Plaintiff v Defendant

1 The first defendant ('Westpac') applies by summons filed 12 April 2016 for the claim brought against it by the plaintiff to be summarily dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010 ('CPA'), alternatively, that there be judgment for Westpac or a permanent stay of the proceeding pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'). Westpac also applies, in the further alternative, for the statement of claim endorsed on the writ to be struck out pursuant to r 23.02 of the Rules.

2 The third defendant ('Ms Hou') is the registered proprietor of the property at 349 Nepean Highway, Brighton East, Victoria ('the Property'). The second defendant ('Mr Kanakaridis') was previously a registered proprietor of that Property with Ms Hou and had, with her, borrowed moneys from Westpac secured by a mortgage over the Property. The borrowers defaulted under the mortgage and on 2 April 2014 this Court ordered that Westpac recover possession of the Property. Appeals from that order were unsuccessful.

3 The Sheriff executed a warrant for possession on 10 February 2016 and obtained possession of the Property for Westpac. The Sheriff's reports reveal the Property was then, and for a considerable period before that date, uninhabited and uninhabitable.

4 On 1 April 2016, the plaintiff, Paul David Annesley ('Mr Annesley'), commenced this proceeding by writ endorsed with a statement of claim. He claims, in summary:[1]

(a) to be a tenant of Mr Kanakaridis of the Property under a residential tenancy agreement dated 8 August 2015;

(b) to be a purchaser of the Property under a contract of sale entered into with Mr Kanakaridis on 8 October 2015 for a purchase price of $1,500,000.00, and that he completed the purchase on 22 January 2016 by paying the balance of the purchase price to Mr Kanakaridis;

(c) that he resides at the Property and was arranging to carry out repairs to it; and

(d) that upon Westpac recovering vacant possession of the Property on 10 February 2016, it was trespassing and his tenancy of the Property and his equity in it were unlawfully disturbed.

5 The relief sought by Mr Annesley against Westpac includes:

(a) compensation for Westpac breaking and entering into the Property, and for depriving him of access to the Property, and for breaching his privacy and right to peaceful enjoyment of the Property since 10 February 2016, calculated at $300.00 per day;

(b) payment to him of $1,500,000.00 and 10% interest;

(c) an injunction restraining Westpac from advertising, marketing or selling and transferring the Property;

(d) an injunction restraining Westpac and any of its agents, including the Sheriff and the Victoria Police, from entering, interfering with or obstructing his access to and possession and occupancy of the Property; and

(e) that Westpac pay $400,000.00 to Mr Annesley's nominated registered builder in order for the builder to complete the renovation and rectification works to the Property according to the contract with the builder.

6 For the reasons which follow, I have concluded that Mr Annesley has no real prospect of establishing that he was a tenant at the Property pursuant to the residential tenancy agreement he claims to have entered into. Because that tenancy agreement is the foundation of the major parts of his claim, and because the other claims he makes are unsustainable, there is no real prospect of the proceeding as a whole succeeding.

7 Further, if the existence of a valid and enforceable tenancy agreement had been the subject of argument involving a contradictor to Westpac, on the present material I would be persuaded that the tenancy agreement is a sham. That is, a sham in the sense that the tenancy agreement put forward was intended by the parties to it, Mr Annesley and Mr Kanakaridis, to give to third parties (in particular Westpac) and to the Court the appearance of creating legal rights and obligations different from the actual legal rights and obligations which the parties intended to create.

8 I also conclude that Westpac is entitled to relief under r 23.01 of the Rules, in respect to parts of the claim, and under r 23.02 of the Rules.

9 In support of its application to summarily dismiss the proceeding, Westpac has filed:

(a) an affidavit of its recoveries case manager, Rebecca Sue Lamshed, sworn 15 April 2016 ('Lamshed Affidavit');

(b) affidavits of its solicitor, Susan Sumars, sworn 18 and 28 April and 27 May 2016 ('Sumar Affidavits');

(c) an affidavit of a supervisor in the Sheriff's office, Christopher Edwards Moore, sworn 19 May 2016; and

(d) several affidavits of service of the summons and the several affidavits in support of it.

10 In opposition to the application is an affidavit of Mr Annesley apparently affirmed on 16 May 2016.

11 When the application by Westpac was called on there was no appearance for Mr Annesley or for the other defendants.

12 On or about 23 September 2003, Westpac agreed to lend to Mr Kanakaridis and Ms Hou ('the borrowers') the sum of $420,000.00. The agreement was varied in or about March 2004 to the increase the loan to of $496,000.00 ('the Loan Agreement'). The Loan Agreement was agreed to be secured by a first registered mortgage over the Property. By mortgage dated 27 September 2003, a mortgage of the Property by the borrowers to Westpac was registered. At the time the borrowers were joint registered proprietors but since 4 February 2008, Ms Hou has been the sole registered proprietor of the Property.

13 The terms of the mortgage included that the borrowers would be in default if they did not pay Westpac the amount due under the Loan Agreement or the mortgage and the failure to pay continued for seven days. In the event of default, Westpac was entitled, after giving certain notices, to require immediate repayment of all amounts owing under the Loan Agreement and the mortgagee and could take possession of and sell the Property.

14 By 19 February 2010, the borrowers were in default under the Loan Agreement and the mortgage. On 19 February 2010, Westpac made demand pursuant to the Loan Agreement and the mortgage and pursuant to s 76 of the Transfer of Land Act 1958 ('the TLA'). The borrowers did not make payment to Westpac in accordance with the demand, so Westpac commenced proceedings in this Court.[3]

15 On 2 April 2014, Westpac obtained summary judgment in its favour for, amongst other things, recovery of possession of the Property.[4] That order was appealed and the appeal was dismissed by Warren CJ on 5 December 2014.[5] Application was made to the Court of Appeal for leave to appeal the decision of Warren CJ, and that application was dismissed on 8 April 2015.[6]

16 On 22 October 2015, Westpac received an email from Mr Kanakaridis in which, among other things, it was alleged that there was a tenant in the Property. Some utility bills were produced which purported to show that one Gary Mondon was in occupation.[7] The email from Mr Kanakaridis also referred to and attached a contract of sale of the Property dated 8 October 2015, recording a sale by Mr Kanakiridis as the vendor, to Yellow Tractor Pty Ltd as the purchaser. The plaintiff, Mr Annesley, signed on behalf of the purchaser. Mr Annesley is the sole director of that company. The contract records the settlement date as 22 January 2016, the price as $1,500,000.00 and the deposit as $75,000.00 payable on 22 October 2015, of which $5,000 had been paid. The contract records that it is subject to a lease but does not identify the lease or the tenant.[8]

17 There are Special Conditions in the contract as follows:

1. The Purchaser will not under any circumstances deal with or negotiate with any other Party other than the vendor Being Savvas Kanakaridis for the sale of this Property 349 Nepean Highway Brighton East Vic 3187.

