National Australia Bank Limited v Mellander

Proceedings in this Court

1. By statement of claim filed 6 March 2023, the plaintiff sought possession of the property, leave to issue a writ for possession, judgment in the amount owing under the loan (approximately $254,000), together with the plaintiff's fees and charges in accordance with the loan and mortgage and the costs of the proceedings.
2. An affidavit of a licensed process server of 13 March 2023, annexed to the affidavit in support of the motion for default judgment, establishes that the statement of claim was served on the defendant on 9 March 2023. The affidavit states that three copies of the statement of claim, the notice to occupier, and the possession of land coversheet were served on the defendant by placing them in a sealed envelope and affixing the envelope to the fence at the property. It appears service was affected in this way as, according to the affidavit, the property was surrounded by a fence with a sign indicating "LEGAL NOTICE, NO TRESPASSING - ADMITTANCE BY INVITATION ONLY". The affidavit annexed a copy of the notice to occupier.
3. A further affidavit of service, prepared by a licensed commercial agent on 27 March 2023, was annexed to the affidavit in support of the motion for default judgment. This related to a further service of the statement of claim and possession of land coversheet on 21 March 2023. While the documents did not include a notice to occupier, I am satisfied this document had been properly served on 9 March 2023: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 6.9(2). The commercial agent deposed that he attended the property and described the only access to the property to be a "chainmesh gate which was padlocked closed". He deposed that there were "signs attached to the gate advising that 'all mail and all correspondence' would not be accepted, and that uninvited admittance to the property by police, government, process servers etc would be an act of trespass". The deponent said he waited at the property and, at approximately the 5:30 pm, he had a conversation with a man he believed to be the defendant. He described the man as "aged in his sixties". He said the man arrived at the property on a bicycle and opened the padlock on the gate. When asked, the person denied that he was the defendant. The deponent said that the man turned away when he appeared to observe the documents in the deponent's hand. The deponent said "I think you are Peter Mellander. I have some legal documents to deliver to you". The deponent said the person responded, "you have no liability" and further said "you have no liability under the fourth law" and walked away. The deponent states that he then said "as you will not accept the documents, I am making you aware that I will leave them here for you. Take this as notice that you have been served". The deponent said that he then rolled-up the documents and placed them in the chain mesh gate. The deponent stated that he took a photograph of the person he spoke to. He said he showed that photograph to a neighbour at XX XXXXXX Street who informed him that the person in the photograph was known to him as "Peter Mellander". Photographs of the fence, signage, and the person spoken to were annexed to the affidavit.
4. I am satisfied that the defendant was served with the statement of claim, the notice to occupier, and the possession of land coversheet. I note the defendant does not suggest the proceedings were not brought to his attention.
5. No response to the statement of claim reached the Court file or, apparently, the plaintiff. On 8 June 2023, the plaintiff filed a notice of motion seeking default judgment. Filed in support of that motion was the affidavit of Mr Adams of 6 June 2023. That affidavit established the transfer of the mortgage from Citibank to the plaintiff, service of the statement of claim and related documents, together with the outstanding debt. There was no requirement to serve the application for default judgment on the defendant: UCPR, r 16.3(1A). The defendant obtained default judgment and possession orders in respect of the property on 15 June 2023.
6. By notice of motion filed on 20 July 2023, the plaintiff sought a writ of possession for the property. There was no obligation to serve the application on the defendant: UCPR, r 39.2(2)(b). A writ of possession was obtained on 1 August 2023.
7. It was only when faced with eviction from the property that the defendant took any steps in relation to the proceedings, or at least, any step recognised by the Court. On 5 September 2023, the defendant filed a notice of motion by which he sought an order that "the Court provide an immediate stay of proceedings pending full and detailed judicial review".
8. The matter came before Walton J, as Duty Judge, on 13 September 2023. On that date, the defendant's motion was adjourned to 20 September 2023, when it came before me as Duty Judge, to allow the defendant an opportunity to consider the plaintiff's evidence and put evidence before the Court to provide a basis for the order sought. On 13 September 2013, in accordance with an order made by Walton J, the plaintiff provided the defendant with copies of the motions seeking default judgment and the writ of possession, together with the affidavits in support, the two affidavits of service with respect to the statement of claim referred to above, and the Court's notice of orders made on 15 June 2023 entering default judgment for the plaintiff.
9. The plaintiff served the defendant at court with the affidavit of Ms Erikozou (Exhibit 3) and its written submissions. That material had been filed the previous day in accordance with the orders of Walton J, however, in the absence of any means of electronic service, the defendant was not able to be served until he appeared at the hearing. I adjourned the Court for a period I regarded as sufficient to allow the defendant to read that material.
10. The defendant's claim is that there are defects in both the process by which judgment was obtained against him and the substance of the plaintiff's claim. Any stay, as sought by the defendant, is contingent on him having a basis on which to set aside the default judgment. Although no motion to set aside the default judgment has been filed, I will proceed on the basis that this is what the defendant seeks to do.

