Singh v Ginelle Pty Ltd

[2010] NSWCA 310

New South Wales

Court of Appeal

CITATION:	Singh v Ginelle Pty Ltd [2010] NSWCA 310
HEARING DATE(S):	26 October 2010
JUDGMENT DATE:	19 November 2010
JUDGMENT OF:	Beazley JA at 1; Campbell JA at 2; Handley AJA at 67
DECISION:	(1) Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs. (2) Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity Division of the Supreme Court of NSW dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	PROCEDURE – setting aside a judgment – powers of the court – application to set aside judgment entered by consent and obtained in absence of a party is to be decided in accordance with standards appropriate to setting aside of consent judgments – court does not have a free-ranging discretion to set aside judgment entered by consent – power exercisable only in accordance with a specific set of principles identified in Harvey v Phillips (1956) 95 CLR 235 – PROCEDURE – setting aside a judgment – a challenge to an agreement in relation to consent orders and an application to overturn the subsequent consent judgment ought to be brought as independent proceedings – waiver of objection to application to overturn consent judgment being brought by notice of motion – EVIDENCE – burden of proof – party who seeks to overturn a first instance judgment has an onus of establishing that there is sufficient reason for it to be overturned – ABUSE OF PROCESS – when an application for final relief has been heard and rejected, it is an abuse of process to approach the court at first instance again seeking the same relief
LEGISLATION CITED:	Consumer Credit (NSW) Act 1995 Credit (Commonwealth Powers) Act 2010 Uniform Civil Procedure Rule 2005
CATEGORY:	Principal judgment
CASES CITED:	Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Balbir Singh v Ginelle Pty Ltd, NSWCA, 16 March 2010, unreported Ginelle Pty Ltd v Singh [2010] NSWSC 579 Harvey v Phillips (1956) 95 CLR 235 Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 Re Jay-O-Bees Pty Ltd (in Liq); Rosseau Pty Ltd (in Liq) v Jay-O-Bees Pty Ltd (in Liq) [2004] NSWSC 818; (2004) 50 ACSR 565 Singh vGinelle Pty Ltd [2010] NSWSC 442 Singh v Secretary, Department of Family & Community Services [2001] FCA 1281 (Full Federal Court, 21 September 2001) Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
PARTIES:	Balbir Singh (First Appellant) Prem Jeet Kaur Singh (Second Appellant) Ginelle Pty Limited (Respondent)
FILE NUMBER(S):	CA 2009/292530; 2010/113436
COUNSEL:	In person (First Appellant) MW Young (Respondent)
SOLICITORS:	In person (First Appellant) Nugent Wallman & Carter Solicitors (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT JUDICIAL OFFICER:	Latham J; Palmer J
LOWER COURT DATE OF DECISION:	9 March 2010; 5 May 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Ginelle Pty Ltd v Singh [2010] NSWSC 579; Balbir Singh v Ginelle Pty Ltd [2010] NSWSC 442

2009/292530
2010/ 113436

BEAZLEY JA
CAMPBELL JA
HANDLEY AJA

19 NOVEMBER 2010

BALBIR SINGH & ANOR v GINELLE PTY LIMITED

Judgment

1 BEAZLEY JA: I agree with Campbell JA.

:

Nature of the Proceedings

3 This judgment arises from a joint hearing of two separate applications for leave to appeal from a decision of a single judge of the Supreme Court. One application concerns a decision given by Latham J on 9 March 2010, the other a decision of Palmer J given on 5 May 2010.

4 The applicants in each application are Mr Balbir Singh and Mrs Prem Singh (“the Singhs”). The Respondent in each case is Ginelle Pty Limited.

5 The Singhs had mortgaged some land at Londonderry to the Respondent, as security for a loan of $465,000, that was repayable on 23 March 2010. The Respondent has now sold that land, pursuant to a power of sale contained in the mortgage.

6 We permitted Mr Singh to appear at the hearing not only for himself, but also for his wife. Until shortly before the hearing, the Singhs had counsel acting for them, who filed written submissions on their behalf, to which we have had regard.

7 Mr James Carter, of the firm Nugent Wallman & Carter, has at all relevant times acted as the solicitor for the Respondent.

8 So far as the evidence discloses, the first relevant contact between the parties was on 15 September 2008, when Mr Carter, on behalf of the Respondent, wrote a letter to the Singhs offering a loan of $465,000 for a term of 18 months. The letter stated:

“We will be acting for the mortgagee in this transaction and it is our policy to insist that the borrower seek independent legal advice from solicitors of your choosing.
It would appear from your application that this loan is predominantly for business purposes and as such would not be regulated by the Credit Act. As our client only lends on unregulated transactions it will be necessary for a declaration as to business intent to be made by the borrower.”

