Bank of Western Australia Limited v Coppola and Anor

Background to Applications of Defendants 5For the purpose of ruling upon the Defendants' applications for leave, it is necessary to refer to aspects of the history of this litigation. 6As it happens, these proceedings have been before me on a regular basis since mid-2010, and in particular in 2011. As a result of that direct involvement, I have derived knowledge of various interlocutory steps which have occurred. The transcripts of the interlocutory hearings are on the Court file, and are available to the parties to this litigation. As a result, the knowledge which I have of these interlocutory steps is all on the record. I will refer to some of those steps because they are relevant to the determination of the applications brought by the Defendants. 7The present proceedings were commenced by the filing of a Statement of Claim in October 2009. The Plaintiff alleges mortgage default and seeks possession of a property at Concord (jointly owned by Mr and Mrs Coppola) and a property at Stanmore (owned solely by Mr Coppola). 8In 2010, proceedings were heard by Slattery J in the Equity Division: Fast Funds Pty Limited v Coppola [2010] NSWSC 470. I will refer to aspects of the judgment of Slattery J in the course of these reasons. As will be seen, there is some considerable overlap between those proceedings and these. 9The consent judgment in relation to which Mrs Coppola seeks leave to challenge is a judgment consented to by her then solicitor, Mr Moloney, on 18 May 2010. There is no doubt that Mr Moloney was the solicitor on the record at that time for the Defendants. That consent judgment was entered on 18 August 2010. 10The terms of the consent judgment are contained in Annexures "A" and "B" to the affidavit of Karina Elizabeth Carter sworn 21 December 2011. Consent was given to judgment for possession against Mrs Coppola in respect of the Concord property, with judgment against her in a monetary sum exceeding $680,000.00, together with other provisions with respect to interest and other payments. 11At some time after that date, Mr Moloney ceased to be the solicitor for the Defendants. According to the Court file, another firm of solicitors, G&D Lawyers (Mr Graeme Ulbrick) were on the record acting for the Defendants. 12At a later time again, those solicitors ceased to act and another set of solicitors came onto the record, being Allied Lawyers instructing Mr AG Martin of counsel. Those lawyers remained on the record until December 2011, if not later. 13In February 2012, the Defendants' present solicitors came onto the record, and Mr Santisi of counsel now appears for them. 14As a result, four sets of lawyers have acted for the Defendants at different times during these proceedings. 15It is not necessary, for present purposes, to recite the complete detail of pleadings. What is appropriate, in particular with respect to the application for leave to set aside the consent judgment, is to consider events on and after 28 June 2011. 16By that time, the Defendants were into their third set of lawyers. Mr Moloney had not acted for them for some time. G&D Lawyers had come onto the record and they had moved on as well. 17On 10 June 2011, Mrs Coppola appeared in person before me. She foreshadowed that Allied Lawyers were to act for the Defendants, and said that she had spoken to Mr Martin. She communicated with the Court in English in a manner which, according to the transcript, gave rise to no difficulty in comprehension. It was made clear to Mrs Coppola that the proceedings, which already had a long history, needed to move forward. The transcript of that day (pages 10-14) reveals, a number of observations of mine, which emphasised the need for progress. Despite the concerns of the other parties, the Plaintiff and the Registrar General (who by this stage had been joined on a Cross-Claim), I adjourned the proceedings as Mrs Coppola requested. 18On 28 June 2011, Mr AG Martin of counsel appeared for the Defendants. Mr and Mrs Coppola were in Court. I pause for a moment to say that a daughter of Mr and Mrs Coppola is one Vanessa Coppola. Vanessa Coppola is much mentioned in the context of this litigation but is nowhere to be seen. She has not been in Court at all since these proceedings have been on foot. 19Despite the fact that, in January 2011, a Cross-Claim issued joining the Plaintiff, Vanessa Coppola and the Registrar General, the position (at least as it was last Thursday 29 March 2012) according to Mr Santisi, was that Vanessa Coppola had not been served, although Mr and Mrs Coppola were well aware of her whereabouts. 