but that it was the best she could do. The defendant also noted that a witness, Ms Karen Shepherd, could not attend the trial because she had been ill.
Attached to the letter from the defendant were two letters. The first a medical report by Dr Kalyani Muthurajah dated 9 June 2011, the second from Ballarat Health Services Mental Health Service signed by Melissa Currie, Mental Health Clinician, dated 9 June 2011.
The Court was also provided with an email from the defendant to the plaintiff’s solicitor, Ms Annette Gaber, dated 12 June 2011. The email was copied to the Court’s Associate, Mr Baker. The defendant’s email said she was not well and she was not “going on, as said by doctors” and that, “if you all proceed do it at your own peril”.
The hearing commenced on 15 June 2011 at which time the plaintiff submitted that pursuant to Order 49.02 the trial of the proceeding should go ahead in the absence of the defendant.
I handed down a ruling on 15 June 2011 having considered the evidence before the Court including, the evidence of a private investigator retained on behalf of the plaintiff, Mr Robert Malone, and the letters from the defendant’s medical practitioners.
The Court considered that the defendant had failed to provide a proper explanation in accordance with the orders made on 18 May 2011 as to why the trial should not proceed. The Court considered that on the basis of the evidence before the Court the defendant’s condition did not render her incapable of deciding whether or not to attend court. The ruling notes that the defendant could apply to set aside any judgment entered against her pursuant to Order 49.02(2). The hearing of the matter took place over 15 and 16 June 2011. Judgment was handed down on 1 July 2011. The defendant was in Court on 1 July 2011 and was provided with a copy of the judgment.
On 6 July 2011, the defendant filed a notice of appeal to the Practice Court.
By letter dated 12 July 2011, the plaintiff’s solicitors advised the defendant that the appeal to the Practice Court was the incorrect procedure and requested that it be withdrawn. The defendant refused to withdraw the appeal.
On 25 July 2011, the defendant appeared in person before Justice Macaulay in the Practice Court and was told that she could bring an application pursuant to Rule 49.02(2).[6]
[6]Affidavit of Sonia Apikian sworn 24 November 2011.
On 18 August 2011, the defendant filed an application to the Court of Appeal for extension of time to appeal against judgment and for a stay of judgment. The summons was returnable on 20 September 2011 (later changed by the Court of Appeal to 23 September 2011).
Directions were made by the Court of Appeal for the applicant/defendant to file her affidavit in support and outline of submissions by 26 August 2011 and for the respondent/plaintiff to file its affidavit and submissions by 1 September 2011.
On or about 20 or 21 September 2011, Mr Vincent Peters of Counsel commenced acting for the defendant in the Court of Appeal proceeding pursuant to the Duty Barrister Scheme.
On 21 September 2011 an agreement was reached between the parties for the Court of Appeal proceeding to be dismissed with no order as to costs and the order was subsequently made by the Court of Appeal on 23 September 2011 dismissing the appeal with no order as to costs by consent of the parties.
On 3 October 2011 Gadens received notice that Coolabah Law Chambers had been retained to act for the defendant in this proceeding.
The defendant filed a summons seeking leave to set aside the judgment out of time on 7 October 2011 and was made returnable on 28 November 2011.
On 12 September 2011, the defendant filed an application in the Federal Magistrate’s Court in proceeding No. MLG 1317/11 seeking to set aside a bankruptcy notice issued by the plaintiff in reliance on the judgment entered in this proceeding on 1 July 2011. The defendant’s application in the Federal Magistrate’s Court was returnable on 3 October 2011.
On 3 October 2011, the defendant appeared in person in the Federal Magistrate’s Court and applied for an adjournment of her application on the basis that she was seeing Coolabah Law Chambers that same day to discuss bringing an application to set aside the Supreme Court judgment. Registrar Byrnes granted an adjournment to 7 November 2011 and made directions for filing of further material. The defendant’s application in the Federal Magistrate’s Court was heard on 7 November 2011. The adjournment was refused and the defendant’s application to set aside bankruptcy was finally determined.
