ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia - [2014] NSWCA 402 - NSWCA 2014 case summary — Zoe

NSWNSWCA

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia

[2014] NSWCA 402

Court of Appeal (NSW)|2014-08-04|Before: Beazley P, Macfarlan JA, Leeming JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2014-08-04

Before

Beazley P, Macfarlan JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Turner [1900] 1 Ch 199 In the matter of ACES Sogutlu Holdings Pty Ltd [2014] NSWSC 140 In the matter of ACES Sogutlu Holdings Pty Ltd and Ceyser Pty Ltd [2014] NSWSC 780 Kennedy v De Trafford [1897] AC 180 Lewis v Condon [2013] NSWCA 204; 85 NSWLR 99 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 Natwest Markets Australia Ltd v Mannix (1995) NSW ConvR 55-743 P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167 Ren v Jiang (No 3) [2014] NSWCA 204 Stockl v Rigura Pty Ltd [2004] NSWCA 73; 12 BPR 23,151 Tekinvest Pty Ltd v Lazarom [2004] NSWSC 940 Vacuum Oil Company Pty Ltd v Wiltshire (1945) 72 CLR 319 Texts Cited: J Allsop, "The Nature of the Trustee's Right of Indemnity and Its Implications for Equitable Principle" (paper delivered Sydney, 18 July 2012) J Mowbray QC et al, Lewin on Trusts (18th ed, Sweet & Maxwell, 2008) Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, 13 December 1927 Category: Principal judgment Parties: ACES Sogutlu Holdings Pty Ltd (First Appellant) Ceyser Pty Ltd (Second Appellant) Ercan Sogutlu (Third Appellant) Jamal Charara (Fourth Appellant) Commonwealth Bank of Australia (Respondent) Representation: Counsel: J Charara (in person for the Appellants) D F Villa (Respondent)

[2]

Solicitors: J Charara (in person for the Appellants) Gadens Lawyers (Respondent) File Number(s): 2013/291031 Decision under appeal Court or tribunal: Supreme Court Citation: [2013] NSWSC 1184 Date of Decision: 30 August 2013 Before: Young AJ File Number(s): 2012/208480

[4]

[This headnote is not to be read as part of the judgment] In 2006, the Commonwealth Bank of Australia (the Bank) lent $1.5 million to ACES Sogutlu Holdings Pty Ltd (ACES), for the purposes of acquiring a commercial property in Botany. The Bank procured security from ACES, including a registered mortgage by ACES as trustee for Sogutlu Family Trust over the Botany property, and a guarantee by Ceyser Pty Ltd (Ceyser) as trustee for Ceyser Hybrid Unit Trust supported by a registered mortgage over a commercial property held by it on trust on Burrows Road in or near Alexandria. In 2011, the Bank appointed agents to sell both properties, following ACES' default, and in 2012 successfully sued ACES and its guarantors for the shortfall that remained after the sales. A liquidator was then appointed to ACES and Ceyser. Three working days before the appeal was to be heard, a Notice of Discontinuance was filed by the Bank, purportedly on behalf of the two companies. The appellants denied that this notice was effective. The grounds of appeal contended that there was no occasion for the exercise of the power of sale, Ceyser having been wrongly named as proprietor of the Burrows Road property. It was further contended that the power had been improperly exercised, due to inadequate advertising of the properties, the stopping of a proposed sale, and the negligence of the Bank's valuer, whose evidence, it was submitted, should not have been preferred to the evidence of the appellants'. In the primary judge's reasons, and final form of the cross-claim, Mr Jamal Charara, who appeared for the appellants at trial and on appeal, was listed as the fourth cross-claimant. The appellants submitted that this was in error. The Court held, dismissing the appeal:

Subject to statute, a trust has no separate legal personality from the trustee. Trustees will be ordinarily personally liable for any and all obligations they incur, whether or not such obligations are incurred in accordance with their obligations as trustee. Ceyser had guaranteed the obligations of ACES, and the property held by it as trustee was properly the subject of the exercise of the power of sale by the Bank: [15]-[20]. Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773, applied. P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167; Lewis v Condon [2013] NSWCA 204; 85 NSWLR 99; CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; 224 CLR 98; In re Johnson; Shearman v Robinson (1880) 15 Ch D 548; Farstad Supply AS v Enviroco Ltd [2011] UKSC 16; [2011] 1 WLR 921, referred to.
To be effective, a notice of discontinuance filed in appellate proceedings must comply with r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW); it must be accompanied by a notice from each party whose consent is required by sub-r (1) to the effect that the party consents to the discontinuance: [29]-[35].
In exercising a power of sale in respect of a property of a corporation, a duty of reasonable care is imposed by s 420A of the Corporations Act 2001 (Cth). Although the primary judge applied a test of "good faith", the primary judge's conclusion was sustained by the Bank's notice of contention: [41]-[45], [90]. Tekinvest Pty Ltd v Lazarom [2004] NSWSC 940, referred to.
In circumstances where the mortgagor had been given five months to sell the property, and evidence of the proposed sale was exiguous, the Bank was not required to wait a further period of time for the appellants to sell the property: [53]-[63].
In the context of a newspaper, brochure, email and internet advertising campaign following earlier unsuccessful advertising by the mortgagors, advertising a property with the words "mortgagee in possession" did not sustain a conclusion that there had been a breach of duty in the exercise of the power of sale, nor, in the absence of any evidence, did a possible misdescription of the suburb of the property: [65]-[76]. Stockl v Rigura Pty Ltd [2004] NSWCA 73; 12 BPR 23,151, applied.
Parties who are joined to proceedings, whether or not they are necessary or proper parties, are parties to the litigation until they are removed: [147]-[149]. Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, referred to.
The Court held that it was incumbent on the appellant to draw to its attention that extraneous material appeared to have been inserted into the appeal books, not in evidence at trial, and on which the appellant relied to support a ground of appellable error. The Court ordered that the appellant be given the opportunity to explain the presence of the material: [84]-[88], [159].

[6]

Overview of factual background

By letter dated 20 October 2006, the Bank offered to lend the first appellant (ACES Sogutlu) a "BetterBusiness loan" in the amount of $1.5 million. The purpose of the loan was the acquisition of commercial property at Cranbrook St, Botany. The Bank's offer was accepted shortly afterwards on behalf of ACES Sogutlu by its sole director, the third appellant, Mr Ercan Sogutlu. Mr Sogutlu was also the sole director and shareholder of the second appellant, Ceyser Pty Ltd. It was admitted on the pleadings that Ceyser was the trustee for the Ceyser Hybrid Unit Trust under the Ceyser Hybrid Unit Trust Deed dated 18 June 1998.
The Bank required security, including the following listed in a "security schedule": "A Registered Equitable Mortgage by ACES Sogutlu Holdings Pty Ltd ACN 122 192 509 as trustee for Sogutlu Family Trust over the whole of its asset(s) and undertaking(s) including uncalled capital and including all assets of Sogutlu Family Trust. A Registered Mortgage by ACES Sogutlu Holdings Pty Limited ACN 122 192 509 as trustee for Sogutlu Family Trust over commercial property situated at xxxxx Cranbrook Street, Botany NSW. ... A Guarantee by Ceyser Pty Limited ACN 082 916 078 as trustee for Ceyser Hybrid Unit Trust supported by: A Registered Mortgage by Ceyser Pty Limited ACN 082 916 078 as trustee for Ceyser Hybrid Unit Trust over commercial property situated at xxxxx Burrows Road, St Peters NSW. ... A Guarantee by Ercan Sogutlu."
ACES Sogutlu acquired the Botany property and granted a mortgage to the Bank. Ceyser was the registered proprietor of property situated at Burrows Road in either St Peters or Alexandria (there is a dispute as to which suburb), and in accordance with the security schedule it executed (again, by its sole director Mr Sogutlu) a legal mortgage in favour of the Bank which was registered.
ACES Sogutlu defaulted. The Bank appointed Mr Marcus Ayres and Mr Christopher Hill of PPB Pty Ltd, trading as PPB Advisory, as its agents, empowering them to take possession of both properties and to sell them. The document appointing them was dated 7 March 2011. Central to the issues at trial and on appeal was the complaint made by the defendants and appellants as to the manner in which both properties were sold. It will be necessary to return in much more detail to this. It suffices for the present to note the following about the sales. The Botany property was sold for $1.2 million (by contract dated 24 August 2011 with settlement on 4 November 2011); that sale was a "taxable supply" for GST purposes. The Burrows Road property was sold for $805,000 (by contract dated 24 May 2011 with settlement 35 days later on 28 June 2011); this sale was not a "taxable supply" for GST purposes.
It was not in issue that the net proceeds of sale of the Burrows Road property were used to reduce debt. However, accounting for the proceeds of sale of the Botany property was more complicated, because of GST. This is central to one of the grounds of appeal (ground 7), and will be addressed below. The primary judge found, in accordance with the Bank's submissions, that the whole of the net proceeds of sale, allowing for GST, was used to reduce indebtedness.
On the Bank's calculations, there remained a shortfall of $114,174.99. The Bank made demands upon Ceyser and Mr Sogutlu, and, by statement of claim dated 4 July 2012 filed in the District Court of New South Wales sued ACES Sogutlu and those two guarantors for the shortfall. The defendants cross-claimed. The proceedings were transferred to the Supreme Court, where they were heard over 3 days in May and June 2013 and determined, favourably to the Bank, by judgment delivered on 30 August 2013.

