Heritage Bank Limited v Gleeson (No. 5)
[2020] QDC 270
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- Unreported Judgment
- Heritage Bank Limited v Gleeson (No. 5)[2020] QDC 270
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Heritage Bank Limited v Gleeson (No. 5)[2020] QDC 270
Heritage Bank Limited v Gleeson (No. 5)[2020] QDC 270
DISTRICT COURT OF QUEENSLAND
CITATION: | Heritage Bank Limited v Gleeson & Anor (No. 5) [2020] QDC 270 |
PARTIES: | HERITAGE BANK LIMITED (FORMERLY HERITAGE BUILDING SOCIETY LIMITED) ABN 32 087 652 024(plaintiff/respondent) v JAROD LUKE GLEESON (AKA JAROD LUKE)(first defendant/applicant) AND SHEREE AMY TAYLOR(second defendant/applicant) |
FILE NO: | 3066/18 |
DIVISION: | Civil |
PROCEEDING: | Application filed 11 March 2020, as amended by Order dated 29 July 2020 |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 26 October 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 October 2020 |
JUDGE: | Porter QC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – where the defendants have defaulted on mortgage repayments – where substituted service orders were made against both defendants – where default judgment was entered against the defendants in respect of the default – where the defendants seek to set aside the default judgment by challenging the validity of the substituted service order – where the defendants argue the default judgment should be set aside because the substituted service orders upon which it was based were obtained by fraud – where the defendants argue the default judgment should be set aside because the Bank breached its duty of disclosure arising from the ex parte nature of the substituted service application – where the defendants argue the default judgment should be set aside because the defendants have defences on the merits to the Bank’s claims – whether fraud alone (if established) is sufficient to set aside default judgment as of right – whether the alleged fraud was material to any defence – whether the non-disclosure was material – whether there is any defence on the merits – where the plaintiff assigned the benefit of the mortgage and debt in equity but remains the legal owner – whether plaintiff has standing to sue on the mortgage to recover the debt notwithstanding equitable assignment |
LEGISLATION: | Births, Deaths and Marriages Registration Act 2003 (Qld) Registration of Births Deaths and Marriages Act Amendment Act 1974 (Qld) s. 22; 27 Uniform Civil Procedure Rules 1999 (Qld) rr. 667(2)(b); 668 |
CASES: | Attorney-General (Vic) v Commonwealth (Marriage Act Case) (1962) 107 CLR 529 Briginshaw v Briginshaw (1938) 60 CLR 336 C v S [1979] 2 NSWLR 598 Cabassi v Vila [1940] 64 CLR 130 Di Carlo v Dubois [2007] QCA 316 Heritage Bank Limited v Gleeson (No. 1) [2019] QDC 119 Heritage Bank Limited v Gleeson (No. 2) [2020] QDC 36 Heritage Bank Limited v Gleeson (No. 3) [2020] QDC 217 Heritage Bank Limited v Gleeson (No. 4) [2020] QDC 224 Pizzinato v Pizzinato (1967) 10 FLR 374 Rogers v Wentworth (No. 5) (1986) 6 NSWLR 534 |
COUNSEL: | S P Taylor for the Plaintiff/Respondent First and Second Defendants/Applicants self-represented |
SOLICITORS: | Dentons Australia for the Plaintiff/Respondent First and Second Defendants/Applicants self-represented |
Summary
- [1]This is an application by the first and second defendants seeking to set aside an order for substituted service made by Judge Richards dated 9 November 2018 and a default judgment made consequent upon compliance with that order and failure of the defendants to defend, made by the registrar on 30 January 2019. For the reasons which follow, the application is dismissed.
Background
- [2]This application is a continuation of litigation by the defendants to set aside the substituted service order and default judgment which, for the second defendant, (Ms Taylor), reaches back to mid-2019. At that time, Ms Taylor alone applied for the orders sought in this application. That application was heard and dismissed by me: Heritage Bank Limited v Gleeson [2019] QDC 119. There has been no appeal. That judgment sets out the background to these proceedings, up to 25 June 2019 as follows:
[1] On 23 August 2018 the plaintiff commenced proceedings in the District Court of Queensland seeking possession, under a registered mortgage, of a certain house and land (the house) and judgment for sums owing under a loan agreement secured by the mortgage. The first defendant, Jarod Luke Gleeson, is the husband of the second defendant, Sheree Amy Taylor although they have not lived as husband and wife for some time. Mr Gleeson, is the registered proprietor and mortgagor of the house.
[2] The house came to be owned by him in its current form, in general terms, in this way. Mr Gleeson and Ms Taylor began living together in a domestic relationship in around 2004. In 2006 they bought a piece of land and obtained funding to build a house on it. They married in late 2012. The house was funded by lending from Heritage Bank Limited (the Bank), along with some part of the purchase of the land.
