Maksacheff v Commonwealth Bank of Australia

Judicial Review Summons

1. It is appropriate to deal with the Judicial Review Summons at the outset. In order to invoke the Supreme Court's jurisdiction to grant relief in the nature of prerogative relief pursuant to s 69 of the Supreme Court Act, it is necessary that applicants for such relief establish an error of law on the face of the record of the court below, or jurisdictional error.
2. The Judicial Review Summons sets out the following grounds: "1 The judiciary has failed to [acknowledge] answer the entire pleadings laid out in the applicants affidavits pursuant to ACTS INTERPRETATION ACT 1901 - SECT 25D and supported in SECT 69.4 of the SUPREME COURT ACT 1970 (NSW). 2 The introduction of new evidence and expert witnesses. 3 Applicants have repeatedly been denied due process and natural justice. 4 Possibility of orders pre-determined [judicial bias]. 5 Persons trading as a Justice in the above mentioned matter could be referred to parliament under section 72(ii) of the Constitution of the Commonwealth of Australia 1900 (UK) as failing to uphold Commonwealth laws."
3. As is apparent, the grounds referred to in the Judicial Review Summons are "non-specific". Having regard to the fact the Maksacheffs are litigants in person, some indulgence may have been extended to them if, for example, their affidavits in support of the judicial review application or their submissions identified a basis for judicial review.
4. However, no such indulgence can be granted when, as the Bank submitted, this Court has no power to grant the relief sought. The orders of judges of the Supreme Court the Judicial Review Summons seeks to impugn are not amenable to judicial review. [14] Mr Maksacheff did not make any submission to challenge that proposition. Accordingly, the Judicial Review Summons must be dismissed as incompetent.

Section 78B notice

1. We should also deal at this stage with a notice under s 78B of the Judiciary Act 1903 (Cth), which accompanied the Leave Summons and the draft notice of appeal. [15] There is no evidence that it has been served on Attorneys-General of the Commonwealth and of the States as required by s 78B of the Judiciary Act. That provision relevantly imposes constraints on a court continuing to hear a cause pending in a court of a State that involves a matter arising under the Commonwealth Constitution (Constitution) or involving its interpretation. However, before a court is so constrained, it must be established that the challenge does involve a matter arising under the Constitution. [16]
2. The s 78B notice refers to four so called "constitutional" issues. The first "issue" is said to arise under s 51(xxiiiA) of the Constitution and the presumption that Mr and Mrs Maksacheff are willing conscripts "of the New South Wales corporation". Section 51(xxiiiA) of the Constitution refers to the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services, benefits to students and family allowances. Nothing in the papers before the Court indicate that this provision has any relevance to the dispute, let alone what the "New South Wales corporation" is.
3. The second "issue" is said to relate to bills of exchange and promissory notes, alleging tender of payment of promissory notes in full and final satisfaction of alleged loan liabilities to the Bank. It is asserted that promissory notes are governed by the Bills of Exchange Act 1909 (Cth) and that a promissory note was tendered for payment in full and final satisfaction of the balance of the loan made by the Bank. The s 78B notice asserts that the issue of the validity of promissory notes as legal tender or currency is an issue requiring interpretation and clarification by "the appellate jurisdiction" of the High Court of Australia.
4. We deal with the Maksacheffs' promissory note submissions in detail below. Suffice to say at this stage that, in our view, this assertion is misconceived. Even if there were such an issue, this Court can exercise federal jurisdiction, (Constitution, s 77(iii)), including determining the application of the Bills of Exchange Act to the steps the Maksacheffs have taken using the promissory note, purported to discharge the amounts they owe the Bank.
5. The third "issue" is said to relate to the question of the scope, jurisdiction and authority of the Supreme Court of New South Wales and "of the corporate capacity in which its agents/officers commissioned under the Judicial Officers Act 1986 section 5, are able to interpret and make decisions of fact and law concerning 'The Australian Bills of Exchange Act 1909 (Cth)'". Section 5 of the Judicial Officers Act 1986 (NSW) is concerned with the constitution and functions of the Judicial Commission of New South Wales. It clearly has no bearing on any matter relevant to these proceedings.
6. The fourth "issue" is said to be the question of whether the Supreme Court of New South Wales is a properly constituted court under the Constitution. The contention appears to be that, when a court of the State is vested with "High Court jurisdiction" and that court is dealing with proceedings concerning laws and facts beyond the scope of its jurisdiction, the State court must follow, abide by and be subject to the Constitution and all Commonwealth laws and legislation, including laws relating to currency. It is asserted that those issues are "exclusive to the appellate jurisdiction of the original High Court of Australia". We reiterate that this Court can exercise federal jurisdiction.
7. In our view none of the matters in the s 78B notice identifies a matter arising under the Constitution which would prevent the Court hearing the Summary Dismissal Application.
8. The balance of these reasons deal with the Leave Summons.