9 The Singhs came to have Mr Lincoln Kelly, solicitor, of Noel F Bracks & Company acting for them in connection with the proposed loan.

10 On 17 September 2008 the Singhs signed a Consumer Credit Code Declaration, that stated:

“We declare that the credit to be provided to me by the credit provider is to be applied wholly or predominantly for business or investment purposes (or for both purposes), namely; (here insert in mortgagor’s handwriting the purpose of the loan)

Refinancing business loan

IMPORTANT
You should not sign this declaration unless this loan is wholly or predominantly for business or investment purposes.
By signing this declaration you may lose your protection under the Consumer Credit Code.
This declaration is made before we have signed, or entered into, a credit contract relating to this intended transaction.”

The words “refinancing business loan” were handwritten. Mr Kelly witnessed the signature of the Singhs on that document.

11 On 19 September 2008 the Singhs signed each page of the Letter of Offer to indicate their acceptance of its terms. Mr Kelly also signed each page.

12 The letter of offer included:

“ The purpose of the loan is (here insert purpose of the loan:
for investment/business purposes.
…
9. MORTGAGOR REPRESENTS TO MORTGAGEE THAT THE FUNDS ARE PREDOMINANTLY FOR BUSINESS OR INVESTMENT PURPOSES NOT PREDOMINANTLY FOR PERSONAL PURPOSES:
…
By signing this letter, the mortgagor represents to the mortgagee that the mortgagor is borrowing monies predominantly (more than 50%) for business or investment purposes and not predominantly for personal purposes and the mortgagor acknowledges that by signing this letter it recognises and accepts that the mortgagee does not lend monies except for the purpose which is predominantly for business or investment.”

13 On 19 September 2008 Mr Kelly sent those documents to Nugent Wallman & Carter, along with certain other documents. One of the documents was a letter dated 19 September 2008 from Mr Ray Tye, who had been the Singhs’ accountant for 15 years, addressed to the Respondent, in which he certified various matters, including:

“3. I understand that the Mortgagor have applied for an interest only loan of $465,000.00 with monthly instalments of $4,65.00 over 18 months at an interest rate of 12% per annum interest only as well as a 2 ^nd mortgage over the same property of $145,000.00 at an interest rate of 18% per annum.
4. I know the Mortgagor’s income and expenditure and based on that knowledge and my understanding of the Mortgagor’s financial position I am of the opinion that the Mortgagor is able to pay the interest on the loan and repay the principal in accordance with its term and can do so without substantial hardship.
5. I am not aware of any factors which may affect the Mortgagor’s ability to make the repayments of which may cause substantial hardship to the Mortgagor, repayments.”

14 Another was an acknowledgement of legal advice, of the kind referred to in Schedule 4 Part 1 of the Solicitors’ Rules, signed by the Singhs and witnessed by Mr Kelly (which said, in broad terms, that they had had the nature of their obligations under the documents explained to them). Another was a declaration, in the form of a statutory declaration, made by the Singhs, that included:

“2. We have received independent legal advice regarding the loan and security documents referred to in paragraph 1.
3. After receiving that advice we have freely and voluntarily signed the following documents.”

15 Another was a declaration by the Singhs to the effect that they were able to afford to repay the mortgage loan without substantial hardship.

16 The Singhs fell behind in their payments of interest. After service of a section 57(2)(b) notice the Respondent began proceedings for possession of the land, and repayment of the mortgage debt. The Respondent filed a Statement of Claim in the Possession List of the Common Law Division on 6 February 2009. It sought judgment for possession of the land, leave to issue a writ of possession forthwith, and judgment for the amount secured by the mortgage. I will refer to these proceedings as the “Possession Proceedings”.

17 By a Defence filed on 4 March 2009 the Singhs stated, amongst other things.

“14 Further the defendants say that this loan is governed by the Consumer Credit Code, (“The Code”).
Particulars:
a. This loan was for personal and domestic purposes and is within the definition in Section 11 of the Code.
15 That this loan was unjust within section 80 of the Code.
Particulars
a. The interest is excessive.
b. The fees charged are excessive.
c. The ongoing legal fees charged are excessive.
d. There was a substantially inequality in bargaining power between the parties.
e. There was no power to negotiate the terms of the agreement.
f. The terms are harsh and language of the contract does not comply with the Code.
g. The plaintiff and their solicitors should have know[n] that the loan should have been a home loan and not a business loan.
16 That any amount claimed by the plaintiff should be reduced accordingly.”

