Re Thorpe [2024] VSCA 172, applied; Staats v United States of America

Re Thorpe [2024] VSCA 172, applied; Staats v United States of America (1992) 66 ALJR 793, considered.

1. On 14 October 2025, the Registrar of the Court of Appeal ('the Registrar') refused to accept documents for filing from Ms Nguyen in respect of a proposed application for leave to appeal ('the proposed Application'). That application relates to interlocutory orders of Matthews J made 27 August 2025 and 6 October 2025 in respect of a proceeding listed for trial on 6 November 2025 ('the proceeding'). The applicant has now sought a direction from a judge to the Registrar to accept the documents of the proposed Application for filing pursuant to r 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2025 ('the Rules').
2. The matter has been referred to me to determine on the papers. I have determined not to call for further submissions in light of the material already filed. For the reasons that follow, I refuse to make such a direction.

1. In this proceeding, the ANZ Bank Group Limited ('the ANZ Bank') has sought:

(a) to recover monies allegedly advanced by way of loan to Ms Nguyen together with interest and costs pursuant to an agreement made about 19 July 2016 ('the Letter of Offer');

(b) possession of property mortgaged by Ms Nguyen in favour of the ANZ Bank ('the Secured Property') pursuant to a deed of mortgage dated 20 June 2016 ('the Mortgage') to secure the advance.

1. On 13 March 2024, ANZ Bank sought summary judgment against Ms Nguyen for the amounts said to be owed by her pursuant to the Letter of Offer and for repossession of the Secured Property. The matter was heard by Steffensen AsJ on 18 June 2024. Ms Nguyen was assisted by her husband, Mr Trajkovski, who appeared with leave as a 'McKenzie friend'[1] and made submissions. In addition, Mr Trajkovski affirmed an affidavit opposing the summary judgment application.
2. The summary judgment application was determined by reasons delivered and orders made on 25 June 2024 (together, 'the Summary Judgment determination'). Steffensen AsJ made orders for summary judgment in favour of ANZ Bank for the principal owing (being $298,000). This is notwithstanding that her Honour concluded she was not satisfied that Ms Nguyen agreed to the terms in the Letter of Offer. However, her Honour was satisfied that the money was advanced and was owing. She said:

It is apparent from Mr Trajkovski's evidence and oral submissions that the defendant does not deny that the bank advanced the principal to the defendant which was used to purchase the [Secured] Property, and that this amount ought to be repaid to the bank. This submission was also made by the defendant herself, who submitted to the Court that she understood that the bank wants to take the property because she doesn't have money to pay the bank. She said that she is now allowed to work, so she can try to repay the bank.[2]

1. Further, her Honour dismissed ANZ Bank's application for summary judgment as it related to:

(a) the quantum of interest said to be payable;

(b) the fees and charges levied in facilitating the loan; and

(c) the claim to repossess the Secured Property.

not satisfied that the bank has established that the defendant agreed to the terms set out in the letter of offer ... It is unexplained as to how the defendant could have agreed to the terms set out in a letter of offer which post-dates her signature by nearly one month ... For this reason, I am not satisfied that the letter of offer sets out the terms of a binding agreement between the plaintiff and defendant.[3]

1. These findings were made in a context where Ms Nguyen also alleged that the ANZ Bank had engaged in 'unconscionable conduct' which affected the enforceability of the Letter of Offer and/or the Mortgage. Relevantly, Steffensen AsJ said in respect of Ms Nguyen's defence:

The defendant raises a number of arguments that Mr Trajkovski described as part of a 'conspiracy' with a view to explain why the bank engaged in the alleged unconscionable conduct. For example, the defendant submits that it was in the bank's interest to enter into the loans which are unaffordable so that they may foreclose and obtain the benefit of real property, without having to meet the obligations of property ownership, such as payment of capital gains tax and land tax. Further, it was alleged that the bank loaned funds to the defendant so as to ensure that the obligations that it was owed by the former registered proprietor of the Property were discharged. The defendant alleges that the bank engaged in fraud 'when it merely adjusted numbers on the vendors account'. These allegations and explanations were made without an evidential foundation and are farfetched. They are also irrelevant to the unconscionable conduct defence that the defendant has outlined. I will therefore not consider them any further, and for the sake of completeness, note that any defence founded upon them has no reasonable prospect of success.[4]

1. There has been no application to appeal from the 25 June 2024 orders made by Steffensen AsJ pursuant to the Rules. The time for any such appeal has now well expired.

