Andrew Garrett Wine Resorts v National Australia Bank Ltd (No 3)
[2005] SASC 171
•12 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ANDREW GARRETT WINE RESORTS & ANOR v NATIONAL AUSTRALIA BANK LTD (NO 3)
Judgment of The Honourable Justice Gray
12 May 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
MORTGAGES - MORTGAGES AND CHARGES GENERALLY - REMEDIES OF THE MORTGAGEE - ENTRY INTO POSSESSION
Applicants seek leave to appeal against the judgment of this court in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 2) - that judgment dismissed an application to set aside an order for possession - consideration of procedure to be followed on an application for leave - leave to appeal granted only if a question of general principle arises - no question of general principle identified - application for leave to appeal dismissed.
Supreme Court Rules 1987 (SA) r 94.01, referred to.
Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank [2004] SASC 348; Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank (No 2) [2005] SASC 105, considered.
ANDREW GARRETT WINE RESORTS & ANOR v NATIONAL AUSTRALIA BANK LTD (NO 3)
[2005] SASC 171Application for Leave to Appeal
This is an application for leave to appeal.
On 23 March 2005 judgment was delivered in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd(No 2)[1]. That judgment dismissed an application by Mrs Garrett to set aside an order for possession made by a Judge of this Court on 26 July 2004. In those proceedings it was contended that the mortgage relied upon to support the July 2004 order for possession provided no security and hence no foundation for the order. It had been claimed that, following an earlier unsuccessful appeal to the Full Court against the July 2004 order for possession, further discovery disclosed the problem with the mortgage.
[1] [2005] SASC 105.
Both plaintiffs, Andrew Garrett Wine Resorts Pty Ltd and Mrs Garrett, and Andrew Morton Garrett, defendant by counter-claim, now seek leave to appeal from the dismissal of Mrs Garrett’s application.
Rule 94.01 of the Supreme Court Rules provides the procedure to be followed on an application for leave:
(1)Where pursuant to Section 50(3) of the Supreme Court Act or otherwise application for leave to appeal to the Full Court may be made either to a Judge or to the Full Court, the application for such leave is to be made in the following manner:
(a) initially to the Judge whose decision is complained of, at the time judgment is delivered or the order is made; or
(b) where application is not made at that time it shall be made either:
(i)by application, either ex parte or upon notice as the Judge may direct, to the Judge appealed from; or
(ii) to the Full Court,
and in either case within fourteen days from the date of delivery of the judgment or the making of the order or within such further time as the Judge or the Full Court may allow.
(2)Where an ex parte application has been refused by a Judge the application may be renewed ex parte by way of appeal to the Full Court subject to (1) above and Rules 94.02 and 94.03 below.
Serious questions have arisen as to the locus of the plaintiffs and Mr Garrett. Mr and Mrs Garrett have been declared bankrupt and Mr Garrett seeks to represent Andrew Garrett Wine Resorts Pty Ltd pursuant to a purported power of attorney. Mr Garrett was permitted to present argument on behalf of the plaintiffs and himself without the Court ruling on his locus or entitlement to do so. The issue of locus is to be addressed in separate reasons. The decision to hear and consider the arguments advanced may have allowed submissions to be put to the Court without Mr Garrett having the right to do so. However in the circumstances the Court proceeded to determine the application with the assistance of those submissions.
The applicants advanced the submission that there had been a denial of natural justice at the hearing of Mrs Garrett’s application. When the applicants were pressed to particularise this complaint, it transpired that the real complaint was of a different character. It was asserted that there was relevant and material evidence that had not been put before the Court on the hearing of Mr Garrett’s application. It was not suggested that the Court had overlooked or had given insufficient weight to any material. Rather it was said that further evidence should be admitted on appeal which would lead to the application being successful.
The applicants did not identify the suggested further evidence with any particularity other than to assert that there was evidence of a wide-scale fraud on the part of the National Australia Bank and others. It was said that, if the assertion were accepted, this fraudulent conduct would preclude the National Australia Bank from proceeding with the July 2004 order for possession.
No explanation was offered as to why the evidence was not advanced at the time of the hearing of Mrs Garrett’s application.
An appeal against the July 2004 order for possession was dismissed by the Full Court in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd.[2] During the hearing of both the application for the July 2004 order for possession and the Full Court appeal in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd,[3] Andrew Garrett Wine Resorts and Mrs Garrett acknowledged that $1.5 million had been advanced by the National Australia Bank. On the hearing of the application by Mrs Garrett to set aside the July 2004 order for possession, counsel for Mrs Garrett acknowledged that the property the subject of the July 2004 order for possession was intended to secure the advance of $1.5 million. As was observed in the reasons for judgment in Andrew Garrett Wine Resorts & Anor v National Australia Bank Ltd (No 2): [4]
Counsel for Mrs Garrett acknowledged to this Court that his client was indebted to National Australia Bank to the extent of $1.5 million, that she was in default and that her indebtedness was both as primary debtor and as guarantor. The question to be determined is whether the first National Australia Bank mortgage provided security for that amount and provided a proper basis for the order for possession of 26 July 2004.
[2] [2004] SASC 348.
[3] [2004] SASC 348.
[4] [2005] SASC 105 at [37].
This Court’s practice is to grant leave to appeal only if a question of general principle arises. The court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, the Court must act as the interests of justice require.[5]
[5] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
In this application no question of general principle arises. There is no reason to doubt the correctness of the decision that is sought to be reviewed. The interests of justice do not require the grant of leave. The reference generally to other evidence that could have been put before the Court and that might have made a difference does not warrant a grant of leave.
The application for leave to appeal is dismissed.
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