Leave Summons

1. The application proceeded on the basis that the Court should first hear the Leave Summons as its success or otherwise effectively determined the Summary Dismissal Application.
2. We approach the leave application by reference to the principle that, generally speaking, it is only appropriate to grant leave to appeal in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment impugned, going beyond what is merely arguable. [17]
3. We also bear in mind the Bank's submission that, first, none of the documents filed (being the Leave Summons, draft notice of appeal, s 78B notice of any matter arising under the Constitution and supporting affidavit) identify any arguable grounds of appeal or any specific error of law. Secondly, the Bank submitted the draft notice of appeal fails to comply, even at a basic level, with the requirements of UCPR r 51.18, that the grounds relied on in support of the appeal be identified "briefly, but specifically".
4. The draft notice of appeal accompanying the Leave Summons seeks to raise the following grounds of appeal: "1. Errors at law outlined in the Notice of Motion 78B provided in this case. 2. Equity." It seeks the following seven orders: "1 Appeal allowed. 2 Stay of proceedings created by the orders of possession of land. 3 Stay of orders creating vexatious litigant. [18] 4 All individual matters listed be combined into the one proceeding. 5 Appellant seeks reinstatement and restitution of property. 6 Production of the original contracts. 7 The respondents pay the appellant's costs."
5. The written submissions filed on behalf of Mr and Mrs Maksacheff appear to seek three further orders as follows: "I. Immediate restoration of the [Property] with awarded compensation. II. A hearing be scheduled in a court of competent jurisdiction with at least three (3) Judges with formal Writs of Commission and/or a Jury whereas the Bank can show full discovery of the alleged debt. III. The Defendant pay the plaintiff's costs."
6. The written submissions also appear to list further "grounds for appeal and restoration of property". The grounds are non-specific, make multiple bare assertions, are lengthy and, save as referred to below, will not be reproduced in these reasons.
7. As is manifest, the basis upon which Mr and Mrs Maksacheff seek to impugn the orders in question is quite unclear. In what follows, we have sought to identify any intelligible submission which might warrant a grant of leave to appeal. In so doing, we have considered the material the Maksacheffs advanced in support of the Judicial Review Summons, the Leave Summons, the matters set out in relation to the s 78B notice and in Mr Maksacheff's speaking notes, a copy of which he provided to the Court. Insofar as the s 78B notice is concerned, having concluded it identifies no matter arising under the Constitution which would prevent the Court hearing the Summary Dismissal Application, we have also considered it by way of submission. We have sought to avoid duplicating the submissions advanced in support of each source document.
8. At the outset, we note that in the course of his oral submissions, Mr Maksacheff admitted that he had received the Bank's statement of claim. He also admitted that he had not filed a defence but, rather, a document he described as a "conditional acceptance under the original jurisdiction for proof of claim", a document which apparently stated "we do owe you the money if you can prove it". He accepted he had done so after receiving what he described as "average advice".
9. Having regard to the absence of a defence, not surprisingly, the Principal Registrar of the Supreme Court entered the default judgment in favour of the Bank on 14 July 2015. As indicated above, the first time Mr and Mrs Maksacheff sought to set aside the default judgment was by ex parte application in January 2016. The second was before Schmidt J in October 2016.
10. The Bank also submitted that the Leave Summons is out of time with respect to all decisions the subject of it, save, possibly, for Schmidt J's decision.
11. Bearing in mind that the Maksacheffs' principal attack is on the default judgment, this submission is not determinative. Rules 36.16(2)(a) and (3A) of the UCPR enable a court to set aside or vary a default judgment after it has been entered if the application for such relief is filed within 14 days after the default judgment is entered. However, despite the apparently mandatory language of UCPR r 36.16(3C), a default judgment such as in the present case, may be set aside at any time. Delay in application will be relevant to the exercise of the Court's discretion but not to its power. [19] On such an application, the defendant "must show that he or she has a bona fide defence." [20] If the Maksacheffs could demonstrate such a defence to this Court's satisfaction, then, subject to such matters as delay upon which the Bank also relies, that could demonstrate they had suffered injustice in failing on either occasion they sought to set aside the default judgment.
12. Mr Maksacheff advances three fundamental submissions to contest the default judgment. First, he contests the proposition that he and Mrs Maksacheff borrowed money from the Bank (No Loan Argument). Secondly, if they did, he submits the Principal Registrar had no power to "hand down" the default judgment (Power Argument). Thirdly, he contends that the Bank has been repaid (Repayment Argument). Mr Maksacheff also raises a number of what we will term miscellaneous submissions, none of which, even if arguably correct, could warrant setting aside the default judgment (Miscellaneous Submissions).
13. It is convenient first to deal with the Power Argument as the No Loan and Repayment arguments are, in a broad sense, inter-related, albeit, as is apparent, contradictory.

