Black J In the matter of Commonwealth Bank of Australia [2021] NSWSC 401 deals with a pseudolegal claim, stating
By Originating Process filed on 2 March 2021, the Commonwealth Bank of Australia (“CBA”) applies under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor’s statutory demand dated 4 February 2021 ("Demand") issued by the Defendant, Mr Ronald Gregory, to CBA. The basis on which that Demand is sought to be set aside is, in substance, that the debt claimed by Mr Gregory against CBA is genuinely disputed.
The Demand refers to a debt in the amount of $418,000 and also claims interest and costs, and describes the debt as follows:
“Debt arising from outstanding invoice number RMG261020201429 for which First Notice dated the 26/10/2020, Second Notice dated 20/11/2020 and Third & Final Notice dated 11/12/2020 with invoices enclosed being delivered to the debtor company by Australia Post Domestic Letter with Tracking to which no replies from the debtor company were received.
The invoice relates to debt by the debtor company as confirmed in an unrebutted affidavit dated 4/08/2020.
A second unrebutted affidavit regarding commercial default for non payment by the debtor of invoice number RMG261020201429 by the debtor company is to the creditor.”
The verifying affidavit dated 4 February 2021 likely does not comply with the requirements for verification of a creditor’s statutory demand, so far as it contains a series of negative statements, commencing with the proposition that Mr Gregory has not been provided with any material evidence that he is not the creditor and continuing through several paragraphs of a similar character to conclude that:
“I have not seen or been presented with any material evidence that there is genuine dispute about the existence or amount of the debt by the debtor company to the creditor and I believe sincerely that no such evidence exists.
I have not seen or been presented with any material evidence that this statutory demand does not comply with the appropriate rules of the Corporation Act 2001 and I believe sincerely that no such evidence exists.”
It is not necessary to express any final view as to the adequacy of that affidavit where CBA did not rely on any inadequacy in that affidavit as the basis for its application to set aside the Demand.
CBA’s evidence
CBA reads, first, the affidavit of Mr Hanrahan dated 2 March 2021. Mr Hanrahan is employed by CBA in its Financial Assistance Solutions and Collections Team and gives evidence that he has access to CBA's books and records in respect of the proceedings, and refers to service of the Demand on CBA's registered office. He notes that Mr Gregory has held Visa credit card facilities with CBA since 2006 and refers to correspondence with Mr Gregory which appears to have given rise to discontent on Mr Gregory's part, and to a complaint made by Mr Gregory to the Australian Financial Complaints Authority which it appears was dismissed.
Mr Hanrahan, in turn, refers to a number of documents on which Mr Gregory has relied, in correspondence with CBA and in these proceedings, and I mark some of the documents which have since been provided to the Court as MFI1 in these proceedings. Mr Gregory did not appear and none of his affidavits have been read and none of those documents tendered in the proceedings, except so far as CBA had led evidence of them to identify the claims he has made. Mr Hanrahan seeks to identify Mr Gregory's underlying claim, which appears to arise from an invoice issued by him to CBA, which in terms relates to a fine purportedly imposed by Mr Gregory on CBA in respect of an alleged trespass on an agreement between Mr Gregory and CBA. Mr Hynes, who appears for CBA, perhaps somewhat uncharitably but likely correctly, refers to the basis of Mr Gregory's claim in that respect as incomprehensible, so far as Mr Gregory seeks himself to impose a fine for the suggested breach, and so far as the concept of a trespass upon an agreement is one which would not ordinarily be known to Australian law.
By a further affidavit dated 9 March 2021, Mr Holland, a process server, refers to service of the proceedings which seek to set aside the Demand upon Mr Gregory. The Originating Process was served under cover of a notice under the Service and Execution of Process Act 1992 (Cth) (“SEPA”), so far as the proceedings were brought in the Supreme Court of New South Wales and served upon Mr Gregory in the State of Victoria. I will refer to an issue arising in respect of an aspect of that notice below.
