National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority

Supreme Court of NSW|2020-03-23|Before: Walton J

2016/122304 C Colquhoun (Second Defendant)

Solicitors: 2015/27843 Dentons Australia Pty Ltd (Plaintiff / Cross-Defendant)

2016/122304 Dentons Australia Pty Ltd (Second Defendant) File Number(s): 2015/27843; 2016/122304

JUDGMENT

HIS HONOUR: By a statement of claim brought on 16 January 2015, the National Australia Bank Ltd ("NAB") brought debt and possession proceedings against Josephine Joan Charlton in her own capacity and as trustee for the Phoenix Trust ("Ms Charlton"; further, the Phoenix Trust shall hereinafter be referred to as "the Trust") (case number 2015/27843: "the debt and possession proceedings"). NAB claimed a debt owed by Ms Charlton which was made up of an Overdraft, a First Business Options Loan and a Second Business Options Loan and NAB sought an order for possession under a mortgage.
A reply to the statement of claim was filed 4 May 2016. A reply to that reply was filed 5 May 2016. An amended statement of claim was filed on 4 May 2016. An amended defence was filed on 20 May 2016.
By a statement of cross-claim filed 9 July 2015 (and later amended on 6 August 2015), Ms Charlton, then as the first cross-claimant, and Kevin Michael O'Brien, as the second cross-claimant, brought a cross-claim in the debt and possession proceedings ("the cross-claim proceedings"). A defence to the first cross-claim was filed 2 September 2015. An amended defence was filed to the cross-claim proceedings on 4 May 2016.
Further proceedings were commenced by summons by "[Ms] Charlton in her own capacity" and "Mr O'Brien as Trustee of Phoenix Trust" on 21 April 2016 against the General Manager of the NSW Rural Assistance Authority ("the RAA") and NAB. These were judicial review proceedings and bore the case number 2016/122304 ("the judicial review proceedings").
On 2 June 2016, Schmidt J made orders that the debt and possession and judicial review proceedings would be heard together whereby the evidence in the one matter would be evidence in the other. (Collectively the debt and possession, cross-claim and judicial review proceedings shall be referred to as "the proceedings").
The proceedings have a lengthy case management history which was, in part, described in a judgment of the Court in National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 ("Charlton No 1") at [21]-[50].
Ms Charlton filed a notice of motion dated 5 September 2017 seeking summary dismissal of the debt and possession proceedings, or alternatively that the judicial review proceedings be heard separately (and before) the debt and possession proceedings (the first notice of motion was formally filed on 27 September 2017). The first notice of motion was dismissed in Charlton No 1.
By notice of motion filed on 28 February 2018, Ms Charlton sought a stay of debt and possession proceedings, pursuant to s 67 of the Civil Procedure Act 2005 (NSW), and a vacation of the hearing dates set for the proceedings upon the basis that Ms Charlton intended to appeal the decision in Charlton No 1 ("the stay application"). No stay application was brought in relation to the related cross-claim proceedings and judicial review proceedings. The second notice of motion was dismissed on 14 March 2018 (the first day of the trial) in National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 2) [2018] NSWSC 969 ("Charlton No 2").
By a notice a motion filed 8 March 2018 ("the third notice of motion"), Mr O'Brien sought to be added as a defendant in the debt and possession proceedings. This motion was heard on the latter half of the first day of the trial after the Court had delivered judgment on the stay application. The third notice of motion was dismissed on 15 March 2018 with reasons delivered on 26 June 2018: National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 3) [2018] NSWSC 970 ("Charlton No 3").
The trial then proceeded over 6 more days, albeit spread out over a considerable period of time for a variety of reasons. As mentioned, the course of the proceedings up to Charlton No 1 appears in Charlton No 1, including settlement discussions, a further court ordered mediation, an intention to appeal from the same and a withdrawal of an application for mediation. The reasons for further delays are reflected in the transcript of proceedings but, in part, concerned Ms Charlton, a self-represented litigant, being afforded latitude in bringing her case.
The proceedings were resolved wholly in favour of NAB by a judgment of this Court delivered 29 October 2019: National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 4) [2019] NSWSC 1477 ("Charlton No 4").
As to debt and possession, the Court found (at [539]) as follows: [539] Having regard to the findings made at [205] and [206] of this judgment, and the resolution of the issues raised by the parties in these proceedings so far as they were properly amenable to resolution (see [207]-[214]), I consider that NAB has discharged its onus of establishing the matters necessary for an entitlement to possession and judgment for debt.
The Court dismissed the cross-claim (at [540]) and made the following finding as to the judicial review proceedings at [541]: [541] So far as Ms Charlton and Mr O'Brien brought an application to extend time to bring the judicial review proceedings, that application is refused. In any event, the judicial review proceedings would alternatively have been dismissed as a matter of merit.
It was observed the Court had not heard the parties on costs which were thereby reserved.
The Court made observations as to the filing of short minutes of order at [543] as follows: [543] NAB shall bring in short minutes of order reflecting this judgment within 14 days of the publication of the judgment. If there is dispute as to the orders proposed, NAB should file and serve a submission in support of the order within the same period. Ms Charlton and Mr O'Brien should, in the event of a dispute as to whether the proposed orders reflect this judgment, file and serve a submission in reply within a further 14 days.
The Court made the following directions in Charlton No 4 at [544]: [544] The Court makes the following directions: (1) NAB should file and serve short minutes of order reflecting this judgment within 14 days of its publication together with a submission in support of the orders proposed in the event of any dispute as to the proposed orders. (2) In the event as to any dispute as to the short minutes of order reflecting the terms of this judgment, Ms Charlton and Mr O'Brien shall file and serve submissions as to that issue within 14 days of the receipt of NAB's short minutes of order and submissions in support thereof. (3) The Court will make orders administratively in Chambers upon the receipt of consent short minutes of order or, in the event of any dispute as to the form of the orders, after consideration of the submissions advanced by the parties.

