Danny Maksacheff 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.
The Commonwealth Bank was granted possession of a property due to a mortgage default. The Sheriff of New South Wales issued a Notice to Vacate and scheduled an eviction, bit it was postponed due to apprehension that there may be violence and that the police should accompany the Sheriff when enforcing the writ of possession, which occurred a few weeks later, along with a locksmith changing the locks at the property. Works were planned with a view to preparing it for sale, and instructions were given that any contractor should be accompanied by a security guard when attending because of apprehension of violence on the part of the defendants. The following month a pool contractor attended the property and the security guard noticed the locks to the entrance gates had been changed, and the presence of animals which had been relocated at the time of the eviction. A folder of documents was at the entrance gate, with documents claiming that the Maksacheff’s had a continued right to possession of the property.
In Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860 the Commonwealth Bank applied for a writ of restitution. Daniel Maksacheff did not make himself available to the court, and leave was granted by Adamson J for the issue of a writ of restitution to restore the Commonwealth Bank’s possession of the property. (at 11-12):
“In my view the only reasonable available inference is that the defendants have re-entered the Property to take up residence there and have taken steps to subvert the writ of possession and the plaintiff’s access and proprietary rights with respect to the Property. In all the circumstances, I am satisfied that the appropriate remedy is to issue a writ of restitution to restore the plaintiff’s possession of the land on the Property.”
A Notice was issued with the following endorsement:
“Daniel James Maksacheff and Agnieszka Iwona Maksacheff, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier 2/1135174 being the whole of the land situated and known 59 Lawson Road, Panuara New South Wales (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff.”
The Maksacheff’s sued the Commonwealth Bank for what was said to be liquidated damages in the sum of $2.8 million, together with interest. In an interlocutory hearing, they applied for leave to have Mark Andrews and Anthony Evans, neither of which is a legally qualified lawyer, to appear as amicus curiae. In Maksacheff v Commonwealth Bank of Australia [2016] NSWSC 1108, Campbell J observed (at 7) that:
“Mr Maksacheff, in a hesitant and a faltering voice, made the application saying he didn’t have the voice to put forward the arguments he wished to advance today and requested I permit his friends, who apparently have his power of attorney, to appear for him.”
Campbell J granted leave to Mark Andrews to appear but declined leave to Anthony Evans.
The hearing continued in Maksacheff v Commonwealth Bank of Australia (No 2) [2016] NSWSC 1109, where it was alleged that the sum of $2.8 million was owed to the Maksacheff’s, as the Bank had defaulted in its obligations under a contract relating to a promissory note for $700,000 the Maksacheff’s had delivered and the Bank had accepted, which was claimed to discharge the mortgage. The promissory note provided a demand that if the Bank rejected the promissory note as defective or insufficient it must return it to the Maksacheff’s within 3 days, and the following statement that if not returned within the period, the Bank cannot pursue the mortgage:
The Bank failed to return the promissory note as defective or insufficient within three days and failed to attend at the time and place notified on its face to redeem its value, and as a consequence it was alleged the Bank accepted the tender of the promissory note to discharge the mortgage, and its terms and conditions. Under the heading “Default and Liability Clause and Notice”. the promissory note provided for the payment of liquidated damages in the sum of $2.8 million upon default by any party of its obligations under the contract, which was said to be owed to the Maksacheff’s due to the Bank subsequently seeking summary judgement and possession of the property.
Counsel for the Bank identified the promissory note as an attempt at a foisted unilateral contract, and referred to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 as an authority that silence on its own cannot imply agreement. The documents submitted to the Court also touched on the securitisation argument, but this was not pursued. Campbell J was satisfied that the Maksacheff’s claim had no prospects of success whatsoever and that the proceedings must be summarily dismissed, observing (at 22):
“Moreover, it seems to me that the plaintiffs delivery of the promissory note to the Bank could not of itself discharge any liability of them as borrowers under the mortgage and loan agreement. It is not shown that in accordance with its terms the mortgage could be discharged by tender of a promissory note, especially one as heavily conditioned as that which forms part of Exhibit 2. If anything, the promissory note created a new obligation to pay had the Bank presented the note on the date and at time and place it specified. The Bank’s failure to present the note for payment discharged the plaintiffs from any liability on the note: ss 89 and 93 Bills of Exchange Act 1909 (Cth). It did not discharge the plaintiffs from their liability on the mortgage or loan agreement, the latter of which doubtless specified the required mode of payment to effect a discharge.”
Despite being evicted for the second time pursuant to the writ of restitution to restore the Commonwealth Bank’s possession, the Maksacheff’s again moved in and prevented the Bank from completing the sale of the property. In Commonwealth Bank of Australia v Maksacheff (No 2) [2016] NSWSC 1586, the Bank applied for a further writ of restitution and orders that the Maksacheff’s be restrained form entering the property. The Maksacheff’s also filed a motion seeking orders that the default judgement and the writ of restitution be set aside, and that the court grants a stay of enforcement “pending Parliamentary Enquiries into Banking fraud/crimes” attaching a copy of a letter sent by Senator Culleton to the President of the Senate. Schmidt J dismissed the Maksacheff’s application and granted the Bank’s writ of restitution.