1. On 27 August 2025, there was a directions hearing before Matthews J. Once again, Ms Nguyen was assisted by her husband, Mr Trajkovski, as a McKenzie friend. Orders were made which, amongst other things, fixed a trial date (being 6 October 2025), granted leave to ANZ Bank to file a second further amended statement of claim, and granted leave to Ms Nguyen to file an amended defence and counterclaim.
2. Ms Nguyen opposed the ANZ Bank's application to file its amended statement, which included new particulars of the Letter of Offer and its terms. Mr Trajkovski opposed these amendments because ANZ Bank's 'claim is based on a forgery ... the whole claim collapses due to that fact'. Further, Ms Nguyen sought to strike out the ANZ Bank's existing statement of claim on the same basis.
3. The judge allowed the ANZ Bank's amendment application on the basis that the facts underlying the Letter of Offer were matters to be determined at trial. The judge also refused Ms Nguyen's application to strike out the existing statement of claim. The reasons were made plain in the following exchange:

Her Honour: That's the claim that they're making. The defendant can deny signing it. She can deny signing that version of it. She can plead whatever she wants in response to that, but it's - I'm not going to strike it out because you say it's a forgery. That's a matter for me to consider at trial.

Mr Trajkovski: The reason why we want it struck out because it was backed [sic] by any evidence and it's contrary to the evidence that's already on record which is that email that shows clearly that it couldn't have been signed on that date.

Her Honour: It's not a basis to strike out, Mr Trajkovski. These are claims and defences that need to be the subject of evidence at trial and argument at trial.

1. The judge also indicated that she would make orders referring the issue to the Victorian Bar's Pro Bono scheme, such that an amicus curiae could be appointed to assist the Court.
2. As to Ms Nguyen amendment application, not all the amendments proposed by Ms Nguyen were allowed. This was because Matthews J concluded that many of the proposed amendments related to issues already addressed in the Summary Judgment determination, most relevantly proposed amendments to the effect that:

(a) no principal was in fact advanced to Ms Nguyen, but rather that 'only accounting entries were made, unsupported by lawful consideration or regulatory clarity';

(b) Ms Nguyen became 'a lessee under a disguised financing arrangement' with the result that the 'so-called loan was a sham or constructive trust device enabling unjust enrichment through deceitful means';

(c) the ANZ Bank had 'created a book-entry loan without transferring real funds to Ms Nguyen'.

1. On 27 August 2025, Ms Nguyen made an application for a stay against ANZ Bank repossessing the Secured Property, and to strike out ANZ Bank's amended statement of claim. Each of these applications were refused by Matthews J. As to her stay application, Mr Trajkovski submitted that Ms Nguyen intended to 'prevent [ANZ Bank] from the use of [the Letter of Offer] which is not authentic, to proceed and ... give orders to sell the property under those conditions'.
2. The judge explained to Mr Trajkovski that no orders would be made to permit ANZ Bank to repossess the Secured Property until after trial. In the course of argument, there was the following exchange:

Her Honour: But isn't that a matter for trial? Isn't that for me to determine at trial whether or not the bank's proven its case?

Mr Trajkovski: Well, to me, as I understand it, there's no doubt that the document's forged because there's a second letter of offer that's now appeared that is different. So there shouldn't be two letters of offer. So that basically confirms that - that that one that they used to file their case is a forgery without doubt. The experts also come to that conclusion, our expert. So now we're not - we don't have access to further evidence to try to provide more - more evidence from the expert because it doesn't exist. So what I'm saying is basically we're just trying to protect - protect our interest and preventing the plaintiff from using what - what looks to be more than likely a forged letter of offer.

