Plaintiff v Defendant

1 Ms Leanne Williamson ('Ms Williamson'), a self-represented litigant, seeks orders from this Court granting a stay of a warrant of possession of land owned and occupied by her (the 'Warrant'). The application solely relates to execution of the Warrant over a property situated at 12 Mahogany Avenue, Frankston North. The Warrant was issued by the Australia and New Zealand Banking Group Ltd ('ANZ') in execution of a default judgment obtained against Ms Williamson in March 2016 (the 'Default Judgment'). Ms Williamson also wishes to have the Default Judgment set aside, an application that will be heard separately.

2 The relationship between Ms Williamson and ANZ is that of mortgagor and mortgagee. By three separate written agreements, each accepted on 12 July 2013, ANZ loaned funds to Ms Williamson (collectively, 'the Loan Agreements'). Those loans were each secured by mortgages over properties owned by Ms Williamson, or by a company controlled by her:

(a) $222,835.38 secured by a registered mortgage over property situated at 26 Hoya Crescent, Frankston North, Victoria (the 'First Loan' secured by the 'Hoya Crescent Property');

(b) $219,280.00 secured by a registered mortgage over property situated at 12 Mahogany Avenue, Frankston North, Victoria (the 'Second Loan' secured by the 'Mahogany Avenue Property'); and

(c) $157,179.75 secured by a corporate guarantee and indemnity given by Happy Homes Building Group Pty Ltd (ACN 128 987 280) and a registered mortgage given by that company over property situated at 22 Dudley Street, South Dudley, Victoria (the 'Third Loan' secured by the 'Dudley Street Property').

3 At some point prior to 23 May 2014 Ms Williamson defaulted under the Loan Agreements. Notices of default dated 23 May 2014, with respect to each of the three loans, were served by ANZ upon Ms Williamson and Happy Homes Building Group Pty Ltd. An additional notice of default with respect to the Third Loan was served directly upon Ms Williamson on 20 August 2014. The notices of default required Ms Williamson to remedy the default by no later than 30 June 2014 (for the First and Second Loans) and 26 September 2014 (for the Third Loan). The notices also warned of the accrual of interest, late payment and enforcement fees. Ms Williamson did not make payments in accordance with those demands.

4 Ms Williamson made three separate applications for hardship relief to ANZ, on 5 February 2014, 4 June 2014 and 5 September 2014. On each occasion ANZ requested that Ms Williamson complete a statement of position so that it could consider the merits of her application. The applications made in February and June 2014 were denied on the basis that the requested information was not provided to ANZ and that it did not otherwise have sufficient information to grant the hardship applications. The request made in September 2014 was denied by way of letter dated 19 January 2015, which letter stated pertinently:

We've looked closely at the information you provided and considered your situation carefully. We've made this difficult decision because we've been unable to identify an option that would put you in a financial position where you could reasonably expect to meet your loan repayment obligations in the near future.

5 On 2 March 2015 ANZ commenced proceedings in this Court by writ seeking orders for possession of the land securing the First Loan and the Second Loan (the Mahogany Avenue Property, the subject of this application) as well as payment of the outstanding debt under all three Loan Agreements. The writ was served upon Ms Williamson by post on 20 January 2016, although she denies having received it.

6 On 10 March 2016 this Court granted judgment in default of appearance in favour of ANZ. The judgment of the Court was as follows:

1. The Plaintiff recover from the Defendant possession of the land described in the statement of claim on the writ as that piece of land being more particularly described in Certificate of Title Volume 10442 Folio 170 being the land known as 26 Hoya Crescent, Frankston North in the State of Victoria.
2. The Plaintiff recover from the Defendant possession of the land described in the statement of claim on the writ as that piece of land being more particularly described in Certificate of Title Volume 08482 Folio 131 being the land known as 12 Mahogany Avenue, Frankston North in the State of Victoria.
3. The Defendant pay to the Plaintiff the sum of $638,097.79 for the outstanding claim, $33,568.20 for interest and $3,420.00 for costs.