Power Argument

1. In his written submissions, Mr Maksacheff contended that the Principal Registrar had no authority to make judicial decisions and therefore had no power to "hand down" the default judgment. [21]
2. Clearly, the Principal Registrar did have authority to issue the default judgment. Pursuant to UCPR r 16.4 and subject to UCPR r 36.8, if a plaintiff's claim against a defendant in default is for possession of land only, judgment may be given for possession of land, as against the defendant, and for costs.
3. Pursuant to s 119 of the Supreme Court Act, "[t]here are such registrars as may be appointed from time to time, including a Principal Registrar of the Court, a Registrar of the Court of Appeal, and a Registrar of each Division." Pursuant to s 121(2), "[a]n officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer."
4. Pursuant to s 12 of the Civil Procedure Act 2005 (NSW), "[w]ithout limiting any other functions he or she may exercise, a registrar or other officer of any court may exercise any function conferred on such an officer by the uniform rules."
5. Pursuant to s 13 of the Civil Procedure Act, a senior judicial officer of any court may, by instrument in writing, direct that any function of the court under the Civil Procedure Act or any other Act or law in respect of which the court has jurisdiction be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument. [22]
6. On 26 November 2012, the Chief Justice directed that a registrar of the Supreme Court (including a person acting as the registrar or as a deputy to the registrar) may exercise the functions of the Supreme Court as stated in Pts 1 to 3 of the Schedule of Delegations to Registrars (Schedule). Part 1 of the Schedule provides that a registrar may exercise the functions of the Court with respect to default judgments under UCPR, Pt 16 (Default judgment). That necessarily includes the exercise of the power to enter default judgment on a claim for possession of land under UCPR r 16.4. Accordingly, the default judgment dated 14 July 2015 was validly made by a registrar with authority and power to do so.
7. In his affidavit of 9 December 2016, filed on 10 December 2016, in support of the Judicial Review Summons, Mr Maksacheff also makes complaints about the manner in which judgments were entered and the absence of orders signed by the judges in question. Mr Maksacheff claims that affidavits sworn by officers of the Bank and solicitors acting for the Bank were not "legitimate" because they failed to state the true place of abode of the deponents. He also complains that the affidavits did not comply with the Rules of the Federal Court of Australia in circumstances where the Supreme Court was exercising federal jurisdiction. Once again, those complaints are without foundation.
8. Mr and Mrs Maksacheff's written submissions also assert that there were various deficiencies in the Bank's supporting affidavits and the judgments of the courts below, to the effect that the differing languages and fonts appearing in the judgments proved "deception by this arbitral tribunal that appears not a Court of competent jurisdiction or have subject matter jurisdiction" [sic, as in original] and that the pro-forma "Judgement/Order" documents contain "unreadable hidden languages, which appears to be dog latin/Glossa" and are illegitimate for want of a signature of a Supreme Court Justice. As will be manifest, these assertions are nonsensical.
9. Mr and Mrs Maksacheff submit that there was a lack of authority on the part of both the Registrar, in handing down the initial writ of possession, and on the part of the Bank's agents, in signing a contract, resulting in fraud. They also contend that there was "clear evidence of misconduct, bias, conflict of interest, fraud and deception by the Bank and the Court". Various Latin maxims are cited as explaining and supporting these allegations.
10. Mr Maksacheff also relied on written submissions dated 21 March 2017 and, at the hearing on 12 April 2017, provided the Court with a copy of his speaking notes. Neither appears to advance comprehensible claims. We reproduce them, not to imbue them with any substance, but, rather, to illustrate their nonsensical nature.
11. The submissions of 21 March 2017 assert that "the whole process ab initio" was defective. They assert that no affidavits relied on by the Bank met or satisfied "a need", indicating that no affidavits relied on by the Bank were valid. The submissions also refer to "symbolism" and the use of "hidden language" by the Bank, which is alleged to be an attempt to deceive Mr and Mrs Maksacheff and to constitute fraud.
12. The submissions also complain that the affidavits relied on by Mr and Mrs Maksacheff had not been rebutted and that they were the only "sufficient affidavits" in the proceedings. The submissions assert that Mr and Mrs Maksacheff have not seen any properly enacted law or legislation by which the Bank has a right over the Property, other than by breach of contract.
13. Next, the submissions refer to the right of "the aggrieved parties" to exhaust all avenues, which are said to include the High Court of Australia and the International Criminal Court. Therefore, the submissions assert, there is no reason to deny Mr and Mrs Maksacheff the restoration of the Property and the Property should be returned to them as "the aggrieved parties" immediately.
14. None of these submissions identify any intelligible reason for impugning the orders made in the various proceedings the Maksacheffs seek to challenge.
15. Mr Maksacheff's speaking notes begin with the expression of a wish to have the proceedings heard by a jury. Curiously, reference is also made to the Trade Marks Act 1995 (Cth) and the "Moral Rights Act 2007". We are unaware of any Australian legislation bearing this name or date. While the reference to the latter is quite obscure, Mr Maksacheff appears to be complaining about his and Mrs Maksacheff's signatures on the Mortgage to the Bank.
16. Next, the speaking notes assert that, because banking matters are within Commonwealth jurisdiction, the proceedings fall under the law of the Commonwealth as a consequence of which the Supreme Court must apply a "Commonwealth perspective" and the State should not be restricted to "their own procedures". That assertion is incomprehensible.
17. The "major point" raised in the speaking notes is that the Bank is an "officer" of the Reserve Bank of Australia (RBA) and sources its money from the RBA under an agreement with the Treasurer, which the Commonwealth guarantees. Reference is then made to provisions of the Reserve Bank Act 1959 (Cth) that appear to have no bearing on the dispute between the Bank and Mr and Mrs Maksacheff, albeit it is possibly intended to be relevant to the first promissory note which we consider below.
18. The speaking notes end by asserting that there are "very obvious errors within this whole process". References are made to a report to the Australian Federal Police and to the Copyright Act 1968 (Cth) in relation to the signatures of Mr and Mrs Maksacheff on the "original mortgage contract", which are said to be "original works", presumably harking back to the reference to the Trade Marks Act. [23]

