Roskott v Commonwealth Bank of Australia

Judgment 1BASTEN JA: In May 2006 the Commonwealth Bank entered into an agreement with the applicants pursuant to which the Bank advanced to them a sum of $970,000. The advance was secured by a first mortgage over a property jointly owned by the applicants at Frasers Road, Mullumbimby. In October 2012, the applicants defaulted in making repayments under the agreement. 2On 11 May 2013 the Bank commenced proceedings in the possession list in the Common Law Division. It sought leave to issue a writ of possession and sought a judgment against the applicants in an amount in excess of $1 million. On 11 June 2013 the applicants filed a defence. 3On 10 February 2014 solicitors for the Bank wrote to the applicants noting that the defence appeared to be without merit and was liable to be struck out. The applicants were invited to save further costs by consenting to a judgment against them. They did not accept that proposal. 4On 14 March 2014 the matter came before Davies J in the Common Law Division. Davies J delivered an ex tempore judgment, ordering that the defence be struck out and the Bank be given leave to apply for default judgment forthwith: Commonwealth Bank of Australia v Roskott [2014] NSWSC 246. On 19 March 2014 the Bank obtained judgment in its favour and an order for possession. 5On 29 June 2014 the applicants filed a summons seeking leave to appeal from the orders made by Davies J striking out their defence. No notice of intention to appeal was given in a timely fashion and the summons is therefore significantly out of time. In its summary of argument in response to the application, the Bank contended that no extension of time should be permitted or, in the alternative, leave should be refused, on the basis that no error had been identified in the judgment below, nor had any plausible defence been put forward. 6Before the primary judge, the applicants argued that the dispute had been "settled" on a somewhat eccentric basis. It involved the alleged acceptance (by default) by the Bank of a "bill of exchange" proffered in satisfaction of the "contract" between them and the Bank. The stated consideration for the bill was $1. In the middle of the bill, though with no apparent relevance to any operative clause, an amount of $1,083,754.89 appeared. The bill was set out in a manner which gave the appearance of a legal document, but was, in effect, nothing of the sort. It may aptly be described as fanciful nonsense. 7The primary judge noted that a similar document had been produced in other proceedings and dismissed as "plainly worthless": Rural Bank Ltd v Lloyd [2013] NSWSC 1214 (Adams J). The primary judge held the same view and was undoubtedly correct to do so. There being no other matter of substance raised by way of defence, he was correct to strike out the defence as filed. 8In the absence of any substantial defence being raised on this application, and subject to one further procedural matter addressed below, the application is without merit and leave would have to be refused. Because the applicants require an extension of time, the proper course is to refuse that indulgence. 9The further procedural matter arises from the dispatch by the first applicant, Mr Jan Roskott, of an email addressed to the Registrar of this court dated 23 September 2014 and received at 2:04pm. The email read in full: "Dear registrar, I am party in this matter (Jan E Roskott). We have been allocated a listing for your appeal on 25 Sept 2014, 3.15 pm. Unfortunately, I have to urgently request an adjournment. I have to make a business trip for my employer overseas (Singapore and NZ). A trip I sadly cannot postpone and would jeopardise my employment if I would. I therefore have to request the ability to have this matter adjourned, most preferably for 3 weeks? Please respond and please instruct me whether I have to inform the other party or whether this is done by you. Apologies for the inconvenience". 10The Registrar responded within 24 hours in the following terms: "Dear Mr Roskott I refer to your email received in the Registry yesterday afternoon. Any application for adjournment of the proceedings tomorrow will be dealt with by a judge of the Court in the presence of both parties. You must give notice to the respondent. Unless the adjournment is by consent, you will need to establish facts and circumstances which would warrant the Court not determining the matter tomorrow afternoon at the listed time of 3.15pm. If you do not appear in person or instruct a lawyer to appeal on your behalf, the Court will consider an application for your wife to represent you. Any application for an adjournment must be based on affidavit evidence providing sufficient detail to warrant the order sought. It is your responsibility to give notice of the application to the respondent and to serve on the respondent any evidence on which you seek to rely. If you do not appear, and if there is no adjournment granted, the application for leave to appeal may be disposed of in your absence. Given that you sought to appear for your wife (the second applicant) when the matter was before the Court on an earlier occasion, the Court will assume that you will give notice to your wife of the application and this response." Yours sincerely," 11On the hearing of the application counsel for the Bank indicated that there had also been notice given to the Bank by way of a letter sent by email to his instructing solicitor (Mr Pillay) on 24 September 2014 at 4.55pm; that is, a letter dispatched after, one infers, Mr Roskott had received the response from the Registrar. The letter was in the following terms: "Unfortunately, we have had to request an adjournment of tomorrow's proceedings. Due to our work, we have to travel interstate for 10 days. We have tried to avoid this trip or postpone it as we wanted to get closure on this proceeding but our employer does not agree to this. We therefore ask you to consent to our request to postpone the hearing with 3 weeks or so? The Court of Appeals registry instructed us to ask you for your consent. Please inform me asap if you are agreeable to this so we can inform the registry/court." 12It may be noted that in this letter a somewhat different explanation was given to that which was given to the Registrar as the reason for the need to request an adjournment, namely, that both of the applicants were to travel interstate for ten days. As with the email to the Registrar, which asserted an intention of the first appellant to travel overseas, no indication was given as to the nature of the proposed business, when the trips were planned or when either party was due to leave. Mr Pillay replied to the applicants separately in terms which indicated that the Bank did not consent to any postponement or adjournment of the proceedings and would seek to have this Court hear and determine the matter today. The letter noted that, if the applicants or their legal representative did not appear, the hearing might proceed and orders be made in their absence. They were advised that if they had concerns regarding their legal position they should seek independent legal advice. 13When the matter was called on for hearing there was no appearance for the applicants; the applicants were called outside the Court with no response. 14The appropriate course to take in these circumstances is that which was adopted by the Court in Kyriakou v Long [2014] NSWCA 308. In that case the applicant also failed to appear, the Registrar having been advised early on the morning of the hearing by a housemate that the applicant was ill. The application for an adjournment was refused and the application for leave to appeal dismissed. All parties, including, but not limited to, litigants in person, should understand that proceedings listed in this Court will not be vacated on the basis of an email communication to the Registrar at short notice. Where the application before the Court does not appear, on the basis of the documentary material filed, to have reasonable prospects of success, it is almost inevitable that the proceedings will be disposed of adversely to the applicant's interests. Where such adverse orders are made in the absence of a party the Court has power to set aside or vary such an order: Uniform Civil Procedure Rules 2005 (NSW), r 36.16. Generally, however, such a power would only be exercised, upon an applicant - (a) seeking by notice of motion to vary the order made; (b) the motion being supported by affidavit evidence annexing all relevant documentation (such as a detailed medical certificate demonstrating incapacity), and (c) material demonstrating reasonable prospects of success in the substantive application before the court. Where such steps have been taken expeditiously and with proper notice to the other party, the court will entertain an application to vary an order made in the absence of the applicants. Given the existence of such a power, the desirability of disposing of proceedings when they are listed for hearing, and where they appear to have no merit, is a consequence of the need to protect a respondent from wasted costs. 15Applying these principles, and noting that the proposed application for leave to appeal has no apparent prospects of success, the Court makes the following orders: (1) Dismiss the summons. (2) Order the applicants to pay the respondent's costs in this Court. 16MEAGHER JA: I agree with Basten JA.