Thirty First Vobarb Pty Ltd v Winkler
[2010] VSC 198
•10 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7685 of 2009
| THIRTY FIRST VOBARB PTY LTD & ORS | Plaintiff |
| v | |
| ALLAN PAUL WILLIAM WINKLER | Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2010 | |
DATE OF JUDGMENT: | 10 May 2010 | |
CASE MAY BE CITED AS: | Thirty First Vobarb Pty Ltd v Winkler | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 198 | |
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APPEAL – appeal from decision of Associate Judge – notice of appeal filed out of time –mortgages and mortgagees – claim by plaintiff mortgagees for possession and monies due under mortgages – no valid ground of appeal demonstrated by defendant – appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Bingham of Counsel | Cornwall Stodart |
| For the Defendant | Mr Winkler in person |
HIS HONOUR:
By writ filed on 10 July 2009, the plaintiffs sued the defendant Allan Paul William Winkler seeking possession of the land situate at and known as 19 and 21‑23 Macauley Place, Bayswater, and being the land more particularly described in certificate of title volume 10829 folio 753, and certificate of title 10829 folio 754. They seek possession as mortgagees under two mortgages dated respectively 29 April 2005 and 21 November 2006, as varied. They also seek judgment for the amounts due and payable under the mortgages.
Mr Winkler, who is self represented, filed a defence and counterclaim on 26 August 2009. In this document he puts in issue a number of the pleaded allegations. In particular, he disputes the amounts which were said to be advanced and those outstanding. The counterclaim raises similar matters, but seeks no relief. It therefore adds nothing to the proceeding.
By summons filed on 3 December 2009, the plaintiff sought summary judgment for possession and for the outstanding moneys and, presumably, judgment on the counterclaim.
The application came on for hearing before Mukhtar AsJ on 11 March 2010, and on 17 March 2010 his Honour gave judgment for the plaintiffs for possession of the land and for sums totalling $2,890,759.80, together with solicitor/own client costs.
By r 77.06(4) a notice of appeal must be filed within five days of the judgment. On 14 April 2010, some 28 days after judgment, Mr Winkler filed a document seeking to appeal. No good reason for this has been offered, and I will dismiss the appeal on that basis.
Nevertheless, in case this was due to some mere oversight or due to his unfamiliarity with the Rules of Court, I will examine his case to ensure that he should not suffer any injustice. I shall do so on the basis that the appeal was properly bought. On this basis I address the matter as a rehearing in accordance with r 77.06(7).
I note that the document which raises the appeal is in the form of an affidavit by Mr Winkler sworn 14 April 2010. As a rehearing, I could treat this document as not raising new evidence, but rather as developing the argument he offers on the basis of material previously before the associate justice.
Nevertheless, there is further material in this affidavit of 14 April 2010 which Mr Winkler wished to rely upon, and it seemed to me fair that I should accede to his request that I look at that affidavit, and I have done so. By the same token, further material has been provided on behalf of the plaintiffs, and they seek leave to rely upon that material, as has Mr Winkler on his material. This is an affidavit of Kenneth Roy Davis sworn 7 May 2010, and an affidavit of his solicitor Edmund Zelik Gurgiel sworn 7 May 2010. I will, for reasons I have indicated, give leave to the plaintiffs to rely upon this material which was, I was told, served last Friday.
The claim of the plaintiff was, as to its formal matters, not seriously in dispute. The affidavit of the second plaintiff, Kenneth Roy Davis, sworn 10 December 2009, show the following, which I accept to be correct:
(a)The first mortgage was granted in April 2005 to secure a loan of $1,050,000 to Mr Winkler for 12 months with an expectation that it might be rolled over, subject to certain conditions. The documents show that the advance was to enable him to carry out building work on the land. The agreement of loan shows that there was to be an immediate advance of $325,000 at settlement with the balance advanced progressively on a cost to complete basis with a final payment on completion.
(b)The loan agreement and the first mortgage were the subject of two variations, first in January 2006 whereby the sum advanced was increased by $410,000 to $1,460,000, and the period of the loan extended to 29 January 2007. By a second variation made in December 2006, the date for repayment of the loan was extended to 29 January 2008. This date was not extended again.
(c)A second mortgage was granted in November 2006 to secure a second loan of $320,000 to Mr Winkler. This loan too was for one year with an expectation of rollover subject to certain conditions. The money too was to be advanced on a cost to complete basis.
(d)The second loan and the second mortgage were subject to a variation in December 2007 whereby the amount advanced was increased by $150,000 to $470,000, and the date for repayment extended to 21 May 2008. The date for repayment was not further extended.
(e)Mr Winkler failed to make monthly payments under the two loans in November 2007 and December 2007 respectively.
(f)The loans were not repaid when they fell due, and notices to pay were given on 23 June 2009. No further payments have been made.
(g)Certificates dated 10 March 2010 were given under clause 31.10 of the common provisions. These showed that the amounts due and payable as at 11 March 2010 were as follows: under the first mortgage $2,149,437.13; the second mortgage $741,322.77, a total of $2,890,759.90. It is apparent that this sum had not been paid and cannot be paid. Accordingly, the mortgagees are entitled to possession and to judgment in the sums outstanding, subject to adjustments to bring them up to date.
