Galinovic v Australia and New Zealand Banking Group Ltd
[2025] QCA 78
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- Galinovic v Australia and New Zealand Banking Group Ltd[2025] QCA 78
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Galinovic v Australia and New Zealand Banking Group Ltd[2025] QCA 78
Galinovic v Australia and New Zealand Banking Group Ltd[2025] QCA 78
SUPREME COURT OF QUEENSLAND
CITATION: | Galinovic v Australia and New Zealand Banking Group Limited [2025] QCA 78 |
PARTIES: | CHRISTINA GALINOVIC (applicant) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522 (first respondent) SHAYNE ELLIOTT (second respondent) PAUL O'SULLIVAN (third respondent) |
FILE NO/S: | Appeal No 16418 of 2024 SC No 762 of 2024 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time/General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Rockhampton – Unreported, 26 September 2024 (Crow J) |
DELIVERED ON: | 23 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 May 2025 |
JUDGES: | Bowskill CJ, Mullins P and Boddice JA |
ORDER: | The application for an extension of time within which to appeal is dismissed with costs. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where the primary judge made orders setting aside the claim and statement of claim, dismissing the proceeding, and awarding costs against the applicant – where the applicant seeks an extension of time to appeal those orders – where the application was filed outside of the 28 day period prescribed by the Uniform Civil Procedure Rules 1999 (Qld) – whether the orders of the primary judge are void by reason of the sealed order having been signed by a Registrar – whether the respondents lacked standing – whether the primary judge was correct in concluding that there was no obligation on the respondents to produce the original mortgage document in order to prove the existence of the mortgage and of the underlying debt Land Title Act 1994 (Qld), s 73, s 179 Uniform Civil Procedure Rules 1999 (Qld), r 16, r 660, r 661 Carborough Downs Coal Management Pty Ltd v Nicholson [2023] QCA 119, cited Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55, cited |
COUNSEL: | The applicant appeared on her own behalf N J Derrington for the respondents |
SOLICITORS: | The applicant appeared on her own behalf Gadens Lawyers for the respondents |
- [1]THE COURT: On 26 September 2024, the primary judge ordered that a claim and statement of claim filed by the applicant against the respondents be set aside, that the proceeding be dismissed and that the applicant pay the respondents’ costs of the proceeding on the standard basis.
- [2]The applicant seeks an extension of time within which to appeal those orders. In support of that extension, the applicant filed an affidavit stating that she was unable to file the appeal within that prescribed 28 day period due to a lack of legal assistance, a lack of formal training and illness. The applicant also stated that the 28 day rule did not strictly apply in the circumstances as there were serious doubts as to the lawfulness and validity of the orders.
- [3]The applicant further stated that the proposed appeal is meritorious and a denial of leave would result in a substantial injustice due to significant wrongs, unfairness, multiple errors of law and there being a serious question of fraud requiring investigation and rectification.
- [4]The proposed grounds of appeal assert a lack of standing, failures to comply with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), failures to prove essential facts by production of the original mortgage document, including the existence of a debt due and owing in support of the mortgage, the subject of the proceeding and denials of procedural fairness.
Background
- [5]On 12 August 2011, the applicant entered into a loan contract with the first respondent. The loan, which was to purchase an investment property, was secured by a mortgage signed by the applicant.
- [6]On 24 August 2011, the mortgage was registered against the title of the property.
Proceeding below
- [7]On 29 July 2024, the applicant filed a claim and statement of claim, claiming declaratory and other relief against the respondents in respect of the debt secured by the mortgage registered over the applicant’s property. Among other things, the applicant claimed the mortgage was void and there was no debt owing. The applicant also claimed damages in excess of $310 million and other relief for fraudulent misrepresentation, deceit, negligence, breach of contract, unconscionable conduct, fraud, breaches of fiduciary duties and breaches of statutory duties.
- [8]On 27 August 2024, the respondents filed a conditional notice of intention to defend, contending that the proceeding was irregular and that the claim was liable to be struck out and/or set aside under r 16 of the UCPR.
