Plaintiff v Defendant

2 On or about 12 June 2015, the defendant entered into a loan agreement with the plaintiff for a 30-year home loan in the amount of $357,889 ('Home Loan Agreement'). The Home Loan Agreement comprised a 'Consumer Credit Contract Schedule'[1] signed by the plaintiff and the defendant. It incorporated the plaintiff's standardised 'Consumer Mortgage Lending Products Terms and Conditions dated 15 December 2014'.[2]

3 The security given for the loan included, amongst other things, a mortgage over the real property located at 22 Wicklow Drive, Invermay Park, Victoria ('Property').[3]

4 On 20 July 2015, the defendant became the registered proprietor of the Property and the plaintiff registered mortgage AM039377G ('Mortgage') over the Property.[4] The Mortgage incorporated memorandum of common provisions AA1754 ('MCP').[5]

5 The defendant defaulted in payment under the terms of the Home Loan Agreement and on 14 June 2023, the plaintiff issued a default notice in respect of the arrears, requiring him to make payment by 24 July 2023.[6] The arrears remain unpaid.

6 On 10 May 2023, the defendant (as plaintiff) commenced Federal Court proceeding VID 354 of 2023 against the plaintiff (in that proceeding, the defendant) seeking to avoid the Home Loan Agreement and Mortgage. On 17 November 2023, Wilson JR granted summary judgment in favour of the plaintiff. The defendant sought a review of that decision and on 12 April 2024, Button J dismissed the defendant's review application and the proceeding.[7] Some of the arguments raised in that proceeding and rejected by the Federal Court are raised again by the defendant in this proceeding.

7 The plaintiff commenced this proceeding by writ and statement of claim filed on 10 September 2024. The plaintiff engaged a process server who attempted to personally serve the writ and statement of claim on the defendant on 19 September 2024. The process server made a second attempt on 30 September 2024. Having been unsuccessful in serving the writ personally, on 21 November 2024, the plaintiff relied on the agreement for service contained in the MCP and served the writ and statement of claim by leaving sealed copies in the letterbox at the Property in an envelope addressed to the defendant.

8 On 22 November 2024, the plaintiff's solicitors sent a letter to the defendant by email to his email address 'bingo009@proton.me', which enclosed a copy of the writ and statement of claim.[8] A further letter sent on 29 November 2024 enclosed the affidavit of service and put the defendant on notice that if he did not file a notice of appearance, the plaintiff would apply for default judgment.[9]

9 On 2 December 2024, the plaintiff's solicitors received an email from the defendant attaching a document styled 'Statement and declaration of Truth "Affidavit"'.[10]

10 The plaintiff entered judgment in default of appearance on 4 December 2024. On 11 February 2025, the plaintiff sent a letter to the defendant informing him of the default judgment.

11 The defendant filed his summons, together with his affidavit in support styled 'Statement of Truth "AFFIDAVIT"' ('Defendant Affidavit'), on 24 February 2025. That affidavit is mostly in the nature of submissions, albeit in large part unintelligible, being replete with pseudo-legal arguments commonly associated with the sovereign citizen movement, latin maxims and some biblical references. The defendant did not file separate written submissions. Accordingly, to the extent the Defendant Affidavit constitutes a submission rather than evidence, I intend to treat those parts of it as the defendant's written submissions in support of his application.

12 Shortly prior to the hearing, the defendant foreshadowed his intention to seek an adjournment of the hearing of his summons so that he could respond to material filed by the plaintiff in opposition to his application, which he asserted, in his correspondence to the Court, he had not previously been provided despite request. The Court invited the defendant to make that adjournment application orally at the commencement of the hearing on 25 March 2025. The defendant did not make the application.

13 In his summons, the defendant, who is self-represented, relies on grounds 'including but not limited to improper service of process, lack of adequate notice and contractual issues'. In the Defendant Affidavit, he elaborates on these grounds by asserting that:

(a) the judgment is irregular for reasons including that 'steps in the legal proceedings have deviated from standard protocol and procedure' and that he was 'not properly notified of the legal action';[11]

(b) 'he was not properly served with court documents, which were left unmarked and not addressed to any individual in [his] letterbox';[12] and

(c) he filed a notice of appearance with the 'Principal Registrars of the Supreme Court'[13] on 29 November 2024.

