PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL –
SUMMARY JUDGMENT FOR
PLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSION
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL –SUMMARY JUDGMENT FORPLAINTIFF OR APPLICANT – FOR DEBT OR LIQUIDATED DEMAND OR FOR POSSESSIONOF LAND – where the plaintiffgranted mortgage-secured loans to thedefendant – where the defendant defaulted – where the plaintiffseeks recoveryof unpaid sums of the loans and possession of the mortgagedproperty – where the defendant defends the claim on the basis thattheplaintiff has no standing to enforce the instruments because the plaintiff has“securitised” them – whetherthe defendant has no realprospect of defending the claim and whether there is no need for a trialPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTIONOF DOCUMENTS– PRODUCTION AND INSPECTION OF DOCUMENTS – GENERAL MATTERS –SUBPOENAS – where a subpoena for
the production of documents was issued on
the defendant’s request – where the subpoena was issued prior to the
parties
undertaking disclosure/discovery – where the subpoena refers to 20
categories of documents – where the plaintiff applies
to have the subpoena
set aside – whether the subpoena is an abuse of process because it is, in
substance, a “fishing”
expedition
Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293, r 416
McLean v Westpac Banking Corporation [2012] WASCA 152, cited
Judgment (93 paragraphs)
[1]
[1] The plaintiff applies for summary judgment on its claim against the defendant pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and on the defendant's counterclaim pursuant to r 293. Pursuant to r 416, the plaintiff also applies for an order setting aside the subpoena for production issued on 7 June 2021 at the defendant's request.
[2] At the hearing of these applications, the defendant, who represented himself, made an oral application to strike out the plaintiff's statement of claim pursuant to r 171 of the UCPR. The defendant has neither filed an application seeking that relief nor written to the plaintiff pursuant to r 444 stating the basis for the strike out. The only notice of the defendant's intention to apply to strike out the plaintiff's statement of claim was contained in paragraph 10 of the defendant's written submissions filed on 22 June 2021, the day prior to the hearing. In any event, the plaintiff's application for summary judgment and the defendant's oral strike out application turn upon the same issue.
[3] The plaintiff's claim is for recovery of debts owed by the defendant via various loan facilities secured by a mortgage over real property called 'Old Glenroy Station'. The loan facilities were used by the defendant to conduct his farming business. The defendant does not dispute that the moneys are owed and that he granted a mortgage.[1] Rather, in his defence and counterclaim, the defendant alleges that the plaintiff has neither the legal nor equitable standing to seek relief because the plaintiff "sold and transferred to a trust its legal and equitable rights to mortgage deed ... soon after execution of the mortgage"[2] (First Issue). Additionally, the defendant asserts that the mortgage document exhibited to the affidavits of Mark Wayne Currey[3] and Martin David Byres[4] are different and, until the original mortgage document is produced, the Court cannot be satisfied that the plaintiff has any "legal and equitable rights as mortgagee"[5] (Second Issue).
[4] To support his allegation that the plaintiff has sold its legal and equitable rights to a trust, the defendant has sought to obtain evidence by serving a notice to admit facts[6] and requesting that a subpoena be issued to the proper officer of the plaintiff.[7]
[2]
[5] The relevant factual background is uncontentious and is set out in paragraphs 5 to 19 of the plaintiff's written submissions:[8]
[3]
"5. On or about 20 April 2013 the plaintiff, at the request of the defendant, provided him with a trading limit facility and two term loan facilities, as follows:[9]
[4]
(a) the trading limit facility was a $100,000 facility, repayable on 31 January 2014;[10]
[5]
(b) one term loan facility was a $100,000 facility, with repayments to be made progressively over the 24 month term;[11]
[6]
(c) the other term loan facility was a $2,785,000 facility, with repayments to be made progressively over the 60 month term.[12]
[7]
As security for the loans, the defendant (relevantly) granted the plaintiff a registered land mortgage over rural property known as 'Old Glenroy Station'.[13]
On or about 6 June 2014 the plaintiff, at the request of the defendant, increased the limit of the trading limit facility to $120,000, and extended the repayment date to 31 January 2015.[14]
By no later than May 2015 the defendant had defaulted under the loan agreements and the mortgage by failing to pay amounts required to be paid when due.[15]
On or about 5 August 2015 the plaintiff and the defendant entered into a written 'Deed of Forbearance', by which the defendant agreed:
[8]
(a) by cl 5.4, to pay his debts to the plaintiff in full by 30 June 2016;
[9]
(b) alternatively, if he was unable to repay those debts by that time, by cl 5.5 he was to hold an unconditional contract for the sale of 'Old Glenroy Station' on terms acceptable to the plaintiff.[16]
[10]
Importantly, by cl 3.1 of the deed the defendant acknowledged and agreed that:
[11]
(a) as at 3 July 2015 the plaintiff was entitled to recover pursuant to the facilities $3,060,721.00;
[12]
(b) he was liable to the plaintiff for that debt; and
[13]
(c) he was presently in default under the loan facilities and the mortgage security. By cl 3.2(c) the defendant also acknowledged and agreed that the mortgage secured the repayment of the debt.