The defendant’s evidence in support of the application pursuant to order 49.02(2)
The defendant’s evidence is:
1.From early May 2011 to 30 September 2011 the defendant was not represented and only had access to Mr Peters of Counsel, four days before the hearing in the Court of Appeal on or about 20 September 2011;
2.the defendant has made enquiries with various medical centres about obtaining her medical records for May and June 2011 so that she could make the records available for an expert report. The defendant’s solicitors received medical records from New South Wales in mid-November 2011 from Idaneo (No. 123) Pty Ltd;
3.the defendant wanted this application to be heard as soon as possible but did not want it to proceed without proper evidence;
4.at the time of the trial on 15 and 16 June 2011, the defendant felt overwhelmed by the task at hand and felt bullied to the point of suffering intense panic attacks and a physical breakdown which she thought was a heart attack at the time;
5.the defendant became concerned about her symptoms in May 2011 leading her to see Dr James Choong at Eureka Medical Centre on the morning of 16 May 2011;
6.the defendant did not work on 13 June 2011 as it was a public holiday and worked half days from 18 June until 20 June 2011.
The defendant puts into evidence the affidavit of Dr Millar which exhibits a report addressed to the plaintiff’s solicitors dated 16 November 2011. Dr Millar deposes that he is a medical practitioner. Dr Millar consulted with the plaintiff on the first occasion on 19 July 2011 and has been seeing her on a weekly basis since then.
Dr Millar has been treating the plaintiff on a biofeedback program of stress management.
Dr Millar gives a history of the plaintiff’s presentation and condition prior to 19 July 2011 in his report. Dr Millar’s history of the plaintiff is based on medical reports/records he has from doctors who previously treated the plaintiff and a history given by the plaintiff. Dr Millar’s file relating to the defendant was not before the Court.
Dr Millar considers the plaintiff suffers from symptoms of stress, anxiety and depression as quantified by her serial scores in the DASS 42 and IES-r clinical assessment tools. He considers the plaintiff remains in the extreme range of depression, anxiety and stress. Dr Millar concludes:
On 9 June 2011 one of the medical practitioners she had been seeing at the Eureka Medical Centre, Dr Kalyani Muthurajah, issued a medical report in which she stated that the patient “is in no proper mental state at present to represent herself in Court next week. It is highly recommended that requires (sic) a few months to get mentally better before attending any court session in the near future.”
On 16 May 2011 Dr James Choong provided a medical certificate which stated that “Maria is … unable to attend court due to her condition.”
His clinical notes include listing her symptoms as: nausea and diarrhoea; very upset, very jittery; unable to concentrate; trouble breathing and sleeping. He further stated that “I do not think she is fit to front court representing herself … she cannot even talk properly now; stammering and catching on her words.”
This description is consistent with her initial presentation to me on 19 July 2011.
The defendant also relies on the affidavit of Shane Kennedy. Mr Kennedy is a friend who resides with the plaintiff. Mr Kennedy deposes that on 14 June 2011 he went to the Ballarat Base Hospital with the plaintiff and that he took 15 June 2011 off work to be with the plaintiff.
On 15 June 2011, Mr Kennedy took the plaintiff back to the psychiatric unit at the Ballarat Base Hospital and later on the same day, drove the plaintiff to Geelong in an activity unrelated to any health problem.
The defendant’s submissions
The defendant submits that the orders made by the Court on 18 May 2011 amounted to a denial of natural justice to the defendant for the following reasons:
(a)the defendant became unrepresented five days prior to 18 May 2011 when orders were made;
(b)the defendant was not present in Court on 18 May 2011;
(c)the defendant advised the Court through her McKenzie friend that she was unwell;
(d)that by virtue of the gravity of the orders made on 18 May 2011 the defendant was incapable of making a rational decision or to fully comprehend what was required to seek a further adjournment;
(e)by virtue of the nature of such orders the defendant regarded the Court as her “nemesis and lacking the impartiality she expected.”
The defendant submits that she exhibits all of the symptoms of the unrepresented litigant which this Court and the International Covenant on Civil and Political Rights and Part 2 of the Charter of Human Rights and Responsibilities Act 2006 have recognised.
