Wichman v Pepper Finance Corporation Limited (No 2)

1. [1]

   THE COURT: This is an application for leave to appeal from orders made by Rothman J on 7 August 2019: [2019] NSWSC 1009. The underlying proceedings involve a mortgage over property in Horsley.

2. [2]

   On 14 June 2019, a Registrar of the Court entered default judgment in favour of the respondent for possession of the Horsley land and also made an order that a money sum be paid to the respondent. On 5 August 2019, the applicant filed a motion seeking a stay of execution of the writ of possession and orders setting aside the default judgment for possession and money order made by the Registrar. On 7 August 2019, Rothman J made orders dismissing the applicant’s notice of motion.

3. [3]

   A summons seeking leave to appeal to this Court from the orders made by Rothman J was filed on 7 August 2019. The applicant also sought a stay of the writ of possession. That application came before Meagher JA in the referrals list. His Honour declined to grant a stay, and noted that sitting alone, he could not deal with the application for leave to appeal: Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195.

4. [4]

   At the hearing of the application for leave to appeal on 5 December 2019 Mr Wichman did not appear. At the conclusion of the hearing the Court made the following orders:

   1. (1)

      Summons seeking leave to appeal dismissed;

   2. (2)

      The applicant to pay the costs of the respondent.

5. [5]

   The Court was satisfied that Mr Wichman had been notified, on more than one occasion, of the date for hearing his application for leave to appeal. This is for the following reasons.

   1. (1)

      On 7 August 2019, the applicant filed his summons seeking leave to appeal. The cover page of the summons, which was largely handwritten, recorded a mobile telephone number and an email address as contact details for the applicant. The summons was given a return date of 16 September 2019.

   2. (2)

      There was a directions hearing before the Registrar on 16 September 2019. The Registrar made the following orders:

   3. (3)

      On 14 October 2019, the applicant appeared in person before the Registrar. The matter was stood over for further directions on 18 November 2019.

   4. (4)

      On 18 November 2019, there was a final directions hearing before the Registrar. The applicant did not appear. The Registrar listed the application for leave to appeal for hearing on 5 December 2019. The Registrar ordered that the respondent notify the applicant of that order.

   5. (5)

      On 5 December 2019, the respondent filed in Court an affidavit of Richard Joel Lewin, affirmed 5 December 2019. Annexed to the affidavit were three emails.

   6. (6)

      The Court was informed that Mr Lewin had telephoned the applicant and left a message on his mobile telephone informing him of the approaching hearing date.

Background facts

1. [6]

   On the application for a stay and leave to appeal before Meagher JA the respondent read the affidavit of Richard Joel Lewin, affirmed on 5 June 2019. That affidavit and the documents attached as an exhibit demonstrate:

   1. (1)

      By a loan agreement dated 15 June 2015, Pepper Finance agreed to advance $330,860 to Mr Wichman. That loan was to be secured by a registered first mortgage over the Horsley property. The loan agreement was signed by Mr Wichman on 15 June 2015. It contains a certificate signed by Mr Wichman stating that on the same day he obtained legal advice from a Mr Ben Pike of DGB Lawyers as to the nature and effect of that document which included the mortgage;

   2. (2)

      The loan agreement records that the purpose of the loan was to refinance an existing housing loan, that the security was to be a registered first mortgage over the Horsley property, and that on settlement funds were to be paid in part to the Illawarra Mutual Building Society, in an amount of $173,942, with the balance, $149,893, to be paid to Dallas Wichman. On settlement Dallas Wichman’s existing interest in the property was to be transferred to Mr Wichman, who as sole owner would mortgage the property to Pepper Finance;

   3. (3)

      The mortgage records that it was also signed by Mr Wichman in the presence of Mr Pike and recites in the passage above Mr Wichman’s signature that Pepper Finance had agreed to lend the amount of $330,860 to him, or at his request. It is then apparent from the copy of the certificate of title issued on 4 July 2015 that the relevant interest in the land was transferred to Mr Wichman and that the mortgage was granted to the respondent;

   4. (4)

      On 24 July 2018, the respondent commenced proceedings against Mr Wichman for possession of the Horsley property and for judgment for a money sum, relying on a default under the loan agreement, being a failure to make a repayment or repayments due in or before May 2018. The fact that such a payment was not made is not contested, and the reasons given for Mr Wichman not doing so include the respondent’s failure to respond to a series of requests in a letter written to the chief executive officer of the respondent in August 2018;

   5. (5)

      The respondent’s statement of claim was served in accordance with an order for substituted service made on 26 September 2018. On 27 November 2018 the respondent obtained default judgment against Mr Wichman for possession of the land and for a money amount of $344,112. It then sought and obtained, on 2 January 2019, the issue of a writ of possession of the land;

   6. (6)

      At that point, and after receiving a notice to vacate the property dated 11 January 2019, Mr Wichman appeared in the proceedings. On 19 February 2019, he filed a motion for a stay of execution of the writ and an order that the default judgment be vacated;

   7. (7)

      After a short hearing before Davies J on 20 February 2019, that motion was adjourned for directions on 20 March 2019, further adjourned to 15 May 2019 and on that day fixed for hearing on 14 June 2019, when the motion was dismissed by Registrar Bradford;

   8. (8)

      Neither the Registrar’s reasons nor any transcript of the proceedings before the Registrar was made available to the Court. It is common ground that the Registrar gave reasons for his order dismissing Mr Wichman’s motion;

   9. (9)

      In the period up to 23 March 2019 the respondent agreed to a stay of execution of the writ to permit a complaint made by Mr Wichman to the Australian Financial Complaints Authority to be dealt with. During the same period Mr Wichman sought the assistance of the Wollongong Legal Aid Office, although its instructions appear to have been withdrawn after a period of one or two weeks;

   10. (10)

       On 5 August 2019, Mr Wichman filed a second notice of motion in response to a further notice from the sheriff’s office advising that it proposed to evict the occupants of the property on 8 August 2019. That motion challenged the decision of Registrar Bradford and sought a stay of the writ of possession.