[3] There have been various dealings between Mr Gleeson and Ms Taylor and the Bank since then, but they are not of great significance to this particular application. By about early 2018, the Bank was asserting that the loan was in default and it was seeking to realise its security. Thus the plaintiff commenced proceedings on 23 August 2018 seeking possession under the terms of the mortgage and section 78 of the Land Title Act 1994 (Qld) and judgment for amounts due under the loan agreement.
[4] Ms Taylor, as I have a said, was not a registered proprietor or a mortgagor. She was, however, a joint borrower with Mr Gleeson of the funds which are secured by the mortgage. Between August and November 2018, the Bank undertook efforts to cause the proceedings to be personally served on Mr Gleeson and Ms Taylor. Those efforts are described in affidavits of Mr Phillips and Mr Veivers, the process servers.
...
[13] The above evidence of attempted service was put before her Honour Judge Richards of this Court and her Honour made orders for substituted service on 9 November 2018. Her Honour’s orders were that personal service be dispensed with and under the relevant rule service be effected by posting the claim and the statement of claim to the property, delivering a copy of the documents to the house, and notifying the defendants by SMS to a certain mobile that that had occurred. I presume that that mobile number was Mr Gleeson’s mobile number. The service of the statement of claim was deemed to have occurred five business days after those steps were taken.
[14] ...
[15] It is not disputed that Her Honour’s substituted service order was complied with and that default judgment was entered on 30 January 2019. Default judgment was ordered both for possession of the land and for a sum said to be due under the loan agreement. The Bank sought an enforcement warrant. The warrant has been executed and the Bank is in possession.
[16] Mr Gleeson seemed to respond to the proceedings from time to time with documents which were misconceived. Things took a rather more disciplined turn when Ms Taylor found out about the default judgment and the enforcement warrant. Her evidence is that the proceedings did not come to her attention as a result of compliance with the substituted service orders. I am willing to accept that that was so based on the fact that Ms Taylor’s industry, since 24 April 2019 when she says she did find out about the default judgment and enforcement warrant, has been consistent and energetic.
[17] It is, of course, irrelevant to the validity of the substituted service order as such, that the documents did not come to her attention as long as that order was properly made. If default judgment has been regularly entered following substituted service it will only be set aside if there is an arguable defence on the merits.
[18] Ms Taylor applied to set aside the default judgment on 24 April 2019. On 8 May 2019 Ms Taylor sought to stay the enforcement warrant and various consequential orders. However the fundamental requirement for Ms Taylor was always to set aside the default judgment, upon which the enforcement warrant for possession was based.
[19] There were some adjournments of those applications for Ms Taylor to obtain legal assistance. Ultimately she has obtained that assistance from Ms Chekirova. The application is supported by a great deal of material. The structure of the application is really this:
- (a)Has the judgment been regularly entered? If not, the default judgment should be set aside.
- (b)If it has been regularly entered, is there a sufficiently arguable defence on the merits to justify setting aside the default judgment?
- [3]The arguments advanced at the hearing were largely confined to the first question. Ms Taylor contended that the judgment was not regularly entered because the substituted service order was irregularly obtained and should be set aside on two grounds:
- (a)That Mr Veivers’ evidence was unreliable and should be rejected; and
- (b)That the Bank failed to disclose all relevant information on the substituted service application before her Honour in breach of its duty of full disclosure such that the order ought to be set aside.
- (a)
- [4]I rejected both arguments. I did not think that the evidence justified rejection of Mr Veivers’ evidence. Further, although I found that the defendants succeeded in identifying a material non-disclosure, I refused to set aside the substituted service order because the defendants had no arguable defence on the merits in any event.
- [5]The defendants together then filed this application on 11 March 2020, along with supporting affidavits and submissions. At that stage the defendants contended, amongst other things, that the substituted service order ought to be set aside pursuant to rr. 667(2)(b) and 668 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) on the basis that the order was obtained by fraud.[1]
- [6]The defendants initially sought to have the application decided without an oral hearing and without serving it on the Bank. That matter came before me on the papers. On 18 March 2020, I refused to proceed in that manner and ordered that the application be adjourned to a date to be fixed, and that any further hearing of the matter be by way of oral hearing. I further ordered that should the matter be re-listed, it was to be re-listed in the applications list for mention only. I also referred to the necessity for the application to seek to set aside the default judgment if it was to be efficacious: Heritage Bank Limited v Gleeson (No. 2) [2020] QDC 36.
