Australia and New Zealand Banking Group Limited v Van Den Hoorn [2018] QDC 46

DISTRICT COURT OF QUEENSLAND CITATION: Australia and New Zealand Banking Group Limited v Johan Hendrick Van Den Hoorn & Anor [2018] QDC 46 PARTIES: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (Applicant) v JOHAN HENDRICK VAN DEN HOORN & JEANETTE GAY VAN DEN HOORN (Respondents) FILE NO/S: 436/16 DIVISION: Civil PROCEEDING: Hearing of an application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 21 March 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 21 March 2018 JUDGE: RS Jones DCJ ORDER: 1. Pursuant to r 292 of the Uniform Civil Procedure Rules 1999, judgment be given in favour of the plaintiff against the defendants for all of the plaintiff’s claim. 2. The defendants pay to the plaintiff $239,373.41 as a debt due under the loan agreement between the parties dated 8 April 2008. 3. The plaintiff recover possession of Lot 13 on Crown Plan SL809620 in the County of Stanley, Parish of Capalaba being the whole of the land contained in title reference number 50350586 and situated at 30 Cochrane Street, Alexandra Hills in Queensland. 4. Mr Van Den Hoorn pay the plaintiff’s costs of the proceeding, to be assessed on an indemnity basis. CATCHWORDS: APPLICATION FOR SUMMARY JUDGMENT Uniform Civil Procedure Rules 1999 Agar v Hyde [2000] HCA 41 Bank of Western Australia Limited v Luo & Anor [2010] NSWSC 733 Collier v Moreland Finance Group (Vic) Pty Ltd -- 1 of 18 -- 2 (Unreported, BC 8902259, NSWCA, 21 April 1989) Commonwealth Bank of Australia & Anor v Smith & Anor [1991] 42 FCR 390 Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 Hepburn v McLaughlins Nominee Mortgage Pty Ltd (Unreported, BC 9700797, QCA, 18 March 1997) Hughes v Westpac Banking Corporation [2010] QSC 274 JM Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd & Anor [2008] QSC 311 Neumann Contractors Pty Ltd v Transpunt No 5 Pty Ltd [2010] QCA 119 Rich v CGU Insurance Limited [2005] HCA 16 Shaw v Deputy Commissioner of Taxation [2016] QCA 275 COUNSEL: Mr C Jennings for the applicant The respondents were not represented SOLICITORS: Kemp Strang for the applicant The respondents were not represented [1] HIS HONOUR: I am concerned here with an application for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999, or in the alternative, if I were not satisfied that relief of that nature should be granted, then that the defendant’s defence be struck out and he be required to re-plead. [2] The applicant in this case is the Australia and New Zealand Banking Group. The only defendant to appear was the male defendant, Johan Hendrick Van Den Hoorn. When the proceedings were commenced, there was also the defendant Jeanette Gay Van Den Hoorn, the male defendant’s wife. The plaintiff’s claim against the defendants was: A debt in the amount of $209,614.04 plus interest thereon pursuant to the terms of a loan agreement and mortgage. Recovery of possession of the land described as Lot 13 on Crown plan SL809620, being the whole of land contained in title reference number 50350586. -- 2 of 18 -- 3 [3] Costs were also sought. The factual background pleaded against both defendants at that time was that, by an agreement dated on or about 8 April 2008, the plaintiff agreed to advance to both defendants the sum of $200,000 by way of a loan and, in addition, the defendants agreed to repay the principal sum, together with interest calculated in accordance with the terms of the loan agreement. It was also pleaded that it was a term of the loan agreement and of the consequential mortgage that in the event of default by the defendants, that upon giving by the plaintiff of a notice of default and upon the failure of the defendants to comply with that notice, the total amount owing under the loan agreement and secured by the mortgage would become immediately due and payable and the plaintiff would be entitled to possession of the land. That of course is the relief that’s now being sought, subject to there being a variation in the amount claimed by virtue of the passage of time. [4] The male defendant filed a defence to that proceeding and that generated an application on the part of the bank to seek judgment against the defendant or, in the alternative that his defence be struck out. There is no longer any proceedings concerning the female defendant. An arrangement has been struck between the bank and the female defendant whereby she entered into a voluntary surrender acknowledgement and that document can be found within the affidavit of Ms Tytarenko in exhibit MT15 at page 178 of that affidavit. When the matter came before Ryrie DCJ on 17 January 2018, her Honour took the second course advocated by the bank and ordered to the effect that the male defendant’s defence be struck out and that he be required to re-plead any defence and/or counterclaim by Friday, 23 February 2018. [5] The proceeding was otherwise adjourned to today’s date. As a consequence of that order, the male defendant, on 13 February 2018 filed his second defence. I have no doubt that that defence, as it presently stands, would suffer the same fate as that which was concerning Ryrie DCJ. The pleading could only be described as embarrassing in the technical sense, prolix and overall in many instances just confusing. In paragraphs 5, 6 and 7, it said, and I quote: -- 3 of 18 -- 4 “The anz failed to disclose to my wife that the two mortgauge notes would be mon etised and put into the anz books as an credit/asset that was drawn on via a sepperate account not disclosed to mrs V nor me..thus used our signed mortgauges as promisary notes [a res bank specie of money to its personal gain and our pain That anz never loaned a cent and obtained the value by deception as our promisary notes wwere exchanged for equal value our promise to repay created an equal value like money or bank cgheque or bank draft and that thuis money was never deposited into our account anz accepted two signed mortgauges form 2 [1 of 1] and joined these to at least three other interbank monetisations for onsale and bundeling and was there by fully repaid 2 or 3 times off the un-noticed reuse off our value [p2p notes]” [6] Then, under the heading of “My Defence”, there are various allegations including that the mortgage document was the product of a photoshopping exercise. There are also allegations that the land was somehow incapable of being used to satisfy the orders because it was native title land. It was said that it was native title land held pursuant to a lease, apparently executed by one Dennis Walker. It will be seen in a moment a number of the matters pleaded are simply incorrect. At page 8, it is also said, and I quote: “ORIGONAL copies of MT7 was signed by me..under pressure..but i self comforted ..by knowing our loan application *would be refused ..by normal banking fidelity+practice or by revieuw.. *but deception and greed via process of free+easy money..and bonus for performance runs rife through this case.. filled with gross errors of process…” -- 4 of 18 -- 5 [7] I do not intend to go into the pleading in greater detail, other than to note that I consider the summary that was set out in Mr Jennings submissions to be a reasonable one and, save for some additional matters raised by the male defendant, was, at least as I understood it, otherwise largely accepted by him. [8] That summary of issues raised in the pleadings were, first, that the loan had been monetised and, therefore, there was no loan. Second, that in breach of the loan agreement, the plaintiff failed to provide a loan but provided an overdraft which is similar to stealing, counterfeiting and swindling…the land was subject to native title. Next, that the male defendant signed the loan application under pressure and proceeded for fear of further rejection by the family. [9] The male defendant described that particular aspect of his defence as attempting to ingratiate himself back into good favour with the family and I will say a bit more about that in a moment. The next was that the mortgage had been photoshopped. Next, that the plaintiff was not a real person. Next, that the male defendant did not receive a notice of default. And last, the plaintiff was negligent in failing to conduct a credit report. I will deal with all of those separately in a moment but, as I have already said, the male defendant added to and expanded on those matters. [10] As the pleading presently stands, it would have to be struck out. The matter could not proceed to trial with the defence in that form. Initially, I had the impression that the male defendant wanted the matter dealt with today and was not particularly interested in re-pleading. But that was not the case and, in fact, he indicated that he intended to fully agitate the proceeding and that to enter judgment would be unjust and that the matter should go to trial and that, if necessary, the matter would go all the way to the High Court. [11] Turning then to the question of whether I ought grant judgment today – the relevant tests have been set out in a number of cases to which I have been referred and a number of other cases which are quite familiar to those involved in proceedings such as this. The first case is the Deputy Commissioner of -- 5 of 18 -- 6 