Course of Proceedings

On 12 November 2019, NAB sent the following communication to the Court: We refer to His Honour's judgment dated 29 October 2019 in the above matter and His Honour's direction that NAB file and serve short minutes of order reflecting the judgment within 14 days from publication of the judgment, therefore on or before 12 November 2019, together with a submission in support of the orders proposed in the event of any dispute as to the proposed orders. The parties have been unable to consent to short minutes of order and accordingly, our client is aware that its draft short minutes of order and submissions are to be filed and served today. Due to the unforeseen unavailability of the NAB's instructing officer as a result of the extreme fire conditions in parts NSW, our client requests a short extension of time to file and serve the draft short minutes of order until 5pm Tuesday 19 November 2019.
On 12 November 2019, the Court granted NAB an extension of time to file and serve the draft short minutes of order by 5pm on Tuesday, 19 November 2019.
On 19 November 2019, NAB provided the following documents via email to the Court: 1. NAB's Submissions in Support of Final Orders, dated 19 November 2019; 2. Annexure A - Short Minutes of Order in proceedings 2015/27843; and 3. Annexure B - Short Minutes of Order in proceedings 2016/122304.
The orders proposed in the debt and possession proceedings were as follows: 1. Judgment for the Plaintiff against the Defendant for the whole of the land comprised in the Certificate of Title, Folio Identifier 22/724651 and known as 'Oriel' Shannonvale Road, Five Ways (also known as 'Oriel', Tottenham) in the State of New South Wales. 2. Leave to the Plaintiff to issue a writ of possession to enforce the judgment in 1 above. 3. Judgment for the Plaintiff against the Defendant in the sum of $1,839,315.31. 4. The Defendant pay the Plaintiff's costs of the Statement of Claim. 5. The Cross-Claim be dismissed. 6. The First Cross-Claimant and Second Cross-Claimant pay the Cross Defendant's costs of the Cross-Claim.
The orders proposed in the judicial review proceedings were as follows: 1. The Summons be dismissed. 2. The First Plaintiff and Second Plaintiff to pay the Second Defendant's costs of the proceedings.
On 29 November 2019, Ms Charlton wrote to the Court seeking an extension of time with respect to the debt and possession proceedings. That communication is extracted below: Would you please forward this request for an extension of time to His Hon. Justice Walton in regards to matter 2015/27843. Due to issues with internet connections dropping in and out here this week our preparation of submissions has been impacted at this end causing delay in completion of same, in objection to Nabs submissions and short minutes of order. Even access via Telstra phones was impacted yesterday. The internet is crucial for my case law research being an unrepresented litigant. In light of the above technical issues impacting our preparation time and Nabs recent 1 week extension to prepare submissions would it be possible to seek a 1 week short extension in regards to my father Kevin and l providing our submissions.
On 10 December 2019, Ms Charlton provided the Court with submissions made in objection to the orders sought by NAB. That communication is extracted below: Please find attached our submissions in objection to the orders sought by Nab in the above matter. Ms Rafter would you please pass these submissions, plus annexures A, B, C, D & E (which are documents already filed in matter) which will follow this email, onto His Hon. Justice Walton. I have copied the parties to this email for service and the submissions and annexures were sent for filing last week.
The following attachments were provided by Ms Charlton over a series of four emails: 1. Ms Charlton's Submissions in Objection to Final Orders sought by NAB, dated 3 December 2019 (6 pages); 2. Mr O'Brien's Submissions in Objection to Final Orders sought by NAB, dated 5 December 2019 (4 pages); and 3. Annexures (15 pages).
On 10 December 2019, the Court sent the following communication to the parties: The Court is now in receipt of the submissions from the parties. As to para 1 of Ms Charlton's submission dated 5 December 2019, it is plain that the NAB submissions have been served but the step as to filing that submission appears to have not been taken. The Court will proceed upon the submissions of the NAB, having been filed regularly, but for more abundant caution they should be formally filed. As the filing of that submission will be out of chronological sequence, it would be important to distinguish any submission sought to be made by the NAB as to reply. Otherwise, the Court will proceed to judgment and orders at the earliest available time.
