Danny Maksacheff

Danny Maksacheff 1 is an OPCA litigant in New South Wales, who was influenced by a number of people such as Glenn Bowley, Romley Stewart Stover and Rodney Culleton, to pursue the course of action against the bank. Among the various OPCA motifs and constitutional misconceptions, the main premise was the delivery of a promissory note in payment of the debt.

Extracts from Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 126:

AT [26] “The s 78B notice refers to four so called “constitutional” issues. The first “issue” is said to arise under s 51(xxiiiA) of the Constitution and the presumption that Mr and Mrs Maksacheff are willing conscripts “of the New South Wales corporation”. Section 51(xxiiiA) of the Constitution refers to the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services, benefits to students and family allowances. Nothing in the papers before the Court indicate that this provision has any relevance to the dispute, let alone what the “New South Wales corporation” is.

AT [26-27] The second “issue” is said to relate to bills of exchange and promissory notes, alleging tender of payment of promissory notes in full and final satisfaction of alleged loan liabilities to the Bank. It is asserted that promissory notes are governed by the Bills of Exchange Act 1909 (Cth) and that a promissory note was tendered for payment in full and final satisfaction of the balance of the loan made by the Bank. The s 78B notice asserts that the issue of the validity of promissory notes as legal tender or currency is an issue requiring interpretation and clarification by “the appellate jurisdiction” of the High Court of Australia. We deal with the Maksacheffs’ promissory note submissions in detail below. Suffice to say at this stage that, in our view, this assertion is misconceived. Even if there were such an issue, this Court can exercise federal jurisdiction, (Constitution, s 77(iii)), including determining the application of the Bills of Exchange Act to the steps the Maksacheffs have taken using the promissory note, purported to discharge the amounts they owe the Bank.

AT [30] The fourth “issue” is said to be the question of whether the Supreme Court of New South Wales is a properly constituted court under the Constitution. The contention appears to be that, when a court of the State is vested with “High Court jurisdiction” and that court is dealing with proceedings concerning laws and facts beyond the scope of its jurisdiction, the State court must follow, abide by and be subject to the Constitution and all Commonwealth laws and legislation, including laws relating to currency. It is asserted that those issues are “exclusive to the appellate jurisdiction of the original High Court of Australia”. We reiterate that this Court can exercise federal jurisdiction.

AT [53] “Mr and Mrs Maksacheff’s written submissions also assert that there were various deficiencies in the Bank’s supporting affidavits and the judgments of the courts below, to the effect that the differing languages and fonts appearing in the judgments proved “deception by this arbitral tribunal that appears not a Court of competent jurisdiction or have subject matter jurisdiction” [sic, as in original] and that the pro-forma “Judgement/Order” documents contain “unreadable hidden languages, which appears to be dog latin/Glossa” and are illegitimate for want of a signature of a Supreme Court Justice. The submissions also refer to “symbolism” and the use of “hidden language” by the Bank, which is alleged to be an attempt to deceive Mr and Mrs Maksacheff and to constitute fraud. As will be manifest, these assertions are nonsensical. Neither appears to advance comprehensible claims. We reproduce them, not to imbue them with any substance, but, rather, to illustrate their nonsensical nature.

AT [75] In this respect, Mr Maksacheff submitted that the Mortgage and/or loan agreement was a promissory note, being a promise to pay, and that, once it was deposited as an asset into the Bank, so-called “credits” were created. Accordingly, it was the signatures of Mr and Mrs Maksacheff that created the value in the “originating document”, being the Mortgage and/or loan agreement. Despite, as we repeat, the manifest absurdity of this proposition, but to seek to set out Mr Maksacheff’s submissions, we will adopt the nomenclature “first promissory note”, to describe the nature of the instrument, or possibly instruments, he asserts were thus created.

AT [80] In this respect, Mr Maksacheff submitted that, pursuant to a “contract” that was formed with the Bank when the Maksacheffs issued the Bank with a bundle of documents, which included a document styled “Notice of tender for payment” referring to the delivery of the second promissory note in discharge of the Mortgage, acknowledging and apologising for all previous “dishonours” and a demand that, if the Bank rejected the promissory note, the Bank must return it to Mr and Mrs Maksacheff within three days, otherwise it would be deemed that the Bank had “accepted the notes as sufficient consideration to satisfy or discharge all liabilities” to the Bank. The conduct that allegedly amounted to acceptance of the promissory note was the failure to return, or reject, the documentation within the time allowed in the offer and the failure to present the promissory note for payment in accordance with its terms. They also say that failure to respond to that demand for payment amounted to a breach of contract on the part of the Bank sounding in damages which formed the basis of the Damages Proceedings that were summarily dismissed by Campbell J.

