Commonwealth Bank of Australia v Cahill & Anor [2025] VCC 1860

County Court of Victoria|2025-12-15

For the reasons set out above the Court will grant summary judgment in favour of the plaintiff.
CBA sought orders on this application in the following terms:

(a) The plaintiff recover possession from the defendants of the land contained in Lot 1 of the Plan of Subdivision 634345D being the land more particularly described in Certificate of Title Volume 11209 Folio 513 and known as Unit 1, 14 Viewbay Drive, Leopold in the State of Victoria.

(b) The defendants pay the plaintiff's costs of the proceeding, including this application, on a standard basis.

I certify that these 24 pages are a true copy of the judgment of His Honour Judge Wise delivered on 15 December 2025.

[5] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, per French CJ and Gummow J at [24].

Consumer Credit Protection Act 2009

Court Civil Procedure Rules 2018

The documents and submissions made by the defendants fall into a by now well-known quasi-philosophy known as the "sovereign citizen" movement. The guiding philosophy appears to be that these persons consider that they are not subject to the laws of the Commonwealth of Australia unless they have expressly "contracted" or consented to be so bound. This philosophy has no basis in law and has been rejected in many cases to date. All persons living under the protection of the Crown in right of the Commonwealth or State are, as a matter of law, subject to the laws of the Commonwealth. Any suggestion to the contrary is both dangerous and undermines the orderly arrangement of any society. The courts of this country will give no credence to such philosophy.
The documents and submissions filed by the defendants are informed by half-baked statements that contain traces of legal tit-bits scraped from current and ancient sources otherwise also referred to as "pseudo-law". They are legal gibberish and do not constitute proper statements of principles known to law.
In Re Coles Supermarkets Australia Pty Ltd [2022] VSC 438, Hetyey Asj said the following of such submissions:[10]

I adopt the analysis of John Dixon J in Stefan v McLachlan [2023] VSC 501, dealing with the fictional concept of the 'living man', stating that:

I also refer to AsJ Gobbo's decision in Nelson v Greenman & Anor [2024] VSC 704 in which her Honour gives a comprehensive treatment of the fallacies underlying the sovereign citizen and pseudo law movements. I concur with and adopt her Honour's treatment of the subject at paragraphs [53] - [78].

The mortgage itself is a very short and clear document. It contains a clear statement that the provisions of the registered MCP are incorporated into the mortgage between the CBA and the defendants.
The defendants contend in their affidavits and submissions that they were not provided with a copy of the MCP prior to signing the mortgage and that its terms were therefore not incorporated into any binding mortgage agreement. In his affidavit, Judge asserts that neither the executed mortgage nor the Consumer Credit Contract Schedule "show evidence of being bound to other documents," and that "Usual Terms and Conditions and Memorandum of Common Provisions were not part of the documents presented for consideration when allegedly signed". He further states that material terms were "withheld" and that full disclosure was not provided to permit informed consent.
The contemporaneous documentary record is inconsistent with those assertions. The further affidavit of Mr Deligiorgakis sworn 1 December 2025 exhibits the letters sent to each of the defendants on 13 June 2017, enclosing the full suite of loan documents that were sent to the defendants prior to them signing. The attached Document Checklist expressly lists the "Consumer Land Mortgage Memorandum of Provisions" and states: "You should read these terms prior to signing the Land Mortgage. By signing the Land Mortgage you acknowledge that you have read the terms". In the face of this evidence and in the absence of anything other than a bald assertion by the defendants that they did not receive a copy of the MCP prior to signing I do not consider that this defence has any reasonable prospect of success.
In addition, the mortgage executed by the defendants on 13 June 2017 contains an express clause incorporating the MCP. It states that "the mortgagor covenants with the mortgagee that the provisions of the Memorandum of Common Provisions (MCP) referred to in this mortgage and retained by the Registrar of Titles form part of this mortgage". The mortgage identifies MCP No. AA1754, being the MCP filed with Land Victoria on 22 June 2011. As the plaintiff submits, section 91B of the Transfer of Land Act 1958 (Vic) permits a mortgage to incorporate such a memorandum by reference, and there is no requirement for the mortgagor to sign or separately execute the MCP provided the mortgage itself is duly executed and sufficiently identifies the MCP in question.
Even accepting for present purposes the defendants' factual contention that they did not receive the MCP, a contention that is not supported by the objective documents, their argument could not succeed as a matter of law. The mortgage bears their signatures, is in the approved registrable form, and expressly incorporates MCP AA1754. The "signature rule," most recently reaffirmed in [2025] QCA 226, provides that a person who signs a contractual instrument is bound by its terms, whether or not they have read them. No pleaded or evidentiary basis exists in this case for any recognised exception to that rule, such as fraud, misrepresentation, or non est factum.

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