- [7]The defendants persisted. The narrative is picked up by my judgment in Heritage Bank Limited v Gleeson (No. 4) [2020] QDC 224:
[6] The application was re-listed and came before his Honour Judge Barlow QC for mention on 9 April 2020. His Honour ordered that the 11 March application be adjourned for mention on 23 April 2020, the mention to be limited to the production of documents sought by subpoena and any application for access to subpoenaed documents. His Honour further ordered that the application filed 11 March 2020 be listed for hearing (up to one day) on the civil list on a date to be fixed, but not before 28 May 2020. It must be emphasised that the effect of his Honour’s orders was that the 11 March application was listed on 23 April only to deal with subpoenas, not for hearing. There is no evidence of any order thereafter changing that situation.
[7] On 15 April 2020, the defendants filed Requests for Subpoena to produce documents directed to the Bank, the Bank’s solicitors Dentons, Mr Veivers and Sharmans Investigations (the April Subpoenas).
[8] So far as I am aware, the evidence does not disclose if one or more of the April Subpoenas had been served nor does it disclose if any documents had been produced in response to them.
[9] The 11 March application came before Judge Koppenol on 23 April 2020 as directed by Judge Barlow.
- [8]His Honour made orders which in effect refused leave to inspect any documents produced in response to the April subpoenas issued by the defendants. That was accepted by all parties. The orders made by Judge Koppenol on that date were, however, disputed by the parties in another respect. The Bank contended that his Honour had dismissed the 11 March application in its entirety on that date, the defendants contended his Honour had only dealt with the subpoena issues. That dispute was resolved by me on 29 July 2020 in favour of the defendants: see Heritage Bank Limited v Gleeson (No. 4) [2020] QDC 224.
- [9]In the meantime, the defendants issued a further round of subpoenas which overlapped considerably with the April subpoenas (the July subpoenas). On 29 July 2020, the Bank applied to have the July subpoenas set aside. I dealt with that matter on the papers. The Bank succeeded on its application: Heritage Bank Limited v Gleeson (No. 3) [2020] QDC 217.
- [10]One of the grounds upon which the July subpoenas were set aside was that they were issued for the purpose of obtaining documents to demonstrate that Mr Veivers’ evidence that he attempted service on the defendants on 4 and 7 September 2018 and that he took a certain picture that day in circumstances where:
- (a)Some of those issues had already been considered in Heritage Bank Limited v Gleeson [2019] QDC 119; and
- (b)The further evidence relied upon by the defendants on that issue was prima facie weak.
- (a)
- [11]Much of the same material was put before me on the hearing of this application. While my observations made in Heritage Bank Limited v Gleeson (No. 3) [2020] QDC 217 might remain relevant on the hearing of this application (and are relied upon by the Bank in some respect), my conclusions on the strength of the evidence in that judgment do not bind me in this application. Further, in this application I heard full argument from the parties and had the benefit of observing the cross examination of Mr Veivers. I will assess the defendants’ contentions again on the whole of the evidence.
Summary of the defendants’ arguments
What’s in a name?
- [12]The defendants’ advance numerous arguments under many headings in their two detailed written submissions[2] and extensive affidavit evidence.
- [13]Some of the arguments advanced are without foundation in the evidence or otherwise plainly wrong propositions. Many of these arguments arise out of the underlying proposition that the first defendant is not “Jarod Luke Gleeson” but rather his “true” name is “Jarod Luke”. I wish to make some comments about that proposition before turning to substantive analysis of the defendant’s arguments.
- [14]The first defendant’s birth certificate[3] does not state expressly that his full name is “Jarod Luke Gleeson”. Rather it shows his “First Names” as “Jarod Luke” and both his parents’ surnames as Gleeson. Strange as it might seem, it appeared to me that the first defendant is genuinely anxious about the apparent lack of direct reference to the name “Jarrod Luke Gleeson” on his birth certificate and genuinely fears that somehow he acts wrongly in using or responding to any name other than Jarod Luke. That fear involves a misconceived literalism in my view: the obvious meaning of First Names is that these are the first defendant’s given names. His surname must prima facie be Gleeson: there is no other possibility on the face of the document.
- [15]Further, the first defendant accepted that he had been known as Jarod Luke Gleeson, and himself had used that name, until 2017. There is no real dispute that the first defendant is the person who at least until 2017 was known as, and used, that name and borrowed the money from the Bank and gave the mortgage relevant to these proceedings. That is the end of the relevance of this issue for the purposes of this application.
- [16]However, the applicant pleaded with me to say more about this issue. I have therefore looked into the matter. These comments are obiter of course, and are entirely irrelevant to the outcome of this application.
- [17]It is odd one might think that a birth certificate issued in 1983 did not expressly state the full name of the child whose birth was being registered: given names and surname. One might presume, given the prevailing social norms at the time, that where the father’s name was shown, the child would take the father’s name, all the more so where the birth certificate disclosed that the father and mother were married and the mother had adopted the father’s surname on marriage (which was still very common in 1983). Indeed that was the rebuttable presumption at common law: a child to married parents takes his or her father’s surname.[4]
- [18]However, it is not necessary that the first defendant resort to common law presumptions. In 1974, the Registration of Births Deaths and Marriages Act 1962 (Qld) (the BDM Act 1962) was amended[5] so as to introduce s. 27A to the principal Act. That section provided:
27A. Entry of child’s surname in register
The name to be entered in the register of births as the surname of a child shall be –
- (a)the surname of the father, where a person is registered as the father of the child;
- (b)the surname of the mother, where no person is registered as the father of the child.
