COLLIER v SENGOS SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRIESTLEY, POWELL and BEAZLEY JJA 3 June 1997, 25 June 1997 APPLICATION TO ADDUCE FRESH EVIDENCE — SERVICE OF ORIGINATING PROCESS — TRESPASS — CONVERSION — On appeal the appellants submitted: (1) by notice of motion: they should have leave to rely on fresh evidence; matters arising from proceedings Cl12247/96 should be included in the appeal; and, leave should be granted to amend the notice of appeal; (2) service of the originating process upon the first appellant had no effect as against the second appellant; (3) the trial judge erred in refusing to hear the appellants on certain issues; and, (4) the trial judge erred in refusing to award damages in respect of the appellants' claims in tort. Held: (1) the orders sought by the appellants in their notice of motion should be refused; (2) in the present circumstances it was not open to the second appellant to rely upon the claimed non-service of the summons upon her; (3) the grounds on which the appellants were not permitted to rely by the trial judge were grounds which, in any event, had no hope of success; and, (4) the appellants' claims in tort could at their highest sound in nominal damages only and the trial judge was entitled to make the orders that he did. Priestley JA This appeal comes about in the following circumstances. By mortgage dated 26 June 1992 the appellants, Mr and Mrs Collier, mortgaged the house in which they were then living, 44 Lerida Avenue, Camden, to Mr Sengos, the respondent. The mortgage was registered. Two subsequent variations of it were also registered. The appellants became in default under the mortgage. They asked the respondent for an extension of time to repay what they owed under the mortgage so that they could themselves sell the house and pay the respondent from the proceeds. The respondent waited a short time but on 3 May 1993, as plaintiff, filed a summons against the appellants as defendants in the Common Law Division seeking an order for possession of the mortgaged property and an order granting leave to the respondent to issue a writ of possession. On 8 May 1993 a fire in the mortgaged property caused considerable damage to it. It had been insured against fire by NRMA Insurance Ltd (NRMA). On 2 June 1993 the appellants commenced proceedings in the Equity Division of the Supreme Court against the respondent seeking an injunction to restrain him from exercising power of sale over the mortgaged property; on the same day their application was heard by Hodgson J. He noted that the respondent had by his counsel undertaken to the court he would not enter into any contract to sell the mortgaged property for the six weeks following 2 June 1993. Hodgson J recorded that the appellants had based their application on their expectation of the receipt of insurance moneys from NRMA from which they said they would be able to pay out the respondent within the four weeks following that day. Hodgson J expressed doubts whether in any event the appellants had shown any basis for obtaining an injunction, but, accepting the respondent's undertaking, stood the proceedings over to 14 July 1993. 2 UNREPORTED JUDGMENTS On 23 June 1993 the appellants were heard by Master Malpass in support of an application for a stay of the respondent's proceedings for possession. Master Malpass noted that the notice of motion had been filed on behalf of both appellants on 13 May 1993, that the summons for possession was based on default under a mortgage and that Mr Collier, the only one of the two appellants who appeared before Master Malpass, admitted execution of the mortgage and default. Master Malpass added that it was not disputed that the respondent was entitled to an order for possession of the land. He further noted that the respondent wished to proceed with the summons and Mr Collier sought to delay the making of an order pending the decision of the insurer. Master Malpass held that Mr Collier had failed to demonstrate an entitlement to a stay of proceedings and dismissed the notice of motion. On 6 July 1993 Mrs Collier signed and filed a cross-claim in the possession proceedings. This claimed: "(1) Nominal damages for an action of Tort, namely, Intentional Trespass to Goods; (2) Nominal Damages for an action of Tort namely, Conversion; (3)... compensation for damages in the amount of $50,000... or as the Court deems fit." On 14 July 1993 the appellants' adjourned injunction application came on for further hearing in the Equity Division before Hulme J. He noted that the appellants, in continuing their application for an injunction, relied on evidence which suggested trespass by the respondent on the property, damage of it by him, his having caused removal of dogs left at the premises by the appellants (who were no longer living in the house) and noted also a statement by Mrs Collier that she wished to challenge the validity of the mortgage. Hulme J said that