Plaintiff v Defendant

Supreme Court of Victoria|2008-01-25|Before: FORREST J

1 The defendant, who appeared in person prior to the luncheon adjournment and after lunch was represented by Mr Silverstein, on 17 January issued a summons seeking the following relief:

"1. That the notice to vacate property scheduled for Friday 18 January 2008 be vacated.

3. The original loan amount of $200,600 (two hundred thousand and six hundred dollars) be paid into the Supreme Court Holding Account pending the outcome of the trial or final determination of this matter as per Master Daly's reasons in this matter dated 11 July 2007.

2. Such further and other orders as this Honourable Court deems necessary and just.

2 The plaintiff, on 18 January, issued a summons seeking the following relief:

"1. An order under Order 66.15 directing the Sheriff to forthwith execute Warrant of Possession SPO 70080095 issued on 18 September 2008 (sic).

2. That the defendant pay the plaintiff's costs of this application."

3 I adopt in significant part the background set out by Buchanan JA on an application by the defendant to extend the time to appeal against orders made by the Chief Justice on 20 September 2007 and leave to appeal against her decision made on 12 September 2007.

4 The defendant is the registered proprietor of a dwelling house at 384 Spencer Street, Melbourne ("the premises"). The land is mortgaged to the plaintiff to secure repayment of the loan. The defendant failed to repay money due under the mortgage.

5 On 11 May 2005, the plaintiff instituted proceedings for possession of the land. The writ was served in late 2005. On 29 September 2006, a Judge in the Trial Division ordered that the defendant file and serve an affidavit of documents and answer interrogatories and that there be a mediation of the proceeding. The defendant did not comply with those directions.

6 On 18 April 2007, a Master made self-executing orders. The defendant did not comply with the orders and the plaintiff entered judgment by default on 17 May 2007 for possession of the land and repayment of the sum of $458,761.05, together with interest.

7 An application to set aside the judgment was heard and dismissed by a Master on 11 July 2007. An appeal to the Judge sitting in the Practice Court was dismissed on 12 September 2007. The Chief Justice, who heard that appeal, held that the defendant had no defence to the claim for possession, but that there was an arguable defence as to part of the sum claimed by the plaintiff. The Chief Justice granted the defendant leave to defend limited to the sum of $114,767.39 of the debt claimed by the plaintiff.

8 On 18 September 2007 the plaintiff issued a warrant of possession requiring the Sheriff to enter the premises and to permit the plaintiff to take possession.

9 The defendant then, on 30 November 2007, applied to the Court of Appeal for an order to extend time for appealing against the orders made by the Chief Justice on 20 September 2007 and leave to appeal against her decision made on 12 September 2007. At that hearing, the Court of Appeal said as follows:

"None of the matters which have been advanced by or on behalf of the applicant (defendant), in our view, throws any doubt upon the orders made by the Chief Justice.

For the foregoing reasons, we are of the opinion that there is no reasonable prospect that the applicant (defendant) can establish that the decision of the Chief Justice was attended by sufficient doubt to warrant a grant of leave to appeal. Accordingly we refuse the application for leave to appeal with costs."

10 The Court also dismissed a summons issued by the defendant seeking a stay of the orders of the Chief Justice. Orders were also made by the Court in relation to interlocutory matters concerning the filing of affidavits of documents.

11 Subsequent to the decision of the Court of Appeal, the defendant lodged an application for special leave to appeal the decision of the Court of Appeal with the High Court. That application has not been heard. Indeed, it has, by force of the High Court Rules, been deemed to be abandoned. No stay has been granted by the High Court.

12 On 15 January 2008, in the Practice Court, I heard an interlocutory application by the defendant to strike out parts of the plaintiff's reply[1]. The defendant also made an application that I disqualify myself from hearing the application; I refused the application and dismissed the defendant's summons.

13 The defendant then issued the 17 January application. It was originally returnable on 13 February 2008 before a Master.

14 On 18 January 2008, the Sheriff, by her solicitor, the Victorian Government Solicitor, advised the plaintiff that she would not execute the warrant, given the existence of the defendant's 17 January application.

15 This caused the plaintiff to issue its 18 January application seeking a direction to the Sheriff under order 66.15 that he forthwith execute the warrant of possession in respect of the premises. On that day I heard the plaintiff's summons ex parte. The defendant had been served with the summons and supporting material (if that was necessary)[2]; he had contacted my Associate indicating that he could not attend Court in the afternoon when the hearing was scheduled. Accordingly, and with some hesitation, I decided to adjourn the plaintiff's summons so that the two applications could be heard together. This meant that the defendant's 17 January application returnable originally on 13 February 2008 was brought forward for hearing before me on 25 January. Given that there was no magic in the date of 13 February (it had been fixed arbitrarily by the Registry), I took the view that the defendant should be given an opportunity to present what arguments he may wish to, but that a week's adjournment gave the defendant more than adequate time in which to prepare his case.

16 On 23 January 2008, the defendant appeared in person before me seeking reasons for my decision concerning the hearing of two applications together. In the course of that application, he again made it clear that he perceived that I was biased against him and had a conflict of interest.