Each of these grounds appears to be directed at establishing that the default judgment was irregular, such that it should be set aside 'as of right' under r 21.07 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules').

14 Also in his summons, the defendant states the 'evidence we have gathered conclusively disproves the claims made by the Commonwealth Bank'. Thus it appears, albeit not expressed in these terms, that the defendant's alternative ground is that he has an arguable defence on the merits.

15 A judgment that is irregular will usually be set aside ex debito justitiae, that is, as of right. A judgment is irregular where it is not entered in accordance with the rules of court or where there is some other defect such as overstatement of the amount of the judgment sum. Instances of irregularity include a failure to serve the originating process, the failure of the originating process to disclose a cause of action, the entry of default judgment where a notice of appearance has been filed or a defence served, or default judgment entered prior to expiry of the time in which those steps must be taken.

Was the defendant validly served, and did he have notice of the proceeding?

16 The defendant asserts that he was not properly served with the writ and statement of claim and that he did not have notice of the proceeding. He asserts that:

(a) the process server's affidavit of service identifies an address for the process server business that does not exist;[14]

(b) the process server was underage;[15]

(c) the plaintiff failed to seek orders for substituted service;[16] and

(d) in so far as the plaintiff relies on the relevant clauses of the MCP as an agreement to serve for the purpose of rr 6.02(1) and 6.14, the MCP is invalid and unenforceable.[17]

17 The plaintiff has filed the affidavit of Daniel Lawrie, process server, sworn on 25 November 2024. In that affidavit, Mr Lawrie deposes to his work address as being 22 Killiams Walk, Bendigo.[18] Contrary to the assertion of the defendant, that address does exist. Mr Lawrie deposes to having 'attained the age of 16 years'.[19] In fact, Mr Lawrie was 51 at the time he swore his affidavit.[20] Therefore, neither of the defendant's submissions to the effect that service on him was invalid because there was no address in Bendigo matching the address deposed to, and because the process server was too young, can be sustained.

18 Mr Lawrie also deposes in his affidavit to serving the defendant on 21 November 2024 by placing, in the letterbox at the Property, a sealed envelope addressed to the defendant, which contained the writ and statement of claim. The defendant admits that the writ and statement of claim were left in the letterbox, but he submits the documents 'were left unmarked and not addressed to any individual'.[21] While this contradicts Mr Lawrie's evidence, nothing turns on it, as the defendant concedes that he was given notice of the proceeding by receiving the writ and statement of claim and there is no requirement that the originating process be enclosed in an envelope specifically addressed to the defendant in any event. The defendant also submits that this form of service was ineffective because the plaintiff should have served the writ and statement of claim personally, or obtained orders for substituted service.

19 Under r 6.02(1) of the Rules, an originating process must be served personally unless 'otherwise provided by or under any Act or [the] Rules'. Rule 6.14 provides just such an exception to r 6.02. It states:

Where the parties to any proceeding have, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on a party or on a person on behalf of a party in a manner or at a place (whether within or outside Victoria) specified in the agreement, service in accordance with the agreement shall be sufficient service.

Rule 6.14 requires the existence of an agreement between the parties to the proceeding by which they have agreed that 'originating process or any other document in the proceeding' may be served in the manner or at the place specified in that agreement. To qualify as an agreement to serve an originating process and avoid the obligation to serve personally, the relevant agreement must clearly contemplate service of judicial process.[22]

20 In this case, the plaintiff relies on clause A31.3 of the MCP which states:

If the court rules allow, we may serve any document in a court action (including documents to commence the action) on you by delivering it to The Property or leaving it there. This clause A31.3 does not prevent any other permissible method of service.[23]

This clause specifically contemplates the service of the judicial process which commences a legal proceeding, such as the writ and statement of claim. I am satisfied that the clause constitutes an agreement for service in accordance with r 6.14 of the Rules. Given I am also satisfied, for reasons explained further below in this ruling, as to the validity of the Mortgage and the MCP, I find that the plaintiff was entitled to rely upon this clause to serve the writ and statement of claim upon the defendant when personal service could not be effected. Moreover, given its ability to rely on this clause, the plaintiff did not need to seek orders for substituted service. Accordingly, I am satisfied that the defendant was validly served when the writ and statement of claim were left in the letterbox at the Property on 21 November 2024.

