Quazer v Secure Funding Pty Ltd
[2010] QCA 251
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- Unreported Judgment
- Appeal Determined (QCA)
- Quazer v Secure Funding Pty Ltd[2010] QCA 251
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Quazer v Secure Funding Pty Ltd[2010] QCA 251
Quazer v Secure Funding Pty Ltd[2010] QCA 251
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 17 September 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 August 2010 |
JUDGES: | McMurdo P, White JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1.The appellant, Robert Charles Quazer's, oral application to adjourn the proceedings to serve notices under s 78B Bankruptcy Act 1903 (Cth) is refused. 2.The respondent to this appeal, Secure Funding Pty Ltd, is granted leave under Uniform Civil Procedure Rules r 72 to proceed against the appellant bankrupt, Robert Charles Quazer. 3.The appeal is dismissed with costs. 4.The appellant, Robert Charles Quazer's, application filed on 31 May 2010 to join Britta Freymann as an appellant is refused with costs. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – respondents applied for leave under r 72(1)(a) Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to proceed against appellant and for summary dismissal of appeal and application to join second defendant to appeal – appellant bankrupt before instituting appeal – trustees in Bankruptcy did not consent to appeal – whether application for summary dismissal should be granted – whether the appeals should be dismissed PROCEDURE – COURTS AND JUDGES – GENERALLY – COURTS – ADJOURNMENT – day of hearing, appellant applied for adjournment of six weeks – adjournment sought to serve various Attorneys-General with notices as required under s 78B Judiciary Act 1903 (Cth) – whether adjournment ought to be granted Bankruptcy Act 1966 (Cth), s 60 Judiciary Act 1903 (Cth), s 78 B Uniform Civil Procedure Rules 1999 (Qld), r 72 Beames v State of Queensland [2010] QSC 4, applied Glennan v Commissioner of Taxation (2003) 198 ALR 250; [2003] HCA 31, cited Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, cited |
COUNSEL: | The appellant appeared on his own behalf P A Schmidt for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Norton Rose for the respondent |
[1] McMURDO P: There are two applications for this Court's determination. The first is brought by the appellant, Robert Charles Quazer, who is self-represented. He has applied to join Britta Freymann as second appellant to this appeal under Uniform Civil Procedure Rules (UCPR) r 750 and r 751. Ms Freymann supports Mr Quazer's application.
[2] Mr Quazer was declared a bankrupt on 18 March 2010 and remains undischarged from that order. One of the joint and several trustees of Mr Quazer's bankrupt estate, Mr John Shanahan of KordaMentha, informed the Court on 21 July 2010 that the trustees do not intend to make any written submissions in respect of, or participate in, this appeal.
[3] The second application is brought by the respondent to this appeal, Secure Funding Pty Ltd. It opposes Mr Quazer's application and applies for orders that it have leave under UCPR r 72(1)(a) to proceed against Mr Quazer; that Mr Quazer's application to join Ms Freymann as second appellant be dismissed; that the appellant's appeal be dismissed and that Mr Quazer and Ms Freymann pay its costs of and incidental to this application.
[4] In order to understand and determine these applications, it is necessary to briefly set out the background to this appeal.
[5] Secure Funding filed a claim and statement of claim in the Trial Division of this Court on 1 September 2009 claiming a debt owing to it under a loan agreement with Mr Quazer and others, and for possession of property at 45 Chalcot Road, Anstead which was security for the loan. Under cl 8 of the terms of the mortgage, the mortgagor was required to obtain Secure Funding's consent before parting with possession of the property or leasing it. On 3 September 2009, Secure Funding served a Form 19 notice to vacate under s 317 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) on the occupant of the Anstead property, Ms Freymann. She responded to the notice by letter dated 8 September 2009. Secure Funding's solicitors received Ms Freymann's letter on 14 September 2009.
[6] On 9 December 2009, Margaret Wilson J gave summary judgment in Secure Funding's claim, ordering that Mr Quazer and his co-defendants pay $854,370.72 including $36,773.84 for interest, and $3,158.99 for costs, and that Secure Funding recover possession of the Anstead property. Mr Quazer did not appeal from that order.
[7] The Supreme Court issued an enforcement warrant on 1 February 2010 authorising the enforcement officers to enter onto the Anstead property and deliver possession of it to Secure Funding. On 9 February 2010, Secure Funding requested the sheriff to enforce the warrant. An eviction was scheduled for 31 March 2010.