By a further affidavit dated 10 March 2021, Mr Lewin, a solicitor acting for CBA, referred to service of further documents upon Mr Gregory by post. By a second affidavit of Mr Lewin also dated 10 March 2021, he led evidence of a company search of CBA, a matter required by the Corporations Rules in respect of an application of this character. By a third affidavit dated 18 March 2021, Mr Lewin led evidence of further correspondence with Mr Gregory.
By an affidavit dated 22 March 2021, Mr Holland gave evidence of service of further documents upon Mr Gregory. By his affidavit dated 22 March 2021, Mr Lewin referred to sending an email to Mr Gregory, including further evidence in the proceedings and the Plaintiff's outline of submissions, identifying the orders it sought. By a further affidavit of Mr Lewin dated 25 March 2021, he updated the position in respect of correspondence with Mr Gregory and a further affidavit dated 6 April 2021 indicated that Mr Gregory had been advised of the adjournment of CBA's application to today, to allow him to consider supplementary submissions which had been made by CBA in respect of the issue arising under SEPA.
Mr Gregory’s position
Mr Gregory has not appeared at any stage in the proceedings, whether by filing a notice of appearance, or attending any of the hearings conducted by telephone. However, there is no doubt that Mr Gregory is aware of the proceedings, and he has actively participated in them by correspondence to the Court and the filing of affidavit evidence, which I have marked, as I noted above, "MFI1". The form of Mr Gregory’s correspondence and evidence has many of the features which were described in the judgment of the Court of Queen’s Bench of Alberta in Meads v Meads 2012 ABQB 571 as “Organized Pseudolegal Commercial Argument”, which I noted in Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] and to which the Court of Appeal referred in Wichman v Pepper Finance Corp Ltd [2019] NSWCA 195.
The documents filed by Mr Gregory, but not read or tendered by him because he has not appeared, include a document dated 4 March 2021 titled "Notice to Principal is Notice to Agent" addressed to the Registrar of the Court, and demanding a copy of any lawful contract made between Mr Gregory and the Court with his informed consent on which the Court relies. Mr Gregory then claims that, if the Court does not provide him with such a contract within seven days, it will be taken to have assented that no contract exists with him. It appears to be self-evident that no contract exists between Mr Gregory and the Supreme Court of New South Wales. However, the Court's jurisdiction is not contractual in nature. In particular, the Commonwealth and the State of New South Wales have conferred jurisdiction under the Corporations Act 2001 on the Court, including jurisdiction to set aside a creditor’s statutory demand, and that jurisdiction does not require Mr Gregory's agreement for its exercise.
By an affidavit, Mr Gregory addresses various matters including that he is "a living spirit within a sentient breathing man"; that he has not been presented with facts or material evidence of various matters, and that he does not have a contract or consent to any contract with any person or persons without his fullest informed consent. That affidavit concludes with the striking affirmation that it is "As Good as Avaal", a proposition that is not commonly seen in affidavits in the Courts of New South Wales, but appears to be known to United States law in respect of guarantees.
By “Notice of non-consent” dated 24 March 2021, Mr Gregory draws to the Court's attention that he has no contract with the Court, a matter to which I have referred above. By a second affidavit, of substantial length, Mr Gregory addresses matters raised by the affidavits on which CBA relies. By a letter dated 25 March 2021 addressed to the Registrar he addresses further aspects of the affidavits on which CBA relies. By an email dated 29 March 2021, he succinctly advised my Associate, so far as he had been informed of a hearing of the proceedings on 26 March 2021, that he did "not consent". Three further affidavits address issues including those raised by the Plaintiff's supplementary outline of submissions and, by an affidavit which appears to be directed to the attention of CBA’s solicitors, Mr Gregory seeks to highlight a suggested fraud, presumably in respect of these proceedings, and by a further affidavit, directed to the attention of the Chief Justice of New South Wales, the Chief Judge of the Equity Division and the Registrar of the Supreme Court, he addresses the same matter.
I draw attention to these documents, not because they are in evidence or because Mr Gregory made any attempt to read the affidavit evidence, or to tender them, but because they demonstrate that Mr Gregory is squarely on notice of the proceedings and has had an opportunity to be heard in them.
