Brereton JA, Mitchelmore JA, Sully J, Kunc J, Priestley JA
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment (ex tempore)
BRERETON JA: Almost 33 years ago, on 28 September 1989, Sully J in the Common Law Division gave judgment that Hacide Pty Ltd, a company controlled by the present applicant Mrs Patricia Poulos and her husband Mr John Poulos, who were also defendants in those proceedings, give possession of 52 Taloombi Street, South Cronulla, to the Commonwealth Bank of Australia.
On 1 August 1991 an appeal from that judgment was dismissed by this Court. [1] In January 2019 new proceedings impeaching Sully J's judgment for fraud were commenced by Mrs Poulos. In those proceedings, she also joined as defendant one Mr Elliott who was associated with another lender, Elders. On 12 April 2019 those proceedings were summarily dismissed by Kunc J on the basis that having regard to the requirement that Mrs Poulos ultimately establish new facts so evidenced and so material that it was reasonably probable that the outcome would have been different, her claim was doomed to fail. On 4 October 2019 this Court refused leave to appeal from Kunc J's judgment. Although accepting that one of six documents identified as "fresh evidence", being a discharge of mortgage over the number 52 property by the ANZ Bank, might have been a fresh fact, its availability would have made no difference to the outcome. That was, for reasons then elaborated, that amounted to four in number, which explained why a discharge of mortgage dated in August 1984 could well have been handed over on settlement in May of 1985.
As the Court then explained, [2] first, in conveyancing transactions, documents are prepared in anticipation of, not following, settlement and are sometimes dated in anticipation of settlement but take effect from when they are delivered upon settlement, not from the date that appears on them. Secondly, there was documentary evidence confirming that the amount outstanding to ANZ as at 12 March 1985 was $714,266, which was inconsistent with the mortgage having been discharged prior to that date. Thirdly, the certificate of title would have been held not by the second mortgagee, ANZ, but by the first mortgagee, Finance Corporation of Australia, which on any view was not discharged until settlement on 3 May when it was paid $84,027. Fourthly, whereas, as Priestley JA had thought in the first appeal, the cheque for $731,756 directed to be paid to Mr and Mrs Poulos must have been used to discharge the ANZ number 52 mortgage, Mrs Poulos was then unable to suggest how and from what source that mortgage was discharged save to suggest that it must have been discharged by the Commonwealth Bank of Australia in order to procure the title, a proposition which in the circumstances there described appeared fanciful.
In the course of delivering this judgment, I was interrupted by Mrs Poulos to object to the earlier judgments to which I have referred. I record that in this judgment I am not making any findings, conclusions or assumptions about the accuracy or otherwise of the judgments of Sully J, Needham J, Hodgson J, this Court on appeal therefrom, or necessarily even this Court's judgment dealing with the judgment of Kunc J. I have referred to those matters to set out the background and history that precedes the present application, not necessarily to assume or endorse the accuracy of any of those judgments.
On 17 April 2021 Mrs Poulos commenced new proceedings by statement of claim filed in the Equity Division joining the Australia and New Zealand Banking Group as defendant. In the original statement of claim, she sought orders reinstating herself to possession of the number 52 property and another property at Miranda (which relief could not possibly have been granted against ANZ); alternatively, setting aside the judgments of Sully J and Needham J (which were judgments to which ANZ was not a party) and, thirdly, damages. It appears from material before this Court that the statement of claim was served on the defendant on 21 April 2021, from which date time for appearance and defence would have run. On 13 May 2021, however, Mrs Poulos filed an amended statement of claim, as she was entitled to do pursuant to the rules which entitle a party to amend once without leave. On 14 May 2021, the defendant ANZ filed its notice of appearance. On 20 May, Mrs Poulos sent a letter to the solicitors acting for ANZ acknowledging receipt of a letter serving the notice of appearance dated 14 May 2021, refuting some allegations made in that letter by ANZ, and seeking "particulars" of two discharges of mortgage by ANZ: first, the discharge dated 15 August 1984 to Hacide in respect of the number 52 property; and secondly, the discharge also dated 15 August to J and P Poulos in respect of the Miranda property. Without going into full detail, the particulars sought included: on whose instructions the discharges of mortgage were prepared, and when they were given; the circumstances in which the discharges were provided; to whom they were provided, and when; the amount of money received in exchange for the discharges; and to whom the certificate of title for the relevant property was delivered.
On 11 June 2021, ANZ filed a notice of motion seeking summary dismissal of the proceedings, and alternatively striking out of the statement of claim. On 2 August 2021, Darke J ordered that the amended statement of claim be struck out on the basis that it did not disclose a reasonable cause of action and had a tendency to cause prejudice, embarrassment and delay. However, his Honour declined summarily to dismiss the proceedings, allowing Mrs Poulos an opportunity to replead. [3]
On 1 August 2021, Mrs Poulos filed a further amended statement of claim. Thereafter, written submissions were exchanged between the parties in which the bank objected to leave being granted to file the further amended statement of claim, while Mrs Poulos advanced her arguments as to why that leave should be granted. Following the exchange of written submissions, an oral hearing took place before his Honour on 2 December 2021.
In a judgment delivered on 13 December 2021 Darke J refused leave to file the further amended statement of claim and ordered that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b). [4] On 16 December 2021, Mrs Poulos sent an email to the bank's solicitor notifying that "at this time" it was her intention to appeal from Darke J's judgment. In a further email sent on 30 January 2022 she identified three general issues amongst others about which she said she would complain in her proposed appeal. On 3 February 2022, Mrs Poulos sent the respondent's solicitors an unfiled notice of intention to appeal and draft notice of appeal stating that she had been unable to file them due to technical issues. Ultimately, on 23 May 2022, Mrs Poulos filed the summons for leave to appeal which is now before the Court. It was filed more than four months out of time, 28 days from the material date having expired on 10 January 2022, and even if it were assumed that an effective notice of intention to appeal had been given in time, would still be out of time as the extended time would have expired not later than 10 April 2022.