- [9]On 26 September 2024, the primary judge heard an application filed by the respondents on 6 September 2024, seeking the striking out of the claim and statement of claim and a cross-application filed by the applicant on 19 September 2024, seeking to strike out the conditional notice of intention to defend on the basis of invalidity and default judgment on the claim.
Primary decision
- [10]The primary judge found that the conditional notice of intention to defend was valid, there being no requirement that the solicitor acting for a party, sign in the solicitor’s own name, rather than the firm’s name. The primary judge further found that had it been necessary, the non-compliance would have been an irregularity such that the proceeding was not a nullity in any event.
- [11]The primary judge further found that there was no requirement for the respondents to produce the original mortgage document in order to prove the existence of a debt secured by the mortgage. A copy of the registered document, which on its face recorded it as a registered mortgage, was sufficient. Further, the registered document described the debts and liabilities secured by the mortgage, in accordance with the requirements of s 73 of the Land Title Act 1994 (Qld). There was also found to be no substance in a contention that the mortgage had not been validly signed by the bank. The document was signed under a specific power of attorney which was authorised by s 126 of the Corporations Act 2001 (Cth).
- [12]The primary judge rejected submissions that the loans were not in existence because of a breach of the Bills of Exchange Act 1909 (Cth), finding that the registered mortgage neither fitted within the definition of a bill of exchange, nor a promissory note. The primary judge also found that there was no basis to conclude that no monies had been lent under the registered mortgage. There was evidence of a loan document, clearly showing the existence of a loan contract of 12 August 2011, by which the applicant borrowed a certain sum on terms set out in the loan document for the purchase of the property, the subject of the registered mortgage. That loan contract was incorporated into the mortgage by its express terms. Further, its validity was not affected by whether monies were transferred electronically.
- [13]The primary judge also found that there was no evidence to support allegations of breaches of the director’s duties or of the Code of Banking Practice.
- [14]The primary judge found that the statement of claim disclosed no discernible cause of action and that as the applicant had been given considerable opportunity, during the hearing of the applications, to advance a case against the respondents and had been unable to do so, it was appropriate to exercise the discretion to strike out the claim and statement of claim.
- [15]The primary judge found that as the respondents had succeeded, it was appropriate to order that the costs be paid by the applicant, on the standard basis.
Leave to adduce further evidence
- [16]The applicant sought leave to adduce further evidence on appeal in the form of a forensic accounting report. The contended basis for the granting of leave was that the report supported the applicant’s contentions in relation to there being no valid mortgage, due to the absence of the original mortgage agreement documents and a lack of standing on the part of the respondents to enforce the mortgage, and the claimed damages.
- [17]As the proceeding below concerned whether the applicant’s claim and statement of claim disclosed a viable cause of action, such a report has no relevance.
- [18]In those circumstances, leave to adduce this further evidence was refused at the hearing of the application.
- [19]The applicant also filed another application for leave to adduce further evidence on the appeal. However, for the most part, it sought to refer to cases and legislation, which is not evidence. The only evidence sought to be relied on by this application, being the letter of offer, is before the Court (in exhibit 1).
Transcript below
- [20]At the hearing, the applicant advanced submissions that the transcript of the proceeding below, and the transcript of the oral reasons, had been impermissibly altered by the primary judge.
- [21]In so far as the transcript of the proceeding is concerned, no substantive error was identified. In so far as the transcript of the oral reasons is concerned, the applicant suggested some words had been removed by the primary judge, based on the applicant’s notes taken at the time the reasons were given. It is not unusual and is entirely permissible for the transcript of oral reasons to be revised by a judge.
Extension of time
- [22]An extension of time within which to appeal will usually only be granted to correct a substantial injustice. Factors relevant to the exercise of the discretion to grant an extension, include whether there has been any satisfactory explanation for the delay, the extent of the delay, any prejudice to a respondent, and the merits of any proposed appeal.[1]
- [23]In the present case, although there has been an explanation for the delay, it could not be said to be acceptable. Self-represented litigants are obliged to comply with the UCPR, including the time limits. A lack of representation and/or formal training is an insufficient reason for having failed to file a notice of appeal within the designated time period under the UCPR.