18 The Consumer Credit Code is an Appendix to the Consumer Credit (NSW) Act 1995, and has legislative force pursuant to that Act. (It ceased to have effect from 1 July 2010 when the last-mentioned legislation was repealed by Schedule 1 to the Credit (Commonwealth Powers) Act 2010.) Section 11 of the Code provides:

“(1) In any proceedings (whether brought under this Code or not) in which a party claims that a credit contract, mortgage or guarantee is one to which this Code applies, it is presumed to be such unless the contrary is established.
(2) Credit is presumed conclusively for the purposes of this Code not to be provided wholly or predominantly for personal, domestic or household purposes if the debtor declares, before entering into the credit contract, that the credit is to be applied wholly or predominantly for business or investment purposes (or for both purposes).
(3) However, such a declaration is ineffective for the purposes of this section if the credit provider (or any other relevant person who obtained the declaration from the debtor) knew, or had reason to believe, at the time the declaration was made that the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes. For the purposes of this subsection, a relevant person is a person associated with the credit provider or a finance broker (or a person acting for a finance broker) through whom the credit was obtained.
(4) A declaration under this section is to be substantially in the form (if any) required by the regulations and is ineffective for the purposes of this section if it is not.”

19 The reference in the Defence to the loan being unjust “within section 80 of the Code” is probably a misprint, as it is section 70 of the Code that confers on the Court a power to reopen unjust transactions. Section 70 defines “unjust” as including “unconscionable harsh or oppressive”, and provides, in section 70(2), a list of factors to which a court may have regard in deciding whether a term of a particular credit contract, mortgage or guarantee is unjust.

20 On 3 April 2009 the Respondent filed a Notice of Motion in the Possession Proceedings, seeking summary judgment.

21 On 20 April 2009 Mr Singh filed a Notice of Motion in the Possession Proceedings seeking to stay the proceedings until the conclusion of certain proceedings in the Consumer, Trader and Tenancy Tribunal, leave to file a Cross-Claim against the plaintiff, and leave to join certain other parties (who seem to have been connected with a previous loan that the Singhs had had, that was paid out using the proceeds of the loan raised from the Respondent).

22 Both of the Notices of Motion were before the Court on 28 April 2009, but were adjourned to 12 May 2009 to enable the Singhs to make an application for Legal Aid. On 12 May 2009 both Notices of Motion were before Adams J. Both were adjourned to 9 June 2009, to give the Law Society an opportunity to respond to a request that had been made for provision of pro bono assistance to the Singhs.

23 On 14 May 2009 an officer of the Law Society wrote to the Singhs saying:

“… your matter does not come within the Scheme’s guidelines because it does not have reasonable prospects of success.”

24 On 9 June 2009 both motions were referred to the Duty Judge for hearing. The Singhs were unrepresented. After some discussion outside the court between the Singhs, on the one part, and Mr Carter and Mr M W Young, (counsel for the Respondent), on the other, the Singhs and the Respondent signed an agreement, as follows:

“1. Mr and Mrs Singh (‘the Singhs’) agree to judgment being entered by Ginelle against them in proceedings 10748/09 in the Supreme Court of NSW (‘the proceedings’) as follows (‘the judgment’):
(a) judgment for the plaintiff for possession of the land situated and known as 20 Spencer Road, Londonderry 2753, New South Wales, being the entirety of the land contained in folio identifier 7/18586;
(b) leave to issue a writ of possession forthwith;
(c) judgment for the plaintiff against the first and second defendants in the sum of $484,363.93 (less any payments made by the Singhs after 9 June 2009);
(d) interest pursuant to s 100 of the Civil Procedure Act at the rate of 15% per annum on the sum of $465,000 from 9 June 2009 until judgment; and
(e) defendants to pay the plaintiff’s costs of these proceedings.
2. Ginelle agrees not to cause the judgment to be entered in the proceedings unless the Singhs breach their obligations to make the payments provided by this agreement. The times for these payments are of the essence.
3. The Singhs agree to make payments to Ginelle with respect to the loan made by Ginelle to the Singhs (‘the loan’) in accordance with the following schedule:
$28,350.30 by 30 June 2009
$4,650.00 by 24 July 2009
$4,650.00 by 24 August 2009
$4,650.00 by 24 September 2009
$4,650.00 by 24 October 2009
$4,650.00 by 24 November 2009
Outstanding costs by 30 November 2009
$466,140.54 by 30 November 2009
4. If the Singhs make all the payments to Ginelle in accordance with the schedule set out in clause 3 above Ginelle agrees not to enter the judgment but instead to cause the proceedings to be dismissed with no order as to costs (to which the Singhs consent), and to provide the Singhs with a discharge of the mortgage securing the loan.
5. The item ‘outstanding costs’ in clause 3 of this agreement refers to such costs of Ginelle due under the loan and/or the mortgage securing the loan, including but not limited to legal costs incurred in the proceedings, incurred up to and including 30 November 2009 and including also any costs anticipated for discharge of the mortgage and to dismiss the proceedings, less the amount of $4,916.20 which is included in the $28,350.30 payment due on 30 June 2009.
6. If the Singhs make any default in compliance with clause 3 (with time of the essence), Ginelle is free to immediately cause the judgment to be entered and to proceed to enforce the judgment, and the Singhs agree to sign such documents and perform such acts required to cause the judgment to be entered and enforced.
7. The parties agree to consent to the following orders being made in the proceedings on 9 June 2009:
(a) Stand proceedings (including the plaintiff’s notice of motion) over before the registrar at 9.00am on Tuesday 1 December 2009;
(b) Dismiss defendants’ motion filed 20 April 2009;
(c) Liberty to restore on 3 days notice;
(d) Costs reserved; and
(e) Note the agreement between the parties.”

