//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] VSC 556
Supreme Court of Victoria
2011-11-15
GARDINER AsJ
Original judgment source is linked above.
11 The plaintiff has filed an affidavit of Alysha Maria Tuziak, who is an employed solicitor at Turks Legal, NAB's solicitors, sworn 8 August 2011. Ms Tuziak deposed that the steps required by paragraph 6 of Mukhtar AsJ's order in respect of notifying Ms Lawrence of the orders were performed on 5 August 2011, save that the message left on the answering machine of Ms Lawrence was cut short by reason of insufficient memory being available on the machine.
12 In her affidavit in support of her application for an adjournment, Ms Lawrence exhibits a letter from Turks Legal of 5 August 2011. It seems clear that that letter is the letter referred to by Ms Tuziak in her affidavit of 8 August 2011. Omitting the formal parts, that letter states as follows:
We refer to the Directions Hearing before Associate Justice Mukhtar on 5 August 2011 and enclose a copy of the order made by his Honour.
Despite you not filing your Court Book and witness statements, this matter is still proceeding to trial on 26 September 2011.
You are no longer required to file and serve a Court Book. HOWEVER YOU MUST FILE AND SERVE YOUR WITNESS STATEMENTS BY 2 SEPTEMBER 2011 otherwise your defence will be struck out and your counterclaim will be dismissed.
[Emboldened text and underlining appears in the original letter].
Turks Legal's letter of 5 August 2011 had as an attachment a copy of the order of 5 August 2011. Ms Lawrence complains that the second page of the order is missing. However, I note that the salient and significant elements of the orders pronounced on that page are set out in clear terms in the covering letter, the terms of which I have extracted above. In any event, Ms Lawrence states in her affidavit that she did not open the envelope enclosing the letter and the copy of the orders until Friday, 23 September 2011, despite apparently receiving the letter some several weeks before. In her affidavit, she deposes to finding the letter when looking through correspondence which had been opened by her psychologist, Mr Crewdson at her behest some weeks previously. I am satisfied that there has been substantial compliance by NAB with paragraph 6 of Mukhtar AsJ's order.
13 Ms Lawrence failed to comply with the orders of Mukhtar AsJ made on 4 August 2011 by the date specified or at all. By operation of paragraph 3 of those orders, Ms Lawrence's defence was struck out, her counterclaim was dismissed and the hearing proceeded as an undefended trial.
14 As contemplated by the orders of Mukhtar AsJ of 29 November 2010, NAB adduced its evidenceinchief at the hearing of the proceeding by reference to the affidavits and exhibits filed and served in support of the application for summary judgment. The principal affidavits relied upon were those of James Wallace Wyatt sworn 8 September 2010, Thomas Charles Edward Stanley sworn 12 October 2010, Trevor John Watson sworn 19 October 2010 and Sonida Sorn sworn 23 June 2010. These affidavits were supplemented by an affidavit of James Wallace Wyatt sworn 27 September 2011 which deposes to the quantum of NAB's money claim as at 22 September 2011 as being $3,413,316.61 and exhibits a certificate in that regard.
15 NAB's statement of claim, its affidavit material filed in support of its application for summary judgment which became its evidence at the trial of this proceeding and the submissions both oral and written at the trial, dealt with what was described as the first and second facilities as being the bases of its claims against Ms Lawrence. The socalled second facility in fact preceded the first facility by some years. I consider it appropriate to deal with the evidence in chronological sequence and rather than adopt NAB's designation, I shall refer to the first facility entered into in time as the 2001 facility and the subsequent facility as the 2006 facility.
16 On 19 May 2011, NAB served a notice to admit facts and authenticity of documents on Ms Lawrence. Ms Lawrence confirmed that she was served with a copy of that document on 19 May 2011 when she signed an acknowledgement to that effect on a copy of the document. She has not reacted to the notice to admit. The notice to admit recites the facts which are the subject of the affidavits in support of the application for summary judgment. The notice refers to the 2006 facility and its terms, the advances made under the 2006 facility, its expiration, the deed of variation of the 2006 facility, the default under the 2006 facility, the service of the notice of default and notice of demand under s 76 of the Transfer of Land Act and of the failure by Ms Lawrence to pay any monies in satisfaction of the default notice or the notice under the Transfer of Land Act. The notice to admit then details matters in respect of the 2001 facility, including the making of the agreement, the service of the default notice and demand in respect of the 2001 facility and the failure by Ms Lawrence to pay any monies in satisfaction of the notice of default and the demand. The notice to admit then culminates in a description of each of the five mortgages, copies of which are annexed to the notice, and the advances made under the 2006 facility on or about 4 January 2007.