[8] The appellant was declared bankrupt on 18 March 2010 and John Shanahan and Joanne Dunne of KordaMentha were appointed joint and several trustees in bankruptcy of Mr Quazer's estate. As I have noted, the trustees do not intend to take an active part in pursuing this appeal or Mr Quazer's application and they have not consented to Ms Freymann being joined as an appellant.
[9] On 24 March 2010, Mr Quazer and others filed an application in the Trial Division of this Court seeking the "annulment" of Margaret Wilson J's order of 9 December 2009 and the setting aside or staying of the enforcement warrant issued on 1 February 2010, pending the outcome of the application to "annul" Margaret Wilson J's order.
[10] On 30 March 2010, Ms Freymann filed an affidavit in which she deposed that she, on behalf of the Land of Eden Foundation, held a commercial lease over the Anstead property. Secure Funding's solicitor has deposed that Secure Funding was not made aware of any such lease and its consent to any lease was never sought or given.
[11] On 31 March 2010, a bailiff attended the Anstead property to enforce the warrant issued on 1 February 2010. Ms Freymann informed the bailiff that she was in occupation of the property under a tenancy agreement. The bailiff informed Secure Funding's lawyers that he could not enforce the warrant because Ms Freymann and the Land of Eden Foundation were not named in the warrant as entities required to comply with the order. Later that day, Secure Funding and Ms Freymann agreed that the eviction would be postponed and Ms Freymann would hand over vacant possession of the Anstead property on or before 21 April 2010.
[12] Mr Quazer's and others' application to "annul" or set aside Margaret Wilson J's order of 9 December 2009 and to stay or set aside the enforcement warrant of 1 February 2010 came before Fryberg J on 12 April 2010. The transcript of that hearing reveals the following. An unidentified speaker stated that she was "here today in the matter Secure Funding v Quazer Family Bloodline Trust … as beneficiary and paramount security interest holder in all … collateral and property both registered and unregistered of Robert Charles Quazer, Kat Quazer and Quazer Family Bloodline Trust." The judge asked her to identify herself and to move to the bar table so that her statements could be recorded. She did not comply with the judge's request. The judge again asked for her name. She repeated her earlier statement, but did not provide her name. The judge told her to go outside and asked the bailiff to call a security officer. The judge noted that she was disobeying his order and again told her to go outside. It seems she complied with the judge's second request although she still did not provide her name.[1] Other matters were then interposed in the applications list before Fryberg J.
[13] Later in the day, a solicitor, Mr Schmidt, asked Fryberg J if he could again mention this matter. Mr Schmidt stated that he was sitting outside the court waiting to be heard and he understood that the judge may already have dealt with the matter. The judge responded:
"I haven't dealt with it. A woman who wouldn't give her name came and started to try and have me deal with it but I told her to go outside when she wouldn't give her name, and she did."
[14] Mr Schmidt stated that he was appearing for Secure Funding, the respondent to the application and he would like the application determined. Mr G T Sara of counsel then came forward and explained to the judge that he had been instructed by Aylwood Game, solicitors for the applicants (inferentially including Mr Quazer) "at the last hour" but their instructions had since been withdrawn. Mr Sara stated that Mr Quazer was an undischarged bankrupt and expressed the view that these proceedings would therefore be automatically stayed under s 60(2) Bankruptcy Act 1966 (Cth). Mr Sara indicated he had sat in the back of the court to assist if required.
[15] The judge had the bailiff call the names of the applicants, Robert Quazer and Kat Quazer as trustees for the Quazer Bloodline Trust, three times. The bailiff announced that there was no appearance. Mr Sara stated that he and his instructing solicitors were not on the record at any stage, but in any case asked if they could be excused. The judge acceded to that request. Mr Schmidt asked the judge to dismiss the application because there was no appearance for the applicants. As the applicants did not appear in person or through legal representation, the judge dismissed the application and directed that a transcript be prepared of the hearing.
[16] This appeal, filed by Mr Quazer on 20 April 2010, is from Fryberg J's order and both applications before the Court today relate to that appeal. The grounds of Mr Quazer's appeal are lengthy and diffuse. I will set them out in full as it is not easy to summarise them.
