Wakefield v Ribbera & Anor

[2008] VSC 124

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 10359 of 2006

WAKEFIELD	Plaintiff
v
RIBBERA & ANOR	Defendants

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2008
DATE OF JUDGMENT:	18 March 2008
CASE MAY BE CITED AS:	Wakefield v Ribbera and Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 124

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PRATICE AND PROCEDURE – Appeal from Master’s decision to grant summary judgment for possession of real property – Appeal granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Moon	McCarthy Partners Pty
For the Defendant	Mr P Bingham	Caleandro, Guastalegname & Co

HIS HONOUR:

1. This is an appeal from orders of Master Daly made 29 February 2008.  The plaintiff as mortgagee claims possession under a registered mortgage dated 5 May 2006.  He claims an entitlement to possession consequent upon default.  The property in question is a property at 22 Bellarine Avenue, East Keilor, which is the second defendant's home.  The first defendant is deceased and the second defendant is entitled to the entirety of what was their joint interest in the property as the survivor.

1. The second defendant in her defence denies all knowledge of the mortgage, which she claims is a forgery.  A third party notice has been delivered by the second defendant to her son (the first third party), her daughter-in-law (the second third party), an accountant (the third third party), a firm of solicitors (the fourth third party), and the Registrar of Titles (the fifth third party).  The second defendant claims that the defendants are the victims of a fraud and a forgery perpetrated by her son or by her son and her daughter-in-law.

1. By a summons filed 9 January 2008, the plaintiff sought summary judgment under Order 22.  The plaintiff relied on an affidavit of David Wakefield sworn 9 January 2008 which essentially produced documents.

1. The second defendant swore an affidavit saying she was an elderly woman, with little English, and that the signatures of herself and her late husband are forgeries. 

1. On 29 February 2008, Master Daly ordered that the plaintiff recover possession of the property, that the second defendant pay the plaintiff the sum of $218,023.01, that the second defendant pay the plaintiff's costs, and that there be a stay on those orders pending the determination of the third party claim.  The second defendant appealed by notice of appeal filed 5 March 2008.

1. The second defendant's case has changed fundamentally on the hearing of the appeal.  Leave is sought to file and serve an amended defence and special leave was sought, which I granted in the circumstances, pursuant to rule 77.05(7)(b) to file a further affidavit producing documents referred to in that proposed amended defence.

1. Submissions were heard from counsel for the second defendant and counsel for the plaintiff on 14 March 2008 and they continued today.   Counsel have submitted to me a form of orders which they agree would be the appropriate orders if I reached the conclusion that the appeal should be allowed.

1. The defences now sought to be raised include the following:

1.The relevant loan contract, if it exists at all, is a contract to which the Consumer Credit (Victoria) Code applies and enforcement action is precluded due to non-compliance with s 80 and s 85 of that Code.

2.Further, the second defendant is entitled to seek relief at VCAT under s 70 of the Consumer Credit (Victoria) Code.

3.The second defendant has an in personam claim of the kind dealt with in Commercial Bank of Australia Ltd v Amadio[1] against the plaintiff.

[1] (1983) 151 CLR 447 (“Amadio”).

1. In my view it is clear, on the case now put, particularly in the light of the further material, that the second defendant has shown cause why judgment should not be entered on a summary basis.  If all of the relevant documents are forgeries, it seems to me there is an arguable case, at the least, of non-compliance with s 80 of the Consumer Credit (Victoria) Code.  It also seems to me that, on the material as it now stands, and notwithstanding the responding material which has been filed today on behalf of the plaintiff, there is an arguable case that an in personam claim exists of the Amadio kind.  In any event, in my view, there are matters here which ought to be investigated and the matter is not a proper one for summary judgment.

1. If the case had been presented to Master Daly in the way it has been presented here, I have no doubt that she would not have given judgment in favour of the plaintiff.  In those circumstances, I made it clear in the course of argument that, as the new case required leave to amend the defence and also special leave to rely on additional material, provision would need to be made to ensure that the plaintiff was not out of pocket as a consequence of allowing the appeal.  The orders both counsel have proposed do reflect that position.

1. Thus, in my view the appeal should be allowed and I will make orders in the form that has been submitted by the two counsel.  The proposed amended defence and counter claim, which I have initialled and dated, will stay on the file.