25 Mr Young and the Singhs also signed some Short Minutes of Order that in substance reproduced clause 7 of the Agreement. The Duty Judge made orders in accordance with those Short Minutes.

26 In the several months after 9 June 2009 the Singhs did not make payments strictly in accordance with the agreed timetable, although they did make a significant effort towards compliance. However, the large amount of principal that was due on 30 November 2009 was not paid.

27 As ordered by the Duty Judge on 9 June 2009, the matter came back before the court on 1 December 2009. The Singhs did not attend on that occasion. Judgment was entered in accordance with clause 1 of the agreement.

28 On 2 February 2010 a Writ of Execution was issued. On 1 March 2010 the sheriff issued to the Singhs a Notice to Vacate, requiring them to vacate the premises no later than 10.30am on Tuesday, 16 March 2010.

The Application Concerning the Decision of Latham J

29 On 1 March 2010 Mr Singh filed a Notice of Motion in the Possession Proceedings. The orders it sought were:

“1 To set aside the agreement dated 9 June 2009 between Ginelle Pty Ltd and Mr Balber Singh
2 To set aside the judgment of 1 December 2009.
3 To stay the execution of the writ dated 2 February 2010.”

30 That Notice of Motion was returnable on 8 March 2010.

31 On 8 March 2010 the Notice of Motion came before Latham J. The Singhs were represented by Mr J Taylor of counsel. The only evidence in support of the application was an affidavit comprising two pages plus annexures, made by Mr Singh on 1 March 2010. In the course of discussion the judge said to Mr Taylor:

“The notice of motion filed, as far as I can tell, on 1 March 2010 with the affidavit in support does not on its face disclose any basis for setting aside the judgment that was given on 1 December. What the affidavit does is simply claim that the defendants have been through various tribunals and legal proceedings and consider themselves to have been the victims of numerous instances of unconscionable conduct by numerous financial lenders and brokers.
There is nothing in that affidavit which addresses the fundamental issue which was that there were payments to be made under the agreement which were not made. There is no stay in place in relation to the notice to vacate. The notice of motion and the affidavit in support were filed on the same day that the notice to vacate was issued. All this indicates to me that this is a last-minute attempt to put off the inevitable. Now what do I do about it?”

32 Mr Taylor put to the judge that the Singhs were unrepresented when they entered the agreement in June. Mr Taylor submitted that if the judge dealt with the matter ”on a part heard basis” further evidence could be made available. The judge ascertained that the Singhs had had legal representation from September/October 2009, and said:

“He has had ample time between then and 1 December to come to the court and seek to set aside the agreement he signed in June last year on the basis that he did not understand it or that there was some basis upon which he should be granted further relief but he does not say that.”

33 Her Honour rejected Mr Taylor’s application that the matter be brought back “later this week”, because of the imminence of the expiry of the Notice to Vacate. She stood the matter over to the next day. The next day Mr Taylor had no further evidence to put before the judge. He informed the judge that his instructions were that the handwritten portion of the Consumer Credit Code Declaration that said the purpose of the loan was “refinancing business loan” was not in the handwriting of either of his clients.