- [19]The section was in that form at the date of the first defendant’s birth. The effect of this provision, given the terms of the birth certificate of the first defendant, is that the surname of the child “Jarod Luke” was Gleeson. The first defendant nonetheless tried to tender in evidence a document which I assumed was a copy of his certificate of birth. He contended that the document did not show the surname Gleeson in a “marginal note”. That is perhaps an erroneous reference to s. 22(1A) of the BDM Act 1962 which provides relevantly:
(1A) In making a certified extract from an entry or duplicate entry in a register relating to the birth of a child registered prior to the commencement of the Registration of Births, Deaths and Marriages Act Amendment Act 1974, the registrar general or, as the case may be, district registrar shall show as the surname of the child—
- (a)where a person is registered as the father of the child and a marginal note has not been entered in the appropriate birth registration pursuant to section 28A—the surname of the father;
- (b)where no person is registered as the father of the child—the surname of the mother;
- (c)where pursuant to section 28A there is entered in the appropriate birth registration a marginal note showing the surname of the mother as the surname of the child—the surname of the mother as evidenced by that note
- [20]This provision was not applicable to the first defendant because he was born after the 1974 amendment. But even if it was, it would have had the effect (where there is no marginal note) that his name was Jarod Luke Gleeson. It seems to me that the effect of these provisions inevitably was that under the BDM Act 1962, the first defendant’s name based on his birth certificate was Jarod Luke Gleeson. I have not traced through all the details of the transition to the current Act[6], nor the details of how a search of the current register of births would display the first defendant’s name. If he is determined to continue to be agitated about this issue, he will undoubtedly find reasons to do so.
- [21]However, based on this brief review of the statutory history, it seems clear to me that his name at the date of his birth was Jarod Luke Gleeson, as it seems everyone including himself and the Bank accepted, until he discovered the apparent ambiguity which has caused him so much agitation. (And further, such usage was probably sufficient to make that his surname in any event.[7])
- [22]I emphasise again, however, that these observations are not necessary to my decision. There is no dispute that the male person who appeared on the application before me was the male person being referred to by the name Jarod Luke Gleeson in all the documents in evidence and in the pleadings, and who now refers to himself as Jarod Luke. That is the relevant point for today. As Juliet said of Romeo[8]:
What's in a name? That which we call a rose
By any other name would smell as sweet
- [23]In the balance of my reasons, I will refer to this name issue from time to time as it arises, but in the context of the above observations.
The defendants’ arguments
- [24]Their arguments can be summarised as follows:
- (a)The default judgment should be set aside because the substituted service orders upon which it was based were obtained by fraud;
- (b)The default judgment should be set aside because the Bank breached its duty of disclosure arising from the ex parte nature of the substituted service application; and
- (c)The default judgment should be set aside because the defendants have defences on the merits to the Bank’s claims.
- (a)
- [25]For the reasons which follow, I am not persuaded that any of the arguments of the defendants are sufficient to establish that the default judgment should be set aside. I explain as follows.
Arguments that substituted service order affected by fraud
Summary
- [26]The defendants contend that the substituted service order was affected by fraud because the affidavits of Mr Veivers relied upon before Judge Richards were knowingly false, both as to their statements that Mr Veivers attempted to serve the defendants at the secured property on 4 and 7 September 2018 and as to the statement that Mr Veivers took a photograph on 4 September 2018 which was exhibited to his affidavit. (They also contend that the evidence of Mr Phillips was false because of an argument based on the name issue.[9] That has no merit and I will not refer to it further.)
- [27]They submit that if those affidavits were false, and Mr Veivers did not attempt service as he swore, then the substituted service orders and the default judgment should be set aside as induced by fraud under r. 667(2)(b) UCPR.
Relevant principles
- [28]The defendants relied on Cabassi v Vila [1940] 64 CLR 130 at 157 where Williams J (with whom Rich AJ concurred) observed (footnotes omitted):
A judgment which is procured by fraud is tainted and vitiated throughout. If the fraud is clearly proved the party defrauded is entitled to have the judgment set aside in an action (Hip Foong Hong v. Neotia & Co. [62]; Jonesco v. Beard [63]). In some of the older cases in the House of Lords it has been stated that where a judgment has been so obtained it may be treated as a nullity (Shedden v. Patrick [64]; R. v. Saddlers' Co. [65]). In the last-mentioned case [66], Willes J. said: "A judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding...”
