This judgment concerns a notice of motion filed on 1 September 2022 seeking summary judgment of a claim for possession of land at Mandalong, based upon default in payment of loan amounts said to be owing under a mortgage.
[3]
Background
The plaintiff, Westpac Banking Corporation ("Westpac"), seeks possession of the subject property pursuant to a mortgage the defendant, Ms Glynn, was said to have been entered into on 4 March 2009. The mortgage was said to secure two loan facilities proffered to Ms Glynn being two loan accounts, one with a limit of $150,000 and the second with a limit of $280,000.
The terms of the loan facilities were varied from time to time including by an extension of their repayment date. Clause C2 of the common provisions to the mortgage contained a term, often included in mortgages, that provided if there was a failure to make a payment due, and the failure continued for at least seven days, then the lender may notify of the failure, and if that failure continues for at least 31 days up to service of the notice, then the lender may take possession of the property.
Westpac contends that by 28 October 2020 Ms Glynn was in default under the first loan account for an amount of $17,322.34, which had been outstanding for a period of at least seven days. On the following day it served a notice, both under section 57(2)(b) of the Real Property Act 1900 and section 88 of the National Credit Code in respect of that default which was not remedied within the time period stipulated.
With that breach still not having been remedied, Westpac commenced these proceedings by filing a statement of claim on 21 July 2021, in the short‑form seeking possession. There were difficulties with service and substituted service was effected in early March of this year. After some exchange of materials, a defence was eventually filed on about 15 August 2022. It was the terms of that defence that warranted this summary judgment application.
The notice of motion was first listed for hearing before me on 1 December 2022. On that day Ms Glynn indicated that she had not received a copy of the court book. The matter was adjourned until today. When the matter was called on today, it was clear that Ms Glynn had received the court book.
In the meantime, Ms Glynn had filed a lengthy affidavit in support of an adjournment application to which I will come to shortly. Also, during the course of her submissions, she renewed an application for the adjournment and also sought leave to call a witness to give evidence. It is appropriate that I first record my reasons for refusing the adjournment and leave to call the witness.
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Refusal on Adjournment
When the matter was first listed on 1 December 2022, Ms Glynn sought to be represented in effect by a McKenzie friend, Mr Balogh. At the time I heard submissions on whether Mr Balogh would be entitled to represent Ms Glynn. Mr Balogh it seems is both a litigant and a form of unqualified advocate. He is pursuing, in amongst other places, a case in Victoria, which I will attempt to explain in more detail later, but the essence of which appears to be an allegation that there was an attempt to subvert the electoral process by the Premiers of various States, which is said to lead to some result whereby there is no effective law of this country.
Given the entirely specious nature of every aspect of that contention, I refused Mr Balogh leave to appear as a McKenzie friend. In the ordinary course the Court will be sympathetic to an unrepresented person, facing a possession claim, who seeks some assistance. However, where the assistance is directed towards the propagation of baseless and specious legal propositions that will only serve to waste time and cause further expense, the Court will not allow that object to be achieved.
During the course of submissions this morning Ms Glynn sought leave to call Mr Balogh to give oral evidence. When I questioned her as to what the subject of that evidence would be, it became clear that it was intended that Mr Balogh would embark upon a discussion of the case he is pursuing in Victoria, its asserted relevance to this matter and associated topics.
In short, what was sought to be done was to have Mr Balogh give evidence of the matters that it was sought to have him address the Court about on 1 December 2022 when I refused him leave to appear. Further, each and every one of the matters that Mr Balogh was supposed to give "evidence" on were not questions of fact, but questions of law, which witnesses do not address. In any event those questions were misconceived.
The application for an adjournment, which was set out in the affidavit sworn by Ms Glynn on 13 December, was related to the application to call Mr Balogh to give evidence. In that affidavit Ms Glynn annexes various documents concerning certain proceedings in Victoria which, as I understand it, are again directed to this specious proposition that something occurred there with the elections involving the conduct of the Premiers that renders them all void. As one would expect, to date this contention has been entirely unsuccessful.
The basis of the adjournment was said to be that any appeal from an adverse decision at first instance in Victoria should be allowed to run before this matter is determined. Given that there is no possible legal or rational reason for connecting whatever is said in those proceedings to the subject matter of these, proceedings, I declined to grant the adjournment.
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Summary Judgment
Rule 13.1 of the Uniform Civil Procedure Rules 2005 provides as follows:
"(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief--
(a) there is evidence of the facts on which the claim or part of the claim is based, and
(b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,
the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.
(2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.
(3) In this rule, a reference to 'damages' includes a reference to the value of goods."
The test for summary judgment is generally a strict one in that if there is some reasonably arguable defence, summary judgment will be refused and the matter will be allowed to proceed.
To the extent that the rule refers to the necessity that someone on behalf of the relevant plaintiff give evidence of their opinion to the effect that there is no defence, then that has been complied with.
I have already outlined the essence of Westpac's claim. The relevant facts that I have already identified are proven by the various affidavits that were tendered, subject to one matter I will address shortly. Those affidavits demonstrate the basal facts that Westpac lent money to Ms Glynn, secured by mortgages, that those mortgages conferred on Westpac a right to possession in the event of an unremedied default after the time periods for the notices that I have referred to lapsed, that there have been such defaults and notices and that a right to possession has arisen.