34 Latham J then delivered the judgment that is the first of the judgments from which leave to appeal is sought: Ginelle Pty Ltd v Singh [2010] NSWSC 579. Her Honour set out a précis of the history of the matter, and continued:

“9 A notice of motion was filed by the defendants on 8 March 2010 seeking to have the judgment set aside, the agreement set aside, and seeking a stay of the execution of the writ of possession. The affidavit in support of that notice of motion, which was sworn by the first defendant, refers to proceedings in the CTTT which I am informed do not concern the present plaintiff. The CTTT proceedings appear to be in relation to financial institutions who were the original lenders to the defendants. The affidavit asserts that the defendants have been the victims of unconscionable conduct by finance brokers, solicitors and lenders.
10 As a result of the lack of instructions which the defendants’ counsel was able to obtain yesterday, the matter was stood over until today’s list.
11 The instructions which Mr Taylor presently has are that the words appearing in annexure C of the affidavit filed in support of the notice of motion for summary judgment were not written by his clients, notwithstanding the fact that his clients had in fact executed the documents. The words that are said to be of questionable origin are “re-financing business loan”.
12 Be that as it may, there is no evidence before me, nor is there a submission, which even suggests that the defendants did not agree with the terms of agreement reached on 9 June 2009 and entered with the short minutes of order. The judgment obtained by the plaintiff on 2 December 2009 was entirely in accordance with the terms of the agreement and there is, in my view, no reason to set that agreement aside in the absence of any evidence justifying such a course.
13 In all the circumstances, the notice of motion of 8 March 2010 is dismissed with costs.”

35 The Singhs submit that there is a difference between the principles that are applied concerning an application to set aside a judgment that was entered by consent, and an application to set aside a judgment obtained in the absence of a party. They submit that the Supreme Court has inherent power to recall a judgment entered by consent if it is in the interests of justice so to do, and base that submission on Harvey v Phillips (1956) 95 CLR 235. The principles in accordance with which that power is exercised were there stated, at 243-244, to be:

“The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds, for example, such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.”

See also Singh v Secretary, Department of Family & Community Services [2001] FCA 1281 (Full Federal Court, 21 September 2001) at [10].

36 I do not agree that the court has a free ranging discretion to set aside a judgment entered by consent if it is in the interests of justice so to do. Rather, Harvey v Phillips identifies a specific set of principles by reference to which that power is exercised, namely “a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it”.

37 By contrast, the Singhs submit that Uniform Civil Procedure Rule 36.16(2) confers on the court power to set aside a judgment that has been given or made in the absence of a party. That rule provides:

“(2) the court may set aside or vary a judgment or order after it has been entered if:
…
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order …”

38 The Singhs submit that it is well established that that jurisdiction is exercised if an explanation is provided for the absence of the party, and it is established that that party has a bona fide defence on the merits (eg Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503). They submit it is the latter principle, rather than the former, which should be applied in the present case.

39 I do not agree. Even though the judgment of 1 December 2009 was given in the absence of the Singhs, it was also given in accordance with their consent. Even if UCPR 36.16(2) provides a procedural means by which an application to set aside the judgment might be made, proper application of principle requires that, when a judgment is both entered by consent and in the absence of a party, such an application be decided in accordance with the standards appropriate to setting aside of consent judgments. There is no sensible reason why the principles ought be any different if a party who has consented to a judgment is present when the court pronounces judgment in accordance with that consent, by comparison with the situation if a party who has consented to judgment is not present when the court pronounces judgment in accordance with that consent.

40 The Singhs submit that the judgment could be set aside or varied if section 11 of the Consumer Credit Code applied, quite apart from the circumstances in which the general law provided a basis for setting aside the contract contained in the settlement agreement. This submission (which was contained in the written submissions, and because of the absence of counsel from the hearing could not be elucidated in the oral hearing) was not very clear about whether it was directed to the Credit Code applying to the original loan agreement, or applying to the settlement agreement entered on 9 June 2009. However, this lack of clarity does not matter, as there was no evidence before Latham J that enabled the Singhs to make an affirmative case that the Consumer Credit Code Declaration was incorrect, or (to invoke the test in section 11(3) of the Consumer Credit Code) that there was a basis for the Respondent knowing or having reason to believe that the credit was in fact to be applied wholly or predominantly for personal domestic or household purposes.

41 The submissions of the Singhs about the principles in accordance with which a consent judgment can be set aside do not engage with the facts of the present case. That is because the reasoning of Latham J, that I have set out above, does not invoke any particular principles for the setting aside of judgments – it simply says that there was no evidence to justify it. Her Honour was right in saying so.

42 The Singhs submit that they had raised defences that this was purely asset-based lending, of the type referred to in Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41, and that it was not a loan for business purposes, and that in the interests of justice they ought to have been given the opportunity to run those defences.