17 I advised him that he could present his arguments on the return of the two applications today.

18 The defendant's 17 January application is, on its face, not intelligible. However, it was clear from the supporting material and the arguments put by both the defendant in person and by Mr Silverstein, who appeared for the defendant after the luncheon adjournment, that in truth the application was for a stay of the warrant of possession. The plaintiff's 18 January application resulted from the Sheriff's refusal to execute the warrant, given the 17 January application by the defendant.

19 Today the defendant renewed the application he had made on 15 January 2008 for me to disqualify myself on the basis of apprehended bias. Substantially for the reasons I set out at the hearing on 15 January 2008[3], I refused to disqualify myself.

20 There is, however, one difference between the application I heard on 15 January and these applications. On 15 January, I was concerned with a pleading summons concerning the reply of the plaintiff. On this hearing, I am concerned with the execution of a warrant of possession. Whilst the substantive rights of the defendant will be affected should I make the order sought by the plaintiff, the principles I set out flowing from Ebner's case[4] still, in my view, require me to hear this application. To these considerations I add the following:

(a) It is unrealistic, given that the plaintiff already has an unchallenged entitlement to approximately $400,000 (judgment debt and interest) as a result of the order of the Chief Justice[5], to think that a reasonable bystander might perceive the interests I identified in my earlier reasons as giving rise to a conflict of interest or ostensible bias in the context of this application.

(b) As I set out subsequently, the plaintiff has an unassailable right to possession.

21 I should add that I think I would be remiss in carrying out my duty if, for reasons of convenience rather than substance, I declined to hear the applications. Just because a Judge is said to be biased is no reason for the Court to shirk from its duty to hear applications brought by the parties, provided it is satisfied that it can act impartially and that there is no apprehension of bias[6].

Altering the date of the hearing of 17 January application

22 Today the defendant contended I had "buckled to the bank" by bringing forward the hearing of his 17 January application. I have already noted that the application was fixed arbitrarily by the Registry. It appeared to me that it was desirable that the two applications be heard together as they were inextricably interwoven.

23 As I will spell out in a moment, the plaintiff has a clear right to possession and the defendant's summons can be seen as another stalling tactic in the history of this matter. Accordingly, I reject his application to refix the 17 January application to 13 February and will hear both the matters today.

24 The final argument made by the defendant in relation to the plaintiff's summons was that it was an abuse of process. The grounds for this application were not articulated. I reject that submission.

25 By reason of the defendant's established default under the mortgage, the plaintiff was entitled to enter into possession of the land[7]. The defendant did not, by his summons filed 17 January 2008, seek an injunction to restrain the plaintiff or the Sheriff. As was submitted by Mr Shepherd, the Court will not as a general rule restrain the mortgagee from exercising its powers under the mortgage unless the amount of the mortgage debt, if this is not in dispute, is paid or where the amount is disputed, the amount claimed by the mortgagee is paid into Court[8].

26 Moreover, the judgments of the Chief Justice and the Court of Appeal make it clear beyond doubt that the plaintiff is entitled to possession of the premises. Any arguments by the defendant to the contrary have no force.

27 I note that at the hearing before the Court of Appeal on 30 November 2007, the defendant applied for a stay of execution of the warrant of a fortnight so that he could "get my stuff out". The Court of Appeal ordered that there be a stay of execution on the order of possession until 6 December 2007. In effect, the defendant has had another six weeks' possession of the premises.

28 In my view, the defendant's summons is simply part of a stalling tactic to permit him to remain in possession of the premises. It has been the hallmark of his conduct before me. He has, to a considerable extent to date, been successful. Indeed, the issue of the 17 January application forestalled the Sheriff carrying out the execution of the warrant of possession[9].

29 Although the relief sought by the defendant is not adequately identified in his summons, as I have said, I treated it as an application to stay the execution of the warrant of possession.

30 There is no basis upon which an order should be made staying execution of the warrant. The defendant's application is dismissed.

31 The Sheriff has indicated[10] that she will abide by any order made by the Court. Order 66.15 empowers the Court to make any order that it thinks fit in respect of a warrant of execution. There is no valid reason for the Sheriff not to carry out her task. I will order that the Sheriff execute the warrant of possession.

1. The defendant's summons dated 17 January 2008 is dismissed.

2. The defendant is to pay the plaintiff's costs of that application.

3. The Sheriff of this Court execute Warrant of Possession SPO70080095 issued on 18 September 2007.

4. The defendant pay the plaintiff's costs of the plaintiff's summons dated 18 January 2008 including reserved costs.

5. This order be signed by the Judge pursuant to Rule 60.04 of the Supreme Court (General Civil Procedure) Rules 2005.

[2] The defendant disputed such service. However, the affidavit of Dean Groves of 18 January deposed to service. Clearly, given the conversation on 18 January with my Associate, the defendant was aware of the application.

[3] And there being no other argument advanced on behalf of the defendant.

[6] See paras 7 and 8 of the reasons in [2008] VSC 3.

[8] Inglis and Anor v Commonwealth Trading Bank of Australia [1972] HCA 74; (1971) 126 CLR 161 per Walsh J at p.164 and Barwick CJ at p.169; Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141 (27 April 2007) per McMurdo P at [6], Jerrard J at [36] and Helman J at [50].

[9] Exhibit GD2 to the affidavit of Grant Dewar sworn 18 January 2008.

Court (General Civil Procedure) Rules 2005

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (54 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (2)