Anderson v Police & Nurses Credit Society Limited
[2013] WASCA 22
ANDERSON -v- POLICE & NURSES CREDIT SOCIETY LIMITED [2013] WASCA 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 22 | |
| THE COURT OF APPEAL (WA) | 05/02/2013 | ||
| Case No: | CACV:154/2012 | 10 JANUARY 2013 | |
| Coram: | PULLIN JA | 10/01/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROSINTA FALENTIN ANDERSON BRYAN CHARLES ANDERSON POLICE & NURSES CREDIT SOCIETY LIMITED |
Catchwords: | Appeal Practice and procedure Application for stay or suspension order Application dismissed Turns on own facts |
Legislation: | Nil |
Case References: | Bank of Western Australia Ltd v Kwa [2003] WASC 110 Eastland Technology v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ANDERSON -v- POLICE & NURSES CREDIT SOCIETY LIMITED [2013] WASCA 22 CORAM : PULLIN JA HEARD : 10 JANUARY 2013 DELIVERED : 10 JANUARY 2013 PUBLISHED : 5 FEBRUARY 2013 FILE NO/S : CACV 154 of 2012 BETWEEN : ROSINTA FALENTIN ANDERSON
- BRYAN CHARLES ANDERSON
Appellants
AND
POLICE & NURSES CREDIT SOCIETY LIMITED
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : POLICE & NURSES CREDIT SOCIETY LTD -v- ANDERSON [2012] WASC 339
File No : CIV 1642 of 2012
(Page 2)
Catchwords:
Appeal Practice and procedure Application for stay or suspension order Application dismissed Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Mr B C Smith
Solicitors:
Appellants : In person
Respondent : Gadens Lawyers
Case(s) referred to in judgment(s):
Bank of Western Australia Ltd v Kwa [2003] WASC 110
Eastland Technology v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161
(Page 3)
1 PULLIN JA: The appellants seek a stay or suspension order relating to the judgment of Master Sanderson.
2 By that judgment, the Master ordered that the appellants pay to the respondent $580,163.08 plus interest at the rate and in the manner specified in a loan agreement and mortgage, that on or before 19 November 2012, the appellants give possession to the respondent of 2 Coulthard Crescent, Canning Vale, and ordered that the appellants pay the respondent's costs of the action. After hearing oral submissions concerning the appellants' application, it was dismissed with reasons to be published later. These are the reasons.
3 A stay of judgment or a suspension order will not be granted unless special circumstances are shown. See s 15 of the Civil Judgments Enforcement Act 2004 (WA) and Eastland Technology v Whisson [2003] WASCA 307; (2003)28 WAR 308. Usually it is necessary to show that the appeal will be rendered nugatory if a stay is not granted or that practical difficulties will be created regarding relief which may be granted on appeal. Even if that is shown, a stay or suspension order will still be refused if none of the grounds of appeal have any reasonable prospect of succeeding or if the balance of convenience favours the refusal of a stay. In addition, because the amount claimed by the respondent is not disputed, the general rule is that a stay will not be granted in circumstances where the mortgage debt has not been paid or paid into court: Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161, 164. The debt has not been paid.
4 The Master in his reasons found:
The mortgage secures performance of the defendants' obligations under a written loan agreement between the plaintiff as lender and the defendants as borrowers. The loan agreement was signed by the defendants on 28 July 2006. Pursuant to the loan agreement, the plaintiff advanced the sum of $537,379.85 to the defendants. The defendants were required to make monthly repayments of principal and interest. The defendants have failed to make the repayments required by the loan agreement. As a result, they are in default under the terms of the loan agreement and the mortgage. On 2 March 2012 the plaintiff's solicitors issued a default notice to the defendants. The default was not rectified within the time specified in the default notice.
On the basis of the evidence of the loan agreement, mortgage, default notice and surrounding circumstances, the plaintiff has verified its cause of action and has established a prima facie entitlement to judgment. The evidentiary onus shifts to the defendants to show an arguable defence. The
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- defendants rely on an affidavit of the first-named defendant sworn 9 July 2012. In addition, a defence has been filed [2] - [3].
5 The Master then turned to the appellants' arguments for resisting judgment. The Master said:
The defendants' case can be summarised in this way. They acknowledge entry into the loan agreement and the advance of funds to them under the terms of these documents. The defendants make no complaint about the circumstances of entry into the transaction with the plaintiff and do not dispute they are otherwise bound by the express terms of the documents.