An application to set aside a default judgment

1. The relevant principles are well known. The authorities were summarised in Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [43]-[46] (per McColl JA). A default judgment may be set aside if it is in "the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits". This will generally entail consideration of any explanation for the failure to file a defence in time, any delay by the defendant in moving to set the judgment aside, and whether the defendant has an arguable defence on the merits.
2. In order to establish an arguable defence on the merits, it is generally necessary for the defendant to adduce some evidence of the facts relied upon in support of the defence. In Magnate Projects Pty Ltd v Youma Constructions Pty Ltd (No 2) [2005] NSWCA 331, Hodgson JA (Campbell AJA agreeing, Handley JA dissenting) observed (at [52]): "In my opinion an applicant seeking to set aside a judgment obtained after an undefended hearing does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. However, the circumstances may be such as Jordan CJ says, as to require "a reasonably clear case of merits to be shown"; that is that it appear reasonably clearly that there is a defence capable of producing a different result. If that defence depends on facts, then there should be some evidence of those facts, and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant's default, and hardship to the respondent."
3. The reference in that passage to the circumstances referred to by Jordan CJ is a reference to the former Chief Justice's statement of principle in Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR (NSW) 239 at 243. His Honour there said, amongst other things: "In every such case the Court has an inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained: Evans v Bartlam [1937] AC 473 at 482. As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins' Book Depot Pty Ltd v Bretherton [1938] VLR 40; Austn Digest (1934-1939) 1859, the Court requires an affidavit showing prima facie that the defendant has a good defence on the merits: Evans v Bartham [1937] AC 473 at 480, 488-9, and also an explanation of his absence which shows that justice requires that in the circumstances it should be excused."

The process by which default judgment and the writ were obtained

The steps taken by the plaintiff

1. The defendant's affidavit of 18 September 2023 claims that the default judgment and the subsequent writ were properly obtained. He said that the affidavit of service with respect to the statement of claim was only a photocopy, was not certified as a true copy, had not been "signed by the issuing officer of the Court giving full assurance of liability", was a "false and fraudulent document" and "has not reached full commercial liability". Consequently, it was submitted that, among other things, it was void, a constructive fraud, designed to pervert the natural course of justice, and could not be relied upon. The same submission was made in relation to the motion seeking default judgment and the writ of possession.
2. There is no obligation on a party to produce original documents. Section 48 of the Evidence Act 1995 (NSW) allows proof of documents by the tender of a document that purports to be a copy of the document and purports to have been produced by a device that reproduces the contents of documents. This allows for the acceptance of a document, which appears to a photocopy of a document. Further, I note the proceedings are interlocutory and s 75 of the Evidence Act provides that the hearsay rule does not apply, provided that the party adducing hearsay evidence adduces evidence of its source. Consequently, and, in the defendant's favour, on the assumption that it was necessary for the plaintiff to do so, I do not accept the defendant's submission that the plaintiff has not established the default judgment and writ of possession were properly obtained.

