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New South Wales Supreme Court

CITATION : Pepper Finance Corporation Ltd v Williams [2008] NSWSC 4

HEARING DATE(S) : 15 January 2008

JUDGMENT DATE : 15 January 2008

JURISDICTION : Common Law

JUDGMENT OF : Campbell JA

EX TEMPORE JUDGMENT DATE : 15 January 2008

DECISION : Stay refused

CATCHWORDS : MORTGAGES - remedies of the mortgagee - order for possession made - application for stay pending appeal - - various alleged deficiencies in order for possession considered - applicant unsure of what mortgage judgment based on - contract alleged on stay application to be in dispute - alleged irregularities in transcript below - lack of consent of mortgagor to judgment - alleged denial of natural justice - effect of entry of contract for sale by mortgagor of mortgaged property - failure of mortgagee to follow dispute resolution procedures of Matthew 18 - effect of trial not being by jury - effect of reference to applicant as a “person” - alleged invalidity of appointment of judges - alleged contravention s.116 Constitution - procedure to be used to decide challenge to Court’s jurisdiction

LEGISLATION CITED :
Bill of Rights 1689
Constitution
Habeas Corpus Act 1640
Magna Carta
Petition of Right 1628
Real Property Act 1900
Supreme Court Act 1970

CATEGORY : Procedural and other rulings

CASES CITED : Pepper Finance Corporation Limited v Williams [2007] NSWSC 1236

PARTIES : Pepper Finance Corporation Limited - Plaintiff
Lydia Williams - Defendant

FILE NUMBER(S) : SC 12191/06

COUNSEL : G Koutts, solicitor - Plaintiff
Appeared in person - Defendant

SOLICITORS : Kemp Strang - Plaintiff
Unrepresented - Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY JUDGE LIST

CAMPBELL JA

TUESDAY 15 JANUARY 2008

12191/06 PEPPER FINANCE CORPORATION LIMITED v LYDIA WILLIAMS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is the hearing of a notice of motion seeking a stay of an order for possession of residential property located at Berowra Heights that is the property of the defendant. The order for possession was made on 1 November 2007 by Associate Justice Malpass. That order was made summarily: Pepper Finance Corporation Limited v Williams [2007] NSWSC 1236.

2 The evidence that was admitted before the Associate Justice, and which has been tendered before me again today, includes an affidavit of Ana Barron of 31 October 2007 and an affidavit of Con Platirahos of 11 May 2007 together with the exhibit to that affidavit. That material establishes that there was a loan agreement between the plaintiff and the defendant concerning a loan for $423,300 for a period of one year that was to be secured by a registered first mortgage over the property. The loan agreement was later varied. There were defaults in payment of interest in the month of January and February of 2006 and there were subsequently delivered two notices purporting to be under notices of default under the mortgage and also notices under section 57(2)(b) Real Property Act.

3 The defendant was served with a statement of claim seeking possession of the land, and filed a notice of appearance in the possession proceedings on 27 December 2006. She also filed a cross-claim in those proceedings, and has taken various interlocutory steps and has appeared herself on more than one occasion.

4 The evidence before the Associate Justice, in my view, clearly justified the making of the summary order for possession.

5 Today, one of the grounds on which a stay is sought is that Ms Williams has lodged an appeal to the Court of Appeal.

6 She complains that she has not yet been shown the “authentic contract document” containing her original signature on which the plaintiff's claim arises. The exhibit to Mr Platirahos' affidavit that was admitted in evidence before the Associate Judge, contains a contract and a mortgage that purport to be signed by Ms Williams. I am informed by the solicitor for the plaintiff that the exhibit was actually served on her in advance. The substance of Ms Williams' complaint in this respect seems to be that she did not have the opportunity to sight the original of the documents, and that she does not know whether the documents that were tendered before the Associate Justice match the documents with which she was actually served. Any such lack of knowledge on her part does not, in my view, show any basis for believing that the judgment is incorrect. The judgment is based on the documents that were in evidence before the Associate Justice. When an appeal is taken from a judgment, the onus is on the appellant to present the case for the incorrectness of the judgment appealed from, not merely to say that there are things that the appellant does not know relating to the judgment.