The defendant submits that her defective state of mind and knowledge is reflected by the fact that on 6 July 2011 she filed an application for leave to appeal the judgment handed down on 1 July 2011 which procedure was quite clearly wrong.
The defendant relies on the decision of Bell J in Tomasevic v Travaglini[7] and specifically to his Honour’s comments at paragraph 78:
In reality, the principle of the fair trial in its modern conception, and the human rights I have mentioned, recognise that people are not all equal in relevant respects, and that some suffer from particular disadvantages that impede their equal access to justice.
Take Mr Tomasevic, for example. When he stood before the judge in the present case, he was not poor, had not slept under a bridge and had not stolen bread. He was a trained teacher with a confident manner, a strong voice and a large grievance, and so was one kind of person among the great diversity of people who appear in the courts self-represented. But, to use the words of Smith J in R v Nilson (footnote omitted), he was still in a position of “grave disadvantage”. That was because he lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity. Mr Tomasevic’s grave disadvantage was obvious in the proceeding before me. I do not think it would have been different in the proceeding before the judge.
[7][2007] VSC 337.
The defendant submits that she should have been referred to PILCH prior to the trial which did not occur until after the leave application was listed by the Court of Appeal.
The defendant submits that she has an arguable case. The basis for this is that on two occasions she has had judgments set aside by the Court for irregularity. The defendant relies on the comments made by Justice Hansen (as he was then known) in his ruling in this proceeding delivered on 11 December 2009. The defendant submits that Justice Hansen was of the view that the point concerning the construction effect of the notice of default was an arguable point and that the matter should be tried as soon as possible. In addition, the defendant submits that she has an arguable defence pursuant to s 80 of the Consumer Credit (Victoria) Act 1955 (“the Act”).
The defendant also submits that in the first default notice the plaintiff relied on a loan agreement dated 1 August 2005 and that the loan agreement is an unjust contract in equity and law pursuant to s 70(7) of the Act. This is on the basis that the loan agreement was not executed by the plaintiff or its representative. It is submitted that the loan agreement is executed only by the defendant which execution bestows upon the plaintiff a right to enforce it against the defendant but fails to confer reciprocal rights upon the defendant against the plaintiff. The defendant relies on s 126 of the Instruments Act 1958 (Vic).
The defences provided by the Act are not pleaded by the defendant in her current defence. The submissions were put on the basis that they are defences which the defendant, if successful in this application, will seek to amend the current pleadings. There was no proposed amended defence before the Court.
The leave application
The evidence demonstrates that the defendant has known about the availability of the Rule 49.02(2) procedure since the time of judgment on 1 July 2011. The defendant has taken steps since 1 July 2011 albeit misconceived. The steps include the filing of a notice of appeal to the Practice Court on 6 July 2011 and appearing in person before Justice Macaulay in the Practice Court at which time the defendant was informed that she could bring the Rule 49.02(2) application. In addition, the plaintiff’s solicitors wrote to the defendant on 12 July 2011, advising her that the appeal to the Practice Court was the incorrect procedure. Despite being so informed, the defendant refused to withdraw the appeal. On 3 October 2011, the defendant retained her current solicitors and the summons currently before the Court was filed within four days.
The plaintiff submits that the defendant’s conduct since 1 July 2011 demonstrates that she has made deliberate choices which have delayed the making of the present application and that the defendant is a person who chooses when she is too unwell to act for herself.
The defendant has endeavoured to take steps to have the judgment of 1 July 2011 set aside. The difficulty is that the defendant has repeatedly adopted the incorrect procedure in circumstances where she has been put on notice by the plaintiff’s solicitors and a judge of this Court that the procedure was incorrect. The defendant was informed about the correct procedure on two separate occasions and chose at that time to ignore the information provided.
It is difficult to know in the circumstances of this case whether the defendant is an individual who was “so overwhelmed” to consider the correct procedure and application. Having said that, the defendant was able to appear before the Federal Magistrates’ Court to make an adjournment application on 3 October 2011.
On balance, I am not satisfied that the defendant was so overwhelmed but rather that the defendant chose to take steps despite being informed that those steps were incorrect and being invited by this Court to make the correct application pursuant to Rule 49.02(2).