- [24]In any event, an assessment of the proposed grounds reveals a lack of merit in any appeal.
- [25]First, there is no merit in the applicant’s contention that the orders of the primary judge are void by reason of the sealed order having been signed by a Registrar. Rule 660 of the UCPR specifically provides that the orders of the court are made upon them being pronounced by a judge. The orders in question were pronounced, in open court, by the primary judge. Further, r 661 provides the power for a Registrar to issue a document recording those orders. There is also no substance in the suggestion that the order issued was invalid by reason of a failure to affix the formal seal of the court. The order is sealed in accordance with Registry practices.
- [26]Second, there is no merit in the applicant’s contention that the respondents lacked standing. The applicant commenced the proceeding naming the respondents as parties and claiming significant relief against them. They had standing to respond to those claims. They filed a conditional notice of intention to defend in accordance with the UCPR. The validity of that document was not dependent upon it being signed by the solicitor, in that solicitor’s personal name. Such a document can be signed in the name of the firm of solicitors that represents the respondents.[2]
- [27]Third, the primary judge was plainly correct in concluding that there was no obligation on the respondents to produce the original mortgage document in order to prove the existence of the mortgage and of the underlying debt. A copy of the registered document was proof of the existence of the mortgage.[3] Further, the copy evidenced that the document described the debts and liabilities secured by the mortgage, by reference to an identified standard terms document filed in the Land Registry. This is an established means by which to so identify the debts and liabilities secured. Section 73 of the Land Title Act 1994 (Qld) does not require the loan sum to be specified in Australian currency. It only requires a description of the debt or liability secured by the mortgage. The fact that the monies were advanced electronically does not mean there was no advance of funds.[4]
- [28]Fourth, the primary judge properly rejected contentions that there was a serious question to be tried in relation to the signing of the mortgage and associated documents, by a person other than the directors of the first respondent. Execution of those documents by a duly authorised attorney was permitted and there was no basis to conclude that the documents were therefore invalid.
- [29]Fifth, the primary judge correctly concluded that there was no evidence to support contentions of a breach of the Bills of Exchange Act, or of the Code of Banking Practice, or of other fiduciary duties. There was no evidence to support a conclusion that there was any issue in respect of those matters warranting a trial.
- [30]Sixth, there was no unequal treatment or denial of procedural fairness. The primary judge dealt with complaints in respect of the statement of claim, not on the basis of formatting issues, but as to whether the formal requirements of the UCPR had been met. The applicant also had ample time to prepare her case as evidenced by the detailed documentation relied upon by the applicant at the hearing. There was also no improper reliance upon an open letter sent by the respondents. That letter was relied upon solely in respect of costs.
- [31]In circumstances where it had been established that there was a registered mortgage, with an underlying outstanding debt, and no viable claims in relation to the invalidity of the mortgage or the underlying loan contract, the primary judge was correct to conclude that the applicant’s claim was doomed to fail, ought to be struck out.
Costs
- [32]The applicant also sought an extension of time within which to appeal the costs order.
- [33]A consideration of the circumstances supports a conclusion that such an appeal would have no prospects of success.
- [34]Once the claim and statement of claim were validly struck out, there was no basis to conclude that costs should be ordered, other than in the respondents’ favour. Costs in such circumstances ought to follow the event.
Conclusion
- [35]The grant of an extension of time in which to appeal would be futile. Any appeal is doomed to fail.
Orders
- [36]The Court orders:
- The application for an extension of time within which to appeal be dismissed with costs.
Footnotes
[1]Carborough Downs Coal Management Pty Ltd v Nicholson [2023] QCA 119 at [25].
[2]As explained in Permanent Custodians Ltd v Palmer [2009] VSCA 80 at [13].
[3]See s 179 of the Land Title Act 1994 (Qld).
[4]Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [43]–[46].