Taxation v Salcedo.1 After a review of the authorities, Williams JA in paragraph 17 said: “That review of authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r 292 and r 293 of the UCPR. The test for summary judgment is different, and the court must apply the words found in the rule. To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J in Gray v Morris) only diverts the decision maker from the relevant considerations. But, and this underlies all that is contained in the UCPR, utimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.” [12] Following Salcedo there was some debate about what the effect of the rules were, particularly on the part of Chesterman JA, as he then was. However, more recently a number of other statements have been made. By way of example, in Neumann Contractors Pty Ltd v Transpunt No 5 Pty Ltd2 Muir JA, with Holmes JA agreeing, said:3 “The utilisation of rules such as r 292 is to be encouraged, but the replication must conform with “… the general principle … that issues raised in proceedings are to be determined in a summary way only in the clearest of cases.” 1 [2005] QCA 227. 2 [2010] QCA 119. 3 Ibid at [80] to [81]. -- 6 of 18 -- 7 [13] Thereafter there is a reference to the High Court decision of Rich v CGU Insurance Limited,4 where there was also reference to a previous decision of Agar v Hyde5, the relevant passage being: “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding, if it were allowed to go to trial in the ordinary way.” [14] Reference in that case was made to the use of the words “no real prospects of succeeding and one which is hopeless or one which is bound to fail”. But nonetheless it would seem, that the short point – if I could put it in that way – is that summary judgment is to be granted only in the clearest of cases. As much was said in Hughes v Westpac Banking Corporation,6 in a decision of Justice P Lyons, as he then was, again in JM Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd & Anor,7 per Justice Daubney, and then also there was the case to which I was referred to by Mr Jennings, counsel for the applicant, of Shaw v Deputy Commissioner of Taxation.8 [15] Returning then to the issues which were raised by the male defendant during the course of this proceeding, as to the so-called monetised issue, with all due respect to the defendant , I was left in the complete dark about what the point was, let alone how it could in any way raise a defence to the claim or any part thereof. As to the issue of native title, I have no doubt that that matter also would be incapable of grounding any defence whatsoever to the claim or any part thereof. As to the allegation that there has been photoshopping of mortgage documents, again on my view on the material before me I am satisfied that that 4 [2005] HCA 16. 5 [2000] HCA 41. 6 [2010] QSC 274. 7 [2008] QSC 311. 8 [2016] QCA 275. -- 7 of 18 -- 8 point would also not be capable of raising any prospect of a defence to the claim or any part thereof. [16] That the plaintiff is not a real person – in this context the submission of the male defendant as I understood, it was to identify that the applicant plaintiff was a large corporate entity and thereby held an unfair balance of power in dealings between it and parties such as the male and female defendants in this proceeding. I was not taken to any material evidencing any abuse of power on the part of the bank and no sensible arguments were advanced in support of the allegation. That point again raises no arguable defence. There is no prospect of that point grounding a defence to a claim or any part thereof. The next point, whether the defendant received a notice – that allegation on the material before me seems implausible and in any event would seem to be overtaken by a number of matters to which I will refer to in a moment. [17] Turning then to the other matters, it was asserted by the male defendant, that the amount being claimed was in effect – or – involved in effect, a money grab on the part of the bank. It was said, that the interest and penalties that were claimed were in effect an abuse and could not be reliable. It seems clear to me, that there is no merit in that argument. I can see no reason why the amount claimed in the amount of $239,373.41 has not been properly calculated. In that context that appears in a certificate pursuant to clause 10.1 of the subject mortgage and appears as exhibit AJK7 at page 400 of the affidavit of Ms Kennedy. As to the assertion that there was a breach or a failure on the part of the bank to provide a loan but instead provided an overdraft which, according to the male defendant