No Loan Argument

1. Mr Maksacheff submitted that he and Mrs Maksacheff have persistently requested the Bank to produce documents disclosing where the Bank obtained the money that it said it lent to them, proving that a debt is owed and the identity of the actual creditor. He made the manifestly absurd assertion that the Maksacheffs' signatures on the loan application to the Bank, which they also contend was a "promissory note", created the value of that loan making them, not the Bank, creditors. In another incongruous assertion, he contended that the matter is one for "the Treasury Department" (that is to say of the Australian Government), since it is outside the scope of the Bank to reject a promissory note. [24]
2. The Maksacheffs' submission also appears to be that the Bank then traded the promissory note, obtaining value for it. He submits that the Bank has failed to establish that it has not sold, traded or profited from a negotiable instrument consisting of the mortgage agreement between Mr and Mrs Maksacheff, on the one hand, and the Bank, on the other, and that the Bank has not proved that its "trading on this security has not fully discharged the subject mortgage". Mr Maksacheff also argued that Mrs Maksacheff and he had attempted on numerous occasions to obtain from the Bank documentary "proof" concerning the subsequent value that the Bank had received from trading the promissory note but none had been forthcoming.
3. It appears that in response to the Maksacheffs' various requests for documents, by letter dated 10 April 2017 Mr Lewin, the Bank's solicitor, advised them that the Bank was under no obligation to respond to their questions.
4. Mr Maksacheff referred to the Code of Banking Practice and Code Compliance Monitoring Committee Mandate (the Code) of the Australian Bankers Association, a voluntary code of conduct which sets standards of good banking practice. According to Mr Maksacheff, a representative from the Bank confirmed that the Code applies to the Bank. In his oral submissions, Mr Maksacheff complained that Mr Lewin's letter demonstrated that the Bank had not acted in accordance with cl 3 of the Code, which includes a commitment to "promote better informed decisions about our banking services: (i) by providing effective disclosure of information [and] (ii) by explaining … when asked, the contents of brochures and other written information about banking services". Whether or not that is the case, Mr Maksacheff said nothing which demonstrates that any failure to so act can be relied upon to challenge any liability of the Maksacheffs to the Bank for the borrowings the subject of the default judgment.
5. Mr Maksacheff also submitted, somewhat remarkably, that without full disclosure by the Bank, he is uncertain as to whether a loan was actually made, notwithstanding that he and Mrs Maksacheff actually completed a loan application. According to Mr Maksacheff, until he is provided with documentation proving that the Bank is the creditor, he will maintain his position that he and Mrs Maksacheff are the creditors.
6. In his affidavit of 9 December 2016, Mr Maksacheff also referred to the alleged failure on the part of the Bank to provide proof of the debt owing by Mr and Mrs Maksacheff, on this occasion referring to "the UNIDROIT Principals [sic] (International Contract Law)". The affidavit seeks to rely on a principle that a party to a contract who reasonably believes that there will be a fundamental non-performance by the other party may demand adequate assurance of due performance and may meanwhile withhold its own performance and that, where such assurance is not provided within a reasonable time, the party demanding it may terminate the contract. [25]
7. Mr Maksacheff asserts that adequate assurance of due performance was demanded from the Bank, the Bank "refused, failed and neglected to respond" and notice of termination has been given to the Bank. It is quite unclear what it is that Mr Maksacheff claims to have terminated. The suggestion that he could avoid liability to repay an advance by giving such a notice is completely without foundation.
8. When challenged in the course of oral argument as to whether there was any dispute that the Bank had lent money, Mr Maksacheff said that he doubted that he and his wife in fact "borrowed" money or received a loan from the Bank. His submissions descended into incomprehensible jargon concerning the loan agreement and the failure of the Bank to answer the request for "adequate assurance of due performance".
9. After much further questioning, Mr Maksacheff ultimately accepted that he and his wife did receive money from either the Bank or the RBA and that, if the money initially belonged to the Bank or the RBA, it should be repaid. However, Mr Maksacheff submitted that the Bank did not have the money that was credited to him and Mrs Maksacheff in the first place and repeated the submission that, despite persistent requests, the Bank had not provided documentation as proof of Mr and Mrs Maksacheff having that amount.
10. Indeed, as we have mentioned, Mr Maksacheff submitted, their signatures on "originating document(s)", being the Mortgage the Bank had enforced and/or the loan agreement, created the value in those documents, thus making them the Bank's creditors. They contended this document or documents somehow constituted what we will call the first promissory note to which we now turn in detail.

