Australia and New Zealand Banking Group Ltd v Evans; Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742

ANZ provided various facilities to Glenevan Pty Ltd, a company of which Mr and Mrs Evans were the sole directors. The facilities were secured by guarantees given Mr and Mrs Evans and mortgages over three properties and two vehicles. In February 2015, the company was placed into liquidation, resulting in an event of default occurring. ANZ subsequently issued demands to Mr and Mrs Evans and commenced proceedings for debt and possession of the properties and vehicles. Mr and Mrs Evans alleged that they had repaid a debt owed by them to ANZ by way of a Promissory Note, and further alleged that as ANZ failed to accept the Promissory Note, ANZ owed them more than $7,000,000.

In Australia and New Zealand Banking Group Ltd v Evans; Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742 the Supreme Court of New South Wales thought it appropriate to strike out or summarily dismiss the pleadings. Mr Evans asserted that a number of constitutional matters arose from the proceedings and that the court could not proceed to hear and dispose of the Notices of Motion. The alleged constitutional issues were that “The Gunditjmara sovereign people have absolute ownership and title over the aforesaid subject land to the exclusion of all others including the Crown, in all its capacities and guises”, challenges to the jurisdiction and authority of the Supreme Court to interpret and make decisions of fact and law concerning the Bills of Exchange Act 1909, and whether the Supreme Court of NSW is a properly constituted court. The court was not satisfied that these matters precluded the court from proceeding.

“It is illogical and incorrect as a matter of legal principle to take the statement that a promissory note “is to be treated as cash” out of the context in which it appeared, and apply it, as Mr Evans seeks to do here, in circumstances where Mr Evans creates a promissory note, which is not drawn on any reputable or substantial financial institution, and which is not a recognised form of payment under the loan documentation, and then proffers it entirely voluntarily in circumstances where the ANZ is required to attend at a remote rural village, at a specific time, in order to collect payment. Mr Evans’ assertion that, in those circumstances, he is excused from repaying his substantial liability to ANZ is, simply put, a nonsense. .. Here there is no doubt that ANZ received the promissory notes and did not return them within the specified three days. Silence or inaction on the part of a party cannot, where no consideration passes, transform a unilateral demand into a contract. Even less can it constitute a breach of some self-invented contract by Mr Evans. .. The entirety of the Statement of Claim in the Evans proceedings is based on an irrational and legally untenable premise. The irrational premise is that a person or party can unilaterally impose a contract upon one or more other parties by producing a five page written document, full of gibberish and legal nonsense, sending it to the other party or parties and then asserting that when the recipients ignore the document, they fall to be bound by its terms.”

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The year before, Anthony William Evans attempted to issue a commercial lien against the Deputy Commissioner of Taxation, which was rejected in Re Glenevan Pty Ltd [2015] NSWSC 201