Plaintiff/Respondent v Defendant/Appellant

PRACTICE AND PROCEDURE - General principles for summary judgment - General principles regarding appeals from a decision of an Associate Justice - Form of judgment and orders - Total amount of debt not stated on the face of the terms of the orders made - Order regarding debt amount and interest set aside and revised so that total amount of debt is stated or capable of calculation on the face of the order - Rule 46.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) regarding the Court's power to set aside or vary an order which affects a person where the application for the order was made on notice to that person but the person did not attend the hearing of the application - Self‑represented litigants - General principles when dealing with self‑represented litigants.

JUDGMENTS - Date when judgment takes effect - Rules 59.02 and 77.06.9 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) - Judgment provided method for calculation of judgment sum but did not specify the amount - Court's power to vary judgment or orders on appeal even though point not raised on appeal - Parties agreed to judgment being varied to specify for clarity the judgment amount.

Appeared in person with Mr T Borg as McKenzie Friend

The Appeal Notice further grounds of appeal, and Ms Sambanis' subscriptions 16

The Reasons and ruling of the Associate Justice 31

Publication of the Reasons and the Orders Mention on 21 May 2025 in more detail 33

Ms Sambanis' absence at the Orders Mention - Court's power to set aside orders 36

Appeal Ground 1 - February 2023 Amount already includes interest up to the date of the Orders 49

Appeal Ground 2 - Orders in error because Ms Sambanis' absence at the Orders Mention due to incorrect communications on times that day due to Ms Sambanis going through treatment in hospital 50

Appeal Ground 3 - Order 3 of the Orders should have allowed for a six-month interest-free period 53

Appeal Ground 4 - Orders should not have included an order for possession but should have permitted Ms Sambanis to stay in the Property and provided for a further opportunity for her to seek to try and refinance the Loan 57

1 This proceeding concerns a loan agreement between the defendant (defendant or Ms Sambanis) and the plaintiff (plaintiff or Perpetual) (Loan Agreement) in respect of a home loan made by Perpetual to Ms Sambanis (Loan) that is secured by a mortgage (Mortgage) over the property referred to in paragraph 5 below (Property).[1] By its statement of claim Perpetual alleged that Ms Sambanis had defaulted under the Loan Agreement, and sought to recover the Loan and interest said to be owing under the Loan Agreement and possession of the Property.

2 By a summons filed on 21 February 2025 (Summons), Perpetual sought summary judgment for debt and possession of the Property, or alternatively an order that Ms Sambanis' defence be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). The hearing took place on 29 April 2025, before Ierodiaconou AsJ, with the plaintiff's solicitor Ms Nagam, Ms Sambanis and her McKenzie friend and partner, Mr Borg, appearing by audiovisual means over the Zoom platform.

3 The Associate Justice handed down her summary judgment reasons and ruling (Reasons) on 9 May 2025 by sending the Reasons to the parties by email. The Reasons were accompanied by a proposed form of order, and her Honour invited the parties to inform her chambers whether the parties wished to be heard in relation to the proposed form of the 'consequential' order. Relevantly, Mr Borg on behalf of Ms Sambanis, informed the Court that Ms Sambanis wished to be heard. Mr Borg requested that the proposed mention date be changed to a date after 19 May 2025 because the proposed date of 15 May 2025 was not suitable due to Ms Sambanis undergoing treatment in hospital in connection with her ill health. Mr Borg informed the Court that any date after 19 May 2025 would be suitable and, consequently, the Associate Justice changed the date and time of the orders hearing to 9:30am on 21 May 2025 (Orders Mention), again to be held by audiovisual means. The emails exchanged between the Court and the parties on 13 May 2025 stated the proposed date and time, were sent to the plaintiff's solicitors, Mr Borg, and Ms Sambanis, and provided the link for the audiovisual hearing in the email. Mr Borg responded to the email exchanges about the Orders Mention proceeding at 9:30am on 21 May 2025 by simply stating 'No worries!' in his email of 13 May 2025, which was the last email in the exchange on the topic between the Court and the parties prior to the Orders Mention proceeding at 9:30am on 21 May 2025 as scheduled.

4 When the Orders Mention proceeded on 21 May 2025, the plaintiff's solicitor, Ms Nagam, appeared (audiovisually) on behalf of Perpetual, and there was no appearance by Mr Borg or Ms Sambanis. The Associate Justice enquired as to whether there had been any communication with Perpetual's solicitors from Mr Borg or Ms Sambanis, and the Court was informed that there had been no such communication, with the last communication being Mr Borg's 'No worries!' email. Her Honour then proceeded with the very short Orders Mention and made orders in the form of those that had been previously proposed by the Associate Justice and provided to the parties. In doing so the Associate Justice noted that she had given Ms Sambanis an opportunity to be heard 'out of an abundance of caution' and that, given the non‑appearance she proposed to proceed to make the orders in 'the form that was circulated' to the parties and Mr Borg.[2]

5 By orders made on 21 May 2025 (Orders), summary judgment was given in favour of the plaintiff against Ms Sambanis in the following terms (Judgment):

THE COURT ORDERS THAT:

1. Pursuant to s 63 of the Civil Procedure Act 2010 (Vic), judgment for the plaintiff.
2. The plaintiff recover possession of the land Certificate of Title Volume 06315 Folio 954 being the land known as 82 Langton Street, Glenroy in the State of Victoria.
3. The plaintiff recover from the defendant $725,428.63, less any payments and plus interest calculated at the rate of 6.34 per cent per annum from 15 February 2023 to the date of this order.
4. No order as to costs.

6 By notice of appeal dated 3 June 2025 (Appeal Notice), Ms Sambanis appealed against paragraphs 1, 2 and 3 of the Orders. The Appeal Notice was relevantly in the following terms:[3]

THE GROUNDS OF APPEAL ARE:

Associate Judge Lerodian has made an error in regards to making an order 3 plaintiff recover $725,428.63 from 15 February 2023 to the date of this order to pay 6.34% of it incorrectly as the arrears have already been calculated. also giving plaintiff possession of the land title 83 langton street glenroy in the state of victoria in defendant didn't appear on the last hearing due to incorrect communicate on times on that day due to defendant going thru cancer treatments

ORDER SOUGHT:

The defendant seeks orders to stay in the property and finally pay out the plaintiff once the orders get fixed to refinances and stay in the property.[4]

7 For the reasons that follow I have determined that:

1. The Orders should not be set aside pursuant to the inherent jurisdiction of the Court, or r 46.08 of the Rules, by reason of Ms Sambanis not appearing at the Orders Mention on 21 May 2025.

2. Ms Sambanis has not established that the Associate Justice was in error in any of the respects alleged, and none of the grounds of appeal have been made out.

3. Pursuant to r 77.06.9 of the Rules, there should be a minor variation for clarity to paragraph 3 of the Orders so as to specify the actual amount of the judgment debt, so that it reads as follows:[5]

1. The plaintiff recover from the defendant $725,428.63 less any payments and plus interest calculated at the rate of 6.34% per annum from 15 February 2023 to the date of this order, being $775,190.95.

8 The appeal proceeded by reference to a somewhat lengthy 'Amended Appeal Court Book' (Appeal Book) filed on 18 July 2025. The Appeal Book included an affidavit of Ms Sambanis affirmed 3 July 2025, as additional evidence filed in support of the appeal, to which no objection was taken. The Appeal Book materials were also supplemented by the two-page transcript of the Orders Mention on 21 May 2025 (Mention Transcript) and the email exchanges between the Court and the parties (and Mr Borg) during the period 9 to 13 May 2025 regarding the Reasons and the date and time of the Orders Mention, including Mr Borg's 'No worries!' email of 13 May 2025.

9 Ms Sambanis filed a written outline of submissions dated 25 July 2025 (Sambanis Written Submissions), which annexed a number of documents, but also to which no objection was taken by Perpetual.

10 Perpetual filed a written outline of submissions dated 31 July 2025 (Perpetual Written Submissions).

11 Noting that paragraph 3 of the Orders required payments made by or on behalf of Ms Sambanis to Perpetual since 15 February 2023 to be taken into account, and that such payments were not specified or identified in the Orders, the Court requested that Perpetual provide details of the amount said to be owing under paragraph 3 of the Orders, together with calculations of the same, and including the payments it contended were to be taken into account. By email dated 15 August 2025, Perpetual provided the Court, Ms Sambanis, and Mr Borg with its judgment calculations sheet (Initial Judgment Calculations), which was later replaced by a revised judgment calculations sheet (Revised Judgment Calculations).[6] The Revised Judgment Calculations stated the total of the judgment debt to be $775,190.95, and provided Perpetual's calculations of the same, including the payments made by or on behalf of Ms Sambanis since 15 February 2023. A copy of the Revised Judgment Calculations comprises Annexure A to these reasons. Mr Borg, on behalf of Ms Sambanis, provided the Court and Perpetual with a copy of the Revised Judgment Calculations annotated with handwritten notes of Mr Borg (Annotated Revised Judgment Calculations).[7] I considered and took into account each of the Revised Judgment Calculations and the Annotated Revised Judgment Calculations, and treated them as part of each of the parties' respective submissions on the appeal.

12 Given the form of the Orders, for context it is desirable to say something about the claim as it is framed in the writ and statement of claim. The statement of claim is relatively brief, comprising only 11 paragraphs and a prayer for relief. It is in the following terms:

STATEMENT OF CLAIM

1. The Plaintiff is and was at all material times a company duly incorporated in accordance with the Corporations Act 2001 (Cth) and is capable of suing and being sued in its corporate name above set out.

2. The Plaintiff advanced monies to the Defendant under Loan Agreement no. 40 563 933 1 dated 3 January 2022 ("the Loan Agreement").

PARTICULARS

The Loan Agreement is in writing and a copy of the Loan Agreement is available for inspection at the office of the solicitors for the Plaintiff by prior appointment during normal business hours.

1. The Defendant is the registered proprietor of the land described in Certificate of Title Volume 06315 Folio 954 being the land known as 82 Langton Street, GLENROY in the state of Victoria ("the Land").
2. By a mortgage dated 3 January 2022 and registered in the Land Titles Office dealing no. AV436159A the Defendant mortgaged the Land to the Plaintiff ("the Mortgage"). The Mortgage incorporated a memorandum of common provisions registered in the Land Titles Office no. AA3217 ("the Memorandum").

The Mortgage and the Memorandum are in writing and copies are available for inspection at the office of the solicitors for the Plaintiff by prior appointment during normal business hours.

1. The Plaintiff relies on all of the terms of the Loan Agreement, the Mortgage and the Memorandum.
2. The Defendant is in default under the Loan Agreement and Mortgage by breach of her obligation to make instalment payments to the Plaintiff ("the Arrears").

The Defendant failed to make the following payments on the dates specified.

1. By notice to the Defendant dated 26 August 2022 the Plaintiff required payment of the Arrears under the Loan Agreement within thirty-one days after service of the notice ("the Notice").

PARTICULARS

The Notice is in writing and served on the Defendant in accordance with the terms of the Loan Agreement and the Mortgage. A copy of the Notice is available for inspection at the office of the solicitors for the Plaintiff by prior appointment during normal business hours.

1. The Defendant failed to comply with the terms of the Notice within the time specified or at all and the Plaintiff is entitled to possession of the Land pursuant to the Mortgage.
2. As at 15 February 2023 the amount outstanding by the Defendant to the Plaintiff under the Loan Agreement and the Mortgage was in the sum of $725,428.63 with interest continuing to accrue at the rate of 6.34% per day, being $126.01 per day.
3. The Defendant is in possession of the Land.
4. The Plaintiff is entitled to possession of the Land pursuant to the Mortgage and/or pursuant to the provisions of the Transfer of Land Act 1958.

AND THE PLAINTIFF CLAIMS AGAINST THE DEFENDANT:

1. Possession of the Land described in Certificate of Title Volume 06315 Folio 954, being the land known as 82 Langton Street, GLENROY in the state of Victoria.

2. $725,428.63.

3. Interest calculated in accordance with Paragraph 9 at the rate of 6.34%, being $126.01 per day from 15 February 2023 to the date of payment.

4. Alternatively to C, interest pursuant to statute.

5. Costs.

13 Ms Sambanis' defence in response is also short, comprising four paragraphs, which are in the following terms:[8]

As to the allegations in the statement of claim indorsed on the writ [if applicable], the Defendant says:

1. plaintiff email defendant a letter of offer on the 12 september 2024 to removed $14,339.41 bringing the balance to $117,237.88 defendant has sent several emails explaining the same orders to the plaintiff and declined the offer.[ ]plaintiff doesn't reply back to the offer witch [sic] the defendant made.
2. as from 16 october 2024 the amount outstanding with no interest on the account with no added fees is $116,168[.]30 with a payment of $55,750[.]29 all ready [sic] paid defendant offer to pay the remaining of the months that money was put aside of $60,418.01 to pay immediately and make ongoing repayments from 17-11-2-24 of $5,019[.]00 till defendant refinance with other company.
3. plaintiff has mislead the defendant putting payment arrangement to pay the monthly repayments then getting a third party to act on their behalf and served documents without defendant awareness and occur all other charges and not putting the account on hold for 6 months due to defendant cancer stage 3-4 condition there is over $70,000 in legal cost, late fees, interest changers [sic], late payment fees,
4. defendant payments history was paid on time and extra payments were made bring the account over the minimum amount which put defendant in credit due to defendant condition with stage 2-3 cancer the defendant ask several times and doing the application 3-4 times then trying to get defendant x husband to make repayments taking 2-3 months to get an answer on the approval of hardship and calling, emailing, mailing them it became a joke not putting the account on hold for 6 months put defendant with a lot of stress and has put her in stage 3 to stage 4 i believe that plaintiff taking advantage of defendants account as defendant was in credit of her account before the cancer was in place.

14 Although the Summons sought, among other things, an order in the alternative striking out the defence pursuant to r 23.02 of the Rules on the basis that it was a defective pleading, this was not necessary for the Associate Justice to deal with given that her Honour granted summary judgment in favour of Perpetual. Nothing more need be said about this aspect of the Summons for present purposes.

