Integrated Growth Solutions Pty Limited v Latesha Elizabeth Campbell (No 2)

1. [1]

   HIS HONOUR: This is an application brought by the defendant, Ms Campbell, by notice of motion filed 28 May 2015 to set aside a judgment entered against her by Stevenson J on 29 April 2015. That judgment was entered in favour of the plaintiff, Integrated Growth Solutions Pty Ltd ("IGS"). For the reasons which follow, Ms Campbell’s notice of motion will be dismissed with costs.

2. [2]

   The evidence on the motion primarily consisted of Ms Campbell’s affidavit sworn on 28 May 2015. Ms Campbell appeared, without objection by IGS, with the assistance of her husband, Mr Helal Safi, who spoke on Ms Campbell's behalf. Mr C Robinson of Counsel appeared for IGS.

3. [3]

   In addition to Ms Campbell's affidavit, Mr Safi provided to the Court what I might, without any disrespect, describe as an undifferentiated bundle of material comprising trust account statements, affidavits, email and other correspondence which he said was material which, if the judgment were to be set aside, was evidence Ms Campbell would wish the Court to take into account on any new hearing of the proceedings against her. Mr Safi also suggested that I should review the transcript of what occurred before Stevenson J on 29 April 2015. Mr Robinson did not object to my doing so.

4. [4]

   Furthermore, I indicated to the parties that, unless anyone objected, I would also review and take into account the entirety of the material on the Court file in order, as best possible, to understand the history of these proceedings. Neither party objected to that course and I have reviewed the Court’s file over the lunch adjournment.

The facts

1. [5]

   Ms Campbell was the registered proprietor of land at Bass Hill. That land was subject to a first mortgage to National Australia Bank. IGS claimed to be the unregistered second mortgagee of Ms Campbell's land. IGS said that its mortgage secured advances made by it to Ms Campbell or at her direction between 6 and 12 June 2012 pursuant to a deed of loan and guarantee (the "deed"). IGS protected its interest by lodging a caveat against the title of Ms Campbell's land.

2. [6]

   These proceedings were commenced by a summons filed on 20 March 2014 which sought orders for the extension of the caveat over Ms Campbell's land. As the proceedings progressed, that summons was replaced by an amended summons which, among other things, sought judgment against Ms Campbell in reliance on the deed.

3. [7]

   From shortly after the proceedings were commenced Ms Campbell was represented by Macquarie Lawyers of Burwood, principally by Ms L Belovic, solicitor.

4. [8]

   As matters developed, it became apparent that Ms Campbell's only defence to the claim against her was an allegation on her part that she had not signed the deed. That case was crystallised by the filing of a cross-summons on 4 July 2014 which claimed:

5. [9]

   The case management of the proceedings was largely undertaken by Brereton J. When the matter was before his Honour for directions on 23 June 2014 Ms Campbell was represented by Mr Walton of counsel. Among other things, his Honour directed:

6. [10]

   The proceedings were again before Brereton J on 28 July 2014. On that occasion Ms Campbell was represented by Ms Belovic. Among other things, his Honour directed:

7. [11]

   Further directions occurred before Brereton J on 10 October 2014. Again, Ms Campbell was represented by Ms Belovic. Among other things his Honour directed:

8. [12]

   The proceedings were next before Brereton J on 18 December 2014, when Ms Campbell was represented by Mr J Chen, solicitor. At that time his Honour fixed the proceedings for hearing on 29 April 2015. The pre-trial directions which his Honour made on that day included:

9. [13]

   On 17 February 2015 IGS filed an affidavit of Christopher Ian Anderson sworn on 16 February 2015 attaching his expert report. Mr Anderson is a forensic document examiner who is well known to the Court as one of the leading experts in that field.

10. [14]

    The conclusion of Mr Anderson's report was:

11. [15]

    The proceedings were again before Brereton J on 3 March 2015, at which time his Honour confirmed the hearing fixed for 29 April 2015. At that directions hearing Ms Campbell was again represented by Mr J Chen, solicitor.

12. [16]

    On 25 March 2015 Macquarie Lawyers filed a notice of ceasing to act, having served their notice of intention to do so on Ms Campbell on 25 February 2015.

13. [17]

    On 29 April 2015 the proceedings came on for hearing before Stevenson J. An examination of the transcript of the hearing before his Honour discloses that, the proceedings having commenced (I infer) at 10am, Ms Campbell was called outside the courtroom and there was no appearance on her behalf.