- [29]In reliance on this provision, the defendants submitted that if fraud by Mr Veivers was established, the substituted service order and therefore the default judgment should be set aside as of right. Even if that is the common law (which as will be seen it is not), one might doubt that that is the law to be applied by me given that s. 667(2) confers a discretion upon the Court if it is shown that an order was obtained by fraud. That discretion might properly be applied, however, with regard to general law principles.
- [30]In any event the statement quoted by the defendants does not represent the law to be applied to this case. Cabassi v Vila itself recognises that is so. Immediately after the quoted passage, Williams J went onto observe (footnotes omitted):
In all these cases the judgment had been procured by collusion, and in Boswell v. Coaks [No. 2] the Earl of Selborne said that the whole proceeding in such a case may be described as "fabula non judicium." He then pointed out that there is a second class of case where "it is not sought to treat as a nullity what has passed, but to undo it judicially upon judicial grounds, treating it as in itself, and until judicially rescinded, valid and final." The judgments impeached in the present action are included in the second class. In Charles Bright & Co. Ltd. v. Sellar ] the Court of Appeal pointed out that actions to set aside a judgment on the ground of fraud do not invite the court to re-hear upon the old materials, but "fresh facts are brought forward, and the litigation may be well regarded as new and not appellate in its nature, because not involving any decision contrary to the previous decision of the High Court." I have been unable to find any case in which a judgment has been set aside where the only fraud alleged was that the defendant or a witness or witnesses alone or in concert had committed perjury. In fact the court has said that except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment (See Flower v. Lloyd ; Baker v. Wadsworth), but in view of the allegation in the statement of claim that the evidence did deceive and fraudulently mislead the court I shall assume the plaintiff could establish such special circumstances.
[underlining added]
- [31]The principles applicable where a party seeks to set aside a judgment on the basis of fraud are summarised in the judgment of Kirby P (with whom Hope and Samuels JJA agreed) in Rogers v Wentworth (No. 5) (1986) 6 NSWLR 534 at 538 – 540. The relevant passage was approved by the Queensland Court of Appeal in Di Carlo v Dubois [2007] QCA 316 where Keane and Muir JJA and Cullinane J held as follows (footnotes omitted):
- [31] It is well-established by authority that, so far as an action to set aside a judgment on the ground of fraud is concerned, the court must be satisfied that there is a real prospect of the fraud alleged being established. In Wentworth v Rogers (No 5), Kirby P, as his Honour then was, stated the following principles:
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 at 147; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VicLawRp 80; [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.
Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment; Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJ QB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft [1846] EngR 1070; (1846) 10 Beav 122 at 136-139; [1846] EngR 1070; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Sheddon v Patrick (at 643).
Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment." (emphasis added)
- [32]The Court of Appeal applied these principles in concluding that the proceeding to set aside a judgment for fraud before the Court was rightly dismissed summarily by the trial judge, including concluding that even if the evidence challenged was false, it would not have be material in the trial.[10]
- [33]I do not think there is any inconsistency between Cabassi, properly understood, and Rogers v Wentworth (No. 5), and even if there was, this Court should follow the Queensland Court of Appeal. Nor do I think that the tests articulated by Kirby P and adopted by the Court of Appeal should apply with less vigour because the judgment is a default judgment. Indeed, each of Rogers and Di Carlo involved appeals from interlocutory orders striking out proceedings to set aside judgments. Further, the interests in finality of litigation are engaged by default judgments as well as trial judgments. The fact that a default judgment is entered without trial is reflected in the lesser burden that the applicant bears in seeking to set it aside. It can be reasonably assumed that second factor identified by Kirby P would take account of this in that all the defendants have to show is that the fraud might provide a basis for an arguable defence on the merits, rather than that the outcome of a trial on the merits would have been affected. Beyond that, I can see no reason why the principles articulated by Kirby P and adopted in Di Carlo would not apply to this application.
Establishing fraud by Mr Veivers insufficient
- [34]In my respectful view, the above principles demonstrate that even if the defendants established that Mr Veivers’ evidence was entirely false, that would provide no basis to set aside the default judgment in this case. There are three reasons for this.
- [35]First, the allegations of fraud by Mr Veivers go to the substituted service order. They do not impugn the entitlement of the Bank to judgment on its claims. Thus proof of the alleged fraud does not make it reasonably probable that their defence of the Bank’s claim will succeed. It is difficult in that circumstance to see how proving fraud by Mr Veivers could possibly justify setting aside the default judgment. Frankly, I can see no answer to this proposition. For this reason alone, the application by the defendants to set aside the default judgment on the basis of alleged fraud by Mr Veivers must fail.