"2. GROUNDS -
The denial of Natural Justice
2.0 Immediately prior to the commencement of the hearing of the appellant's application before His Honour Justice Fryberg, Counsel for the appellant withdrew and thereby failed to present argument in support of the appellant's application before the Court below.
2.1 The Court below made an error or mistake in law by exclusively hearing argument or accepting submissions by or on behalf of the respondent against the appellant's application.
2.2 The Court below made an error or mistake in law in hearing from Britta Freymann who is not a party to the proceeding.
2.3 The Court below made an error or mistake in law in hearing or accepting submissions by or on behalf of the respondent that the appellant's application included or was made on behalf of the first and third defendants.
2.4 The Court below made an error or mistake in law in hearing or accepting submissions by on behalf of the respondent that the appellant (as the second defendant) is or was a Trustee of the Quazer Family Bloodline Trust when such evidence is inadmissible or irrelevant;
2.5 The Court below made an error or mistake in law in hearing or accepting evidence by John Gervase Shanahan that the appellant was declared bankrupt on 18 March 2010 when such evidence is inadmissible or irrelevant.
2.6 The Court below made an error or mistake in law in hearing or accepting evidence by John Gervase Shanahan, in the alleged capacity as Trustee in Bankruptcy for the appellant; does not consent to the application when such evidence is inadmissible or irrelevant.
S 60 of the Bankruptcy Act 1966 (Cth); Rule 72 of the UCPR
2.7 The Court below made an error or mistake in law in hearing argument by or on behalf of the respondent that the appellant as an undischarged bankrupt is precluded from taking a defensive step in the proceeding (via his application) without first obtaining the leave of the Court under r 72 of the UCPR.
2.8 The Court below made an error or mistake in law in hearing or accepting submissions by or on behalf of the respondent that the Court below could not grant leave for the appellant to commence the application when such a defensive application is not caught by r 72 of the UCPR
2.9 The Court below made an error or mistake in law in hearing argument by or on behalf of the respondent that a defence or defensive proceeding such as that contained within the application of the appellant before the Court below vested in the bankruptcy trustee appointed to the estate of the appellant under s 60 of the Bankruptcy Act 1966 (refer to ground 2. 6 above).
The relevance of registration under a Torrens system of title
2.9.1 The Court below made an error or mistake in law in hearing or accepting a submission by or on behalf of the respondent that it is irrelevant in a Torrens system of title to make incorrect reference to the registered owner recorded in the freehold land register. The registered owner of the subject freehold land referred to in the proceeding is not the first, second, or third defendant in that proceeding.
2.9.2 The Court below made an error or mistake in law in dismissing the appellant's application and thereby failing to set aside and/or stay Enforcement Warrant W/N 30/10 issued on 1 February 2010 by the Office of the Supreme Court Brisbane as required by the appellant. Upon its own admission, the respondent and/or its servants and/or agents entered into an agreement in writing with Britta Freymann requiring her to deliver up her exclusive possession of the subject land held by Britta Freymann as lessee under a commercial lease agreement ("Lease") on or before 21 April 2010. This conduct on the part of the respondent rendered the order of Wilson J made 9 December 2009 nugatory because the first, second, and third defendants are unable to deliver up possession of the subject land to the respondent whilst exclusive possession of that land is held by Britta Freymann under the Lease.
2.9.3 The Court below made an error or mistake in law in hearing or accepting a submission by or on behalf of the respondent that pursuant to Clause 8 of the subject Mortgage Terms, the Mortgagor is required to obtain the consent of the Mortgagee before it parts with possession of the subject property or leases the subject property when the respondent has admitted the Lease.
2.9.4 In the circumstances, the Court below made an error or mistake in law in hearing or accepting a submission that the fact that the subject property is currently in the possession of Britta Freymann and/or the Land of Eden Foundation is not a ground for setting aside Wilson J's order of 9 December 2009 or staying and/or setting aside the Enforcement Warrant as neither the first defendant, the second defendant nor the third defendant in the proceeding is in possession of the subject land or capable of causing the delivery up of possession of the subject land to the respondent.