20A recurring theme on the occasions when the matter was before me in 2011 (as is made clear in the transcript of 28 June 2011) was the Court's concern to know what was happening with respect to Vanessa Coppola. After all, the Cross-Claim suggested that she was a pivotal figure in this litigation. Yet, if she was to be a pivotal figure, and if the Defendants were complying with their obligations under the Civil Procedure Act 2005, it might be thought that they would be taking urgent steps to serve her and bring her to Court to engage in the litigation. 21On 28 June 2011, I asked Mr Martin "where is she [Vanessa Coppola]?". Mr Martin responded "That is the great unknown at the moment" (page 2). He informed the Court that a process server was seeking to locate her. Ms Carter, for the Plaintiff, assisted Mr Martin by informing him that searches that were being conducted revealed that Vanessa Coppola was appearing in a Local Court, and in fact had a solicitor appearing for her. 22Towards the end of the directions hearing on 28 June 2011, Mr Martin stated that a consent judgment had been entered against Mrs Coppola in August 2010, and he flagged the fact that there may be an application to set aside that consent judgment (page 6). He said he "was taking instructions in relation to that at the moment" and that, if there was an application, it could be dealt with by way of Motion. As I have mentioned, both Mr and Mrs Coppola were in Court at that time. 23No order was made at that time by me fixing a time for any such Motion to be filed. Despite some frustration on the part of the legal representatives for the Plaintiff and the Registrar General (which was understandable in the circumstances), I made certain orders and stood the matter over, as Mr Martin and his solicitors had only recently come into the matter. The proceedings were adjourned to 8 July 2011. 24On 8 July 2011, in response to the Court's inquiry, it was indicated that efforts were still being made to serve Vanessa Coppola, apparently without success (page 1). In due course, in response to an inquiry from the Court, Mr Martin indicated that his instructions at that point were to seek to proceed with an application to set aside the consent judgment (page 6). He confirmed there was no application on foot. I determined to allow Mr Martin an opportunity to file a Notice of Motion and any affidavit in support, if such an application was to be brought, and to give a return date for such a Motion. I made an order that any Notice of Motion and affidavit in support of an application to set aside the consent judgment between Mrs Coppola and the Plaintiff, were to be filed and served by 22 July 2011, with that Motion to be returnable before me on 5 August 2011. 25No Motion or affidavit was filed. 26At the commencement of proceedings on 5 August 2011, I noted that no such application had been filed and Mr Martin confirmed that this was the case (page 1). There was no indication that there was going to be an application to set aside the consent judgment. 27Clearly, Mrs Coppola's lawyers had sought time and flagged the prospect of such an application, but none was brought. 28At that point, as well, there was an indication that the Defendants may not press a claim at all against Vanessa Coppola (pages 2-3). Having regard to what may flow from this approach, further directions were given and the proceedings were once against stood over. 29The matter was adjourned until 18 August 2011, on which occasion Mr Martin of counsel again appeared. At this point, an affidavit of Elio Coppola sworn 4 August 2011 had been filed, and there was discussion concerning a then foreshadowed application for leave to withdraw an admission. 30In due course, I was not in a position to hear any application for leave to withdraw the admission. The matter returned to the Registrar's list and, on 23 September 2011, that application was heard by Walmsley AJ. On 7 November 2011, Walmsley AJ dismissed the application and ordered Elio Coppola to pay the costs of the Plaintiff and the Registrar General: Bank of Western Australia Limited v Coppola [2011] NSWSC 1326. 31The judgment of Walmsley AJ referred to the admission of Mr Coppola, which was sought to be withdrawn. It related to a Power of Attorney, said to have been given by Elio Coppola to Vanessa Coppola. The judgment of Walmsley AJ speaks for itself. His Honour declined the application. 