The defendant's response to the statement of claim

1. There is one complication in relation to the process by which the default judgment and writ of possession were obtained. The defendant claims that he responded to the statement of claim. He says that he mailed, to the Court, a document which forms the bulk of Exhibit 3. That document is titled "Affidavit of Rebuttal" and is date stamped 24 March 2023. It is addressed to the "Supreme Court of New South Wales, Chief Justice" with the Court's address. On the first page, the document sets out the following: "In support of: NATIONAL AUSTRALIA BANK LIMITED A.B.N 12 004 044 937 and the SUPREME COURT OF NSW A.B.N. 77 057 165 500 does not have competent jurisdiction over I, The Aggrieved and did deny my lawful rights for peter-james bonded by the blood of the house of mellander Applicant: peter-james bonded by the blood of the house of mellander Defendant 1: The CHIEF EXECUTIVE OFFICER of NATIONAL AUSTRALIA BANK LIMITED Defendant 2: NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 Defendant 3: The CHIEF JUSTICE of the SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 4: The SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 5: The```` STATE of NSW Defendant 6: Attorney-General's Department A.B.N. 92 661 124 430 Defendant 7: Federal Court of Australia A.B.N. 49 110 847 339 Defendant 8: CITIBANK Pty LIMITED A.C.N. 004 325 080 General form of affidavit. Affiant: peter-james bonded by the blood of the house of mellander. The CHIEF JUSTICE, I, peter-james bonded by the blood of the house of mellander care of XX XXXXX Street, Arndell Park, N.S.W. [2148] come with clean hands in equity seeking immediate lawful remedy make asseveration and say as follows: [signed] Deponent [signed] Justice of the Peace Affidavit Registration Number: U.P.U./Australia Post Registered Post Article 341883001778359 Page 1 of 53"
2. It is not until the second page of the document that reference is made to these proceedings. The document states: "I refer to 'NOTICE TO OCCUPIER'; NATIONAL AUSTRALIA BANK LIMITED A.B.N.12 004 044 937 case number 2023/00074608 and 'STATEMENT OF CLAIM; NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 v Peter James Mellander' date March 6, 2023 served on I, The Aggrieved, March 10, 2023 and March 21, 2023." The 'STATEMENT OF CLAIM' Title of Proceedings lists the defendant as 'Peter James Mellander'. The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did commit fraud. The Addressee name is a corporate government created name of a corporate dead entity legal fiction construct from the unlawful Birth Certificate by trading company corporation known as NSW REGISTRY OF BIRTHS DEATHS AND MARRIAGES. The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did attempt to make trick and deceive and induce and coerce the living breathing flesh and blood man of God being the intended recipient to consent to the fraud. The use of the legal name against I, The Aggrieved is offensive and defamatory and embarrassing material. There is no contract or obligation by the I, The Aggrieved being the intended recipient to pay or perform to trading company corporation known as SUPREME COURT OF NSW A.B.N. 77 057 165 500. The 'STATEMENT OF CLAIM' Attachment Details confirms the Court intends to sit, preside and determine in accordance with UCPR being foreign imposed codification not correctly searching for it's head of power under the Commonwealth Constitution."
3. The statement of claim served on the defendant, as required, provided information as to how to respond, including by filing a defence or cross-claim, together with the website address from which relevant forms could be obtained. The document purportedly sent by the defendant to the Court did not comply with the rules and, it appears, was not accepted by the Court as a document filed in these proceedings. The defendant submitted that the UCPR has no application to him as a private individual. He submitted that the rules apply only to groups or other entities such as the Court. I reject that submission. The rules apply to the defendant and no valid response was made to the statement of claim. I additionally note that it was, at all times, open to the defendant to establish the status of the proceedings.
4. The defendant, having taken no proper step in response to the statement of claim, there was nothing irregular in the plaintiff's application for default judgment and the subsequent application for a writ of possession.
5. Having regard to the affidavits of service, I am of the view that the defendant was properly served with the statement of claim. Having regard to the evidence for the plaintiff, I am also of the view that the default judgment and subsequent writ of possession were validly obtained. These steps having been validly taken, I turn to consider the defendant's asserted defence to the substantive claim.

The defendant's asserted defence to the substantive claim

1. The defendant does not dispute that he obtained a loan secured over the property. The defendant's claim that he has a defence to the substantive proceedings, as I understand it, is based on the fact that he did not enter into a contract with the plaintiff, the loan and mortgage arrangements having been entered into with Citibank. It is, however, established on the evidence that the plaintiff lawfully obtained Citibank's rights with respect to the loan, including an enforceable mortgage. Despite this, the defendant asserts that the absence of a physical or signed contract between himself and the plaintiff is fatal to the plaintiff's claim. Somewhat paradoxically, the defendant also submitted that Citibank had no claim against him, as Citibank's rights were, according to the defendant, extinguished as a result of the arrangement entered into between Citibank and the plaintiff by which the plaintiff took over aspects of Citibank's business including the loan to the defendant. Be that as it may, there is no substance to the defendant's proposed defence to the claim brought by the plaintiff, or to his proposed cross-claim.
2. The defendant claims that the material he sent to the Court dated 24 March 2023 has not been rebutted by the plaintiff. He submits that, as a result of this, or possibly as a result of his having sent the material to the plaintiff prior to the institution of proceedings, or both, the plaintiff is to be taken as having "tacitly agreed" with that material. As noted above, the "Affidavit of Rebuttal" was never filed in the proceedings. It is, in any event, difficult to know how the plaintiff might have sensibly responded to the defendant's claims. There is no evidence the plaintiff ever surrendered its rights under the mortgage.
3. Numerous other issues are raised in the evidence relied on by the defendant. I confess, I have not found it easy to comprehend the various claims. Insofar as the defendant has propounded various theories as to the Imperial Acts Application Act 1969 (NSW), the Magna Carta, the Commonwealth of Australia Constitution Act 1901 (UK), the Liberty of Subject Act 1354 (Eng), and the Observance of Due Process of Law Act 1368 (Eng), the overarching contention appears to be that the Court does not have jurisdiction over him. Authority binding on me provides that this Court does indeed have jurisdiction with respect to this matter.
4. Accepting the Court's jurisdiction in the matter, the defendant has not established any basis for an arguable case to set aside the default judgment. In the circumstances, it follows that there is no basis for the defendant's stay. The defendant's motion must be dismissed. Costs should follow the event.

Orders

1. I make the following orders: 1. The defendant's motion filed on 5 September 2023 seeking a stay of the writ of possession is dismissed. 2. The defendant is to pay the plaintiff's costs on the motion.

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: 29 September 2023