On 16 December 2019, NAB sent the following email to the Court: Further to your email below please find attached NAB's submissions filed 11 December 2019 (previously served on 19 November 2019). In respect to Ms Charlton's submissions dated 5 December 2019, NAB understands that Ms Charlton does not agree with the amount of the debt as at 30 September 2019, as set out in paragraph 3(b) of NAB's submissions. We would be grateful if the Court could let us know if his Honour would be assisted by a short affidavit explaining how the amount of the debt as at 30 September 2019 has been calculated.
That email attached sealed copy of NAB's Submissions in Support of Final Orders, dated 19 November 2019, which indicated the submissions were filed on 11 December 2019.
On 16 December 2019, the Court sent the below communication to NAB: We assume this email is responsive to the email of 10 December 2019, by which the question of reply was raised. Provided the affidavit is confined to: (a) the conditions set out in [543] of the National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 4) [2019] NSWSC 1477; (b) by way of reply to Ms Charlton's submissions, particularly as to enforcement fees, and (c) merely to the question of calculation, it may be provided via email.
On 19 December 2019, NAB sent the following communication to the Court: We attach a short affidavit of Ms Beth Stacker in relation to the calculation of the amount of the debt in NAB's proposed order 3 in the debt and possession and cross-claim proceedings. We also wish to make the following additional and brief points in relation to the affidavit (on the basis that they fall within the scope of the Court's grant of leave): 1. Paragraph 3(b) of NAB's submissions dated 19 November 2019 contained an error, in that it was asserted that the amount of the debt in NAB's proposed order 3 was calculated at 30 September 2019. In fact, as can be seen from paragraph 5 of the affidavit, the relevant date for the calculation of the debt differed in respect of each of the facilities. 2. NAB only seeks judgment for the amount of the debt in NAB's proposed order 3; that is, it does not seek its judgment for debt to include any interest accrued in the period following the dates set out in paragraph 5 of the affidavit. 3. It appears from our review of the evidence before the Court that $200 in enforcement costs was charged to the overdraft on 21 November 2011 [see tab 6 in the Supplementary Court Book - first tab 57-039-1525]. We note in this respect that NAB was ordered to pay $4,000 to Ms Charlton pursuant to the FOS determination dated 7 November 2013 [see tab 53 of Exhibit CHT-1 (Ex 12)].
That email attached the affidavit of Ms Beth Stacker sworn 19 December 2019.
On 20 December 2019, Ms Charlton sent the following communication to the Court (in reply to the above communication of NAB): I have received an email from Ms Kuti yesterday at 4.11pm and Affidavit which was in response to your email of the 16th December 2019 which outlined parameters to be addressed, by NAB regarding; An Affidavit confined to; a) conditions set out at [543] of judgment etc. b) particularly as to enforcement fees.... c) merely the question of calculation I note Ms Kuti's response email 19th December 2019 and the Affidavit of Ms Stacker did not correctly address the confined issues. I also note significant issues raised in my submission have been ignored. I seek permission of the Court to respond in defence, because the material provided is still incorrect. The Court has allowed further 'fresh" evidence by way of the Affidavit supplied by Beth Stacker sworn 19th December 2019 of NAB and l would appreciate the same allowance and the opportunity to object to that evidence. This requires some time to pin material already filed in the matter.
On 20 December 2019, the Court sent the following communication to Ms Charlton: As was emphasised with the Court's previous directions, the submissions and material being received concerns only such material as will reflect the judgment of the Court. It is not an opportunity to "respond in defence" or to elaborate upon prior submissions or contentions (or make fresh ones). The reply from the NAB concerned calculation of debt. If you wish to respond regarding calculations you may but only as to that subject. This will include any response to para 3 of Ms Kuti's reply submission for the NAB. The response will need to be received promptly.
That same day, Ms Charlton sent the following email to the Court: Please find attached my response Affidavit of Josephine Charlton dated 20.12.19 to Ms Kuti's email dated 19.12.19 (sent at 4.11pm) which accompanied the Affidavit of Ms Beth Stacker dated 19.12.19 from NAB. Please forward this to His Hon. Justice Walton.
That email attached and affidavit of Ms Charlton dated 20 December 2019, it was unsealed.
On 8 January 2020, the Court received the following communication from NAB: We refer to Ms Charlton's email and affidavit dated 20 December 2019. Due to certain individuals at NAB who are involved in this matter currently being on leave, our client requests that it be allowed until 31 January 2020 to provide any response.
The Court granted the extension.