7 According to ANZ, Ms Williamson has been aware of the Default Judgment since at least 26 August 2016. On that date a representative of ANZ sent an email to Ms Williamson which explained steps which had been taken in respect of the Loan Agreements, including having obtained judgments in respect of both the Hoya Crescent Property and the Mahogany Avenue Property. The existence of the Default Judgment was also acknowledged in an email from Ms Williamson's former lawyer, Mr Tristan Weston ('Mr Weston'), to Gadens, ANZ's lawyers, dated 20 December 2016. Copies of that email correspondence, as well as a copy of the Default Judgment itself, were enclosed in letters sent from Gadens to Mr Weston dated 20 January 2017, and to Ms Williamson herself dated 23 February 2017.

8 Between December 2016 and February 2018 efforts were made by ANZ and Ms Williamson to reach a compromise position aimed at reducing arrears on her loan accounts whilst allowing her to retain possession of the Mahogany Avenue Property. Negotiations first occurred between Mr Weston and ANZ, then later between Mr Stewart Levitt ('Mr Levitt', another lawyer engaged by Ms Williamson from March 2017) and ANZ, and then between Ms Williamson herself and ANZ. Gadens also corresponded with Mr Weston, Mr Levitt, and Ms Williamson from time to time. Solutions included a proposal for the sub-division of the Mahogany Avenue Property and sale of the Hoya Crescent Property in order to raise funds.

9 Sometime in or around March 2017 a meeting appears to have occurred between Ms Williamson, Mr Levitt and ANZ personnel. Ms Williamson places significance upon that meeting, at which she says that ANZ agreed to:

(a) remove certain additional charges which had been made to her loan accounts; and

(b) cease its retainer of Gadens Lawyers.

I will say more of this meeting and alleged agreement below.

10 On 15 June 2017 Ms Williamson sold the Hoya Crescent Property, which secured the First Loan. Settlement of that sale occurred on 13 September 2017. At the time of settlement ANZ received sale proceeds which were credited to the First Loan in the amount of $308,527.37. Ms Williamson received surplus proceeds of $137,466.26.

11 By February 2018 agreement could not be reached with respect to the Mahogany Avenue Property in a timeframe that was suitable to ANZ. By emails to Ms Williamson dated 21 and 26 February 2018, ANZ indicated that it would take steps to recover that property. ANZ nonetheless continued to reserve its rights, and in an email dated 12 September 2018 from Ms Sarah Rogers of Gadens to Ms Williamson it was said:

In regards to the property at Frankston North, we understand that you wish to retain this property as it is your place of residence. You advise that you can maintain the loan repayments on this account. A review of your account shows that you have been making weekly payments of $80, which is not enough to service the account. We advise that your regular monthly payments are $1,150.58 due and payable on the 9th of each month. Please ensure that moving forward you pay $1,150.58 by, or on the 9th of each month. Further, we advise that as at 10 September 2018, the outstanding arrears and costs on this account are $66,889.52. Please provide our office with a realistic and reasonable proposal to address the outstanding arrears on this account by close of business Wednesday, 19 September 2018. Upon receipt of your reply we will seek further instructions from ANZ.

In the interim, ANZ reserves all of its rights and entitlements.

12 Between March 2016 and December 2018 Ms Williamson also raised several complaints with the Financial Ombudsman Service ('FOS') and the Australian Financial Complaints Authority ('AFCA') with respect to ANZ's treatment of her loans. Those complaints were directed principally toward the Third Loan over the Dudley Street Property. Insofar as they were relevant to the First and Second Loans, the complaints were adjudicated upon by FOS and AFCA in favour of ANZ, partially upon the basis that ANZ had already obtained judgment against Ms Williamson in this Court.