15 Having regard to the evidence, the Associate Justice accurately summarised the background in paragraphs [6] to [38] of the Reasons, which it is efficient and convenient to do in the same terms, which I do in paragraphs 16 to 48 below.[9]

16 On 3 January 2022, Perpetual and Ms Sambanis entered into a Loan Agreement ('Loan Agreement'). Although Perpetual is the lender, it engaged La Trobe Financial Services Pty Ltd ('La Trobe Financial') as its servicer and trust manager.[10] The Loan Agreement is in the form of a letter of offer dated 22 December 2021.[11] Ms Sambanis signed an acceptance of the letter of offer on 3 January 2022.[12]

17 The Loan Agreement stated that Perpetual would advance a maximum sum of $704,000 to Ms Sambanis. Ms Sambanis was required to make 360 monthly repayments over 30 years, with a variable interest rate, at the time 2.99% per annum. The Loan Agreement states that the interest rate can be varied at any time by La Trobe Financial acting reasonably. The Loan Agreement contains 'General Terms and Conditions' including the following clauses:[13]

1. clause 17, stating that by accepting the letter of offer, Ms Sambanis would 'agree to make payments in the amount specified by [Perpetual] monthly';

2. clause 18, stating that in addition to making repayments specified in the Loan Agreement on the date the loan ends, the amount owed must be paid, together with other costs. The total amount outstanding from time to time includes all interest, fees and charges;

3. clause 19, which requires Ms Sambanis to make all payments and pay all credit fees and charges specified in the Loan Agreement;

4. clause 21, stating that the interest rate quoted in the letter of offer is indicative only when the loan is offered. The interest rate payable will be that applicable on the date of the initial drawing of the loan;

5. clause 22, stating that if Ms Sambanis becomes liable by a court order to pay any money due under the Loan Agreement, she must pay interest at the higher rate of that ordered by the court or under the agreement;

6. clause 24, stating that interest accrues daily;

7. clause 28, requiring Ms Sambanis be notified of any changes to the annual percentage rate on or before the rate change;

8. clause 29, providing that if the annual percentage rate changes, the amount of repayments may be changed, and Ms Sambanis will be given at least 20 days' written notice;

9. clause 30, stating that the variable interest rate is set by the credit provider from time to time, who may, acting reasonably, change the rate without consent. It may be changed at any time. The amount of each payment will include any applicable direct debit fees, taxes or charges;

10. clause 33, listing events of default, including failure to pay any money on the due date;

11. clause 36, stating that where any amount due is not paid on the due date, a default rate of interest must be paid as specified in the Financial Table. This is specified to be 5% plus the interest rate applicable to the loan. For example, at the time of the letter of offer that would be a total of 7.99% per annum; and

12. clause 37, stating that enforcement expenses may become payable under the Loan Agreement and any security in the event of default. They include legal costs and expenses, and internal costs.

18 The security Ms Sambanis gave in the Loan Agreement was a mortgage in favour of Perpetual over a land, being 82 Langton Street, Glenroy, Victoria ('Property').[14] The Mortgage was registered on 17 March 2022 in dealing number AV436159A.[15] On the same date, Ms Sambanis was registered as the sole proprietor of the Property.

19 The Mortgage included a memorandum of common provisions ('Memorandum').[16]

20 On 17 March 2022, Perpetual advanced $704,000 to Ms Sambanis, including settlement and account fees.[17]

21 Between 13 May 2022 and 26 February 2025, La Trobe Financial wrote to Ms Sambanis on 15 occasions regarding an increase in the variable interest rate on the Loan Agreement, and on one occasion regarding a decrease in the variable interest rate.[18]

22 On 25 August 2022, Ms Sambanis defaulted on the Loan Agreement and Mortgage by failing to pay $6,946.80.

23 On 26 August 2022, Perpetual's lawyers served a default notice on Ms Sambanis requiring payment of the arrears plus enforcement expenses of $82.50 no later than 7 October 2022.[19] Ms Sambanis failed to make this payment. Perpetual says the total amount owing under the Loan Agreement became immediately due and payable.[20]

24 On 24 October 2022, La Trobe Financial wrote to Ms Sambanis stating that her loan account was in arrears of $11,656.81 and foreshadowing legal action to obtain judgment for possession of the Property.[21]

25 On 7 November 2022, Perpetual's lawyers wrote to Ms Sambanis stating she had missed payments of $14,734.40 and requesting she contact Perpetual within 14 days.[22]

26 On 7 December 2022, La Trobe Financial wrote to Ms Sambanis following a telephone conversation. This email confirmed that Ms Sambanis was looking for tenants for the Property, had stopped working two weeks earlier, and was experiencing health issues. La Trobe Financial requested that Ms Sambanis complete a hardship application and statement of financial position by 28 December 2022 ('La Trobe Financial 7 December 22 email').[23] La Trobe Financial followed this up with another email to Ms Sambanis on 21 December 2022.[24] Ms Sambanis did not complete the application by 28 December 2022. By letter dated 29 December 2022, La Trobe Financial noted it had not received a completed hardship application form, and therefore her application was denied ('La Trobe Financial 29 December 22 letter').[25]

27 On 16 February 2023, Perpetual commenced this proceeding. It seeks possession of the Property, the outstanding sum of the Loan Agreement, and interest.

28 On 10 March 2023, in response to a blank email sent by Ms Sambanis the previous day, La Trobe Financial informed her that the loan was in arrears of $33,318.04 and that the statement of claim had been filed with the Court.[26]

29 On 14 March 2023, La Trobe Financial wrote to Ms Sambanis following a telephone conversation, noting her request for assistance due to financial hardship, and requesting she complete a hardship application by 4 April 2023. On this same date, Ms Sambanis signed a third-party access request to allow her then partner, Mohammad Issa, to communicate with Perpetual on her behalf to 'fix arrears payments'.[27]

30 La Trobe Financial acknowledged receipt of Ms Sambanis' hardship application on 4 April 2023.[28]

31 On 18 April 2023, La Trobe Financial declined the hardship application because Ms Sambanis' financial difficulty would 'not be overcome with further assistance, even in the longer term' ('La Trobe Financial 18 April 23 letter').[29]

32 On 19 April 2023, La Trobe Financial wrote to Mr Issa stating that Ms Sambanis' loan was in arrears of $40,374.52 and proposing options to clear the arrears or repay the loan. La Trobe Financial advised they would consider progressing with further legal action unless a formal arrangement was reached by 2 May 2023 ('La Trobe Financial 19 April 23 email').[30]

33 On 3 May 2023, La Trobe Financial proposed a repayment arrangement in which Ms Sambanis would make monthly payments for a period of three months. This arrangement is documented in a letter dated that day. If Ms Sambanis failed to make a payment, the repayment arrangement allowed Perpetual to issue a seven-day breach notice.[31] On 16 May 2023, Ms De Melo spoke with Ms Sambanis regarding the repayment arrangement, and the following day Ms Sambanis agreed to the arrangement via email.[32]

34 On 24 May 2023, La Trobe Financial issued a seven-day notice letter which recorded a missed payment on 22 May 2023. The notice stated that payment of $9,343.00 was required within seven days ('La Trobe Financial 24 May 23 letter').[33] A similar notice letter was issued on 4 July 2023 regarding a missed payment on 30 June 2023.[34]

35 On 12 July 2023, Mr Issa requested La Trobe Financial remove his third party access. He stated he could no longer commit to the arranged payment and that Ms Sambanis was the sole owner of the Property.[35]

36 On the same date, La Trobe Financial wrote to Ms Sambanis stating that as she had failed to comply with the notice issued on 4 July 2023, the repayment arrangement was broken and they would proceed with legal action. At that time, the loan arrears were stated to be $23,200.69, and the loan balance was stated to be $717,291.40.[36]

37 On 20 September 2023, Perpetual obtained judgment in default of appearance. A warrant of possession of the Property was issued on 3 October 2023.

38 On 1 November 2023, La Trobe Financial wrote to Ms Sambanis requesting that she complete a hardship application and a statement of financial position by 22 November 2023.[37]

39 Between 1 November 2023 and 10 November 2023, La Trobe Financial and Ms Sambanis' current partner, Troy Borg, exchanged correspondence regarding Ms Sambanis' hardship applications and why her loan account was not previously 'frozen'.[38] Mr Borg advised that Ms Sambanis did not require hardship.[39]

40 On 8 December 2023, Ms Sambanis lodged a complaint with the Australian Financial Complaints Authority regarding Perpetual's decision not to provide hardship assistance.[40] Enforcement action was put on hold. This complaint was closed on 5 February 2024.[41]

41 On 4 March 2024, Ms Sambanis applied to set aside the default judgment. Subsequently, on 31 July 2024, the Court set aside the default judgment.

42 Between 6 August 2024 and 24 January 2025, the parties exchanged various correspondence regarding interest, legal costs and repayment arrangements but were unable to reach an agreement.[42]

43 On 16 October 2024, Ms Sambanis filed a defence.

44 On 21 February 2025, Perpetual filed the current application.

45 Perpetual says that Ms Sambanis has remained in default of the Loan Agreement and the Mortgage since the default notice was issued on 26 August 2022.

46 Perpetual's evidence is that as at 29 April 2025, the amount owed under the Loan Agreement is $894,567.43.[43]

47 Perpetual's evidence is that as at 29 April 2025, there were the following amounts owing. There are outstanding arrears of $205,082.79.[44] There is interest of $153,420.78. Legal costs owing are $41,730.76. Other costs include late payment fees ($78,148.42), dishonoured repayment fees ($285), arrears attendance fees ($900), account service fees ($525), an insurance confirmation fee ($50), and a statement fee ($25). A loan activity statement exhibited to the third De Melo affidavit itemises these fees.[45]

48 Perpetual's evidence is that as of 29 April 2025, repayments and credits total $84,379.53.[46] Between 9 May 2022 and 20 February 2024, Ms Sambanis repaid a total of $66,733.38.[47] There is $17,584.41 credited for legal costs from September 2023 to July 2024.[48] These costs relate to Ms Sambanis' successful application to set aside the default judgment.

49 The Summons sought relief in the following form:

To: The Defendant

You are summoned to attend before the Court on the hearing of an application by the Plaintiff for:

1. The Plaintiff has leave to file an application and supporting affidavit by 25 February 2025 for:
   1. summary judgment or order in respect of the relief or remedy sought in the writ and statement of claim filed 16 February 2023 pursuant to sections 61 and 63 of the Civil Procedure Act 2010 (VIC), for an order that the Plaintiff recover from the Defendant:
      1. possession of the land described in Certificate of Title Volume 06315 Folio 954 being the land known as 82 Langton Street, Glenroy in the State of Victoria; and
      2. $725,428.63, less any payments and plus interest calculated at the rate of 6.34% from 15 February 2023 to the date of Judgment.
   2. alternatively to the relief sought in paragraph 1(a), pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 there by judgment for the Plaintiff;
   3. further and alternatively to the relief sought in paragraphs 1(a) and 1(b), pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 the Defendant's Defence dated 16 October 2024 be struck out.
2. Any further order that the Court deems appropriate.
3. No order as to costs.

50 As is apparent, the relevant terms of the Summons were consistent with the claim as framed in the statement of claim and (almost) entirely[49] consistent with the terms of Perpetual's outline of submissions on the summary judgment application. In those submissions it was submitted that the Court should make orders in accordance with the relief claimed in the statement of claim that the plaintiff recover from the defendant:

1. possession of the Property; and

2. the Mortgage debt in the sum of $725,428.63 (February 2023 Amount), less payments from 15 February 2023 to the date of judgment, plus interest at the rate of 6.34% per annum and costs.

51 I also note for completeness that, although the 'Loan Activity Statements' (Loan Activity Statements) in evidence on the summary judgment application and contained in the Appeal Book addressed numerous other amounts and items up to the period 29 April 2025, and recorded a closing loan balance at that date of $894,567.43 (April 2025 Closing Balance), that was not what was claimed. It is apparent that the claim as pleaded and pressed for judgment by Perpetual was only in respect of the amount and interest pleaded in the statement of claim, with summary judgment being sought (and obtained) in respect of a lesser amount than the April 2025 Closing Balance, being the February 2023 Amount, less payments made thereafter, plus interest at 6.34% per annum until the date of the Judgment on 21 May 2025.[50]

The Appeal Notice, further grounds of appeal, and Ms Sambanis' submissions

52 As is apparent from the terms of the Appeal Notice set out above, Ms Sambanis contended that the Associate Justice was in error as follows:

1. In making an order that the plaintiff recover the February 2023 Amount of $725,428.63 and interest at 6.34% from 15 February 2023 to the date of the Judgment because it is incorrect 'as the arrears have already been calculated' (Ground 1).

2. Ordering that the plaintiff give possession of the Property as the defendant did not appear on the last hearing day due to incorrect communications on 'times on that day due to [the] defendant going [through] cancer treatment' (Ground 2).

53 During the appeal hearing, Ms Sambanis, with contributions from Mr Borg, clarified or refined her position in relation to these matters as follows.

54 As to Ground 1, it was said that the making of order 3 was in error because the February 2023 Amount already included interest for the period up to the date of the Orders, and therefore no additional amount of interest should have been included in order 3.

55 In relation to Ground 2, and as is discussed later below, it was ultimately said that Ms Sambanis' non-appearance at the Orders Mention was as a result of a communication error or glitch at Ms Sambanis' end, and that if this had not occurred she would have appeared at the Orders Mention. As I understood it, it also became apparent that Ms Sambanis was not alleging that the Associate Justice was in error in proceeding with the Orders Mention but, rather, paragraphs 1 to 3 of the Orders should be set aside because Ms Sambanis had not appeared at the Orders Mention. This is addressed in more detail later below in the 'Consideration and disposition' section of these reasons.

