V & L Investments Pty Limited v Turner

[2009] NSWSC 171

CITATION:	V & L Investments Pty Limited v Turner [2009] NSWSC 171
HEARING DATE(S):	18 March 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
EX TEMPORE JUDGMENT DATE:	18 March 2009
DECISION:	Adjournment refused.
CATCHWORDS:	PRACTICE AND PROCEDURE - Email to registry on eve of trial fixture - Apparently application for adjournment - Vague reference to legal aid - Lengthy history of litigation - Implied application for adjournment refused
CATEGORY:	Procedural and other rulings
PARTIES:	V & L Investments Pty Limited - Plaintiff Belinda Ann Turner - Defendant
FILE NUMBER(S):	SC 2007/11085
COUNSEL:	M W Young - Plaintiff No appearance - Defendant
SOLICITORS:	Bransgroves - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 18 March 2009

2007/11085 - V & L INVESTMENTS PTY LIMITED v BELINDA ANN TURNER

JUDGMENT – Application for adjournment

1 HIS HONOUR: The first thing that needs to be dealt with this morning is the absence of the defendant. As I have drawn to the attention of Mr Young who appears for the plaintiff, an email message timed a minute or so before 3.00 pm yesterday, 17 March, was received by the records manager of the Supreme Court.

2 For present purposes I will mark for identification a print of that email “1” and direct that it remain with the papers. The implication of the message, which appears to emanate from the defendant, is that she has made an appeal to the Legal Aid Review Committee concerning, one assumes, a withdrawal of legal aid.

3 The papers show that a notice of intention to file a notice of ceasing to act was filed by the solicitor then acting for the defendant on 4 December 2008 and a notice of ceasing to act filed on 12 January 2009. The fixture of this matter for hearing today has been in place for some time.

4 At the outset of the proceedings I enquired of counsel for the plaintiff why the faculty of this court should be made available to the enforcement of a mortgage in which the so-called default rate was 15 percent per month and the ordinary rate 10 percent per month, since that calculation shows that that is a rate of about 180 percent per annum on the so-called “default rate”.

5 Mr Young drew my attention to the judgment of Young CJ in Eq (as he then was) in Takemura v National Australia Bank [2003] NSWSC 339 where, amongst other things, his Honour referred to the exercise of power by courts of equity to refrain from enforcement in circumstances which he listed, one of which was: “where the mortgagee has unconscionably exploited the necessitous circumstances of the mortgagor to extort from his exorbitant terms for the loan.”

6 I have had regard to what is said in that case.

7 However, Mr Young, in response to my enquiry, pointed out that the only remedy sought today is judgment for possession of land. No judgment is sought in respect of a money sum. He points out that the defendant is now bankrupt and Exhibit 1 reveals that the defendant's trustee in bankruptcy does not wish to be involved in proceedings in relation to the property which is in focus in this action.

8 There has previously been before the court an application for summary judgment, and as I have commented, there is a considerable amount of material on the file and it is not very easy to track through it. I have not overlooked the circumstance that, in fact, at one stage, the defendant was referred to medical practitioners to see whether or not she was sufficiently mentally capable of engaging in litigation. The papers revealed that there is no medical reason why the proceedings should not continue.

9 The plaintiff has handed up a chronology which I will mark for identification 2 and place with the papers. That chronology shows that the subject property was purchased in 2003 with the proceeds of an insurance claim following the death of the defendant's first husband. That property was mortgaged about twenty months later to a corporation called Liberty Funding. Approximately a year after that, the defendant made approaches which led to the entry into the mortgage which is presently sought to be enforced.

10 The chronology shows, and I accept for present purposes, that as at October 2006 the present mortgagee paid out the Liberty Funding mortgage and, as well, made an offer of a further advance to be secured by way of second mortgage over the property. By November 2006 the defendant was in default. I note that in December 2006 there was the least some discussion of refinancing at a more moderate rate of interest. It was in October 2008 that the defendant became bankrupt.

11 The purpose of recording these matters is to enable a just termination of the rather vague proposition in the e-mail to which I initially referred, which suggests that perhaps the defendant is engaged in an appeal relating to legal aid. I am unaware as to whether there was a revocation of legal aid at some stage, against which an appeal is brought, or precisely what is the appeal to which the obscure reference is made in the e-mail.

12 Section 57 of the relevant statute vests the court with power to adjourn proceedings in circumstances where it is satisfied there is a bona fide reason for so doing. I have earlier specified the considerable period which has elapsed since the previous solicitors notified the defendant of their intention to cease acting for her and, in fact, ceased acting for her.

13 As I indicated to Mr Young, I would have considerable reservation about enforcing an interest rate which, effectively, is in the order of 180 percent per annum. However, in the light of the circumstance that no judgment for money is being sought and in the circumstance in relation to the mortgage, which includes the circumstance that the present mortgagee has paid out a previous mortgagee, I am unpersuaded that a bona fide application for adjournment is before the court.

14 In coming to that conclusion I pay particular attention to the circumstance that the defendant has chosen to notify the court by e-mail about two hours before the close of business on the day before the listing of this matter. As I have earlier remarked, she must have known about the listing for a considerable period of time and must have known, also for a considerable period of time, that solicitors were no longer prepared to act for her.

15 Adding together all those circumstances, together with the circumstances set out in the chronology, I have come to the conclusion that a bona fide application for adjournment is not before the court and in so far as the e-mail should be treated as such an application, the application is refused.

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