Commonwealth Bank of Australia v Hester [2019] NSWSC 1842

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth Bank of Australia v Hester [2019] NSWSC 1842 Hearing dates: 2 December 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Leave to the plaintiff to move for default judgment against the defendant.

(2) Judgment for the plaintiff for possession of the whole of the land in folio identifier 1/1041112 situated at and known as 34-36 MacDougall Crescent (also known as 34 MacDougall Crescent), Hamlyn Terrace, in the State of New South Wales. Catchwords: CIVIL PROCEDURE – default judgment – possession of land – defence struck out – no amended defence filed – defendant unable to identify any defence to the claim – order for default judgment made Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW), r 16.2 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (Plaintiff) John Hester (Defendant) Representation: Solicitors: Dentons Australia (Plaintiff) Self-represented (Defendant) File Number(s): 2019/96916 Publication restriction: Nil

Judgment 1. On 2 December 2019 the plaintiff made an application for default judgment and sought the Court's leave to enter judgment. 2. An order was also sought that I refuse to grant leave to the defendant to issue subpoenas to the CEO of the Commonwealth Bank and the CEO of the Australian Banking Association, to the extent that a reference in paragraph [17] of the defendant's written submissions dated 27 August 2019 was in fact seeking such leave. 3. The proceedings were commenced by the filing of a Statement of Claim on 28 March 2019 seeking possession of a property known as 34-36 MacDougall Crescent, Hamlyn Terrace, New South Wales, leave to issue a writ of possession, judgment against the defendant in the sum of $255,312.49 owing under two loan agreements plus interest, and charges and expenses in accordance with those agreements and the mortgage. 4. A Defence was filed on 22 July 2019. The Defence was clearly prepared without the assistance of legal advice. In essence it refused to admit that there were loan agreements or that any credit was advanced. It denied that the plaintiff has any rights under the loan agreements to request for repayment, denies any default, denies the sum owing and claims that it cannot confirm that the plaintiff advanced credit to the defendant in accordance with the agreements referred to without the plaintiff providing a "certified copy of the original document for verification as an authentic original document". 5. The proceedings were first dealt with in the Registrar's list on 5 August 2019. There was no appearance for the defendant. 6. The proceedings were referred for judicial directions on 27 August 2019 before me. Mr Lewin, solicitor, appeared for the plaintiff and the defendant appeared by phone. I made orders requesting that the plaintiff's solicitor provide such documents as he could that were able to be located and still in existence by 10 September 2019, and that the defendant was to file and serve an affidavit setting out any issues he took with the content of the documents provided by 1 October 2019. I listed the matter for further directions on 3 October 2019. 7. On 3 October 2019 the defendant appeared by phone. He had not filed any affidavit. A person called Michael Linnell filed an affidavit dated 26 August 2019. Mr Linnell it seems holds himself out as a consultant advocate. He is not a lawyer. He sought leave to assist the defendant. According to a note dated 1 August 2019 attached to Mr Linnell's affidavit, Mr Hester authorised Mr Linnell to "provide financial advocacy, consultancy and advice and assistance" to "resolve of the CBA legal issue and associated matters" and that he authorises "..you to supply any information that may be required by the consultant advocates and or Mr Michael Linnell". The affidavit of Mr Linnell did not disclose anything understandable regarding the merits or otherwise of any defence that the defendant may have at law. 8. I allowed Mr Linnell to assist Mr Hester who was also present at the appearance by phone but was having difficulty talking because he was ill. Mr Linnell articulated a (mistaken) view that in the absence of original certified documents in respect of every aspect of the Bank's arrangements with the defendant, the plaintiff had no basis to seek the orders sought in the Statement of Claim. At the completion of the directions hearing based on the lack of arguable or recognisable defence disclosed in argument or in the Defence filed, I made an order striking out the Defence and granting leave to the defendant to file an Amended Defence by 31 October 2019. 9. No Amended Defence was filed. 10. On 18 November 2019 the defendant did not attend the directions hearing, apparently taking exception to the fact that I chose not to grant him leave to appear by telephone. Mr Lewin appeared for the plaintiff and sought an order pursuant to r 16.2(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") for default judgment on the basis that the defendant had filed a Defence but the court had ordered the Defence be struck out. I was not prepared to make that order in the absence of the defendant and accordingly stood the matter over to 2 December 2019 for further directions and hearing of the plaintiff's application for default judgment and requesting that the defendant attend in person. 11. My judgment rejecting the plaintiff's application for default judgment on 18 November 2019 was provided by email to Mr Hester and Mr Lewin to assist in their preparation for the hearing on 2 December 2019. 12. On 2 December 2019 Mr Hester appeared with Mr Linnell. In apparent preparation for that hearing a number of documents were filed by the defendant, most of which were incomprehensible but which did not include an Amended Defence. There were various documents titled written submissions filed on 28 November 2019 which attached international treaties and other irrelevancies. There was an affidavit of Mr Hester affirmed on 28 November 2019. The relevance of any of these documents was impossible to determine on their face and I was no better informed after hearing from Mr Hester on 2 December 2019. 13. The solicitor for the plaintiff had already provided by letter on 1 August 2019 copies of various documents said to evidence the loan agreement, the mortgage, the default notice sent in August 2018 and the loan application form and statements of account covering July 2006 to May 2019. Evidence of that correspondence and the appended documents was tendered in the affidavit of Mr Lewin affirmed on 10 September 2019. 14. Mr Lewin argued that given the defendant's Defence had been struck out, his client should be granted leave to enter default judgment. 15. The arguments articulated by the defendant in Defence of his position simply comprised repetition of his asserted right to be given "true and original documents" and to be provided with '"true and correct evidence and continuance of evidence to confirm that". Until he was provided with such material, he submitted, he could not "respond with the true defence". 16. An apparent misunderstanding underpinning this position was his perception that Chapter 37 of the Banking Code of Practice required the provision of original documents. As pointed out by Mr Lewin, Chapter 37 of the Banking Code of Practice states: "…We will at your request give you a copy of your documents in our possession…" 1. but there is no definition of "copy" in the definition section and there is nothing to say the documents provided must be certified or originals. 2. I am satisfied that the defendant is in default. He has been given ample time to obtain the assistance of a legal representative and he has been given ample opportunity to file an Amended Defence that discloses a properly available defence at law. 3. In exercising any power or discretion under the Civil Procedure Act 2005 (NSW) or UCPR I am required to have regard to s 56 of that Act and the overriding purpose to facilitate a just, quick and cheap resolution of the real issues in the proceedings. 4. I am not satisfied that any of the matters he has raised in the various submissions and affidavit or anything that he has articulated in Court, forms the basis of any defence at law. 5. I note that the defendant took a truculent and obstructive approach at the hearing on 2 December 2019, to the extent that he would not directly answer questions posed by me to try and understand his position such as whether he accepted that he had taken out a mortgage, whether he had received a copy of any documents, whether he had made any payments in respect of the mortgage, and whether he had ever received any money at all from the Commonwealth Bank – in fact he denied that he had ever received any funds from the Bank. 6. The affidavit filed in support of the plaintiff's application – Richard Joel Lewin affirmed 10 September 2019 – supports judgment on a summary judgment basis and since the defence filed was struck out and the defendant is unable to identify any defence to the claim, the plaintiff is entitled to default judgment. 7. Accordingly I make the following orders: 1. Leave to the plaintiff to move for default judgment against the defendant. 2. Judgment for the plaintiff for possession of the whole of the land in folio identifier 1/1041112 situated at and known as 34-36 MacDougall Crescent (also known as 34 MacDougall Crescent), Hamlyn Terrace, in the State of New South Wales.