Another pseudolaw claim, with the Court in National Australia Bank Limited v Mellander [2023] NSWSC 1171 noting
The defendant is the registered proprietor of the property at ... Street, Wentworthville NSW 2145 (the property). The defendant borrowed money from Citibank Pty Limited (Citibank). The loan was secured by a mortgage over the property. Subsequently, Citibank, on the plaintiff’s case, transferred its rights with respect to the loan and the mortgage to the plaintiff. The defendant defaulted on the loan, leading the plaintiff to take action in this Court by way of statement of claim. The defendant says he sent a response to the Court. Nothing was actually filed in the proceedings. As a result of the apparent absence of any response to the plaintiff's claim, the plaintiff obtained default judgment and then subsequently obtained a writ of possession with respect to the property. On 5 September 2023, some 48 hours before he was to be evicted, the defendant filed a notice of motion seeking a stay of the writ of possession. That motion is the subject of this judgment. ...
The defendant contends that his evidence establishes the default judgment and writ of possession were not properly obtained and, further, that he has a good defence to the claim.
The plaintiff relied on: (1) the notice of motion seeking default judgment, together with the supporting affidavit of Dean Adams of 6 June 2023 (Exhibit 1); (2) the notice of motion seeking the writ of possession, together with the supporting affidavit of Mr Adams of 18 July 2023 (Exhibit 2); and (3) an affidavit on Sera Erikozu of 19 September 2023 (Exhibit 3).
The plaintiff also provided written submissions to the Court. On the plaintiff’s case, the above evidence establishes the default judgment and writ of possession were regularly obtained. The plaintiff further submits that the defendant’s contentions are baseless.
By statement of claim filed 6 March 2023, the plaintiff sought possession of the property, leave to issue a writ for possession, judgment in the amount owing under the loan (approximately $254,000), together with the plaintiff's fees and charges in accordance with the loan and mortgage and the costs of the proceedings.
An affidavit of a licensed process server of 13 March 2023, annexed to the affidavit in support of the motion for default judgment, establishes that the statement of claim was served on the defendant on 9 March 2023. The affidavit states that three copies of the statement of claim, the notice to occupier, and the possession of land coversheet were served on the defendant by placing them in a sealed envelope and affixing the envelope to the fence at the property. It appears service was affected in this way as, according to the affidavit, the property was surrounded by a fence with a sign indicating “LEGAL NOTICE, NO TRESPASSING - ADMITTANCE BY INVITATION ONLY”. The affidavit annexed a copy of the notice to occupier.
A further affidavit of service, prepared by a licensed commercial agent on 27 March 2023, was annexed to the affidavit in support of the motion for default judgment. This related to a further service of the statement of claim and possession of land coversheet on 21 March 2023. While the documents did not include a notice to occupier, I am satisfied this document had been properly served on 9 March 2023: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 6.9(2). The commercial agent deposed that he attended the property and described the only access to the property to be a “chainmesh gate which was padlocked closed”. He deposed that there were “signs attached to the gate advising that ‘all mail and all correspondence’ would not be accepted, and that uninvited admittance to the property by police, government, process servers etc would be an act of trespass”. The deponent said he waited at the property and, at approximately the 5:30 pm, he had a conversation with a man he believed to be the defendant. He described the man as “aged in his sixties”. He said the man arrived at the property on a bicycle and opened the padlock on the gate. When asked, the person denied that he was the defendant. The deponent said that the man turned away when he appeared to observe the documents in the deponent's hand. The deponent said “I think you are Peter Mellander . I have some legal documents to deliver to you”. The deponent said the person responded, “you have no liability” and further said “you have no liability under the fourth law” and walked away. The deponent states that he then said “as you will not accept the documents, I am making you aware that I will leave them here for you. Take this as notice that you have been served”. The deponent said that he then rolled-up the documents and placed them in the chain mesh gate. The deponent stated that he took a photograph of the person he spoke to. He said he showed that photograph to a neighbour at ... Street who informed him that the person in the photograph was known to him as “Peter Mellander ”. Photographs of the fence, signage, and the person spoken to were annexed to the affidavit.
The Court was satisfied that Mellander was served with the statement of claim, the notice to occupier, and the possession of land coversheet, noting "the defendant does not suggest the proceedings were not brought to his attention".
No response to the statement of claim reached the Court file or, apparently, the plaintiff. On 8 June 2023, the plaintiff filed a notice of motion seeking default judgment. Filed in support of that motion was the affidavit of Mr Adams of 6 June 2023. That affidavit established the transfer of the mortgage from Citibank to the plaintiff, service of the statement of claim and related documents, together with the outstanding debt. There was no requirement to serve the application for default judgment on the defendant: UCPR, r 16.3(1A). The defendant obtained default judgment and possession orders in respect of the property on 15 June 2023.
By notice of motion filed on 20 July 2023, the plaintiff sought a writ of possession for the property. There was no obligation to serve the application on the defendant: UCPR, r 39.2(2)(b). A writ of possession was obtained on 1 August 2023.
It was only when faced with eviction from the property that the defendant took any steps in relation to the proceedings, or at least, any step recognised by the Court. On 5 September 2023, the defendant filed a notice of motion by which he sought an order that “the Court provide an immediate stay of proceedings pending full and detailed judicial review”.
The matter came before Walton J, as Duty Judge, on 13 September 2023. On that date, the defendant's motion was adjourned to 20 September 2023, when it came before me as Duty Judge, to allow the defendant an opportunity to consider the plaintiff’s evidence and put evidence before the Court to provide a basis for the order sought. On 13 September 2013, in accordance with an order made by Walton J, the plaintiff provided the defendant with copies of the motions seeking default judgment and the writ of possession, together with the affidavits in support, the two affidavits of service with respect to the statement of claim referred to above, and the Court’s notice of orders made on 15 June 2023 entering default judgment for the plaintiff.