AT [81] The purported promissory note is dated 27 November 2015. It appears to have the get-up of a legal document, is headed “Promissory note”, identifies Mr Maksacheff as the “maker”, has a lengthy number, the initials in which “PNDJM” are clearly the combination of the first initial of the words “Promissory note” and Mr Maksacheff’s name, followed by a long string of numbers. It directs an unidentified person to pay to the Bank the sum of $700,000. It states it is “redeemable on demand” at an address in Orange “at 10:35 hours without; let, delay, hindrance or ado, on [t]he seventh day of December AD 2015”. It bears what appears to be a wax circular seal, with the words “Certified Promissory Note Bill of Exchange” around the circumference, under which there is provision for Mr Maksacheff to sign against the word “agent”. In the fine print at the bottom of the document appear the words “Memo: Issued pursuant to PL 73-10 (See H.J.R. 192 dated June 5, 1933 [29] ) and/or its Australian equivalent, The Financial Emergencies Acts”. [30] Mr Maksacheff identifies this as the second promissory note, the first presumably being that he contended was created by execution of the Mortgage and/or loan agreement. Apparently a reference to the United States Congress House Joint Resolution 192 of 1933 (Joint Resolution to assure uniform value to the coins and currencies of the United States) 48 Stat 113 (31 US CA §§ 462, 463) (see also the Gold Clause Cases: Norman v Baltimore & Ohio Railroad Co 294 U.S. 240 (1935); United States v Bankers Trust Co 294 U.S. 240 (1935); Nortz v United States 294 U.S. 317 (1935); Perry v United States 294 U.S. 330 (1935)). The legislation referred to is possibly the Financial Emergency Act 1931 (Cth) which was repealed on 31 December 1950.

AT [95] Application of UNIDROIT principles Mr Maksacheff submitted that the UNIDROIT Principles on contract interpretation are relevant to the relationship with the Bank. Reference is made to that submission above at [69]. It is incomprehensible.

AT [99] …All these submissions have been dismissed. Jagot J described such submissions before her as “obscure, impenetrable, hopeless nonsense”, [38] an expression apt to describe those advanced in this Court.

AT [103] In Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation, [40] Callinan J ordered costs against a third party, the Institute of Taxation Research Pty Limited (ITR), which had advised and acted for numerous taxpayers in taxation matters and had argued unsuccessfully before a number of courts and tribunals that the Australian Taxation Office did not legally exist, that the Constitution was invalidly enacted, and no Commonwealth laws had any legally enforceable effect. In his Honour’s view, such an order was warranted because the ITR was “a promoter of this litigation” and “either the author, or the major participant in the preparation of, the arguments to be advanced in this Court, and the tactics to be employed in the proceedings and activities leading up to the initiation of proceedings…” and persisted advancing these arguments “notwithstanding that various courts in this country had consistently held the claims made here and like claims to be utterly untenable”. [41]

AT [104] Although we cannot discern who planted the seeds of Mr Maksacheff’s submissions in his mind, should further such arguments be advanced in similar circumstances, it may be in the interests of creditors to seek to identify the real promoter and procure an order similar to that made in Arundel.”

Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 126 on 05 June 2017. 2

Click to access maksacheff-v-commonwealth-bank-of-australia-2017-nswca-126.pdf

From a prior decision in Commonwealth Bank of Australia Ltd v Maksacheff [2017] NSWSC 587 on 12 May 2017. 3

Click to access commonwealth-bank-of-australia-ltd-v-maksacheff-2017-nswsc-587.pdf

From a prior decision in Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 76 on 27 March  2017 at the Court of Appeal. 4

Click to access maksacheff-v-commonwealth-bank-of-australia-2017-nswca-76.pdf

From a prior decision in Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22 on 12 January 2017. 5

Click to access commonwealth-bank-of-australia-v-makascheff-2017-nswsc-22.pdf

From a prior decision in Commonwealth Bank of Australia v Maksacheff (No 2) [2016] NSWSC 1586 on 10 November 2016. 6

Click to access commonwealth-bank-of-australia-v-maksacheff-no-2-2016-nswsc-1586.pdf

From a prior decision in Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109 on 10 August 2016. 7

Click to access maksacheff-v-commonwealth-bank-of-australia-no-2-2016-nswsc-1109.pdf

Leave to have  Mr Andrews speak for Mr Maksacheff as amicus curiae in Maksacheff v Commonwealth Bank of Australia [2016] NSWSC 1108 8

Click to access maksacheff-v-commonwealth-bank-of-australia-2016-nswsc-1108.pdf

From a prior decision in Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860 on 04 December 2015. 9

Click to access commonwealth-bank-of-australia-v-maksacheff-2015-nswsc-1860.pdf