The central issue in determining whether leave should be granted to the defendant to bring this application out of time is whether the defendant has an arguable case. I will deal firstly with the defendants’ submissions that there is an arguable defence pursuant to the sections of the Act. As noted, at no prior time has the defendant raised such defences. The first time these defences were raised was in the course of this application. The defendant has not provided the Court with a draft amended defence. There is no evidence before the Court in support of such defences. If the Court were to entertain the possibility of new defences at this stage of the proceeding in circumstances where the writ was originally filed in 2006 it would be manifestly unfair to the plaintiff. The defendant did not make any detailed submissions in relation to her existing defence. The defendant’s affidavit, affirmed 20 November 2011, fails to establish a prima facie defence on the merits.
The defendant submits that on two occasions judges of this Court allowed the claim to proceed.
The first time was before Justice Cavanough on 12 March 2008. This was the defendant’s appeal of an order of Master Daly (as she was known then) made on 21 March 2007 in which Master Daly heard the defendant’s application to set aside judgment and dismissed the application. The defendant filed a Notice of Appeal and the appeal was heard by Justice Cavanough on 12 March 2008.
The defendant appeared in person before Justice Cavanough. Judgment in default of appearance was set aside on grounds of arguable defence in connection with payment of the amount specified in the default notice, taking into account the manner in which the plaintiff’s claim was pleaded. The question of service of the writ was not determined by Justice Cavanough. The plaintiff subsequently amended its statement of claim to plead further terms of the contracts relied upon in connection with compliance with the default notice.
The second occasion on which a judge of this Court allowed the claim to proceed was on 11 December 2009 before Justice Hansen (as he was then known). The background was a summary judgment application by the plaintiff filed on 5 November 2008 on the amended statement of claim and the defendant’s counterclaim. The plaintiff’s summary judgment application was heard by Associate Justice Evans on 1 October 2009. The application for summary judgment was dismissed and interlocutory orders were made. The plaintiff appealed the decision of Associate Justice Evans and the appeal was heard and determined by Justice Hansen on 11 December 2009. The defendant was represented and His Honour dismissed the appeal on the grounds of an arguable defence.
The plaintiff provided the Court with detailed submissions in the course of the trial heard on 15 and 16 June 2011. In particular, it was noted that Justice Cavanough found that the defendant had an arguable defence because the plaintiff relied on the fact that the defendant continued to be in default at the end of “the grace period” provided for in the default notice. Justice Cavanough considered that the statement of claim should have expressly pleaded clause 19.1 of the loan agreement general terms and the precise default. That was done by the plaintiff in the amended statement of claim and the further amended statement of claim.
I will not repeat the submissions made by the plaintiff in the course of the trial which are set out in the written submissions. However, in relation to the default provisions in the loan terms and in particular clause 19.1, the defendant does not put any evidence before the Court in support of her defence. There is nothing more than a mere assertion that there is an arguable case. The defendant is in a position to have considered the submissions put before this Court in the course of the trial on 15 and 16 June and the judgment made on 1 July 2011. There is no evidence before the Court to support the defendant’s assertion that there is an arguable defence based on the default notice given on 28 April 2006.
The Court is confronted with a situation where the plaintiff is now legally represented and there is still no evidence to establish a prima facie defence on the merits.
Mr Peters pointed to the ruling made by Hansen J, and in particular his Honour’s comments at p 28 of the ruling, where his Honour said:
… I think there is one, and only one, point of which I cannot say that it is not arguable, and that is the point concerning the construction and the effect of the notice of default, which I took up with Mr Meehan.
I am not here expressing a final view, as Mr Meehan appreciated. This is not the time for that. I express no view as to the merits of the issue in question. The issue is whether an arguable ground of defence is raised, and having considered the matter I am of the view that I have expressed, that such an issue is raised.
This Court has now had the opportunity to consider the evidence in relation to the arguable point raised by Justice Hansen. The Court was taken squarely to this issue in the course of the trial on 15 and 16 June 2011. After considering the plaintiff’s submissions at trial, I found the defendant made insufficient payments during the grace period allowed by the Notice of Default to clear the existing default and avoid further default during the default period. Thus, I concluded the defendant was in default at the end of the grace period, giving rise to the plaintiff’s entitlement to take possession of the security property and requiring accelerated repayment of the loan monies.