- [36]Second, the allegations of fraud do not impugn the evidence of Mr Phillips, the other process server. His evidence alone would in my view have justified her Honour making the order for substituted service. Thus establishing the alleged fraud against Mr Vievers would not result in even the substituted service order being set aside.
- [37]Third, there is no evidence whatsoever that the Bank was responsible for any fraud by Mr Veivers.
- [38]It is therefore unnecessary to resolve whether the defendants have established the fraud they allege against Mr Veivers. Even if they did so, their application would still fail.
Mr Veivers’ evidence
- [39]As I have observed, Mr Veivers gave evidence that he attended the property on two occasions, on 4 September and 7 September 2018 to attend service on both parties and that he took a photograph of two signs in the front glass adjacent to the door. The signs stated as follows (and give the flavour of much of the first defendant’s correspondence and arguments):
Non-Commercial
Non-Resident
Private Property
For Private Use
No Trespass
No Voluntary Consent
No Voluntary Surety-ship
No Voluntary Second Witness
Unless by prior arraignment
By order of the temporary dweller
All rights, Powers, Privileges
& Immunities, Whether
Actual, Contingent or
Prospective, are Reserved
TO CONFRONTING AGGRESSORS AT THIS
DOOR
JUSTICE MICHAEL KIRBY 1998
AUSTRALIAN HIGH COURT RULING
NO-ONE, BUT NO – ONE, NOT EVEN THE
QUEEN COULD TRESPASS OR TAKE
PROPERTY HELD IN FEE SIMPLE – EQUATES
TO THEFT
There are many case studies for you where the
Trespasser was fined $187,000,
For example
PLENTY V DILLON
You are invited to attain a High
Court order to contravene the order
made above.
- [40]The defendants attack on Mr Veivers’ evidence was most compelling in relation to this photograph. They contended that the photograph must have been taken between February and September 2017 because:
- (a)Those particular signs were in place but were taken down in September 2017;
- (b)The doorbell (shown in the photograph) had been removed by September 2018; and
- (c)Some pot plants visible in the original photograph (not put before me) had been moved by September 2018.
- (a)
- [41]The defendants adduced hearsay statements from a number of friends and family who confirmed one or more of these propositions. They tendered photographs from around that time which tended to prove the correctness of those propositions (though they had no photographs from the days on which Mr Veivers said he attended the house.) They also led evidence of statements by Mr Veivers to Ms Taylor that he sent the photographs to Wise McGrath, and had asked that company to provide a copy and had been told they were not available. That Mr Veivers was mistaken in this respect was made clear from his evidence under cross examination that Wise McGrath had nothing to do with the matter and did not instruct him.
- [42]Oddly, on the other hand, the defendants admitted that Mr Veivers’ photograph was an authentic photograph of their front door, just at a time a year or more before Mr Veivers says he went to the house for the first time. The defendants could not explain how Mr Veivers came to have the photograph in that case, if he did not take it. It was not suggested to him in cross examination that he had been to the house before or had had any dealings with the defendants for any other purpose. It was suggested in submissions that he might have been there before to serve other documents, but that was entirely speculative. When asked why Mr Veivers would have included a photograph which was not from the house when he simply did not need to, the defendants argued that he might have seen Mr Phillips’ photograph and decided to add one of his own. This is highly unlikely. If he was not at the house when he said he was, why refer to a photograph at all? It would just increase the prospect of being found out. Further, if determined to refer to a photograph, having not been at the house at all, why include one which he knew was not taken at that time? Why not just refer to Mr Phillips’ photograph?
- [43]The defendants had no rational answers to these questions. And it must be kept in mind that there was no evidence Mr Vievers knew anything about the defendants at the time he was first instructed to serve them.
- [44]The timing of the photograph certainly raises some oddities. I am not satisfied, however, on its own that it demonstrates intentional deceit by Mr Veivers in swearing that he took that photograph when he attended the house in September 2018.
- [45]The defendants also relied on various pieces of evidence which they said showed Mr Veivers had never been to the property to try to serve them. Some parts of this evidence goes to whether he could in fact have been there as he said, and some goes solely to credit.
- [46]I wish to deal first with the attacks which went solely to credit. The defendants had prepared meticulously for their cross examination. They made some points which tended to show that Mr Veivers was not assiduous in his paper work. However, none of those matters seemed rationally to lead to the conclusion that he would be dishonest in swearing an affidavit.
- [47]The defendants also placed a great deal of weight on an audio visual recording of Mr Veivers’ reaction to the first defendant when the first defendant came to Mr Veivers’ home to try to personally serve the July subpoena on Mr Veivers (being the second subpoena served on Mr Veivers).