56 Following exchanges between counsel for Perpetual, the Bench, and Ms Sambanis, it also became apparent that Ms Sambanis wished to pursue an additional ground of appeal (Ground 3), namely that the Associate Justice was in error because any interest calculations for the purpose of order 3 of the Orders should have been calculated by allowing for a six-month interest-free period of the kind Ms Sambanis contended should have been granted by Perpetual (Interest-free Period) in response to her hardship applications.

57 In addition, it was contended that the Associate Justice was in error because the Orders should not have included an order for possession, but should have permitted Ms Sambanis to stay in the Property and provided for a further opportunity for Ms Sambanis to seek to try and refinance the Loan (Ground 4).

58 Counsel for Perpetual did not object to these additional grounds of appeal (being Grounds 3 and 4) being added and pursued at the appeal hearing, and was content for this to occur without the need for Ms Sambanis to seek to formally amend the Appeal Notice. In the circumstances this was a responsible and practical position for Perpetual's counsel to take. Further, and to the extent required, I dispense with compliance by Ms Sambanis with the Rules insofar as they otherwise required her to amend the Appeal Notice to include Ground 3 and Ground 4.

59 In the Appeal Notice, Ms Sambanis also sought orders in place of the Orders that she be entitled to stay in the Property and pay out Perpetual by way of refinancing.

60 In support of her appeal, Ms Sambanis relied upon the Sambanis Written Submissions, the Annotated Revised Judgment Calculations,[51] and oral submissions made during the appeal by Ms Sambanis and, at times, by Mr Borg.

61 Although it was not always straightforward to understand or follow aspects of the written and oral submissions made by or on behalf of Ms Sambanis,[52] the transcript records the numerous exchanges between the Bench and Ms Sambanis (and Mr Borg) where the position of Ms Sambanis was helpfully clarified and refined.

62 In the Sambanis Written Submissions[53] the matters referred to included, among other things, the following:

1. That it was unfair that the interest payable had seen an 'interest jump seven times' from the start of the Loan on 15 March 2022.

2. Due to the plaintiff's medical condition, hardship applications had been made to put the account on hold for six months due to cancer treatments, and Perpetual erred by not putting the account on hold and interest-free for that period.

3. The Judgment seeks to charge 6.35% [sic] interest 'throughout the whole contract' when it should be a 'fair' interest rate given that the interest rate started at 2.99% per annum.

4. Ms Sambanis will look to seek to refinance the Loan when the plaintiff provides a fair and reasonable amount for interest, because the interest amounts charged are in error, in circumstances where the whole interest amount on the account should 'be looked at again'.

5. Ms Sambanis should be given the opportunity to refinance the Loan and it is not fair that the account was not put on hold for six months, with interest rates also going up seven times.

6. Ms Sambanis should be entitled to orders removing the 'default judgment' in order to refinance and to remain in the Property.

7. The order for possession of the Property and recovery of the amounts claimed was made without the defendant's attendance due to miscommunications about whether the hearing was to take place in the afternoon and not the morning, because Ms Sambanis was in hospital in the morning on the day of the Orders Mention.

8. The plaintiff had taken advantage of the position and charged amounts for interest, legal costs and late payment fees. Further, there was an absence of medical documents in the Appeal Book.

9. Ms Sambanis is willing and intends to pay what is a fair amount of arrears but also excluding any added charges on the account, including legal fees and other costs.[54]

10. The fair amount to be paid should be the Loan amount of $704,000, less amounts paid of $58,663.97, less a further amount of $17,584.41, giving a total of $627,751.62, possibly with an additional sum of $35,624.53 if the Court determines that additional legal fees should be paid. Further variations on these matters were evident from the Annotated Revised Judgment Calculations.

63 As mentioned, and had been the case with the hearing before the Associate Justice, on the appeal hearing before me Mr Borg was granted leave to assist Ms Sambanis as her McKenzie friend, and he was given considerable latitude in this context, appropriately without objection by Perpetual. As the transcript of the appeal reveals, through engagement with Ms Sambanis and Mr Borg during their oral submissions, I was able to clarify aspects of what were contended to be the errors of the Associate Justice and the submissions relied upon for the purpose of the appeal, which in substance, were as follows.

64 First, that the February 2023 Amount already included interest for the period up to and including the date of the Orders, and therefore no provision should have been made in the Judgment for interest, at 6.34% per annum.

65 Second, that as a result of what was said to be the communications glitch in connection with Ms Sambanis and Mr Borg, Ms Sambanis did not appear at the Orders Mention on 21 May 2025 in connection with the form of the order consequential upon the Reasons.

66 Third, the Judgment should have allowed for a six-month Interest-free Period as a result of the hardship applications made by Ms Sambanis. I also took it to be submitted that the Associate Justice was in error in concluding that it was open to Perpetual to refuse the hardship applications of Ms Sambanis. In this context it was stated further that if the Interest-free Period had been provided for, then the arrears in the Loan Activity Statements would be different, and Ms Sambanis would have been in a position to have dealt with the interest payments, including with the assistance of her former partner.

67 Fourth, the order for possession of the Property should have been refused so as to allow further time for Ms Sambanis to seek to try and refinance the Loan.

68 In the context of Ms Sambanis' contention that the Orders should be set aside because of her non-appearance at the Orders Mention, there were a number of exchanges between the Bench, Ms Sambanis, and Mr Borg in order to understand and clarify Ms Sambanis' position and submissions, the detail of which is recorded in the transcript and need not be set out in detail here.[55] Ultimately it became apparent that Ms Sambanis was not contending that there had been an error by the Associate Justice, but that, due to what was said to be a communication glitch between Ms Sambanis and Mr Borg, said to have been contributed to in part by Ms Sambanis not sufficiently checking emails during or after she was in hospital on 15 and 16 May 2025 for some treatment, she had not attended the Orders Mention.[56]

69 In this context, and in substance, I understood Ms Sambanis' implicit contention to be that the Court should exercise its inherent jurisdiction (or power under r 46.08 of the Rules) to set aside the Orders because they adversely affect Ms Sambanis, and Ms Sambanis had been absent at the Orders Mention.

70 Cognisant of the Court's inherent jurisdiction to set aside orders in appropriate circumstances where a party is adversely affected by them, but has been absent at a relevant hearing,[57] and being cognisant of Ms Sambanis being self-represented and the Court's obligations in that context,[58] I provided Ms Sambanis with the opportunity to inform the Court about the matters and submissions she wanted to raise in respect of the Orders had she appeared at the Orders Mention. I also informed Ms Sambanis that she had the opportunity in the hearing before me now to raise all and any of these matters for my consideration. In so doing, I was also cognisant of the Court's obligations to take into account the objects referred to in s 9 of the Civil Procedure Act 2010 (Vic) (CP Act), and to seek to give effect to the overarching purpose in s 7 of the CP Act as required by s 8 of that Act, which I have done. The transcript records the details of Ms Sambanis' response about these matters to which I refer, although I will not set out all of its detail.[59]

71 As was apparent from the submissions and matters raised before me by Ms Sambanis and Mr Borg on this topic:

1. Ms Sambanis initially indicated that she wanted to submit that the February 2023 Amount already included all interest that was payable up until the date of the Orders, and that no additional amount of interest should have been included in paragraph 3 of the Orders.[60]

2. At the Orders Mention what Ms Sambanis wanted to submit about the form of the Orders consequent upon the Reasons was the same as the matters she was raising on this appeal.[61]

3. As raised by Mr Borg, it was contended that the February 2023 Amount did not include interest calculated at 6.34%, but was calculated from the starting rate of 2.99% up to about 6 to 8%.[62]

4. Ms Sambanis wanted to resist the order for possession and be given a further opportunity to seek to try and refinance the Loan.

72 Briefly, in the Perpetual Written Submissions, Perpetual submitted that the appeal should be dismissed for the following reasons:

1. Ms Sambanis had not demonstrated any error in the Associate Justice's finding that Perpetual had complied with the hardship provisions in the National Credit Code (contained in Schedule 1 of the National Consumer Credit Protection Act 2009 (Cth)) (Credit Code). It was emphasised that Perpetual was not obliged to grant hardship assistance to a borrower, but simply must consider any request made for hardship assistance and provide the applicant with notice of its decision in accordance with the provisions of the Credit Code.

2. The Loan Agreement provided that the annual interest rate applicable to the Loan was a variable rate. While the interest rate at the time the Loan Agreement was entered into was 2.99% per annum, the terms of the Loan Agreement made clear that Perpetual could vary the rate of interest at any time, irrespective of Ms Sambanis' consent. It was also said that a notice of rate change was issued to Ms Sambanis on 10 February 2023,[63] which advised of the then new rate of 6.34% per annum, also being the pleaded rate and the rate used in the Orders.

3. Clause 7.8 of the memorandum of common provisions included in the Mortgage provided that Ms Sambanis would be required to pay 'the costs of the mortgagee exercising its rights under the mortgage ... (eg lawyer's fees on a full indemnity basis ...)', and a similar provision is found at clause 37 of the Loan Agreement.

4. Ms Sambanis was afforded procedural fairness. She was aided by a McKenzie friend, Mr Borg at the hearing of the summary judgment application. Further, Ms Sambanis and Mr Borg were given an opportunity to make submissions in opposition to the application, and the Court permitted Ms Sambanis to file a further affidavit after the conclusion of the hearing and before the Associate Justice delivered her ruling.

5. Ms Sambanis was also given clear advance notice of the Orders Mention, that was set on a date to suit her personal circumstances. Despite being aware of the hearing on 21 May 2025, neither Ms Sambanis nor Mr Borg attended the hearing, and the Orders were permissibly made in her absence, and the Orders were consequential on the Associate Justice's ruling and Reasons in any event.

73 Perpetual's Written Submissions were supplemented by succinct oral submissions made by counsel for Perpetual. During these submissions the matters raised on behalf of Perpetual included the following.

74 Counsel confirmed that there was no objection to the alleged hardship application error or other alleged additional errors being raised by Ms Sambanis, notwithstanding that they were not referred to in the Appeal Notice. Counsel also informed the Court that Perpetual did not have any objection to the acceptance of the additional evidence put forward by Ms Sambanis on the appeal.[64] This was a responsible and appropriate position for counsel to take in the circumstances.

75 With respect to the alleged hardship application error, Perpetual submitted that the Associate Justice was plainly correct to conclude that it was open to Perpetual not to accept the hardship applications of Ms Sambanis, contending that there was no contractual, statutory or other obligation to do so. It was said that Perpetual accepted that there was an obligation on its part to consider the applications and give notice of its decision, which it submitted is what occurred.

76 As regards the contention that the February 2023 Amount included interest for the period from 15 February 2023 until the date of the Orders, it was submitted that this was simply wrong. Reliance was placed upon the terms of the Loan Agreement regarding, among other things: interest being payable; variable rates and notice; the notice of rate change given in respect of the interest rate of 6.34%; the February 2023 Amount being the amount shown as outstanding during the period 6 and 20 February 2023, as evidenced by the Loan Activity Statements; and the form of the claim as pleaded and pursued in the Summons.

77 With respect to the non-appearance of Ms Sambanis at the Orders Mention, it was submitted that Ms Sambanis had been given a full opportunity to be heard at the hearing of the summary judgment application, including through her McKenzie friend on that occasion, Mr Borg. It was further contended that the communications with the Court revealed plainly that Ms Sambanis and Mr Borg had been provided with clear notice of the date and timing of the hearing and the relevant link for the audiovisual hearing. It was submitted that there was no error on the part of the Court in proceeding with the Orders Mention. It was further contended that the evidence regarding the explanation of Ms Sambanis was less than satisfactory, and that even if Ms Sambanis had been present at the Orders Menton, no different result would have followed in any event.

78 As previously noted, Ms Sambanis appeared on her own behalf, with the assistance of Mr Borg, as her McKenzie friend. In conducting the appeal and thereafter, I was conscious of the Court's obligations when dealing with self-represented litigants, and endeavoured to ensure that they were complied with. The proper approach to be taken in such circumstances was recently addressed by the Court of Appeal in Turner v Norwalk Precast Burial Systems Pty Ltd,[65] as follows:

1. When considering the obligations of a judge in respect of a self-represented litigant, the authorities highlight the flexibility of the applicable requirements.
2. In Trkulja v Markovic ('Trkulja'),[66] this Court examined a number of authorities, as well as the rationale for a judge's duty in respect of self-represented litigants, before also highlighting the protean nature of the duty:

Whatever the rationale for the judge's duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.[67]

65 The Court further stated:

In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.[68]

1. The Court also observed that the judge should not become the advocate of the self-represented litigant and must maintain the reality and appearance of judicial neutrality at all times and to all parties.[69]
2. In 2018, this Court delivered two further decisions where a self-represented litigant complained about a lack of procedural fairness: Roberts v Harkness[70] and Doughty-Cowell v Kyriazis ('Doughty-Cowell').[71] In the second of these decisions, that of Doughty-Cowell, the Court helpfully collated the following relevant principles, highlighting the need to avoid 'practical injustice':

(1) Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(2) The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.

(3) What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:

• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision; and
• the competing demands of the time and resources of the Court.

(4) The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.

(5) The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:

The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant's verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant's case.[72]

79 This appeal is brought by notice under r 77.06 of the Rules. Rule 77.06 of the Rules addresses appeals from an Associate Justice to the Trial Division constituted by a Judge of this Court. In part, it is in the following terms:

77.06 Appeals to Trial Division constituted by Judge of the Court

An appeal under section 17(3) of the Supreme Court Act 1986 to the Trial Division constituted by a Judge of the Court from a determination of the Trial Division constituted by an Associate Judge shall be brought in accordance with Rules 77.06.1 to 77.06.9.

Note

Special provision is made in Rule 16.5(1) of Chapter V in relation to Corporations matters.

An appeal referred to in Rule 77.06 shall be brought by notice in accordance with this Order.

...

77.06.3 Contents of notice of appeal

(a) whether the whole or part only and, if as to part, which part, of the judgment or order of the Associate Judge is the subject of the appeal; and

(b) specifically and concisely the grounds of appeal and the judgment or order sought in place of that from which the appeal is brought.