Any intervention or interference By any other Party including the mortgagee will give rise to a claim for damages By the Purchaser and against the intervening Party and the Purchaser reserves the right to rescind the contract and claim damages against any intervening Party. (sic)

18 The section 32 Vendor's Statement attached to the contract shows that Ms Hou, not Mr Kanakaridis is the registered proprietor. The statement includes a copy of a caveat lodged on the title to the Property by Mr Kanakaridis in which he notifies a claim to the estate in fee simple in the Property pursuant to an agreement dated 1 January 2010. There is no lease or tenancy agreement referred to in, or attached to the Vendor's Statement.[9]

19 Westpac's solicitors responded to that email by letter dated 18 November 2015 to the borrowers.[10] It was noted that Westpac had put on hold any eviction from the Property given that Mr Kanakaridis had provided an executed Contract of Sale for its consideration. The letter raised a number of questions relating to the Contract of Sale, including that it was a private sale and did not name an agent, whereas Westpac understood an agent had been engaged, and that in relation to the deposit Mr Kanakaridis had produced a 'charge voucher' by way of proof of payment of the deposit into his personal account, but the deposit must be paid into a trust account of the agent or conveyancer. Westpac would only accept as proof of payment of the deposit a trust account receipt issued by the agent or conveyancer.

20 In relation the alleged tenancy of the Property, the letter commented as follows: [11]

(a) the Contract says the Property is sold subject to lease but no particulars of the lease are provided and no lease is attached to the Vendor's Statement;

(b) a copy of the alleged tenancy agreement had not been provided;

(c) the utility bills provided were not sufficient to prove the existence of a residential tenancy;

(d) the Sheriff's Office of Victoria had informed Westpac's solicitors that the Property is uninhabitable, unoccupied and that the neighbours had reported that whilst someone had been living in the granny flat at the rear of the Property, no one was currently living there and that these observations were inconsistent with the existence of a tenancy; and

(e) the terms and conditions of the Loan Agreement and the mortgage did not allow any tenancy to be entered into without Westpac's consent and that no such consent had been obtained.

21 The letter went on to ask that the borrowers provide the following for Westpac's further consideration by 24 November 2015:

(a) an explanation as to why the agent previously engaged was not listed as the vendor's agent in the Contract;

(b) a trust account receipt evidencing the payment of the deposit; and

(c) evidence satisfactory to Westpac of the existence of any alleged lease.

22 The letter informed the borrowers that if they failed to provide that evidence, Westpac may proceed immediately with a further eviction on the basis that no lease was in existence to which the Residential Tenancies Act 1997 ('the RTA') applies.

23 No response was received to this letter.[12]

24 On 4 December 2015, Westpac's solicitors wrote to the borrowers granting them an extension to 11 December 2015 to provide the information requested in the letter of 18 November 2015. The letter went on to say that if the borrowers failed to provide that information by 11 December 2015, Westpac would assume that no lease was in existence and would look at having a further eviction date listed for the Property without further notice.[13]

25 This letter also did not receive a response.[14]

26 Between 22 and 25 January 2016 officers of Westpac exchanged emails with Mr Kanakaridis.[15] Mr Kanakaridis asserted that the 'fact is that the tenant in [the Property] ...have been there since 2007', that the purchaser of the Property had requested a 30 day extension of the settlement date which had been agreed to, and, rather inconsistently, that the purchaser has moved into the Property for the purpose of completing renovations.

27 On 10 February 2016, the Sheriff executed a Supreme Court warrant of possession.[16] The Property was found to be vacant and the Sheriff's reports show that the Property had not been inhabited for some considerable time. There were rooms covered in spider's webs, many doorways were impassable, the toilet area of the bungalow was covered in dust and dirt. There was no water connected to the Property. There are photographs attached to the Sheriff's report that clearly show the state of disrepair of the house and its interior. That report also reveals that at the time of taking possession on 10 February 2016 there was a notice affixed to the Property dated 26 January 2016 called an 'Occupancy Notice'. That notice purported to state that the Property was occupied by Gary Mondon and Roy Ruzidov pursuant to a residential tenancy agreement, that Mr Kanakaridis or Mr Annesley should be contacted in respect of any inquiries and that any person trespassing on the Property or entering without the express consent of 'the occupiers or Savvas Kanakaridis or Paul Annesley will be prosecuted'.

28 On or about 11 February 2016, Mr Annesley made application to the Victorian Civil and Administrative Tribunal ('VCAT') against Westpac.[17] Mr Annesley sought an order under s 472 of the RTA restraining Westpac from evicting him from the Property without obtaining a possession order from VCAT and an order allowing the tenant to change the locks if he has been locked out. The application set out the following:

(a) that there was a 12 month fixed term tenancy agreement created on 8 August 2015 and signed by the owner of the Property, Mr Kanakaridis;

(b) on 5 February 2016, the tenant was given a final notice from the Sheriff which states it does not apply to tenancies;

(c) the tenant is an interstate truck driver and was away from 9 February to 11 February 2016;

(d) on 11 February 2016, the tenant called the Sheriff who said regardless of a tenancy the bank wants possession; and

(e) the Victorian Legal Aid Duty Lawyer, Aimee Cooper, spoke to the bank's lawyers who advised that the bank had no proof of a tenancy and took possession yesterday.

29 Attached to the application was what was purported to be a residential tenancy agreement for the Property dated 8 August 2015 between Mr Annesley and Mr Kanakaridis. The residential tenancy agreement relied upon by Mr Annesley contains a code 'RT1(11/15)' which an officer of Consumer Affairs Victoria, a division of the Department of Justice and Regulation, has stated means the document was last updated in November 2015. In other words, the pro forma residential tenancy agreement used was not available until November 2015.[18]

30 On 11 February 2016, VCAT's Residential Tenancies List heard Mr Annesley's application which was amended to include the landlord, Mr Kanakaridis and Ms Hou as respondents. The order recites that upon hearing the evidence of the tenant in the absence of the landlord and Westpac, the Tribunal found that:

(a) the landlord and tenant are parties to a tenancy agreement subject to the RTA;

(b) there is sufficient evidence to justify the making of the following interim order:

Pending the further hearing of this application, the Tribunal orders that:

1. The landlord and the Westpac Banking Corporation shall comply with the Act, in particular Part 9 which relates to the personal papers and possessions of the tenant which remain at the premises.
2. The landlord and the landlord's servants or agents and the Westpac Banking Corporation are restrained from:

Interfering with or disposing of the tenant's goods which remain at the rented premises

1. The parties and their servants or agents are restrained from serving on each other any notices under the Residential Tenancies Act 1997 without the prior leave of the Tribunal.
2. The landlord and the Westpac Banking Corporation are required to take the following action in performance of duties under the tenancy agreement or the Residential Tenancies Act 1997:

The tenant is to be provided with reasonable access to the rented premises to remove his belongings from the premises as soon as possible after a request for access is made.

1. The hearing is adjourned to a date to be fixed, with priority, by the principal registrar, at which time the landlord and the Westpac Banking Corporation shall be heard as to whether this order should be affirmed, varied or set aside.

31 Mr Annesley made an affidavit in the VCAT proceeding on 17 February 2016 in which he deposed that he had no fixed address, was unemployed and:

(a) that he signed a tenancy agreement with Mr Kanakaridis in relation to the Property on 8 August 2015 for a fixed term of 12 months;

(b) the Property has been his principal place of residence since 8 August 2015 and his bed and all his belongings remain in his bedroom at the Property;

(c) on 5 February 2016, Mr Kanakaridis gave Mr Annesley a notice that had been received from the Sheriff which said that he had to vacate the Property but the notice said that it did not apply to tenants under the RTA. Mr Kanakaridis told him that he was speaking to Westpac about the fact that there are tenants in the Property;

(d) he was interstate between 9 February 2016 and 11 February 2016 performing a job as a truck driver. On his return, he called the Sheriff who told him that Westpac wanted possession regardless of his tenancy. He was later told by the Victoria Legal Aid Duty Lawyer who had spoken to Westpac's lawyer that the Sheriff had already attended the Property on 10 February 2016;

(e) he made application to VCAT on 11 February seeking access to the Property; and

(f) he works for Heavy Haulage Pty Ltd as a truck driver on a contract basis. On 16 February 2016, Heavy Haulage Pty Ltd advised that he was required to take a load from Dandenong to Warrnambool on 18 February 2016, the date that had apparently been fixed by the principal registrar for the further hearing.

