Ersh v The Greek Orthodox Parish and Community of Burwood and District Saint Nectarios Limited

Supreme Court of NSW|2015-03-06|Before: Bellew J

INTRODUCTION

By an amended summons filed pursuant to Part 50 of the Uniform Civil Procedure Rules ("the Rules") the plaintiff initially sought relief which was pleaded in the following terms: 1. Leave to appeal from the whole of the decision below. 2. An order that the order of the Local Court of NSW at Burwood on 24 June 2014 dismissing the Plaintiff's Statement of Claim in which judgment was entered for the Defendant, be set aside. 3. Appeal allowed and that verdict and judgment be entered for the appellant. 4. Alternatively, an order that the proceedings be remitted back for determination according to law. 5. Costs. 6. Such other order(s) as this Honourable Court thinks fit.
The summons was supported by two affidavits of Andrea Lee, solicitor, sworn 14 August 2014 and 27 February 2015, both of which were read without objection. No evidence was adduced by the defendant.
At the commencement of the hearing, the attention of the plaintiff's solicitor was drawn to the fact that the orders sought included an order granting leave to appeal. It was pointed out that the grounds as pleaded appeared to assert errors of law, in which case the plaintiff would have an appeal as of right, rather than by leave: Local Court Act 2007 s. 39. The matter having been raised, the plaintiff's solicitor indicated that order (i) in the summons was no longer sought.

THE PLAINTIFF'S CASE

The plaintiff brought proceedings in the Local Court for the recovery of a sum of $56,000.00 which was said to have been loaned by her to the defendant. It was the plaintiff's case (pleaded at para 3 of the Statement of Claim) that she made a series of advances to the defendant totalling $56,000.00 by way of a loan, on terms that the loan would be repayable on giving notice of 1 month.
The plaintiff relied upon a document dated 15 December 1993 as evidence of the loan. That document, on the letterhead of the Greek Orthodox Parish and Community of Burwood and District, was in the following terms: "We, Father Ezekiel Petritsis, Rector and Miss Evangeli Pendaki, President of the Parish and Community certify that we have received at different times during 1993 from Mrs Nina Ersh of 30 Paisley Road, Croydon, the amount of $56,000.00 (fifty six thousand dollars) to use for the needs of our Parish and Community. This loan is interest free and we undertake to re pay at one month notice to Mrs Ersh or in any other situation which may arise to her daughter Sylvia."
The document was signed by Father Ezekiel and Miss Pendaki.
The plaintiff pleaded (at para 5 of the Statement of Claim) that by letter dated 20 October 2012 she gave written notice seeking the return of the money. On that day, the plaintiff wrote to Grace Bishop Seraphime in (inter alia) the following terms: "When the Greek Church started to have financial problems father Archimandirte Ezekiel Petritsis and Evangeli Pendaki both approached and told me that they have financial difficulties and asked me if i would be able to lend them some money with interest free in the amount Fifty Six Thousand Dollars ($56,000.00). so i (sic) told them yes i (sic) would help them out." After that between 1994 and 2001 occasionally father Archimandrite Ezekiel Petritsis asked me if i (sic) could lend him for a short period of time between 12/18 months the amount between $1,000 to $5,000. i (sic) lent him some money and he did pay me back and he always thanked me for the loan. Father Archimandrite Ezekiel Petritsis said that when the church has the money ($56,000) he will pay me back all at once. … Your Grace Bishop Seraphime, my plea to you is that if you would kindly be able to settle this matter, if not then i (sic) will go to public and solicitor as i (sic) have proof now and am not a dishonest person. All my records were destroyed according to them."
On 15 November 2012 Bishop Seraphime replied in (inter alia) the following terms: "As you are from the Parish-Community of St Nectarios, I spoke to its President, Mr Syrios about your concerns. Mr Syrios claims that the money you had provided on loan to the Parish-Community has now been repaid to you. In addition, I discussed the matter, and shared your correspondence with Father John Kapetas as the current Parish Priest. It would be good for you to contact Father John also, and speak with him directly. … If the Administrative Committee of St Nectarios is convinced of the legitimacy of your claim, perhaps they would agree for instalments to be paid to you gradually. I only mention this as a suggestion. The Committee is the only group that can really assist you in this situation, and even Archdiocese does not have the power to force an opinion on the members. This is all I am able to suggest for the time being, as I do not know what else could assist you. I trust that a good and fair outcome will come about with God's assistance. Thanking you for bringing this to my attention, I look forward to hearing about any positive development, either from yourself or through Father John."