13 On 4 February 2019, the Warrant in respect of the Mahogany Avenue Property was issued. On 11 February 2019 Gadens wrote to Ms Williamson informing her of the Warrant and requesting that she provide to ANZ a 'realistic proposal to clear the full balance of the arrears on the Loan Account'. The Warrant was subsequently sent to the Sheriff's Office for execution, which was due to take place on 7 August 2019.

14 This matter first came before the Court by way of an urgent application in the Practice Court listed on 5 August 2019. At that hearing it became apparent that Ms Williamson had not served ANZ with the application (notwithstanding their appearance before the Court) and that ANZ had not been given an opportunity to file responsive material. The matter was adjourned to return before the judge sitting in the Practice Court one week later, on 12 August 2019, in order to allow the parties time to file further material. By orders dated 5 August 2019 a temporary stay of execution was granted, until further order of this Court. That temporary stay remains in place, pending this decision.

15 The matter returned before the Practice Court on 12 August 2019. On that date submissions were made on behalf of ANZ by Ms Sarah Rogers, an Associate of Gadens Lawyers, and by Ms Williamson as a self-represented litigant. Submissions were limited to the application for a stay. The application to set aside the Default Judgment would be heard at a later date. Although it is the usual course for the applicant give submissions first, in the exercise of my discretion under Rule 49.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 I instead directed Ms Rogers to make the first submissions. I considered that, in the circumstances, there were very compelling reasons to do so in order to ensure that Ms Williamson was fully aware of the position of ANZ, prior to considering the content of her submissions.

16 In the course of her submissions at the return on 12 August 2019 Ms Williamson raised concerns regarding the amount of time available to her to make submissions. At that time the matter was still listed before the Practice Court, and as such proceeded on a limited timeframe. At the objection of ANZ, in the interests of allowing Ms Williamson an opportunity to fully make her case I adjourned the proceeding to return before me on 29 August 2019.

17 At the hearing on 29 August 2019 Ms Williamson remained self-represented. Ms Rogers again appeared on behalf of ANZ. Despite being given an opportunity to file additional material, Ms Williamson had only filed a single affidavit dated 22 August 2019. That affidavit included a purported notice of discovery which Ms Williamson says that she served upon ANZ. At the hearing Ms Williamson requested leave to rely upon two additional affidavits which, she submitted, contained material that was relevant to her application and had become known to her within the previous 24 hours. I allowed Ms Williamson to rely upon that material, and stood the matter down for an hour so that all parties could fully consider their contents.

18 After judgment was reserved, Ms Williamson purported to file an 'Affidavit of New Evidence' with the Court. That affidavit did not contain any 'new evidence' but rather attached an affidavit of Sonia Apikian which was filed by ANZ in support of its application for default judgment. In any event, in the interests of fairness to Ms Williamson, I accepted that affidavit into evidence and afforded ANZ with an opportunity to respond by way of written submissions, which it filed on 4 October 2019.

19 Ms Williamson relied upon the following affidavit evidence in support of her application for a stay:

(a) Affidavit of Leanne Williamson sworn 31 July 2019;

(b) Affidavit of Leanne Williamson sworn 11 August 2019;

(c) Affidavit of Leanne Williamson sworn 22 August 2019;

(d) Affidavit of Leanne Williamson sworn 29 August 2019;

(e) Affidavit of Leanne Williamson sworn 29 August 2019; and

(f) Affidavit of Leanne Williamson sworn 20 September 2019.

20 ANZ relied upon the following affidavit material:

(a) Affidavit of Sarah Rogers sworn 8 August 2019.

21 Ms Williamson handed up a document which she described as an 'opening statement' to the Court at the hearing of her application on 29 August 2019, which assisted her to structure her oral submissions. Otherwise, no written submissions were filed by either party save for those referred to at paragraph 18 above.