17 In reaching my conclusion that NAB is entitled to judgment for possession of the properties the subject of the mortgages and for judgment for the money sum sought however, I have preferred to rely on the affidavit evidence filed by NAB and admissions made by Ms Lawrence in her amended defence and amended counterclaim dated 10 August 2010 rather than resort to the Notice to Admit because of the general circumstances of this case.
18 On 10 December 2001, NAB and Ms Lawrence entered into a written agreement whereby NAB agreed to advance Ms Lawrence the sum of $434,000 under the terms of a document described as "Flexiplus Mortgage Facility Individuals Personal Investment Purposes National Choice Package"[1] ("the 2001 facility").
19 The terms of the 2001 facility provided that the interest to be charged was variable by reference to what is described as an indicator rate published by NAB in a metropolitan daily press. When the 2001 facility was entered into in December 2001, the interest rate was 6.21% per annum but by the time NAB had issued the present proceedings the interest rate had increased to 9.58% per annum. Under the terms of the 2001 facility, Ms Lawrence was to provide NAB with mortgages over two properties of which she was the proprietor at 10 and 12 Bannerman Street in Bendigo.[2] In addition, a guarantee and indemnity was to be provided by a company associated with Ms Lawrence, Tess Lawrence Media Services Pty Ltd, limited to $440,135.
20 The terms and conditions which applied to the 2001 facility provided that NAB could cancel the facility at any time whether or not the borrower was in breach of the agreement. Where the facility was cancelled, NAB would give the borrower notice of the cancellation, the facility limit would be reduced to zero and the amount outstanding would be payable immediately. The terms provided that if the facility was cancelled and the amount outstanding was not immediately repaid, the borrower would be in default. In such circumstances, NAB could give the borrower a default notice and, if the default was not remedied, NAB could bring enforcement proceedings.
21 An examination of the selection of the account statements generated by NAB for the 2001 facility exhibited to Mr Wyatt's affidavit demonstrates that Ms Lawrence commenced operating the account by drawing down funds. By 20 August 2010, the balance owing by Ms Lawrence to NAB was $77,654.83.
22 On 20 December 2006, NAB and Ms Lawrence entered into a written agreement whereby NAB agreed to advance moneys to Ms Lawrence to a limit of $3,084,000. The 2006 facility was subject to review on 31 December 2007.[3]
23 The 2006 facility was secured by NAB taking mortgages over the properties identified in the annexure to the agreement. Those properties are as follows:
(a) the land described in Certificate of Title volume 7543 folio 053 situate at and known as 29 Leggatt Street, Daylesford, Victoria ("the first land");
(b) the land described in Certificate of Title volume 4379 folio 728 situate at and known as 9 Herbert Street, Northcote, Victoria ("the second land");
(c) the land described in Certificate of Title volume 8598 folio 554 situate at and known as 125 High Street, Woodend, Victoria ("the third land");
(d) the land described in Certificate of Title volume 9062 folio 800 situate at and known as 10 Bannerman Street, Bendigo, Victoria ("the fourth land");
(e) the land described in Certificate of Title volume 10091 folio 316 situate at and known as 12 Bannerman Street, Bendigo, Victoria ("the fifth land").[4]
24 The agreement in respect of the 2006 facility incorporated the terms of the National Portfolio Facility Agreement terms and conditions. This document contained very similar provisions as those which applied in regard to the 2001 facility in respect of the ability of NAB to cancel the facility at any time whether or not the borrower was in breach of the agreement. If that occurred, the limit of the facility would be reduced to zero and any unpaid moneys were immediately due and payable. If such moneys were not paid, the borrower would then be in default and a default notice would be given to the borrower. If that default was not remedied, clause 9.2 provided that NAB could bring enforcement proceedings.