[7]

Decision of the primary judge

It will be necessary in what follows to descend into the detail of the complaints made by the appellants at trial and on appeal. Their principal complaints were that there was no occasion for the exercise of a mortgagee's power of sale, which in any event was improperly exercised, and that the Bank had failed properly to account for the proceeds of sale.
There was at first instance, and remains on appeal, a large difficulty resolving the allegations made by the defendants, now the appellants, which is best confronted squarely at the outset. The defence and cross-claim at first instance, and the notice of appeal and submissions on appeal, were prepared by Mr Jamal Charara. He does not have a practising certificate.
Mr Charara is of the view that a trust is a legal person, distinct from the trustee. He evidently expressed that view at trial, and maintains it notwithstanding that the primary judge politely observed at [25] that: "a trust is not a corporation: it is not a separate legal entity. The defence/cross-claim on more than one occasion makes a statement such as 12(b) in the cross-claim: Family Trust was and it is capable to be sued and can sue in its capacity as ACES SOGUTLU HOLDINGS PTY LTD AS TRUSTEE FOR SOGUTLU FAMILY TRUST."
Mr Charara put it as follows in oral submissions in the appeal: "So what his Honour did was all, with great respect to his Honour, his Honour understood that Ceyser Pty Ltd, in its own capacity, was the trust. It's not. The trust is totally different, which is under Ceyser Hybrid Unit Trust. Ceyser Hybrid Unit Trust was not a party to the loan or the guarantee. His Honour found that all the documentation were executed in the name of Ceyser as trustee for Ceyser Hybrid Unit Trust."
Mr Charara's view is wrong. That is not to say it is not widespread: see for recent examples described in judgments of this Court P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167 at [6] and Lewis v Condon [2013] NSWCA 204; 85 NSWLR 99 at [79]. But the prevalence of an erroneous view does not make it right.
Subject to statute, a trust has no separate legal personality from the trustee. An obligation incurred by a trustee, whether or not it is properly incurred in accordance with the trustee's obligations as trustee, may ordinarily be enforced in the same way as an obligation incurred by a person who is not a trustee. Sir George Jessel MR long ago said that the creditor of a trustee or executor "has a personal right to sue him and to get judgment and make him a bankrupt": In re Johnson; Shearman v Robinson (1880) 15 Ch D 548 at 552. That judgment was delivered shortly after the liquidation of the City of Glasgow Bank in 1878, which, as Lord Rodger JSC said, "brought ruin on many people who had merely held shares as trustees" and indicated with "remorseless clarity" that a person entered on a company register in any capacity was a member with all relevant rights and liabilities: Farstad Supply AS v Enviroco Ltd [2011] UKSC 16; [2011] 1 WLR 921 at [69].
True it is that a creditor of a trustee may have additional rights by reason of the fact that the trustee has legal title to trust assets. In particular, where the trustee's obligation to the creditor was properly incurred, the trustee will regularly (although it will depend upon the terms of the trust) enjoy a right to be indemnified from the trust assets: CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; 224 CLR 98 at [50]. The creditor may, in an appropriate case, be subrogated to the trustee's rights: In re Raybould; Raybould v Turner [1900] 1 Ch 199; Vacuum Oil Company Pty Ltd v Wiltshire (1945) 72 CLR 319 at 328, 335-336.
It is also true that a creditor may contract on terms that limit the prima facie unlimited personal liability of the trustee to the assets held on trust: see J Mowbray QC et al, Lewin on Trusts, 18th ed, Sweet & Maxwell, 2008 at pp 678-679. This Court's decision in Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 demonstrates that any such limitation must emerge from the words or the surrounding circumstances as the proper construction of the contract. The precise nature of what occurs in such a case is more subtle than it may seem, and is analysed by J Allsop, "The Nature of the Trustee's Right of Indemnity and Its Implications for Equitable Principle" (paper delivered Sydney, 18 July 2012); it is not necessary for present purposes to address the point any further.
Nevertheless, and without any authority in support, Mr Charara maintains his view on appeal, and does not shrink from making serious allegations of fraud based on his misconception. Thus, by reference to the paragraph of the security schedule requiring Ceyser as trustee of the Ceyser Hybrid Unit Trust to provide a registered mortgage over the Burrows Road property, he submits (appellants' written submissions, para 4): "CBA ... failed to draw up the document in respect of para 3(g), and in place of para 3(g), CBA fraudulently manufactured mortgage in Ceyser1's own capacity, instead of its capacity as Trustee, and induced and mislead Ercan to signed it on 4 November 2006, and CBA then lodged the mortgage on 1 February 2007 with the Director General [sic]." (To explain this language, it should be noted that Mr Charara's submissions say that "Ceyser Pty Limited is referred to as 'Ceyser1'" while "Ceyser1 (in its capacity as Trustee for Ceyser Hybrid Unit Trust Deed of Trust Made 18th Day of June 1998) is referred to as 'TRUSTEE'".)
There is nothing in that complaint at all, let alone anything sufficient to sustain an allegation of fraud, once it is appreciated that the Ceyser Hybrid Unit Trust is not a legal person and has no legal capacity distinct from Ceyser. Because of the importance of the litigation to Messrs Sogutlu and Charara, and because it has been prepared and conducted by someone without a practising certificate, I have reproduced verbatim the grounds of appeal as drafted, and then sought as best as I can, having put to one side the misconceptions in the arguments, to address their substance insofar as may be seen from the written and oral submissions.

[8]