32 The matter came back on before the Tribunal on 18 February 2016. The Tribunal found that the tenant made a late application for an adjournment of the proceedings on 17 February 2016, but the Tribunal considered that there were insufficient grounds for an adjournment, which was then denied. The Tribunal ordered that the proceeding be dismissed because there was no appearance by or on behalf of the applicant at the scheduled hearing time and that the order of 11 February 2016 was set aside.

33 Mr Annesley then made an application under s 120 of the VCAT Act for a review of the Tribunal's order made on 18 February 2016 on the basis that he had a reasonable excuse for not attending the hearing or being represented. The Tribunal ordered that the application for review be granted and the order of 18 February 2016 be set aside, and directed that the matter be listed on 29 March 2016 for hearing and made other directions as to the filing of material.

34 On 29 March 2016, the Tribunal refused Mr Annesley's (with Ms Hou and Mr Kanakaridis) application. It dismissed Mr Annesley's application and again set aside the orders made on 11 February 2016.

35 After the dismissal of Mr Annesley's application to VCAT, Westpac received a notice of a further application pursuant to s 120 of the VCAT Act to review the decision of the Tribunal made on 29 March 2016. It was to be heard on 13 May 2016.[19]

36 On 10 May 2016, Westpac's solicitors received an email from Mr Kanakaridis informing them, and others, that it was due to his request that the matter was re-listed for hearing on 13 May 2016 because he was not able to attend at the previous hearing. In the email he:[20]

(a) asserts that as at 21 April 2016 he, Ms Hou and Mr Annesley had full possession and free use of the Property;

(b) asserts that Westpac are 'still trying' to agitate matters in the Supreme Court of Victoria with regard to the Property but these are being challenged; and

(c) proposes the VCAT matter set down for 13 May 2016 be adjourned until further notice because Mr Annesley has now full access and use of the Property.

37 On 13 May 2016, VCAT refused the application made by Mr Kanakaridis for an adjournment and dismissed the application made to review the decision of the Tribunal made on 29 March 2016 and affirmed that decision.

38 On 23 February 2016, the recovery section of Westpac received an email from a Mr Peter Bakoulas. The email states: 'No unauthorised access to building site. Major fines apply', and attached a construction notice erected at the Property recording Landmark Constructions and Associates as the relevant company, Mr Kanakaridis as the site supervisor, Mr Roy Ruzidov as the OHS manager, and the building practitioner number to be DB-U 15243 and next to that number the project manager is named as 'Savvas' and the site manager as 'Roy'. The Safe Work Method Statement records Mr Annesley, Mr Ruzidov and Mr Kanakaridis as 'workers'.

39 Searches undertaken by the solicitors for Westpac reveal that:

(a) Mr Kim Moutidis is the sole director of Landmark Construction and Associates Pty Ltd;

(b) the building practitioner number DB-U 15243 is registered to Kim Moutidis; and

(c) Mr Bakoulas is one of the registered proprietors of a Property adjoining the Property.

40 There is no evidence that the contract of sale of the Property between Mr Annesley and Mr Kanakaridis has been completed by settlement. Ms Hou remains the registered proprietor and Westpac remains the registered mortgagee.

41 On 11 May 2016, Robson J granted Westpac a further warrant of possession in respect of the Property as a result of Mr Kanakaridis re-entering the Property without permission. In addition, Robson J granted injunctions restraining Mr Annesley, Mr Kanakaridis and Ms Hou from seeking to reenter the Property once Westpac was restored to possession of it.[21]

42 On 25 March 2015, Mr Kanakaridis and Ms Hou commenced proceedings against Westpac in the Federal Court of Australia.[22] The proceeding concerned the same matters that had arisen in the Supreme Court proceeding in which Westpac had obtained an order for possession of the Property in 2014 by order of Lansdowne AsJ. Mr Kanakaridis and Ms Hou sought, amongst other things, orders restraining Westpac from enforcing its mortgage over the Property and seeking payment of damages. On 24 April 2015, Westpac made application for summary dismissal of the proceeding and on 27 October 2015, Beach J summarily dismissed the proceeding.[23] The reasons for judgment published by Beach J on 27 October 2015 reveal a long and arduous process between the time of the making of the application by Westpac and the time of judgment. That long and arduous process was a product of a variety of applications made by Mr Kanakaridis and Ms Hou, and a series of adjournments and extensions of time as well as applications for leave to appeal from orders made by his Honour of an interlocutory kind. The account given by Beach J of these events shows a determination by Mr Kanakaridis and Ms Hou to delay and obfuscate.

43 The writ was issued on 1 April 2016 but not served. Nevertheless, Westpac entered an appearance to the writ on 5 April 2016. It is clear that, under the Rules, a defendant to any originating process may file an unconditional appearance notwithstanding that service of the originating process has not taken place. Rule 6.02(2) of the Rules provides:

Where a defendant to an originating process files an unconditional appearance, the originating process shall be taken to have been served on the defendant personally on the day on which the appearance is filed or on such earlier day as may be approved.

44 Westpac filed its summons seeking summary judgment on 12 April 2016. The summons was returnable on 2 May 2016. On 28 April 2016, Westpac's solicitors emailed my chambers, and copied the email to Mr Annesley, Mr Kanakaridis and Ms Hou,[24] attaching electronic copies of the affidavits and their exhibits for the convenience of the Court. A response was received from Mr Kanakaridis on 29 April 2016 in which he states that:

We do not know what this proceeding relates to or why it is returnable on the 2nd of May 2016. Neither I, or Qin Hou have been served with any documents from Paul David Annesley with respect to any Supreme Court action against us or Westpac, and as such we do not wish to participate in any such hearing or to appear in court on that date.

45 An email response was received from Mr Annesley on 29 April 2016. He said in his email:

I do not know what this proceeding relates to or why it is returnable on the 2nd of May 2016. I have not served copies of a supreme court action on any of the defendants. I understand a plaintiff can take up to 12 months up to 12 months (sic) to serve notice of action on any defendant.

I am not aware as to how or why Gadens lawyers are involving themselves in this matter. or as to how or why Gadens lawyers have received notice of this action from westpac. (sic)

I have not served notice of this action on any of the defendants as detailed in my writ and statement of claim.

This Action by Gadens lawyers is an abuse of process. (sic)

I do not wish to be dragged into these proceedings at the present time.

And if for whatever reason I am forced to be dragged into this matter prematurely and unlawfully. I will be seeking costs against whoever has made any such application. (sic)

46 My chambers responded to all the parties confirming that the proceeding had been listed before me on 2 May 2016 at 2.15pm.

47 On 2 May 2016, Mr Annesley emailed my chambers noting that he had never issued nor received any summons to appear in Court in relation to this proceeding, that he was not available to appear and did not understand what the hearing concerned. He went on to assert that he had no legal advice nor representation at that time and if the matter was to be heard and determined summarily, it would be a breach of the Rules and a denial of natural justice.