(2) A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal.

(3) A notice of appeal may be amended at any time by leave of a Judge of the Court.

...

**77.06.6 Stay Unless a Judge of the Court otherwise orders - **

(a) an appeal referred to in Rule 77.06 shall not operate as a stay of execution, or of proceedings, under the judgment or order;

(b) no intermediate act or step shall be invalidated.

...

77.06.9 Powers of Judge of the Court hearing appeal

(1) On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.

(2) The Judge of the Court shall have power to -

(a) receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;

(b) draw inferences of fact;

(c) give any judgment and make any order which ought to have been given or made; and

(d) make any further or other order as the case may require.

(3) The powers of a Judge of the Court under this Rule may be exercised notwithstanding -

(a) that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of the appeal or by any particular party to the proceeding before the Associate Judge; or

(b) that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.

80 Appeals from Associate Justices are also addressed in Practice Note SC Gen 8 dated 10 July 2018, to which I refer but need not discuss further.

81 An appeal from an Associate Justice is an appeal by way of rehearing. In the absence of further evidence or a change in the law, the rehearing will ordinarily require the appellant to show error (factual, legal or discretionary) on the part of the Associate Justice before appellate power may be exercised. In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure, an appellate court will exercise caution in reviewing the decision.[73]

82 The High Court in Allesch v Maunz (Allesch)[74] explained, in part, the difference between a rehearing and a hearing de novo as follows:[75]

1. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.

83 In Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi,[76] Elliott J observed that the following principles apply to a discretionary decision upon an appeal by way of rehearing:

1. However, before a discretionary decision of a court may be overturned, the appellant must show an error of the kind identified in House v R.[77] In that case, it was stated:[78]

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [she or] he allows extraneous or irrelevant matters to guide or affect [her or] him, if [she or] he mistakes the facts, if [she or] he does not take into account some material consideration, then [her or] his determination should be reviewed and the appellate court may exercise its own discretion in substitution for [her or] his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in [her or] his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

1. In some instances, it may not be possible to identify with sufficient certainty the exact class of error made by the trial judge. Nevertheless, where the decision is so unreasonable or plainly unjust, the appellate court may infer that an error of the kind described in House v R has occurred and that the decision should be overturned.[79]
2. However, there is a strong presumption in favour of the correctness of a discretionary decision and the authorities make clear that the judgment the subject of rehearing should be overturned only if it is "clearly" or "plainly" wrong.[80] In other words, an appellate court must be persuaded that the order stands outside the limits of "sound discretionary judgment" before it intervenes.[81]
3. Indeed, insofar as the 4 classes of error identified in House v R are concerned:

(1) Acting upon a wrong principle will only invalidate a decision where the principle is a "binding rule rather than a guideline".[82] A failure to apply a guideline will not, of itself, amount to error. This is because there may be instances where it is inappropriate to follow a guideline or, regardless of the failure to apply it, the overall decision is still the product of a sound discretionary judgment.[83]

(2) A mistake of fact must be "clearly wrong".[84]

(3) Considering an irrelevant factor or failing to consider a relevant factor will only warrant setting aside a discretionary decision if it "really amounts to a failure to exercise the discretion actually entrusted to the court".[85]

1. Further, the court will be slow to overturn a discretionary decision on the grounds that the primary judge failed to give appropriate weight to various factors. The "constant emphasis" of the authorities is that an appellate court should not overturn a decision merely because it would have accorded the factors different weight. This is especially so where the assessment of weight is likely to have been affected by seeing and hearing the parties at first instance, which only the primary judge has had the opportunity to witness. Although there has been no trial in this proceeding, this principle remains relevant to the extent that her Honour observed and then took into account Mawhinney's conduct during the previous examination hearings in arriving at the conclusions that she did on this particular issue.
2. In short, the onus borne by an appellant seeking to disturb a discretionary decision is heavy.[86]

84 Bearing in mind that this is an appeal in respect of judgment given upon a summary judgment application made pursuant to ss 61 and 63 of the CP Act, and noting also the terms of s 64 of the CP Act, the principles relevant to such applications are to be kept firmly in mind. These principles have been rehearsed in countless authorities and are well established. For present purposes, it is sufficient to refer to, without setting out, the observations of Sloss J on the topic in Bendigo and Adelaide Bank Limited v Grahame (Bendigo).[87]

The Reasons and ruling of the Associate Justice

85 As earlier noted, in the Reasons the Associate Justice carefully addressed the background at some length. It is apparent from the 'Background' section of these reasons above that this background included: the terms of the Loan Agreement; the security; the communications that had passed between Perpetual and Ms Sambanis, or others acting on her behalf, regarding events since the Loan was advanced; the various defaults by Ms Sambanis; the hardship applications made by Ms Sambanis and determined adversely to her by Perpetual; the amounts owing under the Loan Agreement; notices of default; the arrears history; and aspects of the procedural history in this proceeding.

86 The Reasons then set out the well-established principles applicable to summary judgment applications in an orthodox fashion, addressing the terms of the relevant Rules, ss 61 and 63 of the CP Act, and the frequently cited relevant principles addressed by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[88]

87 The Associate Justice then appropriately addressed the relevant issues in turn, dealing with the parties' respective submissions, followed by her Honour's analysis and conclusion in relation to each of the issues. These issues included: Perpetual's decision to decline hardship;[89] interest rates; the amount of interest;[90] legal and enforcement costs;[91] and amounts in arrears.[92]

88 For the reasons set out in the Reasons, the Associate Justice concluded that Ms Sambanis had no real prospect of defending the proceeding, observing further that Perpetual was not obliged to accept Ms Sambanis' hardship applications. Her Honour also noted that: Ms Sambanis had entered into the Loan Agreement with Perpetual; the Loan Agreement provided for monthly repayments and a variable interest rate; Perpetual advanced the Loan monies under the Loan Agreement; and that Ms Sambanis had defaulted on loan repayments, with the account being in arrears for an extended period. The Associate Justice also concluded that there was no basis pursuant to s 64 of the CP Act to allow this matter to continue to trial, that it would be contrary to the interests of justice to do so, and that to do so would simply cause further delay and expense for both parties.

Publication of the Reasons and the Orders Mention on 21 May 2025 in more detail

89 As earlier mentioned, the Reasons were provided to the parties and Mr Borg by email from the chambers of the Associate Justice on 9 May 2025, together with an attached proposed form of order. As addressed in the introduction and summary above, the relevant email also asked that the parties inform her Honour's chambers by midday on 12 May 2025 as to whether either party wished to be heard on the proposed orders consequential to the ruling, which were attached. If they did, it was said that a hearing would be listed the following week. The attached orders were relevantly in the same form as the Orders ultimately made, subject to the correction of a typographical error in paragraph 3 of the attached orders, where reference had been made to the defendant rather than the plaintiff.

90 By email in reply sent on behalf of Perpetual the same day the typographical error was pointed out. A revised proposed order correcting this error was sent to the parties and Mr Borg a few minutes later by the chambers of the Associate Justice (Chambers), which again asked that they be notified if any of the parties wished to be heard on the form of orders.

91 On 9 May 2025 at 11:35am Mr Borg sent an email to Chambers thanking Perpetual's representative for her email correcting the typographical error, and requesting some information from Perpetual in connection with a stated desire to refinance the Property. By an email sent at 2:24pm on Monday 12 May 2025, Mr Borg also informed Chambers that Ms Sambanis would like to be heard on the form of orders. By a further email sent to Chambers by Mr Borg a few minutes later, he asked if the matter could be heard, as he had requested the plaintiff to send him a final amount but that he had heard nothing back since the Orders had been made.[93]

92 The parties were informed on 12 May 2025 by email from Chambers that the matter was listed for 'orders consequential to the ruling' at 2:15pm on Thursday 15 May 2025 before the Associate Justice, with the hearing to take place by audiovisual means so as to accommodate Ms Sambanis and Mr Borg. Mr Borg responded by an email the following day asking that the matter be adjourned, as Ms Sambanis would be in hospital for two days, being Thursday 15 May 2025 and Friday 16 May 2025, undergoing treatment. Mr Borg also thanked the Court for its understanding, stating that from 19 May 2025 onwards 'should be fine' for the hearing.

93 Chambers responded to the parties and Mr Borg the same day indicating that the matter would be relisted for the hearing on the orders consequential to the Reasons at 9:30am on Wednesday 21 May 2025, again proceeding audiovisually. The email drew attention to the audiovisual link, which was included in the email. By an email sent later that day, the solicitor for the plaintiff confirmed that she could appear in the morning of that day, and as earlier mentioned Mr Borg responded about 20 minutes later stating 'No worries!'.[94]

94 As was apparent from the emails, all of the emails referred to were sent by, sent to, or copied to Chambers, Ms Sambanis, Mr Borg, and Perpetual.

95 The brief Orders Mention proceeded on 21 May 2025, at which Perpetual's solicitor, Ms Nagam, appeared audiovisually on behalf of Perpetual. There was no appearance by Mr Borg or Ms Sambanis. The hearing proceeded and was transcribed in a little less than two pages, which was added to the Appeal Book materials shortly before the appeal. The Mention Transcript records that the Associate Justice noted the history of communications after delivering the ruling, including Mr Borg's 'No worries!' response. Her Honour also enquired of Ms Nagam as to whether anything further had been heard by Perpetual from Mr Borg or Ms Sambanis, and the Court was informed that nothing further had been heard from either of them, with the last email received being Mr Borg's 'No worries!' email.

96 At the Orders Mention, the Associate Justice noted that, subject to tidying up the typographical error (that had previously been picked up and altered in the revised proposed orders previously sent by Chambers to the parties and Mr Borg), Perpetual was content with the orders. Ms Nagam stated on behalf of Perpetual that there was no dispute or issue with the orders for the plaintiff to receive judgment for the amount referred to, and no 'dispute or qualm' with the other proposed orders. The Mention Transcript records that the Associate Justice observed that she had given Ms Sambanis the opportunity to be heard, but was only dealing with consequential orders on the Reasons and ruling in any event. It was further noted that Ms Sambanis and Mr Borg had not appeared so she would proceed to go ahead to make the orders in the form that had been previously circulated.

97 That is what then occurred, with the Associate Justice also recording in the 'Other Matters' section of the Judgment the history of the communications leading up to the Orders Mention and the opportunity Ms Sambanis and Mr Borg had to be heard. The Orders were then made in the form earlier referred to.

98 For the reasons that follow I have concluded that:

1. The Orders should not be set aside pursuant to the inherent jurisdiction of the Court, or r 46.08 of the Rules, by reason of the Orders having been made at the Orders Mention in the absence of Ms Sambanis.

2. Ms Sambanis has not established that the Associate Justice was in error in any of the respects alleged, and none of Ms Sambanis' grounds of appeal have been made out.

3. Although not a ground of appeal put forward by any party, it is appropriate to make an order pursuant to r 77.06.9 of the Rules to slightly vary paragraph 3 of the Orders so as to specify for clarity the amount that Perpetual is entitled to recover pursuant to paragraph 3 of the Orders, noting also that this was a course expressly supported by each of Perpetual and Ms Sambanis at the appeal hearing.[95]

99 I turn first to Ms Sambanis' contention that the Orders should be set aside because they were made at the Orders Mention in her absence, following which I consider and address the grounds of appeal relied upon, and then address the proposed (agreed) variation to paragraph 3 of the Orders.

Ms Sambanis' absence at the Orders Mention - Court's power to set aside orders

100 It is appropriate to address this issue before turning to the grounds of appeal. This is because, if the Orders should be set aside by reason of Ms Sambanis' absence at the Orders Mention pursuant to the inherent jurisdiction of the Court, or r 46.08 of the Rules, it would not strictly be necessary to proceed to consider the grounds of appeal. This is so because the Orders would be set aside irrespective of the grounds of appeal raised. Indeed, if the Orders were to be set aside on this basis there would be no orders that could be the subject of a valid appeal.

101 I should also note that although, as a self-represented litigant, Ms Sambanis (and Mr Borg) did not expressly address this Orders Mention absence issue through the lens of the inherent jurisdiction of the Court, or r 46.08 of the Rules, it is in my view readily apparent that, in substance, this is primarily what Ms Sambanis' Orders Mention absence complaint was directed to. So much is evident from the nature of the complaint itself, the references to it in the Appeal Notice and the submissions, and the exchanges on the topic that occurred during the appeal hearing. For the Court to approach the matter in this way is fair and just to the parties, consistent with the Court's obligations when dealing with a self-represented litigant, and sits well with the overarching purpose under s 7 of the CP Act and the Court's obligation under s 8 of that Act to seek to give effect to that purpose.

102 There is no doubt that the Court has inherent jurisdiction in appropriate circumstances to set aside orders adversely impacting a party where they were made in their absence, and where not to do so would result in injustice or a miscarriage of justice. This has been stated and addressed in numerous authorities over many years and is well established. It is sufficient for present purposes to briefly draw attention to the following.

103 In Winn v Blueprint Printing Pty Ltd (Winn),[96] Kaye J considered an application to set aside an order for costs made in the absence of a party. His Honour, when discussing both the inherent jurisdiction of the Court and r 46.08 of the Rules, stated the following:[97]

As I stated, the first clause of the applicant's summons which is before me seeks orders setting aside the orders of Byrne J of August 2006. That application has been made under r 46.08 of the Rules of the Supreme Court. That rule was introduced for the first time in this State in 1986. However, hitherto it had been recognised that this Court has an inherent jurisdiction to set aside any order that was made in the absence of a party. Generally, where such an order has been made, the applicant who seeks to have it set aside must show, firstly, a reason why he or she did not attend and, secondly, that the applicant has an arguable case why a different order might be made than was made in his or her absence. In addition, any such application must be made without undue delay and issues of prejudice to the respondent are relevant: see, for example, Rosing v Ben Shemesh.[98] In my view, similar principles should be applied to Order 46.08.

