Loftus v Australia and New Zealand Banking Group Ltd [No 2]

[2016] VSCA 308

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Self-represented litigants
3. › Judge's duty to assist
4. › Duty to explain substantive legal rights
5. › Whether judge adequately explained law of indefeasibility to unrepresented party
6. › Whether failure constituted denial of procedural fairness
1. Practice and Procedure
2. › Appeal
3. › Consent orders on appeal
4. › Whether court must be independently satisfied orders below were wrong or attended by sufficient doubt
5. › Resource implications of retrial
1. Real Property
2. › Torrens system
3. › Indefeasibility of title
4. › Mortgage
5. › Personal equity exception
6. › Whether self-represented party denied opportunity to raise personal equity defence
7. › Transfer of Land Act 1958 (Vic)
1. Practice and Procedure
2. › Procedural fairness
3. › Adverse inferences
4. › [name withheld] v [name withheld]
5. › Whether judge required to warn self-represented litigant of consequences of not calling available witness

Quick Take

A trial judge must explain the legal framework of indefeasibility of title and the personal equity exception to a self-represented litigant in mortgage possession proceedings, including the different standards of proof applicable to fraud and personal equity claims. Failure to do so, combined with drawing adverse inferences without warning, constitutes a denial of procedural fairness warranting a new trial. The Court of Appeal will not make consent orders allowing an appeal and remitting for retrial without being independently satisfied the orders below were wrong or attended by sufficient doubt.