Bank of Queensland Ltd v Jensen

Supreme Court of NSW|2011-10-26|Before: Schmidt J, Davies J

DibbsBarker Lawyers (Plaintiff) Paula Ann Charlotte Jensen (in person) Helen Marjut Jensen (in person) Mr Carmelo Vescio (in person) File Number(s): 2009/292316, 2011/111525, 2011/117563 Publication restriction: None

Judgment 1Proceedings were commenced by the plaintiff, Bank of Queensland ('the Bank') in January 2009. They concerned a mortgage held over a property located at Castle Hill in respect of a loan of some $825,000, made by the Bank to the defendants in 2005. The three registered proprietors of the property were Ms Paula Jensen, the first defendant in the 2009 proceedings, her mother Mrs Helena Jensen, the second defendant, and her father Mr Paul Jensen, the third defendant, who died in March 2010. 2After protracted litigation, the Bank obtained possession of the property and it was sold. This judgment deals with a number of motions in relation to the 2009 proceedings: two motions filed by Ms Jensen (the 13 October 2010 motion and the 11 May 2011 motion); one motion filed by Mrs Jensen (the 16 May 2011 motion); and one motion filed by Ms Jensen, Mrs Jensen and Mr Carmelo Vescio, who formerly held a commercial lease over part of the property (the 29 October 2010 motion). 3It also deals with two other proceedings brought by Ms Jensen. The first, a summons filed on 6 April 2011 seeking orders that Ms Jensen be permitted to file a defensive caveat over the property, until 'final determination of the entire dispute between the parties' and that the Bank not deal with the property until its final determination. 4The second, a summons filed on 11 April 2011 by Ms Jensen seeking orders that the Court re-open the parties' contract.

The course of the 2009 proceedings 5There were initially difficulties with service. In May 2009, an order for substituted service was made. On the evidence, service of the statement of claim was subsequently effected on the defendants in accordance with that order and defences were filed in June and July. 6Both defences claimed that the property formed a part of the territory of the Principality of Snake Hill ('the Principality'), with the result that 'we are no longer under the jurisdiction of this court'. In the defence filed for the defendants, the amount claimed by the plaintiff Bank under the loan in question was disputed; issues of hardship and ill health were raised; theft and fraud were alleged; as were breaches of various international covenants, the Australian Constitution and various legislation, including the Real Property Act 1900, the Crimes Act 1914 (Cth), the Supreme Court Act 1970, the Trade Practices Act 1974 (Cth) and the Foreign States Immunity Act 1985 (Cth). Breaches of the Code of Banking Practice were also alleged. 7It was also claimed that citizens of the Principality were co-occupants of the property and that they and the defendants were the victims of wrongdoing by the Bank, the Court and New South Wales and Australian authorities, with the result that until such wrongdoings were rectified, any judgment made should be null and void. It was also noted that the matter had been referred to relevant and appropriate courts and international authorities and claimed that it was wrong for this Court, being one of lesser jurisdiction, to pre-empt their decisions. 8In July 2009, Hoeben J struck out the defence. A default judgment was entered in September 2009 and the Sheriff took possession of the property in December 2009. In January 2010, Ms Jensen filed a motion seeking orders that the default judgment be set aside, or enforcement of the judgment stayed. Allegations of fraud and lack of service, as well as claims as to the existence of the Principality, were advanced. Ms Jensen did not appear to pursue her motion and eventually a further adjournment application was refused and on 13 May 2010, Davies J dismissed the motion (see Bank of Queensland v Jensen (Supreme Court of New South Wales, Davies J, 13 May 2010, unreported ). On 18 June 2010, Ms Jensen sought an injunction and/or stay of the orders made by Hoeben and Davies JJ, pending an appeal. This application was refused by Bergin CJ in Equity. 9Ms Jensen appealed the decisions of Hoeben and Davies JJ. The appeal was unsuccessful ( see Paula Jensen v Bank of Queensland Limited [2011] NSWCA 36 and Jensen v Bank of Queensland [2011] NSWCA 132). The Court of Appeal concluded, amongst other things, that the property was registered property within the State of New South Wales, ultimately under the control of the State of New South Wales, over which the Court had jurisdiction. 10An application was brought to the High Court for special leave to appeal. It was dismissed (see Jensen v Bank of Queensland Ltd [2011] HCASL 92). The High Court held in respect of the special leave application: "The applicant did not appear when the notices of motion came on for hearing on 22 April 2010 before Davies J, who was informed by another that the applicant was sick. On 13 May 2010, the applicant again did not appear at a relisted hearing before Davies J. An email to which a medical certificate in respect of the applicant dated 12 May 2010 was attached had been forwarded to his Honour. On the material before him, his Honour was not satisfied that if the hearing were further adjourned there would be any prospect of the applicant appearing. His Honour proceeded to consider the merits of the notices of motion. Relevantly his Honour rejected an assertion that the applicant was not amenable to the jurisdiction of the Court because she had seceded from New South Wales and from Australia. On 23 November 2010, a "Notice of Appeal" lodged by the applicant on 18 June 2010 was dismissed as incompetent on the basis that the orders appealed from were interlocutory in nature. On 24 February 2011, the Court of Appeal refused leave to appeal, upholding Davies J's decision on all grounds, including the secession issue. The draft notice of appeal and the written submissions in this Court deal exclusively with the issue of secession. The applicant's written submissions develop no questions of law such as would warrant a grant of special leave. There is no reason to doubt the correctness of the conclusions reached by the courts below. An appeal to this Court would enjoy no prospects of success." 11At the hearing in October 2011, Ms Jensen explained the circumstances in which the defendants had failed to appear at the hearing of the special leave application and their intention to seek to ask the High Court to re-open the special leave application. When the hearing resumed in November, that had not occurred, but it was said to be imminent. 12Before the sale of the property was completed, the Bank also took steps to obtain relief in respect of various caveats which had been lodged over the property, including one lodged by a Ms Combe, who also claimed to be a citizen of the Principality, and to hold commercial leases over parts of the property. Orders in the Bank's favour were made by Gzell J in February 2011 (see Bank of Queensland v Hoerman [2011] NSWSC 73). Ms Jensen was a party to these proceedings. This judgment was also appealed, ultimately with no relevant success (see Paula Jensen v Bank of Queensland Limited [2011] NSWCA 37 given on 24 February 2011 and Jensen v Bank of Queensland [2011] NSWCA 71 given on 25 March 2011 ). By orders then made, further caveats were precluded from being placed on the title, pending settlement of the Bank's sale of the property. The order made was: "Order that, until registration of an instrument of transfer in respect of folio identifier 1608/733594, known as 11 Melaleuca Close, Castle Hill NSW between the plaintiff and Jennifer Adele Hancock and Nigel Leigh Hancock, or until the Court otherwise orders, the second defendant not accept for lodgement, and not record in the Register, any caveat presented for lodgement which prohibits or purports to prohibit the second defendant from recording in the Register a dealing effected by the plaintiff as mortgagee in the exercise of a power of sale or other power or right conferred by mortgage or under law, otherwise than with leave of the Court." 13The sale was later completed. The defendants are, as a result, no longer the registered proprietors of the property. They no longer have any legal interest in the property. For its part, the Bank is no longer a mortgagee in possession of the property.