Her Honour: Whether or not the document is a forgery is a matter for me to determine after - at the trial. All right? It's not for me to determine now.

Mr Trajkovski: So formally it has to be done at trial?

Her Honour: Well, yes, it's - I can't determine this when I haven't seen any of the evidence.

1. Mr Trajkovski also appeared for Ms Nguyen as her McKenzie friend at the first day of the trial on 6 October 2025. Due to Ms Nguyen's inability to organise an interpreter, the trial was unable to proceed on that day. As a result, Matthews J made orders to (amongst other things) adjourn the trial until 6 November 2025, and to require that Ms Nguyen confirm the witnesses she would be calling at trial. No other relevant orders were made.

1. On 10 October 2025, Mr Trajkovski sought to file the following documents in support of the proposed Application:

(a) an application for leave to appeal dated 10 October 2025, signed by Ms Nguyen ('the 10 October 2025 Application');

(b) an application for leave to appeal dated 2 October 2025, signed by Mr Trajkovski on behalf of Ms Nguyen, which had been rejected for filing by the Registry of the Court of Appeal ('the Registry') on 3 October 2025 ('the 2 October 2025 Application');

(c) a written case dated 10 October 2025, signed by Ms Nguyen;

(d) a draft application book index;

(e) a draft summary;

(f) a list of authorities;

(g) the orders of Matthews J made 27 August 2025 and 6 October 2025; and

(h) an affidavit affirmed by Mr Trajkovski on 3 October 2025, with exhibits.

1. The 10 October 2025 Application contains 14 grounds as set out in attachment A to these reasons.
2. On 14 October 2025, the Registry emailed Mr Trajkovski (as the filer) to inform him that these documents had been rejected for filing for the following reasons:

(a) Matthews J did not make any of the 'findings' which were the subject of the proposed Application

(b) the affidavit of Mr Trajkovski was substantially irregular because it was unclear on what basis the affidavit was being submitted (given he was not a party) and because the exhibits were, in part, illegible.

(c) to the extent that an application was made for leave to appeal from the orders of Matthews J made on 27 August 2025, that application was out of time and was not supported by an extension of time application.

1. As a result the Registrar wrote that the documents relating to the proposed Application were rejected on the following bases:

• pursuant to rule 28.03(2) of the Rules on the basis that, if sealed, [the proposed Application] would be substantially irregular, or constitute an abuse of process; and

• pursuant to r 64.43(2) of the Rules on the basis that [the documents] are incomplete, and the filing was not accompanied by all the documents required to be filed pursuant to Order 64 of the Rules and the Practice Note.

1. By his email in response dated 16 October 2025, Mr Trajkovski wrote to dispute that determination and requested 'administrative review and that the documents be sealed nunc pro tunc.' In an email from the Registry dated 20 October 2025, the Applicant was informed that the email dated 16 October 2025, would be treated as an application under r 64.43(5) of the Rules. I note that, under r 28.03 of the Rules, the Court of Appeal constituted by a single Judge of Appeal also has the power to direct the Registrar to seal a document where the Registrar has rejected a document.

1. The provisions of the Rules that are relevant in this case to the Registrar's power to refuse or reject documents for filing are rr 28.03(2), and 64.43(1). They provide that:

28.03 Powers of the Prothonotary or Registrar

(2) Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that:

(a) a document, if it were sealed, would ... constitute an abuse of process; or

64.43 Further powers of Registrar

(1) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if the Registrar considers that the document is frivolous or vexatious on its face or by reference to any materials already filed or submitted for filing.