48 On 2 May 2016, there was no appearance for Mr Annesley. Counsel appeared for Westpac and Mr Kanakaridis appeared in person. It was noted that Mr Annesley claimed not to have received any summons or supporting affidavit material. Orders were made extending the date for the filing by Westpac of any defence to a date after the hearing and determination of its summary judgment application. Orders also extended the date for the plaintiff to file and serve any affidavits in opposition to the summons by 16 May 2016, and for Westpac to serve any affidavits in response and an outline of submissions by 30 May 2016. Other directions provided for notice to be given if any deponent was sought to be crossexamined and the further hearing of the summons was adjourned to 8 June 2016. Liberty to apply was reserved.

49 On 3 May 2016, Westpac made an application pursuant to liberty to apply for it to be permitted to serve Court documents upon Mr Annesley by email at yellowtractor.co@gmail.com. The basis for this application was that:

(a) Mr Annesley's address for service in the writ is stated to be the Property;

(b) the evidence in the affidavit of Ms Lamshed sworn 15 April 2016 in support of Westpac's summons shows the Property to be uninhabited and uninhabitable;

(c) it is settled law that pursuant to Rules 5.07 and 6.06(1)(b) of the Rules that the address for service endorsed on the originating process, in this case the writ, is the plaintiff's place of residence;[25]

(d) Mr Kanakaridis appeared in Court on 2 May 2016, even though the summons was not served on him. Mr Annesley did not appear (and Westpac had filed affidavits of service on him of the summons and supporting affidavits). Mr Kanakaridis stated that he occupies the Property for the time being, and Mr Annesley had occupied the Property;

(e) it appeared to the Court to be clear that in fact no-one resided at the Property; and

(f) therefore it appeared to be in the interests of the just, efficient, timely and costeffective resolution of the real issues in the proceeding that orders be made permitting service on Mr Annesley at his email address.

50 Upon the making of that application by Westpac, my chambers sent an email to Mr Annesley (copied Mr Kanakaridis and Ms Hou) informing him that unless good reasons to the contrary were provided, I proposed to make the orders sought. Mr Annesley did not respond. Mr Kanakaridis did, however, respond that the application 'is deluded' and that Mr Annesley has always maintained occupancy of the Property and that he, Mr Kanakaridis, is also occupying the Property. He asserts that Mr Annesley did not receive Westpac's summons 'because Westpac's so-called security people probably took it out of the letterbox as also a lot of my mail has been disappearing out of the letterbox since Westpac and Gadens put their agents out the front of the property.'

51 On 4 May 2016, the Court ordered that Westpac may serve any document required or permitted to be served on Mr Annesley by sending it to him as an attachment to an email sent to him at yellowtractor.co@gmail.com.

52 On 4 May 2016, after the order was transmitted to the parties, Mr Kanakaridis responded that the orders are wrong and intentionally misleading, and that he resides at the Property, as does Mr Annesley. No response was received from Mr Annesley. On 5 May 2016, Mr Kanakaridis emailed my chambers saying that Mr Annesley cannot access his email at yellowtractor.co@gmail.com and stated:

This is not his personal email but a company email and sometimes he has used it.

He has asked me to send this message on his behalf and to inform you all that he does not consent to being served any documents to that email address.

His address for service is 349 Nepean Highway, Brighton East 3187, as he clearly indicated in the originating documents.

Any service to the email address: yellowtractor@gmail.com (sic) may not be received, will not be recognised and it will not be accepted.

I repeat that Mr Annesley has asked me to pass this message on to you all as he does not have access to his computer or that email at the present time.

53 On 6 May 2016, Westpac's solicitors responded by email informing Mr Kanakaridis that Westpac did not accept Mr Kanakaridis' email on behalf of Mr Annesley and that if Mr Annesley wished to apply to the Court to amend the order allowing service by email, he should be do so, supported by appropriate evidence. That email noted that Mr Annesley emailed the Court from that address as recently as 2 May 2016. It also noted that Mr Annesley was the sole director and secretary of the company Yellow Tractor Pty Ltd.

54 On 16 May 2016, a purported affidavit of Mr Annesley was filed with the Court and served on Westpac. The affidavit does not comply with r 43.01(2)(a) of the Rules, because Mr Annesley neither states his place of residence nor his occupation. In this regard, I note that in his affidavit dated 17 February 2016, and filed in the VCAT proceeding, he states his address to be 'no fixed place of address'. He also states that he is unemployed but that he works as a contract truck driver.[26]

55 In the affidavit filed in this proceeding on 16 May 2016, Mr Annesley deposes:

(a) that he filed the writ and statement of claim in order to protect and defend his equity, rights and privileges and the investment he has made towards the purchase and improvement of the Property and his constitutional and common law rights, privileges and entitlements;

(b) he does not consent to any summary hearing; and

(c) he does not consent to any form of service other than personal service upon him.

56 He does not, however, advance any evidence to support the allegations in his statement of claim.

57 On 27 May 2016, Westpac filed and served a Notice to Produce directed to Mr Annesley, which in summary sought three categories of documents:

(a) documents relating to communications between Mr Annesley and Mr Kanakaridis concerning the Property, the VCAT proceedings, this proceeding and the contract of sale;

(b) documents relating to communications between Mr Annesley and Ms Hou concerning the Property, the VCAT proceedings, this proceeding and the contract of sale; and

(c) documents relating to the tenancy agreement including bank statements showing the payment of rent or a bond, receipts for payments, utility, telephone and insurance bills and records.

58 No documents were produced in response to the Notice.

59 Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment in the proceeding on the ground that the plaintiff's claim or a part of that claim has no real prospect of success. Section 63 of the CPA provides that, subject to s 64, a Court may give summary judgment if satisfied that a claim or part of a claim has no real prospect of success. Section 64 is referred to further below.

60 Part 3 of Order 22 of the Rules governs applications by defendants under s 62 of the CPA. Rule 22.16 provides that an application under s 62 by a defendant for summary judgment shall be made in accordance with Part 3 of Order 22. That part, so far as presently relevant, provides:

(a) by r 22.17, that such an application is to be made by summons;

(b) by r 22.18(1), that where the defendant intends to rely on an affidavit in support of the application, it shall be filed with the summons and by r 22.18(4) of the Rules that the summons and any affidavit in support shall be served on the plaintiff not less than 14 days before the hearing;

(c) by r 22.18(3), that the affidavit may contain statements of fact based on information and belief if the grounds are set out and the Court considers that the statement ought be permitted having regard to all the circumstances;[27]

(d) by r 22.19, that the plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court; and

(e) by r 22.22, that subject to Part 4.4 of Chapter 4 of the CPA, on the hearing of an application the Court may dismiss the application, or give such judgment for the defendant against the plaintiff on the claim or the part of the claim to which the application relates as is appropriate having regard to the nature of the relief or remedy claimed.