Accordingly, Mrs Poulos requires not only leave to appeal but also an extension of time in which to apply for leave to appeal. No satisfactory explanation has been given for the delay in filing a timely summons for leave to appeal. The evidence discloses no such explanation, and when asked by this Court Mrs Poulos said only that she had tried, and apologised. In the case of an obviously meritorious appeal brought in a relatively timely manner, that might suffice; but in this case the delay is superimposed not only on the passage of 35 years since the events in question but more recently on the passage of some at least two years since Mrs Poulos must have become aware of the discharges of mortgage in question which were referred to, inter alia, in this Court's judgment in September 2019.
The primary judge's decision involved two aspects: first, consideration of whether leave should be granted to file the further amended statement of claim; and secondly, if not, whether the proceedings should be dismissed or whether a further opportunity to replead should be allowed. As to the first, his Honour rightly held that it was impossible to discern a viable cause of action from the pleading, and that the pleading was one that had a tendency to cause embarrassment and delay. Mrs Poulos draws attention to the judgment of Kirby P in Wentworth v Rodgers, [5] where his Honour said:
"Thirdly, the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitable if unrepresented at a disadvantage. Courts should approach the pre-emptory termination of the litigation with special care to ensure that within the possibility ill expressed and unstructured statement of the legal claim sought to be ventilated there is no viable cause of action which with appropriate amendment of the pleading and a little assistance from the Court could not be put into proper form..."
However, it is important also to observe that ultimately no error was found in the approach of the first instance judge in that case, Young J, as he then was, who the President observed had before him all of the material, admitted it over the respondent's objection, considered it though not convinced that much of it was strictly admissible, and approached the case in the way most favourable to the appellant and to test the material on which she relied to see whether additionally to the statement of claim there might be derived from it a cause of action.
I agree, for the reasons given by the primary judge, that no viable cause of action can be discerned from the statement of claim and that making all due allowances in favour of Mrs Poulos, the statement of claim is one which will plainly have a tendency to embarrass, delay and vex. It is not surprising that no viable cause of action can be distilled from it in circumstances where Mrs Poulos herself said to this Court that the request for particulars of 20 May 2021 was "to find out what case we were running". Implicit in that is that the plaintiff below and present applicant does not really know what case they are running and can therefore hardly have articulated one in the statement of claim. Moreover, it is of course not open to a plaintiff to seek "particulars" from a defendant in advance of the defendant having pleaded a defence, and a defendant is not required to plead a defence until there is a valid statement of claim to which it is required to plead.
Mrs Poulos argued, at least in a substantial part of her draft notice of appeal and in written submissions, that the trial judge had erred in dealing with the motion while the respondent was said to be "in default". This argument was not elaborated orally during the hearing of the present application but appears to be connected with an alleged failure to file a timely appearance or defence. The time for filing an appearance or defence is 28 days from service of the statement of claim. The chronology which I have set out above indicates that the notice of appearance was filed within that 28 day period. No defence was filed, but that was in circumstances where a notice of motion was brought to have the statement of claim struck out. No application was made for judgment in default of a defence. Even if there were a default, the remedies which a Court may grant consequent on that default are referred to in the Civil Procedure Act 2005, s 61(3), and are discretionary remedies. It is not an automatic consequence of default that a party cannot move the Court for relief. Accordingly, those grounds of appeal - which comprise most of the proposed grounds of appeal in the draft notice - have no prospect of success.
The second aspect of his Honour's judgment was that, having decided that leave to file the further amended statement of claim should not be granted, his Honour as a matter of discretion determined to dismiss the proceedings rather than to permit a further opportunity to replead them. That was a discretionary case management decision, albeit one that had significant repercussions for the further conduct of the case. In making that decision, his Honour had regard to the fact that there had already been three attempts to articulate the plaintiff's cause of action; that it did not appear likely that a fourth attempt would produce a viable statement of claim; that the result of a dismissal would not be a dismissal on the merits and would thus not preclude the plaintiff from bringing further proceedings; and that it appeared unlikely that any relevant statute of limitations which had not already expired would expire in the near future.
Essentially, the plaintiff's argument was that his Honour should have required the defendant to provide the further and better particulars of the discharges of mortgage which had been sought in the letter of 20 May. But, as I have said, the plaintiff had no entitlement to any such particulars until she had first pleaded and articulated a viable cause of action to which a defence was required. For those reasons, it seems to me, that no discretionary error of the kind referred to in House v The King can be found in his Honour's decision summarily to dismiss the proceedings. In particular, his Honour's observation that no dismissal on the merits is involved; that it is unlikely that any relevant statute of limitations that has not already expired would expire in the near future; and the ongoing inability of the applicant to articulate with clarity her cause of action, tend to support his Honour's decision.
For those reasons, it is unnecessary to embark on a consideration of the merits of the applicant's claim. It follows that, in my opinion, an extension of time in which to seek leave to appeal should be refused with costs.
MITCHELMORE JA: I agree with the reasons of Brereton JA and with the orders that his Honour has proposed.
[3]
Endnotes
Hacide v Commonwealth Bank of Australia [1991] NSWCA 134.
Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 at [41].
Poulos v Australian and New Zealand Banking Group Ltd [2021] NSWSC 971.
Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC 1620.
Wentworth v Rodgers (No 5) (1986) 6 NSWLR 534, in particular at 536.
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Decision last updated: 27 October 2022