1. Having reviewed the documents comprising the proposed Application (set out in [18] above), the transcript of the hearings on 27 August 2025 and 6 October 2025, and the Summary Judgment Reasons, I refuse to direct the Registrar to accept these documents for filing.
2. This is because I consider that the proposed Application does not relate to any 'determination' by the judge which can be subject to appeal. This is consistent with the Registry's conclusion that Matthews J did not make any of the 'findings' which were the subject of the proposed Application.
3. Section 17(2) of the Supreme Court Act 1986 ('the Act') provides that, unless otherwise expressly provided by the Act, 'an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court'.
4. As McLeish JA noted in Re Thorpe[5]:

(a) the scope of the right to appeal from a single judge of the Trial Division is generally determined by reference to s 17(2) of the Act_;_[6] and

(b) the word 'determination' under s 17(2) (which is not to be given a narrow construction) has been held to mean those that are 'made by some order or declaration which is sufficient in its own terms to resolve a matter, being a controversy or dispute between parties'.[7]

1. With respect, the proposed grounds of appeal in the 10 October 2025 Application are extensive, far from clear and there is much overlap. Doing the best I can to understand them:

(a) grounds (a), (c) to (n) relate to whether the judge erred:

(i) in admitting the Letter of Offer and the Mortgage into evidence; or

(ii) in finding that those documents were validly executed by Ms Nguyen, and enforceable against her;

(iii) in failing to consider Ms Nguyen's expert evidence; and

(b) grounds (b) and (i) relate to whether the judge erred by proceeding to determine issues of criminal offences (that is, 'forgery and criminal deception') within a civil recovery proceeding.

1. As is evident, these proposed grounds of appeal proceed on the basis that the judge has admitted the Letter of Offer and/or Mortgage into evidence, or has found that they were validly executed and binding. That is not correct. As set out above, nothing said at the hearings on 27 August 2025 or 6 October 2025 (nor included in the orders that were made on those days) had the effect of making any findings about the admissibility of evidence or any findings of fact in relation to these matters.
2. Indeed, as is evident from the factual summary set out above, Matthews J made plain that, save for the issue of the loan amount that was outstanding pursuant to the Summary Judgment determination, Ms Nguyen is at liberty at trial to challenge by admissible evidence whether the Letter of Offer and/or the Mortgage were executed by her, and whether they are valid and enforceable. I pause to repeat that no application has been filed to challenge the Summary Judgment determination.
3. Thus, the proposed grounds of appeal do not relate to any 'determination' for the purposes of s 17(2), as these issues were not resolved at the 27 August 2025 nor at the 6 October 2025 hearing.
4. As a result, I consider that the proposed Application is frivolous or vexatious, including in the sense described by Deane J in Staats v United States of America.[8] I refuse to direct that the documents be accepted for filing by the Registrar.
5. To the extent it is necessary to give separate consideration to the 2 October 2025 Application (which was rejected by Registry for filing on 3 October 2025), it contains four grounds of appeal which are set out in attachment B to these reasons.
6. All four grounds relate to issues raised at the hearing on 27 August 2025. Once again, those grounds are far from clear. However, it is clear that many of the grounds relate to the subject matter of the 10 October 2025 Application set out in [28(a)] above including, most relevantly, the first and fourth grounds.
7. It is difficult to ascertain the subject matter of the second and third grounds, particularly the second ground which, in my view and with respect, is unintelligible. However, they appear to raise issues relating to errors by Matthews J in refusing the defendant's amendments including in relation to allegations of 'forgery and misrepresentation'.
8. Ms Nguyen's application to amend her defence and counterclaim were decided by Matthews J in light of the Summary Judgment determination. To the extent these proposed grounds assert that Ms Nguyen will be prevented from raising issues of unconscionable conduct or whether the Letter of Offer and/or Mortgage were validly executed by Ms Nguyen, Matthews J made plain that these issues can be raised by Ms Nguyen at trial, subject to and in accordance with the Summary Judgment determination. Finally, I note that, in breach of the Rules, no other documents were filed with the application.
9. In all these circumstances, I refuse to direct the Registrar to accept the 2 October 2025 Application for filing, either alone or with the other documents making up the proposed Application.
10. Finally, I note that any application for leave to appeal from any decision made on 27 August 2025 had expired by the time that the 10 October 2025 Application was submitted for filing. No application for an extension of time was made at the time.