The Principality of Snake Hill 14It is necessary to say something about the claims variously advanced by Ms Jensen about the existence of the Principality. It is Ms Jensen's case that the Principality seceded from Australia in 2003. The Castle Hill property the subject of the 2009 proceedings is claimed to form a part of its territory. The Principality has never been made a party to these proceedings, but a defence was filed in June 2009 in the 2009 proceedings, purportedly on its behalf. In July 2009, another defence was also filed, on behalf of the three defendants. 15At the initial hearing, Ms Jensen explained that her motions rested in part on her claim that the property formed a part of the Principality of Snake Hill, a separate country which has seceded from Australia. Without objection, Ms Jensen tendered a variety of documents which she argued established that secession. She submitted that the matter of the existence of the Principality is not a matter for this Court to determine, but a matter for the United Nations ('UN') and the International Court of Justice; that the existence of the Principality was recognised by the UN in 2009; its existence was subsequently recognised by both the State of New South Wales and Australia; consequently, this Court had no jurisdiction to make the orders which were earlier made in respect of the property; and that the Court of Appeal erred in rejecting the appeals which challenged Davies J's conclusions about the existence of the Principality. Ms Jensen asserted that the question of the existence of the Principality was a matter now being considered by the UN and had been raised in proceedings which had been brought before the International Court of Justice. 16The position is, nevertheless, that the claimed existence of the Principality was not accepted by either Davies J, or by the Court of Appeal. The High Court has refused the special leave application brought in order to challenge the decisions made about that matter. The result of the course which Ms Jensen has unsuccessfully taken, is that the claimed existence of the Principality may not now be re-agitated in these proceedings, in support of the motions which Ms Jensen seeks to press. The decision already reached by the Court of Appeal, in respect of which special leave was refused by the High Court, is binding.