Procedural history of the appeal

The Bank contended that most of the grounds of appeal could not be maintained, because of a notice of discontinuance filed by the liquidator of ACES Sogutlu and Ceyser shortly before the appeal was listed for hearing. It is therefore necessary to explain at the outset why I disagree with the Bank's contention, in light of the procedural history of this appeal.
The primary judge made orders on 30 August 2013. The orders identified ACES Sogutlu, Ceyser and Mr Sogutlu as defendants and cross-claimants. He ordered: "1. Verdict for the plaintiff for $132,838.18 plus interest. 2. Cross-claim dismissed. 3. Defendants and cross-claimants to pay the costs of the plaintiff."
However, Mr Charara was identified, both in the final form of the cross-claim, and in the primary judge's reasons, as the fourth cross-claimant. The process by which he came to be a party, and his challenge to that process, is addressed below when dealing with ground 13. What matters for present purposes is that a notice of intention to appeal was filed within time, as was a summons seeking leave to appeal, and an amended summons. (In fact, leave was not required, which explains why, when a document styled "(Amended) Notice of appeal" was filed on 20 February 2014, the Bank took no point about it being out of time. At the commencement of the hearing, leave was granted to file a further amended notice of appeal, the Bank having indicated it was in a position to deal with all of the issues contained in it.)
The judgment debt founded statutory demands issued to ACES Sogutlu and Ceyser. An application to set those demands aside was dismissed on 25 February 2014: In the matter of ACES Sogutlu Holdings Pty Ltd [2014] NSWSC 140. An application for a stay of execution of the judgment debt pending appeal was refused by a reserved judgment delivered on 26 March 2014: ACES Sogutlu Holdings Pty Ltd v Commonwealth Bank of Australia [2014] NSWCA 84.
However, on 29 July 2014, three working days before the hearing of the appeal, a document described as a notice of discontinuance was filed. It purported to discontinue the appeal on behalf of ACES Sogutlu and Ceyser. However, it stated that it was filed for the Bank, not the companies or their liquidator, and it identified the Bank's solicitors in its footer. The Court was told of this that: "There's an administrative reason why the document records that, and that is that the form of the document was prepared by my solicitors having received a letter from the liquidators indicating their election not to proceed with the appeal, we've prepared the form of document because we have it on our system and the liquidators don't. By way of oversight probably, the usual filing details which are recorded on our system have remained."
The substance of the notice was: "1. The first and second applicants discontinue these proceedings so far as they concern the respondent. 2. The first and second applicants do not represent any other person. 3. The respondent consents to the discontinuance."
The document was signed by Mr Riad Tayeh, the liquidator of the first and second applicants. The Court was told that Mr Tayeh had been appointed liquidator of the applicants on the Bank's application, relying upon a statutory demand based on the judgment debt, several weeks previously. Orders were made by consent on 2 June 2014, whose effect was for both ACES Sogutlu and Ceyser to be wound up, unless the judgment debt of $138,850.32 were paid into court within 48 hours: see In the matter of ACES Sogutlu Holdings Pty Ltd and Ceyser Pty Ltd [2014] NSWSC 780. The Court was told that in fact there was a non-payment of the judgment debt, with the result that Mr Tayeh was appointed liquidator by force of that order.
The Bank acknowledged that Mr Sogutlu and Mr Charara had not consented to the filing of a notice of discontinuance. Nevertheless, and as a threshold point, the Bank said that the notice was effective, and that the appeals brought by Mr Sogutlu and Mr Charara were all that remained.
Rules 12.1 and 51.56 of the Uniform Civil Procedure Rules (UCPR) deal with discontinuance. Rule 51.56 is confined to notices of discontinuance in the Court of Appeal, but provides in terms that it does not limit the operation of r 12.1. Rule 12.1 empowers a plaintiff by filing a notice of discontinuance to discontinue against any or all defendants either (a) with the consent of "each other active party in the proceedings" or (b) with the leave of the court. Ultimately, the Bank conceded, properly, that the definition of "active party" meant that the terms of r 12.1 had not been complied with. Further, a notice of discontinuance must, by r 12.1(2), be accompanied by a notice from each party whose consent is required by sub-r (1) to the effect that the party consents to the discontinuance; there was no evidence that this was done, although it is implicit that the Bank, whose solicitors caused the notice to be filed, consented to that course.
The Bank relied on r 51.56(7) which provides: "The discontinuance of appeal proceedings does not require the consent of any respondent or leave of the court."
The Bank contended that there should have been separate appeals brought by the borrower, its guarantors and Mr Charara, who had separate causes of action. Had that been so, the notice of discontinuance filed by the liquidators of ACES Sogutlu and Ceyser would have been effective. The Bank then wished to contend that the remaining appellants, Messrs Sogutlu and Charara, lacked standing to maintain most of the grounds of appeal.
I cannot accept the Bank's submission that there should have been separate appeals. There is nothing necessarily unnatural in multiple defendants bringing a single appeal from a single judgment and single set of orders binding all of them, so long as there is common representation: cf Ren v Jiang (No 3) [2014] NSWCA 204. Indeed, any other course is apt to produce delay and expense contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). In any event, the question is the effectiveness of the notice of discontinuance that was filed, in the single appeal brought by all of the defendants, not what would have been its effect had the appellate proceedings been differently constituted.
Putting to one side the position of Mr Charara (which is complicated and addressed in relation to ground 13 below), the Bank had a final judgment in its favour, against two bodies corporate and a natural person defendant. Those three persons commenced an appeal and prosecuted it jointly. The Bank thereafter took steps to enforce the judgment debt, as it was entitled to do. Those steps included appointing a liquidator to wind up the corporate judgment debtors, which had hitherto been controlled by Mr Sogutlu and Mr Charara. However, it by no means follows that the liquidator may unilaterally bring the companies' involvement in the appeal to an end, without notice to the other appellants. That is not merely a consequence of what occurred falling outside the wording of r 51.56(7), which on its face does not authorise the unilateral discontinuance of part of an appeal insofar as it is brought by some but not all appellants. It is also a matter of substance. The filing of a notice of discontinuance has a direct impact upon other appellants who are not discontinuing. It is always open to seek leave to discontinue, but in the particular circumstances of this appeal, highly relevant to the grant of leave would be the question whether the continuing appellants would be permitted to challenge aspects of the primary judge's reasoning which the Bank accepted were incorrect. It would be no small thing to be granted leave to discontinue in circumstances where a guarantor was to be bound by a judgment which the judgment creditor accepted was legally flawed and yet denied his right to challenge it.
For those reasons, the requirements in the rules do not permit the unilateral discontinuance of a single appellant without the consent (or, seemingly as here, even the notification) of the remaining appellants.
It follows that the notice of discontinuance is ineffective. As much was indicated when the appeal was argued. Directions were made to permit the liquidator (who has an obvious interest in this issue) to make submissions, if he so chose. The liquidator advised (by letter dated 7 August 2014) that he was "not in funds to conduct such legal action on behalf of the companies". No application was made by the newly appointed liquidator, even in the alternative, for leave to discontinue. Consequently, the issues raised in the appeal have been addressed on their merits. Each is addressed below.

[11]

(a) The duty owed by the Bank

In resolving the allegations made by the defendants which complained as to the manner of the exercise of the power of sale, the trial judge consistently applied a test of good faith and asked, echoing the language of Lord Herschell in Kennedy v De Trafford [1897] AC 180, whether the Bank had "recklessly sacrificed the mortgagor's interest" (see at [48] and [51]). His Honour explained why at [15]: "Insofar as there is a claim in Common Law and negligence with respect to the sale of the property the received wisdom is that the account does not lie. In England there is such an action see Cuckmere Brick Co Ltd v Mutual Finance Co Ltd [1971] Ch 949 but that has not been followed in Australia in any authoritative way. There are some Common Law actions under the Corporations Act 2001 (Cth) in certain situations but nothing like that has been mentioned during this case on either side. In Australia one looks to see the equitable duty of a mortgagee as to whether the equitable duty of a mortgagee has been satisfied rather than look to a duty of care, breach of a duty of care and damages flowing from it."
The defence alleged negligence in general terms. The Bank did not file a reply (I am not suggesting that one was called for). The cross-claim alleged that the Bank "acted recklessly and with disregard to the cross-claimants in the exercised of its power if it had one" [sic], as well as a general complaint that the Bank sold the properties below market value. The Bank's defence denied the allegations. Particulars do not seem to have been sought by the Bank of the precise basis on which the duties alleged by the defendants and cross-claimants arose.
There were no openings. The defendants supplied lengthy written submissions, the Bank did not. The Bank's closing address was brief, and factual, and focussed on the failure by the cross-claimants to make out their various causes of action on the evidence.
Thus it was that nowhere in the pleadings or at any stage throughout the trial was s 420A of the Corporations Act 2001 (Cth) mentioned.
As noted at the outset, the Bank acknowledged that s 420A applied to the sale (accordingly, the Court heard no argument, and it is not necessary to decide, whether Messrs Ayres and Hill, appointed by the Bank as the Bank's agents for the purpose of each mortgage, were "controllers" for the purposes of s 420A: see Tekinvest Pty Ltd v Lazarom [2004] NSWSC 940 at [24], a question which is now largely academic by reason of s 111A of the Conveyancing Act 1919 (NSW)). Section 420A is in the following terms: "In exercising a power of sale in respect of property of a corporation, a controller must take all reasonable care to sell the property for: (a) if, when it is sold, it has a market value - not less than that market value or (b) otherwise - the best price that is reasonably obtainable, having regard to the circumstances existing when the property is sold."
The Bank submitted in writing that s 420A "was not pleaded by or otherwise relied upon by the appellants in the court below, and the appellants ought not be allowed to rely upon it now" (written submissions, para 24). That submission was, initially, sought to be maintained when the appeal was heard. I do not accept it.
Two things were at all times plain prior to and during the trial. The first was that the defendants and appellants complained as to the manner in which the power of sale had been exercised. The second was that they were represented by a person who did not have a right to practise as a lawyer in Australia, and whose knowledge of the law was, in part, manifestly defective.
The Bank and its lawyers are under a statutory obligation to assist the Court resolve the real issues in the proceeding: Civil Procedure Act 2005, s 56. Where it is plain that the real issue is whether or not a power of sale has been properly exercised, that duty involves assisting the Court to determine that issue according to the correct legal standard. Had the Court made it plain, prior to judgment being delivered, that it proposed to apply a standard of good faith and on that basis to reject the cross-claimants' allegations of negligence, it would have been incumbent on the Bank to direct the Court to the real issue, namely, whether the statutory duty in s 420A had been contravened.
However, so far as may be seen from reading the transcript of what occurred before the primary judge, the parties had no warning that his Honour was proceeding in disregard of s 420A. To the contrary, immediately before hearing closing addresses on the issues raised on the defence and cross-claim, his Honour identified his understanding of those issues as including whether the Bank had been negligent. The Bank's oral submissions pointed to the evidence, and proceeded on the basis that the defendants' case was not made out, and did not mention any legal test.
Hence, so far as I can see, it is not the Bank's fault that the primary judge applied the wrong test. That said, in circumstances where the litigation below proceeded at least in part on the basis that it was alleged that the Bank had failed to take reasonable care in exercising its power of sale, there can be no basis for not applying the correct test on appeal.
After some debate during the hearing of the appeal, counsel for the Bank accepted that he was content to meet the allegation on the basis of the material which was before the Court. To that end, the Bank was granted leave at the hearing to rely on a notice of contention, in these terms: "That the appellants failed to prove that the advertising and/or marketing of the Properties was inadequate, or insufficient, or otherwise in breach of any duty owed by the respondent."
Accordingly, I turn to the matters of which complaint was made.