none of the matters relied on by the appellants, even if established, would justify him in granting an injunction restraining exercise of power of sale. He referred to the summons for possession being listed for 23 July 1993, and directed that the appellants' injunction proceedings be consolidated with the summons for possession proceedings. The consolidated proceedings were heard by Ireland J on 23 July 1993. After a summary of the proceedings to that time, Ireland J said: "T have read and considered the matters set forth in the affidavits of Dominico Mosca of 30 April 1993, those of Paul Sheridan Sengos of 30 April 1993, 11 May 1993 and 16 June 1993 and the further affidavits of Dominico Mosca of 11 May 1993, 1 June 1993 and 28 June 1993 and also the affidavit of Michael Kevin Kirkness of 28 June 1993. On behalf of the defendants/cross-claimants I have read and considered the affidavits of Robert John Collier of 13 May 1993, 2 June 1993, 22 June 1993 and the affidavits of Maureen Louise Collier of 21 May 1993, 14 July 1993 and 23 July 1993. None of the material which has been put forward by way of affidavit or the matters put forward in address on behalf of the defendants Robert John Collier and Maureen Louise Collier touches upon or controverts the entitlement of the plaintiff to the orders for leave to issue writs of possession other than a claim by Mrs Collier that she was not properly served as an individual as provided by Pt9 r19 of the Supreme Court Rules. It is conceded by the defendants that Mr Collier was served with originating process, the summons in question, but that this was not an effective service upon Mrs Collier. However, she does concede that the summons was brought to her attention on the day of its service upon her husband and she has twice appeared before the Prothonotary in answer to the matters which are the subject of this claim." URJ COLLIER v SENGOS (Priestley JA) 3 Ireland J then proceeded to deal with Mrs Collier's cross-claim. He said that the evidence relating to it established no more than that the respondent entered on the mortgaged land, this constituting (if anything) a bare trespass, and arranging with the RSPCA for two dogs at the property to be taken into RSPCA custody, which were later recovered by the appellants and returned to the mortgaged property. (The evidence also showed that to get the RSPCA to take the dogs the respondent had signed a form of surrender on an RSPCA form in which he declared he was the owner of the dogs and surrendered all his rights in them to the RSPCA. The appellants learned of the removal of the dogs to the RSPCA premises almost immediately, and regained possession of them the following day.) Ireland J said that the cross-claim supported "no cause of action which would sound in any damages other than of a most nominal nature". He then made an order for possession in favour of the respondent of the mortgaged property and gave leave to the respondent to issue a writ of possession not before 16 August 1993. He ordered the appellants to pay the respondents costs of the summons. He dismissed the appellants' cross-claim and said that "In the circumstances" he would make no order as to costs of the cross-claim. The appellants filed a notice of appeal containing four grounds. Ground 1 asserted that the summons for possession had never been served personally on Mrs Collier and that this invalidated all later proceedings on the summons. The second ground was that Ireland J did not allow the appellants to address on the issues in the summons for possession case. The third ground was that Ireland J was in error in finding there was no substance to the cross-claim. The fourth ground was that Ireland J was in error in stating in relation to trespass and conversion there had to be proof of damage. When the appeal came on for hearing there was a preliminary motion before the court by which the appellants asked, (so far as remained material to the appeal - some items in it had previously been dealt with): that they have leave to adduce fresh evidence, that they might include in the appeal a subsequent matter numbered Cl12247/96; and that the notice of appeal might be amended by including further orders among the orders sought. In my view leave should not be granted to the appellants to adduce any of the evidence to which they referred the court. It is all either irrelevant to any issue in the respondent's summons for possession or the appellants' cross-claim, or evidence which with reasonable diligence could have been obtained before and presented at the hearing before Ireland J, or both. The appellants sought in particular to press upon the court evidence in an affidavit of Mr M Pestano, sworn on 10 February 1997. In his affidavit he said that the respondent had admitted to him in May 1994 that he had lit the fire which had damaged the mortgaged property. He also said that on 13 February 1995 Mr T Bristow had introduced him to Mrs