The 13 October 2010 motion 17By this motion Ms Jensen seeks leave to file a cross-claim and to have the judgments made in the 2009 proceedings set aside, until the cross-claim has been heard and determined. She also seeks orders staying the execution of the orders earlier made in the proceedings; reversal of her eviction; and return of her personal possession; those belonging to unidentified persons who are claimed to have been commercial leaseholders of the property; and those belonging the Principality and Snake Hill Church. 18The cross-claim which she seeks to bring seeks relief which includes restitution to the former position; return of possessions; return of the possessions of leaseholders; the stay of actions of the Bank and the setting aside of all judgments given in the proceedings; damages and compensation of $50million for matters such as stress, defamation, slander, threats, deprivation of personal property, kidnapping of a cat, the death of Mr Jensen and a dog and psychological torture. 19The Bank opposed the making of the orders sought. Its position was that Ms Jensen has already had the opportunity to agitate claims in relation to the existence of the Principality, allegations of fraud, unconscionability generally, breach of the Consumer Credit Code and the Code of Banking Practice . On her second leave application, the Court of Appeal gave her the opportunity to demonstrate that such claims were arguable. That attempt failed and she is now estopped from any further agitation of such claims. No valid cause of action or claim for relief was demonstrated. Any claim for damages for conversion of personal property had to be properly pleaded by way of a statement of claim. 20It is unnecessary to outline the details of the submissions which Ms Jensen advanced in support of this motion. It was apparent that she was deeply distraught about the course which the proceedings have taken; the sale of the property; the loss of her personal possessions and those of her family and other 'Snake Hillians'; the Court's refusal to acknowledge the existence of the Principality and to deal with it as an independent, sovereign nation; the circumstances which led to the establishment of the Principality; the ill health which she and other members of her family have suffered; how they have been treated by the Bank and others; and over the death of her father, who she believes was murdered. After the adjournment of the hearing she filed extensive written submissions as to applicable local and international law. 21Matters raised went to claimed inadequacy of service of various pleadings, correspondence and other documents; a claim that the orders for substituted service made were null and void; a claim that the Bank's mortgage ought never to have been registered, as it was not in registrable form; complaints about the Court's time and manner of dealing with applications which the defendants had made; claims of breaches of the Foreign States Immunities Act ; complaints about the terms of the orders made not naming Mr Jensen as a registered proprietor in circumstances where Ms Jensen had a claim on the property as one of his heirs; complaints about the defendants' eviction; complaints that the defendants, the Principality and its citizens had been robbed of their possessions; claims that the Court had no jurisdiction in the matter with the result that its decisions were nullities; that this Court was the inappropriate forum to determine the issues lying between the parties; allegations of breaches of the Uniform Civil Procedure Rules 2005 by Sheriff officers; an outline of claims which Ms Jensen wished to pursue at common law, under the Uniform Consumer Credit Code , the Contracts Review Act 1980 and the Code of Banking Practice , was also given. Reference was also made to a number of judgments which were said to support such claims, in the alleged circumstances of the loan in question. Complaints were also advanced as to the manner by which and the price for which the property was sold. 22As to matters of international law, reliance was placed on the Universal Declaration of Human Rights, the Constitution, the Charter of the United Nations, various international covenants and declarations, and the Montevideo Convention. It was argued that the Court had failed to accord the defendants internationally accepted standards of justice, by failing to refer the matter to a higher court, once alerted to an apparent bias by the Court against them, they being foreign nationals. The expropriation of their property amounted to an international tort. Detailed submissions were advanced as to why the secession of the Principality must be accepted by this Court. It was submitted that the Court of Appeal had correctly identified that the Principality's claimed independence was outside the jurisdiction of the Court to determine and that it was thus wrong and an abuse of process, for the Court to determine the questions which had arisen in these proceedings. It has no jurisdiction to determine what was a political matter. It had erred in refusing to hear interested parties and had permitted the taking and disposal of the Principality's territory and property and that of the Snake Hill Church. Interference in international trade deals in breach of international laws was also asserted and it was submitted that '[t]he trauma of this war has been and is still unimaginable, and our lives are at constant risk because of this'. Ms Jensen sought: " ... the immediate reversal of all of the NSW Supreme Court's orders, judgments, rulings and opinions (whether final, interlocutory or whatever) regarding our secession, our territory, our independent sovereign State, our buildings, our personal possessions, the personal possessions of our citizens and lease-holders, and any other property whether tangible or intangible belonging thereto." 23Ms Jensen also submitted that she was entitled to exercise the right to bring the proposed cross-claim, irrespective of the judgments which have been given and the resulting sale of the property. 24These submissions, it must be observed, overlooked the matters over which the parties have already joined issue and which have been determined, as I have explained. They included matters such as the adequacy of the service which was effected; the course which the proceedings took before Hoeben and Davies JJ; the secession issue; and the question of whether there was a possible arguable defence. The orders sought must be refused 25Section s 22 of the Civil Procedure Act 2005 deals with a defendant's right to bring a cross-claim. The Rules require that any cross-claim be brought within the time limit for the filing of a defence, 'or within such further time as the Court allows' (r 9.1). The time for filing a defence has long past. Judgments have been given in the proceedings and appeals against these judgments have failed, with the result that the property in question has been sold. 26The power to extend time is not one generally exercised after the principal judgment has been satisfied (see CSI International Co Ltd v Archway Personnel (Middle East) Ltd [1980] 1 WLR 1069; [1980] 3 ALL ER 215 at 220 and Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651). In Accom Finance Pty Ltd v Kowalczuk [2006] NSWSC 730, Brereton J exercised the discretion to permit a cross-claim to be brought even after judgment had been given, in circumstances where judgment for possession had been entered, but had not been fully satisfied, the property not having been sold and where the judgment for moneys had not been executed. The cross-claim then sought to be pursued was in respect of relief in relation to the mortgage in question, under the Trade Practices Act . Leave was granted in that case, his Honour concluding that the power should be exercised, there still being a 'matter' in the proceedings, to which the cross-claim could be pleaded, the judgment for money not having yet been executed. 27That is not this case. All matters in the 2009 proceedings have been dealt with to finality. The Court's judgments and orders have been fully satisfied, after unsuccessful appeals. There is no matter still on foot in these proceedings, to which the proposed cross-claim may now properly be advanced, as discussed in CSI International . 28It follows that none of the many claims which Ms Jensen now seeks to advance by way of cross-claim, either for damages and compensation for personal injury; or in defamation; or for restitution to her former position as a registered proprietor of the property; the stay of the Banks' actions and the setting aside of all judgments made against the defendants, may be permitted to be pursued. As discussed in National Australia Bank v Satchithanantham [2010] NSWCA 244: "23 The respondents were entitled to challenge the final judgment of McCallum J. by an appeal to this Court, and were entitled to challenge the decision of this Court by an application to the High Court for special leave. When the High Court refused special leave on 23 April 2010 the respondents had exhausted all possible avenues for legal challenge to the substantive judgment in favour of the Bank for possession of the property and the mortgage debt." 29That does not preclude Ms Jensen from pursuing a claim which has not as yet been dealt with in these proceedings, such as that which she wishes to bring in relation to her personal property, for example. Indeed, Ms Jensen, her mother and perhaps other people also, may have legitimate claims in relation to personal property, if it was wrongly taken when the Bank obtained possession of the property, as Ms Jensen claims. Correspondence in evidence provides some support for the existence of such claims. I can, however, see no basis in that possibility for granting leave to bring such claims in these proceedings. 30As to the claims which Ms Jensen seeks to advance in relation to personal property other than her own, a number of observations must be made. There is nothing before the Court which suggests that Ms Jensen has any standing to bring claims in relation to the personal property of other unidentified people, who are said to be citizens of the Principality, even if they may formerly have held commercial leases over parts of the property. The Principality has not been found to exist. Even if it does exist, that Ms Jensen has standing to bring proceedings on behalf of it, or its other unidentified citizens, is not apparent. 31If Ms Jensen wishes to pursue claims which have not yet been dealt with, she must do so by bringing fresh proceedings, properly pleaded in accordance with the requirements of the Uniform Civil Procedure Rules , in a court of competent jurisdiction. At this stage, however, such claims may not be pursued by way of a cross-claim brought in these proceedings. 32The judgments which have been made in the proceedings cannot be set aside on the basis proposed in the cross-claim. Nor can the orders which preceded the sale of the property, which resulted in her eviction from the property, be reversed in the way Ms Jensen desires. Nor can they be stayed. They have been executed. It is too late to bring the proposed cross-claim. This application must fail.