- [48]Mr Veivers accepted he had been rude and abusive on that occasion, but said that the first defendant had also been abusive. The audio visual recording demonstrated that the first defendant had not been abusive. What is demonstrated, however, is that the first defendant went onto Mr Veivers’ property, secretly recording, and remained there after Mr Veivers told him aggressively to leave the property. The audio visual recording shows he was provoking Mr Veivers and refusing to leave his property. For someone obsessed with the law of trespass, his suggestion in submissions that he did not realise he had to leave when Mr Veivers told him to was disingenuous. His behaviour that day reflects poorly on him, even if he was not actually abusive.
- [49]As to the issues before this Court, I do not think the video has any relevance. It was and is clear that Mr Veivers heartily dislikes the first defendant, but that his reasons arise from his dealings with the first defendant well after he swore his affidavits. They cannot provide a motive for falsely swearing an affidavit long before he had dealings with the first defendant.
- [50]The defendants also refer to various subsequent statements which are said to demonstrate Mr Veivers’ affidavits were false. As to those points, I repeat my comments in Heritage Bank Limited v Gleeson (No. 3) [2020] QDC 217 as follows:
[93] Here of course, there is fresh evidence available. In that regard, it is necessary to consider Ms Taylor’s evidence and Mr Luke’s evidence.
[94] I can deal shortly with Ms Taylor’s evidence. She relies primarily on statements made by Mr Vievers which she submits after my first judgment which demonstrate that he perjured himself in his affidavits. Considering the material as stated in Mr Taylor’s affidavit, that is an improbable inference. The matters she raised listed in paragraphs [9], [10] and [13] provide a very weak inference of any malfeasance by Mr Veivers. It is hardly surprising Mr Veivers did not have a recollection of her involvement in the matter, given how long ago he had been there to serve her, that he had done that at the same time as he attended looking for Mr Luke and the fact she was not the registered owner. While Ms Taylor’s evidence is therefore fresh evidence in this respect, it is very weak evidence of the perjury she alleges.
[95] The only fresh evidence of substance (as in new evidence that could not have been obtained before the last hearing) is the alleged admissions by Mr Veivers that he had committed perjury referred to in paragraphs 30 and 31 of Mr Luke’s affidavit at CD 50. It is evident to me from that exchange as presented by Mr Luke, that it is highly likely Mr Veivers was speaking sarcastically. Mr Luke’s evidence demonstrates that Mr Veivers had a low opinion of Mr Luke. It is a very weak foundation for an allegation of perjury.
- [51]None of the submissions made by the defendants, nor the further evidence put before me, cause me to take a different view of that evidence that I took on the previous occasion. The defendants submitted that Mr Veivers did not give evidence that he had a poor recollection generally, but that does not answer the specific points identified above.
- [52]The first defendant also asserted that he was painting his front fence every day, all day, over the period that Mr Veivers says he tried to serve. I am not persuaded that he was so constantly at work over that period that he might not have been absent when Mr Veivers tried to serve him. Similarly, the first defendant sought to contradict Mr Veivers’ statement to the effect that neighbours were unable to assist with hearsay evidence that the neighbours did not recall Mr Veivers. That is insufficient to persuade me that the text of the affidavits in that regard was perjury.
- [53]The burden on the defendants was to persuade me that Mr Veivers deliberately fabricated the account in his two service affidavits. Although that only had to be established on the balance of probabilities, it had to be established bearing in mind the seriousness of the allegation of deliberate perjury.[11] Although it is possible some kind of mistake has occurred (in some incredibly unlikely fashion) in relation to the photograph, I do not accept that Mr Veivers’ affidavits were deliberately false.
- [54]I add this: the pursuit of Mr Veivers by the defendants has been calculated and sustained. They have repeatedly secretly recorded his conversations and secretly filmed interactions with him. All this has occurred without the defendants ever suggesting that the money was not borrowed from the Bank nor that it was not paid back. Their complaints about his conduct have been heard and determined. That should be the end of the matter.
Conclusion
- [55]The argument that the substituted service order and the default judgments should be set aside on the basis that they were obtained by fraud is rejected.
Material non-disclosure arguments fail
- [56]These arguments can be disposed of relatively briefly. In the Heritage Bank v Gleeson [2019] QDC 119 at [30] to [47], I dealt with an allegation of material non-disclosure advanced by Ms Taylor on that occasion. The allegation was that the Bank should have disclosed Ms Taylor’s preference for email communication to a particular email address. A similar argument was advanced again on this application. It was that the Bank did not disclose that it had “redacted” emails from that address. The point seems to have been the emails sent by the Bank were then not able to be found by Ms Taylor, therefore the Bank had taken them back. No evidence was led as to how the Bank could have done this technically. In any event, it was ultimately the same point as before: the Bank should have disclosed the email address. As I found before, even if that were so, ultimately the default judgment would not be set aside because it would be futile to do so in the absence of an arguable defence: [46] to [47].