7 The next basis upon which Ms Williams claims a stay is that she says, baldly, "that the contract is in dispute". No dispute concerning the validity or efficacy of the contract was raised before the Associate Justice. In accordance with the principles concerning the opening of new factual matters on appeal, it would be quite impossible for any factual case of that kind to be raised on appeal, as it would inevitably involve new factual matters that had not previously been litigated.

8 The next complaint is that "there are numerous irregularities contained in the transcript of proceedings". I have not been provided with any details of these. However, that is probably not important, because the task of an appellant is to show that the judgment appealed from is incorrect. That there may be irregularities in the transcript might, or might not, show that the judgment appealed from is incorrect. In my view, there was clearly material before the Associate Justice that justified the making of the order.

9 The next complaint of Ms Williams is that she has not given her consent to summary judgment. It is true that she has not given her consent. However the procedures of the Court are such that summary judgment can be given against a defendant, in an appropriate case, even if that defendant does not consent.

10 The next complaint is that Ms Williams says that she has been "denied natural justice". Again, that is not particularised in any fashion. She appeared at the hearing before the Associate Justice and had the opportunity to make submissions, which, I would infer from the terms of the Associate Justice's judgment, she did.

11 She also relies upon the fact that she says that a sale contract for the property was exchanged on 21 September 2007 prior to any judgment of the Court. I do not see that this provides a basis for stay of the judgment. Her ability to perform that contract was always subject to satisfying the prior claim of the plaintiff under its mortgage. It would still be possible for the contract to which Ms Williams refers, to proceed, if as part of the settlement of that contract the mortgage debt is paid out. Unless and until the mortgage debt is paid out, however, the mortgagee is entitled to possession of the property.

12 In my opinion, no prospects of success on the appeal have been demonstrated. In these circumstances, the stay is refused. The notice of motion is dismissed.

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13 I delivered a judgment earlier this morning on some aspects of this case, and made orders. I have now revoked those orders and permitted the argument to be re-opened as Ms Williams was under the misapprehension that some written material that she had filed would be considered by the Court even though she had not specifically relied upon it earlier today. I have now permitted her to raise those additional matters that had not been specifically raised earlier today. Those matters are matters that she has set out in a document entitled Notice of Special Appearance filed in the Court on 29 October 2007. She has supplemented those matters by some oral argument.

14 The purpose of her submissions, as I understand it, is to demonstrate that there would be point in a stay, to enable the Court of Appeal to consider arguments that were fairly able to be raised.

15 The first matter that Ms Williams raises is that she did not consent to the jurisdiction of the Supreme Court, and that that in some way vitiates it. The defendant is herself a resident of New South Wales. She has appeared in the proceedings. She has presented argument on this occasion and on others, and the subject matter of proceedings concerns the possession of land in New South Wales. The making of an order for possession is clearly something that is within the jurisdiction of the Court. Whether it has been correctly made is, of course, another matter.

16 Another basis upon which Ms Williams challenges the decision is that there has been a failure by the plaintiff to follow the procedure for dispute resolution that is laid down in chapter 18 of St Matthew's Gospel. Ms Williams indicates that she is willing to follow that procedure for dispute resolution and that it would, in her submission, involve mediation. The difficulty with this argument is that the procedure for dispute resolution laid down in Matthew chapter 18 is not a procedure for dispute resolution that the law requires the courts to use. It is in accordance with the standards upon which the Court is required by the law to act that the correctness of the judgment needs to be decided.