43 The filed Defence did not make any allegation about asset based lending. Mr Taylor, in oral submissions on 9 March 2010, said to the judge that, as an alternative submission to the Consumer Credit Code applying,

“… we would argue the loan is unconscionable having regard to the nature of the loan, and the interest rate. My clients are keen, and have instructed me, to seek discovery in relation to the Ginelle loan, particularly correspondence between Ginelle and University Securities. The interest rate related to this loan does seem to be very high. I would suggest to your Honour it is incumbent upon lenders to have at least some regard to the ability of interested parties to repay the loan being extended and the question would be whether Ginelle made adequate inquiries, as they are bound to do, in relation to the Singhs’ ability to repay the loan. If that was not done that raises a question as to whether or not the loan was unconscionable even if the Consumer Credit Code is not held to apply.”

44 That submission is not a clear allegation of asset based lending. Rather, it is a submission that further enquiries should be made concerning topics that were relevant to whether there had been asset based lending. The Singhs submit that it was in the interests of justice that they be given the opportunity to run those “defences”. Insofar as that submission is based on supposing a freestanding power to set aside a consent judgment when it is in the interests of justice so to do, that supposition is not the law.

45 Before Latham J on 9 March 2010, it was the Singhs who were the moving party. They were urging the court to make the orders identified in the Notice of Motion filed 1 March 2010. There was a judgment of the court in existence. That judgment itself created rights and liabilities that, while the judgment was on foot, existed independently of any rights or liabilities that might have given rise to the judgment. Any party who sought to overturn the judgment had an onus of establishing that there was sufficient reason for it to be overturned. I do not accept the submission of the Singhs to the effect that it is the Respondent who bore the onus of rebutting claims of irregularity that the Singhs made in their defence in the Possession Proceedings, or in contentions from the bar table. Matters that might have been a basis on which the Singhs could oppose judgment being given against them in the Possession Proceedings, or obtain a reduction in the amount of their debt by cross-claim brought in the Possession Proceedings, had changed their character once the court judgment was entered. From that time, if that judgment was to be set aside, it was the task of the Singhs to prove the facts that warranted its being set aside.

46 There was no statement of assets and liabilities of the Singhs put in evidence before Latham J, or any evidence about their income and outgoings, from which her Honour could have concluded that there was a real case to be made that the Respondent was looking primarily to sale of the security, rather than to the ability of the Singhs to service the loan from sources other than the security itself. To the contrary, there was evidence of the Singhs making statements to the Respondent that they could afford to service the loan, and of their long-term accountant supporting that statement. The Singhs submitted to this Court (though not to Latham J) that their loan could not have been for business purposes, because it was to replace a loan that was itself a loan that had refinanced a housing loan. However, there was no evidence before Latham J that gave reason to believe that that was known to the Respondent, or that the Respondent ought to have been put on enquiry about it. To the contrary, there was evidence that the Singhs had signed documentation asserting that the loan was for business purposes, and had done so before a solicitor, who had given them advice about the loan.

47 A particular submission that the Singhs’ counsel made to Latham J was that he was instructed that the Consumer Code Declaration had the words “refinancing business loan” written in a hand other than that of one of the mortgagors. Neither the Singhs nor the Respondent put evidence before Latham J about who had actually written those words. Before us, the Singhs submit that the onus was on the Respondent to do so, and that Latham J erred in basing her judgment simply on a lack of evidence. That submission has an air of high unreality when Mr and Mrs Singh executed the Consumer Credit Code Declaration before their own solicitor. Further, if it was essential to whether the Credit Code applied that the Consumer Credit Code Declaration had been completed in the mortgagor’s own handwriting (a matter about which no submissions were made to us, and that I refrain from expressing any view about), by returning the Declaration executed, the Singhs made a representation that the handwriting was that of the mortgagor, as the form itself stated. As well, though, for the reasons I have given, in principle the onus of showing an irregularity concerning the entering of the loan agreement, or the agreement of 9 June 2009 lay on the Singhs, and before Latham J there was no actual evidence adduced by them (who were the people in a position to know) about whose handwriting was on the form.

48 Another submission is that the agreement of 9 June 2009 was made without the Singhs understanding the document, or under the influence of a mistake. The affidavit of Mr Singh that was before Latham J did not assert lack of understanding of the agreement, or any mistake concerning it, nor was any argument to that effect put to Latham J.

49 The Singhs submit that the judge failed to take into account a relevant consideration, namely Mr Singh’s affidavit of 1 March 2010. That submission is mistaken. Para [9] of her Honour’s judgment gave a précis of that affidavit, that seems to me to be a fair summary.

50 The Singhs submit that the judge should have considered whether the Credit Code applied to the transactions. If the Singhs wanted to succeed in an argument that, in some fashion, the agreement of 9 June 2009 was vitiated because either it, or the underlying mortgage transaction, did not comply with the Credit Code, it would be necessary for them to put forward evidence leading to that conclusion. This they did not do.