THE PLAINTIFF'S BANKRUPTCY

There is no issue that the plaintiff was declared bankrupt on 18 October 2005 and was discharged on 18 October 2008. The present proceedings were commenced on 1 August 2013 although the statement of claim itself was dated 11 July 2013. The plaintiff did not disclose the existence of the debt to her trustee, Mr Jones.
On 14 February 2014 Mr Jones wrote to the plaintiff's solicitor in the following terms (Ex 2): "Thank you for bringing proceedings involving the Greek Orthodox Church and Nina Ersh to my attention. I confirm that I am the Trustee of her Estate. By this letter, I hereby assign unconditionally to the Bankrupt the right and entitlement to bring the proceedings and any aspect of the cause of action, to the extent that any aspect of it may vest in me. I confirm that the Trustee takes no objection to Nina Ersh who is now a discharged Bankrupt carrying on the present proceedings. I emphasise that this action has not been initiated or continued by me. Under section 127 of the Act the vesting period for assets after the date of bankruptcy is 20 years."
That letter was accompanied by an undated document signed, on behalf of Mr Jones, which was in the following terms: "This notice of assignment is executed further to my letter of 14 February 2014 (attached). I, Michael Gregory Jones, Trustee in Bankruptcy of the Estate of Nina Ersh or Burwood, in the State of NSW, hereby subrogate and assign all of my rights in the sum of $56,000 (being the unpaid balance of a debt owing) to Nina Ersh and for the purposes of authorising Nina Ersh absolutely to continue on in taking any and all such recovery action or proceedings with respect to this amount against The Greek Orthodox Parish and Community of Burwood & District Saint Nectarios Limited, as she deems fit. I hereby acknowledge and agree that Nina Ersh shall be entitled to sue in her own name with respect to this sum, and I further say that I do not intend to participate in the proceedings, or be liable in any way for any costs associated with them concerning this sum. All costs of such action or proceedings are to be borne by Nina Ersh alone, and in her own capacity."
A further letter from Mr Jones to the plaintiff's solicitor, also dated 14 February 2014, was in the following terms: "I refer to my letter to you dated 14 February 2014 and confirm that your office will keep my office informed of the progress and outcome of the current proceedings, that any proceeds received by the plaintiff will be held by you in your Trust Account pending any arrangements or agreements between the Trustee and Ms Ersh as to what may constitute an equitable division of any monies received which will depend on the complexity of the proceedings, the efforts to which the Trustee has been saved in not having to have commenced the action himself and any reasons why the Bankrupt did not earlier urge her Trustee to carry on the action. I note that it may be appropriate if the claim is modest and the risk significant, that the proceeds be shared equally between the Trustee and the former Bankrupt after the payment of her costs, but at this time this is not an offer. It is merely a suggestion and will depend on such matters as wash out as due inquiry is made."