25 As contemplated under the terms of the 2006 facility, NAB took mortgages over the properties. Those mortgages are as follows:
(a) mortgage dated 4 January 2007 over the first land and allocated dealing number AE928053X;
(b) mortgage dated 4 January 2007 over the second land and allocated dealing number AE928026B;
(c) mortgage dated 4 January 2007 over third land and allocated dealing number AE928042D;
(d) mortgage dated 5 January 2007 over the fourth land and allocated dealing number AE928077H;
(e) mortgage dated 5 January 2007 over the fifth land and allocated dealing number AE928070X;
These mortgages shall be collectively referred to as "the mortgages".[5]
26 The mortgages incorporated Memorandum of Common Provisions AA0986 ("the memorandum"). Clause 26 of the memorandum provided that relevantly:
(a) you do not pay the amount owing when due for payment; or
(b) you do something you agree not to do, or you do not do something you agree to do, under this mortgage or an agreement covered by this mortgage;
27 Clause 27 of the memorandum provided for events of default. It stated relevantly:
27.1 Subject to 29, if you are in default for more than one day and:
(a) to the extent Consumer Credit legislation applies to the default, the bank has given you a default notice allowing you a period of at least 31 days from the date of the notice to remedy the default unless otherwise provided by the relevant Consumer Credit legislation; and
(b) the bank has given you (and any other person entitled) any other notice required by any provision of any law relating to the enforcement of this mortgage; and
(c) any notice required under this clause is not complied with
then the whole of the amount owing becomes payable on demand and if the bank demands payment of the amount owing but it is not paid, the bank may enforce this mortgage pursuant to 27.2. If a notice is required under both 27.1(a) and 27.1(b), subject to applicable laws the bank may give you the notices at the same time and may do so in the same document.
27.2 The bank may enforce this mortgage by doing any one or more of the following in addition to anything else the law allows the bank to do as mortgagee:
(a) sue you for the amount owing;
(b) take possession of the property;
...
28 Clause 46 of the memorandum defines "amount owing" under the mortgages as meaning:
(a) all amounts which at that time the Bank has advanced or paid, or has become liable to advance or pay, for any reason:
- because of any act or omission of the Bank at your express or implied request; and
b) all amounts for which at that time you are or may become actually or contingently liable to the Bank for any reason, including all amounts for which you are or may become liable to the Bank in respect of any orders, drafts, cheques, promissory notes, bills of exchange, letters of credit, guarantees, indemnities, bonds, and other instruments or engagement (whether negotiable or not and whether matured or not) which:
- have been drawn, issued, accepted, endorsed, discounted or paid by the Bank; or
- are held by the Bank as a result of any transaction entered into by the Bank for, or on behalf of, or owing upon a contingency by you to the Bank for any reason; and
c) all amounts which at that time are owing and unpaid, or owing but not presently payable, or owing upon a contingency by you to the Bank for any reason; and
d) all amounts which at that time the Bank is entitled to recover or claim from you for any reason (including any assignment, transfer or disposition by any person to the Bank of any property); and
e) all amounts which at that time you owe, or are liable for, to any assignee of the Bank because the assignee performs an agreement or exercises a right the Bank had before the time of assignment; and
f) all amounts referred to in other provisions of this mortgage as being added to or part of the amount owing or as being payable by or recoverable from you; and
g) all amounts of interest on or included in an amount referred to in any of the other paragraphs of this definition; and
h) all amounts which at that time it is reasonably foreseeable will at some future time fall within any of the descriptions above (applied as at that future time);
whether or not an amount referred to in any one or more of paragraphs (a) to (h) arises under an agreement covered by this mortgage.
29 Mr Wyatt exhibits several statements generated by NAB in respect of the 2006 facility. By 15 January 2007, NAB had advanced $2,564,000 under the 2006 facility.
30 Clause 5.4 of the Terms and Conditions of the 2006 facility provided for an annual review process. The annual review date nominated for the 2006 facility was 31 December 2007.
31 It seems that the 2006 facility expired without an agreement being reached between NAB and Ms Lawrence as to it being rolled over.
32 On 19 February 2008, Ms Lawrence entered into a deed ("the first deed") with NAB pursuant to which NAB provided an extension on the operation of the 2006 facility under the terms of the deed. Under the deed, Ms Lawrence acknowledged that the 2006 facility had expired and was in default. NAB agreed to extend the operation of the 2006 facility and the business cheque account numbered 03837-5395 to 21 April 2008, subject to Ms Lawrence performing certain obligations which were set out in clause 2.5 of that deed. Those obligations were as follows:
(a) Ms Lawrence would provide NAB with a copy of an unconditional letter of offer of refinance (satisfactory to NAB in its absolute discretion) of the facilities[6] by 15 March 2008;
(b) settlement of the refinance of the facilities and repayment of the moneys owing was to occur no later than 31 March 2008; and
(c) that any failure to comply with any of the terms of the deed would constitute a default and that in the event of default all moneys owing to NAB would become immediately due and payable and NAB was entitled to exercise all its rights and powers including those under the mortgages given over the properties.
