Even as Queensland’s residential real estate market claws itself back to some respectability, the desperation of property owners still reeling from the GFC property collapse reached its apogee last month, with a contempt application brought against the judge who allowed the mortgagee to recover possession of a Sunshine Coast property.

Judge John Robertson ordered in March, that Perpetual’s July 2013 possession and debt recovery action be resolved in its favour and that the borrower pay the loan debt of $217k inclusive of interest.

Dispossessed borrower, Wayne Ralph Riggal, lodged a further application in the Maroochydore District Court to compel Robertson to appear – armed with his “Bond” and oath of office – to show cause in answer to the contempt allegations and answer “why a Tort Claim should not issue against his Bond to Purge the Contempt”.

What had been an issue in the March hearing was the validity of a so-called “promissory note” sent to Perpetual by the borrower from Mapleton Post Office so as to allegedly discharge the mortgage debt in full.

Fuelled apparently by internet gobbledygook propagated in the United States, this is at least the third instance of a similar argument coming before a state court in recent months and ranks with other equally creative contentions placed before the Court of Appeal last year.

The imaginative borrowers argue a home-made “promissory note” – not drawn on any bank – discharges the loan repayment obligation with a commitment to pay under the “negotiable instrument”.

In an “affidavit of probable cause”, his representative  Sarah Ann Wales – who the judgment explains is not a lawyer – recounts her bar table stoush with Robertson when she accused him as being “not qualified to assess a negotiable instrument”.

She then claimed on Riggall’s behalf that by failing to specify the exact deficiencies in the instrument, Robertson  had denied the borrower an opportunity to tender a modified “bill of exchange” that would have completely discharged his debt.

The application also called upon the state attorney general to issue proceedings against Robertson “quo warranto”.

Judge Long in April, ruled the “astounding” application and supporting material to be an abuse of process.

To proceed against a judge personally demonstrated, he said,  “a lack of understanding” of the fundamentals of the justice system, he said. Further, none of the relief claimed was available at law and quo warranto proceedings had been abolished as long ago as 1991.

Explaining that the only further course open to the borrower was an appeal against the March ruling, His Honour ordered the registrar should refuse allow the application to be filed.

No appeal to the substantive decision has as yet been filed and on 1 May, an enforcement warrant was issued against the property.

Perpetual Trustees Victoria Ltd v Riggall [2014] QDC 080 Long SC DCJ 11/04/2014

 


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