22 The legal principles relating to the stay of execution of a judgment or order of this Court are well established. Rule 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 states simply that '[t]he Court may stay execution of a judgment'. The power to stay execution pursuant to Rule 66.16 is a matter for the Court's discretion. That discretion is broad and the power to grant a stay should be considered and exercised on a case-by-case basis.[1]

23 I was referred by Ms Rogers to the decision of John Dixon J in Kleinsman v Capri[2] which provides a helpful analysis of the relevant principles guiding the exercise of the Court's discretion. In my respectful view, his Honour properly articulated the relevant principles.

24 His Honour observed that a stay is granted only on grounds which are relevant to the enforcement proceeding. That is, it is not a mechanism whereby a party may raise a matter of defence which should have been raised at the underlying proceeding.[3] Nonetheless, in order to determine whether it is appropriate to stay execution of a judgment, it is necessary to consider whether there is a 'proper purpose' do to so. In this case, that question in turn requires consideration of whether there is merit in the application to set aside the Default Judgment. That analysis involves four considerations which inform the exercise of the Court's discretion:

(a) firstly, whether the party seeking to set aside has an arguable defence on the merits;

(b) secondly, whether the party seeking to set aside has provided a satisfactory explanation for the failure to contest the proceedings;

(c) thirdly, whether the party seeking to set aside has delayed in making their application; and

(d) fourthly, whether setting aside the judgment would cause prejudice to the plaintiff.[4]

25 I have considered the affidavit material filed by both parties as well as the submissions made on each of the three returns of Ms Williamson's application.

26 At the outset it is necessary to deal with the question of relevance. Ms Williamson's affidavit material and oral submissions contained several allegations which are not relevant to her application for a stay, or to the underlying application to set aside the Default Judgment. It may be that those allegations are relevant to other proceedings, however they do not fall within the body of matters which must be considered by this Court upon Ms Williamson's present application. As was explained to Ms Williamson, as a self-represented litigant, the Court's role in this case is to determine the application before it which had much more limited compass than the broad issues that Ms Williamson intended to pursue.

27 In particular, Ms Williamson placed great store on the following matters:

(a) Firstly, an email communication dated 19 October 2018 which she received from the CEO of ANZ. The email was in response to a lengthy email from Ms Williamson outlining her grievances with ANZ and purported to provide Ms Williamson with some assurance that an internal investigation would be conducted into her situation. The email stated, 'I understand your submission and have asked my team (copied here) to investigate and make recommendations to me'.

It was apparent that Ms Williamson took great comfort in this assurance and elevated it to a status which did not justify the legal force to which she attributed the communication. It was to this end that Ms Williamson purported to serve a notice of discovery upon ANZ - to obtain information as to precisely what investigation had occurred. The 'notice of discovery' dated 22 August 2019 in fact formed part of Ms Williamson's affidavit bearing the same date.

The focus of the 'notice of discovery' relates to two issues, firstly the CEO's 'personal undertaking to investigate matters' and to return to Ms Williamson with the outcome of such investigation. In addition, by way of observation it seems, the 'notice of discovery' refers to public statements made by the CEO to the effect that he took personal responsibility for misconduct by ANZ. What follows is not a request for discovery of documents at all (at least in relation to this first issue), but a series of questions concerning the ANZ investigation. There was no evidence that there was any attempt to file and serve the 'notice of discovery' on a standalone basis.

In my opinion, this communication and expression of intent by ANZ via its CEO did not ascend to anything above an indication from a business (in this case, ANZ) that it would consider her situation seriously and make internal inquiries into the matter. In my opinion it was a customer service communication - an indication that Ms Williamson's complaints were noted and would be investigated. Such a communication does not, in my opinion, transcend the issues in dispute that fall for determination by the Court in this present application. I say this because, at least in the communication, no assurance was given that ANZ would cease to rely on its legal rights or forfeit the benefit of the judgment it had obtained.