33 On 10 June 2008, Ms Lawrence entered into a further deed ("the second deed").[7] In the recitals to the second deed, reference was made to a default, describing the expiry of the 2006 facility and of the business cheque account to which reference has been made. The second deed permitted Ms Lawrence to operate the 2006 facility and the business overdraft with a varied expiry date of 8 October 2008, on condition that on or before 8 July 2008 Ms Lawrence would provide NAB with:
(a) a copy of an unconditional letter of offer of refinance;
(b) unconditional contracts of sale for the sale of some or all of the properties;
(c) settlement of the refinance of the facilities by 29 July 2008; and/or
(d) settlement of the sale of the properties in repayment of the moneys owing under the first facility and the overdraft facility by 8 October 2008;
(e) by 24 June 2008 Ms Lawrence was to provide NAB with notification as to the progress of the refinance arrangements.
34 The second deed provided that any failure to comply with the terms of the second deed would constitute a default under the facilities as defined and the securities. As with the first deed, the second deed provided that in the event of default under the agreement, all moneys due and payable under the facilities were immediately due and payable and NAB could exercise all its rights and powers under the 2006 facility and in respect of the business cheque account, together with its rights and powers under the securities. Ms Lawrence did not perform her obligations under the second deed.
35 On 20 August 2008, NAB served Ms Lawrence with a default notice under the 2006 facility as amended by the first and second deeds.[8] The notice was sent to Ms Lawrence's last known address for service which was PO Box 1273 Collingwood in Victoria. The notice described the default as being a failure to comply with the provisions of clause 2.4 of the second deed. It stated that the sum of $2,727,594.55 was due and payable and if that default was not remedied within 31 days from the date of the notice, the whole of the unpaid balance, enforcement expenses, interest, fees and charges owing under the 2006 facility as varied by the first and second deeds were repayable and that NAB intended to sell the properties the subject of the mortgages.
36 On 15 January 2009, NAB served Ms Lawrence with demands under the 2001 facility and the 2006 facility as varied by the first and second deeds. The demand in respect of the 2001 facility identified the default as being a breach of the provisions of clause 2.4 of the second deed and stated that the sum of $66,344.20 was now due and payable. The demand under the 2006 facility made reference to the default notice of 20 August 2008 and that it had not been remedied. NAB demanded repayment within seven days of the whole of the unpaid balance and any other money owing under the 2006 facility, together with the bank's reasonable expenses incurred in enforcing the mortgages. It identified the total amount owing at that point as being $2,814,381.35. That demand was stated to be issued pursuant to s 76 of the Transfer of Land Act and stated that unless payment of the total amount owing was made, NAB could sell the properties the subject of the mortgages. The demands were sent by post to Ms Lawrence to the same post office box in Collingwood that the default notice in respect of the 2006 facility was sent. In addition, the demands were also sent by post to 9 Herbert Street, Northcote in Victoria.
37 As at 6 September 2010, Ms Lawrence was indebted to NAB in the sum of $3,166,121.04 together with costs. This amount was comprised of the amount owing under the 2001 facility of $78,543.87 and under the 2006 facility of $3,087,577.17. Mr Wyatt deposes that Ms Lawrence has not complied with the demands which have been referred to above.
38 In paragraph 28 of her defence, Ms Lawrence admits to being in possession of the properties the subject of the mortgages. Mr Wyatt deposes in is principal affidavit that as at the date of the affidavit Ms Lawrence has not delivered possession of the properties to NAB and has not paid any monies to NAB since in or about November 2007 in respect of the 2006 facility and since in or about February 2008 in respect of the 2001 facility.
39 In Commonwealth Bank of Australia v Jackson[9] Tadgell J, in considering the matters to be proven in a case of this type, observed:
The circumstances being as they have been proved, that is to say default having been made in the way I have indicated, and no demand being necessary under the mortgage as a prerequisite to the mortgagee's entitlement to possession, s 78 of the Transfer of Land Act made the mortgagee's task a comparatively simple one. It merely needed to allege in the statement of claim and prove upon an application for summary judgment the execution of the mortgages, the advances, default by the failure of the mortgagees to pay anything under the mortgages, and that the defendants as mortgagors were in possession.[10]
40 I consider that NAB has established the matters it is required to satisfy in order to obtain possession of the subject properties and for judgment in respect of the debt owed under the 2001 and 2006 facilities. In particular, I consider that the following matters have been proven:
41 As to the quantum of the money sum for which NAB seeks judgment, paragraph 45 of the memorandum provides that NAB may certify about an amount payable or other matter in connection with the mortgage and that it is "sufficient evidence of the amount or the matter unless it is proved to be incorrect".
42 NAB relies on such a certificate which is exhibited to the affidavit of James Wallace Wyatt sworn 27 September 2011.[13] The certificate of Mr Wyatt is dated 22 September 2011. Mr Wyatt certifies that he is an "Executive" in the employ of NAB. He states that he makes the certificate pursuant to paragraph 45 of the memorandum.