61 Part 4.4 of the CPA liberalises the rules governing summary judgment in Victoria, such that it is easier to dispose of unmeritorious claims or defences summarily. The Court of Appeal has stated that the test:

[S]hould be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[28]

62 The test must be applied according to its own terms and not according to considerations of whether the proceeding is 'hopeless' or 'bound to fail'. To adopt 'an unduly constrained, historical approach to the construction of s 63' would 'subvert the purpose of the provision'.[29]

63 In Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd,[30] Daly AsJ noted that in Lysaght the Court of Appeal did not disagree with the approach of the Queensland Court of Appeal,[31] to the effect that the test of 'real prospect of success' is more liberal than the 'hopeless' or 'bound to fail' test, in particular, that there may be circumstances in which it is possible to satisfy the former without necessarily complying with the latter.[32]

64 Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. Courts should therefore only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that; the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[33]

65 The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[34]

66 If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) it is not in the interests of justice to summarily dispose of the proceeding;[35] or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.[36]

67 Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[37]

68 Rule 23.01 of the Rules is appropriate where the summary determination of the proceeding generally or any claim in the proceeding is sought. The ground of application is that the claim is bad in law or is scandalous, frivolous or vexatious or is an abuse of process. In an application by a defendant, the contention will be that by no proper amendment of the pleading can the plaintiff raise a good cause of action because the claim so completely lacks foundation in fact or law that no legitimate pleading amendment could save it.[38] On an application under r 23.01 of the Rules, any party may rely upon evidence given on affidavit or, by leave, orally.[39]

69 The court will not make an order under this rule unless it is clear on the pleadings or from extrinsic evidence that the claim is unsustainable in fact or in law. The burden on this question lies on the party impeaching the claim.[40]

70 Under r 23.02 of the Rules, the objection is to the manner of expression of the pleading. That is, the statement of claim does not disclose the cause of action or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process. Under this Rule, Westpac does not ask that the proceeding be brought to an end. It seeks an order that the offending indorsement be struck out or amended, and that the plaintiff present the claim in the proper way.[41] The meanings of some of the terms are not immediately obvious, particularly to litigants in person; and it is to one such litigant, Mr Annesley, to whom these reasons are substantially addressed. The meaning of some of the important terms are:

(a) scandalous: allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and are liable to be struck out; [42]

(b) frivolous or vexatious: these words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit; and

(c) prejudice, embarrass or delay: in general, a pleading or indorsement is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her.[43] Thus, a pleading is embarrassing[44] where it is unintelligible,[45] or is vague or ambiguous,[46] or is too general.[47]

71 It is not necessary to set out all the rules of pleading in this case. I mention the following:[48]

(a) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial;

(b) a pleading must state all the material facts to establish a reasonable cause of action (or defence), but not the evidence by which the facts are to be proved.[49] Material facts are only those relied on to establish the essential elements of the cause of action;[50]

(c) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent. A pleading is 'embarrassing' within the meaning of r 23.02 of the Rules when it places the opposite party in the position of not knowing what is alleged;

(d) it is not sufficient to simply plead a conclusion from unstated facts.[51] In this instance, the pleading is embarrassing;

(e) in an application under r 23.02 of the Rules, the Court will only look at the pleading itself and the documents referred to in the pleading;[52] and

(f) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[53]

72 Mr Annesley's essential factual contention underpinning the major part of his claim is that he was a tenant in possession of the Property pursuant to the residential tenancy agreement dated 8 August 2015. The Court should reject that contention. It is against all of the evidence that has been referred to and the inferences available from that evidence. The Court should find that there is no real prospect of Mr Annesley establishing that he was ever a tenant of Mr Kanakaridis at the Property. The Property was vacant when Westpac took possession of it.

73 Westpac also submitted that if, on the other hand, Mr Annesley was a tenant in possession when Westpac took possession on 10 February 2016, his tenancy was brought to an end. All that he was entitled to thereafter was compensation for inconvenience as a result of being wrongfully ejected from possession.[54]

74 In any event, Westpac submitted that whatever the position may be with respect to any tenancy, there is no arguable basis to sustain the relief claimed by Mr Annesley against Westpac for a variety of reasons to which reference will be made when I consider the third application, namely the applications under r 23.02 of the Rules.

75 For the reasons set out above, Westpac submits that Mr Annesley's claim has no real prospect of success and submits:

(a) there is no material before the Court on which it could form the view that it would be in the interests of justice to have a trial on the merits;

(b) there is nothing in the case which suggests that a trial on the merits would be in the public interest;

(c) a trial on the merits would only be productive of a further waste of costs, time and Court resources; and

(d) the overarching purpose of the CPA (to facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute) is better achieved by granting summary judgment to Westpac.

76 In relation to the application for judgment, or a stay of the proceeding, pursuant to r 23.01 of the Rules, Westpac relies upon the matters referred to above and submits that:

(a) in substance there is no difference between a claim that is scandalous, frivolous or vexatious and a claim that is an abuse of process;[55] and

(b) the rule and the inherent jurisdiction is not confined to cases where the abuse if manifest from the pleadings and the application may be supported by evidence on affidavit or by other material. [56]

77 The essential basis of Mr Annesley's claim is that when Westpac took possession, he was a tenant under a residential tenancy agreement. For the reasons given above, and because there is no real prospect of Mr Annesley establishing that he was a tenant of the Property under the tenancy agreement, the power to give judgment on Mr Annesley's claim to Westpac, or to permanently stay the proceeding, under r 23.01 of the Rules or the inherent jurisdiction of the Court should be exercised in favour of Westpac.

78 If the Court is against the submissions made by Westpac to summarily dismiss the proceeding, or to give judgment in Westpac's favour pursuant to r 23.01 of the Rules, Westpac seeks to strike out the statement of claim as a pleading pursuant to r 23.02 of the Rules. The statement of claim (which is set out in the schedule to these reasons) is self-evidently in breach of many rules of pleading.

79 There is, in my opinion, no real prospect of Mr Annesley establishing that he was a tenant in possession of the Property pursuant to the residential tenancy agreement dated 8 August 2015.

80 The following facts or 'indicia' lead me to conclude that there is no real prospect of Mr Annesley establishing that he was a tenant in possession of the Property pursuant to the residential tenancy agreement dated 8 August 2015:

(a) in October 2015, after the supposed date of the tenancy agreement (being 8 August 2015), Mr Kanakaridis claimed to Westpac that the Property was tenanted by one Gary Mondon;[57]

(b) Special Condition 1 in the Contract of Sale states that it is a condition of the sale that 'the tenancy continue with current tenant'. The only identified tenant at that time was Mr Gary Mondon;

(c) the Contract of Sale between Mr Annesley and Mr Kanakaridis was expressed to be 'subject to lease', but did not identify the tenant, and purported to include special conditions that did not identify the tenant. Further, no tenancy agreement was attached to the Vendor's Statement;

(d) the form of tenancy agreement bears the mark 'RT1(11/15)', which has been established by admissible evidence to show that the form used was generated by Consumer Affairs Victoria, a division of the Department of Justice and Regulation, in November 2015. That is, nearly three months after the date of the tenancy agreement;[58]

(e) the Sheriff's report reveals that at the time of taking possession on 10 February 2016, there was a notice affixed to the Property dated 26 January 2016 called an 'Occupancy Notice'. That notice purported to state that the Property was occupied by Gary Mondon and Roy Ruzidov pursuant to a Residential Tenancy Agreement, that Mr Kanakaridis or Mr Annesley should be contacted in respect of any inquiries and that any person trespassing on the Property or entering without the express consent of 'the occupiers or Savvas Kanakaridis or Paul Annesley will be prosecuted';

(f) the Landmark Constructions and Associates notice erected at the Property in February 2016 refers to Mr Roy Ruzidov as the OHS manager;

(g) Mr Kanakaridis did not respond to the letters from Westpac's solicitors dated 24 November and 4 December 2015 by which evidence as to the existence of a lease was requested;

(h) that in the emails between Mr Karakanidis and officers of Westpac between 22 and 25 January 2016, Mr Kanakaridis asserted that the 'fact is that the tenant in ...' the Property '...have (sic) been there since 2007', and that the purchaser of the Property had requested a 30 day extension of the settlement date which had been agreed to, but, inconsistently, that the purchaser has moved into the Property for the purpose of completing renovations. That is the purchaser, Mr Annesley, was not in occupation under any tenancy agreement but as purchaser; and

(i) the attempt by Mr Kanakaridis or persons associated with him to frustrate access by Westpac for the purposes of a sale of the Property by attaching construction notices to the Property.