First promissory note

1. This submission appears to rely in part upon matters also propounded in relation to the No Loan Argument. Some degree of repetition is therefore inevitable.
2. In this respect, Mr Maksacheff submitted that the Mortgage and/or loan agreement was a promissory note, being a promise to pay, and that, once it was deposited as an asset into the Bank, so-called "credits" were created. Accordingly, it was the signatures of Mr and Mrs Maksacheff that created the value in the "originating document", being the Mortgage and/or loan agreement. Despite, as we repeat, the manifest absurdity of this proposition, but to seek to set out Mr Maksacheff's submissions, we will adopt the nomenclature "first promissory note", to describe the nature of the instrument, or possibly instruments, he asserts were thus created.
3. Mr Maksacheff asserted that, under a Commonwealth guarantee, the value of that originating document is guaranteed by the Treasurer for the RBA, or the RBA itself, to honour. Mr Maksacheff submitted that the capital provided for the loan operates under the rules of "fractional reserve banking", permitting the Bank to hold a small percentage as reserves, with the rest being "created" and provided by the RBA under the Commonwealth guarantee. He submitted that to "create" the additional capital, the Bank as an officer of the RBA, would have to send in a request form, rendering them mere agents and officers thereof. That, Mr Maksacheff said, was deceitful as he and Mrs Maksacheff were led to believe that the Bank had the money or currency when in fact they were agents for either: "a) an agency that could give us the money, meaning they were only middlemen and brokers, or b) they deceptively created a contract for investors".
4. Mr Maksacheff submitted that the Bank had traded the first promissory note and, by doing so, obtained value for it. This he said was revealed by a so-called "Certified Forensic Loan Auditors 42 Report" to which he referred on several occasions during the hearing. The report was not before this Court, but was apparently before Campbell J in the Damages Proceedings. Campbell J summarised the report as "an affidavit of a person named Michael Carrigan who describes himself as a certified mortgage securitisation auditor and a subscriber of the Bloomberg Professional Service." [26] His Honour characterised the evidence as having been put forward as expert evidence, supposedly going to the question of whether the debt of Mr and Mrs Maksacheff to the Bank had been securitised, which his Honour took as a reference to its assignment by the Bank to another person. Campbell J found that Mr Carrigan's "evidence" did not establish that the loan secured by the Mortgage had been securitised and that any claim based upon the concept of securitisation lacked any factual basis. [27]
5. Mr Maksacheff did not advance any argument which would challenge his Honour's analysis. In our view it is as absurd as is manifest from its repetition in these reasons. The No Loan Argument affords no basis upon which the default judgment could be set aside.