43 Mr Wyatt certifies that the total amount owed pursuant to the 2006 facility as at 22 September 2011 is $3,310,910.96 plus accrued but as yet undebited interest of $14,049.12. He certifies that the current interest rate for this account is 7.04% per annum and that interest accrues daily and is debited monthly on the last business day of each month. From 1 September 2011 until 30 September 2011 interest accrues at a rate of $638.59 per day.
44 Mr Wyatt certifies that under the 2001 facility, the total amount owed as at 22 September 2011 is $87,753.03 plus accrued but as yet undebited interest of $603.50. He states that the current interest rate for this account is 11.41% per annum and this accrues daily and is debited monthly on the last business day of each month. He states that from 1 September 2011 until 30 September 2011 interest accrues at the rate of $27.43 per day.
45 Mr Wyatt certifies that the total amounts referred to total $3,413,316.61 and that this amount is payable and owing to NAB by Ms Lawrence under the first and second facilities.[14] The sums also accord with the amounts deposed to as being owing by Ms Lawrence in the affidavit material if accrued interest is taken into account.
46 Clause 46 of the memorandum defines costs as including
"Charges and expenses (including those incurred by the use of the staff and the facilities of the Bank) and costs, charges and expenses in connection with legal and other advisers on a full indemnity basis."
47 I am satisfied that that definition of costs would be included as "an amount owing" as defined by clause 46 of the memorandum.[15] Reference was made by Mr Segal to the decision of the Court of Appeal in the United Kingdom in Gomba Holdings (UK) Limited v Minories Finance Limited.[16] Scott LJ collected the principles as to costs which apply in proceedings between a mortgagee and a mortgagor upon a mortgage.[17] In essence, where there is a contractual right under the mortgage to costs, the discretion as to costs should ordinarily be exercised so as to reflect that contractual right. This approach was cited with approval by Vickery J in Taree Pty Ltd and ors v Bob Jane Corporation Pty Ltd and anor.[18]
48 In the circumstances I accept that it is appropriate that Ms Lawrence pay NAB's costs of the proceeding including reserved costs on an indemnity basis.
[1] In paragraph 10 of her amended defence and amended counterclaim of 10 August 2010 ("defence") Ms Lawrence admits to entering into the 2001 Facility.
[2] While NAB does not claim possession of those properties as part of its relief under the 2001 Facility, those properties are amongst those mortgages under the 2006 Facility. Clause 46 of the memorandum, which is extracted at paragraph 28 below, provides that the mortgages are "all moneys mortgages" which secure all indebtness by Ms Lawrence to NAB.
[3] In paragraph 5 of her defence, Ms Lawrence admits that on 20 December 2006, she signed a National Portfolio Facility Agreement with NAB and that NAB advanced moneys to her with a limit of $3,084,000.
[4] In paragraph 2 of her defence, Ms Lawrence admits that she is and was at all relevant times the registered proprietor of the properties.
[5] In paragraphs 15, 16, 17, 18 and 19 of her defence, Ms Lawrence admits to executing the mortgages.
[6] The "Facilities" in clause 2.5 included the 2006 facility and the overdraft account mentioned above.
[7] In paragraph 7 of her defence, Ms Lawrence admits to entering into the second deed.
[8] The evidence as to service of the default notice is that of Sonida Sorn sworn 23 June 2010.
[10] Tadgell J's approach has been cited with approval by B. Beach J in Wren Close Nominees Pty Ltd v McCulloch [2002] VSC 138 and Armstrong v Maryvell Investments [2002] VSC 189.
[11] Ms Lawrence has admitted to the execution of the mortgages in paragraphs [15]-[19] of her amended defence.
[12] Ms Lawrence admits to such in paragraph 28 of her amended defence.
[13] See generally Dobbs v National Bank of Australasia Ltd [1935] HCA 49; (1935) 53 CLR 643 at 651 and Permanent Trustee Co Ltd v Gulf Import and Export Co [2008] VSC 162 which more particularly applied the principles of Dobbs where the provision referred to "sufficient evidence" as here.
[14] As indicated earlier in this judgment, I have preferred to describe the first facility as the 2006 facility and the second facility as the 2001 facility. The certificate adopts the designations of first facility and second facility used by NAB in the statement of claim and the affidavit evidence.
[18] [2008] VSC 228. See also Citibank Savings Limited v Nicholson and ors [1998] ANZ Con VR 442.
National Australia Bank Limited
Lawrence [2011] VSC 556
(1935) 53 CLR 643