On 29 January 2020, NAB sent the following communication to the Court: We refer to our email correspondence below, and the affidavits of Ms Charlton dated 20 December 2019 and 15 January 2020. Ms Charlton's affidavits address two issues concerning the calculation of the debt under the relevant facilities (amongst others): 1. The payment of $4,000 pursuant to the FOS determination dated 7 November 2013 [see tab 53 of Exhibit CHT-1 (Ex 12)]. 2. The imposition of various charges, including enforcement fees totalling $927.31. As to 1, NAB accepts that the $4,000 was not paid to Ms Charlton and Mr O'Brien. The FOS determination provided Ms Charlton and Mr O'Brien with an opportunity to receive a payment in the sum of $4,000 but, as is made clear on page 1 of the FOS determination, NAB's obligation to comply with the terms of the determination was conditional on Ms Charlton and Mr O'Brien accepting the determination, which they did not. Accordingly, NAB was never obliged to pay $4,000 to Ms Charlton and Mr O'Brien. As to 2, whether NAB was entitled to impose the charges was not an issue arising on the pleadings. Nonetheless, in an effort to avoid further disputation and to bring this matter to a close, NAB is willing to accept (on a without admissions basis) a reduction in the amount of the debt claimed by it of $927.31, noting, as previously indicated in our email of 19 December 2019, that NAB does not seek its judgment for debt to include any interest accrued in the period following the dates set out in paragraph 5 of the affidavit of Beth Stacker sworn 19 December 2019. Please find attached revised orders in the debt and possession proceedings which have been prepared on this basis.
That email attached Short Minutes of Order, with respect to the debt and possession proceedings, which proposed the following orders (with the amount in proposed order 3 amended to reflect the reduction described above): 1. Judgment for the Plaintiff against the Defendant for the whole of the land comprised in the Certificate of Title, Folio Identifier 22/724651 and known as 'Oriel' Shannonvale Road, Five Ways (also known as 'Oriel' Tottenham) in the State of New South Wales. 2. Leave to the Plaintiff to issue a writ of possession to enforce the judgment in 1 above. 3. Judgment for the Plaintiff against the Defendant in the sum of $1,838,388. 4. The Defendant pay the Plaintiff's costs of the Statement of Claim. 5. The Cross-Claim be dismissed. 6. The First Cross-Claimant and Second Cross-Claimant pay the Cross Defendant's costs of the Cross-Claim.
On 9 February 2020, Ms Charlton sent the following email to the Court: I refer to the email dated 29.01.20 sent by Ms Kuti acting for NAB in matter 2015/27843, I seek permission/leave to raise objection to those revised orders which have been proposed as does my father Kevin O'Brien. I note the revised orders have been provided without leave or instruction from His Hon. Justice Walton as this has occurred during the Courts vacation. The proposed orders do not address the issues raised in objection previously in any way that is acceptable to us, the Affidavits I provided in relation to calculation of debt (20th December 2019 & 15 January 2020) were not limited to two issues as Ms Kuti's email suggests, as there are broader legal implications.
On 17 February 2020, Ms Charlton sent the following communication to the Court: Please find attached an Affidavit dated 16.02.20 regarding correspondence from NAB dated 5 Feb 2020 which relates directly to Default Interest and calculation of debt, I seek permission/leave to present it now as it was unable to be supplied any earlier when addressing the calculation of debt, due to only receiving it in the mail in the last few days. l was previously permitted to address the calculation of debt. Please pass this on to His Hon. Justice Walton as it is very relevant to His Honours consideration of the matter. I have copied the parties to this email.
That email attached the affidavit of Ms Charlton dated 16 February 2020. It was said to concern "FURTHER TO CALCULATION OF DEBT - CORRESPONDENCE FROM NAB ATTACHED". The attachment was not sealed and did not appear to have been filed.
In the result, the orders sought by NAB, in the debt and possession proceedings and the cross-claim proceedings, were the following orders: 1. Judgment for NAB against Ms Charlton for the whole of the land comprised in the Certificate of Title, Folio Identifier 22/724651 and known as 'Oriel' Shannonvale Road, Five Ways (also known as 'Oriel' Tottenham) in the State of New South Wales. 2. Leave to NAB to issue a writ of possession to enforce the judgment in 1 above. 3. Judgment for NAB against Ms Charlton in the sum of $1,838,388. 4. Ms Charlton to pay NAB's costs of the statement of claim. 5. The cross-claim be dismissed. 6. Ms Charlton and Mr O'Brien to pay NAB's costs of the cross-claim.
As earlier mentioned, in the judicial review proceedings, NAB sought the following orders: 1. The summons be dismissed. 2. Ms Charlton and Mr O'Brien to pay NAB's costs of the proceedings.
No orders were sought with respect to RAA. As mentioned, RAA entered a submitting appearance.
As those orders were disputed by Ms Charlton and Mr O'Brien, submissions were filed by the respective interests.