THE HEARING BEFORE THE MAGISTRATE

At the commencement of the hearing before the Magistrate there were preliminary discussions about the issues, in the course of which the following exchange took place between the Magistrate, Mr Levet of Counsel (who appeared for the defendant) and Mr Hall solicitor (who appeared for the plaintiff): "LEVET: Yes. Your Honour, can I say that, in my submission, the defence amounts to three things: (1) Limitation Act; (2) bankruptcy, doesn't actually own the cause of action; (3) they've got to prove basically putting them to proof on the balance of probabilities. HER HONOUR: Sure. LEVET: It's really simple. It can be dealt with - just bang, bang - on those bases without any prejudice. HER HONOUR: I think that's what Mr Hall is arguing. LEVET: Yes. HER HONOUR: It could be dealt with today on that basis, yes. You accept that that's essentially put to proof? HALL: Yes, your Honour. HER HONOUR: Except for the Trustee issue. LEVET: Yes, and the trustee issue, your Honour, I'd say the whole defence boils down to (a) it exceeds the limitation period; (b) they don't own the cause of action and can't own the cause of action if the trustee is still claiming an interest in it (emphasis added in each case).
Accordingly, it was made clear at the outset of the hearing that the defendant would argue that the notice seeking repayment of the loan was not valid. On the plaintiff's case it was the defendant's failure to repay the loan upon that notice being given which triggered the right to bring the proceedings.
An affidavit of the plaintiff of 6 November 2013 was read, and the plaintiff was cross-examined. She confirmed (T25 L13-25) the details of her bankruptcy as I have set them out above. She was then asked (commencing at T25 L27): "Q: After you commenced these proceedings you became aware that my client had taken the point that you had become bankrupt, didn't you? A: Yes. Q: You did that after you had commenced these proceedings? A: Yes. We requested, yes. Q: As a result of that you caused your solicitor to approach Jones Partners, the trustee in bankruptcy? A: Yes. Q: You sought and obtained a letter dated 14 February 2014 addressed to Hall Partners, assigning unconditionally to you the rights and entitlement to bring the proceedings. Is that correct? A: That's right. … Q: The assignment to you of the right to bring this case from the trustee, did you pay the trustee an amount of money for that assignment? A: I don't recall that."
The plaintiff was then cross-examined about Ex 2 (commencing at T26 L30): "Q: You caused your solicitor to get that letter from Jones partners, didn't you? A: Yes. Q: You did it because our side or my client took the point against that you no longer owned - - A: Yes. I remember that, yes. Q: So you had commenced these proceedings, my client had said that you didn't have the right to commence these proceedings and then your solicitor on your instructions obtained that letter from Jones Partners? A: That's right. Q: Is that right? A: Yes. Q: Was any money paid to Jones Partners for them to give you that letter. A: I don't think so, no. Q: You certainly didn't pay any did you? A: No. We didn't pay. We requested but we didn't pay any money."
At that point, counsel appearing for the defendant made an application that the proceedings be dismissed on the basis that at the time that the proceedings were commenced, the plaintiff's cause of action was in fact vested in the plaintiff's Trustee. That application was refused, and the cross-examination of the plaintiff continued.
The plaintiff confirmed (commencing at T50 L5) that she relied upon the document of 15 December 1993 (at [9] above) as the loan document. She further confirmed that she relied upon her letter of 20 October 2012 (at [11] above) as the document which determined the loan (T52 L29-33; T54 L15 and following).
The plaintiff then gave the following further evidence regarding her bankruptcy (commencing at T54 L30): "Q: Now, ma'am you had gone bankrupt in 2005? A: 2000 - yeah, 4 - 5, yes. Q: Okay. You had gone bankrupt in 2005 and you ceased to be bankrupt in 2008. A: Yeah, the release, yes. Q: Okay. And you had a - you now understand that any property that you owned at the date of your bankruptcy, passed to your trustee in Bankruptcy? A: That's correct. Q: And it was as a result of that that had been drawn to your attention, that you obtained through your solicitor the two letters from your trustee, dated 14 February? A: When, sorry? Q: 14 February this year, you obtained two letters from your trustee, one of which assigns to you a right to bring any action, you agree? A: Yes. Q: Now, it was October 2005 that you first went bankrupt, wasn't it? A: Yes. … Q: Okay. So, from that time onwards, the right to bring this action became owned by the trustee isn't it? A: Yes. Q: And it was the trustee that was entitled from that point onwards to make a demand for the repayment of the money, wasn't it? A: Yes."
The plaintiff confirmed (at T55 L38-40) that the Trustee had not made the demand for repayment because he did not know about the debt. She was then asked (commencing at T56 L13): "Q: The point I am making, you didn't - and I am not being critical of this - that in your written statement for affairs to your trustee, you didn't disclose the debt. A: That's right. Because I didn't have paper, I didn't show it to him, yes, yes. Q: And the trustee on your behalf, or the trustee did not make any demand for the repayment. A: Yes. Q: And you caused these proceedings to be filed in Court didn't you? A: That's correct. Q: And at the time that you caused these proceedings to be filed in Court, the trustee still owned the right to bring this action, didn't he? Do you agree? A: Yeah. Q: And the trustee owned any debts, didn't he? A: Yes, by the law. Yes. Q: And the trustee had the right to make a demand for the repayment of the debt, didn't he? A: Yes. Q: And as of the 14 February this year, when the trustee assigned to you the cause of action, or said that he had assigned to you the cause of action, the trustee had not made any demand for the repayment of the debt, had he? A: No, not yet, probably. Q: And the demands that you are relying on is a demand - you say, demand that you made to the bishop on 20 October 2012. A: I wrote him a letter, yes. Q: Ma'am, you weren't entitled at that point to make that demand, were you? A: Well, the recovery. Q: It was still owned by the trustee, wasn't it? A: In one sense yes, yes in a true sense, yes. Q: And ma'am, you have not since 14 February caused any demand to be made for the repayments of any monies have you? A: No."
At the conclusion of the evidence the Magistrate heard submissions from both parties. Counsel for the defendant encapsulated his position as follows (commencing at T65 L14): "… the fact of the matter is that before the 14th there was no right of anybody else other than the trustee to give a notice, a notice requiring payment. That notice was given, in which is pleaded, by the plaintiff in the statement of claim of 20 October 2012 is not a proper notice. It's simply that, it's invalid. It's given by her in respect to a debt that she doesn't own in that particular point in time. It follows from that that no cause of action has yet arisen. I use that word "has yet arisen" because there has been no valid notice. The plaintiff brings this cause of action at a time when it wasn't owned by the plaintiff, the cause of action, it brings it based on a notice that was given by somebody not entitled to give it, and is therefore defective. It follows, in my respectful submission that the plaintiff's claim must fail.
…
The condition of the agreement that is alleged to be breached, is that my client has not made payment after notice. If the notice is defective, no cause of action has yet arisen, the plaintiff's claim should be dismissed".

