Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 Hearing dates: 08 August 2019 Date of orders: 08 August 2019 Decision date: 08 August 2019 Before: Meagher JA Decision: 1. Application in paragraph (1) of the motion dated 7 August 2019 for a stay of execution of the writ of possession is dismissed. 2. Applicant pay the respondent's costs of that application. Catchwords: PROCEDURE – writ of possession – stay of execution – where default judgment obtained by mortgagee – where application for vacation and stay of execution dismissed by registrar in common law division – where motion to set aside registrar's decision dismissed by Supreme Court Judge – no arguable grounds of appeal – no question of principle Legislation Cited: Supreme Court Act 1970 (NSW) ss 46, 46B, 121 Cases Cited: Meads v Meads 2012 ABQB 571 K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 Category: Procedural and other rulings Parties: Warren Ronald Wichman (Applicant) Pepper Finance Corporation Limited (Respondent) Representation: Solicitors: Applicant (self-represented) Dentons Australia (Respondent) File Number(s): 2019/245247 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2019] NSWSC 1009 Date of Decision: 07 August 2019 Before: Rothman J File Number(s): 2018/227089 [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.] EX TEMPORE Judgment 1. MEAGHER JA: The application before me is for urgent relief by way of the stay of a writ of possession. The motion also seeks leave to appeal from orders made by Rothman J on 7 August, 2019. That application for leave must be dealt with by at least two Judges of Appeal: Supreme Court Act 1970 (NSW) ss 46(3), 46B(1)(a), 46B(2). Accordingly, the reasons which follow only deal with the application for a stay. 2. This is an application by Mr Wichman to stay execution of a writ of possession presently proposed to be executed after 2pm this afternoon. The property is land and premises in Wollonyuh Crescent, Horsley. That application is made in proceedings, brought by way of summons, for leave to appeal from Rothman J's order dismissing the applicant's notice of motion of 5 August 2019 in the underlying proceedings (2018/227089). That motion sought orders, including that the execution of the writ of possession be stayed and that default judgments for possession and a money sum in favour of the respondent (Pepper Finance) be vacated or set aside. It also sought an order challenging or appealing orders made by Registrar Bradford on 14 June 2019. 3. Rothman J's reasons for dismissing that application became available this morning in a draft form shortly before this hearing commenced; and a further "unrevised ex tempore judgment" became available during the course of the hearing. The parties were provided with the draft reasons and later with the unrevised version of his Honour's reasons. 4. It is convenient now to record briefly the history of the underlying proceedings to this point. 5. By a loan agreement dated 15 June 2015, Pepper Finance agreed to advance $330,860 to Mr Wichman. That loan was to be secured by a registered first mortgage over the Horsley property. The loan agreement was signed by Mr Wichman on 15 June 2015. It contains a certificate by Mr Wichman that on the same day he obtained legal advice from a Mr Ben Pike of DGB Lawyers as to the nature and effect of that document and, relevantly, of the mortgage. 6. That agreement records that the purpose of the loan was to refinance an existing housing loan, that the security was to be a registered first mortgage over the property, and that on settlement funds were to be paid in part to the Illawarra Mutual Building Society, in an amount of $173,942, with the balance, $149,893, to be paid to Dallas Wichman. On settlement Dallas Wichman's existing interest in the property was to be transferred to Mr Wichman, who as sole owner would mortgage the property to Pepper Finance. 7. The mortgage records that it was also signed by Mr Wichman in the presence of Mr Pike and recites in the passage above Mr Wichman's signature that Pepper Finance had agreed to lend the amount of $330,860 to him, or at his request. It is then apparent from the copy of the certificate of title issued on 4 July 2015 that the relevant interest in the land was transferred to Mr Wichman and that the mortgage was granted to the lender. 8. On 24 July 2018 the respondent commenced proceedings against Mr Wichman for possession of the Horsley property and for judgment for a money sum, relying on a default under the loan agreement – being a failure to make a repayment or repayments due in or before May 2018. The fact that such a payment was not made is not contested, and the reasons given for Mr Wichman not doing so include the lender's failure to respond to a series of requests in a letter written to the chief executive officer of the lender in August 2018. One difficulty with this asserted reason is that those particular requests were made three or so months after the alleged failure to make the relevant payment. 9. The statement of claim was served in accordance with an order for substituted service made on 26 September 2018. On 27 November 2018 the respondent obtained default judgment against Mr Wichman for possession of the land and for a money amount of $344,112. It then sought and obtained, on 2 January 2019, the issue of a writ of possession of the land. 10. At that point, and after receiving a notice to vacate the property dated 11 January 2019, Mr Wichman appeared in the proceedings. (That notice indicated that the sheriff proposed to move to evict occupants from the premises after 9.30am on 21 February 2019). On 19 February 2019 he filed a motion for a stay of execution of the writ and an order that the default judgment be vacated. 