SUBMISSION BY NAB

Noting adjustments in the NAB position as recorded under the heading, the Course of Proceedings, as to the debt and possession proceedings (and the cross-claim), NAB submitted: 3. The final orders reflect the Judgment, in which NAB had complete success in respect of its claim against Ms Charlton, and in respect of Ms Charlton's and Mr O'Brien's cross-claim against NAB. The final orders seek the following: (a) Possession of the property: Orders 1 and 2 of the final orders reflect [539] of the judgment. Order 1 is an order for possession of the property, in accordance with NAB's rights as mortgagee. Order 2 grants NAB leave to issue a writ of possession pursuant to UCPR 39.1(1)(d). Any application by NAB for a writ of possession would need to be made separately by way of notice of motion (UCPR 39.2(1), together with an affidavit in support (UCPR 39.3(1)-(2)); (b) Debt: Order 3 of the final orders also reflects [539] of the judgment. It pertains to the debt owed by Ms Charlton under the Overdraft, the First Business Options Loan and the Second Business Options Loan as at 30 September 2019. The amount of the debt includes the amount of $1,633,022.53 as at 6 March 2018, as calculated in accordance with the affidavit of Ashley Gardiner dated 7 March 2018: Judgment at [204]. Interest on the judgment debt amount will be payable at court rates pursuant to s101 of the Civil Procedure Act 2005 (NSW) until the date of payment. (c) Cross-claim: Order 5 is an order dismissing the cross-claim, which reflects [540] of the judgment. (d) Costs: Orders 4 and 6 seek the payment of NAB's costs by Ms Charlton (in respect of the debt and possession and cross-claim proceedings) and Mr O'Brien (in respect of the cross-claim proceedings only). They reflect the general rule that costs follow the event: UCPR 42.1. NAB does not seek any special costs order.
As to the incorrect reference to 30 September 2019, NAB submitted that the correct dates from which the debt was to be calculated were as follows (supported by the affidavit of Ms Stacker): 1. Overdraft - 4 November 2019; 2. First Business Options Loan - 1 November 2019; and 3. Second Business Options Loan - 1 November 2019.
As to proposed order 3, NAB only sought the amount owed at the dates above, and did not seek an amount including interest accrued in the period following those dates.
The affidavit of Ms Stacker identified the amount owing on each of those facilities as at the respective dates identified above, as follows: 1. For the Overdraft, $817,869.17; 2. For the First Business Options Loan, $313,288.42; 3. For the Second Business Options Loan, $708,157.72.
The sum of those amounts is $1,839,315.31. As will be discussed below, Ms Charlton contended that this figure impermissible included enforcement fees arising from notices that were withdrawn. As was discussed above, NAB conceded (without admission) that it would not pursue charges which it assessed in the sum of $927.31.
As to the judicial review proceedings, NAB submitted: The final orders in the judicial review proceedings reflect [541] of the Judgment. The final orders seek the dismissal of the summons filed by Ms Charlton and Mr O'Brien, and an order that Ms Charlton and Mr O'Brien pay NAB's costs of the proceedings. No orders are made in respect of the first defendant (The Manager, NSW Rural Assistance Authority) on the basis that the first defendant has filed a submitting appearance.