(b) Secondly, it was submitted to me with some force that the CEO of ANZ was the subject of criticism as part of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the 'Banking Royal Commission'). Indeed, in oral submissions, Ms Williamson asserted that this was now a criminal matter requiring investigation. Although Ms Williamson's argument was undeveloped, the clear purport of her submissions were to the effect that any criticism of the CEO of ANZ ought urge this Court on this application to draw adverse inferences in her favour. To this end, Ms Williamson sought to bring the Court's attention to what appeared to be a lengthy submission prepared by her and submitted to the Banking Royal Commission advancing her grievances in relation to her complaints against ANZ.

Any findings that may or may not be made against ANZ or any of its officers or management are irrelevant to the Court's consideration of the application before it. These issues indeed may fall for serious consideration at another time in another place, but do not assist the Court in its decision whether or not to grant a stay of execution of the Default Judgment obtained by ANZ. Accordingly, the Court places no weight on these arguments in making its decision.

(c) Thirdly, Ms Williamson made several submissions regarding ANZ's dealings with other properties owned by her, which are not subject to the Default Judgment or to the Warrant. Those properties are subject to separate proceedings in New South Wales and in the County Court and have no bearing upon the matters to be determined in this proceeding. Accordingly the Court places no weight on these arguments in making its decision.

(d) Fourthly, Ms Williamson made several submissions in relation to the role of Gadens in this proceeding. In particular Ms Williamson says that an agreement was reached between herself and ANZ that they would cease to retain Gadens in relation to all litigation between them. The existence of such an agreement is not substantiated on the evidence beyond mere assertion. In any event, ANZ clearly decided to continue their retainer of Gadens. The issue is not relevant to the substantive issues for determination in this proceeding. Even if, taken at its highest, ANZ did communicate to Ms Williamson at some point in time that it was their intention to cease to engage Gadens, this indication would not serve as a foundation for Ms Williamson's present objection to their appearance on behalf of ANZ.

Ms Williamson approached this issue in a manner which suggested that Gadens was somehow without right or authority to appear on this application representing ANZ. I disagree. At all times, given the evidence, ANZ was at liberty to engage the legal counsel of its choice irrespective of whether other sentiments were expressed previously, a matter in respect of which I am not in a position to make a definitive finding.

(e) Finally, at the hearing on 29 August 2019 Ms Williamson handed up an affidavit which had no relevance to the matters at issue in this application. The substance of that affidavit, which ran to some 18 pages, was difficult to follow. The affidavit spoke to Ms Williamson's 'common law right as a Victorian & an Australian', the United Nations, the International Covenant on Civil and Political Rights and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Ms Williamson did not speak to that affidavit in any detail in the course of her oral submissions. In my opinion, none of the issues or matters covered in the affidavit are relevant to Ms Williamson's application, and the Court ought not have regard to them.

I am of this opinion for the following reasons:

(i) I am satisfied that, as outlined above and based on the facts and matters set out above, Ms Williamson either personally or through solicitors acting for her at the time had knowledge and an appreciation of the debt owed to ANZ in respect of the Second Loan, the fact that it was secured against the Mahogany Avenue Property, that ANZ had instituted proceedings against her and had obtained judgment.

(ii) Nothing on the face of the evidence before me demonstrates any injustice to Ms Williamson.

(iii) ANZ properly pursued its rights against Ms Williamson in that since at least August 2016 Ms Williamson has taken no steps to avoid the situation in which she now finds herself, despite being legally represented for some periods.

(iv) Even if the legislation to which Ms Williamson refers was capable of conferring some rights upon her in certain circumstances, the material is so vague, ill directed and confused that the Court is in no position to consider it.

28 Insofar as they were relevant to this application, Ms Williamson's submissions were as follows:

(a) a defence was not filed because the parties were in the process of negotiations at the time, and she was not served with a copy of the writ;

(b) the delay in her request to set aside the judgment was due to her own poor health, 'serious family matters', limited knowledge and resources, difficulty in obtaining professional advice, and the continuation of formal complaint processes; and

(c) that there existed a good defence to ANZ's claim.

