Suncorp-Metway Limited v Nagy

[2008] NSWSC 20

CITATION:	Suncorp-Metway Limited v Nagy [2008] NSWSC 20
HEARING DATE(S):	29/01/2008
JUDGMENT DATE :	6 February 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Malpass AsJ
DECISION:	I order that the plaintiff is to have possession of the land described in paragraph 2 of the Statement of Claim. The defendant is to pay the costs of the proceedings. The question of the issue of a writ of possession is referred to a Registrar.
CATCHWORDS:	COMMON LAW - summary judgment - claim for possession - alleged Independent Sovereign State - jurisdiction
LEGISLATION CITED:	Banking Act 1959 (Cth) Commonwealth Constitution Judiciary Act 1903 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Australian Prudential Regulation Authority v Cameron & Anor [2007] FCA 628
PARTIES:	Suncorp-Metway Limited Istvan Nagy
FILE NUMBER(S):	SC 15327/07
COUNSEL:	Mr M Southwick (Plaintiff) In Person (Defendant)
SOLICITORS:	James Legal Pty Ltd (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISON

ASSOCIATE JUSTICE MALPASS

Wednesday 6 February 2008

15327/07 Suncorp-Metway Limited v Istvan Nagy

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by Statement of Claim. The plaintiff seeks possession of land at 35 Mary Crescent, Liverpool, in the state of New South Wales (the land). The claim is a relatively simple one. The plaintiff relies on a registered mortgage and default under that security.

2 The land is presently occupied by a tenant. The tenant has been served and does not seek to oppose the relief claimed by the plaintiff.

3 However, the defendant has filed an unverified “Defence”. It is a document of considerable length with various voluminous attachments. The material comprises a certificate given by Donald Cameron.

4 At the outset, certain general observations may be made concerning the “Defence”. It is defective as a pleading and otherwise does not comply with the rules of court. In due course I will deal more specifically with its contents.

5 On 29 January 2008, a Notice of Motion filed by the plaintiff came on for hearing. It seeks the striking out of the defence and the entry of judgment. The defendant appeared in person to oppose that motion.

6 Before proceeding further, I should also mention that by reason of the contents of the “Defence” notice was given under s78B of the Judiciary Act. The notice has not evoked any intervention.

7 The contents of the “Defence” throws up comprehension problems. The substance of it looks to and is founded on s 118 of the Commonwealth Constitution. It then appears to proceed on the basis that there exists a Federal State which is called the Independent Sovereign State of Australia (ISSA); and that such an entity is a state within the meaning of s 118 and that there is no jurisdiction to grant the relief sought by the plaintiff. Such matters are in issue between the parties.

8 Save for the material contained therein which addresses this matter, the “Defence” does not put in issue the allegations made by the plaintiff in the Statement of Claim.

9 There was a related matter. It concerned a purported tender of a cheque from what was said to be the Federal State Bank of ISSA. The plaintiff joined issue on the validity of such a tender.

10 This matter was dealt with by Kiefel J in Australian Prudential Regulation Authority v Cameron & Anor [2007] FCA 628. Her Honour made orders restraining the defendants from, inter alia, carrying on any banking business in Australia. Her Honour took the view that there had been breaches of provisions of the Banking Act 1959 (Cth). In her judgment, she observed as follows:-

“This is not the first time that such an argument has been raised in Australian courts. Goldberg J, in Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd(2001) FCA 1062 at [28], pointed out that the Commonwealth Constitution recognises the Commonwealth and the States and Territories as the only entities in the federal polity known as the Commonwealth. An area of land cannot cease to be part of a State, except pursuant to s 123 of the Constitution. There are no other constitutional means available for the establishment of a separate political community in Australia. The property said to be that of the independent sovereign state here, upon which the bank conducts its business and in respect of which Mr Cameron and Mr Wheeley are said to be citizens, remains part of Australia.”

11 The defendant has purported to rely also on documentation which presents as being from the “Federal State Supreme Court” (an alleged institution of ISSA). One of the defendants in the case before her Honour (Donald Cameron) is presented in that documentation as being the Chief Justice of that Court. The documentation purports to present Donald Cameron as dealing with an appeal from the decision of her Honour and holding that her order was “unconstitutional, oppressive and corrupt”. I do not regard this documentation as giving any support whatsoever to what is advanced by the defendant.

12 It was common ground that the real issues between the parties during the hearing was whether or not the defence gave rise to an arguable issue. In my view, it clearly did not do so.

13 I consider that the contention sought to be advanced by the defendant is plainly unarguable (for reasons both of fact and law). In my view, inter alia, it is unarguable to suggest that the alleged ISSA is an entity that falls within the meaning of “state” as it appears in s 118.

14 In the circumstances, the plaintiff is entitled to have the defence struck out and to the entry of default judgment. However, as the application has been presented as a claim for summary relief, I will briefly deal with that matter.

15 It is well established that summary relief is only granted in what may be described as clear cases and that the onus rests with the plaintiff. In my view, the plaintiff has undoubtedly discharged that onus.

16 I order that the plaintiff is to have possession of the land described in paragraph 2 of the Statement of Claim. The defendant is to pay the costs of the proceedings. The question of the issue of a writ of possession is referred to a Registrar.

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