104 In Von Risefer v Mainfreight International Pty Ltd,[99] the Victorian Court of Appeal similarly observed:[100]

There is power under the Rules to set aside an order made on an application when notice was given to a party but the party did not attend. See r 46.08(2)(a). There is also power to set aside a judgment or order made at trial in the absence of a party. See r 49.02(2). Still further, the court has an inherent power to set aside a judgment or order made in the absence of a party. But even if the applicant had sought to set the winding-up order aside, I consider that she must have failed. Ordinarily, to succeed, an applicant must show some reason why he or she did not attend. In the present case, it can be surmised that the applicant would say that she was not served with originating process. That should not be accepted. Further, the applicant would be unable to show, in my judgment, any prospect that a different order would have been made had she been in attendance.

105 In Allesch,[101] the plurality (Gaudron, McHugh, Gummow and Hayne JJ) discussed a court's inherent power to set aside orders, and the relevance of s 79A of the Family Law Act 1975 (Cth), which allows the Family Court to set aside a property settlement order if 'there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance'. Their Honours observed:[102]

[25] There was discussion in the majority judgment of the Full Court as to whether the discretion to set aside the property settlement orders arose under the property settlement orders, themselves, pursuant to s 79A of the Act, or pursuant to the inherent power of the Family Court identified by this court in Taylor v Taylor. Section 79A has been amended since the decision in Taylor and, by subs (1)(a), the Family Court may now, in its discretion, set aside a property settlement order, if satisfied that "there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance". There can be no doubt that the expression "any other circumstance" is wide enough to encompass the situation in which an order has been made in the absence of a party. Accordingly, s 79A must now be construed as applicable to that situation.

[26] Given that s 79A(1)(a) now confers power on the Family Court to set aside an order made in the absence of a party, it may be doubted whether there is any longer any scope for the exercise of inherent power in that regard. And even if the husband's application to set aside the property settlement orders was made pursuant to those orders rather than pursuant to s 79A of the Act, the orders could not be set aside on any basis other than that directed by that section, namely, that the court was satisfied that there had been a miscarriage of justice. However, nothing turns on the nature of the application or the source of the discretion which Finn J was called to exercise and which the Full Court exercised in dismissing the appeal from her Honour's judgment. That is because there is nothing in s 79A of the Act to suggest that the discretion thereby conferred is to be exercised on any different basis from that applicable in the case of an inherent discretion.[103]

106 Their Honours went on to outline the criteria for when an order would be set aside for a 'miscarriage of justice', in the context of the Act under consideration and the inherent jurisdiction:

[28] The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.

107 In separate reasons, Kirby J elaborated on the obligation to afford a fair hearing and relevantly observed as follows:[104]

[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice".[105] It is a rule of natural justice or "procedural fairness".[106] It will usually be imputed into statutes creating courts and adjudicative tribunals.[107] Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.[108]

...

[36] The rule is also implicit in international principles of human rights.[109] It is inherent in the proper conduct of judicial proceedings in a court of law.[110] It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution.[111] So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions,[112] to administrative tribunals[113] and other decision-makers.[114] The principle governed the Family Court of Australia in determining the rights of the present parties.

...

[38] The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ (the joint reasons).[115] Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.[116] Affording the opportunity is all that the law and principle require.

[39] Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

[40] Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this court has itself accepted),[117] the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

[41] Nevertheless, mistakes occur.[118] In legal proceedings, they sometimes occur because of defaults on the part of lawyers which, in a particular case, ought not to be visited on an innocent client.[119] In the present litigation, it is worth noting that at the original hearings on 19 May 1995 and 14 June 1995 before the primary judge, Finn J, which the appellant did not attend, he could have been represented by a lawyer or some other person authorised to speak for him. Such a person could have sought an adjournment and explained the appellant's circumstances. At least on 14 June 1995, that person could have placed before the primary judge evidence of the appellant's recent cardiac surgery.

...

[47] It has been suggested that there is a particular rule that governs the setting aside of a judicial order made in the absence of a party (or perhaps a witness) where that absence is adequately explained and promptly brought to the notice of the court concerned.[120] In such a case it is said justice ordinarily "demands" a rehearing.

[48] I am not inclined to approach the matter as if a special rule of law, universally applicable, solves the problem presented by every such case. First, the ultimate duty of a court, where a legislative provision exists which governs the circumstances of reopening, is to conform to that provision. The court must endeavour to fulfil the expressed requirements and the implications derived as to the purposes for which the power has been provided.[121] Secondly, the considerations that inform a decision permitting, as here, repair of a "miscarriage of justice" are so many and varied that it is impossible to narrow them down to the "demands" of a single consideration unless it be that connoted by the very phrase used in the statute itself. Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:

(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and

(2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.[122]

[49] If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders[123] and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice.[124]

[50] Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.

108 There is a parallel express power in the Rules, being r 46.08, that deals with setting aside or varying an order which (relevantly) affects a person where an application for the order was heard in the absence of a person who had notice of the application. The rule is in the following terms:

46.08 Setting aside

The Court may set aside or vary an order which affects a person where the application for the order -

(a) was made on notice to that person, but the person did not attend the hearing of the application; or

(b) was not made on notice to that person.[125]

109 With respect to the operation of r 46.08 of the Rules, I refer to the observations of Kaye J in Winn[126] set out above. The operation of the rule was also recently addressed by Daly AsJ in Chang v Chang as follows:[127]

[26] The set-aside application seeks that the 4 February orders be set aside pursuant to r 24.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). However, I shall proceed on the basis that the summonses seek relief pursuant to r 46.08 of the Rules. Rule 46.08(a) provides as follows:

The Court may set aside or vary an order which affects a person where the application for the order was made on notice to that person, but the person did not attend the hearing of the application.

[27] The learned authors of 'Civil Procedure Victoria'[128] made the following observations in their commentary upon the operation of r 46.08:

...the application to set aside should be determined according to the considerations that are relevant on an application under r 21.07 to set aside or vary a judgment regularly entered or given in default of appearance or defence. A material matter on an application under r 21.07 is the explanation of the defendant for not taking the step in question.[129]

[28] The learned authors refer to the following matters as being relevant to the exercise of the discretion to set aside a regularly obtained default judgment in an application under r 21.07 of the Rules:

(a) whether the defendant has a defence on the merits;

(b) the reason for the default of the defendant in consequence of which the judgment was obtained;

(c) whether the application to set aside the judgment was made promptly after the judgment came to the knowledge of the defendant; and

(d) whether if the judgment was set aside the plaintiff would be prejudiced in any respect which could not be adequately compensated for by a suitable award of costs and the giving of security.[130]

[29] In his submissions, counsel for Victor referred to the decision of the High Court in Allesch v Maunz,[131] which referred to two criteria said to be critical to determining whether a decision made in default of appearance of a party ought be set aside, namely:

that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and

that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.[132]

110 There are equivalent or similar rules in relation to non-appearance at applications or at trial in the Federal sphere, and in various other States.[133]

111 In Sivaprakasam v Minister for Immigration and Border Protection, in the context of an application to set aside a decision which dismissed a proceeding for failure to appear, Beach J of the Federal Court stated as follows:[134]

In an application to set aside a decision which has dismissed a proceeding for failure to appear, the applicant must usually satisfy two criteria. First, the applicant must provide an adequate explanation for his failure to appear. Second, the applicant must also show that he has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [48] per Kirby J). Alternatively expressed, if no different result would be reached on a rehearing, then an application to set aside may be refused (Allesch at [28] per Gaudron, McHugh, Gummow and Hayne JJ).

112 In Polis v Zombor (No 5), O'Bryan J summarised the principles applicable to r 39.05 of the Federal Rules as follows:[135]

[43] The discretion permitted to the Court by r 39.05, while in its terms unconfined, should ordinarily be exercised only in exceptional circumstances, bearing in mind the overarching principle of the finality of litigation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (ActiveSuper) at [6] per Gordon J, citing Paras v Public Service Body Head of the Dept of Infrastructure (No 2) [2006] FCA 652; 152 IR 352 (Paras) at [4]. Generally, the exercise of the discretion is limited to circumstances where it can be shown that, without fault on the part of the applicant, he or she has not been heard on a relevant question: Deputy Cmr of Taxation v Berhad (No 2) [2010] FCA 1296; 81 ATR 40 (Berhad (No 2)) at [10]; Wati v Minister for Immigration & Multicultural Affairs [1997] FCA 1052; (1997) 78 FCR 543 at 550-553. An application under r 39.05 is not an appeal and is not the appropriate means by which to contend that the Court's orders are affected by an error of law: ActiveSuper at [15] per Gordon J citing Paras at [5] and Dudzinski v Centrelink [2003] FCA 308 at [11].

[44] In determining whether to exercise the discretion permitted by r 39.05(a), "...it is usual for the court in these circumstances, to have regard to the explanation given by the absent party for its absence, and whether the evidence discloses a defence of sufficient merit to warrant setting aside the order ...": 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6]; followed in Lal v Minister for Immigration & Border Protection (No 2) [2014] FCA 892 at [9] per White J. The requirement of a reason for the absence is based in the fundamental principle that a party should be bound by a decision if he or she has had full notice and an opportunity to appear and oppose the proceedings: Berhad (No 2) per Kenny J at [10], citing Ratcliffe v Barnes (1862) 2 Sw. & Tr 486; 164 ER 1085 at 1087, applied by Payne J in Re Barraclough (dec'd) [1967] P1 at 10-11; Nicholson v Nicholson [1974] 2 NSWLR 59 at 66. In respect of the second element, the court should consider whether the respondent has a prima facie, arguable, defence: Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664; (2004) 141 FCR 370 at [51]-‍[52] per R D Nicholson J.

113 I also refer to, but will not set out, the discussion by Lindsay J of r 36.16(2)(b) of the NSW Rules in Gall v Pham (No 2).[136] In this discussion emphasis was placed on, among other things: the central question of whether it is 'unjust to let the perfected order stand';[137] the value attached to certainty in the outcome of litigation; and the need to 'pay attention to the important principle of finality in litigation'.[138]

114 Having considered the material, the submissions, the relevant authorities, and applying the relevant principles and taking into account the Court's obligations under the CP Act, including seeking to give effect to the overarching purpose in s 7 of that Act, in my view it is clear that the Orders should not be set aside by reason of having been made at the Orders Mention in the absence of Ms Sambanis on 21 May 2025. I elaborate briefly below as to why.

115 On the evidence before me, but appropriately taking into account the challenges and limitations consequent upon Ms Sambanis' status as a litigant in person, I am not satisfied that an adequate or satisfactory explanation for Ms Sambanis' absence at the Orders Mention has been provided. I note the following in this regard:

1. The email exchanges between the Court, Perpetual's solicitors, Ms Sambanis, and Mr Borg, earlier referred to, establish that: the Court altered the time of the Orders Mention to suit the availability of Ms Sambanis; the date, time, and audiovisual link were provided to Ms Sambanis and Mr Borg seven days in advance of the Orders Mention; and Mr Borg responded with his 'No worries!' email. Further, there was no evidence of any further email contact from Ms Sambanis or Mr Borg leading up to the Orders Mention, or on the day of it.

2. In the Sambanis Written Submissions the first paragraph reads in part as follows:[139]

The other order was defendant to give possession of the land title 83 langton street glenroy in the state of victoria decision was made without defendant attended due to miscommunications on the same day to do it in the afternoon the hearing not in the morning because defendant still in hospital till the afternoon and the whole amount on the account needs to be looked at again making a decision based on no paperwork plaintiff hasn't provided the full amount with a breakdown of monthly payments legal costs late fees interest changes.

3. There was no corroborating documentary evidence of Ms Sambanis being in hospital on the morning of the Orders Mention or any other part of the day, and the submission that she was in hospital also sat in tension with Mr Borg's email to the Court prior to the Orders Mention in which he stated that Ms Sambanis would be in hospital on 15 and 16 May 2025, but that any date from 19 May 2025 for the Orders Mention would be okay.

4. Further, upon enquiry from the Bench with Ms Sambanis during the appeal hearing, it became apparent that Ms Sambanis was not in fact in hospital on the day of the Orders Mention. It follows that the 'in hospital' explanation given in the Sambanis Written Submissions for her non-attendance was not accurate.[140]

5. Ms Sambanis' statements to the Court during the appeal hearing that at the time she did not read emails carefully enough and left it to Mr Borg, who she described as her litigation guardian, were also less than entirely clear.[141]

6. The email sent by Chambers to Ms Sambanis giving details of the date and time of the Orders Mention, and providing the audiovisual link, was sent to Ms Sambanis and Mr Borg on 13 May 2025, allowing more than a reasonable time for Ms Sambanis to review emails after leaving hospital on 16 May 2025 and prior to the Orders Mention on 21 May 2025.

7. Further, during the appeal hearing Ms Sambanis stated that she had raised the question of the hearing with Mr Borg on the day of the Orders Mention,[142] and this rather suggested that Ms Sambanis was aware, even on the day, that the Orders Mention was to take place.

8. Although Mr Borg asserted during the appeal hearing that he had sought to access the audiovisual link at 9:15am on the day of the Orders Mention but was unsuccessful, on the material before me, it would be unsound for the Court to act on this assertion. I note in this regard that there was no reference to any such attempt in the submissions or other material before the Court, including the affidavit filed by Ms Sambanis as late as 3 July 2025 as additional evidence on the appeal. Further, there was no evidence or suggestion of a further email being sent to the Court by Mr Borg when the alleged unsuccessful attempt to access the audiovisual link was said to have been made. In addition, the transcript records that the Orders Mention proceeded by the 'Zoom' audiovisual link, and it is apparent from the transcript that Perpetual's solicitor was able to access the hearing.[143]

9. In the circumstances, and noting also the inaccurate statement in the Sambanis Written Submissions that Ms Sambanis was in hospital on the morning of the Orders Mention, it would be unsound for the Court to act upon Mr Borg's belated assertion from the (metaphorical) Bar table, as Ms Sambanis' McKenzie friend and partner, that he sought to join the Orders Mention at the time. For present purposes, and on the material before the Court, I do not accept that the evidence established that this occurred.[144]

116 In the circumstances, and having regard to the evidence and submissions, it is in my view plain that an adequate explanation for Ms Sambanis' and Mr Borg's absence at the Orders Mention has not been provided to the Court.