81 Thus, Mr Annesley has no real prospect of establishing that he was a tenant at the Property pursuant to the residential tenancy agreement he claims to have entered into. Because that tenancy agreement is the major foundation of his claim, and because the other claims he makes are unsustainable for reasons I later give (when considering the pleading), there is no real prospect of the proceeding as a whole succeeding.

82 Further, the indicia also provide substantial grounds to infer, as a matter of fact, that the tenancy agreement is not a genuine transaction entered into between Mr Annesley and Mr Kanakaridis. It appears to be a device established to frustrate the rights of Westpac under its mortgage and its judgment for possession.

83 In Snook v London & West Riding Investments Ltd,[59] Lord Diplock addressed the meaning of the popular and pejorative word 'sham' in these terms:

I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the Court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co v Maclure and Stoneleigh Finance Ltd v Phillips), that for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

84 Similarly, in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd,[60] the High Court said:

'Sham' is an expression which has a well understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences.

85 If the existence of a valid and enforceable tenancy agreement had been the subject of argument involving a contradictor to Westpac, on the present material I would be persuaded that the indicia relied upon by Westpac to submit that there is no real prospect of Mr Annesley establishing that he was a tenant in possession of the Property pursuant to the tenancy agreement also leads to the conclusion that the tenancy agreement is a sham.

86 Westpac did not submit that its registered mortgage over the Property and its judgment against the registered proprietor, Ms Hou, for possession, each of which pre-date any purported tenancy agreement to which Mr Annesley is a party, has the result that Westpac's proprietary interest as mortgagee is not subject to the interest of a tenant in possession under s 42(2)(e) of the TLA.[61]

87 Westpac did not so submit because of the operation of the terms of s 216 of the RTA, which provides:

Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.[62]

88 This provision, and all the provisions to which it points, are premised on the assumption that there is a valid and enforceable tenancy agreement. As a general proposition, it is an essential element of a present demise or grant of a lease (a letting) by contract that the tenant is given exclusive possession, and quite enjoyment,[63] of the premises in question.[64] That is, if another person is lawfully in possession, or has the present right to possession, of the premises there can be no valid demise or grant of exclusive possession to another.

89 In my view, if the tenancy agreement was entered into as alleged by Mr Annesley, there is no real prospect of him establishing that the tenancy agreement ever had any force or effect as a demise or grant of exclusive possession of the Property for the term of 12 months. That is because when Mr Kanakaridis purported to enter into the tenancy agreement he had no right to possession to grant to Mr Annesley. He held, at best, an equitable interest in the fee simple which was subject to Westpac's legal mortgage and to its right to possession pursuant to the judgment of the Court.

90 Further, the order made by Robson J on 11 May 2016 in proceeding S CI 2010 06772 (being the proceeding brought by Westpac against Ms Hou and Mr Kanakaridis) confirms the entitlement of Westpac to possession of the Property and by the injunctions granted against Ms Hou, Mr Kanakaridis and Mr Annesley, preventing them from entering into or remaining on the Property. There can therefore be no basis for any claim to any right to possession of the Property by Mr Annesley whether pursuant to a tenancy agreement or otherwise.

91 In light of this conclusion, it is not necessary nor productive to consider whether the more stringent test under r 23.01 of the Rules is available in respect of the claims in the statement of claim that turn on the existence of a valid and enforceable tenancy agreement. In respect of the other allegations in the claim, that rely on the contract of sale and the building contract, relief should be granted to Westpac under r 23.01 of the Rules because those claims are unsustainable for reasons I give when dealing with the application under r 23.02 of the Rules below.

92 It is necessary to consider the other claims made in the statement of claim and what the position is if I am wrong to conclude that there is no real prospect of success of the claims that turn on the alleged tenancy agreement. This also involves a consideration of whether the statement of claim should be struck out under r 23.02 of the Rules.

93 The other claims in the statement of claim do not disclose a cause of action because:

(a) there can be no basis for a claim by Mr Annesley that his equity in the Property has been interfered with by Westpac taking possession of the Property (paragraphs 14 and 15 of the statement of claim). Westpac is the registered mortgagee holding a judgment against the registered proprietor for possession of the Property. The only contract of sale in evidence is one under which Yellow Tractor Pty Ltd is purchaser. Any rights that Yellow Tractor Pty Ltd may have could not be enforced by Mr Annesley. Even if Mr Annesley has some right under the contract of sale, they are against Mr Kanakaridis or Ms Hou. In any event, any rights that arise under the contract of sale will be subject to Westpac's prior registered mortgage;

(b) there is no basis for the claim that Westpac is liable to compensate Mr Annesley by way of damages in the sum of $1,500,000.00 plus interest.[65] That sum is the purchase price under the contract and, presumably, this figure is calculated to compensate him for the loss of the purchase price. The proposition that it is Westpac that has occasioned the loss of the purchase price (if it has occurred) is not properly pleaded and is self-evidently an unsustainable proposition;

(c) that Westpac should be restrained from advertising, marketing or selling the Property[66] is also unsustainable given that Westpac is the registered mortgagee holding a judgment against the registered proprietor for possession of the Property and entitled to exercise its rights to realise the Property by sale pursuant to the provisions of the TLA;

(d) another untenable proposition is that Westpac should be restrained from doing anything which would deprive the plaintiff of his equity in the Property.[67] Such a proposition is nonsense in light of the registered mortgage held by Westpac and the judgment for possession. It is entitled, as has been said, to take possession of the Property, sell it and recover its debt. If Mr Annesley has a claim in respect of his so-called 'equity' in the Property, it is not against Westpac;

(e) Mr Annesley claims that Westpac should be restrained from engaging in any dealings with respect to the Property without his consent.[68] But Westpac, as registered mortgagee holding a judgment for possession, is not obliged to seek Mr Annesley's consent in order to deal with the Property; and

(f) Mr Annesley claims that Westpac should pay to him an additional sum of $400,000.00 in respect of the alleged building contractor engaged to carry out renovations and repairs.[69] There is no pleaded basis for this claim. In any event, Westpac is a stranger to any dealings between Mr Annesley and any building contractor. Westpac has relied upon its rights as registered mortgagee and as the holder of a judgment for possession and those rights take precedence over any rights that Mr Annesley has to undertake the renovations and repairs.