THE JUDGMENT OF THE MAGISTRATE

The Magistrate reserved her judgment which was delivered orally on 24 June 2014. Having set out the nature of the claim and the evidence in support of it, and having referred specifically to Ex 2, the Magistrate said (T2 L45-48): "At no time did the Trustee make a demand for the money. Indeed, he could not have done so because he was unaware of the debt until the defence alerted the plaintiff's solicitor to her bankruptcy status after the proceedings had commenced."
Having recounted the submissions of the parties, her Honour said (commencing at T3 L24): "On the findings it is clear from the evidence that the cause of action arose as a result of a letter signed by the plaintiff dated 20 October 2012. The plaintiff was cross-examined on the bankruptcy issue without objection and her evidence is clear until 14 February 2014 any right to bring an action vested in the Trustee in Bankruptcy. The conclusion is inescapable. The document which the plaintiff relies on the Statement of Claim dated 20 October 2012 is invalid. It was a demand she was not entitled to make as she did not own the debt at that time. Accordingly, the plaintiff's case must fail and I enter verdict for the defendant".

SUBMISSIONS OF THE PLAINTIFF

The plaintiff's solicitor expressly conceded in the course of the hearing that (to use his words) "at the date the demand was made (the plaintiff) did not have title". However he submitted that this did not have the effect of rendering the notice invalid. He submitted that by the time that the matter had progressed to hearing, the plaintiff had "procured the entitlement to bring proceedings in respect of the debt". In making these submissions, he sought to draw an analogy between the plaintiff's position and the provisions of s. 64 of the Civil Procedure Act 2005 (NSW) ("the CPA").
In subsequent written submissions, the plaintiff's solicitor cited various definitions of the word "notice" and submitted that the Magistrate had erred because: 1. the requirement in the loan agreement was "simply one that notice be given"; 2. a demand "is not deprived of its character by reason of the fact that the cause of action that supports it may have been defective when the demand was made"; 3. by the date of the hearing the plaintiff had "perfected her cause of action".
It was submitted that in these circumstances the Magistrate erred in determining that because of the plaintiff's prior bankruptcy no valid notice had been given.
Finally, it was submitted that the notice was valid because a person may establish a claim of right whenever that person asserts a claim that they honestly believe to be lawful, even though it may be unfounded in law or fact. The plaintiff's solicitor cited the decision in R v Bernhard [1938] 2 KB 264 in support of that proposition.