21 In any event, by no later than 22 November 2024, the defendant had notice of the proceeding when he received and replied to an email from the plaintiff's solicitors which enclosed the writ and statement of claim. The defendant's reply email attached a document styled ' Notice of Cease and Desist, Notice of Non-Contract and Notice of Estoppel' dated 22 November 2024. That notice refers to a member of the defendant's family finding the envelope in the letter box on 22 November 2024, addressed (the defendant submits erroneously) to Joseph Robert Scordo.[24]

22 A party seeking to take any step in a proceeding, including filing a defence, must first file a notice of appearance within the time stipulated in the Rules. The notice of appearance serves the substantive purpose of giving notice that the party appearing submits to the jurisdiction of the Court[25] and serves the functional purpose of providing both a physical and email address for service.

23 The defendant contends that he sent his notice of appearance 'directly to the Principal Registrars of the Supreme Court on Friday November 29th, 2024 at 1:46 PM, via email'.[26] The defendant exhibits a copy of the purported notice of appearance to his affidavit. That document, styled 'Notice of Cease and Desists, Notice of non-contract, Notice of Estoppel', was sent via email to the Supreme Court registry and was addressed to each Judge, Associate Judge and Judicial Registrar of the Court as 'respondents'. The document states:

Notice of Cease and Desists, Notice of non-contract, Notice of Estoppel

...

Dear Respondents,

Please see attached by way of service our fully executed and sealed 'Statement and Declaration of Truth "Affidavit"' and is now served on all parties named above (respondents), and all other agents, assigns and nominees of the Supreme Court of Victoria.

At this stage there is no need for the respondents to respond.

This Affidavit is truth, however, if the respondents elect to not challenge this Affidavit with irrefutable proof within twenty-eight [28] days, it will be taken that the respondents consent it stands as truth.

This correspondence can be taken as your [notice of appearance]. Joseph- Robert will not be using the tools, processes, procedures nor documents of the Supreme Court of Victoria, as we are a natural man, and idiot to the legal system, an idiot to legalese, and do not understand the Supreme Courts (sic) authority, jurisdiction, rules, mandates, orders etc.

Joseph-Robert will only appear in court in a special capacity as Principal, there to protect our interests, and seeking who will indemnify Joseph-Robert for any harms, torts, injury, damages, trespass, and violations of any other criminal acts, and "human Rights" treaties...

Any and all correspondence can be sent to:

Joseph-Robert

C/o PO Box 18N

The town known as "Ballarat North"

Land of Terra Australis

"Victoria [3350]"

24 The document was not filed, and has not been sealed. The document does not conform with the requirements in r 8.05 for a Notice of Appearance to be filed in Form 8A. It provides a PO Box address for correspondence, and does not provide any email address. However, the main problem with the document is that far from submitting to the jurisdiction of the Supreme Court, the document foreshadows that the defendant does not intend to use the 'tools, processes, procedures nor documents of the Supreme Court.' Further, it states that the defendant 'does not understand the Supreme Court's authority, jurisdiction, rules, mandates, orders etc'. In my view, and consistently with other statements made by the defendant in documents he has filed[27] and at the hearing of his application,[28] the defendant does not accept the jurisdiction of the Supreme Court, and does not intend, by this document, to submit to it.

25 The defendant has never served a sealed notice of appearance on the plaintiff. Rather, he sent to the plaintiff's solicitor, via email on 2 December 2024, a version of the document emailed to the Court on 29 November 2024.

26 On 4 December 2024, the plaintiff entered judgment in default of appearance against the defendant. The plaintiff filed the order for default judgment for recovery of land and debt seeking possession of the Property and payment of the debt owing to the plaintiff in the amount of $402,412.61, together with interest of $10,090.59 and costs of $5,994.40. The plaintiff also filed a search for an appearance directed to the Prothonotary and an affidavit in support of the default judgment sworn on 4 December 2024 by Sonia Apikian of Gadens deposing that no notice of appearance had been served on the plaintiff and deposing to the amount of the judgment debt.