94 In addition to these criticisms, the pleading suffers from a number of other general defects as follows:

(a) it is 'frivolous or vexatious,' in the sense that, the claims referred to above are groundless, or lacking a legal basis or merit;

(b) it may prejudice, embarrass or delay the trial of the proceeding in the sense that it places Westpac in the position that it does not know what is alleged against it. The matters referred to above are instances of this defect;

(c) it fails to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial. The failure to plead material facts which might sustain a claim against Westpac for interference with Mr Annesley's equity in the Property or the basis for the claim relating to the repairs and renovations are instances;

(d) it does not state all the material facts necessary to establish a reasonable cause of action and does state evidence. So, for example, paragraphs 5, 6, 7 and 8 purport to give an account of the communications between Mr Annesley and Mr Kanakaridis after the discovery of the Notice to Vacate placed at the Property by the Sheriff. These paragraphs do not allege any material fact relevant to the causes of action pleaded; and

(e) it is 'embarrassing' within the meaning of r 23.02 of the Rules because it places Westpac in the position of not knowing what is alleged and pleads conclusions from unstated facts.

95 The objectionable parts of the pleading are so intertwined with the rest of the pleading that separation is effectively impossible. The appropriate course is to strike out the whole of the pleading.

96 For these reasons, I have concluded that the appropriate orders on the application made by Westpac by its summons filed on 12 April 2016 are:

(a) pursuant to s 63 of the CPA, the plaintiff's claims against the first defendant are dismissed; and

(b) the plaintiff shall pay the costs of the first defendant of the proceeding.

1. On the eighth of August 2015, the Plaintiff entered into a residential tenancy agreement for a duration of one year, with the second defendant with respect to the property at 349 Nepean Highway Brighton East 3187 in the state of Victoria (The Property).

2. On the eighth of October 2015, the Plaintiff entered into a contract of sale for the purchase of the property with the second defendant for the sum of: One Million, Five Hundred Thousand Dollars and a deposit of seventy five thousand dollars, being 5% of the purchase price, was paid to the second defendant on the 22nd of October 2015.

3. The Plaintiff continued to reside at the property and he was making arrangements to commence works at the property in order to replace the roof and to complete any repairs and renovations to the property.

4. On the 19th of January the Plaintiff found a 'Notice to Vacate' placed on the front door of the house addressed to the owners being Savvas Kanakaridis and Qin Qin Hou (the second and third defendant) in relation to a dispute with Westpac Banking Corporation. The Notice clearly stated that it did not apply to tenants pursuant to the Residential Tenancies Act 19997 (Vic) (Tenancies Act).

5. The 'Notice to Vacate' had the contact number of an Helen Casa purportedly from the Sheriff's office Victoria.

6. The plaintiff, immediately contacted the second Defendant about this 'Notice to Vacate' and he assured the plaintiff, that he would be communicating with the officer from the sheriff's office to inform her of the tenancy and to inform her that the property had been sold and that the sale of the property was due to be completed in the very near future.

7. The second defendant reassured the plaintiff, that he had been in communication with Helen Casa of the Sheriff's office, that the second plaintiff had advised Helen Casa, that there were tenants residing at the property pursuant to the tenancies act and that the property had also been sold, and that the sale of the property was due to be completed shortly.

8. The second defendant also advised the plaintiff that the plaintiff should not worry about the notice to vacate the property because it did not apply to the plaintiff or the other tenants.

9. On the 22nd of January the plaintiff paid the balance of the money to the second defendant in order to complete the sale/purchase of the property from the second and/or third defendants, and the plaintiff instructed his legal advisers to get in touch with the first, second and third defendants or their lawyers, in order to effect the transfer of title to the plaintiff as nominated in the contract of sale, from the second and/or third defendant, and to remove the mortgage from the title to the property that the first defendant had registered.

10. On the 10th of February 2016, the plaintiff arrived at the property in the afternoon, after having left in the morning to go to work, and the plaintiff found that someone had trespassed onto the property, they had broken and entered into the property and they had closed off with temporary fencing, and some people purporting to be security personnel working under the instructions of the first defendant, and refusing and obstructing the plaintiff from entering onto the property.

11. These agents advised the plaintiff that the 'bank owns the property and that no one is allowed to enter'.

12. The plaintiff advised the so called security personnel that he has a tenancy at the property and that the plaintiff has a right to enter and to remain on the property, and that no one is allowed to deny the plaintiff access to the property because the notice to vacate the property did not apply to the plaintiff as a tenant, and that anyone who had trespassed onto the property or broken and entered into the property, did so illegally.

13. The plaintiff also advised the so called security personnel, that he had placed notices at the entrance of the property, and on the front door of the house of the property and at several other positions around the property clearly advising any one of the tenancies at the property also advising them that anyone entering the property without the express permission of either the plaintiff or the second defendant was trespassing unlawfully and that they would be dealt with according to the law. Whoever trespassed onto the property, or broke and entered into the property or took or removed any of the plaintiff's or anyone else's belongings from the property, did so unlawfully, and with criminal and malicious intent and they must be brought to justice.

14. The plaintiff's tenancy at the property and his equity in the property have been unlawfully disturbed and ignored by persons acting negligently and outside of the law and therefore the plaintiff seeks to restrain those persons from entering and or interfering with the plaintiff and the property, and the plaintiff also seeks compensation and damages from those persons who have interfered with the plaintiff's personal possessions at the property, his tenancy at the property, and with the plaintiff's equity and right of clam as purchaser/beneficiary of the property.

15. The plaintiff seeks compensation from the first defendant and its agents for breaking and entering into my property and for depriving the plaintiff of access and equity to the property.

16. The plaintiff also seeks damages against the first defendant of one million and five hundred thousand dollars and interest of 10% calculated daily from the 10th of February 2016.

17. The plaintiff also seek to restrain the first, defendant and any of its agents including the Sheriff's office of Victoria, and the Victoria Police, from entering, interfering with or obstructing with the plaintiff's access and possession and occupancy of the property.

18. Also the plaintiff seeks to restrain the first defendant or any of its agents, from advertising, or marketing or selling and transferring the property.

19. The plaintiff seeks to restrain the first, second, third defendants from doing or having any dealing between themselves and or each other whereby the plaintiff may be deprived of his equity in the property or where claim with respect to the property may be diminished or affected in any way whatsoever.

20. The plaintiff seeks to restrain the first, second and third defendants from doing any dealings with respect to the property whatsoever, without the plaintiff's expressed consent in writing.

21. Subsequently to paying the deposit for the purchase of the property, the plaintiff also entered into an agreement with the second defendant whereby the plaintiff was authorised by the second defendant to commence works to the property including doing a site safety inspection and any rectification work that may be required.

22. The Plaintiff engaged a registered builder to conduct and to complete the works to the property for a contracted amount of Four Hundred Thousand dollars.

23. The Plaintiff also seeks to recover from the first defendant and additional amount of four hundred thousand dollars being for the Plaintiffs obligations with respect to the building contractor.

24. The plaintiff also seeks to recover damages to property and to his person, from the first defendant that have been incurred by the plaintiff as a result of the interference by a first defendant in restricting the plaintiff's access to the property. Such damages included damage to property and goods at the property and also damages suffered by the plaintiff as a result of having to find alternative accommodation and to purchase additional personal and household items as a result of the plaintiff been locked out of the property.

1. That the First Defendant and or any of its agents pay compensation of to the plaintiff for breaking and entering into the property and for depriving the plaintiff of access and to the property and for breaching his privacy and right to peaceful enjoyment of the property since the 10th of February 2016 calculated at a cost of $300 (Three Hundred Dollars) per day.

2. That the first defendant pay to the plaintiff the sum of $1,500,000 (one million and five hundred thousand dollars) and interest of 10% (ten per cent) calculated daily from the 10th of February 2016.