29 Ms Williamson raised four matters, which she says amount to a good defence to ANZ's claim:

(a) firstly, that there was a 'verbal contract' between herself and ANZ to deduct sums from her loan accounts;

(b) secondly, that ANZ was obliged to provide her with hardship relief;

(c) thirdly, that ANZ engaged in unconscionable conduct by failing to provide her with information regarding her loan accounts; and

(d) fourthly, that the quantum of outstanding debt in the Default Judgment is no longer accurate.

30 ANZ submitted that there was no basis upon which this Court ought stay execution of the Warrant, or set aside the Default Judgment. ANZ submitted that the proceedings were served upon Ms Williamson by post on 20 January 2016, as was deposed to in the affidavit of service of Anthony Richard Conti dated 10 March 2016. Service of the writ was by way of post, purportedly pursuant to the Memorandum of Common Provisions ('MCP') incorporated into Ms Williamson's mortgages and Rule 6.14 of the Supreme Court (General Civil Procedure) Rules 2015. The MCP authorised service of documents (including court proceedings) by way of personal service, post and facsimile.

31 ANZ also submitted that Ms Williamson has not presented a sufficient explanation for the delay in seeking to set aside the Default Judgment, or to stay execution of the Warrant. As observed, Ms Williamson, through her then lawyer, has been aware of the existence of the Default Judgment since at least 26 August 2016 and has been in possession of copy of it since at least 23 February 2017. She has been aware of the warrant since 11 February 2019.

32 I do not consider that any of the matters raised by Ms Williamson amounts to an arguable defence on the merits to ANZ's claim which would justify setting aside the Default Judgment and therefore give rise to a proper purpose to stay execution. I say that for the following reasons:

(a) Ms Williamson referred several times to the meeting discussed at paragraph 9 above, where she says that a 'verbal contract' was entered into, by which ANZ agreed:

(i) to deduct a sum from the loan account; and

(ii) to cease their retainer of Gadens Lawyers.

As observed, although the communications between Ms Williamson, Mr Levitt and ANZ indicate that a meeting did take place, Ms Williamson was unable to specify a date upon which that meeting occurred, nor was she able to adduce evidence of any agreement beyond assertions in her affidavit material, and her own references in submissions. Although Ms Williamson sought access to a record of the meeting through her 'notice of discovery' there was no basis upon which such an application, even if it were regularly served, ought be made at the hearing of an application for a stay of execution of a warrant.

It is to be observed that the terms of the 'verbal contract' as alleged by Ms Williamson are inconsistent with the stated position of ANZ as contained in correspondence and emails to Ms Williamson and her solicitor. There was no evidence that, despite negotiations between Ms Williamson and ANZ subsequent to the entry of the Default Judgment by ANZ, that ANZ formally agreed not to take any action to execute its Default Judgment. The alleged 'verbal contract' was not confirmed in writing by ANZ as would be expected in circumstances where a substantive change to the terms and conditions of facilities with a customer were agreed.

Notwithstanding some communications in the evidence, in which Ms Williamson referred to the meeting and the 'agreement' following from it, there was no evidence before the Court to substantiate the conclusion that the discussions at the meeting affected the underlying obligations and liabilities of the parties pursuant to the Loan Agreements. It may be observed, at this point, that it is commonplace in the ebb and flow of commercial negotiations that the intention of parties to resolve commercial disputes fall on fallow ground and that a party may resort to reliance upon its strict legal rights.

It was also submitted by Ms Williamson, who had engaged a financial advisor, that her financial advisor had been informed by Gadens that no legal proceedings would be instigated. There is no evidence before the Court to substantiate those submissions and all communications from ANZ are consistent with an intention to reserve its rights to enforce the Default Judgment.

In these circumstances, the Court can place no weight on the effect of the alleged 'verbal contract' insofar as the rights of ANZ to enforce the Default Judgment against Ms Williamson are concerned.