The Maksacheff’s did not comply with that order, instead waiting until the day before the eviction date and filing an urgent Notice of Motion and affidavit in support that the eviction be stayed pending the outcome of a judicial review and an appeal to the Court of Appeal, which was heard by Campbell J in Commonwealth Bank of Australia v Makascheff [2017] NSWSC 22. They disputed the debt, claiming the Bank must point to books of accounts which demonstrate that in some way its cash in hand diminished at the time the money was advanced, that is, it suffered some loss, or there is no debt.
Further, notices were given under section 78B of the Judiciary Act 1903 (Cth) alleging various constitutional arguments. The first argument was that the proceedings are within the exclusive original jurisdiction of the High Court, because they arise under a treaty, which is said to be between the Maksacheff’s extended family and the Wiradjuri people who he asserts have absolute ownership and title over the property. Campbell J held that while the Wiradjuri people may have had native title at one time, the land has long since been alienated, and that the reference to a treaty in section 75 of the Constitution is to a treaty between nations, and does not relate to private treaties between individuals.
The next argument was that the Bills of Exchange Act 1909 operated to discharge the mortgage by tender of a promissory note, a contention which had already been disposed of. The next matter questioned the jurisdiction of the court to interpret Federal Law, to which Campbell J responded that it is invested with Federal jurisdiction under the terms of the Judiciary Act 1903 as a Chapter III court established by the Constitution, and therefore has power to interpret Federal Law. The fourth matter related to whether the Supreme Court of New South Wales is a properly constituted court, to which Campbell J cited Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, that established the principle that the Supreme Courts of the States are constitutional courts and are integral parts of the national judiciary.
Campbell J dismissed the application, concluding that it had not been shown that they have a fairly arguable case on appeal, observing (at 21):
“There is a Contract of Sale and under that contract, given the orders of this Court, the bank has agreed to provide vacant possession. That cannot be given whilst Mr and Mrs Maksacheff remain in what, according to the orders of this Court, is unlawful possession of the property. The rights of the third parties cannot be assured if the writ is stayed and there is no offer, for instance, to make good any loss that they may suffer if the proposed appeal goes nowhere.”
Daniel Maksacheff filed a Notice of Motion seeking orders for a stay of all enforcement actions and that the land be restored to the owners “until this matter is heard in a court of competent jurisdiction”. Further, that the Bank restore all property to the land as it was prior to the recent eviction including all furniture and shipping containers, and cover all moving costs. The application came before Sackville J in Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 76 who dismissed the application, observing (at 12-15):
“It is enough for present purposes to observe that CBA has taken possession of the property. It has successfully resisted previous attempts by the applicant to restrain a sale of the property and the exercise by CBA of its powers as mortgagee in possession. CBA has obtained two separate orders for restitution against the applicant by reason of his having unlawfully retaken possession of the property. CBA has also obtained orders restraining the applicant from re-entering the property. Those orders remain in force. .. The material filed by the applicant, quite apart from formal deficiencies, such as the failure to identify the decisions challenged, contains nothing that would provide a basis for granting a stay or similar orders in his favour. There is also nothing that would justify an order being made at this stage reinstating the applicant to possession of the property.”
In preparation for settlement of the sale of the property, an updated title search was conducted which disclosed that Agnieszka Maksacheff had lodged a caveat against it in relation to breaches of the terms and conditions of the promissory note. The securitisation argument was also raised, contending that the Bank did not have their consent to trade, securitise, monetise, or sell the mortgage, and therefore the caveat has a proper legal basis. They argued the Bank breached various provisions of the Designs Act 2003 (Cth), the Copyright Act 1968 (Cth), the Copyright Amendment (Moral Rights) Act 2000 (Cth), and the Trade Marks Act 1995 (Cth), by allegedly securitising the mortgage, arguing that their signatures were registered as a design, a trademark, and under copyright. It was asserted that their signatures created the funds to purchase the property, and were in effect creative skill and labour, that the signatures had a value and the bank has wrongly retained that copyrighted skill and creative skill and labour, and on sold these assets (i.e. their signatures on the mortgage documents).
A friend of the Maksacheff’s, Glen Jeffrey, made various statements in support of this proposition in Commonwealth Bank of Australia Ltd v Maksacheff [2017] NSWSC 587. Lonergan J held that the caveatable interest claimed had no merit, and was based, amongst other things, misreadings and misapplications of unrelated rights conferred by the Commonwealth statutes, that nothing said by or on behalf of the Maksacheff’s in their written material or oral submissions support a caveatable interest in the property, and ordered Agnieszka Maksacheff withdraw the caveat within four days.
Most, if not all of these previous arguments were repeated before McColl JA and Emmett AJA in the Court of Appeal in Maksacheff v Commonwealth Bank of Australia [2017] NSWCA 126, to which the following responses relate, and need no explanation:
(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 103-104) “In Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation, 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”. 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.”
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