51 The Singhs contend that the judge erred in failing to allow them further time to gather evidence. At no time was the Singhs’ application cast as an application for an interlocutory injunction or stay pending a later final hearing on the question of whether the agreement dated 9 June 2009 should be set aside, and the judgment set aside. The case was only ever put to the judge as one in which all the orders in the Notice of Motion were sought. It was for the Singhs to elect whether they wished to proceed with the Notice of Motion, or only part of it, and to argue for any other orders they wished to obtain at some later stage, when they were better prepared.

52 In these circumstances, all the attacks on the judgment of Latham J fail. As the reasons why the attacks fail involves some considerations of matters of law, it is in my view appropriate to grant leave to appeal against the decision of Latham J, but to dismiss the appeal, with costs.

The Application Concerning the Decision of Palmer J

53 On 16 March 2010 the Singhs applied to Sackville AJA to have the Writ of Possession stayed pending an appeal from Latham J’s decision. That application was refused, on the ground that the appeal had no reasonable prospects of success: Balbir Singh v Ginelle Pty Ltd, NSWCA, 16 March 2010, unreported, and no medium neutral citation.

54 On 5 May 2010 Mr Singh approached Palmer J, who was then the Duty Judge in the Equity Division. By that time the Singhs had left the mortgaged property, and an auction sale of the mortgaged property was imminent. Mr Singh sought to file in court, and have argued forthwith, a Summons. The draft Summons that he brought with him to court sought the following orders:

“1 An order to stay the sale of land at 20 Spencer Road, Londonderry, NSW
2 An order that the agreement dated 9 June 2009 in annexure ‘B’ in these proceedings is unconscionable and deceptive.
3 An order for a joinder with the first defendant, Mr James Barton Carter and Mr Marcus Young to claim relief and damages.”

55 Mr Carter had been given some notice of the intended hearing, and was present in court.

56 Mr Singh had made a much more detailed affidavit than the one that was before Latham J. It was not legally well focused, but raised certain topics of complaint that had not been raised before Latham J. In describing them, I will ignore the fact that many of the paragraphs by which Mr Singh sought to raise these topics of complaint would have been inadmissible if objected to, and to some extent I will recast in more precise terminology matters that the affidavit raises in an incomplete or diffuse way.

57 The new topics of complaint seemed to be:

(1) Latham J had denied the Singhs natural justice by failing to call witnesses and to investigate the matters of complaint that were outlined to her.

(2) The broker through whom the loan from the Respondent had been arranged had, on Mr Carter‘s instructions, declined to make available to Mr Singh the loan application form and the valuation report.

(3) The valuation that was obtained before the loan was granted had treated the whole of the property as residential, whereas a significant part of it had existing use rights enabling it to be used for business purposes. Mr Carter and the broker had done this deliberately, so as to compel the Singhs to obtain a second mortgage, so that the broker and Mr Carter could make more money out of it.

(4) When the matter had been before Adams J on 12 May 2009, Adams J had directed Mr Young to contact the Law Society concerning the Singhs application for pro bono legal assistance, but Mr Young had not done so.

(5) Before the agreement was entered on 9 June 2009, Mr Carter had made a representation that he would never sell the Singhs’ house, but he had refused to include that in the written agreement because the Singhs should trust him and take his word for it.

(6) The Law Society’s letter refusing pro bono assistance on the ground that there was no reasonable prospects of success was itself misleading, because in truth there were prospects of success.

(7) The purpose of Mr Carter and Mr Young in proposing the agreement on 9 June 2009 was to cheat the Singhs out of the protection that they would otherwise have had under the Consumer Credit Code.

(8) The agreement of 9 June 2009 was entered under duress, because Mr Carter and Mr Young told him that if the Singhs did not agree to it they (Mr Carter and Mr Young) would go into court and ask the judge to make the order for possession.

58 The hearing before Palmer J proceeded without the draft summons being filed. After the judge had read Mr Singh’s affidavit, and heard submissions from Mr Singh, the judge expressed the view that the application should be dismissed. The judge gave Mr Singh the opportunity of not filing the summons, and thus avoiding paying a filing fee. The judge also said (correctly) that if Mr Singh wished to appeal to the Court of Appeal against his decision, it would be necessary for the summons to be filed. The judge then delivered his reasons for concluding that the application should be dismissed: Singh & Anor v Ginelle Pty Ltd [2010] NSWSC 442. Having heard those reasons, Mr Singh stated that he wished to appeal. The judge fixed a time (later extended) by which the summons was to be filed.