(b) There was evidence before me as to the outstanding obligations of Ms Williamson to ANZ and her capacity to repay. To this end it is manifestly clear that there were numerous communications between Ms Williamson and her lawyers (when they were engaged) and ANZ (mostly represented by Gadens). The tenor of those negotiations reveal that the parties were exploring ways in which a resolution between them, which would permit Ms Williamson to maintain possession of her family home, may be reached. As is obvious from the communications outlined at paragraphs 8 to 13 above, ANZ was not content for the situation prevailing at that time (that is the continued servicing of the Second Loan at $80 per week) to continue. ANZ expressly reserved its rights against Ms Williamson.

There was also no evidence before me which suggested that ANZ had any obligation to which they were subject which compelled them to grant hardship relief in any circumstances. It may be that businesses, including banks, may, from time to time, determine on the merits of the case and their own judgement of the financial position of a debtor that hardship relief ought be given. It is not for the Court to determine the parameters and circumstances in which a publicly listed company may extend such accommodation to a defaulting debtor. Clearly, community views may diverge in relation to the criteria applied by major banks and financial institutions to the extension of this sort of community support. However, in the absence of any obligation to provide hardship relief, that is a matter for business and not a matter for this Court to determine.

(c) Ms Williamson submitted that ANZ had refused to provide copies of the Loan Agreements and loan account statements which substantiated the amounts alleged to have been outstanding, and that such refusal amounted to 'unconscionable dealing'. In my opinion, the evidence demonstrates that Ms Williamson had been provided with all necessary documentation substantiating the issue of proceedings by ANZ against her, the issue of default judgment and the outstanding debt referable to the Mahogany Avenue Property.

There is ample evidence to demonstrate that in early 2017 Ms Williamson could have been under no doubt as to her overall financial situation with ANZ and the progress of negotiations aimed at achieving an accommodation to bring about the result that she wished to achieve, that is the maintenance of the Mahogany Avenue property.[5] Further, at least by 23 February 2017 Ms Williamson could have been under no doubt that interest and costs would continue to accrue on the loan accounts which, at that stage, remained in arrears and would not be waived.[6]

Further, it is to be noted that copies of Ms Williamson's loan account statements as well as the Loan Agreements were exhibited to Ms Rogers' affidavit and were brought to Ms Williamson's attention at the 12 August 2019 hearing. Nonetheless, Ms Williamson persisted with her allegation of 'unconscionable dealing'.

There was no legal basis upon which the Court was urged to conclude that ANZ engaged in unconscionable conduct. Further, given the correspondence between the parties and the matters to which I have referred it is extremely unlikely that any such ground of complaint would be successful. For these reasons I find no substance or merit in any allegation of unconscionable conduct on the part of ANZ.

(d) Ms Williamson points out, correctly, that the sum of $638,097.79 contained in paragraph 3 of the Default Judgment accounts for outstanding funds under all three Loan Agreements. That sum has since been reduced by virtue of the sale of the Hoya Crescent and Dudley Street Properties. Although Ms Williamson is correct to observe that the sum contained in the Default Judgment is no longer accurate, I do not consider that to be a good defence to ANZ's claim. At the date of the Default Judgment the outstanding debt named therein was correct. Since that date the outstanding debt has been reduced in compliance with paragraph 3. The remaining arrears under paragraph 3 is presently only that associated with the Mahogany Avenue Property, which is the only aspect of the Default Judgment that ANZ now seeks to enforce. This is confirmed in written submissions filed by ANZ on 4 October 2019, which state in no uncertain terms that '[t]he Plaintiff is entitled to the Second Land and the debt owing pursuant to the Second Loan by way of its default judgment'.

33 In summary, in my opinion there is no proper purpose upon which to maintain the stay of execution of the Default Judgment obtained by ANZ in March 2016. I say that for the following reasons:

(a) Despite making a number of broad allegations and arguments as outlined above, Ms Williamson has not identified any arguable defence on the merits to ANZ's claim which would justify setting aside the Default Judgment. As discussed, the majority of Ms Williamson's submissions had no relevance at all to ANZ's claim, and those which may be relevant were not substantiated in the evidence filed by Ms Williamson.