[12]

(b) The contract for $1,500,000

The Botany property was ultimately sold, for $1,200,000, by contract dated 24 August 2011. The appellants submit that there was a breach of duty in preventing the completion of an earlier written contract for sale of the property for $1,500,000.
However, the "written contract" is a two page handwritten note whose totality is as follows: "Re: Purchase of property xxxx Cranbrook St Botany NSW 2019 Between: ACES Sogutlu Pty Ltd And: Bobby and Michael, xxxx Cranbrook St, Botany, NSW 2019 Agreed as follows: Purchase price of xxxx Cranbrook St Botany NSW 2019 of $1,500,000.00. Relevant contract price $1,200,000.00 the balance of $300,000.00 to be paid over 36 months in equal payments of $10,300 per month to a total of $370,800. Exchange on 10% of purchase $120,000.00 on the agreed date between parties."
The page appears to be signed by Mr Sogutlu. It is, perhaps, initialled by "Michael". It does not appear to have been signed or initialled by "Bobby". The stated address of Michael and Bobby is next door to that of the property. "Michael" and "Bobby" are not otherwise identified. The document is not dated, although Mr Sogutlu said that it was executed around 2 March 2011.
In evidence was a filenote prepared by a solicitor, dated 11 March 2011, which refers to "3 months to settle", and states "1,200,000 on sttmnt" and "300,000 --> in 24 months with interest". Also in evidence are parts of a contract for the sale of land, prepared by that firm, with the purchaser being "Bogdan Guberinic", and with a contract price of $1,200,000. The contract is incomplete, and not executed.
It is asserted that the Bank "stopped" the proposed sale. That is not established on the evidence. Taking the evidence at its highest, an arrangement had been reached with a neighbour, in March 2011, for a sale including a large component of vendor finance, and instructions were given to a solicitor to draft a contract for sale. So far as the evidence disclosed, that contract was never executed.
That occurred in a context where the evidence was that (a) Mr Sogutlu had determined in September 2010 to sell the Botany property himself, (b) it had been marketed by a reputable agent but (c) it had failed to sell at auction on 17 November 2010. The Bank had agreed to all this taking place. A letter from the Bank dated 22 November 2010 referred to Mr Sogutlu having "undertaken to sell the [Botany property] with total proceeds to be used to repay Bank debt" and requested a repayment proposal by 26 November 2010. On 29 November 2010 Mr Sogutlu advised the Bank that his neighbour was "very keen to purchase" the property; the letter did not identify the neighbour. On 22 December, Mr Sogutlu advised that his neighbour had agreed to "1.5k" (scil 1.5m) and that "now he is trying to get his finances approved". The Bank asked for an update in the first week of January.
There is little documentary record of what happened in January 2011. The Bank issued a notice of demand by letter dated 8 February 2011, requiring payment by 22 February. By letter dated 18 February, Mr Sogutlu wrote: "I have just received your letter regarding the loan ... At present I am in negotiation with a buyer for an amount that is way over the amount owed to you." I am anticipating that the deal will be concluded within 3 months, being a valuable customer to you. I expect you to bear patience until that time. I look forward to hearing from you and I don't expect you to do anything adverse to us."
Contrary to Mr Sogutlu's request, the Bank issued a notice under s 57(2)(b) of the Real Property Act dated 23 February 2011 and its agents took possession of both properties soon after. It is unclear whether the "neighbour" whom Mr Sogutlu had previously mentioned was the "Bobby" or "Michael" referred to on the handwritten "agreement".
On that basis, the primary judge found (at [40]-[41]) that: "A person described as the 'neighbour' offered to buy the property for $1.5M. This was in October/November 2010. The mortgagors kept Mr Howson informed of the progress. On 18 February 2011 Mr Sogutlu wrote to Mr Howson saying that the negotiations were well under way and the deal should conclude within three months. There was no response. The Bank acted shortly afterwards to terminate the arrangements between the parties. Whilst commercially a lender may permit the mortgagors to sell the property there is no obligation on it to do so and it may take the sale into its own hands if it feels so inclined. It is, in this case with Botany, the negotiations with the purchaser had been going on for about five months and were not likely to conclude for another three months and that there had also been a failed auction which there were no bidders. There was no obligation on the mortgagee to agree to the mortgagor selling and in the present circumstances it would seem that waiting five months for something concrete to happen was probably enough forbearance for a reasonable mortgagee to take."
The appellants have failed to demonstrate any appellable error in those findings. In particular, given the delay which had occurred, the Bank was not required to wait the further three months which Mr Sogutlu advised would be necessary in order to enter into a contract. It may be noted that it was not suggested by him that the contract be conditional, or that there be an extended period for settlement. If as the appellants contend the neighbour was willing to purchase the property for $1,200,000 plus $300,000 deferred, no explanation was provided for the need for a further 3 months in order for contract to be exchanged. There was no evidence from the neighbour or any other potential purchaser.
The consequence is that the appellants have failed to establish a contravention of the duty imposed by s 420A by reason of the "stopping" of the sale.

[13]

The second aspect of this ground is that the properties were inadequately advertised, and included the words "mortgagee in possession", contrary to the Bank's advertising policy.
Advertisements were placed in the weekend Sydney Morning Herald in advance of the auction. They stated that the sale was by a mortgagee in possession. Advertising in such a manner does not of itself sustain a conclusion that the price realised is less than market value: Stockl v Rigura Pty Ltd [2004] NSWCA 73; 12 BPR 23,151 at [46]. It depends, as Palmer J there said, on the conditions of the market and the way in which the reference is made. In the particular circumstances of this case, it would be necessary to have regard to the earlier campaign, which led to the property being passed in at auction several months previously. That earlier campaign did not refer to a mortgagee sale; it is at least arguable that it was in the interests of the vendor for the second campaign to identify a point of difference.
Against this, it was said at trial and on appeal that advertising a sale by a mortgagee in possession was contrary to the Bank's policy. It is not possible confidently to determine whether that was the case on the material before this Court. An affidavit from Mr Howson for the Bank had been served to the effect that the content of the advertisement was in accordance with CBA's policy. The cross-claimants issued a subpoena for the Bank's policy. The document produced by the Bank on subpoena required advertisements in at least two publications, over a four week period, and said that the words "mortgagee sale" "must not be included". When cross-examined about this, Mr Howson said that the policy which had been produced in answer to the subpoena was applicable to residential properties and "certainly not large commercial properties".
On appeal, the Bank said that the policy document produced (which has the appearance of being downloaded from an internal website) had been updated after the sale. In the absence of further evidence I would not accept that submission, which seeks to impugn the Bank's own response to a subpoena. Even so, it is not possible, on the materials referred to above, to be confident whether Mr Howson's view was incorrect, or whether there was another policy in place applicable to the sale. However, it does not matter.
The question is whether there was a breach of duty by the Bank in the manner in which the sale was advertised. Even if it be assumed, favourably to the appellants, that there was non-compliance with the policy in this respect, that would not of itself be sufficient to establish breach of duty in the facts of this case, in the light of long-standing authorities referred to above.
At the hearing of the appeal, the appellants obtained leave to expand this ground to include reference to inadequate advertisement of the properties. Paragraphs 20-26 of the appellants' supplementary written submissions reiterate the matters addressed above. They also make further allegations not founded in the evidence. By way of example, it is said (para 24) that: "Certainly, had the bank passed on to the general public even 80% of the correct information and location including the information that the Alexandria property is situated parallel to the Alexandria River and minutes to the airport and CBD it would have definitely impressed too many buyers, where there is more than one interested person it creates competition, where a property gains competition the seller will have a choice but the inadequacy and the improper advertising by the bank did not gained competition, as a result it give no choice to the seller but desperation."
Against this self-evidently speculative submission, the evidence was to the effect that there had been a campaign over 5 weeks, with advertisements each Saturday in the Sydney Morning Herald, that some 7,500 colour brochures were to be distributed in the neighbourhoods of both properties, and that there was further advertising by email and on three internet sites dealing with commercial property, including the two largest Australian websites.
This ground is not made out.