32Importantly, at [38], Walmsley AJ said: "Although the defendant [Mr Coppola] in his existing pleading asserted his signatures on the mortgage and loan documents were forgeries, Mr Martin said that that pleading did not adequately put the position, which is really this: all mortgage and loan documents were executed under the power of attorney. Thus, Mr Martin submitted, the only factual issue on a hearing would be whether his client, Mr Coppola, had executed the power of attorney: on the cross-claim, the only evidence will be that of a forensic document examiner. As the proposed pleading deletes Vanessa Coppola as a party, the allegations against her of fraud will not be pursued. As to lay evidence, he said Mr Coppola would 'perhaps' put on an affidavit saying 'it is not my signature'. Further, no allegations of fraud would be ventilated, since the fraud claim against the first defendant's daughter would not be proceeding." 33Those statements made by counsel who, by that time had been acting for both Defendants (and relevantly Mr Coppola), are significant. 34At [46], Walmsley AJ noted that he accepted Mr Martin's submission that refusal of his application (to withdraw the admission) "is tantamount to an invitation to the Plaintiff to make a successful summary judgment application". His Honour observed "but that is the consequence of what I am satisfied is a lack of evidence to support the application". 35Walmsley AJ adjourned the matter to the Registrar's list for directions on 14 November 2011. 36The proceedings were adjourned again to the Registrar's list on 7 December 2011, at which time the Registrar was informed that the present Notices of Motion of the Plaintiff and the Registrar General were to be filed and served. Orders were made for filing and service of the Motions. The First Defendant (Mr Coppola) was directed to serve any evidence in response to any Motion by 20 January 2012. The Notices of Motion were made returnable on 3 February 2012. 37No evidence was served by Mr Coppola in accordance with the order of Registrar Bradford made on 7 December 2011. 38On 3 February 2012, Mr Santisi appeared (effectively as amicus) to indicate that new solicitors were coming into the matter for the Defendants, briefing him as counsel. The Registrar listed the matter for directions before me on 23 February 2012. 39On 23 February 2012, the matter came before me once again. Mr Santisi informed the Court that he and his solicitors had only recently come into the matter, and wished time to gather and put on material relevant to the Notices of Motion of the Plaintiff and the Registrar General. He also foreshadowed that there may be other applications, including an application for leave to set aside the consent judgment. 40The transcript of 23 February 2012 gives rise to a feeling of deja vu, by reference to the transcripts of 2011 hearings before me. 41The practical difficulty for lawyers coming into a matter such as this, as the fourth set of lawyers, is one which is understood professionally and I do not underestimate it. On the other hand, it is the Defendants, Elio Coppola and Maria Coppola, who are the parties to the litigation who have had obligations to the Court throughout, which were sought to be discharged by them and by their lawyers. They had at times, appeared in Court themselves, as I have mentioned. 42On 23 February 2012, I formed the view that the appropriate course was to fix a date for the hearing of the Registrar General's and Plaintiff's Notices of Motion. That hearing date was 29 March 2012. I determined that I would allow the Defendants an opportunity to put on material, despite a history of non-compliance with Court orders, the fact that an application to set aside the consent judgment had been raised and not made in 2011, and the fact that Mr Coppola had not complied with the order that required evidence to go on by 20 January 2012. Despite all those things, but recognising the fact that new lawyers were in the matter, I gave the Defendants until 4.00 pm on 14 March 2012 to put on material, indicating that strict compliance with that order was required (page 11). 43I made it clear that what was required was service of material, together with provision of the material to my Associate by email, for information purposes. I indicated that the matter would come before me for mention on 21 March 2012 to allow an assessment of what was happening with the hearing of the Notices of Motion, in the light of the steps which the Defendants took in compliance with the order of the Court made on 23 February 2012. 44Put shortly, the Defendants did not comply with that order. MFI3 reveals the provision of some material on the evening of 14 March 2012, more material provided on 15 March 2012 and more again on 20, 26, 27 and 28 March 2012. When the matter came before the Court on 21 March 2012, I made clear that I was not granting leave for anything to be done by the Defendants, given their repeated breaches of Court orders, but the material that was being put on would be the subject of such application as may be made at this hearing.

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