Collier and her daughter. A document was annexed to his affidavit which appears to be a photostat of a statement made by him to the police, dated 1 March 1995, which contained his allegation that the respondent had said, in respect of the mortgaged property, "I burnt it". The date 13 February 1995 is of some significance because it appears from Mrs Collier's affidavit of 21 April 1997 (one of those the appellants were seeking leave to adduce as evidence in the appeal) that on 13 February 1995 proceedings were being heard before Leslie AJ in the Common Law Division in which the appellants were making a claim against NRMA in respect of the fire at the mortgaged property. NRMA made a cross-claim against the respondent. There were other cross-claims of which the fourth was by the appellants against the 4 UNREPORTED JUDGMENTS respondent. By this, putting it shortly, they had claimed damages from him on the ground that he had been responsible for the fire. The appellants obtained judgment against NRMA for $219,724. NRMA appealed and this court (Clarke, Meagher, and Sheller JJA, 6 September 1996) upheld the appeal to the extent of reducing the judgment in favour of the appellants to $50,000, with interest. Amongst other issues decided in the appeal was what order the trial judge should have made on his findings concerning the appellants' cross-claim (the fourth cross-claim) against the respondent. It was held that that cross-claim should have been dismissed. An order was made accordingly. Relevantly to this issue leave had been sought in that appeal by the present appellants to rely on the same evidence of Mr Pestano as is sought to be adduced here. Leave had been refused. Mrs Collier informed the court in her address in the present appeal that special leave to appeal against this court's decision in the NRMA case has been sought in the High Court. Apparently the appellants will be seeking to raise in the High Court the question of their cross-claim against the respondent for damages for causing their house to be damaged by fire. In the meantime, however, this court's judgment in that case stands. It seems to me to preclude any attempt by the appellants to raise that issue in the present appeal, even if it were relevant. This is a further reason requiring the court to refuse leave to adduce Mr Pestano's evidence. The other affidavit which the appellants sought leave to use as evidence in addition to those of Mrs Collier and Mr Pestano already mentioned was that of her husband sworn 6 February 1997. Apart from what I have said about Mr Pestano's evidence, I think I need say nothing more about the materials than that, having read them, they do not seem to me to be likely to be of any material help to the appellants' case, even if relevant, and even if they could otherwise be made to fall within the accepted guidelines for the reception of further evidence in an appeal. This comment is made because of the limited issues raised by the matters before Ireland J. The appellants indicated in the submissions Mrs Collier made to the court that they have a much wider view of relevance than seems to me to be appropriate in the present case. Mrs Collier submitted, in effect, that anything showing that the respondent had made a misstatement of fact at any time or anything going to his credibility should be allowed to be put before the court in the appeal, whether or not any attempt to raise the issues to which that material related had been made before Ireland J or whether it would have been admissible before him. The request for leave to include in the appeal matters arising from proceedings in the Common Law Division numbered Cl12247/96 was to enable the appellants to raise questions concerning the way in which the respondent had gone about obtaining an assessment of the amount of costs due to him under various costs orders in his favour. C112247/96 was the number given to the proceedings under the current system of costs assessment. It seems to me clearly preferable to leave the appellants to pursue whatever avenues are provided by the current procedures to follow up any remedies they may have if any of their complaints are soundly based than to let them litigate those matters in this appeal.. The materials they wished to put before the court on this matter first of all indicate they may have difficulties in making good their complaints and second, that those materials would raise questions of fact which it is not appropriate for this court to become engaged in solving. URJ COLLIER v SENGOS (Priestley JA) 5 The further orders the appellants wished to include by amendment in those sought in their notice of appeal do not seem to me to be proper orders to be sought in the circumstances. In any event in view of the conclusions I have reached concerning the appeal the appellants would not be able to establish any basis for them. I would therefore not make any of the orders sought by the appellants pursuant