AMP Bank Limited v Doherty

1. [1]

   HIS HONOUR: Pamela Doherty is the registered proprietor of a property known as 303/361 Bernera Road, Edmondson Park. AMP Bank Limited holds a legal mortgage registered over the property, granted to Ms Doherty on 24 June 2021, securing a loan to her of $528,866 to be used for its purchase. By its amended statement of claim filed on 13 September 2022, the bank alleges that Ms Doherty is now in default of the loan, having breached terms requiring her to make monthly payments towards principal and interest. The bank seeks an order for possession of the property and judgment for the outstanding balance of the monies secured by its mortgage.

2. [2]

   By her amended defence dated 30 November 2022, Ms Doherty maintains that the debt has been repaid in full, not once but twice, by an unnamed third party. The amended defence is an extraordinary document, not merely because it rests upon that highly unlikely proposition, but also because it is replete with nonsensical and irrelevant contentions that would appear in terms to have been generated by someone, clearly not Ms Doherty, with significant personal difficulties. If it discloses a defence at all, it is patently incapable of withstanding the bank’s pleaded case. It is unsurprising in such circumstances that the bank has now moved the Court by motion filed 31 January 2023 for orders pursuant to UCPR 13.1 that judgment be entered on its claim.

Background

1. [3]

   Ms Doherty submitted an application to the bank on or about 1 June 2021 for a loan of $531,000. That loan was approved and Ms Doherty signed a loan agreement with the bank on 24 June 2021. The loan amount was $528,865.72. Security for the loan was by way of a first registered mortgage over the Edmondson Park property. Ms Doherty became the registered proprietor of that property on 18 October 2021. The bank’s mortgage was registered on the title to the property on the same day. It was a term of the loan agreement that Ms Doherty would repay the loan by regular instalments of principal and interest.

2. [4]

   Ms Doherty fell into arrears. A notice of default was served on her demanding payment of $10,285.43 on or before 5 August 2022. Ms Doherty failed to comply with the default notice. In due course, the full amount of the unpaid loan became due and the bank became entitled to take possession of the property.

3. [5]

   These and other matters are set forth in an affidavit sworn on 31 January 2023 by Alan Laubhan, a senior collections officer in the Client Assist Team of the bank. Mr Laubhan’s affidavit was read without objection. He was not cross-examined.

4. [6]

   Ms Doherty swore an affidavit on 29 March 2023 that was read without objection. She was not cross-examined. Ms Doherty deposed that at 8.00am on 9 February 2022, someone described as “Dr David Murphy” sent an email to the bank advising it that $1,053,998.22 had been sent to the bank by electronic funds transfer, presumably in full discharge of her obligations. It seems that Ms Doherty relies upon this email as evidence that the bank has received the monies to which it refers. Unfortunately, that email is a dense and virtually incomprehensible salad of meaningless statements and assertions that, whatever else may be said about it, does not prove that any money was sent to or received by the bank on her behalf by “Dr David Murphy” or indeed by anyone at all.

5. [7]

   Notwithstanding that fundamental difficulty, Mr Laubhan responded to Ms Doherty’s affidavit in his further affidavit sworn on 19 May 2023 in the following relevant terms:

6. [8]

   No objection was taken to that affidavit. Mr Laubhan was not cross-examined.

7. [9]

   Ms Doherty was unrepresented in the proceedings before me. It became apparent that she was not able to provide me with any evidence that she had paid any outstanding sum to the bank, or that anyone had done so on her behalf. At the close of the evidence, I attempted to explain the position, as I then saw it, to Ms Doherty:

8. [10]

   As the transcript of the proceedings will reveal, Ms Doherty was unable to find or to produce any documents supporting the fact of payments to the bank. That remained the position thereafter, including a further adjournment until 3.00pm to enable Ms Doherty to return to Mr Murphy’s residence in Concord in an attempt, if possible, to retrieve the evidence in question.

9. [11]

   Later in the afternoon, I continued to discuss the position with Ms Doherty:

10. [12]

    One of the documents exhibited to Mr Laubhan’s 31 January 2023 affidavit was a letter dated 5 May 2022 sent to Ms Doherty by the bank. Ms Doherty acknowledged that she had seen the letter and had read it in full. It is presently instructive to record part of what the letter contained as follows:

11. [13]

    The bank tendered without objection what might be described as a bankers’ certificate indicating that as at 9 August 2023, the amount owed to it by Ms Doherty, secured by mortgage over the Edmondson Park property, was $594,544.00.

Conclusion and orders

1. [14]

   This is an extremely sad and unusual case. It is difficult at one level to understand how someone such as Ms Doherty could have been so thoroughly taken in and duped by Mr Murphy. And yet she was. His correspondence and other documentation is patently the product of a disordered mind. It bears no resemblance to reality and almost defies description: the so-called EFT email upon which Ms Doherty attempted to rely as evidence of the electronic transfer of monies to the bank discharging her indebtedness is a striking and relevant example of this. It would appear to be the stuff of Mr Murphy’s fantastic scheme, promoted by him under the Aussie Bailout logo, in terms such as the following:

2. [15]

   The only portion of this promotion that it is possible with undiluted confidence to accept as the truth is the adjacent large-print description of this fraudulent rubbish as “WORLD FIRST”.

3. [16]

   Ms Doherty has no defence to the bank’s claim. However, I have proceeded to hear and determine that claim on a final basis by reference to the whole of the evidence upon which the parties relied in accordance with the orders of Davies J made on 14 April 2023. The bank would in my opinion, however, have been entitled in any event to summary judgment in accordance with its application filed on 31 January 2023 seeking orders pursuant to UCPR 13.1.

4. [17]

   I am satisfied that the bank is entitled to a judgment for the full amount of its secured debt and that it is entitled to an order for possession of the Edmondson Park property. Subject to further submissions, as foreshadowed by me with the parties, I propose the following orders:

   1. (1)

      Judgment for the plaintiff for $594,544.00.

   2. (2)

      Judgment for the plaintiff for possession of the land comprised in Certificate of Title Folio Identifier 25/SP100581 being the land known as and situate at 303/361 Bernera Road, Edmondson Park in the State of New South Wales.

   3. (3)

      Grant leave to the plaintiff forthwith to apply for the issue of a writ of possession for the property referred to in order (2) hereof.

   4. (4)

      Order the defendant to pay the plaintiff’s costs.