Poulos v Commonwealth Bank of Australia Ltd (No 2)

[2019] NSWCA 290

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Poulos v Commonwealth Bank of Australia Ltd (No 2) [2019] NSWCA 290
Hearing dates:	On the papers
Date of orders:	02 December 2019
Decision date:	02 December 2019
Before:	Payne JA; Brereton JA
Decision:	(1) The notice of motion filed on 18 October 2019 is dismissed; (2) Applicant on the motion to pay the costs of the respondent.
Catchwords:	PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 36.17, 36.18
Cases Cited:	Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260 Teoh Hunters Hill Council (No 8) [2014] NSWCA 125
Category:	Principal judgment
Parties:	Patricia Poulos (Applicant) Commonwealth Bank of Australia Ltd (Respondent)
Representation:	Counsel: Applicant (Self-represented) F Roughley (Respondent)   Solicitors: Applicant (Self-represented) Gadens (Respondent)
File Number(s):	2019/00226568
Publication restriction:	Nil

Judgment

1. THE COURT: Almost 30 years ago, the Commonwealth Bank of Australia (the CBA) obtained a judgment for possession of a property in South Cronulla owned by Hacide Pty Ltd (Hacide), a company controlled by the applicant, Mrs Patricia Poulos, and her husband Mr John Poulos, who were also defendants in those proceedings. In 1991, an appeal to this Court from that judgment was dismissed.

2. In January 2018, Mrs Poulos commenced new proceedings in the Equity Division, against Mr JD Elliott as first defendant and the CBA as second defendant. On 12 April 2019, Kunc J summarily dismissed those proceedings as against the CBA. On 4 October 2019, this Court refused leave to appeal from that decision: [2019] NSWCA 241. In what follows familiarity with the Court’s earlier decision is assumed.

3. On 18 October 2019, Mrs Poulos filed a notice of motion in these proceedings seeking the following orders:

1. Setting aside the Judgment of their Honours Payne JA and Brereton JA pursuant to UCPR Rules 36.15, 36.16, 36.17, 36.18;

2. Leave to file a Notice of Appeal;

3. Costs.

4. The affidavit in support sworn by Mrs Poulos on 18 October 2019 asserted, in essence, that in the 4 October 2019 judgment this Court “failed to properly consider” or find various matters regarding various documents relating to the discharge of various mortgages. Written submissions by Mrs Poulos filed on 4 November and 18 November 2019 amplified those complaints. The applicant relies on rr 36.15, 36.16, 36.17, 36.18 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

5. In relation to UCPR r 36.15, the evidence does not establish any basis to think that the 4 October 2019 judgment of the Court was given or entered irregularly, illegally or against good faith: UCPR, r 36.15(1). The CBA does not consent to the orders of the Court being set aside: UCPR, r 35.15(2). In the judgment delivered on 4 October 2019, the Court addressed the gravity of an order for summary dismissal. The judgment examined the facts of the applicant’s case and addressed the submissions made by the applicant. The application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.15 must be dismissed.

6. In relation to UCPR 36.16, no basis has been shown in the evidence for the exercise of any powers under that provision. The central focus of the applicant’s submissions was the discharges of mortgages related to various properties. That was the focus of the hearing before the Court on the application for leave to appeal. That subject was extensively addressed in the judgment. There is no fresh argument or evidence identified by the applicant. No basis has been shown to suggest that the Court overlooked any issue raised by the applicant. No relevant change of circumstances justifying the reopening of the decision to refuse leave has been shown. The applicant’s affidavit and submissions complain, in substance, of alleged errors in the judgment of 4 October 2019 of a kind which, if they call for remedy, can be remedied only on an appeal, rather than of such oversights as might warrant a reopening. The application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.16 must be dismissed.

7. In relation to UCPR r 36.17, the applicant has not identified any clerical mistake or error arising from an accidental slip or omission requiring correction or which would warrant reconsideration of the judgment and the decision to refuse leave to appeal. The application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.17 must be dismissed.

8. In relation to UCPR r 36.18, no basis has been shown to think that the rule might be relevant in this case. The application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.18 must be dismissed.

9. For these reasons the applicant’s notice of motion filed on 18 October 2019 must be dismissed with costs.

10. The CBA also seeks an order to the effect that “should the Applicant seek to file any further application against the Respondent [in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal], the Applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process”.

11. The CBA relied on Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260 as authority for making such an order here. The orders in that case were originally made by the Court acting on its own motion in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324. [1] Teoh (No 4) was a case, however, where the Court made such an order after the third essentially repetitive attempt to review orders earlier made.

    1. See also Teoh Hunters Hill Council (No 8) [2014] NSWCA 125 where final dispositive orders were made.

12. Whilst we have concluded that Mrs Poulos’ current motion is essentially repetitive of the matters already determined under the original application for leave to appeal, we are not satisfied that cause has yet been shown to adopt the procedure outlined in Teoh (No 4).

13. The orders of the Court are:

1. The notice of motion filed on 18 October 2019 is dismissed;

2. Applicant on the motion to pay the costs of the respondent.

**********

Endnote

Decision last updated: 02 December 2019