[14]
Pursuant to cl 5.1 of the Deed of Forbearance, on or about 10 September 2015 the defendant accepted the plaintiff's offer to make available to him a replacement term loan facility.[17] The new loan facility replaced the two extant term loan facilities.[18]
The defendant failed to comply with cll 5.4 and 5.5 of the Deed of Forbearance.[19]
On or about 31 January 2017, the plaintiff and the defendant entered into a Supplementary Deed of Forbearance (Supplementary Deed of Forbearance).[20]
Pursuant to cll 2.4 and 1.2 of the Supplementary Deed of Forbearance, the defendant agreed and undertook to repay his debts to the plaintiff in full by 31 August 2017.[21] The date for repayment was subsequently extended on 11 August 2017 to 30 September 2017.[22]
Despite this, the defendant failed to repay his debts to the plaintiff by 30 September 2017.[23]
The plaintiff has demanded repayment of the facilities on and from 10 April 2019.[24] A notice of intention to sell the mortgaged property was sent on 28 May 2019[25] and advertised on 30 May 2019.[26] A notice requiring the defendant to vacate by 15 February 2021 was also sent on 30 October 2020.[27]
The defendant did not indicate he would comply with the notice to vacate, so on 2 December 2020 the plaintiff provided him with a notice that it would commence legal proceedings in the event he remained in possession of the mortgage property after 15 February 2021.[28] Again, the defendant ignored the notice.
As at 19 February 2021, the defendant was (and remains) indebted to the plaintiff:
[15]
(a) in the amount of $972,169.71 under the trading limit facility (as varied); and
[16]
(b) the amount of $3,062,000.00 under the term loan facility.[29]
[17]
He also remains in possession of 'Old Glenroy Station'.[30]"
[18]
[6] The plaintiff's application for summary judgment on its claim is brought pursuant to r 292 of the UCPR which provides:
[19]
"(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
[20]
(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and
[21]
(b) there is no need for a trial of the claim or the part of the claim;
[22]
the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate."
[23]
[7] The plaintiff's application for summary judgment on the defendant's counterclaim is brought pursuant to r 293 which provides:
[24]
"(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
[25]
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and
[26]
(b) there is no need for a trial of the claim or the part of the claim;
[27]
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate."
[28]
[8] Rules 292 and 293 are in similar terms. Summary judgment ought not be granted "unless it is clear that there is no real question to be tried".[31] The plaintiff has the onus of showing that it has a prima facie case entitling it to judgment on a summary basis. Once this has been established, the evidentiary onus shifts to the defendant.[32] Both limbs of rr 292 and 293 must be satisfied: the defendant must have no real prospect of success and there must be no need for a trial. These requirements are intended to ensure that the rules do not "dispense with the need for a trial where there are issues which should be investigated at the trial".[33]
[9] Mr Currey, who is a manager employed by the plaintiff, personally dealt with the defendant from approximately May 2015 to the end of 2016 or the beginning of 2017.[34] Mr Currey swears to the plaintiff lending money to the defendant pursuant to a trading limit facility and two term loan facilities, including subsequent variations to those facilities.[35] Mr Currey also provides evidence that the defendant granted the plaintiff a registered land mortgage over Old Glenroy Station as security for the loans.[36] He refers to the initial default by the defendant and the deeds of forbearance entered into in 2015 and 2017, as well as the further loan agreement entered into on 10 September 2015. Mr Currey swears to the plaintiff requesting its solicitors to make a demand on the defendant on 10 April 2019 and the defendant's failure to pay the amount outstanding under the mortgage.[37] Mr Currey identifies that, as at 19 February 2021, the defendant was indebted to the plaintiff in the sum of $972,169.71 under one loan agreement and the sum of $3,062,000 under another loan agreement, together with interest. He further states that the defendant continues to occupy and remain in possession of Old Glenroy Station.[38]
[10] As I have already observed, none of these facts are disputed by the defendant. Whilst the defendant's position regarding several allegations in the plaintiff's statement of claim is the subject of certain inconsistencies between his defence and his submissions, the case is ultimately one where there is no substantial factual dispute.