The 11 May 2011 motion 33This motion was also brought by Ms Jensen. She sought orders that her cross-claim be referred to mediation and an order staying the execution of the property, pending the determination of appeals about 'the dispute between the parties'. 34The last of the Court of Appeal's judgments was given on 6 May 2011. Ms Jensen sought but was refused a stay of the Court of Appeal's judgment, pending the High Court's hearing of the special leave application. The special leave sought has been refused. I have refused leave to bring a cross-claim in these proceedings. It follows that an order that the cross-claim be referred to mediation must also be refused. 35Ms Jensen is no longer a registered proprietor of the property and the Bank is no longer the mortgagee in possession. The Court's order for possession has been effected and the property sold. An order staying the execution of the order for possession would in the circumstances be futile and must be refused, notwithstanding that Ms Jensen wishes to pursue what she says is an ongoing dispute, at the least in relation to her claims about her personal possessions. 36That dispute must be pursued in other proceedings. Mediation may well be a sensible course to pursue in such proceedings, if they are brought, but that is not a matter for this Court to determine in these proceedings.

The 29 October 2010 Motion 37This motion was brought by Ms Jensen, her mother Mrs Jensen and Mr Vescio, who held an unregistered five year commercial lease over part of the property, before the Bank took possession. The orders sought were orders for immediate repossession of the Castle Hill property for the benefit of the former registered proprietors, Ms Jensen and Mrs Jensen; that all goods and chattels removed on instruction of the Bank be replaced; and that Mr Vescio be added as a party to the proceedings. 38Like Ms Jensen, Mrs Jensen and Mr Vescio appeared unrepresented. They both supported the submissions which Ms Jensen made. 39Mrs Jensen's affidavit evidence and submissions as to her health, were not challenged. They were to the effect that she suffered chronic ill health; had suffered a serious stroke at some time, from which it took her years to recover; and that she had suffered trauma when evicted from the property in December 2009. She had now largely recovered and was living on a pension. She wished to rely on medical certificates to establish her illness, but had none to put before the Court, claiming that they were all amongst the possessions taken by the Bank, when it took possession of the property. Having not taken any steps to obtain any relevant medical records to put before the Court, it is not possible to come to any conclusions about the state of Mrs Jensen's health at any particular time. Given the time of Mrs Jensen's eviction in 2009, that she could not have provided relevant medical certificates relating to the period since 2009, because she then lost all of her possessions, including such documents, may not be accepted. 40Mrs Jensen also explained that while she had now largely recovered from the effects of the stroke, she was not capable of performing work she had previously undertaken. She said that she had in the past worked as the production manager of a factory and had owned and operated her own factory. In the past she had also lived on earnings generated by overseas borrowings invested in Australia. 41Mr Vescio's affidavit evidence was also not challenged. He claimed that the property had been fraudulently sold by the Bank and sought in these proceedings to pursue a claim for the return of his goods taken when the Bank obtained procession of the property. He complained that the Court had not dealt promptly with this motion. The result was that he had commenced proceedings in the District Court to recover the goods in question, but complained that those proceedings had been struck out. No documents such as the pleadings, or any judgments or orders given by the District Court in those proceedings were tendered. 42For reasons which I have already explained, the orders for repossession of the property may not be made. The judgments given by Hoeben and Davies JJ which had the eventual result that the Bank was given possession of the property, so that it could be sold, were the subject of unsuccessful appeals brought by Ms Jensen. Mrs Jensen did not exercise her right to appeal either judgment. They may not be challenged by the motion which has now been brought. 43In Mr Vescio's case, it is apparent he has no interest in the 2009 proceedings on which an order making him a party could rest. He has no standing to bring proceedings for repossession of the property. He only claims an interest in the property under a former unregistered lease. As I discussed in Combe v Bank of Queensland [2011] NSWSC 1347 (at [14] - [16]), that is not an interest in the land which could prevail over that of the Bank. In any event, the property has now been sold. The Bank is no longer in possession of the property and can not give the possession which is sought. 44Nor may an order in respect of any goods and chattels removed from the property be pursued by way of motion brought in these proceedings. A properly pleaded claim may be pursued in a court of competent jurisdiction. In Mr Vescio's case, it appears that he has brought such proceedings in the District Court. The failure of those proceedings is but another reason why the orders pressed in respect of the same goods and chattels may not be dealt with in the 2009 proceedings. 45This motion, too, must be dismissed.