Proceedings before the primary judge

1. [7]

   The argument before Rothman J is sufficiently recorded in his Honour’s final reasons. At [12] he records:

2. [8]

   Rothman J rejected that argument, which was the only argument put to his Honour, as to why the Registrar allegedly erred in rejecting his earlier motion. Accordingly Rothman J dismissed the motion dated 5 August 2019.

Application for leave to appeal to this Court

1. [9]

   In support of his application for leave to appeal, Mr Wichman relied on the three affidavits filed in the proceedings below, as well as his short affidavit filed in this Court on 7 August 2019 which states:

2. [10]

   The content of Mr Wichman’s argument may be gleaned from his written submissions dated 11 November 2019. In those submissions, Mr Wichman asserts that:

3. [11]

   The submissions conclude:

4. [12]

   As Meagher JA earlier explained, Mr Wichman’s submissions make a number of assertions about the content and application of Australian common law and statutory law in language which is strikingly similar to that described in the judgment of the Court of Queen’s Bench of Alberta, Meads v Meads, 2012 ABQB 571, as “Organized Pseudolegal Commercial Argument”: see also K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] per Black J.

5. [13]

   The assertions made in those affidavits include:

   1. (1)

      That Mr Wichman is not bound by any law, statutory or otherwise, unless he has personally consented to it. Paragraphs 3 and 4 of his affidavit of 5 August 2019 say:

   2. (2)

      That Mr Wichman does not recognise the authority or jurisdiction or judgment of a registrar or single judge of the Supreme Court, and also, it would seem, of a judgment of any Court applying any law to which he has not consented. Paragraph 5 of his affidavit of 29 May 2019 and paragraph 6 of his affidavit of 5 August 2019 say, respectively:

   3. (3)

      In his submissions filed 11 November 2019, Mr Wichman “rebut[s] the suggestion” that he has challenged the validity of the Supreme Court. He says that he has simply challenged “Bradford, Rothman and Meagher’s personal authority as single judges in this matter under the Supreme Court”.

   4. (4)

      That Mr Wichman does not accept that he is bound by the default judgments or the subsequent orders dismissing his applications, for the reasons stated in paragraphs 5 and 6 of his affidavit of 29 May 2019. Paragraph 6 of his affidavit of 29 May 2019 reads:

   5. (5)

      That Mr Wichman is not bound by the loan agreement. In this respect paragraphs 8 and 9 of his affidavit of 5 August 2019 say:

Consideration

1. [14]

   For leave to appeal to be granted an application must raise a question of principle, a question of public importance, or a reasonably clear injustice that has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Co Ltd v Liu [2013] NSWCA 26 at [13].

2. [15]

   The suggestions that Rothman J was biased and that Mr Wichman was not given an opportunity to be heard are not supported by a fair reading of the transcript of the proceedings before his Honour. The applicant has not demonstrated that there is any arguable basis for his claim of bias.

3. [16]

   The submissions made by Mr Wichman that the Registrar and Rothman J lacked jurisdiction are not reasonably arguable. No basis for appellate review, such as an error of principle which, if uncorrected, will result in substantial injustice, has been demonstrated: Collier v Lancer (No 2) [2013] NSWCA 186 at [7]-[8].

4. [17]

   No arguable grounds have been identified which would justify the setting aside of the underlying default judgment and writ of execution. Despite being given ample opportunity, Mr Wichman has not filed or otherwise produced any proposed defence or cross‑claim dealing with the underlying claims for the money judgment and for possession. Except for some very uncertain and unclear references, there was no attempt made to identify such a defence. To the extent that we are able to identify separate claims advanced by Mr Wichman we conclude as follows:

   1. (1)

      To the extent that Mr Wichman complains that he had not properly been served with the court documents leading to the issue of the notice to vacate in January 2019, no reason has been shown to doubt that an order for substituted service was made and that service of all of the relevant documents was made in accordance with that order;

   2. (2)

      To the extent that Mr Wichman complains about the legality and efficacy of the loan agreement and mortgage, no arguable reason has been advanced for the proposition that the loan agreement was unenforceable or liable to be set aside. The suggestion that the loan documentation is an “Electronic Counterfeit copy” of the loan document signed by Mr Wichman does not raise any arguable basis to think that an injustice has occurred. The suggestion by Mr Wichman that the “securitisation” of the loan by the lender (for which there is no evidence) was sufficient to constitute the repayment by Mr Wichman of the loan is not reasonably arguable. There is in any event no evidence supporting the contention;

   3. (3)

      To the extent that Mr Wichman complains that the relevant advances were not made by the funder in accordance with the terms of that agreement as any advances made were not in “legal tender”, that submission was correctly described by Meagher JA as an example of a “pseudolegal commercial argument” which makes no sense. No reasonably arguable error has been identified.

5. [18]

   Leave to appeal must be refused.

Orders

1. [19]

   For the foregoing reasons the Court made the following orders on 5 December 2019:

   1. (1)

      Summons seeking leave to appeal dismissed;

   2. (2)

      The applicant to pay the costs of the respondent.