constituted something similar to stealing, counterfeiting and swindling, again, there is no merit in that submission and, indeed, I found a number of the matters raised by the male defendant in this context quite confusing and if not confusing, then inconsistent. [18] Perhaps before turning to the documentation, it might be useful to refer to some of the matters that the male defendant raised during his oral submissions on this point. The point, as I understood it, was that his wife intended to apply for a loan in the amount of $200,000, and that what she intended was to receive a -- 8 of 18 -- 9 lump sum pursuant to that loan in the sum of $200,000. The male defendant says, but, instead, she was given a line of credit. Indeed, at one stage, the male defendant went so far, at least as I understood it, as to acknowledge the existence of a debt, at least on the part of his wife, but says that she incurred that debt after being groomed by the bank. “Groomed” is a term that the male defendant used. Indeed, the male defendant went on at one stage to say that if he had the money available, he would be inclined to clear the debt that his wife incurred.9 [19] What was meant by “groomed” was not fully explained, but it seemed to me to mean that the female defendant had simply been taken advantage of. At one stage in this context the male defendant described his wife, as “a silly mug”. The male defendant said that he had signed many, if not all but one, of the documents but not for the purpose of securing a loan for his benefit, but for the purpose of ingratiating himself back into favour with his family and, in particular, his wife and his daughter. He said, again, as I understood his submissions, that he did this feeling confident that he could do without ramifications because he believed that the bank would have refused the loan application if it had carried out any due diligence inquiries of the financial position of both defendants.10 [20] The documents make it quite clear, in my view, that what was being applied for was what the defendants wanted, namely, the establishment of a line of credit. To achieve that, a number of documents were executed by both the male and female defendant, including by way of examples the Break Free statement of financial position that was signed by the male defendant who, for whatever reasons also included his then driver’s licence number. At one stage, the male defendant said that that signature was a forgery but when taken to some earlier statements that he had made, he resiled from that position. [21] The male defendant’s signature also appears on the loan disbursement order and, perhaps most significantly, on the mortgage document dated 8 April 2008. The 9 T 1-50 to T 1-51. 10 T 1-20 to 1-21 and T 1-53 to 1-54. -- 9 of 18 -- male defendant did not dispute that it was his signature on that mortgage document. His complaints turned on a number of other matters which I will come to in a moment. As it turned out, the only document which the male defendant at the end of the day said contained a forgery of his signature was the document referred to as the ANZ Equity Manager facility. That document was also signed by the female defendant on 8 April 2008 and purportedly by the male defendant on the same day. Having regard to the material before me, it strikes me that it would be implausible to conclude that that signature was a forgery. That is, if this matter went to trial, there would not be a genuine prospect of that signature being accepted as a forgery. [22] By reference to the material, and indeed the male defendant did not take issue with a number of these matters, there can be no doubt that the credit facility was established, having a limit of $200,000. Almost immediately upon it being made available, a number of withdrawals took place. By 2 May, the facility had been drawn down to the amount of $199,355.45. During the period from 3 April to 2 May, there had been only three deposits made, one in the amount of $540, one in the amount of $1100 and another in the sum of $500. At least two of those repayments would appear to have been made by their daughter Alicia Pavey. [23] By 26 May 2008, the facility was overdrawn in the sum of $200,278.14. Again, from the period of 29 April to 26 May, there are only a limited number of deposits made, typically in the sum of $300 and again, it would appear in most, if not all, instances, those deposits were made by the defendants’ daughter. It is abundantly clear that what was intended was the establishment of a line of credit and what is equally clear is that that line of credit was drawn upon over a