11. After a short hearing before Davies J on 20 February 2019 that motion was adjourned for directions on 20 March 2019, further adjourned to 15 May 2019 and on that day fixed for hearing on 14 June 2019, when the motion was dismissed by Registrar Bradford. 12. There is not made available to this Court by the parties either the registrar's reasons or any transcript of the proceedings before the registrar, although it is not suggested that a transcript of the proceedings or the registrar's reasons could not have been obtained. What is accepted is that the registrar gave reasons for his order dismissing Mr Wichman's motion. 13. In the period up to 23 March 2019 the respondent agreed to a stay of execution of the writ to permit a complaint made by Mr Wichman to the Australian Financial Complaints Authority to be dealt with. During the same period Mr Wichman sought the assistance of the Wollongong Legal Aid Office, although its instructions appear to have been withdrawn after a period of one or two weeks. 14. Mr Wichman made two affidavits in support of his motion of 19 February 2019. The first was made on 12 February 2019 and the second on 29 May 2019. Each of those affidavits is preoccupied with questions concerning the jurisdiction of the Supreme Court to deal with the subject matter of the proceedings and as to the application of any relevant laws, both statutory and common law, and either of the Commonwealth or of the State of New South Wales, to Mr Wichman in his "relevant" capacity which is described in those affidavits as being a "flesh and blood man". 15. On 5 August 2019 Mr Wichman filed a second notice of motion in response to a further notice from the sheriff's office advising that it proposed to evict the occupants of the property after 2pm today, 8 August 2019. As is mentioned above, that motion challenged the decision of Registrar Bradford and sought a stay of the writ of possession. (As to the power of a Judge of the Court to set aside or vary a judgment or order of a registrar, see Supreme Court Act 1970 (NSW) s 121(3)). Mr Wichman made a further affidavit in support of that application on 5 August 2019. 16. The argument before Rothman J is sufficiently recorded in his Honour's final reasons: Pepper Finance Corporation Limited v Wichman [2019] NSWSC 1009. At [12] he records: It is unnecessary to go to the merits of the application that was originally dealt with by the Registrar. Essentially, as I understand it, from the submission of the applicant, the applicant argues that the Court can only exercise jurisdiction en banc, and there has to be a panel of judges that exercises jurisdiction. His Honour rejected that argument which was the only argument put to his Honour as to why the Registrar erred in rejecting his earlier motion, and accordingly dismissed the motion of 5 August, 2019. 1. In support of his motion in this Court, Mr Wichman has read or relied on the three affidavits filed in the proceedings below, as well as his short affidavit filed in this Court on 7 August 2019 which states: 1. I am the deponent. Let it be known, that I was not given Due Process and the judge was Bias. 2. The matter could not be heard. He would not confirm a sworn Oath, or a Bond. 1. It is convenient at this point to record some matters concerning the content of Mr Wichman's earlier affidavits. Those affidavits make a number of assertions as to the application of Australian common law and statutory law to the deponent in language which is strikingly similar to that described in the judgment of the Court of Queen's Bench of Alberta, Meads v Meads, 2012 ABQB 571, as "Organised Pseudolegal Commercial Argument": see also K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] (Black J). 2. The assertions made in those affidavits include: 1. That Mr Wichman is not bound by any law, statutory or otherwise, unless he has personally consented to it. Paragraphs 3 and 4 of his affidavit of 5 August 2019 say: 3. Be it known, as always, One [Mr Wichman] stands in Common Law as a flesh and blood man standing on the land, reserving both One's Common Law of England rights and Unalienable rights. One reserves the rights of Due Process and Equal Protection of the Law, the right by any claim to heard by jury in a court of record according to the Common Law of England and the Commonwealth of Australia Constitution Act (U.K.) 1901. 4. Be it known, One is also free from standing under any statutes, codes, ordinances, or rules conflicting with the Common Law of England and the Commonwealth of Australia Constitution Act (U.K.) 1901. and those to which One does not consent to. 1. That Mr Wichman does not recognise the authority or jurisdiction or judgment of a registrar or single judge of the Supreme Court, and also, it would seem, of a judgment of any Court applying any law to which he has not consented. Paragraph 5 of his affidavit of 29 May 2019 and para 6 of his affidavit of 5 August 2019 say, respectively: 5. Be it known, One does not understand nor does One recognise the authority, jurisdiction or judgement made by a single judge. One man cannot stand in judgement over another. One does not understand nor does One recognise a 'default judgement'. One understands that both violate natural Unalienable Rights, and the Commonwealth of Australia Constitution Act (UK) 1900, which is the foundational legal document for British colony Law in Australia. "The trial on indictment of any offence against any law of the Commonwealth shall be by jury…" Ref: Commonwealth of Australia Constitution Act (UK) 1900 Sect. 80. "No man can legally be bound by judgment given behind his back and without opportunity of being heard." Ref: Commonwealth of Australia Constitution Act (UK) 1901 Quick & Garran P.614 Sect. 206. 