[29]
[11] The defendant contends that the plaintiff lacks standing "because the loan has been securitised".[39] At paragraph 28 of his defence, he pleads that, on or around May 2013, Elders Rural Bank Ltd (and, by extension, the plaintiff) initiated a securitisation process that resulted in the sale and assignment of its legal and equitable rights "to the Note and Mortgage".[40] References to the "Note" in the defendant's pleadings and submissions appear to be references to a promissory note. None of the security documents relied on by the plaintiff include any promissory note. The defendant pleads that the trust to which the mortgage was sold or assigned is the TORRENS Series 2014-1 Trust (Torrens Trust) which has Perpetual Trustee Company Ltd ABN 42 000 001 007 as trustee. Paragraph 28(b) of the defence defines "securitisation" as follows:
[30]
"Securitisation is the process by which a credit institution - either a bank or an independent mortgage provider (IMP)/originator, sells assets on its loan book - specifically, accounts receivable on its loan book - to another financial intermediary established specially for securitisation transactions, known as a special purpose vehicle (SPV) that is set up as a trust, which then funds its holdings by issuing asset‑backed securities to domestic and foreign investors governed by the Securities and Exchange Commission (SEC) of the USA."
[31]
[12] In paragraphs 28(j) and (k) of the defence, the defendant alleges that this process of securitisation is what Elders Rural Bank Ltd (and, by extension, the plaintiff) initiated on or around May 2013 regarding the defendant's "Note and Mortgage". The defendant further alleges that the plaintiff continues to keep the details of this process hidden from him.[41]
[13] In support of these allegations, the defendant has annexed to his affidavit filed 22 June 2021 two documents which are referred to as "Securitisation Audit Reports".[42] The first is a document entitled "CFLA Bloomberg Property Securitisation Analysis Report" which was prepared on 28 March 2020 by Certified Forensic Loan Auditors LLC (First Audit Report). It is accompanied by what is described as an "Affidavit of Facts" dated 31 March 2020 and sworn by Andrew Lehman, a citizen of the United States and the author of the First Audit Report. The second document is entitled "Bloomberg Property Securitisation Analysis Report" and is dated 19 May 2021 (Second Audit Report). It was prepared by "Fraud Stoppers PMA". The Second Audit Report is accompanied by an "Affidavit of Facts" dated 14 June 2021 and sworn by Steven W Bernstein, also a citizen of the United States and the author of the Second Audit Report.
[14] There are several deficiencies with the First and Second Audit Reports and the Affidavits of Fact and they do not support the defendant's allegation that the mortgage has been sold, transferred or assigned. At page 10 of the First Audit Report, the loans that are said to have been securitised are "[t]he Housing Loans [that] are sourced from BEN's general portfolio of fully verified residential Housing Loans". None of the loans to the defendant were "Housing Loans". Page 20 contains the following notation:
[32]
"On March 28 2020, I researched the Bloomberg online Data base at the request of Certified Forensic Loan Auditors, LLC on behalf of Wayne Prichard whose property address is noted herein above. The Loan Level Data search conducted using Bloomberg's terminal did not reveal matching characteristics based on the Total Sum Secured: $3,017,178.42; Origination Date: on 23 April 2013; Location of Property: Queensland, Australia; Property Type: 'Old Glenroy Station'."
[33]
[15] This notation suggests that the First Audit Report does not demonstrate that the mortgage granted by the defendant to the plaintiff has been sold, transferred or assigned. The author of the First Audit Report, however, states:
[34]
"Examiner did, however, locate a prospective securitisation TRUST that matches the characteristics for the possibility of securitizing this loan. This trust is described as the TORRENS Series 2014-1 Trust. The Seller and servicer is BENDIGO AND AUSTRALIA BANK LIMITED."