117 In any event, even if an adequate explanation had been given, or I was satisfied that which was put forward established the existence of an adequate explanation, I would not have set aside the Orders by reason of the absence of Ms Sambanis at the Orders Mention. This is because no injustice or miscarriage of justice has occurred by reason of Ms Sambanis' absence at the Orders Mention. This is so because even if Ms Sambanis had raised the matters that she informed the Court she wished to raise at the Orders Mention - which, as stated earlier, were the matters raised in the appeal hearing - no different result would have followed. In this regard I refer to the below reasons, and the conclusions I have reached in relation to the appeal grounds regarding why the appeal has not succeeded.

118 It may also be observed that, as the Associate Justice correctly described it, the Orders were consequential to her Honour's ruling granting summary judgment in favour of Perpetual. Further, it is apparent that, had the matters raised on appeal been sought to have been raised at the Orders Mention, most, if not all, would in substance have amounted to a repetition of points previously made by or on behalf of Ms Sambanis during the summary judgment application, in which Ms Sambanis and Mr Borg had already fully participated, and which were addressed and ruled upon in the Associate Justice's Reasons and Orders the subject of this appeal. Indeed, none of the matters raised by Ms Sambanis and Mr Borg would have resulted in any different orders being made by the Associate Justice. In addition, I refer also to the observations of Kirby J in paragraphs [49] and [50] of his reasons in Allesch above.

119 Further, it is evident that, in the circumstances, finality of litigation and well serving the overarching purpose of the CP Act are factors weighing against Ms Sambanis, although no different result would follow even if these matters were put to one side.

120 The end point is that, in the circumstances, there is no sound or legitimate basis upon which the Court could or should set aside one or more of the Orders in the exercise of its inherent jurisdiction, or pursuant to r 46.08 of the Rules, by reason of Ms Sambanis' absence at the Orders Mention.

Appeal Ground 1 - February 2023 Amount already includes interest up to the date of the Orders

122 There is no merit in this ground of appeal and it can be dealt with crisply. The Associate Justice was correct to determine that the loan balance was the pleaded February 2023 Amount of $725,428.63 as at 15 February 2023. Her Honour was also correct to conclude that, having regard to: the evidence, the terms of the claim as pleaded and pursued; the terms of the Loan Agreement regarding variable rates of interest; and the evidence of Ms De Melo in her 7 May 2025 affidavit regarding the variable interest rates and notices given to Ms Sambanis in respect of the same, the interest rate of 6.34% per annum should be applied to the February 2023 Amount until the date of the Orders.[145]

123 In this regard I refer to: the terms of the Loan Agreement regarding variable rates of interest; the evidence and common ground that the Loan amount advanced was $704,000; the Loan Activity Statements for the relevant period recording that the loan balance was, as pleaded, exactly $725,428.63 prior to 20 February 2023;[146] Ms De Melo's evidence regarding the prior notice given to Ms Sambanis in respect of the 6.34% per annum rate;[147] and the fact that neither the statement of claim, the Summons, nor Perpetual's Written Submissions, sought judgment in respect of subsequent fees, charges, interest at higher rates, default interest, or other amounts in respect of the period after the date of the February 2023 Amount.

124 I add that it is clear from the terms of the Loan Agreement, the evidence of Ms De Melo in her affidavits of 21 February 2025, 29 April 2025 and 7 May 2025, and the Loan Activity Statements,[148] that the February 2023 Amount (of $725,428.63) does not include amounts for interest for the period after 6 February 2023. In short, Ms Sambanis' contrary contention on this topic is incorrect and there is no sound basis on the evidence or in the submissions for concluding otherwise.

125 The Associate Justice was not in error by including an order that interest be paid on the February 2023 Amount (less any subsequent payments) at 6.34% per annum and, as I have said, there is no merit in appeal Ground 1.

Appeal Ground 2 - Orders in error because Ms Sambanis' absence at the Orders Mention due to incorrect communications on times that day due to Ms Sambanis going through treatment in hospital

126 As noted above and as I understood it, during the appeal hearing it became apparent that Ms Sambanis' Orders Mention absence was not said to be an error for the purpose of the appeal, but rather an application to set aside the Orders by reason of Ms Sambanis' absence at the Orders Mention. For the reasons earlier referred to on this topic, the Orders should not be set aside pursuant to the Court's inherent jurisdiction, or r 46.08 of the Rules, by reason of Ms Sambanis' absence at the Orders Mention, or any circumstances associated with it.

127 That said, and as an excess of caution, I will also address this issue as though it was or remained as a separate ground of appeal.

128 It is apparent from Perpetual's submissions that Perpetual was unsure as to whether or not Ms Sambanis was contending that the Associate Justice denied her procedural fairness during the hearing on 29 April 2025 the subject of the Reasons delivered on 9 May 2025. Consequently, Perpetual made a number of submissions about this possible issue in its written submissions. However, having regard to the Appeal Notice, the Sambanis Written Submissions, and what transpired at the appeal hearing, it was clear that no such contention was being raised in respect of that part of the hearing of the summary judgment application.

129 In any event, even if such a contention had been made, it would have been bound to fail. It is evident from the transcript of the hearing of the summary judgment application, and the evidence filed in support of it contained in the Appeal Book: that Ms Sambanis had ample notice of the hearing on 29 April 2025; that Ms Sambanis was given a full and fair opportunity to be heard, including by her McKenzie friend, Mr Borg; that Mr Borg was given considerable licence by the Associate Justice to assist Ms Sambanis; that Ms Sambanis and Mr Borg had access to the relevant material on the summary judgment application; and that Ms Sambanis and Mr Borg actively participated in the summary judgment hearing when defending their position and by filing and relying on such affidavit material and submissions as they wished to, including the oral submissions made before the Associate Justice.

130 Further, if and to the extent Ms Sambanis intended to contend that the Associate Justice denied Ms Sambanis procedural fairness by proceeding with the Orders Mention in her absence, I do not accept that submission. It is plain from the evidence earlier referred to regarding the email communications and exchanges leading up to the Orders Mention on 21 May 2025, that Ms Sambanis was given more than a fair and adequate opportunity to be heard at the Orders Mention. It may be noted in this regard that not only did this involve a specific invitation to the parties to be heard at the time initially proposed by the Associate Justice but, in addition, the Associate Justice altered the date and time of the Orders Mention to 21 May 2025 to accommodate Ms Sambanis and Mr Borg given Ms Sambanis' hospital visits for treatment on 15 and 16 May 2025.

131 It is also to be observed in this context that, contrary to the Sambanis Written Submissions and paragraph 7 of her 3 July 2025 affidavit introduced on appeal, it became apparent during the appeal hearing that Ms Sambanis was not in hospital on the morning of the Orders Mention - or at all that day. Consequently, it is not possible that Ms Sambanis' absence was caused by a miscommunication about her being in hospital that morning. I refer in this regard to the observations made earlier above in connection with the consideration of the application to set aside the Orders pursuant to the Court's inherent jurisdiction or r 46.08 of the Rules. I refer also to the observations of Kirby J in Allesch referred to earlier regarding the nature of the procedural fairness obligation in this context, namely to provide an opportunity to be heard, not to ensure that the relevant party is in fact heard.[149]

132 In the circumstances it was both open and not an error for the Associate Justice to proceed with the Orders Mention in Ms Sambanis' absence given the matters referred to above, the earlier communications, and also noting the Associate Justice's obligations pursuant to s 8 of the CP Act, to seek to further the overarching purpose in s 7 of that Act in the exercise of her powers.

133 Further, even if I had concluded that there had been some denial of procedural fairness by reason of the Associate Justice proceeding with the Orders Mention in the circumstances, it is apparent that no different result would have followed even if Ms Sambanis and Mr Borg had attended and made the submissions they submitted would have been made. I refer to the matters referred to above and below in relation to the issues raised by Ms Sambanis on appeal, and my conclusions and reasoning in relation to the same.

134 Consequently, even if I had concluded that there had been some denial of procedural fairness by the Associate Justice, which in my view there was not, the Orders would not have been set aside in any event. I refer in this context to well-established principles regarding the consequence of procedural fairness considerations of the character in question without setting them out. See, for example, the discussion in: Stead v State Government Insurance Commission;[150] Ucar v Nylex Industrial Products Pty Ltd;[151] Cristovao v John Horton & Associates;[152] and see also the succinct observations of the learned authors of Appeals and Appellate Courts in Australia and New Zealand.[153]

135 Having regard to the above, even if Ms Sambanis was pressing a denial of procedural fairness contention by way of appeal as Ground 2, that contention has not been made out, and would not have any different consequence even if it had been.

Appeal Ground 3 - Order 3 of the Orders should have allowed for a six-month interest-free period

136 The Associate Justice did not err by failing to allow a six-month interest-free period when addressing the question of the calculation of interest in paragraph 3 of the Orders, or elsewhere. There is no merit in this ground of appeal.

137 First, the Loan Agreement makes plain that interest is to accrue on the Loan at a variable rate in the manner therein referred to, and to which I refer, but will not set out.

138 Second, although it would have been open for Perpetual and Ms Sambanis to agree in connection with her hardship applications that there would be a six-month interest-free period, the evidence regarding the hardship applications and Perpetual's response to them, established, as the Associate Justice held, that the hardship applications were rejected in a way that was open to Perpetual. Consequently, there was no agreement or other basis as between Perpetual and Ms Sambanis upon which the Associate Justice could have legitimately allowed for the Interest-free Period (or any other interest-free period) in the circumstances. Indeed, it would have been an error to do so.

139 The Associate Justice appropriately referred to and provided a fair summary of the communications and other evidence before her regarding Ms Sambanis' hardship applications, including in the 'Background' section of the Reasons. I refer to paragraphs 22 to 40 above in this regard. The Associate Justice later summarised the parties' respective submissions on the hardship applications issue in paragraphs [43] to [47] of the Reasons, and then continued with her analysis in paragraphs [48] to [52] of the Reasons - to which I refer but will not set out. I make the following further observations in this context about the absence of any established error on the part of the Associate Justice in connection with the hardship applications.

140 First, the Associate Justice was correct to conclude that, because Perpetual had not received information requested by it from Ms Sambanis within the relevant 21-day time period in respect of Ms Sambanis' first hardship application, it was open to Perpetual to refuse the hardship application, as it did. As the Associate Justice correctly noted, by reason of the terms of s 72(3) of the Credit Code, a debtor must comply with a requirement to provide further information. The documents and other evidence regarding the communications between the parties in this context showed that the request for information had been made, that the request was relevant to the matters referred to in s 72(2) of the Credit Code, and that the information was not received by Perpetual. In the circumstances, and as the Associate Justice concluded, Perpetual was entitled to decline the hardship application.

141 Second, the Associate Justice correctly observed that Perpetual facilitated the making of a further hardship application by Ms Sambanis, which was rejected by a letter from Perpetual dated 18 April 2023. Her Honour was also correct to observe that the Note to s 72(3) of the Credit Code states that a credit provider 'need not agree to change the credit contract', especially if the credit provider reasonably believes that the debtor would not be able to meet their obligations even if the contract was changed. The Associate Justice correctly recorded that notice of the decision was given and that this was the ground upon which the second hardship application was refused. Whilst the Associate Justice appropriately acknowledged that Ms Sambanis was in a 'very difficult situation because of her health and financial circumstances',[154] by reason of the operation of s 72(3) of the Credit Code it was open for Perpetual to reject the second hardship application on this ground. Again, so much is evident from the terms of the Credit Code and the evidence of the communications between the parties as referred to in the 'Background' section above, the arrears history, and Ms Sambanis' circumstances.

142 Although not central to the Associate Justice's reasons, it was also observed in the Reasons[155] that '... in the absence of any positive change to Ms Sambanis' financial circumstances, it would have been evident from the default history that she would be unable to meet her obligations even if the contract was changed'. Having considered the evidence regarding the default history of Ms Sambanis, including that referred to in the affidavit material and the Loan Activity Statements, it is plain that her Honour's finding in this regard was not only open but established on the evidence. To the extent that Ms Sambanis contended that the evidence showed that she would have been in a position to meet her obligations, whether with the assistance of her former partner or otherwise, I do not accept this submission and it is not borne out by the evidence.

143 Third, the Associate Justice was also correct to reject Ms Sambanis' assertion in her affidavit that she was 'way ahead of her mortgage' before the hardship applications were rejected. As had been noted in the Background section of the Reasons by the Associate Justice, there was a history of arrears for an extended period and it was not established on the evidence that Ms Sambanis was 'way ahead' of her Mortgage before the hardship applications were rejected.

144 Fourth, I add in this context that the Associate Justice was also correct to observe that, although Ms Sambanis had given her former partner, Mr Issa, authority in March 2023 to act on her behalf for the purpose of fixing arrears, that did not ultimately occur. Her Honour correctly noted in this regard, as is established by the Loan Activity Statements, that some of the payments made by Mr Issa were dishonoured in any event. Further, the evidence also established that Mr Issa no longer wanted to be involved and assist Ms Sambanis after a period. I refer in this regard to the correspondence from Mr Issa to Ms De Melo on 12 July 2023, in which he stated that he 'will no longer be able to commit to the arranged payment' and asked to be removed from future correspondence.[156]

145 In my view, and having regard to the evidence before the Court, the Associate Justice was plainly correct to conclude that it was open for Perpetual to reject Ms Sambanis' hardship applications on the grounds that it did, and the Associate Justice did not err by so doing.