Detailed submissions were made by the plaintiff at the trial which are available to the defendant. Despite this, the defendant has not put any evidence before the Court to establish a prima facie defence on the merits and now attempts to raise fresh defences without even providing a draft of those defences to the Court.
On the evidence before the Court, I do not consider the defendant has established a prima facie defence on the merits. Further, I do not consider there is a reasonable explanation for the delay in making this application. Despite having been put on notice twice that she was embarking upon the incorrect procedure, the defendant elected to proceed and now finds herself making this application out of time. Accordingly, I do not grant leave to the defendant to bring this application out of time.
Even if leave were granted to the defendant to bring the application out of time, I am not satisfied that there is an adequate explanation for why the defendant did not attend the trial on 15 and 16 June 2011.
The defendant relies upon the affidavit and report of Dr Millar to establish that she was medically unfit to attend trial on 15 and 16 June 2011. Dr Millar’s affidavit and report goes no further than establishing the defendant’s medical condition from 19 July 2011. The defendant deposes to having taken steps to acquire medical records so that she could obtain a professional report. There is no evidence before the Court as to why the doctors who saw the plaintiff at or about the time of the trial have not prepared a report for the purpose of this application. The defendant provides no explanation as to why the previous treating doctors are not now called to give evidence. The defendant has had five months since judgment to procure the medical evidence and has not done so and has not explained its omission.
In particular, there is no report or evidence from Dr Choong, Ms Currie, Dr Muthurajah and Dr Kalra. Dr Kalra was the plaintiff’s treating psychiatrist in June 2011. There is no evidence before the Court of how long Dr Kalra treated the defendant and whether Dr Kalra considered the plaintiff had a medical condition which prohibited her from attending trial on 15 and 16 June 2011.
The defendant was aware of the trial and appeared in Court at a directions hearing on 1 June 2011 when the Court formed the view that the defendant understood what was required for any further application for adjournment on medical grounds.
The defendant now comes to the Court and suggests that in addition to any medical condition she may have been suffering in June 2011, she was suffering from “unrepresented litigant syndrome”. There can be no question that litigation is stressful, and for an unrepresented litigant, often overwhelming. However, the defendant has demonstrated a capacity to appear in Court such as on 1 June 2011 at the directions hearing and more recently in the Federal Magistrate’s Court on 3 October 2011.
The defendant was initially granted an adjournment on 18 May 2011. However, orders were subsequently made which I am satisfied the defendant understood requiring particular steps to be taken if any further adjournment application was to be made. This was not a situation where the defendant was not provided with an opportunity to make an adjournment application and to put evidence before the Court.
The Court for good reason will rarely in the exercise of discretion under Rule 49.02 set aside a judgment which has been properly entered against an absent party where that party, being aware of the date of the trial, has failed to attend court.[8]
[8]Adams v Cronan (Unreported) SCVCA Winneke ACJ, 6 September 1996.
I am not satisfied that there is a reasonable excuse established for the defendant’s non‑attendance at trial.
As already noted, I consider that it would be futile to grant leave in the present case on the basis that I do not consider the defendant has an arguable defence.
Finally and for completeness, I consider there is prejudice to the plaintiff. I am satisfied on the evidence before the Court that the value of the security property, of $690,000 in its present condition, is very significantly less than the amount of the judgment. The defendant has made no offer to provide security or to pay into Court the amount of the judgment, despite admitting that she owes the loan moneys to the plaintiff. The defendant’s financial position as presently understood precludes any condition on setting aside if it was found to be in the interests of justice to do so. The evidence before the Court is that the defendant has not complied with the bankruptcy notice based on the judgment debt.
In summary, I do not consider that leave should be granted to the defendant to proceed with this application outside of time for the matters set out above. Further, even if leave were to be granted I do not consider that the judgment should be set aside. The defendant’s summons dated 7 October 2011 is dismissed.
I will hear the parties on costs.
---
0
0