period of time until it reached a stage where the drawings had exceeded the monetary limit. There could be no prospect of the defendant succeeding on the defence that what was intended was a loan rather than a line of credit or overdraft. [24] Turning to the question of duress. It emerged during the course of proceedings that the reference to ”pressure” was not what the court is familiar with, that is alleging some form of economic or other duress exerted by the beneficiary. Here, the male defendant, quite candidly, acknowledged that the duress to which -- 10 of 18 -- he referred was what he perceived to be the need to do something to win favour or, to use his words, “ingratiate” himself with the family. And, as I have already indicated, the means he used, at least in part, to achieve that end was to sign the relevant documents to facilitate the financial facility the subject of this proceeding. In my view, that raises no prospects of providing a defence to this proceeding. Whilst not directly on point, the principles raised by the Court of Appeal in Hepburn v McLaughlins Nominee Mortgage Pty Ltd11 are persuasive. There, particular note was taken of the fact that the respondents in that appeal were innocent, in the sense that they had no knowledge of duress. There was no suggestion made by the male defendant that the bank was or could have been aware of his motivation for signing the documents. Judgments were delivered by Justice Davies of Appeals, Justice Thomas as he then was, and Justice Fryberg. I do not intend to address the reasoning of all of their Honours’ reasoning. It is largely to a similar effect but in the judgment of Justice Fryberg, his Honour said: “There is no doubt that ignorance on the part of the person against whom the applicant seeks relief or the circumstances giving rise to the injustice is a consideration relevant to the exercise of discretion under s.7 to grant such relief.” [25] That matter was concerned with the Contracts Review Act of 1980. After referring to the judgment of Collier v Moreland Finance Group (Vic) Pty Ltd,12 a decision of the Court of Appeal of New South Wales, his Honour Justice Fryberg went on to say: “It must be remembered in this context that the question in the present proceedings is whether there is a question to be tried as to the exercise of the discretion in favour of the appellant. It is at this point that the appellant’s argument must fail. On the uncontradicted evidence, the respondent was entirely 11 (Unreported, BC 9700797, QCA, 18 March 1997). 12 (Unreported, BC 8902259, NSWCA, 21 April 1989). -- 11 of 18 -- 12 an innocent party and nothing in the evidence suggested any chance of a different conclusion at trial.” [26] His Honour then went on to say that the appeal must fail, that being an appeal against summary judgment. I have little doubt that the allegation raised in this context will provide no sensible form of defence to the claim or any part of the claim and, to adopt the wording of Justice Fryberg, there would be no prospect at the trial of the matter of any other conclusion than that the bank was entirely without knowledge of the alleged so-called duress and was, in that sense, an entirely innocent party. [27] As to the allegation that the bank was negligent in failing to obtain a credit report or carry out any due diligence as to the financial wherewithal of the defendants, as I have already indicated, that matter arises in the context of the male defendant supposedly executing the relevant documents to facilitate the establishment of the line of credit, feeling confident that he could achieve the favour of his family with no real risk because, as he put it, had the bank done what it should have done, they would have found that the loan was more likely than not to fall into default and, accordingly, the application would have been rejected.13 [28] This defence or this assertion raised by the defendant, again, raises no prospect of any meaningful defence at trial. Here there is no suggestion that the bank was acting in any way as a financial adviser to either the female or male defendant. This was simply an arrangement entered into between the defendants and the bank to establish a line of credit, subject to a number of conditions. Of particular significance, the obligation to repay the loan and in the event of default, to pay any outstanding moneys and, to grant security by way of a mortgage. In the decision of the Bank of Western Australia Limited v Luo & Anor,14 under the heading “Duty of Care”, it was identified that in a claim by the defendants in that case, they contended that the bank owed them a duty to: 13 See para 19. 