27 Given the above, I am satisfied that no notice of appearance was filed by the defendant within the time permitted by the Rules, and that the default judgment entered on 4 December 2024 was regularly obtained.

Should the regularly entered default judgment be set aside?

28 The matters relevant to the exercise of the discretion to set aside a judgment regularly entered against a party in default are well settled, and are well described in the case of Kostokanellis v Allen.[29] They include:

(a) whether the defendant has a prima facie or arguable defence on the merits;

(b) the reasons given by the defendant for the default;

(c) whether the application to set aside the default judgment has been unreasonably delayed by the defendant; and

(d) whether the plaintiff would be prejudiced in any respect which could not be adequately compensated by an award of costs.

29 The defendant does not put forward a draft defence in support of his set aside application, however, the statement in the summons that he has gathered evidence that 'conclusively disproves the claims made by the Commonwealth Bank' suggests that the matters he relies upon in the Defendant Affidavit will be raised in his defence.

30 Although the Defendant Affidavit is replete with pseudo-legal arguments and gibberish, it appears that the essence of the defendant's intended defence is that:

(a) the plaintiff failed to comply with s 127 of the Corporations Act 2001 (Cth) ('Corporations Act') in executing the Home Loan Agreement and the Mortgage;

(b) the Property was not designated as security under the terms of the Home Loan Agreement or the Mortgage; and

(c) the plaintiff has misled the defendant by omission, behaved unconscionably and coerced the defendant.

Claim that documents not executed in accordance with s 127 of the Corporations Act

31 The defendant asserts that the plaintiff failed to execute both the Home Loan Agreement and the Mortgage in accordance with the requirements of ss 126 and 127 of the Corporations Act, such that they are each unenforceable.[30] I am not satisfied that this provides the defendant with an arguable defence on the merits. The defence the defendant would raise assumes that ss 126 and 127 create an exhaustive code for how corporations must execute legal documents. The terms of s 127(4) contradict this submission, providing that the section 'does not limit the ways in which a company may execute a document, including a (deed).' Moreover, those sections provide for a manner of execution that, if followed, may be relied upon by persons transacting with a corporation to obtain the benefit of the statutory assumptions as to the authority of persons purporting to bind the company.

32 The Home Loan Agreement has been signed by the defendant. The plaintiff also signed it electronically on 10 June 2015, with the electronic signature applied on behalf of the plaintiff by Mr Brian Mosely, General Manager of Retail Customer Service. The Mortgage identifies the parties as the defendant and the plaintiff, and has been executed by the defendant on 9 July 2015, with his execution of the Mortgage witnessed.[31] The mortgage instrument does not need to be executed by the mortgagee. I am, therefore, satisfied that the documents have been properly executed and so are not invalid or unenforceable for the reason submitted by the defendant. This defence has no merit.

Claim that real property not designated as collateral in the Mortgage

33 The defendant submits, in his Defendant Affidavit, that:

nowhere in the mortgage agreement does it explicitly states that the real, tangible land and building and chattels located at 'Twenty-Two Wicklow Drive, Invermay Park, Victoria, Australia', is designated as the security or collateral for the alleged mortgage.[32]

The Defendant Affidavit then asserts that the Mortgage is unenforceable by reason of the omission. The defendant has exhibited a document styled 'Certificate of Allodial Title', which is said to be entered with the 'Principals Private Court of Record' and is stamped with 'VIS LEGIS COURT SEAL'. This appears to be an invented court seal.

34 I interpret this submission to raise an argument by way of defence to the effect that the Property was not the property the subject of the Home Loan Agreement, pursuant to which the mortgage was granted. However, the Home Loan Agreement signed by the defendant quite clearly designates the Property as security for the loan. That security takes the form of the mortgage instrument, executed by the defendant in favour of the plaintiff which identifies the Property by its land title Volume 10200 Folio 673 in the State's Land Titles records. That mortgage instrument (AM039377G) was registered on the land title to the Property. The land title certificate describes the land recorded in volume 10200 Folio 673 by reference to its street address '22 Wicklow Drive, Invermay Park, Vic 3350.'[33]

35 The 'Certificate of Allodial Title' document relied upon by the defendant has no standing as a legal document recording or creating any interest in land under the laws of Victoria. The defendant's intended reliance on this submission and this document does not constitute an arguable defence on the merits.