59 In fact the summons filed differed somewhat from the summons that had been the subject of the discussion in court on 5 May 2010. The orders it sought were, in substance:

“1. An order to stay the sale of land at 20 Spencer Road, Londonderry NSW 2753.
2. An order that agreement dated 9 June 2009 in ANNEXURE ‘B’ in these proceedings is unjust, as per S7 of Contract Reviews Act 1980 .
3. An order for a joinder with the First Respondent, Mr James Barton Carter and Mr Marcus Young to claim relief and damages as for S9 of Contracts Review Act and section 52 of Trade Practices Act 1974 .”

60 The judge’s reasons included:

“12 The submissions made today before me by Mr Singh simply repeat the essence of the complaints which were agitated before Latham J, and before Sackville AJA in the Court of Appeal.
13 I have read an affidavit of Mr Singh in which he complains about the conduct of the mortgagee’s solicitor, Mr Carter, and its Counsel, Mr Young. That conduct seems to be concerned with, firstly, failure to support an application for pro bono assistance from the Law Society’s pro bono scheme and, secondly, some form of coercion or intimidation inducing the signing of the compromise agreement which gave rise to the entry of judgment.
14 Having read the affidavit, I can see nothing whatsoever in it to justify the complaint of any form of misconduct of deceptive behaviour either on the part of Mr Carter or Mr Young. I think that Mr Singh, with respect, has misunderstood what Adams J said in advising the solicitors for the mortgagee to write to the Law Society about the pro bono application of Mr and Mrs Singh. All that his Honour suggested was that they write in order to inform the Law Society that if a pro bono assistance were given then the Law Society should inform the mortgagee plaintiff of that position as soon as possible so that everybody concerned in the proceeding would know what necessary steps needed to be taken to bring the matter forward for trial.”

61 At an interlocutory hearing relating to those applications that Giles JA heard on 21 October 2010, Mr Kumar, who was then counsel for the Singhs, informed the court that the application to join Mr Young and Mr Carter as parties was not pressed. At the hearing before us, Mr Singh adhered to that position. It is therefore not necessary to give any further attention to prayer 3 of the draft Summons or the Summons as filed.

62 I do not agree that the submissions that Mr Singh made to Palmer J repeated the essence of the complaints that were agitated before Latham J and before Sackville AJA. If one ignores the failures to comply with the law of evidence in Mr Singh’s affidavit (which were quite substantial), and was not too particular about requiring proof of all elements of the causes of action that the affidavit was groping to articulate, there were some new matters of complaint. However, even though there were some differences in expression, the relief sought before Palmer J was within the ambit of the relief that had been sought before Latham J.

63 The proceedings before Latham J had taken the form of a Notice of Motion filed in the Possession Proceedings. To the extent that the orders sought to stay execution of the Writ of Possession that had issued in those proceedings, that procedural frame was appropriate. When the application to set aside the judgment of 1 December 2009 was based on a challenge to the agreement of 9 June 2009, both the application to set aside the agreement of 9 June 2009, and to set aside the judgment of 1 December 2009, should more appropriately have been brought by independent proceedings: Re Jay-O-Bees Pty Ltd (in Liq); Rosseau Pty Ltd (in Liq) v Jay-O-Bees Pty Ltd (in Liq) [2004] NSWSC 818; (2004) 50 ACSR 565 at [64]-[72]; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 per Handley JA. However, as Handley JA said in Spies at 697, “an objection to the court’s jurisdiction being invoked by notice of motion must be taken at once or will have been waived.”

64 When Latham J has heard, and rejected, an application for what is in substance final relief setting aside the agreement of 9 June 2009, it is an abuse of process for the Singhs to approach the court at first instance again, seeking in substance the same relief on the basis of what they perceive to be improved evidence or more powerful causes of action. When the application for a stay was parasitic upon the application to set aside the agreement of 9 June 2009, failure to set aside the agreement of 9 June 2009 would inevitably bring failure of the application for a stay. That is a sufficient reason why the application made to Palmer J was doomed to fail. More detailed reasons could be given why certain of the additional matters that Mr Singh sought to raise before Palmer J would not succeed, but in light of the view I have just expressed there is no point in going into them.

65 In my view leave to appeal against the decision of Palmer J should be refused, with costs.

Orders

66 I propose the following orders:

(1) Grant leave to appeal from the decision of Latham J on 9 March 2010 in proceedings 292530 of 2009 in the Common Law Division of the Supreme Court of NSW but dismiss the appeal with costs.

(2) Application for leave to appeal from the decision of Palmer J given on 5 May 2010 in proceedings 113436 of 2010 in the Equity Division of the Supreme Court of NSW dismissed with costs.

: I agree with Campbell JA.

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