- [57]The defendants have tried to find further examples of material non-disclosure. I will not consider them one by one. None of them justify setting aside any of the orders made in the absence of an arguable defence on the merits. That is particularly so given the long period which has now passed since the default judgment was entered. Two of the arguments advanced should be mentioned however.
- [58]The first is the argument that the Bank should have disclosed to her Honour that the address the first defendant was giving when sending misconceived correspondence to the Bank was the address of the Registrar of Births Deaths and Marriages. That should not have been disclosed. It was self-evidently not an address of the first defendant. It is a reflection of the consequences of the spurious nature of the arguments based on the first defendant’s obsession with his name.
- [59]The second is the argument that the Bank should have disclosed that mail sent to the first defendant at the address of the property had been returned. While this might be a matter which should have been disclosed, it loses persuasiveness as a reason why one might set aside an ex parte order when it is understood that the first defendant was receiving the mail but returning it to the Bank. Again, he was doing this because of his view that Jarod Luke Gleeson was not his name.
No defence on the merits
- [60]Finally, these reasons arrive at the real issue: whether there is any arguable defence on the merits to the Bank’s claims. There a number of misconceived points raised in written submissions which I do not intend to deal with. They are self-evidently without foundation, and many are inspired by the name issue. The Bank’s submissions address some of them at [46] to [57].[12] It is sufficient specifically to address the following arguments:
- (a)That the mortgage was fraudulently altered; and
- (b)(A late breaking idea), the Bank had assigned the mortgage and the secure debt, so it could not sue on it.
- (a)
Alleged fraudulent alteration
- [61]The argument as I apprehend it is that the version of the mortgage signed by the first defendant had a cross next to his name, while the version obtained from the Real Property Register, does not have the cross next to the first defendant’s name.
- [62]When asked by me, the first defendant accepted that the signature on the registered instrument was his (at least at that time when he was using Jarod Luke Gleeson). He also accepted that the cross was not his signature. However he submitted that a cross can be a signature, so someone’s signature had been removed. Suffice to say, at this point the argument breaks down.
- [63]The Bank cannot now explain how the cross came to be omitted from the version signed by the first defendant and cannot now produce the original of the registered instrument. Those things are not surprising considering that the mortgage was executed 14 years ago. In any event, there is nothing to suggest that there is fraud of a kind in relation to the mortgage which would affect the Bank’s indefeasible title.
The assignment
- [64]It appears that the defendants’ diligence uncovered evidence that the mortgage given by the first defendant had been part of a securitisation arrangement. The defendants then delivered a carefully prepared Notice to Admit Facts, aimed at securing admissions that the Bank had assigned the legal interest in the mortgage. This raised the interesting question as to whether such a notice can be issued where there is no substantive proceeding on foot but rather is limited to an interlocutory application to set aside a default judgment. This point was not fully argued and I do not need to resolve it to resolve this application. The Bank responded to the Notice, admitting that it had assigned the equitable interest in the mortgage and mortgage debt, but not the legal interest. A title search demonstrates that to be correct.[13]
- [65]The defendants contended that the consequence of the assignment in equity was that the Bank was no longer the owner of the mortgage and mortgage debt and could not maintain a claim against them. That is wrong in law. The evidence is that the Bank has assigned the benefit of the mortgage and mortgage debt in equity only. It remains the legal owner and can sue on the mortgage to recover the debt.
The allegation of breach of undertaking
- [66]The defendants sought to rely on material said to show a breach of the undertaking given by the Bank on 29 July 2020. I refused to permit that material to be read on this application. If the defendants wish to pursue that matter, it must be brought in a separate application on proper notice seeking orders arising out of the alleged contempt. To be clear, no such application is before the Court at present.
Conclusion
- [67]The application filed 11 March 2020, as amended by Order dated 29 July 2020, is dismissed. I will hear the parties as to costs.
Footnotes
[1] CD 52 – Defendants’ March submissions
[2] CD 77 & 82 – Defendants’ September & October submissions
[3] CD 50 Exh “R”
[4] Attorney-General (Vic) v Commonwealth (Marriage Act Case) (1962) 107 CLR 529 at 584 per Windeyer J and see Pizzinato v Pizzinato (1967) 10 FLR 374; C v S [1979] 2 NSWLR 598 at 603. See generally: Halsbury's Laws of Australia [205-1815] Common law (Right of a child to use surname).
[5] By Registration of Births Deaths and Marriages Act Amendment Act 1974 (Qld)
[6] Births, Deaths and Marriages Registration Act 2003 (Qld)
[7] In the Marriage of Chapman and Palmer (1978) FLC 77,667 at 77,671.
[8] Act II Scene I
[9] CD 77 paragraph 5.1
[10] See the analysis at [34] to [43] especially at [40] to [41].
[11] Briginshaw v Briginshaw (1938) 60 CLR 336
[12] CD 80 – Written Outline for the Plaintiff
[13] Exhibit 2