36 The defendant submits in the Defendant Affidavit that equitable relief should be granted to address the 'fundamental unfairness' in the terms of the Home Loan Agreement, which he describes as 'harsh and one-sided'.[34] He submits that the plaintiff bank exploited his 'lack of understanding of the legal system, circumventing the safeguards designed to protect consumers'.[35] He describes the plaintiff's conduct as 'wholly unconscionable'.[36] He also submits that the plaintiff failed to disclose 'critical information'[37] about the loan and that the plaintiff used 'coercive tactics'[38] such that it should be denied enforcement of the loan because of its 'unclean hands'.[39]

37 The defendant fails to identify any of the information that he alleges the plaintiff failed to disclose, nor does he identify any particular conduct of the plaintiff in connection with the Home Loan Agreement and Mortgage that is unconscionable or coercive. He does not say how any such undisclosed information or conduct undermines the validity or enforceability of the Home Loan Agreement or the Mortgage. I am not satisfied that the defendant has an arguable defence on the merits in relation to these allegations.

38 The defendant does not address any of the other factors that are usually relevant to the Court's consideration whether it will exercise its discretion to set aside a default judgment that was regularly entered. In any event, the defendant's material filed in support of his application does not disclose that he has an arguable defence to the plaintiff's claims on the merits, and so I will not set aside the default judgment.

39 I will dismiss the defendant's application and order that he pay the plaintiff's costs of and incidental to the application.

[1] Affidavit of Manoj Samuel Thomas sworn 14 March 2025, Exhibit MST-1, 14-19 ('Thomas Affidavit').

[2] Thomas Affidavit, Exhibit MST-1, 20-95.

[3] Thomas Affidavit, Exhibit MST-1, 18 (Item K).

[4] Thomas Affidavit, Exhibit MST-1, 104.

[5] Thomas Affidavit, Exhibit MST-1, 105 (Mortgage), 106-123 (MCP).

[6] Thomas Affidavit, Exhibit MST-1, 217-220.

[7] Thomas Affidavit, Exhibit MST-1, 221-249.

[8] Affidavit of Sarah Jane Rogers sworn 14 March 2025, Exhibit SJR-1, 12-23 ('Rogers Affidavit').

[9] Rogers Affidavit, Exhibit SJR-1, 28-65.

[10] Rogers Affidavit, Exhibit SJR-1, 66-67.

[15] Defendant Affidavit [21], [23].

[18] Affidavit of David Lawrie sworn 25 November 2024 ('Lawrie Affidavit').

[22] Perpetual Corporate Trust Ltd v Cassar [2024] VSC 302, [11].

[23] Thomas Affidavit, Exhibit MST-1, 120.

[24] This contradicts what is said at Defendant Affidavit [19].

[25] Tucker v Walker [1920] VicLawRp 25; [1920] VLR 385, 386; Forbes v Smith [1855] EngR 165; (1855) 156 ER 628.

[26] Defendant Affidavit [19]-[22].

[27] For example, at Defendant Affidavit [31], the defendant submits that he provided a notice to the former Chief Justice of this Court affording her 28 days to provide evidence to establish the Court's jurisdiction, asserting that without any such evidence having been provided 'this failure to respond has resulted in an equitable estoppel through silent acquiescence' such that it is now 'untenable for the court to assert subject matter jurisdiction over the case'. See also Defendant Affidavit [2(e)], [6], [7], [8], [18].

[28] Transcript of Proceedings, CBA v Scordo (Supreme Court of Victoria, S ECI 2024 04789, Goulden AsJ, 25 March 2025), T8.26-T8.28, T11.12-T11.19, T11.28-T11.30, T12.13-T12.15.

[29] [1974] VicRp 71; [1974] VR 596 ('Kostokanellis').

[30] Defendant Affidavit [36]-[45].

[31] Thomas Affidavit, Exhibit MST-1, 105.

[33] Thomas Affidavit, Exhibit MST-1, 104.