[14]

(d) Ground 8 - the wrong suburb?

The primary judge addressed the question of the suburb in which the Burrows Road property was located at [63]: "Mr Charara makes a whole series of complaints on this score, that is, that the Alexandria property was marketed a[s] being at St Peters which he considers to be a more down market suburb and that the advertisements were inadequate by not properly describing the property. It is clear that the property for sale must be adequately and properly advertised. It also appears to be the case on the authorities that it is not improper to advertise the sale of a mortgagee sale ... It may be that the property could have been more extensively advertised but in view of the estate agents marketing strategy it does not seem to me that even if this was so it would have affected the price obtained so that there is no real evidence of any loss. Accordingly I do not consider this factor takes the matter any further."
Some of the documents recorded the property as being located in St Peters, others in Alexandria. The Bank submitted that there was no evidence establishing that the property was located in St Peters as opposed to Alexandria.
The contract for sale of land described the land as being in St Peters on its cover sheet, and in the s 149 certificate, but in Alexandria in the title search. Mr Sogutlu himself, when causing ACES Sogutlu to accept the Bank's offer, gave the address as St Peters, not Alexandria.
There is reason to believe that the position is moderately complex, especially when it is borne in mind that suburbs whose boundaries are defined pursuant to the Geographical Names Act 1966 (NSW) may not immediately keep track with boundary adjustments to local government areas, and that while the property was undoubtedly within the Sydney City Council in 2011, that Council's southern boundary had been changed in 2003 and 2004. The current documents recorded the land as being within the City of Sydney Council, earlier ones (such as the deposited plan) referred to the land being within the local government area of South Sydney. (Indeed, the original 1915 old system title conveyance referred to the Municipality of Alexandria.)
However, there was no evidence to found the submission that any misdescription of the suburb of this commercial property in a light industrial area had any material impact upon its marketing. The primary judge was correct so to conclude.

[15]

(e) Ground 10 - appellable error in preferring one valuation over another?

Mr Sogutlu had instructed Macquarie Bell Pty Ltd to prepare a current market valuation of both properties. The valuations were $1,400,000 for the Botany property as at 21 February 2011, and $1,060,000 for the Burrows Road property as at 31 March 2011. The latter valuation was expressed to be subject to the existing tenancy.
The Macquarie Bell valuation of the Botany property states that the valuer inspected the Botany property on 21 February 2011, the same date that the report was dated. The company was retained on 14 February 2011 - after the Bank had issued its demand. The report made it clear that it "can be relied upon by the Commonwealth Bank of Australia for mortgage purposes". The Macquarie Bell valuer visited the Burrows Road property on 31 March 2011, again, the same day as the report is dated, and well after the Bank's agents had commenced the selling process.
For its part, the Bank retained DTZ Australia (NSW) Pty Ltd to value the properties. DTZ valued both properties as at 21 March 2011. In the case of the Botany property, its valuations were $1,450,000 for current market value, and $1,230,000 for a "forced sale", in both cases with the property sold "as is" and with vacant possession. The Burrows Road property was valued at $800,000 for current market value, and $680,000 forced sale value, in both cases "as is" and with vacant possession. DTZ also valued this property if sold subject to the existing tenancy, concluding in which case that its current market value was $650,000, and $550,000 in the case of a forced sale.
Despite the overlap in the timing of their valuations, neither valuer commented on the report prepared by the other so as to explain how the valuations diverged. Mr Lo (the valuer employed by DTZ) was cross-examined by Mr Charara, who submitted when the appeal was heard that Mr Lo "made some major admissions", such that it was unsafe to rely on his valuation report. The reference given by Mr Charara to his cross-examination (p 92A from line 40) was to Mr Charara confronting Mr Lo with the fact that in his list of four comparable sales for the Burrows Road property, he had failed to include an advertisement placed by Colliers in 2009, then acting for Mr Sogutlu, for that property which listed an "asking price" of $1,000,000. Although I can conceive of occasions when a valuer might have regard to an asking price, as opposed to an actual sale (cf Goold v Commonwealth (1993) 42 FCR 51 at 57-60), I cannot conceive of a situation where it would be appropriate for a valuer who considered that there were four comparable sales to have regard to the asking price sought (unsuccessfully) two years earlier in respect of the same property. Despite the appellants' submissions to the contrary, I cannot agree that Mr Lo made any admission which diminished the worth of his professional opinion, let alone the "major admission" which Mr Charara considers that he made.
Mr Charara also submitted that the author of the Macquarie Bell report was much more experienced than Mr Lo. He submitted: "[I]f I may take your honourable Honours to p 20, 29 of the same book, it's the valuation report for Botany that was put forward by us, which put the property at 1,400,000 and that was created on 21 February 2011. Then if I may take your Honours, with great respect, to handwritten page on the bottom, 2446A, your Honour will see the valuer is Mr John Kovaceski, the company director, and all his extensive experience listed below his photograph. That was a very bona fide and experienced valuation report that was before his Honour. If one go to vol 3, from p 407 is the report that was prepared by the inexperienced valuer ..."
The basic submission Mr Charara wished to advance was that his Honour was wrong to accept the inexperienced valuer's report over the experienced valuer's report.
That submission is wrong. Mr John Kovacic was the author of only one of the Macquarie Bell valuations: that for the Burrows Road property. He was not the author of the Botany valuation. He was instead the counter signatory of the report. The report makes it plain that: "The counter signatory verifies that this report is genuine and endorsed by Macquarie Bell. The opinion of value expressed in this report has been arrived at by the prime signatory only."
Although the Court was taken to Mr Kovacic's extensive curriculum vitae, it was not taken to that of the valuer who was the prime signatory. So far as I can see, that material is not included in the appeal books which are poorly indexed and occupy 12 lever arch binders.
Moreover I am not satisfied that Mr Kovacic's curriculum vitae was in evidence at first instance because: (a) it is not listed in the report's table of contents, (b) the single page is in a different font and is described as "page 8", and (c) it is handwritten page 2046A within volume 7 of the Appeal Book. That in turn led me to review the original exhibits tendered at trial. The page does not appear in the same place in the exhibit said to have been reproduced in volume 7 of the Appeal Books. I have not found any evidence that it was tendered at first instance, although it is possible that the court's records of the thousands of pages tendered at trial are incomplete or that I have overlooked it.
What is more, it is plain that volume 3 page 610A, which is a page disclosing the curriculum vitae of Mr Lo, was not before the primary judge. That page appears to have been inserted, without notice to the Court or (I infer) the Bank, as a new page of the exhibit to Mr Ayres' affidavit. It is plain not only because it is absent from the exhibit as tendered at trial, and is of a different style from the pages which precede it, but also because its footer discloses that it is a print-out of a profile obtained from "Linked In" dated 18 June 2014.
At the very least, it was incumbent upon Mr Charara to point out, to the Bank and to the Court, that pages on which he placed particular reliance on the appeal, in respect of which he contended that the primary judge had erred, had been inserted into the appeal book and were not before the primary judge. It may be added that Mr Charara is no ordinary unrepresented litigant. His letterhead describes him as: "A HIGH PROFILE AND VERY EXPERIENCED LITIGANT IN THE LOCAL COURT, DISTRICT COURT, SUPREME COURT, COURT OF APPEAL, FEDERAL COURT AND THE HIGH COURT OF AUSTRALIA"
It is difficult to overstate how vital it is to the efficient and fair resolution of appeals that the parties and the Court can have confidence that the appeal materials accurately reflect the evidence at trial. In the present case, the appeal materials were voluminous (12 folders, without any meaningful index) and, in at least one critical respect, they did not reflect the evidence at trial. I regard what appears to have occurred as potentially extremely serious, but will say no more because Mr Charara has not had the opportunity to provide an explanation. I propose that by the orders to be made he be now given that opportunity.
To return to the substance of this ground, the primary judge had the reports of both valuers before him. Only Mr Lo was cross-examined. The DTZ report is, on its face, a carefully prepared document. Unlike the Macquarie Bell report, it distinguishes between current market value and forced sale. The particular criticisms advanced by Mr Charara are not well founded. It follows that no appellable error has been established in his Honour's finding that the market value was as stated in the DTZ reports. This ground is not made out.
Accordingly, although the reasoning of the primary judge on breach of duty is concededly erroneous, his Honour's conclusion on these grounds should be sustained by the Bank's notice of contention. On the evidence adduced by them, the appellants failed to establish a breach of duty by the Bank or its agents in exercising the power of sale by any of the ways advanced by the appellants.