146 Fifth, I note for completeness that, subsequently, Perpetual corresponded with Mr Borg regarding Ms Sambanis' hardship applications, including the prospect of a further application, and that Mr Borg informed Perpetual that Ms Sambanis did not require hardship assistance. I note also that the Associate Justice correctly recorded that on 8 December 2023 Ms Sambanis lodged a complaint with the Australian Financial Complaints Authority (AFCA) regarding Perpetual's decision not to provide hardship assistance, that enforcement action was put on hold, but that the complaint was closed on 5 February 2024. The communications with Ms Sambanis also reveal that she was given notice of her rights under the AFCA scheme and appropriate contact details as required by s 72 of the Credit Code, which Ms Sambanis then exercised.

147 The end result on this ground of appeal is that the Associate Justice did not err by failing to allow a six-month (or other) interest-free period when addressing the question of the calculation of interest, or err in concluding that it was open to Perpetual to reject the hardship applications made by Ms Sambanis on the grounds that they were refused. This appeal ground also has not been made out.

Appeal Ground 4 - Orders should not have included an order for possession but should have permitted Ms Sambanis to stay in the Property and provided for a further opportunity for her to seek to try and refinance the Loan

148 This appeal ground is also without merit and has not been made out.

149 Ms Sambanis did not identify any legitimate or legal basis upon which Perpetual was obliged to provide, or Ms Sambanis was entitled to receive, a further opportunity to remain in the Property, whether to seek to refinance the Loan or otherwise. Again, the Associate Justice was not in error to make an order for possession, or for failing to allow Ms Sambanis to stay in the Property, or for not providing a further opportunity for Ms Sambanis to seek to try and refinance the Loan.

150 The evidence established that: Ms Sambanis was in arrears and had defaulted under the Loan Agreement for an extended period; Ms Sambanis' hardship applications had been refused, so that there were no changes to the terms of the Loan Agreement; the required notices of default had been provided to Ms Sambanis by Perpetual; and that the terms of the Mortgage and Loan Agreement provided an entitlement to Perpetual to obtain possession of the Property in the circumstances.

151 Further, although challenging for Ms Sambanis, it is apparent that she had and has no valid legal basis for putting forward a claimed right or entitlement to stay in the Property, or for being given any further period of time in which to seek to refinance the Loan.

152 Again, although it is acknowledged that Ms Sambanis' personal circumstances, including her financial and health position, are challenged, Perpetual was entitled to an order for possession and no sound basis has been demonstrated upon which the Associate Justice could or should have concluded that Ms Sambanis ought to be allowed to remain in the Property so as to provide a further opportunity for her to seek to try and refinance the Loan. Indeed, and as the Associate Justice observed, Ms Sambanis has been in default for a very long period of time, and in circumstances where she has been unable to establish a defence to Perpetual's claim.

153 As I have said, the Associate Justice was not in error by making an order for possession or by failing to allow Ms Sambanis to stay in the Property, whether in order to provide a further opportunity to seek to refinance the Loan or otherwise.

154 Having regard to the evidence, the Associate Justice was in my view correct to conclude that Ms Sambanis has no real prospects of defending the proceeding; that Perpetual was not obliged to accept Ms Sambanis' hardship applications; that Ms Sambanis entered into the Loan Agreement with Perpetual that provided for monthly repayments and a variable interest rate; that monies were advanced by Perpetual under the Loan Agreement; and that Ms Sambanis has defaulted on loan repayments and remains significantly in arrears. The Associate Justice was correct to conclude that summary judgment ought be given in favour of Perpetual in respect of amounts claimed and possession of the Property.

155 Further, her Honour was also correct in the circumstances to conclude that there was no basis under s 64 of the CP Act to allow this matter to continue to trial. Having regard to the evidence and the history of the proceeding, in my view the Associate Justice was correct to conclude in this context that to do so would be contrary to the interests of justice and would 'simply cause further delay and expenses for both parties'.[157] I add that to have concluded otherwise would not have well served the overarching purpose in s 7 of the CP Act.

156 With respect to some of the other matters raised in the Sambanis Written Submissions and at the appeal hearing, I make the following further brief observations.

157 Although it can be readily understood how the number of interest rate changes was disappointing to Ms Sambanis, and it is accepted that Ms Sambanis regards these interest rate changes and other matters as being unfair to her, these matters do not assist Ms Sambanis on the appeal. As is apparent from the above reasons, the Loan Agreement provided for variable rates of interest in the manner reflected by its terms.

158 Contrary to the submission of Ms Sambanis, it is not correct to say that paragraph 3 of the Orders sought to charge 6.35% [sic] interest 'throughout the whole contract'. The 6.34% interest rate was not applied prior to the date of the February 2023 Amount, as is reflected in part in the Loan Activity Statements, and Ms De Melo's 7 May 2025 affidavit. I have also previously observed that the amount sought and obtained by Perpetual pursuant to its summary judgment application was not based on any of the higher interest rates after the imposition of the 6.34% interest rate (or any default interest after February 2023) because that is not how Perpetual ultimately pleaded its claim and pursued its summary judgment application.

159 Whilst it is accepted that Ms Sambanis considers that she should be entitled to be charged what she regards as a 'fair' interest rate, that is not what the terms of the Loan Agreement provide or what Perpetual and Ms Sambanis agreed to. That said, even though Ms Sambanis was not successful before the Associate Justice or on this appeal, it remains open to Ms Sambanis and Perpetual to engage in negotiations to see if some agreement can be reached between them if that is possible. However, that is a matter between the parties and in respect of which the Court properly has no role in the circumstances.

160 To the extent that there was any absence of medical documents in the Appeal Book as referred to by Ms Sambanis, this was of no relevant consequence for the purposes of the appeal. That said, some medical documents were provided in the lead-up to the appeal and considered as best they could be on the appeal. Further, and in any event, it was accepted by the Associate Justice, and has been accepted by me on the appeal, that Ms Sambanis is unfortunately suffering from the material ill health of the kind that she has explained in her evidence and the submissions. It is also apparent that Ms Sambanis' personal, health, and financial circumstances are, at the risk of understatement, most challenging, and I have taken these into account to the extent that it is permissible for present purposes.

161 To the extent Mr Borg on behalf of Ms Sambanis submitted that interest should be calculated in the manner referred to in the Sambanis Written Submissions or in the Annotated Revised Judgment Calculations, I have not accepted that submission. These calculations have numerous difficulties with them, including the material fact that they do not reflect the terms of the agreement reached between Perpetual and Ms Sambanis in the Loan Agreement. Further, they reflect in part what Ms Sambanis contends the position should be, including by taking into account periods where it was erroneously contended that no interest should be payable under the Loan Agreement. I refer further in this regard to my previous observations in these reasons regarding the interest rates and calculation of the same, together with my observations about the manner in which the claim was pleaded and pursued by Perpetual.

162 It is apparent from paragraph 3 of the Orders that, understandably, the total amount required to be paid by Ms Sambanis pursuant to the Judgment is to take into account payments made by or on behalf of Ms Sambanis subsequent to 15 February 2023. So much was common ground, but was self-evident in any event. Although it was not raised as a ground of appeal or otherwise by the parties, I drew attention to the fact that, although the payments made by or on behalf of Ms Sambanis are to be taken into account on the face of paragraph 3 of the Orders, the specific amount required to be paid after such payments are taken into account, and interest is calculated at the specified rate of 6.34% per annum for the relevant period, is not specified. I also drew attention to the terms of r 77.06.9 of the Rules regarding the powers of a Trial Judge on appeal from an Associate Justice, including r 77.06.9(3) of the Rules, which is in the following terms:

The powers of a Judge of the Court under this Rule may be exercised notwithstanding -

(a) that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of the appeal or by any particular party to the proceeding before the Associate Judge; or

(b) that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.

163 Given that the amounts, dates and times of payments made by or on behalf of Ms Sambanis subsequent to 15 February 2023 were set out in the Loan Activity Statements in evidence on the summary judgment application,[158] it is apparent that the amount and timing of each of the payments could be identified at the time the Orders were made. Consequently, at that time, the Court was in a position to specify for clarity in the terms of paragraph 3 of the Orders the specific amount that the plaintiff was entitled to recover from the defendant under the Judgment.

164 I raised this with each of the parties at the appeal hearing and both Perpetual and Ms Sambanis informed the Court, in substance, that whatever determination was ultimately made by me in relation to the matters raised by Ms Sambanis, it was agreed that paragraph 3 of the Orders should be varied by me for clarity so as to specify the particular amount required to be paid by Ms Sambanis to Perpetual pursuant to paragraph 3 of the Orders.[159]

165 Even though no notice of appeal had been given in respect of this particular part of the Orders, or by any party to the proceeding before the Associate Justice, and that this reason for varying the Orders was not specified in the Appeal Notice, in my view I have power to vary the Orders given the terms of r 77.06.9 of the Rules, including r 77.06.9(3).[160]

166 Consequently, even though no grounds of appeal of Ms Sambanis have succeeded, I propose to vary slightly paragraph 3 of the Orders so as to specify for clarity the total amount of the Judgment addressed in that paragraph by specifying the amount that Perpetual is entitled to recover from Ms Sambanis.

167 As to what the particular amount is, I have reviewed the Revised Judgment Calculations and the Annotated Revised Judgment Calculations, and considered them also by reference to the evidence, including the affidavit material and the Loan Activity Statements recording the payments made by or on behalf of Ms Sambanis between 15 February 2023 and the date of the Orders. I am satisfied that the correct amount is as referred to in the Revised Judgment Calculations, namely $775,190.95, the calculation of which is set out in Annexure A.

168 I note for completeness that the specification for clarity of the particular amount owing does not in any way alter the substance of the judgment given by paragraph 3 of the Orders. Rather, it simply specifies the particular amount or end result mandated by the terms of paragraph 3 of the Orders in its current form.

169 I add that I do not accept that the amounts should be as reflected in the Annotated Revised Judgment Calculations. These amounts do not reflect the terms and operation of the Loan Agreement.

170 In addition, I propose to order that the varied paragraph 3 of the Orders take effect from the date of the Orders (21 May 2025), so as to ensure that no unintended lacuna can arise in respect of the period between the date of the Orders and the date of my judgment in respect of interest, including interest under s 101 of the Supreme Court Act 1986 (Vic). I note in this regard that, pursuant to r 59.02 of the Rules, a judgment given or an order made by the Court is to bear the date of, and shall take effect on and from, the date it is given or made, unless the Court otherwise orders. I refer also to the commentary in Neil J Williams, Civil Procedure Victoria, regarding s 101 of the Supreme Court Act 1986 (Vic)[161] and to the discussion of a similar issue by the High Court in Nicol v All Yacht Spars Proprietary Ltd (No 2).[162]

1. The Orders should not be set aside pursuant to the inherent jurisdiction of the Court, or r 46.08 of the Rules, by reason of Ms Sambanis' absence at the Orders Mention on 21 May 2025.

2. Ms Sambanis has not established that the Associate Justice was in error in any of the respects alleged, and none of the grounds of appeal have been made out.

3. Pursuant to r 77.06.9 of the Rules, there should be a minor variation for clarity to paragraph 3 of the Orders so as to specify the actual amount of the judgment debt, so that it reads as follows:[163]

1. The plaintiff recover from the defendant $725,428.63 less any payments and plus interest calculated at the rate of 6.34% per annum from 15 February 2023 to the date of this order, being $775,190.95.

4. An order should be made that my order varying paragraph 3 of the Orders is to take effect from the date of the Orders, namely 21 May 2025. Otherwise, the Judgment is affirmed and remains valid and in the same form as it was when it was delivered on 21 May 2025.

172 The defendant's application and appeal have been unsuccessful and no grounds have been made out. Consequently, it is my preliminary view that, consistent with principle, the costs of the appeal should follow the event. However, I will provide the parties with an opportunity to make a brief written submission of no more than two pages on the question of the costs of the appeal should they wish to, and then the costs question will be determined on the papers.

1. The defendant's application to set aside paragraphs 1 to 3 of the Orders made by Associate Justice Ierodiaconou on 21 May 2025 pursuant to the inherent jurisdiction of the Court or r 46.08 of the Rules is dismissed.
2. Paragraph 3 of the orders made by Associate Justice Ierodiaconou on 21 May 2025 (Orders) is varied by inserting the words 'being $775,190.95' at the end of the order as follows:

The plaintiff recover from the defendant $725,428.63 less any payments and plus interest calculated at the rate of 6.34% per annum from 15 February 2023 to the date of this order, being $775,190.95.

1. The order referred to in paragraph 2 above shall take effect on and from 21 May 2025 as though it had been made on that day.
2. Subject to varying paragraph 3 of the Orders in the manner referred to in paragraph 2 above, the defendant's appeal is otherwise dismissed.
3. By 4:00pm on 15 September 2025 the parties may, if they wish, file and serve a written submission of no more than two (2) pages in length on the question of the costs of the appeal.
4. The question of the costs of the appeal will be determined on the papers no earlier than 16 September 2025.

Perpetual Corporate Trust Limited v Fay Sambanis

Supreme Court of Victoria - Proceedings S ECI 2023 00597

The amount owed by the Defendant to the Plaintiff by reference to the Judgment is $775,190.95, which includes interest in the sum of $98,384.41, up to 21 May 2025.

This amount being the amount of $725,428.63, less payments made set out below, and interest calculated at the rate of 6.34% pa from 15 February 2023 to 21 May 2025:

Part Payment 1: 4274 deducted from debt amount. $721,154.63 remaining.

Part Payment 2: 4547 deducted from debt amount. $716,607.63 remaining.

Part Payment 3: 9343 deducted from debt amount. $707,264.63 remaining.

Part Payment 4: 10983.09 deducted from debt amount. $696,281.54 remaining.

Part Payment 5: 4830 deducted from debt amount. $691,451.54 remaining.

Part Payment 6: 4845 deducted from debt amount. $686,606.54 remaining.

Part Payment 7: 4845 deducted from debt amount. $681,761.54 remaining.

Part Payment 8: 4955 deducted from debt amount. $676,806.54 remaining.