They say as a consequence of an injury suffered by Mr Anderson in September 2007, a claim arose against a chiropractor. Proceedings were issued in the District Court for damages including past and future consequential loss. The District Court action was commenced in June 2010 and is still not resolved. The defendants say the reason they are in default is Mr Anderson's diminished capacity to work which is alleged to be the result of the injury the subject of the District Court claim. The defendants concede they do not have the capacity to service the loan repayments or repay the balance of the loan without sale of the property.
The defendants allege the plaintiff has engaged in unconscionable conduct within the meaning of s 21 of the Second Schedule to the Competition andConsumer Act 2010 (Cth) (the Consumer Law). The defendants allege the plaintiff is at fault in three separate but interrelated ways. First, it is alleged the plaintiff failed to 'consider adequately' the defendants' request for relief from their repayment obligations for an undetermined time. Second, by issuing the default notice. Third, by commencing these proceedings for enforcement of the loan agreement and mortgage [4] - [6].
6 The Master found no unconscionable conduct. In the course of his reasons the Master referred to Bank of Western Australia Ltd v Kwa [2003] WASC 110 in the following way:
While acknowledging each case must be assessed on its particular facts, the plaintiff did refer to the decision of Newnes M (as he then was) in Bank of Western Australia Ltd v Kwa [2003] WASC 110. In that case the defendant argued that it was unconscionable for the plaintiff to enforce the mortgage as he had been involved in a motor vehicle accident which was not his fault. Newnes M said:
As to the other ground, that the defendant is unable to service the mortgage because of events which are outside his control, whatever sympathy one may have for Mr Kwa's personal circumstances, the fact is that he entered into an agreement which required him to make certain payments and, in default of doing so, the plaintiff was entitled to exercise its rights under the agreement. It is not to the point that Mr Kwa's inability to meet his obligations has come
- about by reasons beyond his control. They are, of course, also beyond the control of the plaintiff. The plaintiff is, in the circumstances, entitled to exercise its rights under the agreement [23].
- Mr Kwa was denied leave to appeal (Kwa v Bank of Western Australia Ltd [2003] WASCA 227). Mr Kwa had applied for a stay of execution pending the hearing of the appeal. He argued that if left in possession of the property he would have done other things to repay the debt given time. The court said:
It can be no answer to the bank's pursuit of its remedies under its security that it might recover the funds advanced and the interest owing by another means which might provide a more favourable outcome to the appellant [5].
The plaintiff submits the uncertain amount of time required by the defendants to finalise the personal injuries claim is fatal to the allegation of unconscionable conduct. In my view, that submission ought be accepted. The outcome of litigation is always uncertain. There is no definite timeline in this case. In effect, what the defendants are seeking is an injunction preventing the plaintiff from exercising its legal rights. There is no basis upon which such an injunction could be granted [11] - [13].
7 It may be accepted that the appeal will be rendered nugatory if a stay is not granted and the respondent proceeds to sell the appellants' property. However, as already stated, a stay or suspension order will not be granted if none of the grounds of appeal have any reasonable prospect of succeeding. There are no grounds of appeal before the court because the appellants have not yet filed the appellants' case. However, the appellants say in their application for a stay:
The applicant applies for stay of judgement [sic] proceedings … support of extension of time & that PNCS and their solicitors be ordered to cease the harassing and threatening letters/emails and phone contacts to myself and my solicitors until they are formally advised of the completion of my damages case, which I have already promised to give them.
8 The appellants, who are appearing without lawyers, say that this is the basis of their appeal; that is, the appellants contend that the Master erred in entering judgment because the appellants want the respondent to wait until the appellants have money from the damages claim to settle the debt. That can therefore be treated as the proposed ground of appeal for the purpose of this application.
9 The Master's reasons explain why that argument has no merit. The Master's reasons reveal no error on that point. There is no reasonable
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- prospect that such a ground will succeed. The appellant has not provided any evidence showing that the damages claim is likely to succeed, what amount may be recovered if it did succeed or when the claim might be determined.
10 In any event, because the mortgage debt is not in dispute and it has not been paid, a stay should not be granted. The balance of convenience also favours the refusal of a stay. The most recent valuation reveals that the property is now worth less than the amount due under the judgment. Any delay will prejudice the respondent because the appellants are unlikely to have the means to pay any amount not recovered from the sale of the property.
11 Finally and most importantly, the respondent has disclosed email correspondence which reveals that the solicitors for the appellants and respondent reached an agreement that the appellants should be given until 19 November 2012 to deliver up possession in consideration for the appellants agreeing not to appeal and not seeking a stay or suspension order relating to the Master's judgment.
12 As a result, the application for a stay or suspension order was dismissed.
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