[16]

Ground 3

This ground is as follows: "His Honour manifestly erred in Law in failing to order the respondent to pay to the appellants the value of the Alexandria property in the amount of $1,060,000.00, after his Honour reached the conclusion that Ceyser Pty Ltd only entered in to the guarantee in its capacity a trustee, as a result of his Honour's failure the appellants suffered injustice."
This submission is advanced at pp 16-20 of the appellants' written submissions. It turns on the appellants' misconception that a trust is a separate legal entity. Hence the submission is made (p19): "It cannot be acceptable for the bank to execute a deed of guarantee between it and the trustee but go on to hold mortgage over another person's real property because it was impossible to hold the mortgage in the trustee's own name."
The correct position in law is relatively straightforward. Ceyser gave a guarantee of ACES Sogutlu's obligation to repay (by deed dated 7 November 2006), secured by a mortgage of property of which it was registered proprietor (mortgage dated 4 November 2006). Ceyser's guarantee was executed by "Ceyser Pty Ltd as trustee/s of the Ceyser Hybrid Unit Trust under Deed of Trust made the 18th day of June 1998". Clause 21 stated: "GUARANTOR AS TRUSTEE Where the Guarantor enters into this Guarantee as trustee of a trust, this Guarantee binds the Guarantor personally and in the Guarantor's capacity as trustee of the trust."
In contrast, but consistently with s 82 of the Real Property Act, the mortgage made no mention of Ceyser being a trustee.
It follows that (a) Ceyser was liable under the guarantee that was executed, and (b) the trust property, being the Burrows Road property, was validly mortgaged to secure Ceyser's obligation under the guarantee.
The appellants make three further submissions. First, they say that the equitable mortgage of all of Ceyser's assets (referred to in the security schedule) did not exist. No such document appears to have been tendered, but it was not necessary for the Bank to rely upon it in order to obtain judgment for debt and to defend the exercises of its power of sale. Secondly, the submissions say that the Ceyser Family Trust did not exist. True it is that the primary judge referred to the Ceyser Family Trust as well as the Ceyser Hybrid Unit Trust; that is a slip on which nothing turns. Thirdly, Mr Charara sought to rely upon a consent signed by the unit holders. This was developed orally: "Ercan Sogutlu, who was a director for Ceyser Pty Ltd, did not sign the consent to give away Ceyser Pty Ltd Alexandria property to the bank. No, that was not the case. Ercan Sogutlu only sign the consent in his capacity as the unit holder of Ceyser Hybrid Unit Trust so that the trustee can enter into the guarantee."
It is not necessary fully to reproduce the submissions advanced by Mr Charara based on this document. None undercuts the efficacy of the guarantee or registered mortgage given by Ceyser.

[17]

Ground 4

Ground 4 focusses on the rejection by the primary judge of what was said to have been an oral agreement with the Bank, to the effect that Mr Sogutlu was only charging what he said was his minority interest in the Burrows Road property. Indeed, Mr Sogutlu claimed that the document he signed was a caveat, not a mortgage. The primary judge dealt with this as follows at [66]-[67], reproduced: "This allegation is [bound] up with Ercan Sogutlu's evidence that so far as Alexandria was concerned he was only charging his 45 per cent interest in the property as security for the loan on Botany. This evidence is not agreed to by Mr Mifsud and is not corroborated in any bank documents. Mr Ercan Sogutlu was cross-examined by Mr Villa. Mr Villa showed him the mortgage and asked (T81): Q. And when you signed that document you recognised that it was a mortgage didn't you? A. On that document I was under the understanding with Stephen that it was only going to be a caveat not a mortgage. Q. Do you see the word "mortgage" at the top of the page Mr Sogutlu? A. Yes. Q. You knew when you signed this document that you were signing a mortgage didn't you? A. Well not on that basis, as I said before, that was the agreement that we had. Q. Mr Sogutlu, did you recognise this document as the mortgage when you signed this? A. It says "mortgage", yes. Q. Thank you and you knew didn't you that the bank as part of the security for a loan $1.5 million was taking a mortgage over the Botany and St Peters property wasn't it? A. Not mortgage no, as I said, again, it was a caveat that was supposed to be on there not mortgage. He was subsequently taken through the other bank documents. In the absence of any other corroborating evidence, the non-cross-examination of Mr Mifsud, the rather bizarre understanding of the situation of Mr Sogutlu says he has, in my view I can not accept his evidence as going to anything more than what he might have had in his own mind. The documents just speak for themselves and there are too many of them to make me feel that the transaction was otherwise. Accordingly, this ground gives no relief to the defendants."
None of the documents suggests that the security required by the Bank was for a minority beneficial interest in the Burrows Road property (still less that it was for a caveat over that property). Mr Sogutlu was squarely confronted with this in cross-examination. No error is shown by the primary judge rejecting the understanding of Mr Sogutlu as set out above.

[18]

Ground 5

Ground 5 alleges error by the trial judge's reasoning at [36]-[37] which was as follows: "The Notice under section 57 of the Real Property Act with respect to Alexandria was dated 23 February 2011. It was received by the cross-claimants on 1 March 2011, the reason for the delay seeming to be that it was addressed to an address where the cross-claimants no longer were to be found. On 7 March 2011, the Bank appointed agents to sell the property and about the same time they changed the locks and took possession. The defendants say that because the one month had not expired before the Bank took this action, its actions were invalid. However section 57 only prevents a sale taking place until the notice has expired. It does not prevent the mortgagee taking possession or taking steps preliminary to a sale so long as the sale does not take place before the expiry of the notice (see Suncorp-Metway Ltd v Nam Property Holdings Pty Ltd [2010] NSWSC 1078 and Butterworths Annotated Conveyancing and Real Property Legislation 2012-2013 page 523). Accordingly there is nothing in this point."
The appellants repeated their argument on appeal.
Section 57(2)(b) qualifies the exercise of the power of sale conferred under s 58. A mortgagee's power to take possession is distinct from the power of sale. In the case of a mortgage of land held under Torrens title, where a mortgage is merely a charge on the land, the right to possession is statutory, and found in s 60 (for the much less straightforward position in the case of old system title, see Lord Selborne's judgment in Heath v Pugh (1881) 6 QBD 345 at 359-60).
The statutory power to take possession, to which s 60 is directed, is not subject to the service of a notice under s 57(2)(b). That has often been held at first instance (for example, Commonwealth Bank of Australia v Comserv (No 1181) Pty Ltd (1988) NSW ConvR 55-402 at 57,709 (Rogers CJ Comm Div) and Natwest Markets Australia Ltd v Mannix (1995) NSW ConvR 55-743 at 55,747 (Rolfe J)). It has been stated by this Court by Sheller JA (with whom Priestley and Meagher JJA agreed), in Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 at 11,517 (obiter) and held by Hill, Tamberlin and Sundberg JJ in Abram v Bank of New Zealand [1996] FCA 1650 at [37]. It should be regarded as settled law. There is nothing in this ground.

