Commonwealth Bank of Australia v Makascheff

Supreme Court of NSW|2017-01-12|Before: Campbell J, Adamson J, Schmidt J

Solicitors: Gadens Lawyers (Plaintiff) File Number(s): 2016/00115260

EX TEMPORE JUDGMENT - Revised

I am called upon to decide an application for a stay of execution of a second Writ of Restitution issued in these proceedings in the Possession List. The Notice of Motion and affidavit in support were filed online overnight at 12.08am. The matter has come before me urgently because the appointment for the Sheriff to execute the writ is tomorrow at about 8:30am. The applicants for the stay, Mr and Mrs Maksacheff, have appeared by telephone with Mr Maksacheff acting as advocate and he assures me that he has the authority of his wife to speak for them both. The bank is represented by Mr Lewin, solicitor, and he has relied upon his affidavits of 25 October 2016 and 12 January 2017. It is necessary to set out briefly some of the history of this litigation.

Judicial review

Since Schmidt J's order, Mr Maksacheff has filed an application for judicial review of various decisions made in these proceedings, that is, the 2015 possession proceedings and also a Notice of Intention to Appeal from Schmidt J's decision. Justice Schmidt's decision is interlocutory and leave to appeal will be required. No summons seeking leave to appeal nor any summary of argument has been filed and it is impossible for me to weigh and assess the strength of any argument that might be advanced in support of the appeal. However, I have been taken by Mr Maksacheff to the terms of a notice under 78B of the Judiciary Act 1903 (Cth), and I will return to that matter in a moment.
Mr Maksacheff has some complaints about his paperwork in relation to the application for judicial review being referred to the Court of Appeal. However, it seems to me that the Court of Appeal must be the appropriate forum to consider whether there is any jurisdiction to review, in the exercise of a supervisory jurisdiction, decisions of judges of the Supreme Court at first instance. It is a settled principle of law, as I understand it, that the decisions of judges of superior courts of record like the Supreme Court of New South Wales are not amenable to judicial review, as opposed to being subject to appeal to the Court of Appeal. In any event, I am told by Mr Maksacheff that Mr Peter King of counsel has offered some advice in relation to that matter. He apparently appeared before the Registrar of the Court of Appeal on 14 December 2016 and the matter has been fixed for 6 February 2016 for Mr and Mrs Maksacheff to show cause why the application for judicial review should not be dismissed as incompetent.

Present application

The application for judicial review and notice of intention to appeal are the bases upon which Mr Maksacheff applies for a stay. That does need some further elaboration. As I have said, notwithstanding the evidence before me in August the debt is disputed. It seems to be disputed on the bases that unless the bank can point to books of accounts which demonstrate that in some way its cash in hand diminished at the time the money was advanced, that is, it suffered some loss, then there is no debt. I hope I have done the argument justice in summarising my understanding of it, but there are other matters which perhaps can be expanded somewhat by reference to the 78B Notice.
Now, the 78B Notice has been filed in relation to the 2016 proceedings, not the possession proceedings. Those proceedings are no longer pending given that I dismissed them generally under r 13.4 on 15 August 2016. It might be said, however, that the s 78B Notice gives some idea of the type of legal arguments that Mr and Mrs Maksacheff wish to ventilate in these proceedings.
The first argument is that the proceedings are within the exclusive original jurisdiction of the High Court of Australia, I think is how it is put, under s 75(i) of the Constitution, because they arise under a treaty. The treaty is said to be between Mr Maksacheff's extended family and the Wiradjuri people who Mr Maksacheff asserts have absolute ownership and title over the property the subject of these proceedings.
I am not persuaded that that legal contention is fairly arguable in the way it has been put. The land is obviously Torrens Title land and to the extent to which the Wiradjuri people may have had native title at one time, the land has long since been alienated. Moreover, the reference to a treaty in s 75 of the Constitution is to a treaty between nations, that is, between Australia and other sovereign states. It does not relate to private treaties between individuals who are subject to Australian law.
The next argument which really relates to what I decided in August is that the Bills of Exchange Act 1909 operated to discharge the mortgage by tender of a promissory note. I have dealt with that matter. There was no appeal or application for leave to appeal from my decision and I am of the view that that matter is not fairly arguable.
The next matter is a related one which raises a question about the jurisdiction of this court to interpret Federal Law. This court is invested with Federal jurisdiction under the terms of the Judiciary Act 1903 and, as a court forming part of the national system of courts established by the Constitution,Chapter 3, it has power to interpret the law, including Federal Law. In my respectful opinion that matter is not fairly arguable.
The fourth matter relates to whether the Supreme Court of New South Wales is a properly constituted court. In Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, the High Court established the principle that the Supreme Courts of the States are constitutional courts and are integral parts of the national judiciary. Again, with respect, I do not think that ground is fairly arguable.
Mr Maksacheff has also questioned whether orders of the court issued by the Registrar under the Court's seal are valid orders and he has referred to rules of courts other than this Court. Mr Lewin has drawn my attention to the provisions of r 36.12 of the Uniform Civil Procedure Rules 2005 (NSW) which persuade me that a sealed copy of a judgment provided by the Registrar is a judgment of the Court. To put it another way, the Registrar is duly authorised by the rules to issue copies of the Court's judgments.
For the reasons I gave in August, I am not satisfied that there is an arguable case in relation to whether or not Mr and Mrs Maksacheff are indebted to the bank.

Decision

The principles of law governing the grant of stays pending an appeal are relatively well understood. Basically, the applicant for the stay has to demonstrate a fairly arguable case on appeal and that the balance of convenience favours the grant of a stay. I have given my reasons for deciding that it has not been shown today that Mr and Mrs Maksacheff have a fairly arguable case on appeal. However, lest I am wrong about that, I will consider questions of the balance of convenience.
It is often said in matters of appeal that if it can be shown that the right of appeal asserted might be lost or rendered nugatory by the failure to grant a stay, then the balance of convenience favours the granting of a stay. But that is not the only consideration. It seems to me that the right of appeal would not be rendered nugatory because I am well satisfied that damages would be an adequate remedy if the purported right of appeal were made good contrary to my assessment of it.
Moreover, there has been no offer of any undertaking as to damages or any offer to pay the money due under the bank's judgment into court. Mr Maksacheff assures me he has financial backing and that if the bank is entitled, the amount due can be readily paid. However, I repeat, no offer to pay that money into court pending the appeal, in accordance with the principles discussed in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1971] HCA 64, has been made.
Then there is the intervention of the rights of a third party. There is a Contract of Sale and under that contract, given the orders of this Court, the bank has agreed to provide vacant possession. That cannot be given whilst Mr and Mrs Maksacheff remain in what, according to the orders of this Court, is unlawful possession of the property. The rights of the third parties cannot be assured if the writ is stayed and there is no offer, for instance, to make good any loss that they may suffer if the proposed appeal goes nowhere.
There is a further matter which I think tells against the grant of any stay and that is, of course, that the adverse possession of Mr and Mrs Maksacheff is: in breach of the orders of this Court; in breach of a judgment for possession in favour of the bank; in breach of the injunction made by Schmidt J in November; and in breach of the Writ of Possession that has also been issued. It sits ill that a party in breach of the court's orders should be given relief contrary to the interests of those disadvantaged by the breach; not only of the party entitled to judgment, but also of the third party purchasers whose rights have now intervened.
For those reasons I refuse the relief sought in the Notice of Motion and it is dismissed.

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: 01 February 2017

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (1)