[35]
[16] Malcolm David Renney is the General Manager Credit, employed by the plaintiff. In his affidavit,[43] Mr Renney accepts that the plaintiff establishes trusts from time to time under the Torrens Master Trust Deed dated 9 June 1998 to securitise residential mortgages (solely) for funding and capital management purposes.[44] Mr Renney affirms that the Torrens Trust is a special purpose vehicle to which the plaintiff assigns only residential "Housing Loans" originated by the bank that are regulated under the National Consumer Credit Protection Act 2009 (Cth). This is to be contrasted with the loans made to the defendant which are over a rural property. As the plaintiff's Torrens Trust securitisation activities are restricted or limited to mortgages that secure residential housing loans regulated under the National Consumer Credit Protection Act, the loan transactions between the plaintiff and the defendant would not, according to Mr Renney, be the subject of any securitisation by the plaintiff. He affirms that, from his examination of the plaintiff's records, the loans made to the defendant have not been securitised in the Torrens Trust.
[17] The First Audit Report does not support the defendant's allegation that the mortgage he entered into was sold, transferred or assigned to the Trust; to the contrary, it is to the opposite effect.
[18] Similarly, the Affidavit of Facts of Andrew Lehman is also to the opposite effect to the defendant's pleaded case. In paragraph 7 of that document, Mr Lehman states that "Loan level detail was not identified in any publicly reporting trust". Further, Mr Lehman's Affidavit of Facts is apparently based on information provided by the defendant that he had signed a promissory note in favour of Elders Rural Bank on 27 May 2013.[45] As I have already observed, none of the security documents relied on by the plaintiff for the purposes of its summary judgment application include a promissory note.
[19] The Second Audit Report also refers to residential mortgage loans, and to the defendant executing a negotiable promissory note, of which there is no evidence. Mr Bernstein's "Affidavit of Facts" is in similar terms to Mr Lehman's. However, Mr Bernstein refers to a promissory note dated 23 April 2013 and signed by the defendant in favour of Elders Rural Bank. This is a different date to the promissory note referred to by Mr Lehman in paragraph 6 of his document, which is 27 May 2013. The plaintiff does not rely on any promissory note, whether dated 23 April 2013, 27 May 2013 or otherwise.
[36]
"... 'securitisation' seems to be something of the defence du jour among self-represented defendants resisting actions for possession by financial institutions_._ Its popularity is not, however, a reliable measure of its merit."[52]
[37]
[23] As to the issue of assignment, Newnes JA stated:
[38]
"In the absence of a legal assignment, the contention that the [bank] was not entitled to enforce the loan agreements or the mortgages must fail. As the legal title remained with the [bank], it was clearly entitled to do so."[53]
[39]
[24] For these reasons, I am of the view that the defendant has no real prospect of successfully defending the plaintiff's claim or establishing his counterclaim and there is no need for a trial of either. Noting that the defendant requested trial by jury, I also find that the defendant has no real prospect of having a jury, properly instructed, find that the plaintiff does not have standing to recover the moneys the subject of the loan agreements and enforce the mortgage.
[40]
[25] The second issue raised by the defendant is based on minor differences between the mortgage document exhibited to Mr Currey's affidavit[54] and the mortgage document exhibited to Mr Byres' affidavit.[55] The defendant's submission appears to be that he only signed one mortgage and that the plaintiff has exhibited copies of the same mortgage but with different notations. At the hearing, the defendant framed the issue as follows:
[41]
"They [the plaintiff] have not presented any evidence that they are the holder of the documents which would entitle them to take the sanction. This is why I've continuously requested the original mortgage document."[56]
[42]
[26] The defendant relies on two affidavits, one of his father, James Francis Prichard,[57] and his own affidavit filed 21 June 2021.[58] In his affidavit, the defendant swears that he signed and dated a document that he understood to be a mortgage in the presence of his father, but that he only signed one such document. The document he signed did not have any handwritten numbers or words inscribed on it. He states that the document shown as exhibit MDB-1 to Mr Byres' affidavit is not the document he executed. The affidavit of James Prichard is to similar effect. James Prichard, as a Commissioner for Declarations, affirms that he witnessed his son's signature on only one mortgage document. He affirms as follows:
[43]
"I would require a thorough and close inspection of the original document I witnessed and signed and that contains my wet ink signature, before I am able to attest to it being true and accurate."