General

Ms Charlton filed a submission dated 3 December 2019 and Mr O'Brien filed submissions dated 5 December 2019.
The directions made by the Court made abundantly clear that the scope for further submissions was confined to any dispute as to whether the proposed orders reflected the judgment of the Court.
It follows that the liberty given to the parties did not extend to, as featured in some parts of Ms Charlton's and Mr O'Brien's submissions, the re-canvassing of issues resolved in the judgment, challenges to findings or conclusions reached in the judgment or entirely fresh issues such as the issue raised by Mr O'Brien concerning Mr Justin O'Brien and his family's legal status under cl 18 of the Deed and various other submissions regarding possession. It might be noted, in that respect, that, whilst Ms Charlton and Mr O'Brien are self-represented litigants, they are not unworldly of Court processes.
The balance of this judgment will deal with submissions advanced by Ms Charlton and Mr O'Brien which conform to the directions of the Court.

Debt and Possession Proceedings

As to the orders proposed by NAB in relation to those proceedings, Ms Charlton seemed to make three complaints.
First, Ms Charlton submitted: The statements prove default interest has since the Affidavit, been adjusted. Yet no adjustment to default interest charged by NAB in proceedings has been reflected. (This occurs now due to the Royal Commission into banking) and no removal of the enforcement fees charged on the 16th November 2011 notice occurred or to other notices of this kind in the matter, judgement debt is not correct nor is it entitled to be entered.
Secondly, Ms Charlton submitted: Order 3 deals with judgement debt proposed by NAB, the judgment amount in terms of the debt level increases from $1,633,022.53 at 6 March 2018 to $1,839,315.31 in 2019, amounts of debt calculated on enforcement fees charged to the Phoenix Trust accounts based on notices withdrawn and stated as such by His Hon. Justice Walton, which include enforcement fees, where no adjustment has been made to allow for the inaccuracy in the accounts debt level despite the notices being "withdrawn" in circumstances where all notices prior to Feb 2014 were withdrawn.
Thirdly, Ms Charlton submitted: Order 6 Reflects the payment of costs which includes costs yet to be determined from previous applications in the matter still reserved in terms of costs, it would be highly irregular to order a party to pay costs which remain reserved after final judgement in proceedings is given.
Whilst not entirely clear, I understand Ms Charlton raised the following issues as to the orders: 1. There was no adjustment made to the default interest rate charged by NAB despite notices being withdrawn ("Issue 1"). 2. There was no removal of the enforcement fees charged on the 16 November 2011 notice or other notices ("Issue 2"). 3. Costs should not be made in respect of Charlton No 4 whilst costs in relation to Charlton No 1, Charlton No 2 and Charlton No 3 ("Issue 3") remain reserved.

Judicial Review Proceedings

As to the order 2 proposed by NAB in relation to the judicial review proceedings, Ms Charlton submitted: Order 2. Costs should not result against Ms Charlton on the summons to challenge ultra-virus s 11 certificate obtained without active and legally relied upon s 8(1) notice by the Plaintiff, which was utilised to instigate improperly commenced proceedings by statement of claim. Given the RAA filed a submitting appearance no harm was caused to the RAA by the Summons. And the fault lies with the Plaintiff.

Debt and Possession Proceedings

I shall deal with the issues raised by Ms Charlton (and Mr O'Brien who joined in those submissions) seriatim.