Insofar as Mr Winkler disputes the amounts said to be outstanding under the mortgage, I start from the position that the certificates are prima facie evidence of those matters. In addition Mr Davis has produced transaction records supporting these accounts and providing details of the interest payable.
I mention for completeness that each of the certificates of title of the land shows that in November 2008 a third mortgage was granted to Ranmor Finance Pty Ltd, and that this was varied in May 2009. Ranmor is a company apparently unconnected with the plaintiffs.
In his affidavit in opposition sworn 9 March 2010, Mr Winkler raises the following matters in defence to the plaintiffs' claim, and I quote from paragraph 5 of his affidavit:
(1)The plaintiffs for reasons known only to themselves have systematically succeeded in slowing down the building program, refinancing, and possibly the sale of the building in question;
(2)have colluded with more than one other party to do so, and in so doing have been able to apply huge interest rates over a period of four years, instead of the intended program of one year;
(3)have caused Mr Winkler to lose all other assets and to use hundreds of hours by satisfying unnecessary requests from the plaintiffs and their associates.
I should say immediately that these allegations, if made out, would not provide a defence to the claim for possession or, indeed, the claims for the debts, unless they were so closely connected with the debts as to warrant a set‑off. The material produced in support for the most part concerns the events of 2008 and thereafter when the loans had already expired and were due. I have examined the documents attached to Mr Winkler's affidavits of 9 March 2010, as well as his affidavit of 14 April 2010. They do not disclose facts which give rise to actionable claims against the plaintiffs.
Before me in argument Mr Winkler raised the question of the failure of the mortgagees to provide details of deductions from the amount held in the trust account where the drawdown funds were held. As to this, I express no views other than to comment that as a person with contingent entitlement to the money in the trust account, I see no reason why he should not have been provided details of the amounts. Some of the documents that have been produced to me suggest that he has been provided with some details. This is not a matter which I am concerned to enter upon. It does not warrant a deduction from the amounts due, and certainly does not raise an issue which puts in doubt the question of the plaintiffs' entitlement to possession.
The picture which emerges from Mr Winkler's material is that he is an electrical contractor who sought to undertake the development of the land without sufficient working capital. His cash flow problems became intolerable when the plaintiffs declined to make payments as requested. It will be recalled that in terms of the first loan, there was to be a payment on settlement of $325,000. The proposed application of these moneys is set out in annexure F(f) to his affidavit. It shows a surplus available from this payment of $37,466. In this document, Mr Winkler proposes that a further payment be made of $125,000 representing "50 per cent of the value of work completed as agreed". This payment of $125,000 was also referred to in a document dated 10 March 2005, which is also part of Annexure 5.5, which set out approximate projected claims and drawdowns. This was of course one day after the letter of offer of 9 March was sent. The letter of offer was signed by Mr Winkler by way of acceptance on 16 March 2005. It contains no reference to the $125,000 payment.
There is nothing in the material which leads me to conclude that there was a triable issue as to Mr Winkler's allegation that he was entitled to a further $125,000 immediately after settlement. The material which he has provided suggests that he was keen that this should happen, and that he spoke to his broker about this matter, but the evidence does not show that this was ever accepted by the mortgagees. Indeed, all the documents show the contrary. In any event, a short payment of some $90,000 would not itself raise a defence to the present claim.
A further issue which Mr Winkler sought to raise was that he was generally short paid and late paid in his progress payments, and that this exacerbated his cash flow problems, so that the work stopped and it was unable to be completed by late 2008. Furthermore, he sought further advances from Mr Davis, but his requests were not agreed to. There is no great detail of this, and certainly nothing which points to this as a triable defence to the plaintiffs' claim.
The final matter which Mr Winkler raised was the question of the non-provision of tax invoices by the mortgagees to justify their deductions from the trust money held for the advances. This, he said, caused him difficulty with the Australian Tax Office. This is a matter which is not really borne out in the material, and I express no views upon it. In any event, it is likewise difficult to see how this would raise a triable defence to the claim which the plaintiffs make.
I turn then to the amount of the debt. Mr Winkler says that he cannot be satisfied as to its calculation. In the material provided on Friday, greater detail of the calculation has been provided. Furthermore, a matter which Mr Winkler had raised, and properly raised, namely how the interest on the trust money was dealt with, has now been cleared up. It appears that the interest on the trust money was credited to the amount which was advanced so that this money became available to Mr Winkler without any interest payable on it. In the circumstances, there can be no issue raised in this quarter which would detract from the plaintiffs' entitlement to the judgment they seek.
As I have indicated, the certified amounts due under the mortgages were sums totalling $2,890,759.90 as at 11 March 2010. In the circumstances, the associate judge was entitled to enter judgment for those sums as he did. Furthermore, the associate judge was entitled to make an order for possession as he did, and to dismiss the counterclaim, as he did.
In the circumstances, the appeal will be dismissed.
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