14 [2010] NSWSC 733. -- 12 of 18 -- 13 “…exercise reasonable skill, care and diligence in and about the making of the advance.” [29] The court observed that it was alleged in the cross-claim that the bank breached that duty by failing to, in effect, to carry out a proper investigation and had they done so, the amount made available should never have been approved. A number of cases were considered and the conclusion in paragraph 74 was, after a reference to the Commonwealth Bank of Australia & Anor v Smith & Anor,15 that a bank may owe a duty of care in that regard where it has taken the role of financial adviser to a customer. However, that was not the position in Luo and, therefore, did not provide any defence. [30] To put it perhaps bluntly the bank, in the circumstances of this case, did not owe a duty of care to either of the defendants to investigate their financial affairs to determine whether it would have been appropriate to grant the loan and, indeed, there would be no facts in this regard that might bring this particular case into what Mr Jennings described as the rare circumstances where the court would be unwilling to grant summary judgment in favour of the bank based on such an allegation. I agree with that submission. [31] I now return just briefly then to some of the matters raised by the male defendant. In respect of the mortgage, he took exception to a number of matters. First, the reference to fee simple. That argument was entirely misconceived and misunderstood the use of that term in the mortgage document. And I should repeat here that there is no complaint on the part of the male defendant that he did, together with his wife, execute this document on 8 April 2008. Particular offence seemed to have been taken with what was described as: “…description of debt or liability secured.” [32] The mortgage relevantly provides that the debts and liabilities secured by the mortgage were those detailed in clause 2.2 of the standard terms document and 15 [1991] 42 FCR 390. -- 13 of 18 -- 14 the mortgagor acknowledged having received a copy of that document. Clause 2.2 quite clearly identified what the secured money was. The male defendant’s complaint or attack on that part of the mortgage document was again, in my respectful view, entirely misconceived. As I have said, the male defendant’s attack on the financial arrangements involved those assertions to which I’ve already dealt with but on more than one occasion he said to the effect that his wife had entered into this arrangement believing it to be a “loan”, not a line of credit. [33] The male defendant went along with that, for the reasons that I have already given, but believing that the bank would carry out due diligence and refuse the application. Indeed, at times, it appeared that the only genuine complaint that the male defendant raised was that instead of receiving a lump sum loan, instead a line of credit was provided. As I have already indicated, the documents leave little, if any, room for doubt that what was being applied for was what was achieved, namely, a line of credit which at least one of the defendant’s took advantage of to the extent that it was overdrawn.16 [34] DEFENDANT J.H. VAN DEN HOORN: Your Honour, just quickly – you will have seen that I made admissions when I haven’t. [35] HIS HONOUR: By way of conclusions, for the reasons that I have given, I am satisfied that this is one of those rare examples where it is sufficiently clear, or to put it perhaps more accurately, this is one of those clearest of cases where there is a high degree of certainty that, if the matter were to proceed to trial, the ultimate outcome would be the same. That is, judgment would be granted in favour of the bank. In my view, none of the matters raised in the defence or indeed during oral submissions established any prospect – let alone any real prospect – of the defendant succeeding at trial. For the reasons given summary judgment will be granted in favour of the applicant plaintiff. 16 T 1-24 to T 1-26; T 1-63 ll 1-8. -- 14 of 18 -- 15 [36] But before making final orders I should deal with the question of costs. Costs, of course, remain at the discretion of the court, but here the relevant schedule to the mortgage provides in clause 9.3 to this effect: “I will indemnify ANZ against any loss, cost, charge, liability and expense which ANZ or any ANZ appointee incurs as a result of, A, any default event or, B, its interest in or control or power, including any exercise, attempted exercise or failure to exercise such power relating to the property. This includes legal fees on a full-indemnity basis and administrative costs, including overheads and the salaries and wages of its employees and agents. This obligation continues despite the release of this mortgage and the repayment of the secured money.” [37] This was a contractual arrangement freely entered into between the bank and the defendants. And I can see no reason why cost ought not be granted on an indemnity basis. For the reasons given the orders of the court will be, 1, pursuant to rule 292 of the Uniform Civil Procedure Rules 1999, judgment given in favour of the plaintiff against the defendant, the male defendant, for all or part of the plaintiff’s claim. This should just be the male defendant. (The following exchange then followed): MR JENNINGS: That was something I was going to raise at the end, your Honour. Your Honour’s earlier point about the proceedings not progressing against the female defendant is wrong, with respect. Whereas she has offered up to surrender the property and has, it seems, consented to and not otherwise participated in the proceedings, the plaintiff still seeks orders against her in the proceedings. HIS HONOUR: Of course. Yes. Effectively at this stage she’s just consented to whatever it is that’s dealt with under that – what was the document to which I referred? -- 15 of 18 -- 16 MR JENNINGS: Yes. She’s consented to surrendering, and she’s consented to her liability, understanding that there might be a shortfall. This is the document at page 178, and it’s exhibit MT15. HIS HONOUR: That’s right. Yes. Sorry. That was clearly an error. DEFENDANT J.H. VAN DEN HOORN: Objection, your Honour. Objection, your Honour. My wife has gone beyond consenting. She’s surrendered possession. She’s given the keys, vacant possession. There’s none of this sort of like – as he’s trying to put there. Like, she has totally given them evidence against me. Like, sort of, she has totally – and to further punish her when she has already surrendered is – I think they’re misrepresenting their – but what level of court do I appeal anything that I disagree with, your Honour? That’s - - - HIS HONOUR: Court of Appeal. No. Mr Jennings is quite right. This isn’t a case of punishing your wife. It is as Mr Jennings pointed out. It was an error on my part, perhaps to do with the passage of time today, to characterise what your wife has done as, if you like, bringing to an end any proceedings against her. The fact of the matter is that the debt is still one that’s jointly owed. The mortgage is one that involves both you and your wife. Therefore the order has to be in the terms agitated for. It – materially it’s not going to make, I hazard to guess, not much difference. DEFENDANT J.H. VAN DEN HOORN: ANZ is the primary debitor, I feel, that’s driven her into bankruptcy, and like, sort of, this is almost like a punitive vendetta. They’ve driven her into bankruptcy, and like [indistinct] more blood out of the stone. -- 16 of 18 -- 17 Like, surely she’s bankrupt. Pursuing her for further damages is just like cruelty. HIS HONOUR: Well, if she’s bankrupt, the bank’s unlikely to succeed in getting any moneys. But that’s not a matter that I need to hear about. MR JENNINGS: We haven’t heard of her becoming a bankrupt. Your Honour - - - DEFENDANT J.H. VAN DEN HOORN: She’s a bankrupt. She’s going through it. HIS HONOUR: Anyway, look. Whether she’s a bankrupt or not - - - MR JENNINGS: And your Honour’s been interrupted in identifying the orders your Honour’s going to make. While that interruption persists may I - - - HIS HONOUR: There’d be no reason why I couldn’t make the orders as per the draft. [38] To finalise the matters, the orders will be as per the draft which I will initial, date and place on the file. And in tidying up my reasons, including the matter we’ve just been discussing, I’ll also include some reference to the parts of the mortgage which I just couldn’t lay my hands on quickly. [39] Accordingly, the orders of the court are: 1. Pursuant to r 292 of the Uniform Civil Procedure Rules 1999, judgment be given in favour of the plaintiff against the defendants for all of the plaintiff’s claim. -- 17 of 18 -- 18 2. The defendants pay to the plaintiff $239,373.41 as a debt due under the loan agreement between the parties dated 8 April 2008. 3. The plaintiff recover possession of Lot 13 on Crown Plan SL809620 in the County of Stanley, Parish of Capalaba being the whole of the land contained in title reference number 50350586 and situated at 30 Cochrane Street, Alexandra Hills in Queensland. 4. Mr Van Den Hoorn pay the plaintiff’s costs of the proceeding, to be assessed on an indemnity basis. -- 18 of 18 --