The motion of 16 May 2011 46This motion was brought by Mrs Jensen. Thereby she sought to have the default judgment made by Hoeben J set aside and leave to file an amended defence granted. That defence seeks to deny the amount claimed by the Bank and to raise claims that the Consumer Credit Code , the Code of Banking Practice and the Trade Practices Act were breached. Orders reopening the contract under the Contracts Review Act are also sought, on the basis that the transaction was unjust, due to harsh, oppressive and unconscionable terms under s 70 of the C onsumer Credit Code . It is also sought to be claimed that there was no pre-contractual disclosure, as required by the Consumer Credit Code . It is also sought to be alleged that Mrs Jensen has earned no income since 1989, except for $100 per week from her husband's workers compensation payments since 1997; that Mrs Jensen was too ill to deal with the matter; that she was in receipt of a disability support pension; and that the property forms a part of the Principality, which has seceded from Australia. 47By her affidavit evidence Mrs Jensen claimed that she did not know anything about the statement of claim or the defence purportedly filed on her behalf by Ms Jensen. She was then ill, after she had a stroke. She sought a stay of execution of orders made in her absence, as well as orders setting aside the default judgment and writ of possession. 48Mrs Jensen explained that she wanted to run a case that there had been asset lending, given her circumstances. Her case was that while the defence Ms Jensen had filed, had been filed on her behalf, parts had been left out of it. She had never seen the statement of claim because she had not been served and because of a fear that she would collapse, if involved. Her affidavit evidence was that her daughter had filed the defence without 'her knowledge, consent or input'. 49Ms Jensen's position was variously explained: "HER HONOUR: Can I ask a question about that. There have been defences filed in these proceedings which have been dealt with by the Court. One of them is a defence filed in June 2009 which indicates that it was filed for Paula Ann Charlotte Jensen, Helena Jensen and Paul Jensen. As I am following, the defence was prepared by your daughter, Ms Jensen, but you are not telling me you didn't agree with it, are you? HELENA JENSEN: I usually agree with whatever she does, because it has been like that a long, long time. She has been doing things sort of on my behalf, but I can't say that I had very much input in it, you know. ... HER HONOUR: Can I just ask you about what appears in paragraph 8 of the affidavit. There it is said that any defence which was filed in these proceedings were prepared by Paula Jensen, without your knowledge, consent or input. HELENA JENSEN: Yes, I haven't had very much input about anything. HER HONOUR: You are making a complaint that you HELENA JENSEN: No, I'm not. HER HONOUR: Just a minute. I want to be clear what you are doing about this paragraph. You are making a complaint, are you, about the steps taken by your daughter? HELENA JENSEN: No. HER HONOUR: You don't agree with the defence which was filed purportedly on your behalf in July 2009? HELENA JENSEN: I wanted to put my own defence in really. I don't know if I can. HER HONOUR: Just one moment. I will show you the document which was filed. This is a defence on the file. I take it that this is the document that you are referring to in the affidavit? HELENA JENSEN: No, it hasn't got everything in it that needs to come in. Like we haven't HER HONOUR: I'm just trying to understand the nature of the complaint. Is it that you disagree with that document and are complaining that it was prepared and filed by your daughter without your knowledge, consent or input, as you say in paragraph 8 of your affidavit, or is your complaint that it is not complete and there are other matters that you want to raise? HELENA JENSEN: I would like to raise more matters, and that's all, but I'm not HER HONOUR: Just looking at paragraph 8 of your affidavit, is that evidence you want to give? It seems to make quite a serious allegation against your daughter. I am just concerned to make sure that I understand properly HELENA JENSEN: No, I do not complaint about anything. I just thought that there could be more things that should come out, that's it. That is a complaint in itself. We are actually and I must say I haven't been part of it for more than a very, very short time actually. We are finding out more and more all the time. I must say that this is absolutely new to me too. We have told so many people around the world about all what has happened. We are getting input from a lot of input from America, I must say, from very good friends there. They happen to be educated both in law, and we have actually, yeah, and banking. HER HONOUR: Just to come back to my question; do you or do you not want to put in evidence before the Court what is in paragraph 8 of your affidavit? HELENA JENSEN: Yes, I do, because I did not prepare this document. I must tell you I did not prepare it. I can understand why I didn't. It was the wrong time for me. But I don't, either I don't complain about her putting anything in, but I think there is still a lot of things missing that should come out. HER HONOUR: Thank you. HELENA JENSEN: I probably would have done it a little bit different. HER HONOUR: That's the evidence that you want to rely on. 50The leave sought was opposed by the Bank, which submitted that no reasonable defence was apparent. Reliance was placed on the Court of Appeal's 6 May 2011 judgment. There the Court had to determine whether leave should be granted to appeal against the judgment of Davies J of 13 May 2011. In support of that application, various contentions were advanced by Ms Jensen. They included that significant documents on which the Bank relied to obtain the relief obtained in the Court below, contained forged signatures; alleged non-compliance with the Consumer Credit Code and Code of Banking Practice and unsatisfactory service of documents. 