3. That the First Defendant and any of its agents including the Sheriff's office of Victoria, and the Victoria Police, be restrained from entering, interfering with or obstructing the plaintiff's access and possession and occupancy of the property.

4. That the first defendant or any of its agents be restrained, from advertising, or marketing or selling and transferring the property.

5. That the first, second, third defendants be restrained form doing or having any dealing between themselves and or each other whereby the plaintiff may be deprived of his equity in the property or where the plaintiff's claim with respect to the property may be diminished or affected in any way whatsoever.

6. That the first, second and third defendants be restrained from doing any dealings with respect to the property whatsoever, without the plaintiff's expressed consent in writing.

7. That the First Defendant pay the sum of a of $400,000 (Four Hundred Thousand dollars) to the Plaintiff's nominated registered builder in order for the builder to complete the renovation and rectification works to the property according to the contract and the contracted amount.

[1] The full text of the Statement of Claim is set out verbatim in the Schedule to these reasons.

[2] The history of proceedings between Westpac, Mr Karakanidis and Ms Hou are taken from the Lamshed Affidavit, the Sumar Affidavits and from the exhibits to those affidavits, including judgments of this Court and of the Federal Court of Australia.

[4] Order of Lansdowne AsJ, and reasons for decision (Westpac Banking Corporation v Qin Qin Hou & Savvas Kanakaridis [2014] VSC 330), Lamshed Affidavit exhibit RSL-1.

[5] Order of Warren CJ, and reasons for decision (Hou v Westpac [2014] VSC 606), Lamshed Affidavit exhibit RSL-1.

[6] Order of Whelan and Beach JJA and reasons for decision (Hou & Kanakaridis v Westpac Banking Corporation [2015] VSCA 57), Lamshed Affidavit exhibit RSL-1.

[7] AGL Sales Pty Ltd gas bills for February, May, August, September and October 2015.

[16] Lamshed Affidavit at [17] and exhibit RSL-6.

[17] Lamshed Affidavit at [19] and exhibit RSL-8.

[18] Lamshed Affidavit at [21] and exhibit RSL-9.

[19] Sumars Affidavit sworn 28 April 2016 at [3] and exhibit SS-1.

[20] Sumars Affidavit sworn 27 May 2016 at [12] and exhibit SS-4.

[21] Sumars Affidavit sworn 27 May 2016 at [6] and exhibit SS-2.

[23] Kanakaridis v Westpac Banking Corporation [2015] FCA 1146.

[24] In the writ, Mr Annesley had given his email address as yellowtractor.co@gmail.com. In the details of the address of the second defendant, Mr Kanakaridis, an email address was given.

[25] Sheen v Burke [1993] VicRp 42; [1993] 1 VR 584; Williams, Civil Procedure Victoria at [5.07.5].

[27] In this application there is evidence on information and belief and I consider that in the circumstances that it ought to be permitted.

[28] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, at [29] per Warren CJ and Nettle JA (Neave JA agreeing) ('Lysaght'). This decision has been followed and approved in countless cases, including in the Court of Appeal in Feldman v Frontlink Pty Ltd [2014] VSCA 27 at [24]; De Saram v Brown [2015] VSCA 142 at [44]; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4.

[29] Lysaght at [25] per Warren CJ and Nettle JA (Neave JA agreeing).

[30] [2015] VSC 26 at [27]- [28].

[31] Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259 at [264-5] and other Queensland authorities referred to.

[32] Lysaght at [27] per Warren CJ and Nettle JA.

[33] Lysaght at [35] per Warren CJ and Nettle JA (Neave JA agreeing).

[34] Lysaght, at [42] per Neave JA.

[37] Barber v State of Victoria [2012] VSC 554 at [15].

[38] Donga Meats (Vic) Pty Ltd v ANZ McCaughan Ltd (VSC, Harper J, No 6264/91, 30 June 1992, unreported, BC9200807); Williams, Civil Procedure Victoria at [23.01.5].

[40] Onus v Alcoa of Aust Ltd [1981] HCA 50; (1981) 149 CLR 27 at [57]; Wickstead v Browne (1992) 30 NSWLR 1 at [11]; Williams, Civil Procedure Victoria at [23.01.15].

[41] Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.

[42] Christie v Christie (1873) LR 8 Ch App 499; Coyle v Cuming (1879) 40 LT 455; Cashin v Craddock (1876) 3 Ch D 376; Williams, Civil Procedure Victoria at [23.02.30].

[43] Girando v Padbury [1919] WALawRp 17; (1919) 22 WALR 7; Meckiff v Simpson [1968] VicRp 7; [1968] VR 62 at [70]; Gunns Ltd v Marr [2005] VSC 251 at [15].

[44] Williams, Civil Procedure Victoria, at [23.02.35].

[45] Hoffnung v Fletcher (1887) 4 WN (NSW) 68.

[46] Byrd v Nunn (1877) 7 Ch D 284.

[47] British & Colonial Land Assn Ltd v Foster (1888) 4 TLR 574.

[48] Hoh v Frosthollow [2014] VSC 77 at [11]- [20].

[49] r 13.02(1)(a) of the Rules. A reasonable cause of action or defence is one with a real chance of success, assuming the correctness of the allegations of fact in the challenged pleading.

[50] Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 [13], citing Bruce v Oldhams Press Ltd [1936] 1 KB 697, at [712-713].

[51] Trade Practices Commission v David Jones (Australia) Pty Ltd & Ors [1985] FCA 228; (1985) 7 FCR 109, at [114].

[52] Rule 23.04 of the Rules; Day v William Hill (Park Lane) Ltd [1949] 1 KB 632.

[53] Davy v Garrett (1878) 7 Ch D 473.

[54] EL v EA (Residential Tenancies) [2006] VCAT 2049; Awwad v Patel (Residential Tenancies) [2015] VCAT 1016.

[55] R 23.01(1)(b) of the Rules; Knight v Bell [2000] VSCA 48 per Ormiston JA.

[56] Dey v Victorian Railway Commissioners [1949] 78 CLR 62 ; Williams, Civil Procedure Victoria at [23.01.45].

[58] Lamshed affidavit at [21] and exhibit RSL-9.

[59] [1967] 2 QB 786 at 802; ASIC v Managed Investments Ltd & Ors (No 9) [2016] QSC 109 at [738]- [739].

[60] [2004] HCA 55; (2004) 218 CLR 471, 486 at [46]; ASIC v Managed Investments Ltd & Ors (No 9) [2016] QSC 109, at [739].

[61] See Fisher & Lightwood's Law of Mortgage, 3rd Australian Ed, ELG Tyler, PW Young & CE Croft at [19.4] and the cases there cited.

[62] Section 3 of the RTA defines 'tenancy agreement' to mean 'an agreement whether or not in writing and whether express or implied under which a person lets premises as a residence

[64] The range of authorities dealing with this basic proposition is immense. As an example, see the decision in Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 and the judgment of Windeyer J in Chelsea Investments Pty Ltd v Federal Commissioner of Taxation [1966] HCA 15; (1966) 115 CLR 1 at [6-7].

[65] Paragraph 15 of the statement of claim.

[66] Paragraph 18 of the statement of claim.

[67] Paragraph 19 of the statement of claim

[68] Paragraph 20 of the statement of claim.

[69] paragraph 23 of the statement of claim.