Security - Payment into Court of principal and interest owing
2.9.5 The Court below made an error or mistake in law in hearing or accepting a submission that the principle in Inglis and Anor v Commonwealth Trading Bank of Australia (1971) 1 to 6 CLR 161 applies and requires the respondent to pay the amount outstanding under the loan agreement into Court before the Court will stay the order for possession given by Wilson J on 9 December 2009. This is because the respondent, the servants or agents of the respondent accepted certain securities given by the appellant of value in excess of the amount outstanding under the loan agreement. In accepting these securities, the respondent, its servants or agent has traded the securities: Bonded, Promissory Note RCQ 108006 dated 11 March 2008, currently traded through FIDELITY ADVISOR DIVERSIFIED STOCK; CUSIP NUMBER #316127109; FUND#6; SYMBOL: FDESX 08; and, Bonded Promissory Note RCQ108021; dated 22 June 2008, currently traded through FIDELITY MAGELLAN; CUSIP NUMBER #316184 100; FUND #21; SYMBOL: FMAGX.
2.9.6 The Court below made an error or mistake in law in dismissing the appellant's application and thereby failing to receive evidence that the securities referred to in paragraph 2.9.5 were tended to the respondent, its servants or agents in full discharge of any and all loans by the respondent, its servants, or agents to the appellant or through the appellant. The trading of the securities presents irrefutable evidence of acceptance of the securities by the respondent, its servants, or agents in consideration of the discharge of any and all liabilities claimed of the appellant by the respondent, its servants, or agents. On a true accounting between the parties, the respondent is indebted to the appellant; not vice versa.
2.9.7 The Court below made an error or mistake in law in failing to stay or set aside the order for possession of the subject land given by Wilson J on 9 December 2009 and the Enforcement Warrant W/N 30/10 issued on 01 February 2010 by the Supreme Court office Brisbane.
2.9.8 Although not a ground of appeal, for the sake of completion and/or context only: The issues of the unlawful entry and trespass upon the subject property; the assaults on the appellant and Britta Freymann; the forced entry into the agreement to deliver up possession by 21 April 2010 by threat of detriment; the forced closure of the nursery business (The Land of Eden Foundation) conducted by Britta Freymann under the Lease; the threatening and coercion of staff members employed at the nursery business by the respondent, its servants or agents on 31 March 2010 is a matter for the High Court of Australia as will any attempt by the respondent, its servants or agents to re-enter the subject land on or after 21 April 2010 pursuant to the alleged agreement with Britta Freymann (see footnote 5) or otherwise."
(footnotes omitted, errors as in original)
[17] He seeks the following orders:
"3. ORDERS SOUGHT -
3.0 The respondent pay the appellant exemplary damages in the amount 20 million dollars ($20,000,000);
3.1 The order given by Her Honour, Justice Margaret Wilson on 9 December 2009 is annulled;
3.2 The respondent, any of its servants or agents is permanently restrained from entering or remaining upon the subject land and otherwise interfering, threatening, intimidating or coercing the appellant or any of his servants or agents; and,
3.3 Such further or other order as this Honourable Court deems meet."
[18] On the same day that Mr Quazer filed his appeal from Fryberg J's orders (20 April 2010), Ms Freymann advised Secure Funding that she did not intend to deliver up possession of the Anstead property "under any circumstances".
[19] Secure Funding brought a further application relating to its claim against Mr Quazer in the Trial Division of this Court on 25 May 2010. Justice Ann Lyons ordered that the Land of Eden Foundation and Ms Freymann be joined as parties to Secure Funding's proceeding against Mr Quazer and others, and that the enforcement warrant issued on 1 February 2010 be amended to include (as well as Robert Charles Quazer and Kat Quazer) "the Land of Eden Foundation, Ms Freymann and the Occupant" as parties required to comply with the warrant.
[20] Neither Mr Quazer nor Ms Freymann appealed from the order of Ann Lyons J, but on 28 May 2010 Ms Freymann filed an application to stay both the order of Ann Lyons J and the amended enforcement warrant.
[21] On 31 May 2010, Mr Quazer filed the present application to join Ms Freymann as a co-appellant to his appeal. Ms Freymann supports that application.
[22] On 21 June 2010, Applegarth J dismissed Ms Freymann's application to stay the order of Ann Lyons J and the amended enforcement warrant. The next day the Supreme Court issued the amended enforcement warrant, in which Ms Freymann, the Land of Eden Foundation and the occupant were named as persons required to comply with it, in accordance with the order of Ann Lyons J. There has been no appeal from Applegarth's J's order.