17 She also submits that she was entitled as of right to trial by jury. One basis upon which she puts this is section 80 of the Commonwealth Constitution. Section 80 of the Constitution (which, incidentally, she misquotes in her Notice of Special Appearance) says:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”

18 The deciding of a question of entitlement to an order for possession of land does not involve the trial on indictment of any offence against any law of the Commonwealth. Thus, section 80 does not speak to it.

19 She also relies upon clause 29 of Magna Carta which, so far as relevant, reads:

“No free man shall be...disseised of his freehold...except by the lawful judgment of his peers or by the law of the land."

20 Leaving aside any question of whether a judgment for possession of land amounts to a person being "disseised of his freehold" (a matter that I shall assume in Ms Williams's favour), Magna Carta leaves open the possibility that a person may be disseised of his freehold not only by lawful judgment of his peers, but also by the law of the land. Section 85 of the Supreme Court Act 1970 makes provision for all proceedings in a Division to be tried without a jury unless the Court otherwise orders. Here, there has been no order that there be a trial by jury.

21 She also invokes the Bill of Rights 1689, but a perusal of that statute shows that it does not deal with this question in any way. Other provisions of constitutional importance, namely the Petition of Right 1628 and the Habeas Corpus Act 1640, were also invoked but likewise they provide no arguable basis for Ms Williams’ submissions.

22 Another basis upon which she puts an entitlement to trial by jury is that the absence of a trial by jury would be contrary to democracy. The Court does not proceed directly by reference to high level concepts such as democracy, but rather by reference to more specific norms that set out the procedures that it follows and the standards that it applies. A trial by jury is not required in the present case.

23 Another basis upon which she challenges the jurisdiction is that she was referred to, in the “court attendance notice”, as a "person." She submits that, rather than being a “person” (which she traces back to its etymological origin as being a mask used to hide the truth of a matter) she is a free human being, and answerable to God. Without in any way detracting from her submission that she is a free human being and answerable to God, that does not deprive the Court of the power to make an order for possession of land.

24 Another ground upon which she asserts that there is a viable ground of appeal relates to the alleged invalidity of appointment of Judges. Some of the submissions that she made on this topic related to the validity of appointment of Magistrates and Judges of the High Court of Australia. As the judicial officer whose decision is challenged in the present case is an Associate Justice of this Court, those submissions do not bear upon the facts of the case. The only argument which is even possibly relevant is one that judicial officers of this Court appointed by the Governor of New South Wales are invalidly appointed. There is no substance in this argument.

25 Next, she complains of bias and lack of assistance on the part of Registrars. She complains that she has not been afforded the assistance that ought to be given her as a litigant in person. Again, the material before me does not convince me that there is any substance in these grounds.

26 In these reasons for judgment, I have endeavoured to distil what I take to be the only matters which could even possibly be argued that emerge from the Notice of Special Appearance. Insofar as there are matters contained in the Notice of Special Appearance that I have not specifically adverted to, I do not regard them as providing any basis for an appeal.

27 Some additional oral submissions were made, in which Ms Williams invoked section 116 of the Commonwealth Constitution, and asserted that it gave her a right to practise her religion, and, I would infer, that that would impliedly give her a right to have the dispute resolution procedure laid down in Matthew 18 followed through. Section 116 of the Constitution provides:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

28 There is no question in the present case of any Commonwealth law having been invoked, in the order which has been made by the Court, and therefore any question of whether any Commonwealth law is invalid by reason of section 116 does not arise.

29 She also submits that any challenge to jurisdiction of the Court needs to be decided by a jury - something that she, on occasion, refers to as a "special jury”. That is not the procedure that is adopted under the law of New South Wales for deciding disputes to the jurisdiction of the Court. That is a matter that the Court decides for itself.

30 Under the circumstances, I see no basis for success in any appeal in the additional matters that Ms Williams has now argued. I therefore order that the notice of motion be dismissed.

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Link to this document: http://www.lawlink.nsw.gov.au/scjudgments/2008nswsc.nsf/6e19fbadaa836fac...