There is material suggesting that, since the proceedings commenced, there have been some various payments made, including a payment $1,132 made on 21 May 2021 in relation to the first loan account and $1,701.27 made on 27 January 2022 in relation to the second loan account. To the extent there is material concerning the current state of indebtedness, it does not suggest that the level of arrears is severe, although no doubt interest is continuing to accrue.
In oral submissions Ms Glynn raised a matter concerning the execution of the various documents. The matter raised was that the documents were not signed validly on behalf of Westpac. Each of the relevant contractual documents that have been tendered on this application, specifically the loan account and the mortgage, do bear a signature of a representative of Westpac, so I found that contention a bit difficult to understand.
It does seem at one point that Ms Glynn, with the assistance of Mr Balogh, had written to Westpac seeking the originals of the contractual documents. They were provided with certified copies. The copies were certified by a solicitor acting for Westpac. In submissions Ms Glynn said that someone had "defiled" the documents. That is not a correct description of what certifying a relevant copy is. Those documents, which were tendered on this application, reveal that someone with a power of attorney on behalf of Westpac had signed the registered mortgage, the memorandum, and the loan accounts.
Otherwise, I note that Ms Glynn accepted that Westpac had in fact lent the money that was secured by their mortgage. In those circumstances I do not accept that there is any arguable basis for contending that there was no binding agreement between Westpac and Ms Glynn, specifically an agreement, the effect of which is that if the payments went into arrears and were unremedied after notices were given, then a right to possession would arise.
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The Defence
I referred earlier to the fact that a defence has been filed. The defence contains two paragraphs. The first paragraph alleges that the solicitors for Westpac have been in possession of what is said to be criminal charges pending "against the Premier of Victoria concerning the 2002 federal election writ". It also contends that they are in possession of similar documents concerning the Premier of New South Wales. Beyond that they are legally and grammatically nonsensical.
The various affidavits filed on behalf of Ms Glynn, which annexe documents concerning various other cases, contain a mish-mash of sentences, some of which appear to be related to those legal propositions. They also appear to be related to the litigation in Victoria that I have mentioned.
Doing the best it can, Westpac appears to identify this as a defence to the effect that, by various changes effected by State legislation, somehow the Queen was unlawfully removed as head of state, which in turn affected the legality of the issuing of election writs for the 2022 federal election and apparently as well for the Victorian election. These propositions have been comprehensively rejected by the various courts that have considered similar arguments (See Re Culleton [2016] FCA 1193; McFarlane v McFarlane [2021] VSC 197).
The even more puzzling question is what they have to do with a claim for possession by Westpac for moneys said to be owing under a mortgage in New South Wales. As best as I can understand it, the contention appears to be that all these alleged difficulties with the various elections have the result that there is no relevant "law" for which this Court can give effect to. The simple and short answer to that proposition is that no part of the jurisdiction of this Court in relation to this matter is in any way affected by any possible irregularity in the issue of federal election writs or the writs for the election in Victoria.
All the great amount of material that Ms Glynn has assembled about this, and with the assistance of Mr Balogh, is entirely irrelevant to this relatively straightforward proposition that, having borrowed money under a mortgage and not being able to effect repayments, then, after a notice to remedy was given and not complied with, a right to possession has arisen.
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Other Matters
Within the material filed by Ms Glynn various other propositions are asserted. One part of her submissions refers to a passage in Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [140] and following, in which Bell J sets out the capacity and limits upon courts assisting unrepresented persons. In a similar vein today, in referring to my refusal to allow Mr Balogh to give evidence, Ms Glynn stated that she had a right to be represented and a right to call witnesses.
The right to be represented is an important right, but it is a right to be represented by a legal practitioner, not anyone of a person's choosing. This is important because a legal practitioner has important obligations to the Court, including obligations not to raise and conduct specious legal arguments. No proper legal practitioner would be permitted to put the arguments that are sought to be put as a defence by Ms Glynn.
Similarly, the right to call witnesses is a right to call witnesses about matters of fact relevant to the case that is in issue. It is not a right to call someone who has been refused the capacity to address the Court on specious legal matters to somehow again address the Court on those matters under the guise of being a witness.
To the extent that there was any substantive matter that Ms Glynn sought to raise against the bank's claim, it was the matter concerning the documents, which I have done my best to elucidate and then consider.
[8]
Conclusion
Having regard to the requirements of UCPR 13.1, there is clearly evidence of the facts on which the claim for possession on Westpac is based. There is, as I have said, evidence of an opinion held that Ms Glynn has no defence. Having considered all the evidence I am satisfied that she has no defence, that is, no arguable defence to the claim for possession.
These proceedings having been on foot for over 18 months and Ms Glynn having been an active defendant for at least nine months, there is no proper basis for denying Westpac's claim for possession. Given that the subject property is Ms Glynn's home and the time of year, I would propose to stay any writ of possession until a time in the middle of February 2023.
Accordingly, the Court orders:
1. Judgment for the plaintiff Westpac Banking Corporation ABN 33 007 457 141, for possession of the land comprised in Folio Identifier 89/755238 being the land situated at and known as 35 Walls Lane, Mandalong in the State of New South Wales.
2. Writ of possession not to issue until 14 February 2023.
3. Defendant to pay the plaintiff's costs of the proceedings.
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Decision last updated: 20 December 2022