(b) Ms Williamson has not provided any satisfactory reason for her failure to contest the hearing. The affidavit of Mr Anthony Conti deposed that a copy of the writ was served by post to Ms Williamson's Mahogany Avenue address, relying on the provisions of the MCP as referred to in paragraph 30 above.

(c) Likewise, Ms Williamson has not provided any satisfactory explanation for her delay in making the present application. Ms Williamson has had personal knowledge of the existence of the Default Judgment against her since at the very latest 23 February 2017 and, on the evidence, 26 August 2016. Her allegations of poor health, family concerns and difficulty in obtaining professional advice were not sufficiently detailed in her affidavits, nor were they substantiated by reference to supporting evidence, in a manner which would satisfy an application to set aside that judgment.

(d) Finally, I consider that any further delay occasioned by a further stay of execution of the Default Judgment will cause prejudice to ANZ. Although ANZ was not quick to execute the judgment obtained against Ms Williamson in 2016, that delay may have been a result of Ms Williamson's FOS and AFCA complaints. Even if it was not, and the delay on the part of ANZ was a result of unexplained administrative delay or a conscious decision not to enforce a judgment whilst there remained a possibility of fruitful negotiations, in my opinion that does not militate against the conclusion that at present any further stay of execution of the Default Judgment will cause present prejudice to ANZ. In the circumstances, ANZ ought not be further deprived of funds to which it is owed under the Default Judgment or possession of the Mahogany Avenue Property

34 Accordingly, I do not consider that there is any proper purpose to stay the execution of the Warrant and, in the exercise of my discretion, I lift the temporary stay which I granted on 5 August 2019 and dismiss Ms Williamson's application.

35 Some brief observations ought be made in relation to some other matters raised by Ms Williamson in the course of her various appearances before the Court.

36 In summary, these observations were to the effect that she was somehow disadvantaged in presenting her case and, incidentally, obtaining a fair hearing from this Court, predominantly on the bases that she had been given insufficient time to present her case and that her lack of legal qualification would result in the Court not considering her submissions and evidence in the same way that it would were those submissions and evidence presented by a qualified lawyer.

37 The Court is satisfied that Ms Williamson was afforded ample opportunity to present her case. That was the reason why the matter was adjourned twice and for periods which were appropriate for Ms Williamson to formulate her arguments. Further, at the last hearing of this matter on 29 August 2019 Ms Williamson was supported by a friend who, under no objection by the Court or ANZ, sat at the bar table with her to support her and assist her in managing her documents.

38 Finally, the fact of Ms Williamson's lack of legal qualifications was of no relevance whatsoever in the course of the hearing and determination of this case.

39 For the reasons set out above, the Court makes the following orders.

(1) Order 1 of the order of the Court dated 5 August 2019 is vacated.

(2) Ms Williamson's application for a stay over the Warrant is dismissed.

(3) Ms Williamson pays ANZ's costs as agreed, in default of which they be taxed on a standard basis.

[1] Jaskovitz v Bonnick [1964] VicRp 83; [1964] VR 654, 656 (Herring CJ).

[2] [2016] VSC 82.

[4] Evans v Bartlam [1937] AC 473, 480 (Lord Atkin), 482 (Lord Russell); Grimshaw v Dunbar [1953] 1 QB 408, 415-416 (Jenkins LJ); Rosing v Ben Shemesh [1960] VicRp 28; [1960] VR 173, 176 (Herring CJ, O'Bryan and Dean JJ); ANZ Banking Group v ASIC & Ors [2017] VSC 288, [16] (Derham AsJ).

[5] See generally, exhibit SJR-14 to the Affidavit of Sarah Jane Rogers dated 8 August 2019.

[6] See letter from Gadens to Ms Williamson dated 23 February 2017, at paragraph 5(4), which forms a part of exhibit SJR-14.