51Hodgson JA observed that: "8 This was a case where the Bank advanced over $800,000 to pay out an existing mortgage, payments under which were apparently about $7,500 per month, interest only. The subject mortgage in this case was one in which there were to be monthly payments of principal and interest of about $5,667, of which $4,900 was interest. In that sense, the mortgage would appear to be on more favourable terms." 52In her submissions, Mrs Jensen claimed that contrary to Hodgson JA's view, the Bank's mortgage was not more favourable than the mortgage which it had replaced, because the earlier mortgage was an interest only mortgage and the Bank's mortgage was for both principal and interest. She submitted: "No, it was not a more favourable loan. We have always had interest only. I have never had a mortgage more than interest only all my life, since I started to take loans, and interest and principal is not more favourable. It is more expensive than interest only. Even if it would be half a per cent or quarter of a per cent cheaper to start with, it is still more expensive at the end of the day because you are paying the principal as well. I can't understand how we got a principal and interest loan, because I have never ever and before we could always, all this time we have been sick we have borrowed the interest and it has been on those terms that we pay the interest at the end of the term. It hasn't been like this that we work day to day and pay the interest at the same time, we have had investment loans for a long time and not this same kind as everybody else. Our loans have been mainly from investment companies, because we didn't have the income to pay it with. So for us, the only thing that would work is hopefully inflation and pay the interest out of the inflation. That is what lots of people have done. And there is nothing illegal about it. It is actually a self funding loan. It is not something people work for and the 80,000 we gave them actually came as a loan for future payments." 53Mrs Jensen was noted as being a party affected by Ms Jensen's notice of appeal. It ought to have been served upon her. She gave no evidence that it was not, or that she was not aware of the appeal proceedings. It seems that she did not participate in the proceedings, even though her position was affected by the orders which Hoeben and Davies JJ had given. The explanation may well be her ill health in 2010 but there was no evidence which shed light on that matter, other than her evidence that she was too ill to attend to the proceedings and to her defence. 54As to service, in his judgment, Davies J noted that he had his Associate write to the defendants at the address for service shown on documents filed by them, informing them of the hearing of Ms Jensen's motions before him on 13 May 2010 and that the defendants either had to appear in person, or by a qualified legal representative. While there was a response from Ms Jensen, who also claimed to be in ill health, there was none from Mrs Jensen and no appearance by either of them at the hearing on 13 May 2011. 55Davies J had to consider the motion brought by Ms Jensen to have the default judgment set aside. That judgment affected both the defendants. On the evidence, his Honour was satisfied that there had been service executed on the defendants in accordance with the Registrar's orders for substituted service. In the absence of any application to set aside the order for substituted service, the Court was bound to proceed on the basis that it had been properly made. Despite his Honour's judgment and Ms Jensen's unsuccessful appeals, there has still been no such application. Accordingly, the Court must proceed on the basis that there was also proper service in Mrs Jensen's case. 56Davies J also dealt with allegations of fraud which Ms Jensen had not particularised, but which appeared in various of her affidavits, as well as the claim that the property fell outside the jurisdiction of the Court, as it fell within the Principality. His Honour concluded that there was no basis in any of the affidavits for setting aside the default judgment which had been regularly obtained. He also refused a stay of the sale, because there was no evidence that the defendants were in a position to pay the debt which resulted in the order of possession. That position remains unchanged. 57Mrs Jensen has provided no medical evidence which supports her claim that she was too sick to attend to these proceedings, at any time before the filing of this motion. She claims that all of her records were taken by the Bank when it took possession of the property, but that does not provide an explanation for the absence of any corroborative material, because that possession was taken in December 2009. The claim that she knew nothing of the defence which Ms Jensen had filed on her behalf and that she would have approached the defence of these proceedings in a different way, if she had been well, is very difficult to credit. She certainly called no evidence from Ms Jensen to support that claim. Given the terms of the defence from which Mrs Jensen now seeks to distance herself and the defence which she now wishes to advance, that situation seems fairly unlikely. 58Also to be considered is the question of whether the amendment of the defence could now be permitted, given that the matters lying between the parties have otherwise been dealt with to finality. Section 63 of the Supreme Court Act 1970 requires the Court to grant all such remedies as a party may appear to be entitled to, in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. That is an obligation which arises in relation to the issues which the parties bring forward by their pleadings. Ordinarily a party may not seek to bring forward a case not put at trial on appeal, if that would have affected the evidence led or if it is unlikely that the result would have been different (see Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491). In this case Mrs Jensen took no steps to appeal the judgments which she now seeks to set aside, but now belatedly seeks the opportunity to advance what is said to be other defences. 