Australia and New Zealand Banking Group Limited v Huybers and anor

BACKGROUND 1By statement of claim filed on 8 April 2013 the Australia and New Zealand Banking Group Limited ("the respondent") commenced proceedings against: (i)Susan Elizabeth Huybers ("Huybers"), the first defendant; (ii)Green Global Constructions Pty Limited ("Green Global"), the second defendant; and (iii)Pineview Property Holdings Pty Limited ("Pineview"), the third defendant. 2In those proceedings the respondent sought orders that: (i)it be granted possession of two properties, namely: (a)(a) a property at 5 Calderwood Road, Galston ("the Calderwood property"); and (b) a property at 45 Pinevalley Road, Galston ("the Pinevalley property"); (ii)leave be granted to issue writs of possession forthwith; (iii)Huybers pay the respondent the sum of $2,002,473.90; (iv)Green Global pay the respondent the sum of $2,523,991.23; (v)Pineview pay the respondent the sum of $2,083,046.96. 3It should be noted that the Calderwood property and the Pinevalley Property are adjoining. Each is a separate lot in the one deposited plan. 4Notices issued pursuant to r. 6.24 of the Uniform Civil Procedure Rules were served on 14 April 2013. 5On 27 May 2013, no defence having been filed in the proceedings and no application for joinder having been made in response to the service of the notices under r. 6.24, the respondent filed a notice of motion seeking default judgment. Default judgment was entered on 18 June 2013 and writs of possession in respect of each of the Calderwood and Pinevalley properties were issued on 9 July 2013. 6Notices to vacate, each dated 16 July 2013, were issued to the occupiers of each of the Pinevalley and Calderwood properties. The notices directed all occupants to vacate both properties prior to 11:30 am on 30 August 2013, and advised that in the absence of such vacation eviction action would proceed without further notice. 7On 3 September 2013 a notice of motion was filed by Biagina Rubino and her husband Alfio Rubino, both of whom resided at the Calderwood property, seeking orders that: (i)the execution of the writs of possession be stayed; (ii)they be joined to the proceedings for the purposes of making that application. 8After the notice of motion was filed, Mr Rubino passed away. The notice of motion has been continued by Mrs Rubino, to whom I shall refer as the applicant. 9The notice of motion was first returnable on 5 September 2013. On that day, orders were made for the joinder of the applicant to the proceedings for the purposes of seeking a stay of execution of the writs of possession. A temporary stay was granted and the matter was adjourned until 9 October 2013 before Davies J. 10On 8 October 2013 the applicant commenced proceedings in the Equity Division ("the Equity proceedings") against: (i)the respondent; (ii)Pineview; (iii)the Registrar General of New South Wales; and (iv)Salvatore Russo, solicitor. 11The statement of claim filed in the Equity proceedings seeks the following relief: (i)a declaration that transfers, by the applicant to Pineview, of the Calderwood and Pinevalley properties, are void and of no effect; (ii)a declaration that the applicant is the legal and beneficial owner of each of the Calderwood and Pinevalley properties; (iii)an order that each of the Calderwood and Pinevalley properties be transferred to the applicant; (iv)a declaration that two mortgages in favour of the respondent are defeasible by reason of the fraud of Pineview. 12When the applicant's motion came before Davies J on 9 October 2013 his Honour made orders for the service of further affidavit material. The matter then came before the Registrar on 15 November 2013 when directions were made for the service of submissions. The matter was then adjourned until 3 December 2013. 13The matter came before me as Duty Judge on 3 December 2013. Also before me on that day was a notice of motion filed in the Equity proceedings seeking an amendment of the statement of claim. It was agreed between the parties that it was not necessary for me to determine that matter. 14Towards the end of the proceedings on 3 December 2013 a Mr Dimitriou appeared before the court and informed me that he had "been requested to act for Ms Huybers in the matter". He explained that he was not a solicitor, that he was not employed by a solicitor, and that he had been asked by Huybers to "assist" her. He sought a continuation of the stay "on the basis that (Huybers) is able to have her matter heard". There was, of course, no application by Huybers before me on that day, nor has any application subsequently been filed by her. Mr Dimitriou then requested that the respondent provide Huybers with all affidavit material that it relied upon. In circumstances where no application had been brought by Huybers before me I declined that request. 15The matter came before me again on 12 February 2014. On that occasion a Mr Rarparch appeared as agent for the solicitors acting for Huybers. He indicated that Huybers may wish to be heard on the motion brought by the applicant. I made a number of orders facilitating the provision of relevant material to Mr Rarparch and further adjourned the matter until 25 February 2014. 16When the matter came before me on 25 February 2014 there was no appearance on behalf of Huybers nor was there any appearance by counsel for the applicant. I was informed by counsel for the respondent on that occasion that enquiries indicated that Huybers was no longer represented. Huybers was called but did not appear. 17On the previous day, 24 February, I had received a large amount of further evidentiary material on behalf of the applicant. That material had also been provided to the respondent. Counsel for the respondent, not unreasonably, indicated that he required some time to consider it. I then made a number of further orders and adjourned the matter for further directions on 18 March 2014. 18When the matter came before me on 18 March 2014 I made orders allowing the parties to provide further submissions in light of the additional material which had been served. THE EVIDENCE 19The following affidavits were read in support of the applicant's motion: (i)Manuelpillai Paul Dominic dated 3 September 2013; (ii)Biagina Rubino dated 3 September 2013; (iii)Alfio Rubino dated 3 September 2013; (iv)Lee Rubino dated 3 September 2013; (v)Andrew Jetson dated 23 October 2013; (vi)Manuelpillai Paul Dominic dated 23 October 2013; (vii)Gerard Quin dated 24 February 2014; (viii)Harjeet Singh dated 24 February 2014; (ix)Mauro Rubino dated 24 February 2014; (x)Paul Dominic Stamford dated 24 February 2014; (xi)Manuelpillai Paul Dominic dated 25 March 2014. 20The respondent relied upon an affidavit of Ian Marsden dated 5 September 2013 and an affidavit of Steve Vanderveer dated 18 April 2013. 21Also in evidence before me were: (i)copies of the front pages of the contracts of sale of the Calderwood and Pinevalley properties; and (ii)a copy of the transfer of those properties.