14. [18]

    In her affidavit of 28 May 2015 relied upon by Ms Campbell before me, she says:

15. [19]

    I have reviewed the transcript of what occurred when Ms Campbell appeared before Stevenson J. His Honour’s chambers had not received the email Ms Campbell says she had sent. The transcript discloses that she provided a copy of her legal aid application to his Honour. Ms Campbell's affidavit correctly summarises what she was told by Stevenson J as to the course of action open to her if she wished to do something about the judgment that had been entered against her earlier that day.

Consideration

1. [20]

   Mr Robinson fairly accepted that the Court had power to set aside the judgment entered against Ms Campbell by Stevenson J pursuant to UCPR Part 36, Rule 36.16(2)(b), which provides:

2. [21]

   Mr Robinson also helpfully drew my attention to the judgment of Barrett JA in Northey v Bega Shire Council [2012] NSWCA 28, where his Honour summarised the legal principles relevant to an application of this kind:

3. [22]

   I gratefully adopt his Honour's statement of the principles governing the exercise of the Court's discretion under r 36.16(2)(b).

4. [23]

   To adopt the language of Barrett JA, the Court is not satisfied that the evidence adduced by Ms Campbell on this application establishes any additional factor over and above the fact that she was absent when the judgment was entered against her that makes it unjust for the perfected judgment to stand. In particular, Ms Campbell has failed to satisfy the Court that she had evidence or has any prospect of obtaining evidence in support of her case that she did not sign the deed and related documents. There are six reasons for this conclusion.

5. [24]

   First, Ms Campbell had every opportunity over a period of many months to file handwriting evidence in support of her contention that the signature on the deed and related documents was not hers. No evidence was led by Ms Campbell on this application as to why that was not done. From the Bar table, Mr Safi made a number of allegations about difficulties which he and Ms Campbell had had with their solicitors, including apparently in relation to the payment of fees.

6. [25]

   Mr Safi also said that he and Ms Campbell were not informed by the solicitors of the need to file a handwriting expert's report or that the matter had been fixed for hearing. I am not prepared to accept those statements from the Bar table. Having regard to the Court's own records of proceedings which demonstrate that either a solicitor or barrister representing Ms Campbell was present at every relevant directions hearing, I am not prepared to make a finding on the basis of Mr Safi's assertions from the Bar table of what would be serious derelictions on the part of Ms Campbell’s then lawyers.

7. [26]

   Second, the Court takes into account the very strong opinion of Mr Anderson as to the likelihood that the signatures on the deed and related documents were Ms Campbell's.

8. [27]

   Third, there has been no explanation for the delay between when the judgment was entered on 29 April 2015 (and when Stevenson J clearly indicated to Ms Campbell that the appropriate course was for her to file a notice of motion to have the judgment set aside) and the filing of Ms Campbell's motion on 28 May 2015.

9. [28]

   Fourth, there is no evidence of what has happened since 29 April 2015 in relation to the progress of her application for legal aid. The evidence rises no higher than the statement in her affidavit of 28 May 2015 that "Legal Aid needs more documents to process my application. If I’m given the opportunity, I will be represented by Legal Aid". No correspondence with Legal Aid at all, let alone correspondence giving any indication of the likely success of her application, has been provided to the Court by Ms Campbell.

10. [29]

    Fifth, Mr Safi informed me from the Bar table that he and Ms Campbell were now in a position to retain a lawyer and a handwriting expert. However, again, there is no evidence in support of that or that they have done anything towards retaining anyone, for example, even obtaining a short form preliminary report from a handwriting expert that might have suggested that there was a proper basis for traversing the strong conclusions expressed by Mr Anderson in his report.

11. [30]

    Sixth, what I referred to above as the undifferentiated bundle of documents neither explains the failure to obtain any handwriting evidence earlier nor do any of those documents appear to falsify in any respect IGS’ entitlement to the judgment obtained from Stevenson J on 29 April 2015. Nor is it suggested that any of the material in the bundle of documents was not available for submission to and consideration by Ms Campbell's lawyers in the course of preparation for the hearing. In other words, none of those documents is a document of which it could be said that it provided a basis for supporting Ms Campbell's contention that the signatures on the deed and related documents were not hers or that any such document was only recently discovered.

12. [31]

    For these reasons, the Court will dismiss Ms Campbell's notice of motion.

13. [32]

    The orders of the Court are:

    1. (1)

       The defendant’s notice of motion filed 28 May 2015 is dismissed.

    2. (2)

       The defendant is to pay the plaintiff's costs of the motion.