59Section 64 of the Supreme Court Act does permits the Court to grant leave to amend a pleading at 'any stage of proceedings', as Mrs Jensen submitted. There is a question, however, it seems to me, as to whether, after an unsuccessful appeal, the entry of the judgment and its enforcement, an application to set aside the default judgment, so that a fresh defence may be brought, is an amendment brought at a 'stage of the proceedings'. That term is not defined in the Act. In the Court Information Act 2010, provision is made in s 7(1) as to the time at which proceedings are concluded, it being provided that 'civil proceedings are concluded when judgment is given or entered in the substantive proceedings or the substantive proceedings are withdrawn, dismissed or discontinued'. 60In this case, if the proper view is that s 64 does not permit amendment of the pleadings now that the proceedings have been concluded, then the power which Mrs Jensen seeks to have the Court exercise in her favour is not available, notwithstanding what might be said about the Court's powers on the Judicial Commission website, on which Mrs Jensen relies. 61Even in the event that the discretion which Mrs Jensen seeks to have exercised in her favour exists, in the circumstances of this case, I am of the view that it may not be exercised in her favour, given the scheme of the Act and the circumstances in which this application is made. Section 64(2) provides: "(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings." 62Section 58 of the Civil Procedure Act obliges the Court to 'to act in accordance with the dictates of justice'. Under s 58(2), regard must be paid to the requirements of ss 56 and 57 and to the extent which are relevant to: "(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. (s58(2))" 63Section 56 provides that the Court must exercise its powers to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings and s 57 is concerned with managing the proceedings having regard to specified objects, namely: "(a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties." 64Section 56(3) also imposes an obligation on parties, namely: "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." 65These obligations also have to be approached having in mind considerations of the kind discussed in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175, such as that discussed in relation to delay: "111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases [176]. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future." 66In this case, the only explanation for the delay of some two years in seeking to have the default judgment set aside is Mrs Jensen's ill health, for which no proper evidentiary foundation was established. Given her claimed financial position, it does not seem possible that any costs order could effectively meet the prejudice which would flow to the Bank from the course which Mrs Jensen now urges, if it were granted. The time and circumstances in which the application is pressed, do not favour it being granted, given the obligation to do justice between these parties and the need to ensure the just, quick and cheap resolution of the issues raised in the proceedings. As the High Court discussed in Aon , they are the issues raised on the parties' pleadings. 67In the circumstances, the Bank's submission that it is too late for Mrs Jensen to effectively only now, to begin her defence of its claim, by raising new issues or re-agitating issues already raised by Ms Jensen and dealt with in the proceedings and on appeal, must be accepted. 68Also to be considered is the prospects of success which the defence appears to have. It is not sought to be suggested that Mrs Jensen did not execute the mortgage documents. Given the observations made by the Court of Appeal as to the former loan which the Bank's loan replaced, it is apparent that Mrs Jensen's view that the new loan was less favourable than the old, can have no prospects of success. A loan which repays both principal and interest, with lower repayments cannot be less favourable than a loan in respect of which higher repayments are only meeting interest. That is so, no matter that beforehand, Mrs Jensen had only borrowed on an interest only basis. The attraction of the terms available from the Bank are obvious. By lesser payments, Mrs Jensen was able to repay both principle and interest. That such a loan could be found to be unjust or unconscionable, is unlikely. 69On the evidence the Bank's loan was used to pay out the former loan secured over the property. Mrs Jensen does not deny having signed the documents in evidence. In 2008 she signed a " Consumer Lending Application for Financial Hardship Assistance", which identified the reason for the application to be a downturn in construction, plus illness, namely depression, the result of the theft of two properties. 70Given Mrs Jensen's explanation of her former business experience, operating her own factory; her investment properties; her past experience of overseas borrowings at 8%, in order that she could live off the earnings generated by investing those funds in Australia at interest of 12-14%, that the claims she wants to advance by her amended defence, have an obvious foundation, is very difficult to see. She did not dispute having executed various documents on which the Bank relies, which disclose a very different financial and earnings picture disclosed to the Bank at the time of the loan, to that which she now wishes to advance by her amended defence. There is no complaint sought to be made about the commercial terms of the loan. It was granted in circumstances of disclosed earnings which Mrs Jensen now seemingly wishes to disavow, but where the loan was used to discharge an existing loan, the terms of the Bank's loan being more favourable to Mrs Jensen. In the circumstances, the prospects of an arguable defence being sustained by Mrs Jensen on the basis of the proposed pleadings, seems negligible. 71In all of those circumstances, that is but another reason for refusing the leave sought.