Second and third promissory notes

1. Secondly, Mr and Mrs Maksacheff submit that, by a second, and possibly a third, promissory note, they discharged their liability to the Bank. This submission goes both to their attempt to set aside the default judgment, but also to Campbell J's summary dismissal of the Damages Proceedings in August 2016.
2. In this respect, Mr Maksacheff submitted that, pursuant to a "contract" that was formed with the Bank when the Maksacheffs issued the Bank with a bundle of documents, which included a document styled "Notice of tender for payment" referring to the delivery of the second promissory note in discharge of the Mortgage, acknowledging and apologising for all previous "dishonours" and a demand that, if the Bank rejected the promissory note, the Bank must return it to Mr and Mrs Maksacheff within three days, otherwise it would be deemed that the Bank had "accepted the notes as sufficient consideration to satisfy or discharge all liabilities" to the Bank. The conduct that allegedly amounted to acceptance of the promissory note was the failure to return, or reject, the documentation within the time allowed in the offer and the failure to present the promissory note for payment in accordance with its terms. They also say that failure to respond to that demand for payment amounted to a breach of contract on the part of the Bank sounding in damages which formed the basis of the Damages Proceedings that were summarily dismissed by Campbell J. [28]
3. The purported promissory note is dated 27 November 2015. It appears to have the get-up of a legal document, is headed "Promissory note", identifies Mr Maksacheff as the "maker", has a lengthy number, the initials in which "PNDJM" are clearly the combination of the first initial of the words "Promissory note" and Mr Maksacheff's name, followed by a long string of numbers. It directs an unidentified person to pay to the Bank the sum of $700,000. It states it is "redeemable on demand" at an address in Orange "at 10:35 hours without; let, delay, hindrance or ado, on [t]he seventh day of December AD 2015". It bears what appears to be a wax circular seal, with the words "Certified Promissory Note Bill of Exchange" around the circumference, under which there is provision for Mr Maksacheff to sign against the word "agent". In the fine print at the bottom of the document appear the words "Memo: Issued pursuant to PL 73-10 (See H.J.R. 192 dated June 5, 1933 [29] ) and/or its Australian equivalent, The Financial Emergencies Acts". [30] Mr Maksacheff identifies this as the second promissory note, the first presumably being that he contended was created by execution of the Mortgage and/or loan agreement.
4. The Bank, by its solicitor Mr Lewin, informed Mr and Mrs Maksacheff that the second promissory note had been rejected. As we have mentioned, Mr Maksacheff disputed the Bank's ability to do so. In his written submissions, supplemented by his speaking notes, he asserted that the ability to reject the second promissory note was "well outside" the scope of the Bank's power, as the "power of rejection lies with the RBA and treasury". By way of justification, Mr Maksacheff submitted that, pursuant to the Constitution, only the Commonwealth has the power to create money and, pursuant to a private agreement between the Commonwealth and the RBA, the RBA has the power to issue notes. By rejecting the second promissory note in favour of the RBA's note, it was said that Mr and Mrs Maksacheff were the victims of discrimination against their "constitutional right in favour of a private agreement" to which they are not a party.
5. The third "Promissory Note" has the same get-up as the second, but is dated 21 December 2015, is in the amount of $608,427.40 (which it will be recalled is the amount of the judgment debt) and provides a different address in Orange and a different date by which it is to be redeemed. In his oral submissions, Mr Maksacheff said this document was "the actual judgment order, that was actually entered into the Court." There is no evidence that this document has ever been received by the Court. In so saying, we do not accept that it could have been, or that it could have any legal force to effect payment of the Maksacheffs' liability to the Bank.
6. Mr Maksacheff asserted that, as there were no terms as to payment in their contract with the Bank, they were permitted to pay by way of promissory note, which, he said, was recognised as Australian currency pursuant to s 39 of the Banking Act 1959 (Cth), a provision which confers power to make regulations. It is not possible to discern the relevance of that provision.
7. The Maksacheffs' submissions concerning the second (and possibly the third) promissory note have been rejected both in the Possession Proceedings and in the Damages Proceedings.
8. In the aspect of the Possession Proceedings heard by Bellew J, it appears from his Honour's reference in his ex tempore reasons to "securitisation", that Mr Maksacheff sought to advance the No Loan Argument. His Honour found that there was no serious issue to be tried in relation to this assertion. His Honour also concluded that the balance of convenience was against the making of orders sought by Mr and Mrs Maksacheff staying the sale of the property. [31] In our view, no intelligible contentions have been advanced to suggest that in so deciding, Bellew J erred at all, let alone in a manner which would attract leave to appeal.
9. As we have said, the Maksacheffs also initiated Damages Proceedings claiming from the Bank, amongst other things, liquidated damages alleged to be specified in the contract that Mr Maksacheff says was made with the Bank. The contract was allegedly formed by an offer from Mr and Mrs Maksacheff made on 30 November 2015, when a number of documents were delivered to the Bank, and the Bank's acceptance of that offer by its conduct. [32]
10. As indicated above, the Bank made an application for summary dismissal of the Damages Proceedings. Campbell J heard the application, during which Mr Maksacheff contended that his indebtedness under the Mortgage had been discharged. His submissions appeared to be a combination of those advanced in support of the No Loan Argument and the Repayment Argument.
11. Mr Maksacheff argued if his and Mrs Maksacheff's signatures initially created the value in the loan, then their signatures should be accepted on the second promissory note and the Bank's rejection of both the note and the demand was considered "as sufficient consideration to satisfy or discharge all liabilities" owed to the Bank. [33]
12. Campbell J rejected that argument. His Honour considered that the delivery of the second promissory note to the Bank could not of itself discharge any liability of Mr and Mrs Maksacheff as borrowers under the Mortgage and loan agreement. His Honour noted that, if anything, the second promissory note created a new obligation to pay, on the date and at the time and place it specified, had the Bank presented the note. The failure by the Bank to present the note for payment discharged Mr and Mrs Maksacheff from any liability on the note, [34] but not from their liability under the Mortgage or loan agreement. [35] His Honour concluded that the Damages Proceedings had no prospects of success whatsoever and must be summarily dismissed. [36]
13. In our view the Maksacheffs have not identified any issue of principle, question of public importance or demonstrated that they have suffered any injustice in respect of Campbell J's dismissal of the Damages Proceedings.

Miscellaneous Submissions

1. Mr Maksacheff raises a number of miscellaneous submissions with which we deal briefly as, even if correct, none could warrant setting aside the default judgment.

Mortgage insurance

1. Mr Maksacheff complains that a premium was paid for mortgage insurance and that the Bank has not established material facts or evidence that shows that any loan has not been paid in full by means of the mortgage insurance. There is no evidence as to the terms of any such mortgage insurance or any suggestion that the Bank has received any such payment.