Annexure A: Proposed Grounds of Appeal to 10 October 2025 Application

6. Grounds or proposed grounds of appeal and (where required) question(s) of law:

(a) Error of Fact and Law - Reliance on Forged Instruments

The learned trial judge erred in finding that the Letter of Offer dated 20 July 2016 and the Mortgage Security dated 20 June 2016 were validly executed by the Defendant, when uncontroverted forensic and contemporaneous evidence establishes that the Defendant's signatures on those documents were forgeries.

(b) Jurisdictional Error - Determination of Criminal Allegations in Civil Jurisdiction

The learned judge proceeded to determine issues amounting to criminal offences (forgery, obtaining property by deception) within a civil recovery proceeding, contrary to law and beyond the Court's proper jurisdiction.

The learned judge failed to consider or address the Defendant's evidence (including forensic report and email metadata) disputing the authenticity of the documents, thereby denying procedural fairness and natural justice.

(d) Error in Admitting or Relying on Inadmissible Evidence

The Court erred in admitting into evidence copies of the Letter of Offer and Mortgage Security without proof of execution, contrary to the Evidence Act 2008 (Vic) s 48 and s 59.

The Court failed to consider material evidence demonstrating that the Letter of Offer and the Mortgage Security contained inconsistent dates, signatures, and alterations inconsistent with genuine execution.

The Court erred in granting relief to the Plaintiff despite the absence of clean hands, valid consideration, or lawful standing, contrary to s 12CB of the ASIC Act 2001 (Cth) and equitable principles.

(g) Error in Proceeding to Judgment on Defective Pleading

The Court erred in proceeding to judgment where the Plaintiff's pleadings were defective, contained false averments as to execution, and failed to disclose a cause of action based on genuine contractual instruments.

The judgment is against the weight of evidence and results in manifest injustice, as it enforces obligations derived from forged and void documents.

(i) Whether a court exercising civil jurisdiction may lawfully determine and enforce rights or liabilities founded on documents alleged to be forged, without first determining the authenticity of those documents or referring the matter to the proper criminal jurisdiction.

(j) Whether an instrument that has not been executed by the named borrower or mortgagor can give rise to a valid and enforceable contractual obligation or mortgage under Victorian law.

(k) Whether reliance on a forged Letter of Offer and Mortgage constitutes a fundamental jurisdictional error rendering the judgment void ab initio.

(l) Whether the trial judge's failure to address forensic and contemporaneous evidence of forgery amounts to a denial of procedural fairness and breach of the duty to give adequate reasons.

(m) Whether the enforcement of orders based on forged or unexecuted instruments is unconscionable in equity and contrary to the Australian Securities and Investments Commission Act 2001 (Cth) s 12CB and the equitable maxim that "he who seeks equity must do equity."

(n) Whether the trial judge erred in treating the Letter of Offer as an enforceable loan contract in the absence of valid execution, contrary to the Property Law Act 1958 (Vic) and common-law requirements of consideration and consent.

Annexure B: Proposed Grounds of Appeal to 2 October 2025 Application

(a) Error in law in refusing to admit and consider expert evidence of forgery.

(b) Error in law and principle in permitting Plaintiff's amendments while refusing Defendant's amendments.

(c) Error in striking out the Counterclaim alleging forgery and misrepresentation.

(d) Denial of procedural fairness and failure to afford equality of treatment between parties.

[1] McKenzie v McKenzie [1970] 3 WLR 472. See also Vella v Wybecca Pty Ltd [2014] VSC 443 (Hargrave J).

[2] Australia and New Zealand Banking Group Ltd v Nguyen (Supreme Court of Victoria, Steffensen AsJ, 25 June 2024), [33] ('Summary Judgment Reasons').

[3] Summary Judgment Reasons, 25 June 2024, [24]-[25].

[4] Summary Judgment Reasons 25 June 2024, [94].

[5] [2024] VSCA 172.

[8] (1992) 66 ALJR 793.