The 6 April 2011 summons 72By this application Ms Jensen seeks orders that she be permitted to file a defensive caveat over the property, until 'final determination of the entire dispute between the parties' and that the Bank not deal with the property until its final determination. The Bank seeks the dismissal of the proceedings. 73For reasons which I have already explained, the summons must be dismissed. The relief sought is directed to the orders made by the Court of Appeal on appeal from Gzell J. Given that the property has since been sold, those orders no longer have effect. The Bank is no longer the mortgagee in possession. The orders sought are futile and the proceedings must be dismissed.

The summons filed on 11 April 2011 74By this summons Ms Jensen seeks orders that the Court re-open the parties' contract. By a motion filed on 30 May 2011, the Bank seeks orders that the proceedings be dismissed or struck out under Rules 13.4 or 14.28 of the Uniform Civil Procedure Rules . They provide: " 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 75By this application Ms Jensen seeks to establish that the Consumer Credit Code applied to the loan, but was breached by the Bank. The complaint made is that there was no precontractual disclosure, as the Code required. There is also a dispute as to whether or not the original mortgage document was signed and the circumstances in which it came to be executed, at a time when Ms Jensen was living on a disability support pension of $670.90 per fortnight, with repayments of $2,316 per fortnight. 76These are claims which are similar to those raised in the defence which Hoeben J struck out and the matters dealt with by Davies J and by the Court of Appeal, in the appeals which Ms Jensen brought. An attempt to re-litigate those matters in these proceedings may not be permitted, given the course of the 2009 proceedings and the appeals. 77Even if I had reached a different conclusion, the claims which Ms Jensen wishes to advance in relation to the loan, may certainly not be advanced on the basis of the present summons. It is deficient. What would be required is a properly pleaded statement of claim, which must be brief (r 14.8.); must disclose that Ms Jensen has a reasonable cause or causes of action; must include the material facts on which reliance is placed (r 14.7); must provide all necessary particulars of the claims which are pursued (r 15.1); and must be sufficient to enable the Bank to put on a defence to each claim. Unintelligible, imprecise, ambiguous pleadings, which do not give proper notice of the substance of any claim, may not be permitted. As discussed by Bongiorno J in Gunns Ltd v Marr [2005] VSC 251 at [57]: "It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r 23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form." 78In my assessment, given the history of the 2009 proceedings and the appeals Ms Jensen unsuccessfully pursued, she may not be given an opportunity to replead. The further pursuit of these matters would be inconsistent with the requirements of s 56 and would constitute an abuse of process. It would be unjust to permit these claims to be pursued afresh, given the history of the litigation between the parties over the loan the subject of this further application. 79In this matter Mr Vescio also sought and was given leave without objection, to press the motion which he had pressed in the 2009 proceedings. For the reasons already given in relation to that motion, the orders sought must also be refused in this case. Mr Vescio's former interest in the property as a commercial leaseholder, gives him no standing or interest sufficient to permit an order making him a party to these proceedings, or to grant the relief he sought. 80For these reasons, these proceedings must be dismissed.

Costs 81The usual order as to costs is that they follow the event. That means that Ms Jensen, Mrs Jensen and Mr Vescio must bear the Bank's costs, as agreed or assessed, in respect of the various motions and proceedings which they each brought.

Orders 82I make the following orders:

The motions brought in the 2009 proceedings, matter number 292316 of 2009 are all dismissed.
The proceedings brought by the 6 April summons in matter number 111525 of 2011 are dismissed.
The proceedings brought by the 11 April summons brought in matter number 117563 of 2011 are dismissed.
Ms Jensen, Mrs Jensen and Mr Vescio must each bear the Bank's costs, as agreed or assessed, in respect of the motions which they brought.
Ms Jensen must bear the Bank's costs, as agreed or assessed in respect of the proceedings brought by the 6 April and 11 April summons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2011

Crimes Act 1900(Cth)

Foreign States Immunity Act 1985(Cth)

Constitution Trade Practices Act 1974(Cth)

Trade Practices Act 1974(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (14)

Cited By (1)