[20]

Ground 7

This ground was formulated as follows: "His Honour manifestly erred in failing to correctly calculate the figures in respect of the sales, expenditures, rent and the goods and services tax resulting from the selling of the properties, as a result the Judge wrongfully awarded the respondent $132,858.18."
Mr Charara's written submissions commenced with this ground. As articulated in writing (paragraphs 34-35 at pages 6-8 of the appellants' written submissions) and orally (transcript 4 August 2014, 25.30 - 30.49 (in chief), 62.8-27 (reply)), the ground reduced to a single point: that there was a fraudulent debit by the Bank in accounting for GST: "BEAZLEY P: Did you say the fraudulent GST? CHARARA: Yes, the allegation before his Honour were the GST were fraud, were fraudulently included in the bank statement. That was the allegation before his Honour. And that GST was in the amount of $77,747.18 ... ."
Although it was the first point Mr Charara's written submissions addressed, the question of GST arose at the conclusion of the trial, and caused it to extend into a third day.
As noted at the outset of these reasons, the sale of the Burrows Road land was GST free but the sale of the Botany land was a taxable supply. The GST collected by the vendor on the sale of the latter was stated to be $120,370.20 (slightly more than 10% of $1,200,000 because of adjustments for rates, strata levies and land tax). Settlement of the sale occurred on 4 November 2011. The settlement sheet shows large disbursements to the Bank's solicitors ($21,225.56) and to PPB Advisory ($97,350), but the substantial balance of $1,033,439.69 (omitting minor disbursements) was payable to ACES Sogutlu.
Unless ACES Sogutlu had very substantial input tax credits or had itself paid large amounts of GST (neither of which is probable), it would be required to remit GST to the Commissioner of Taxation. Unquestionably, ACES Sogutlu had to account for the GST it had received from the purchaser of the Botany property. However, I would infer that because it did not have to do so immediately, no provision was made in the settlement sheet for the GST.
It is clear that the $1,033,439.69 was credited to ACES Sogutlu's loan account. That occurred on the day of the settlement. There is some slight complexity, because that deposit put the loan account slightly into credit. Some five days later, the loan account was closed, and the credit balance of $30,920.40 was transferred into a cheque account in the name of ACES Sogutlu Holdings Pty Ltd as trustee for the Sogutlu Family Trust.
The "fraudulent GST" withdrawal which is the subject of this ground was a withdrawal of $77,747.18 from that same account 9 days later, on 18 November 2011. The description in the bank statement for that withdrawal was "CMU DE Trace Acc GST on sale".
On the same day that the "fraudulent GST" was debited from the ACES Sogutlu cheque account, an amount of $83,436 was credited to the managing agent's account in respect of the Botany land. Mr Charara placed a deal of weight on the fact that the credit was almost $6,000 larger than the debit, which he said pointed to its being unrelated to the debit. However, the description in the bank statement for the credit was "CMU DE Trace Acc GST on sale".
The deposit into the managing agent's account enabled a cheque to be drawn in the amount of $103,749. That cheque (060010) was presented and those funds were debited from the account on 21 December 2011. Attached to the Bank's supplementary submissions at first instance was a document prepared by the Australian Taxation Office showing ACES Sogutlu's "running balance account" for the financial year ended 31 July 2012. The document shows amounts of $832.64 and $3219 as "EFT refund" both processed on 16 December 2011 (those payments are reflected in entries in the bank statement). The document also discloses a payment received in the amount of $103,749 on 21 December 2011.
It is now possible to explain why Mr Charara's submission of fraud must be rejected (and why it should never have been made).
On the very same day that Mr Charara contends there was a fraudulent withdrawal, there was a deposit into the management account in respect of the Botany property in a slightly larger amount. Both entries were given the same description: "CMU DE Trace Acc GST on sale". Mr Charara's allegation of fraud based on the debit needs to explain why the credit on the same day with the same reference and in a larger amount is to be disregarded. It signally fails to do so.
It was at all times plain that it would be necessary to account for the GST received from the purchaser of the Botany property. The debit and credits on 18 November, which refer in terms to "GST on sale" permitted amounts to be transferred into the management account without which the cheque for $103,749 a few weeks later could not have been honoured. The amount of $103,749 is a payment of GST. It very plausibly represents the net GST payable including that collected when the property was sold. I say "very plausibly" having regard both to the amount, and to its timing. Conversely, Mr Charara's submission of fraud provides no explanation for accounting for GST at all.
Mr Charara complains that there is an element of inference in the foregoing, which could readily have been explained by witnesses in the Bank's camp. That there is some inference may be accepted, but there is a ready explanation for the deficiency. The serious allegation of fraud was never pleaded or particularised at trial. It was permitted - generously to the appellants - to be raised at the end of the trial. The Bank took the view that the appropriate course was to respond to it by tendering documents, rather than adducing evidence from a witness. Having read the cross-examination conducted by Mr Charara, the desirability of a documentary answer to the allegation may readily be appreciated.
Not only must this ground be dismissed, but it is plain from the foregoing that there was never any proper foundation for the allegation of fraud.
The primary judge did not address the issue in the detail referred to above. Indeed, his Honour said at [62], candidly, that he was "not completely sure that I have found the flaw in Mr Charara's figures" (it should be said immediately that it appears that his Honour did not have the benefit of the detailed submissions this Court received on the question). For the reasons given above, there is no error in his Honour dismissing this ground.

[25]

(a) Procedural history concerning Mr Charara

In 2012, the Bank sued ACES Sogutlu, Mr Sogutlu and Ceyser in the District Court. Not all of the pleadings are in the appeal materials, but it is clear that no later than 17 October, when the Further Amended Defences were filed, Mr Charara was involved. Mr Charara was the person whose name and phone number were given on the front page of the pleading. He also affirmed an affidavit, as the authorised officer of the corporate defendants, verifying the defence. The defence described his capacity as "Director".
None of the foregoing made Mr Charara a party to the litigation. However, a "2nd (further) Amended (first) Cross-Statement of Claim" was filed on 6 February 2013. That document named Mr Charara as the fourth cross-claimant. It did so on its front page, twice. It was not only signed by Mr Charara, but it was also verified by him as follows: "I am the 4th cross-claimant and a director of the first and second cross-claimants and I am authorised to commence and carry on this cross-statement of claim".
I will deal with the way in which leave was granted to file that cross-claim below. For present purposes, it is plain that Mr Charara had become a party to the proceedings: he was the fourth cross-claimant. That is not to say that Mr Charara was a necessary or proper party, or whether (had an application been made) he could have resisted being removed as a party. Even persons who are wrongly joined to proceedings are parties to them until such time as they be removed.
It is in the nature of litigation that it concerns claims. This is perhaps best seen in the law of jurisdiction. As Owen Dixon KC once said, if a tramp who is about to cross the bridge at Swan Hill is arrested for vagrancy and objects that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution: "His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction": Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, 13 December 1927, p 788. See Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1 at [55]: "... it is only a claim (with the necessary federal elements) that is necessary" (emphasis in original).
Likewise, one or more plaintiffs may claim to have an entitlement to relief against a defendant. Relying on that claim, they may invoke a court's jurisdiction by filing originating process. The fact that the court may determine in the future that their claim is not made out - or that it may determine that one of those plaintiffs has no entitlement and should never have invoked the court's jurisdiction - does not detract from the proposition that the plaintiffs are parties to the litigation.
The "2nd (further) Amended (first) Cross-Statement of Claim" was the final pleading filed by the appellants at trial. The Bank did not (so far as appears from the record) seek to strike any aspect of it out, although there was much in it that would not withstand an application for strike out or summary dismissal. Nor did the Bank take any point about Mr Charara being the fourth cross-claimant. It filed a defence to the cross-claim and the matter proceeded to final hearing.
So far as I can see, nothing was said about the status of Mr Charara as fourth cross-claimant throughout the trial. The appearance sheet in the court file merely records his name in the column for defendants, and does not more precisely identify the parties for whom he appeared.
The Court's orders are reproduced above. Orders may not be enforced until entered in accordance with the rules: Civil Procedure Act 2005, s 133, and the orders as entered into JusticeLink (the computerised court record system recognised by UCPR r 36.11) are in identical terms, but refer only to ACES Sogutlu, Ceyser and Mr Sogutlu as the defendants and cross-claimants. That was so notwithstanding the state of the pleadings and the fact that the primary judge's judgment expressly identified Mr Charara as the fourth cross-claimant in the cover sheet and in the reasons at [5].
It was the failure of the orders as entered in JusticeLink to refer to Mr Charara that caused an application to be made to the registrar, and its review by another judge. Pursuant to the Bank's motion dated 24 September 2013, in open court but without the appearance of any of the appellants, a registrar ordered, purportedly under the slip rule, that: "Justice Link be amended to record Jamal Charara as the fourth cross-claimant."
Ultimately on 10 October 2013, a sealed order of the Court to that effect was obtained by the Bank.
There was no dispute that the Bank gave notice of its motion to Messrs Sogutlu and Charara. Mr Sogutlu sent a letter dated 25 September 2013 to the Bank's solicitors advising that he and Mr Charara opposed the motion, that the judge was in error in referring to Mr Charara as the fourth cross-claimant, and that this would be taken up in the Court of Appeal.
The registrar's decision was the subject of an application by Mr Charara for review. The application came before another judge, where Mr Charara appeared for himself and advanced five arguments. The transcript was not in the appeal papers, nor was any application for leave to appeal brought from the decision. According to the reasons (Commonwealth Bank of Australia v ACES Sogutlu Holdings Pty Ltd [2013] NSWSC 1884 at [23]-[28]), it was not put that the registrar had no power to make the order, nor that there was a denial of procedural fairness. Nor does it seem to have been put that no cause of action was advanced in the cross-claim on behalf of Mr Charara.
No application for leave has been brought from that decision. It is far from clear to me that this ground of appeal can succeed without challenge to the earlier decision. But no such point was taken by the Bank, and it is preferable to deal with the question on its merits.