Copyright

1. Mr Maksacheff submitted that, pursuant to the Copyright Act, the following two documents are "original works": "1. original mortgage contract bearing the two original works of the principal party[s] 2. Copyrighted artwork that remains as a fixture to the property, being the constructed figure in the house yard". He asserted that the signatures on the original loan and promissory notes would similarly constitute "original works". The argument, to which we made reference above at [63], was not developed. Mr Maksacheff could not identify who had infringed the copyright in the signatures, or how, assuming they could properly be characterised as a "work" for the purposes of the Copyright Act, nor how any of these assertions could prevent the Bank exercising its rights as mortgagee of the property.

Application of UNIDROIT principles

1. Mr Maksacheff submitted that the UNIDROIT Principles on contract interpretation are relevant to the relationship with the Bank. Reference is made to that submission above at [69]. It is incomprehensible.

Other matters

1. Elsewhere in either Mr Maksacheff's various affidavits or submissions references are scattered, apparently randomly, to various legislative provisions such as s 109 of the Constitution or the Rules of the Supreme Court of the Australian Capital Territory, and various Latin maxims. We have not sought to identify any rational connection between those references and the Maksacheffs' submissions as such an exercise would clearly be futile. To the extent the Judicial Review Summons contends the Maksacheffs have been denied due process and natural justice, nothing in Mr Maksacheff's submissions has identified any such denial.

Conclusion

1. Courts have an overriding duty to ensure that a trial is fair. In the context of an unrepresented litigant, that requires that a person does not suffer a disadvantage from exercising the litigant's right to be self-represented. However, even reading the draft notice of appeal, the documents to which we have referred and hearing Mr Maksacheff's oral submissions, with the recognition none are advanced by a person with legal training, it is not possible to discern any proposed ground of appeal that identifies an issue of principle, question of public importance or any substantial injustice that would warrant a grant of leave to appeal.
2. For the reasons we have given, Mr Maksacheff has not advanced any rational argument in support of any contention that there was any error on the part of any of the judicial officers whose orders are brought into question such as would warrant a grant of leave to appeal. The Leave Summons should also be dismissed. Mr and Mrs Maksacheff should be ordered to pay the Bank's costs of each of the summonses and of the Summary Dismissal Application.
3. Before leaving the matter, we should note that the Maksacheffs' No Loan Argument and Repayment Argument are not original. Without descending into precise comparisons, similar arguments have emerged in cases in the Federal Court, the Queensland Supreme Court and the Federal Circuit Court. [37] In all these cases, litigants in person have sought to dispute indebtedness and/or sought to recover liquidated damages by spurious arguments contending, for example, that documents got up as either bills of exchange or promissory notes have discharged their liability and/or that the creditor's failure to accept them has breached a contract. All these submissions have been dismissed. Jagot J described such submissions before her as "obscure, impenetrable, hopeless nonsense", [38] an expression apt to describe those advanced in this Court.
4. It is not apparent who is encouraging debtors to advance such submissions, although we note that a Mr Peter Paalvast, who is apparently not a lawyer, features in Wilmink and Atkinson, before both the Full Federal Court and Bennett and Jagot JJ respectively.
5. In Wilmink in the Full Federal Court, the Court observed that Mr Paalvast was aware that similar claims to those advanced on behalf of the debtor had been advanced in other proceedings. Their Honours observed that in advancing the arguments he failed to "recognise the significant costs involved to both the bank and the Court of litigating the claim", adding "[t]he limited resources of the Court should not have been spent on the disposition of this appeal". [39]
6. We do not suggest that Mr Maksacheff had the knowledge to which the Full Federal Court referred. However the fact is that the limited resources of this Court have been expended in seeking to discern from the multiple documents he placed before the Court and his written submissions whether there is any basis on which the default judgment could be set aside. The consequence of him repeatedly advancing such hopeless submissions is not only a cost to the Court in terms of time, but also to the Bank in terms of costs. It also most probably has the effect of eroding whatever equity he and Mrs Maksacheff might have had in the Property. This is because it is commonly the case that mortgages contain a provision enabling the mortgagee to recoup from the sale proceeds the costs of realising its security.
7. In Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation, [40] Callinan J ordered costs against a third party, the Institute of Taxation Research Pty Limited (ITR), which had advised and acted for numerous taxpayers in taxation matters and had argued unsuccessfully before a number of courts and tribunals that the Australian Taxation Office did not legally exist, that the Constitution was invalidly enacted, and no Commonwealth laws had any legally enforceable effect. In his Honour's view, such an order was warranted because the ITR was "a promoter of this litigation" and "either the author, or the major participant in the preparation of, the arguments to be advanced in this Court, and the tactics to be employed in the proceedings and activities leading up to the initiation of proceedings…" and persisted advancing these arguments "notwithstanding that various courts in this country had consistently held the claims made here and like claims to be utterly untenable". [41]
8. Although we cannot discern who planted the seeds of Mr Maksacheff's submissions in his mind, should further such arguments be advanced in similar circumstances, it may be in the interests of creditors to seek to identify the real promoter and procure an order similar to that made in Arundel.