to their motion. I now come to the appellants' four grounds of appeal. The first ground rested on Mrs Collier's assertion that she had never been served personally with the respondent's summons for possession. She submitted that the rules required such service and that unless the rules were complied with the court had no jurisdiction against her in adjudicating upon the summons. It is plain from all the materials in the appeal papers that Mrs Collier was at all times aware of the summons having been issued, of one summons having been served on her husband, and of the contents. Additionally, and of basic importance, Mrs Collier took part in important aspects of the proceedings and herself filed a cross-claim in them. In my opinion it was not open to her in the hearing before Ireland J to rely on the claimed non service of the summons upon her. Mrs Collier's submission in regard to the second ground of appeal was that the appellants had not been heard by Ireland J on issues in the summons for possession case upon which they wished to address. She said there was no transcript of what took place before Ireland J. When asked what it was that the appellants had wished to address on which Ireland J did not allow them to do, it was said that it was the invalidity of the mortgage. The chief ground upon which it was claimed that the mortgage was invalid was that it contained a clause which said the mortgagors would observe provisions in a Memorandum filed in the Land Titles Office being number W28026, which was wrong, because the Memorandum intended to be referred to was numbered W828026. In my opinion the mistake in the number is not something which invalidates the mortgage. Other points were taken in regard to the submitted invalidity of the mortgage which relied on the way in which the respondent's solicitor had signed the mortgage on his behalf. I do not think there is anything in these points. On the claim that the appellants were not heard by Ireland J on the invalidity point, I would not be prepared to deal with the case on the basis that the judge in some unfair way shut out the appellants from saying what they wanted to say unless there was material before this court clearly showing that some such thing had happened. The material before the court does not at all persuade me that any such thing happened. In any event, the ground which the appellants say they wished to argue before Ireland J and were not allowed to seems to me to be one that had no hope of success. The third and fourth grounds of appeal were directed to showing that on the materials before him the trial judge should have awarded damages on the trespass or conversion claims or both. The appellants submitted that trespass was clearly established and that it was unnecessary to prove damage in order for the claim to succeed. There were two forms of trespass relied on, one the fact that the respondent went on to the land and the other that he caused the dogs to be taken away. As to the first, s60 of the Real Property Act does not appear to have been raised before Ireland J, but was mentioned to the appellants in the oral argument in this court, and would seem to authorise the respondent's presence on the land. Further, the approach taken by his Honour seems to me to be a justifiable one; if 6 UNREPORTED JUDGMENTS the appellants were entitled to damages, in the circumstances it could be nominal damages only and it would have been within the court's discretion to make the costs order that it did. Thus, on the way the matter was conducted before Ireland J I would not be prepared to uphold the appeal because of matters which seem to me, at the very best from the point of view of the appellants, to be entirely formal. As to the dogs, on the materials before Ireland J, I do not think it was made out that there had been a trespass. Possibly the elements of conversion were shown with the exception of the necessary element of damage. On my understanding of the materials that were before Ireland J, he was entitled to take the view that there was no evidence of damage arising from the taking away of the dogs from the mortgaged property by the RSPCA and their return to the property by the appellants. It is hard to imagine that the appellants, had they attempted to produce evidence of damage, could have proved anything more than minimal damage. Mrs Collier sought to make up for the absence of evidence before the trial judge by making statements from the Bar table in this court, but I do not think the court should rely on such material, at this stage of the proceedings, in considering whether the trial judge was in error. In my opinion the appeal should be dismissed with costs. Beazley JA I agree with Priestley JA. Powell JA I agree with Priestley JA. Appeal dismissed with costs. Counsel for the Appellant: IN PERSON Counsel for the Respondent: P STONE Solicitors for the Appellant: IN PERSON Solicitors for the Respondent: HOLMES & BEVAN