Amount payable (remaining debt + interest payable):

The Defendant made payments since 15 February 2023 as follows:

• 20 February 2023 for $4,274.00, 20 April 2023 for $4,547.00, 26 May 2023 for $9,343.00, 1 July 2023 for $10,983.09, 20 July 2023 for $4,830.00, 24 August 2023 for $4,845.00, 25 September 2023 for $4,845.00 and 20 February 2024 for $4,955.

[1] Although it is recognised that La Trobe Financial Services Pty Ltd was engaged as Perpetual's servicer and trust manager on Perpetual's behalf, for ease of reference I have largely referred only to Perpetual in the reasons that follow, noting that La Trobe Financial Services Pty Ltd was acting on Perpetual's behalf.

[5] The variation to the order is underlined.

[6] The revision was provided in response to the Court informing the parties that the Initial Judgment Calculations appeared to omit a payment of $4,845 made on 24 August 2023.

[7] Which replaced two earlier annotated versions that had been sent by Mr Borg shortly before the hearing of the appeal.

[9] But noting that the paragraph numbers have been changed to fit the paragraph numbering of these reasons and some minor revisions to defined terms have been made for consistency.

[10] Affidavit of Tara De Melo affirmed on 8 April 2024 ('first De Melo affidavit'), [1].

[11] Exhibit 'A' to the first De Melo affidavit, 14-31.

[14] Exhibit 'A' to the first De Melo affidavit, 19, 39-40.

[17] Exhibit 'A' to the first De Melo affidavit, 64.

[18] Exhibit 'TDM4' to the affidavit of Tara De Melo affirmed on 7 May 2025 ('fourth De Melo affidavit'), 6-‍39.

[19] Exhibit 'A' to the first De Melo affidavit, 72-74.

[21] Exhibit 'A' to the first De Melo affidavit, 77-84.

[24] Exhibit 'A' to the first De Melo affidavit, 86.

[30] Exhibit 'A' to the first De Melo affidavit, 100-101.

[32] First De Melo affidavit, [44]; exhibit 'A' to the first De Melo affidavit, 107.

[33] Exhibit 'A' to the first De Melo affidavit, 108-109.

[37] Exhibit '1-2-3' to the affidavit of Fay Sambanis affirmed on 2 April 2025 ('first Sambanis affidavit'), 6; see also, exhibit 'A' to the first De Melo affidavit, 117.

[38] Exhibit 'A' to the first De Melo affidavit, 117-137.

[42] Exhibit 'PN2' to the affidavit of Pip Nagam sworn on 18 February 2025 ('second Nagam affidavit'), 6-‍29.

[43] Affidavit of Tara De Melo, affirmed on 29 April 2025 ('third De Melo affidavit'), [5].

[44] Third De Melo affidavit, [5]-[6]; exhibit 'TDM3' to the third De Melo affidavit, 13.

[45] Exhibit 'TDM3' to the third De Melo affidavit, 5-17.

[47] Affidavit of Tara De Melo affirmed in February 2025 ('second De Melo affidavit'), [26].

[48] Third De Melo affidavit, [6]-[7]; exhibit 'TDM3' to the third De Melo affidavit, 15-17.

[49] I say 'almost entirely consistent' because the statement of claim and summons stated that there should be no order as to costs.

[50] Although not an issue before me, there appears to be at least a real issue that any claim for other amounts under the Loan Agreement merged in the Judgment providing Ms Sambanis with a res judicata defence going forward. Presumably this will require Perpetual to give careful consideration to this issue before claiming that any additional amounts are due and owing. However, it is not currently an issue before me and I say no more about it for present purposes.

[51] Although these were not addressed in her oral submissions.

[52] Which is not a criticism, but likely resulting from or contributed to by Ms Sambanis' position as a self-represented litigant under stress whilst also suffering ill health.

[53] Which it appeared had been at least largely prepared by Mr Borg.

[54] Which was further addressed in part in the Annotated Revised Judgment Calculations.

[55] See, for example, transcript 6:9 to 18:3.

[56] This and related matters are discussed later below in these reasons.

[57] Discussed later in these reasons, together with r 46.08 of the Rules.

[58] See the observations on this topic later in these reasons.

[59] See transcript 18:4-23:22, 26:15-25, 36:28-38:12.

[63] Which was in evidence on the summary judgment application, and in the Appeal Book at page 436.

[64] Including the affidavit of Ms Sambanis dated 3 July 2025 (which was in the Appeal Book) and the documents provided to the Court in the lead up to the appeal by Mr Borg on behalf of Ms Sambanis.

[65] [2025] VSCA 94, [63]-[67] (Beach, Kennedy JJA and Forrest AJA).

[66] Trukulja v Markovic [2015] VSCA 298.

[67] Ibid [37] (citations omitted) (Kyrou, Kaye JJA and Ginnane AJA).

[69] Ibid [41], citing McWhinney v Melbourne Health [2011] VSCA 22; (2011) 31 VR 285, 293 [25] (Neave, Redlich and Mandie JJA), quoting Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, 130 [141]-[142] (Bell J).

[70] (2018) 57 VR 334; [2018] VSCA 215.

[71] Doughty-Cowell v Kyriazis [2018] VSCA 216.

[72] Ibid [63] (Maxwell P, Beach and Niall JJA) (citations omitted). See also the recent observations of Gobbo AsJ in Re Kotabi Pty Ltd [2025] VSC 471, [12]-[13].

[73] Oswal v Carson [2013] VSC 355 [11] (Ferguson J), citing with approval Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-204 [14] (Gleeson CJ, Gaudron and Hayne JJ) and Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). See also Hou v Westpac Banking Corporation [2015] VSCA 57, [44] (Beach and Whelan JJA); Cargill Aust Ltd & Ors v Viterra Malt Pty Ltd & Ors (No 7) [2018] VSC 99, [4] (Macaulay J).

[74] [2000] HCA 40; (2000) 203 CLR 172 (Gaudron, McHugh, Gummow and Hayne JJ).

[75] Ibid, 180 [23] (citations omitted).

[76] [2022] VSC 199, [54]-[59].

[77] (1936) 55 CLR 499 (Starke, Dixon, Evatt and McTiernan JJ).

[78] Ibid, 504.9-505.4 (Dixon, Evatt and McTiernan JJ).

[79] Ibid, 505.5 (Dixon, Evatt and McTiernan JJ). See also Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627.6 (Kitto J).

[80] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519.7-520.1 (Stephen J), 537.7 (Aickin J); Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627.4-628.2.

[81] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 520.6 (Mason and Deane JJ).

[84] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 241-‍242 [119] (Callinan J), citing Turnbull v NSW Medical Board [1976] 2 NSWLR 281, 297E (Glass JA).

[85] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519.5 (Latham CJ), applied in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614.6 (Gibbs CJ). See also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42.3 (Mason J).

[86] See, for example, Concrete Constructions Group Pty Ltd v McNamara (1990) 70 LGRA 241, 251.3 (Gallop J); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1980] FCA 82; (1980) 44 FLR 88, 111.5 (Fisher J, dissenting but upheld in the High Court: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 179.9 (Gibbs CJ, Aickin, Wilson and Brennan JJ)); Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 532.9-533.3 (Kitto J).

[87] [2020] VSC 86, [23]-[33].

[88] [2013] VSCA 158; Reasons [39]-[42]. Which were also essayed in the decision of Sloss J in Bendigo referred to earlier.

[93] Presumably meaning since the proposed orders had been sent to him by Chambers on 9 May 2025, as no orders had been made by the Court at this time.

[94] Perpetual's solicitor had earlier sent an email saying she was not available at 2:15pm that day, but sent a follow-up email a few minutes later asking that this email be ignored.

[95] See transcript 32:5-34:11, 36:1-26.

[96] [2007] VSC 397.

[97] [2007] VSC 397, [6] (Kaye J).

[98] [1960] VicRp 28; [1960] VR 173 at 176-177.

[99] [2009] VSCA 179; (2009) 25 VR 366.

[100] [2009] VSCA 179; (2009) 25 VR 366, [21(4)] (Ashley JA, with Beach AJA agreeing).

[101] [2000] HCA 40; (2000) 203 CLR 172.

[102] [2000] HCA 40; (2000) 203 CLR 172, [25]-[26] (Gaudron, McHugh, Gummow and Hayne JJ).

[104] [2000] HCA 40; (2000) 203 CLR 172, [35]-[37], [38]-[43], [47]-[50] (Kirby J).

[105] Re Brook, Delcomyn and Badart [1864] EngR 418; (1864) 16 CBNS 403 at 416; [1864] EngR 418; 143 ER 1184 at 1190 per Erle CJ. The maxim is "audi alteram partem, audiatur et altera pars". See Broom, A Selection of Legal Maxims, 10th ed, 1939, p 65; cf Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-‍6.

[106] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583; [1985] HCA 81; 62 ALR 321 at 346.

[107] R v Chancellor, Masters and Scholars of the University of Cambridge (Dr Bentley's Case) (1723) 1 Stra 557; 93 ER 698; Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CBNS 180; 143 ER 414; Hopkins v Smethwick Local Board of Health [1890] UKLawRpKQB 25; (1890) 24 QBD 712.

[108] This point was made by Byles J in Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CBNS 180 at 195; [1863] EngR 424; 143 ER 414 at 420 with reference to Genesis III:11.

[109] International Covenant on Civil and Political Rights, art 14.1.

[110] Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4, 16; [1979] HCA 38; 25 ALR 418; 5 Fam LR 289; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 350; [1986] HCA 39; 66 ALR 239 per Mason J; Dick v Piller [1943] 1 KB 497 at 499; Grimshaw v Dunbar [1953] 1 QB 408 at 412.

[111] Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 20; [1979] HCA 38; 25 ALR 418; 5 Fam LR 289 per Murphy J; cf Leeth v Commonwealth (1992) 174 CLR 455 at 487, 502-3; 107 ALR 672.

[112] Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40.

[113] Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243; [1910] VLR 537; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 79.

[114] O'Rourke v Miller (1985) 156 CLR 342 at 352; 58 ALR 269; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583; [1985] HCA 81; 62 ALR 321 at 346; cf Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 369; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; [1976] HCA 58; 12 ALR 379; Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396; 14 ALR 1; R v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461; 14 ALR 317; Johns v ASC [1993] HCA 56; (1993) 178 CLR 408; 116 ALR 567; 11 ACSR 467.

[116] Vestry of St James and St John, Clerkenwell v Feary [1890] UKLawRpKQB 12; (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris [1912] HCA 11; (1912) 14 CLR 1 at 15.

[117] Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 636; [1993] HCA 47; 67 ALJR 841 at 849; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 153, 168; 141 ALR 353; cf Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296.

[118] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 153, 172; 141 ALR 353; Jackamarra v Krakouer (1998) 195 CLR 516 at 541 [66]; 153 ALR 276.

[119] Jackamarra v Krakouer (1998) 195 CLR 516 at 542[66]; 153 ALR 276 at 294.

[120] Eg Grimshaw v Dunbar [1953] 1 QB 408 at 414-15. Special rules are also propounded where a judgment or order is made by consent or where it is tainted by fraud or illegality: Coles v Burke (1987) 10 NSWLR 429; Paino v Hofbauer (1988) 13 NSWLR 193; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691.

[121] Cf Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276.

[122] Vacuum Oil Pty Co Ltd v Stockdale [1942] NSWStRp 31; (1942) 42 SR (NSW) 239; Rosing v Shemesh [1960] VicRp 28; [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; cf Macquarie Bank Ltd v Beaconsfield [1992] VicRp 77; [1992] 2 VR 461.

[123] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659 at 684 [90]; [2000] HCA 17; 74 ALJR 706 at 724-5.

[124] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 172; 141 ALR 353.

[125] There is also a similar express power in r 49.02 of the Rules that relates to the absence of a party at trial (as opposed to the hearing of an application).

[126] [2007] VSC 397, [6].

[127] [2025] VSC 391.

[128] Neil J Williams, Civil Procedure Victoria.

[131] [2000] HCA 40; (2000) 203 CLR 172.

[132] Ibid [48]. Daly AsJ then set out the observations of Kirby J in paragraphs [49] and [50] of his Honour's reasons in Allesch (extracted earlier above).

[133] See, for example, Federal Court Rules 2011 (Cth) (Federal Rules) r 39.05(a), which relevantly provides that 'The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or ...'. See also r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (NSW Rules), which is in similar but not identical terms.

[134] [2014] FCA 871, [38] (Beach J).

[135] [2022] FCA 122, [43]-[44] (O'Bryan J).

[136] [2019] NSWSC 1294, [24]-[31] (Lindsay J).

[139] Errors and omissions included. Emphasis added.

[140] I refer also to the reference to Ms Sambanis being in hospital in paragraph 7 of her affidavit of 3 July 2025 and the exchanges which occurred with the Bench about that during the course of the appeal hearing. See, for example, transcript 9:17 to 9:23.

[144] But even if this had been established, it would make no difference to the result.

[145] But to be to be adjusted by reference to any payments made by or on behalf of Ms Sambanis during that period, as was in fact ordered.

[146] See, for example, page 3 of the Loan Activity Statements at Appeal Book page 312.

[148] See, for example, the Loan Activity Statements at Appeal Book pages 309 to 318.

[150] (1986) 161 CLR 141, 23-24 (Mason, Wilson, Brennan, Keane and Dawson JJ).

[151] [2007] VSCA 181; [2007] 17 VR 492, [32]-[35] (Chernov JA, with whom Warren CJ agreed). See also the observations of Redlich JA in the same case [59]-[80].

[152] [2012] WASCA 12, [31]-[34] (Newnes and Murphy JJA).

[153] MJ Beazley, PT Vout, and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 1st ed, 2014), 108.

[158] See Loan Activity Statements at Appeal Book pages 309 to 318.

[160] Also again noting the agreed position of the parties on the point, although I would have determined to make the variation for clarity even if the position had not been agreed.

[162] [1988] HCA 48; (1988) 165 CLR 306 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[163] The variation to the order is underlined, and the date of the Orders was 21 May 2025.