Issue 1

As to Issue 1, the default interest rate charged by NAB in relation to the Overdraft did not need to be adjusted as the 26 October 2011 cancellation notice did not constitute an enforcement action for the reasons expressed at [412] of Charlton No 4. In other words, the bank was entitled to take this action without the need for a s 11 certificate.
More generally, the charging of a default interest rate alone does not constitute enforcement action for the purposes of the Farm Debt Mediation Act 1994 (NSW). At [409] of Charlton No 4, it was stated: [409] If that approach were adopted, s 6 of the FDM Act would capture action that falls well short of anything that could be properly described as "enforcement action", such as charging a higher interest rate, or the imposition of an additional fee. The FDM Act cannot have been intended to operate in this way, particularly having regard to the object of the Act being, inter alia, "to provide for the efficient and equitable resolution of matters involving farm debts" (see s 3 of the FDM Act). It is plain that requiring mediation prior to the exercise of any contractual right by a creditor would be neither efficient nor equitable.
Finally, it was accepted that NAB withdrew reliance on the first and second default notices (at [422] of Charlton No 4). At [445] of Charlton No 4, it was found that Ms Charlton was aware that NAB had withdrawn reliance on the first default notice.

Issue 2

The method by which NAB calculated the proposed judgment debt has been discussed above. However, it remained unclear whether the calculation had adjusted for enforcement fees arising from notices of which reliance had been withdrawn by NAB.
In its communication of 29 December 2019, NAB provided further information as to enforcement fees: It appears from our review of the evidence before the Court that $200 in enforcement costs was charged to the overdraft on 21 November 2011 [see tab 6 in the Supplementary Court Book - first tab 57-039-1525]. We note in this respect that NAB was ordered to pay $4,000 to Ms Charlton pursuant to the FOS determination dated 7 November 2013 [see tab 53 of Exhibit CHT-1 (Ex 12)].
It would seem that the $200 enforcement cost arose from the first default notice issued 16 November 2011 given the proximity of dates.
Whilst not mentioned in NAB's submissions, from a review of the evidence, it also seems that an enforcement fee of $120 was charged to the overdraft on 27 January 2012 which presumably arose from the second default notice issued 24 January 2012; a notice that was also withdrawn by NAB. Ultimately, NAB accepted the amount of charges amounted to $927.31 and, as earlier mentioned, NAB accepted that a reduction in the debt may be made by the Court with respect to that amount.
As to the Financial Ombudsman proceedings, the determination made was that NAB should pay "the total sum of $4,000 for non-financial loss, which sum is to be paid by way of a reduction in the debt owing to the FSP". The following conclusions can be drawn from that determination: 1. The sum payable was for non-financial loss, which necessarily excludes the enforcement fees arising from the first and second default notices, which constituted financial loss; 2. The Financial Ombudsman Service considered that the portion of the $4,000 ($2,000) relating to the first default notice was payable due to that notice being void, whereas Ms Charlton's argument in respect of the proposed judgment debt (which was correctly aligned to the terms of the judgment in Charlton No 4) was that enforcement fees should not be payable on the basis of non-reliance by NAB. Those were distinct considerations, therefore, it cannot be said that the $2,000 encompassed the enforcement fees at issue here. 3. The $4,000 was payable by reducing the debt owed by the defendant to NAB. Under the determination, that course was to be actioned "within 60 days" from the date of acceptance of the determination.
Points 1 and 2 lead to the conclusion that the enforcement fees charged on the first and second default notices are distinct from the $4,000 FOS determination.
Point 3 is relevant to the Court's determination of the date at which interest should accrue if the $4,000 adjustment was not made to the debt by NAB following the FOS determination.
Based on the above considerations, the judgment debt should be reduced by $927.31. This is reflected in the orders proposed by NAB.
As to the $4,000 sum referred to by Ms Charlton, NAB accepted it had not made payment of that amount to Ms Charlton and Mr O'Brien. However, "[t]he FOS determination provided Ms Charlton and Mr O'Brien with an opportunity to receive a payment in the sum of $4,000 but, as is made clear on page 1 of the FOS determination, NAB's obligation to comply with the terms of the determination was conditional on Ms Charlton and Mr O'Brien accepting the determination, which they did not. Accordingly, NAB was never obliged to pay $4,000 to Ms Charlton and Mr O'Brien". Nothing in these proceedings altered that position.