[26]

(b) Was Mr Charara a party to the proceedings at first instance?

Mr Charara swore, in an affidavit filed with leave after the appeal was heard, that he was a former director of ACES Sogutlu and Ceyser, and an assignee of the "cross-statement of claim appeal". According to ASIC notices dated 4 June 2014, notifications that Mr Charara ceased being a director of ACES Sogutlu and Ceyser dated in each case 14 May 2014 were lodged on 3 June 2014.
In an affidavit read when the registrar's decision was being reviewed, Mr Charara swore that he was a director and contributory of ACES Sogutlu and Ceyser, and that: "On 6/02/13 a draft 2nd further amended cross-claim was filed by mistake by Ercan Sogutlu instead of the correct one that was meant to be filed, and the draft 2nd amended cross-claim mistakenly named me as the fourth cross-claimants but no leave was ever granted to file the draft cross-claim."
This was advanced orally as follows: "BEAZLEY P: No, that's not what I put to you. You are named, are you not, as a cross-claimant in that document? CHARARA: I am named in that document as the cross-claimant. BEAZLEY P: In fact, as the fourth cross-claimant? CHARARA: Correct. LEEMING JA: And you swore that you were the fourth cross-claimant, looking at p 58. CHARARA: If you look at that document there is only one word where the affidavit is sworn verifying the document, I am entitled to verify that document under my capacity as a director then, but there was a typographical error, they made me as the fourth cross-claimant. The word "fourth cross-claimant" needs to be deleted. BEAZLEY P: Who made the typographical error? CHARARA: My secretary your Honour. All I did I just signed this document."
If indeed there had merely been a typographical error in a pleading, which caused a person mistakenly to be joined as a party, then the position might be different. This may be seen in the fact that express provision is made in the rules to deal with a claim brought against the business name of a defendant (see UCPR rr 7.19-22). There is also a body of law dealing with what happens when there has been a misnomer, which varies with the applicable rules, and is not without some fine distinctions: see Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231.
But there is no mere typographical error here. An affidavit is a solemn statement by the deponent and should not lightly be sworn or affirmed. Moreover, it was no mere typographical error that caused Mr Charara to affirm that he was the fourth cross-claimant in a document which he caused to be filed and which repeatedly identified him as such. The document was drafted so as to name him, twice, on its front page, as the fourth cross-claimant. Although Mr Charara submits that was a "typographical" error, the document plainly reflected a conscious forensic choice to expand the parties to the proceedings.
A person who moves a court for relief, by invoking its jurisdiction in the conventional way by filing a statement of claim or cross-claim, becomes a party. The claimant's claim may be utterly hopeless. Nevertheless, the claimant is a party until such time as he, she or it is removed from the proceeding or the litigation is resolved.

[27]

Mr Charara was given leave to file supplementary submissions, of no longer than 5 pages, at the conclusion of the hearing, on specified topics. There was literal compliance with that direction. It must be said that the submissions, which occupy precisely five pages, are typed in the smallest font I have ever seen in submissions to a court. There are 57 lines of text on page 3. But much worse than their near illegibility is the fact that the submissions repeatedly accuse the Bank and its lawyers of deliberately misleading the Court. Indeed, Mr Charara asks this (paragraph 27): "Paragraphs 22, 23 & 24 of the bank's submission is deliberately misleading this court and something specific should be said in judgement about counsel continues to attitude in misleading this honourable Court." [sic]
I will accede to the request to say something specific. The submission to which Mr Charara takes offence is paragraph 22 (no separate attack is directed to paragraphs 23 or 24). Paragraph 22 of the Bank's submission is in these terms: "22. On 6 February 2013 leave was granted to file the Second Further Amended Cross-Claim. That Cross-Claim clearly identified Mr Charara as the fourth cross-claimant, and the verifying affidavit clearly identified him as such. This had the effect of joining Mr Charara as a party to the proceedings, and the court's computerised record system ought to have recorded him as such."
Mr Charara submits: "There is absolutely no evidence to corroborate counsel submission at paragraph 22 that any of the appellants made any application to the court below for leave to file the draft second further amended cross-claim dated 6 February 2013, nor there is any evidence to say that any leave was ever granted to file the draft cross-claim, it is not the court's registry clear responsibility to give legal advice to any litigant as to how preparation are made before filing, the only responsibility the court's clerk have is to see that if the forms of the court has been properly completed and if so all they would do is to seal the form and their duty does not go beyond that, and that is exactly what's happened here."
Mr Charara's submission is ill-founded. First, even if nothing more were known, a second further amended cross-claim would require the grant of leave. Secondly, leave was sought and obtained, before a registrar in open court, on 6 February 2013. The JusticeLink record of the orders is that the defendants/cross-claimants were ordered to file and serve their second further amended cross-claim in the same form as had been served in draft by fax by 8 February 2013. The order necessarily carries with it the grant of leave. Thirdly, this occurred by consent (this is also obvious from the JusticeLink record of the orders). Fourthly, those orders were made because Mr Charara personally signed short minutes to that effect (the original document is on the Court's file). His signature on the short minutes of order is unmistakable.
In short, the submissions of the Bank which Mr Charara complains were deliberately misleading were unexceptionable. Mr Charara's complaint is a clear misuse of the privilege attaching to statements made in court, by making serious allegations of impropriety with no foundation in the evidence.

[28]

Orders

The result is that the appeal must be dismissed.
Also before the Court is a notice of motion filed by Mr Charara seeking orders reflecting what purport to have been legal assignments by ACES Sogutlu and Ceyser of "its rights, including right to carry on the proceedings and all its entitlement in the appeal proceedings and any other proceedings including future proceedings between it and the Commonwealth Bank". I say nothing of the efficacy of the documents, or whether they might be valid against a liquidator (they are dated 27 February 2014, which is two days after the application by both companies to set aside the Bank's statutory demands was dismissed: In the matter of ACES Sogutlu Holdings Pty Ltd [2014] NSWSC 140, and record that Mr Charara was owed $400,000 and $988,000 respectively by each company). It is sufficient to conclude that because the appeal must be dismissed, so too must the notice of motion.
In other circumstances, if I were satisfied that there had been a mistake and Mr Charara found himself a party to litigation and exposed to what must be a large costs order, there might be occasion to exercise the wide discretion conferred by s 98 of the Civil Procedure Act to craft an appropriate order as to costs. That is not this case. It will be evident from the foregoing that much of the cost and delay and complexity both at trial and on appeal has been attributable to Mr Charara's ignorance of basal principle and preparedness to make serious allegations, including of fraud, without foundation. Further, Mr Charara as director, creditor and (perhaps) assignee is directly and personally interested in the outcome.
It is not necessary to go so far as to accept the Bank's submission that Mr Charara, if he had been improperly joined, is to be regarded as a third party against whom a costs order ought to be made. It is sufficient to say that the matters referred to above amply persuade me that this remains a proper case for the usual order as to costs to be made in respect of the costs at first instance and on appeal.
Accordingly, I propose that the appeal be dismissed with costs. The notice of motion filed by Mr Charara on 31 March 2014 should also be dismissed, with costs. As noted above, no submissions at all were made by the newly appointed liquidator of ACES Sogutlu and Ceyser, although it may be inferred from the notice of discontinuance that there may be an arrangement between him and the Bank as to costs. If any party wishes to apply for a different costs order by reason of the winding up of ACES Sogutlu and Ceyser, that may occur in accordance with UPCR r 36.16. Mr Charara may, by written submission and/or affidavit filed and served within 14 days of today, provide an explanation for how the appeal papers came to include material not before the primary judge. So that there can be no doubt about the purpose of doing so, I should make it clear that a person who seeks to alter the documents before a court, with the purpose of obtaining an advantage, may be guilty of a contempt of court or may be guilty of criminal conduct including perverting the course of justice. In such cases, the Court may refer the matter to the Prothonotary and/or to the Director of Public Prosecutions for investigation and consideration of what further steps should be taken. Before determining whether the Court ought to so refer the matter, it is appropriate to give Mr Charara an opportunity to provide such explanation as he may be advised to make.

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (17)

Cited By (18)