Orders

1. We make the following orders: 1. The summons seeking judicial review filed on 24 November 2016, as amended on 25 November 2016, be dismissed with costs. 2. The summons seeking leave to appeal filed on 10 March 2017 be dismissed with costs. 3. The notice of motion filed on 21 February 2017 be otherwise dismissed. 4. Mr and Mrs Maksacheff to pay the Bank's costs of the notice of motion filed on 21 February 2017.

Endnotes

1. The street address of the Property has not been reproduced in accordance with the Court's policy on identity theft prevention.
2. Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109 (First Campbell J judgment).
3. The motion was filed pursuant to orders made by Sackville AJA.
4. Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860 (at [5]) per Adamson J.
5. Ibid (at 14).
6. Ibid (at [9]).
7. Commonwealth Bank of Australia v Maksacheff (Supreme Court (NSW), Bellew J, 22 July 2016, unrep).
8. Commonwealth Bank of Australia v Maksacheff (No 2) [2016] NSWSC 1586.
9. Commonwealth Bank of Australia v Maksacheff [2017] NSWSC 22.
10. The "filed" stamp on the leave to appeal summons itself is dated 10 March 2017; see also Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 76 (at [6]).
11. The matter came before his Honour again on 12 January 2017.
12. Supreme Court Act, s 101(2)(e).
13. Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 76.
14. See Penson v Titan National Pty Ltd [2015] NSWCA 404 (at [8] - [9]) per curiam (Meagher, Gleeson and Simpson JJA) and Pi v Zhou [2016] NSWCA 24 (at [10]) per Gleeson JA.
15. The s 78B notice was dated 5 February 2016. We have considered this to be a typographical error, as the s 78B notice accompanied the draft notice of appeal filed in Court on 6 February 2017.
16. Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 (at 74) per Toohey J, endorsed by Gummow, Hayne and Callinan JJ in Glennan v Cmr of Taxation (2003) 77 ALJR 1195; [2003] HCA 31 (at [14]).
17. The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 (at [13]) per Bathurst CJ (Beazley and McColl JJA agreeing).
18. The provenance of this order is unexplained. There is no suggestion either of the Maksacheffs has been declared a vexatious litigant.
19. Stankovic v Magee [2014] NSWCA 439 (Stankovic) (at [16]) per Macfarlan JA (Basten agreeing and Gleeson JJA relevantly agreeing).
20. Dai v Zhu [2013] NSWCA 412 (at [89]) per Sackville AJA (Barrett and Leeming JJA agreeing); Stankovic (at [18]).
21. See R v Davison (1954) 90 CLR 353; [1954] HCA 46.
22. See Civil Procedure Act, s 13(1)(a).
23. See (at [60]) above.
24. This is an apparent reference to an argument or arguments with which we deal below concerning what we have termed the first, second and third promissory notes.
25. See International Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial Contracts (2004, Rome), art 7.3.4.
26. First Campbell J judgment (at [24]).
27. Ibid (at [25]).
28. Ibid (at [14]). His Honour sets out in detail the documents the Maksacheffs delivered to the Bank on 30 November 2015 and the Bank's rejection of those documents on the basis they had "no legal validity or effect".
29. Apparently a reference to the United States Congress House Joint Resolution 192 of 1933 (Joint Resolution to assure uniform value to the coins and currencies of the United States) 48 Stat 113 (31 US CA ss 462, 463) (see also the Gold Clause Cases: Norman v Baltimore & Ohio Railroad Co 294 U.S. 240 (1935); United States v Bankers Trust Co 294 U.S. 240 (1935); Nortz v United States 294 U.S. 317 (1935); Perry v United States 294 U.S. 330 (1935)).
30. The legislation referred to is possibly the Financial Emergency Act 1931 (Cth) which was repealed on 31 December 1950.
31. Commonwealth Bank of Australia v Maksacheff (Supreme Court (NSW), Bellew J, 22 July 2016, unrep).
32. First Campbell J judgment (at [8] - [12]).
33. Commonwealth Bank of Australia v Maksacheff (No 2) [2016] NSWSC 1586 (at [22] - [23]); First Campbell J judgment (at [21]).
34. First Campbell J judgment (at [22]) citing Bills of Exchange Act, ss 89, 93.
35. First Campbell J judgment (at [22]).
36. Ibid (at [23]).
37. See Wilmink v Westpac Banking Corporation [2015] FCAFC 17; (2015) 318 ALR 572 (Wilmink); Atkinson v Federal Commissioner of Taxation [2015] FCAFC 18; (2015) 318 ALR 585 (Atkinson); Atkinson v Federal Commissioner of Taxation [2014] FCA 1217 (Atkinson Federal Court) and the cases referred to therein; Woods v Australian Taxation Office [2017] QCA 28.
38. Atkinson Federal Court (at [30]).
39. Wilmink (at [47]) per Foster, Yates and Gleeson JJ.
40. [2001] HCA 26; (2001) 179 ALR 406 (Arundel).
41. Arundel (at [36]). 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: 05 June 2017