SUBMISSIONS OF THE DEFENDANT

Counsel for the defendant submitted that the appeal was fundamentally misconceived. Put simply, the defendant's position was that the notice on which the plaintiff relied was not one that she was entitled to give. In these circumstances, it was submitted that the notice was not effective in giving rise to a requirement on the part of the defendant to repay the loan.
Counsel for the defendant submitted that the pleading in para 5 of the statement of claim implicitly represented that the plaintiff was a person who was entitled to give the requisite notice. Counsel submitted that this had been squarely put in issue by the defendant and that in these circumstances it was incumbent upon the plaintiff to establish, on the balance of probabilities, that she had given a valid notice. It was submitted that she had failed to do so and that the Magistrate had not erred. It was submitted that the evidence clearly established that the plaintiff's cause of action relied upon a notice of demand that she had no standing to give.
In written submissions, counsel for the defendant also relied on the fact that at the conclusion of the hearing before me, the solicitor for the plaintiff expressly conceded (at T19 L28-32) that it was incumbent upon the plaintiff to give a valid notice. It was submitted that in light of this concession the plaintiff's case must necessarily fail.

CONSIDERATION AND CONCLUSION

As noted in [34] above the plaintiff's solicitor expressly accepted that it was fundamental to the plaintiff's case that she establish that the notice she gave seeking recovery of the loan money was valid. It follows that if the plaintiff cannot do so her appeal must fail.
I turn firstly to the relevant statutory provisions. Section 58 of the Bankruptcy Act 1966 (Cth) ("the BA") is in the following terms: 58 Vesting of property upon bankruptcy - general rule (1) Subject to this Act, where a debtor becomes a bankrupt: (a) the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and (b) after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
Section 5 of the BA defines "property" as: "property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property."
The debt said to be owing by the defendant to the plaintiff vested in the plaintiff's trustee upon her bankruptcy. The plaintiff's discharge from bankruptcy under s. 158 of the BA did not have the effect of re-vesting, in her, any property which had previously vested in her trustee: Pegler v Dale [1975] 1 NSWLR 265; Daemar v Industrial Commission of NSW and anor. [No. 2] (1990) 22 NSWLR 178.
I am unable to accept the submission made by the plaintiff's solicitor that the relevant requirement was "simply one that notice be given". It was necessarily implicit that such notice would be valid. To suggest otherwise would be contrary to common sense. The plaintiff was not in a position to give a valid notice to the defendant seeking repayment of the loan because the debt was not hers to recover. No error has been demonstrated in the Magistrate's findings in this regard.
I am also unable to accept the submission made by the plaintiff's solicitor that some relevant analogy is to be drawn between the present circumstances and the provisions of s. 64 of the CPA. That section deals with amendment of documents in proceedings. It says nothing at all about the validity of a notice of the kind presently under consideration.
Further, the decision in Bernhard (supra) does not assist the plaintiff. That case involved criminal proceedings brought under s. 30 of the Larceny Act 1916 (6 & 7 Geo. 5, c. 50) which created a charge of demanding money with menaces with intent to steal. The decision is authority for the proposition that an honest belief in a right to such money constitutes a good defence to a charge under that section. The plaintiff's solicitor relied, in particular, upon that part of the Court's judgment at 270 which was in the following terms:
"… a person has a claim of right, within the meaning of the section, if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact".
As I understood it, the plaintiff's solicitor relied upon this passage in support of the proposition that the plaintiff had a claim of right to the debt owing by the defendant and that as a consequence, the notice was valid. Such reliance is, in my view, misplaced. The decision in Bernhard involved a consideration of what might constitute a defence to a criminal charge under s. 30. It says nothing whatsoever about the validity of a notice such as the one issued by the plaintiff in the present case. I am prepared to accept that the plaintiff, at all times, honestly believed that her claim to the money was lawful. That does not affect the fact that at the time of the issue of the notice, the debt was not hers to recover and that, as a consequence, the notice she issued was not valid.
Finally, as I have previously noted, the plaintiff's solicitor submitted that by the date of the hearing before the Magistrate the plaintiff had "perfected her cause of action". That submission suggests that prior to the commencement of the proceedings the plaintiff's cause of action was in some way imperfect. In any event, to the extent that such submission amounted to the proposition that the correspondence from the trustee in Ex 2 cured what was an otherwise invalid notice, I am not able to accept it. The plaintiff may have been able to bring the proceedings with the consent of the trustee. However that consent did not cure the invalidity of the notice.

ORDERS

I make the following orders:
The proceedings are dismissed.
The plaintiff is to pay the defendant's costs as agreed or assessed.

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: 02 April 2015

& 7 Geo. 5, c. 50) Local Court Act 2007(NSW)

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