6. Be it known, to all governments, government and public officials, courts and other parties, that One is a natural, free born, free man, self-governing, without subjects. One is neither subject to any entity anywhere, nor is any entity subject to One. 1. That Mr Wichman does not accept that he is bound by the default judgments or the subsequent orders dismissing his applications, for the reasons stated in paras 5 and 6 of his affidavit of 29 May 2019. 5. [set out above] 6. Be it known, One understands that default judgements are also a violation of the Common Law as set out in the Criminal Code Act 1995 Sect. 268/10. 1. That Mr Wichman is not bound by the loan agreement. In this respect paras 8 and 9 of his affidavit of 5 August 2019 say: 8. Be it known as such, One understands the hidden or unrevealed contracts that supposedly create obligations to perform, for persons of subject status, are inapplicable to One, and are null and void. 9. Be it known any such participation does not constitute "acceptance" in contract law, because of the absence of full disclosure of any valid "offer", and voluntary consent without misrepresentation or coercion, under contract law. Without a valid offer, acceptance and consideration, knowingly entered into by both parties, there is no "meeting of the minds", and therefore no valid contract. Any supposed "contract" is therefore void, ad intio. 1. In the course of argument I pointed out to Mr Wichman that notwithstanding that he had had many opportunities to do so, he had not filed or otherwise produced any proposed defence or cross‑claim dealing with the underlying claims for the money judgment and for possession. I also pointed out that, except for some very uncertain and unclear references, there was no attempt in any of his three affidavits in the proceedings below to identify such a defence. In response Mr Wichman raised two matters as justifying a stay of execution to permit him to set aside the default judgment and propound a defence to the underlying claim. 2. The first was that he had not properly been served with the court documents leading to the issue of the Notice to Vacate in January 2019. The second was that he challenged the legality and efficacy of the loan agreement and mortgage. 3. In relation to the first argument, the record and evidence relied on in the court below satisfies me that an order for substituted service was made and that service of all of the relevant documents was made in accordance with that order. 4. In relation to the argument concerning the loan agreement, Mr Wichman asserted that the agreement was unenforceable or liable to be set aside, including for misleading conduct concerning, or non‑disclosure of, the fact that the lender proposed to fund the loan advance by borrowings, secured by its interests in the loan agreement and mortgage. It was also suggested that this "securitisation" of the loan by the lender was sufficient to constitute the repayment by Mr Wichman of the loan. There is no evidence supporting the first of these contentions and the second is plainly wrong. 5. Finally, it was suggested that in some way, which frankly I did not follow, the outcome of the making of the loan agreement and grant of the mortgage was that the relevant advances were not made by the funder in accordance with the terms of that agreement. It was said that this was so because any advances made were not in "legal tender". That submission is an example of a "pseudolegal commercial argument" which makes no sense. It is also contrary to the evidence to suggest the advances to secure the discharge of Illawarra Mutual Building Society's mortgage and the transfer of Dallas Wichman's interest to Mr Wichman were not made. That the discharge of that mortgage and the transfer occurred, and that a mortgage was then granted to Pepper Finance, sufficiently establish that the lender complied with its payment obligations. 6. Ultimately in an application for a stay of execution of a judgment pending appeal, even in a case such as this, the applicant must demonstrate a proper basis for the stay that will be fair, taking account of the competing interests and rights of the parties. As has been said in this Court on a number of occasions, ordinarily that requires that the Court make a preliminary assessment as to whether there are arguable grounds of appeal. 7. In this case, there are no arguable grounds of appeal from the judgment of Rothman J, which was limited to the question of the registrar's jurisdiction, the only issue argued before his Honour. The suggestions that his Honour was biased or that Mr Wichman was not given an opportunity to be heard were not developed in argument in this Court, and are not supported by a reading of the transcript before his Honour. Nor, looking at the matter more broadly, are there any arguable grounds that have been identified which would justify the setting aside of the underlying default judgment and writ of execution. Furthermore, Mr Wichman does not offer to pay into court or otherwise provide further security to the lender in an amount equal to the existing debt. Finally there is no evidence of any hardship, either to Mr Wichman or others, which would result from the execution of the writ today. 8. In these circumstances the application for stay of execution of the writ must be dismissed. Accordingly I make that order, and I also order that Mr Wichman pay the respondent's costs of this application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2019