Issue 3

The Court is not limited in its power to make an order as to costs in a matter by virtue of having reserved its decision as to costs in interlocutory proceedings. Orders as to costs may be made at "any stage of the proceedings or after the conclusion of the proceedings": s 98(3) Civil Procedure Act 2005 (NSW) ("CPA").
Section 98(4) of the CPA further sets out the particular circumstances in which the Court may make an order as to costs, as follows: 98 Courts powers as to costs … (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount.
The Court provided an opportunity to the parties make submissions as to the costs of the proceedings, which included the interlocutory issues resolved by the Court in Charlton No 1, Charlton No 2 and Charlton No 3, and as to the principal judgment in Charlton No 4. Ms Charlton and Mr O'Brien were wholly unsuccessful in all of those judgments in the debt and possession proceedings and in the cross-claim. The proposed orders by NAB appropriately reflect the general rule that costs follow the event: r 42.1 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and an order for costs should be made in its favour.
It is apparent that the timing of the Court's making of orders as to costs in relation to Charlton No 4 is not inappropriate. In that respect, Ms Charlton's submissions are defective in that they seem to conflate the making of an order as to costs with the assessment of costs.

Judicial Review Proceedings

In my view, there is no proper basis raised by Ms Charlton or Mr O'Brien to support an order other than that costs should follow the event: UCPR r 42.1. Their contentions were essentially rejected and the summons dismissed.
No order for costs should be made against the RAA which entered a submitting appearance. There would seem to be no aspect of the proceedings which would excite an application for the RAA for costs and accordingly no orders or provision for hearing is made in that respect. If, however, the RAA does contemplate taking such a step, it would need to do so promptly upon the receipt of this judgment.

The Submissions of Mr O'Brien

Mr O'Brien adopted the submissions of Ms Charlton and provided additional submissions. Whilst somewhat difficult to understand, the additional submissions raised the following additional issue: 1. A writ of possession is incompatible with a caveat on the title of the property which was lodged prior to the filing of the statement of claim for debt and possession. Mr O'Brien submitted: My equitable interest is far higher than any other party and I will force the protection afforded by the Real Property Act 1900 and the Caveat A1942808R stands strong as given under Sec. 74F of Real Property Act 1900 and I hold a proprietary right in terms of indemnity. (Trustee right of Indemnity). The Caveat is not just a notice of warning of other interests it is an absolute prohibition as to certain possessory actions which also effect the Crown, the Court and the Judiciary as well as other ordinary persons. There are no exceptions.
This submission was already ventilated, to an extent, in the proceedings giving rise to Charlton No 4, as "additional issue 2" which was summarised at [211(2)] of that judgment. It should be noted that at [211(5)] of Charlton No 4, the Court found: As to additional issue 2, it is true that NAB witnesses were cross-examined on the topic of the caveat, but only in relation to the service of the third default notice on Mr O'Brien (not the effect of the caveat on NAB's possessory application).
As to the submission now made, there are two difficulties. First, the argument raised by Mr O'Brien is pre-emptive. The order sought by NAB is for leave to issue a writ of possession, not an application for a writ of possession, which, as NAB correctly submitted, would need to be made separately by way of a notice of motion, together with an affidavit in support: UCPR rr 39.2(1), 39.3(1) and (2).
Secondly, a caveat on the title of a property is no bar to the making of an order granting leave to issue a writ of possession. Leave to issue a writ of possession, as with an application for a writ of possession, operates in accordance with the general law.
I reject Mr O'Brien's submissions in this respect.

Orders

In the result, with respect the debt and possession and the cross-claim proceedings, the Court makes the following orders: 1. Judgment for NAB against Ms Charlton for the whole of the land comprised in the Certificate of Title, Folio Identifier 22/724651 and known as 'Oriel' Shannonvale Road, Five Ways (also known as 'Oriel' Tottenham) in the State of New South Wales. 2. Leave to NAB to issue a writ of possession to enforce the judgment in 1 above. 3. Judgment for NAB against Ms Charlton in the sum of $1,838,388. 4. Ms Charlton to pay NAB's costs of the statement of claim. 5. The cross-claim be dismissed. 6. Ms Charlton and Mr O'Brien to pay NAB's costs of the cross-claim.
As to the judicial review proceedings, the Court makes the following orders: 1. The summons be dismissed. 2. Ms Charlton and Mr O'Brien to pay NAB's costs of the proceedings.

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: 24 March 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Legislation Cited (3)

Cases Cited (4)

Cited By (2)