The plaintiff served the defendant at court with the affidavit of Ms Erikozou (Exhibit 3) and its written submissions. That material had been filed the previous day in accordance with the orders of Walton J, however, in the absence of any means of electronic service, the defendant was not able to be served until he appeared at the hearing. I adjourned the Court for a period I regarded as sufficient to allow the defendant to read that material.
The defendant's claim is that there are defects in both the process by which judgment was obtained against him and the substance of the plaintiff's claim. Any stay, as sought by the defendant, is contingent on him having a basis on which to set aside the default judgment. Although no motion to set aside the default judgment has been filed, I will proceed on the basis that this is what the defendant seeks to do. ...
The process by which default judgment and the writ were obtained
The steps taken by the plaintiff
The defendant’s affidavit of 18 September 2023 claims that the default judgment and the subsequent writ were properly obtained. He said that the affidavit of service with respect to the statement of claim was only a photocopy, was not certified as a true copy, had not been “signed by the issuing officer of the Court giving full assurance of liability”, was a “false and fraudulent document” and “has not reached full commercial liability”. Consequently, it was submitted that, among other things, it was void, a constructive fraud, designed to pervert the natural course of justice, and could not be relied upon. The same submission was made in relation to the motion seeking default judgment and the writ of possession.
There is no obligation on a party to produce original documents. Section 48 of the Evidence Act 1995 (NSW) allows proof of documents by the tender of a document that purports to be a copy of the document and purports to have been produced by a device that reproduces the contents of documents. This allows for the acceptance of a document, which appears to a photocopy of a document. Further, I note the proceedings are interlocutory and s 75 of the Evidence Act provides that the hearsay rule does not apply, provided that the party adducing hearsay evidence adduces evidence of its source. Consequently, and, in the defendant’s favour, on the assumption that it was necessary for the plaintiff to do so, I do not accept the defendant’s submission that the plaintiff has not established the default judgment and writ of possession were properly obtained.
The defendant's response to the statement of claim
There is one complication in relation to the process by which the default judgment and writ of possession were obtained. The defendant claims that he responded to the statement of claim. He says that he mailed, to the Court, a document which forms the bulk of Exhibit 3. That document is titled “Affidavit of Rebuttal” and is date stamped 24 March 2023. It is addressed to the “Supreme Court of New South Wales, Chief Justice” with the Court's address. On the first page, the document sets out the following:
“In support of: NATIONAL AUSTRALIA BANK LIMITED A.B.N 12 004 044 937 and the SUPREME COURT OF NSW A.B.N. 77 057 165 500 does not have competent jurisdiction over I, The Aggrieved and did deny my lawful rights for peter-james bonded by the blood of the house of mellander Applicant: peter-james bonded by the blood of the house of mellander Defendant 1: The CHIEF EXECUTIVE OFFICER of NATIONAL AUSTRALIA BANK LIMITED Defendant 2: NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 Defendant 3: The CHIEF JUSTICE of the SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 4: The SUPREME COURT OF NSW A.B.N. 77 057 165 500 Defendant 5: The```` STATE of NSW Defendant 6: Attorney-General’s Department A.B.N. 92 661 124 430 Defendant 7: Federal Court of Australia A.B.N. 49 110 847 339 Defendant 8: CITIBANK Pty LIMITED A.C.N. 004 325 080
General form of affidavit. Affiant: peter-james bonded by the blood of the house of mellander . The CHIEF JUSTICE, I, peter-james bonded by the blood of the house of mellander care of ... Street, Arndell Park, N.S.W. [2148] come with clean hands in equity seeking immediate lawful remedy make asseveration and say as follows: [signed] Deponent [signed] Justice of the Peace Affidavit Registration Number: U.P.U./Australia Post Registered Post Article 341883001778359 Page 1 of 53”
It is not until the second page of the document that reference is made to these proceedings. The document states:
“I refer to 'NOTICE TO OCCUPIER'; NATIONAL AUSTRALIA BANK LIMITED A.B.N.12 004 044 937 case number 2023/00074608 and 'STATEMENT OF CLAIM; NATIONAL AUSTRALIA BANK LIMITED A.B.N. 12 004 044 937 v Peter James Mellander ' date March 6, 2023 served on I, The Aggrieved, March 10, 2023 and March 21, 2023.” The 'STATEMENT OF CLAIM' Title of Proceedings lists the defendant as ‘Peter James Mellander ’.
The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did commit fraud. The Addressee name is a corporate government created name of a corporate dead entity legal fiction construct from the unlawful Birth Certificate by trading company corporation known as NSW REGISTRY OF BIRTHS DEATHS AND MARRIAGES.
The SUPREME COURT OF NSW A.B.N. 77 057 165 500 did attempt to make trick and deceive and induce and coerce the living breathing flesh and blood man of God being the intended recipient to consent to the fraud.
The use of the legal name against I, The Aggrieved is offensive and defamatory and embarrassing material.
There is no contract or obligation by the I, The Aggrieved being the intended recipient to pay or perform to trading company corporation known as SUPREME COURT OF NSW A.B.N. 77 057 165 500.
The 'STATEMENT OF CLAIM' Attachment Details confirms the Court intends to sit, preside and determine in accordance with UCPR being foreign imposed codification not correctly searching for it's head of power under the Commonwealth Constitution.”