[44]
[27] This issue is of no substance. The defendant has made no allegation of fraud or forgery. As correctly submitted by the plaintiff, the fact that one copy of the registered mortgage has handwritten annotations noting the registered dealing number and that it is a "duplicate" does not invalidate the instrument (or prove anything else).[59]
[45]
[28] The subpoena identifies 20 categories of documents. The subpoena has been issued in circumstances where the parties are yet to undertake disclosure of documents in the proceeding. It is generally undesirable to use a subpoena at a very early stage of litigation as a means of investigation.[60]
[29] In my view, the subpoena is a fishing exercise whereby the defendant seeks to support his allegation that the plaintiff securitised the mortgage and therefore does not have standing to recover the loans or enforce the mortgage. As submitted by the plaintiff, a subpoena to produce documents will be set aside if it represents an exercise in "fishing"; that is, where it is served not for the purpose of requiring production of specific documents or a specific class of documents which the person subpoenaed is reasonably expected to hold and which are likely to advance the issues in a party's case, but with the real intention of seeing what documents the parties served may have and whether the issuing party has a case at all.[61]
[30] Further, having decided that the plaintiff's application for summary judgment, both in relation to the claim and the defendant's counterclaim, should succeed, it follows that the subpoena issued at the request of the defendant should be set aside.
[46]
[31] Mr Chesterman for the plaintiff has provided a draft order. Order 1 seeks judgment for the plaintiff against the defendant in the sum of $4,108,083.46, including interest up to and including 23 June 2021 in the sum of $73,913.75. Interest will need to be recalculated under the relevant contractual terms up to the date of judgment, rather than 23 June 2021 which was the date of hearing.
[32] Further, as to the issue of costs, the plaintiff seeks an order that the defendant pay the plaintiff's costs of and incidental to the applications filed on 3 and 10 June 2021, and also the plaintiff's costs of the proceeding, pursuant to cl 3.7 of the Facility Terms which provides:
[47]
"The borrower must pay on demand all other costs, charges, duties and expenses including reasonable legal costs (on a full indemnity basis), ... which are incurred by the Bank in connection with:
[48]
(e) the enforcement and attempted enforcement or preservation by the Bank of its rights under any relevant document or any material document, including any legal recovery costs (such as mediation costs) and any costs associated with restructuring or amending the facilities; ..."
[49]
[33] The defendant was not in a position to make any submissions in relation to costs at the hearing. The Court will therefore hear the parties as to costs.
[50]
[34] The Court otherwise makes the following orders:
The plaintiff recover as against the defendant possession of that piece or parcel of land described as Lot 1 on Crown Plan MRY31, situated in the County of Murray, Parish of Morer, being the whole of the land contained in Title Reference 17665081.
The defendant's counterclaim filed on 28 April 2021 is dismissed.
The subpoena for production issued on 7 June 2021 upon the request of the defendant is set aside.
The Court will hear from the parties further as to the amount of the monetary judgment, including the calculation of interest, and as to costs.
[51]
[1] Defendant's Submissions, CD-19, paragraphs 30 and 45.
[30] Currey Affidavit, paragraph 35. See also the affidavit of Wayne Francis Prichard affirmed 20 June 2021, CD-16, which states his address as 'Old Glenroy Station', even though he denies this in his defence.
[33]Swain v Hillman [2001] 1 All ER 91, 95 (Lord Woolf MR), cited with approval in Coldham-Fussell v Commissioner of Taxation[2011] QCA 45, [100] (White JA).
[20] I accept the plaintiff's submission that there is no reliable or probative evidence that the loans by the plaintiff to the defendant were securitised in the Torrens Trust or any other trust.
[21] In any event, by cl 6.5 of the Torrens Trust deed,[48] the plaintiff is appointed "Servicer" of any "Housing Loans". By cl 6.5.3, the function of servicing those loans was vested in the plaintiff and it could do so "to the exclusion of the Trustee". As Servicer, the plaintiff also has the express power to institute litigation to recover amounts owing under the loan and to take other enforcement action.[49] As correctly submitted by the plaintiff, by the terms of the trust deed, the plaintiff would be expressly entitled to prosecute the present claim against the defendant if the loans were, in fact, sold, transferred or assigned to the Torrens Trust.[50] There is no evidence of any effective legal assignment by the plaintiff to some other party of its rights with respect to the loans and mortgage the subject of the present claim.
[22] The plaintiff refers to the decision of the Court of Appeal of Western Australia in McLean v Westpac Banking Corporation.[51] The Court was not dealing with a summary judgment application, but with an application to strike out an appeal from a trial judgment in favour of Westpac. Newnes JA (with whom Murphy JA agreed) referred to the defence of "securitisation" in the following terms: