Court of Appeal - Equity 40381/07 (see link below Court of Appeal - Equity)
Court of Appeal Common Law 40839/06
We filed our 5 White Folders in the Court of Appeal 5th March 2007. Three documents in these white folders (Summary of Claimants Argument) have not been been uploaded to this website. We will upload them as soon as it is the right time to do so. The white folders contained;
a) Summons For leave To appeal
b) Summary of Claimant's Argument
c) Judgment of Justice Peter John Hidden 15th November 2006
d) Transcripts 30th October 2006, 1st November 2006, 15th November 2006
e) Draft copy of Notice of Appeal
f) Other Documents (containing the writ, 8th Affidavit, Notice of Motion 22/12/06, Corporation Australia)
g) Opponents Documents (still to be provided)
h) Claimant's Reply (still to be provided after we receive the opponents documents)
Holding Summons
Summons For Leave To Appeal
HOLDING SUMMONS - FOR LEAVE TO APPEAL
Filed: 21st December 2006
Notice of Motions Filed In the Supreme Court
1st NOTICE OF MOTION - COURT OF APPEAL - FIONA CAROLINE CRISTIAN 21st December 2006
2nd NOTICE OF MOTION - COURT OF APPEAL - FIONA CAROLINE CRISTIAN 1st March 2007
2nd NOTICE OF MOTION - AMENDED NOTICE OF MOTION - FIONA CAROLINE CRISTIAN
22nd December 2006
Affidavits Filed in the Court of Appeal
Affidavit 5th March 2007 - Fiona Caroline Cristian
AFFIDAVIT OF FIONA CAROLINE CRISTIAN – COURT OF APPEAL
21st December 2006
1. Registering Case Number 40381/07 - Court of Appeal - 14th June 2007 - File Number 40381-07.pdf
2. Ordinary Summons For Leave To Appeal - Updated 14th June 2007.pdf
3. DRAFT SUMMONS FOR APPEAL.doc
4. Judgement-Order Justice Nicholas 8th June 2007.pdf
5. Justice Nicholas Judgment Orders 12th June 2007.pdf
6. Transcripts (not uploaded as yet - They are all on order from the Court Transcripts Office)
a) Court of Appeal: Monday 2nd April 2007 - President Manson and Justice Hanley 40839/06
b) Equity Court: Thursday 7th June 2007 – Justice Nicholas - File Number: 003072/2007
c) Equity Court: Friday 8th June 2007 – Justice Nicholas – File Number: 003072/2007
d) Equity Court: Friday 12th June 2007 – Justice Nicholas – File Number: 003072/2007
e) Equity Court: Friday 14th June 2007 – Justice Nicholas – File Number: 003072/2007 Pedro Alfaro
7. Summons from Perpetual Limited 06-06-07.pdf
8. Submission Fiona Cristian Equity Court 7th June 2007.pdf
9. Submission To The Equity Court 8th June 2007.pdf
10. Facsimile To Chief Justice Young Equity Court 8th June 2007.pdf
11. Affidavit of Kylie Davies 06-06-07.pdf
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40839/06
MASON P
HANDLEY AJA
Monday 2 April 2007
FIONA CAROLINE CRISTIAN v PERPETUAL LIMITED, FORMERLY KNOWN AS PERPETUAL TRUSTEE AUSTRALIA LIMITED, (ACN 000431827)
JUDGMENT
1 MASON P: We have heard fuller than usual argument in support of an application for leave to appeal. The argument has been presented in written form and through the oral submissions of Mr Cristian, who is the husband of the claimant and has spoken on her behalf.
2 The matter before the court today is whether to grant leave to appeal against the orders pronounced by Hidden J on 15 November 2006. His Honour ordered that the defendant give the plaintiff possession of certain land and that the plaintiff have leave to issue a writ of possession. He made an order for costs. He directed that the matter be listed for further directions before the Registrar for the outstanding matters that were to be addressed in the proceedings.
3 In his reasons Hidden J stated that,
“The simple fact is that a loan contract was entered into for a certain amount of principal at a certain interest rate. The mortgage was signed consistent with that loan contract and to secure repayment of the loan with interest. It is common ground that there has been default in that no payment has ever been made, and in those circumstances, the plaintiff is entitled to summary judgment for possession.”
4 It was clear to his Honour, as it is clear to me, that the claimant wants to agitate a wide ranging set of issues against the opponent and, it would appear, third parties, including the broker/agent who was involved in the transaction.
5 Mr Cristian has made allegations of fraud, unconscionable dealing and misrepresentation. Some of these appear to be foreshadowed in the document called, First Cross-Claim Cross-Summons, dated 30 October 2006 that was before Hidden J. Other matters were foreshadowed in affidavits that were read before his Honour and no doubt in the submissions put to his Honour.
6 It is not disputed that a mortgage was signed and registered. It is not disputed that various formalities under the Conveyancing Act 1919 concerning the exercise of the mortgagee’s rights were complied with. It is not disputed that the mortgagee paid money and arranged for the discharge of an existing mortgage over the subject property.
7 In Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 at 164-5, Walsh J gave a judgment which received the approval of the High Court on appeal (see 126 CLR at 168-9). His Honour said this:
“In my opinion, the authorities which I have been able to examine establish that for the purpose of the application of the general rule to which I have referred, nothing short of actual payment is regarded as sufficient to extinguish a mortgage debt. If the debt has not been actually paid, the Court will not, at any rate as a general rule, interfere to deprive the mortgagee of the benefit of his security, except upon terms that an equivalent safeguard is provided to him, by means of the plaintiff bringing in an amount sufficient to meet what is claimed by the mortgagee to be due.
The benefit of having a security for a debt would be greatly diminished if the fact that a debtor has raised claims for damages against the mortgagee were allowed to prevent any enforcement of the security until after the litigation of those claims had been completed.”
8 Mr Justice Walsh did not state an absolute rule and one cannot overlook that fact. Nevertheless, I see nothing on what has been put to us today or was put before Hidden J to take the case outside of the general principle.
9 Mr Cristian has indicated that various claims are intended to be brought, presumably in what remains of the present proceedings in the Common Law Division. The order and judgment of Hidden J does not prevent those matters being litigated in the Supreme Court.
10 In my view, his Honour would have been in error if he had not granted summary judgment for possession in the circumstances here prevailing.
11 The dispute that is foreshadowed as to the possible misunderstanding or possible misrepresentation - I stress possible - as to the full effect of the loan contract cannot remove the fact that the document was signed and registered and became the basis of the relationship between the parties.
12 If a claim based on misrepresentation or fraud or unconscientious dealing is to be litigated then so be it. But the law, as I understand it, is clear that a party that succeeds on such a claim will be required to give counter-restitution and to repay any benefit that was received in consequence of the transaction that he or she seeks to impugn. The rule stated by Walsh J is in one sense an aspect of that more fundamental principle.
13 Mr Cristian foreshadowed arguments based upon the nature of legal tender in this country. I do not consider those arguments have any merit. They certainly raise nothing relevant to the matter that is before this Court.
14 I propose that leave to appeal against the orders of Hidden J made on 15 November 2006 be refused and that the summons before this court be dismissed with costs.
15 HANDLEY AJA: I agree.
16 MASON P: That is the order of the court.
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We have left most information out, particularly the rules of court, until the time is right.
IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COURT OF APPEAL File No: 40839 of 2006
BETWEEN Fiona Caroline Cristian
Claimant
- and –
PERPETUAL LIMITED
FORMERLY KNOWN AS
PERPETUAL TRUSTEE
AUSTRALIA LIMITED
Opponent
CLAIMANT’S WHITE FOLDER
Containing:
(a) Summons for Leave to Appeal
(b) Summary of Claimant’s Argument, 1. 2. 3.
(c) Judgment of Hidden J
(d) Transcripts - 30th October 2006 - 1st November 2006 - 15th November 2006
(e) Common Law Documents – Defendant: Fiona Caroline Cristian (all) filed before judgment by Hidden J - 15/11/06. 1. Notice of Appearance. 2. Defence.
3. Cross Claim / Cross Summons. 4. Affidavit of Arthur Cristian. 5. Exhibits (part of).
6. Affidavit of John Hartney. 7. First Affidavit of Fiona Caroline Cristian.
8. Second Affidavit of Fiona Caroline Cristian. 9. Third Affidavit of Fiona Caroline
Cristian. 10. Notice of Motion joining Macquarie Mortgages. 11. Notice of Motion
joining Galilee Solicitors. 12. Notice of Motion for Discovery.
(f) Common Law Documents – Plaintiff: Perpetual Limited (all) filed before judgment by Hidden J - 15/11/06. 1. Statement of Claim. 2. Notice of Motion.
3. Affidavit of Amanda Sherwood. 4. Exhibit AS1 – Loan Contract. 5. Exhibit
AS2 – Certificate of Title. 6. Exhibit AS3 – Mortgage. 7. Exhibit AS4 –
Mortgage Memorandum. 8. Exhibit AS5 – Letter, Real Property Act Sect
57(2)(b). 9. Exhibit AS6 – Letter, Consumer Credit Code Sect 80
(g) Draft Notice of Appeal
(h) Other Documents 1. Letter Dr Evan Jones Sydney University, Political
Economics 28/02/07. 2. Notice to Vacate – Nowra Sheriff. 3. 8th Affidavit
Fiona Cristian filed in Court of Appeal 22/12/06. 4. Amended Notice of
Motion filed in Court of Appeal 22/12/06. 5. Corporation Australia. 6. Note
to refer 6th Affidavit Fiona Cristian located in Summary of Claimants
Argument Part B. 7. Two Notice of Motions filed 28/11/06 and dismissed by
Registrar Howe 14/12/06.
(i) Opponent’s Documents
(j) Claimant’s Reply
Claimant: Fiona Caroline Cristian : - Phone: 0418 203204
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IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COURT OF APPEAL File No: 40839 of 2006
COURT BELOW:
IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COMMON LAW DIVISION File No: 13403 of 2006
OVERVIEW OF CLAIMANTS ARGUMENT
1.
Claimant’s Personal Introduction to
Rules of Court
(1 Page)
2.
PART A
(9 Pages)
Rules Of Court
By Enid Campbell Professor Of Law
A Study of Rule Making Powers And Procedures
3.
PART B
(19 Pages)
SUMMARY OF CLAIMANTS ARGUMENT
67 Points of Argument
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Claimant’s Personal Introduction to
Rules of Court
The Legal Profession self admitted skullduggery, collusionism and power with banks is to be diminished and this document is the start of it. My salvojure right and the rights of all other victims for self-defence against the legal profession court and banking judiciary antagonist and tyranny.
What you have here is only the tip of the iceberg that is going to come crashing down on this evil system. The whole of Australia, particularly the common ordinary people, are going to discover your secrets and anfractus legal profession underhanded legal secret intricacies, to be known by those you insultingly call frivolous, void of legal capacity and despairingly call laymen, fellow man, humans and mankind, because they are not sufficiently mentally developed in legal profession treachery, and the knowledge of legal profession bank property stealing treachery. Those who are unaware of your clandestine extortionist activities, which are now to be made public far and wide, are about to learn and discover and be enlightened about your legal processes and procedures. My husband and I will engage others in assisting us to plan to make re-enactments of our court case and others. There is no way Judges, Magistrates, Registrars, Barristers, Lawyers, Solicitors, Politicians, Bureaucrats and Bankers are going to escape the ultimate reprimand for their misconduct by aggravated victims and animosity.
This document IS the legal profession and banking admissions, that they lie, cheat, steal, swindle, alter transcripts and practice endless deceitful activity of scoundrels as shown in the rules of court which are so self evident, incontrovertible and unarguable. Sign of the T is very significant. You are the T error ist and you make terrorism laws purposely to label others as terrorists so you can convict them for standing up against you. Your terrorism is a errorism with a T in front of it and you use this as a weapon against anybody who is fed up with your evil activity because you undeniably allow them no recourse. So you give them the false title of Terrorist when they are dissatisfied and object to evil dictator conduct such as property theft. You cannot deny you are the terrorist and you accuse anyone who goes against you of being a terrorist.
There is only one way to ameliorate (to make things better for all concerned) this situation and that is for the court to order a tender of amends by returning the property rightfully unencumbered, be appropriately compensated in eight figures, remove my husbands bankruptcy and in return I will cease my plans of retaliation immediately. I am prepared to hold off for 48 hours (Wednesday 10.00am 7th March 2007). If there is no favourable reply I will then be justified in exposing even more serious information that will be petitioned to the public and who will discover the full extent of the legal profession and banking corrupt activism, which is too shocking to contemplate. You are facing your own grave dangers caused by your own literature.
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IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COURT OF APPEAL File No: 40839 of 2006
COURT BELOW:
IN THE SUPREME COURT OF
NEW SOUTH WALES
SYDNEY REGISTRY
COMMON LAW DIVISION File No: 13403 of 2006
SUMMARY OF CLAIMANTS ARGUMENT
PART A
Rules of Court
By
Enid Campbell Professor Of Law
Occupying The Chair Of
Sir Isaacs Isaacs Professor of Law
At
The Monash University
ISBN No 0 455 20630 9
1932
Comprising
A Study of Rule Making Powers And Procedures
This book is Clearly directing the legal profession to legally swindle, exploit, deceive, Persecute and plunder the trusting duped naive masses of Law trusting victims as the Following two excerpts reveal amply for the public to consider and self discover.
Abuse of Process
Page 234.
Withheld for now.
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Summons For Leave To Appeal - See PDF Attachment
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