[23] On 23 June 2010, Secure Funding applied to this Court for leave under UCPR r 72(1)(a) to bring an application to summarily dismiss Mr Quazer's appeal from Fryberg J's order or, alternatively, for an order that Mr Quazer and Ms Freymann provide security for costs of the appeal. That is the second of the applications for this Court to determine. Secure Funding is not presently pursuing its alternative application. It is convenient to deal with Secure Funding's application before Mr Quazer's application.
[24] This Court would summarily dismiss an appeal only when it is clear that such an order was plainly in the interests of justice. These are my reasons for concluding that this is such a case.
[25] The first reason concerns Mr Quazer's bankruptcy and the requirements of s 60(2) Bankruptcy Act and UCPR r 72. Section 60 Bankruptcy Act relevantly provides:
"60 Stay of legal proceedings
(1)The court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:
…
(b) stay any legal process … against the person or property of the debtor:
(i) in respect of the non-payment of a provable debt …
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action."
[26] UCPR r 72 relevantly provides:
"72 Party becomes bankrupt … during proceeding
(1) If a party to a proceeding becomes bankrupt, … a person may take any further step in the proceeding for or against the party only if—
(a) the court gives the person leave to proceed; and
(b) the person follows the court’s directions on how to proceed."
[27] It is true that Secure Funding commenced the action against Mr Quazer and others so that s 60(2) does not apply. But UCPR r 72 does apply. The term "proceeding" used in that rule includes an appeal: see Supreme Court of Queensland Act 1991 (Qld), sch 2, dictionary. Beames v State of Queensland[2] is authority for the proposition that a court does not have power under UCPR r 72 to give an undischarged bankrupt like Mr Quazer leave to proceed without the consent of his trustees in bankruptcy. They have not consented to the bringing of this appeal or Mr Quazer's present application.
[28] In any case, there is no reason for this Court to give leave under UCPR r 72 to MrQuazer to proceed with his appeal. I have set out in full his many and lengthy grounds of appeal from Fryberg J's order which dismissed his application to "annul" Margaret Wilson J's order giving summary judgment in favour of Secure Funding. They are incomprehensible and unmeritorious. It is impossible to find amongst them any grounds which suggest even a prospect of success. Fryberg J dismissed Mr Quazer's application because no-one appeared to prosecute it. It was the only appropriate order in the circumstances. Mr Quazer has no prospect of succeeding in his appeal. He should not be permitted to subject Secure Funding to exposure to further costs in defending the appeal: costs which they would be unlikely to recoup from the bankrupt Mr Quazer.
[29] During the hearing of these applications, Mr Quazer, supported by Ms Freymann, requested that the hearing be adjourned for six weeks to enable them to serve various Attorneys-General with notices as required under s 78B Judiciary Act 1903 (Cth). Although not specified at the hearing, it seems that these notices related to Mr Quazer and Ms Freymann's claims in filed written material that no judicial officers have jurisdiction to determine the issues between the parties and that the statutory bankruptcy regime is unlawful. These arguments are nonsensical, incomprehensible and circular. It is unnecessary for notices to be given under s 78B Judiciary Act where the contentions ordinarily requiring such notices are plainly unarguable: Re Finlayson; ex parte Finlayson;[3] Glennan v Commissioner of Taxation.[4]This is clearly such a case. Mr Quazer's application to adjourn the hearing of these applications to allow him to serve s 78B notices on various Attorneys-General must be refused.
[30] It follows that in the unusual circumstances of this case, Secure Funding should be given leave to proceed under UCPR r 72 to bring its application to summarily dismiss this appeal and this Court should dismiss Mr Quazer's appeal with costs. As Mr Quazer's appeal has no prospect of success and is to be dismissed, it would be pointless to grant his application to join Ms Freymann as an appellant. Mr Quazer's application should be refused with costs.
ORDERS:
1.The appellant, Robert Charles Quazer's, oral application to adjourn the proceedings to serve notices under s 78B Bankruptcy Act 1903 (Cth) is refused.
2.The respondent to this appeal, Secure Funding Pty Ltd, is granted leave under Uniform Civil Procedure Rules r 72 to proceed against the appellant bankrupt, Robert Charles Quazer.
3.The appeal is dismissed with costs.
4.The appellant, Robert Charles Quazer's, application filed on 31 May 2010 to join Britta Freymann as an appellant is refused with costs.
[31] WHITE JA: I agree with the reasons of the President and the proposed orders.
[32] APPLEGARTH J: I agree with the reasons of the President, and with the orders proposed by her Honour.