Arawak Holdings Pty Ltd v Jackson

Link copied
Case Copied 20 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Arawak Holdings Pty Ltd & Ors v Jackson [2021] QCA 62

PARTIES:

ARAWAK HOLDINGS PTY LTD AS TRUSTEE
ACN 157 865 195
(first respondent/not a party to the application)
VAULT 8 HOLDINGS PTY LTD AS TRUSTEE
ACN 105 339 759
(second respondent/not a party to the application
CRAIG ANDREW PERRY
(third respondent/not a party to the application
REGISTRAR OF TITLES
(fourth respondent/not a party to the application)
BIGWHALE GROUP PTY LTD AS TRUSTEE
ACN 635 682 352
(fifth respondent/applicant)
v
LIANA RENAE JACKSON
(applicant/respondent)

FILE NO/S:

Appeal No 11857 of 2019
SC No 7304 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Dismissal for Want of Prosecution

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 57 (McMurdo JA)

DELIVERED ON:

6 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2021

JUDGE:

Morrison JA

ORDERS:

1.   Application refused.

2.   No order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where there has been a three-and-a-half-year delay in bringing an application for an extension of time to appeal – where the extension is sought on the basis of a medical disability resulting in cognitive impairment – where the applicant to the appeal has undertaken to the Court to prosecute the appeal diligently – whether the applicant is prejudiced by the delay

Uniform Civil Procedure Rules 1999 (Qld), r 775

Muto v Faul [1980] VR 26; [1980] VicRp 3, applied
Spencer & Anor v Hutson & Ors[2007] QCA 178, applied
Tyler v Custom Credit Corporation Ltd[2000] QCA 178, applied

COUNSEL:

M E Pope for the applicant
The respondent appeared on her own behalf

SOLICITORS:

Derek Legal for the applicant
The respondent appeared on her own behalf

  1. MORRISON JA: The fifth respondent to the appeal, Bigwhale Group Pty Ltd, applies pursuant to r 775 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for orders that the application for leave to appeal be dismissed for want of prosecution.

  2. The appeal has been brought from orders made by McMurdo JA (after a trial) in March 2016.  The synopsis below has been adopted from the reasons of McMurdo JA.[1]

    Background

  3. The applicant, Ms Jackson, is the registered owner of a freehold residential property which she purchased in April 2010.

  4. The first respondent in the appeal, Arawak, held a registered mortgage over the property.  Arawak was a company controlled by the third respondent, Mr Perry.  He and Ms Jackson were once de facto partners.

  5. The mortgage was said to secure a loan to Ms Jackson of $730,000 to enable her to pay the purchase price ($710,000) and other expenses of her purchase of this property.  The lender (not Arawak) was another company controlled by Mr Perry.  According to the mortgage instrument, the lender acted as a trustee.  Arawak took a transfer…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Arawak Holdings Pty Ltd v Jackson and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] QCA 62
Decision Date

CaseChat Overview and Summary

In Arawak Holdings Pty Ltd v Jackson, Ms Jackson, the registered owner of a residential property, sought an extension of time to appeal against a decision from McMurdo JA in March 2016. This decision dismissed her application that the mortgage held by Arawak, over her property, be given no effect. Ms Jackson’s application for an extension of time to appeal was made on the basis of a medical disability resulting in cognitive impairment. The appeal has been brought by Bigwhale, the purchaser of the property from Arawak as mortgagee in possession, seeking to dismiss the proceedings for want of prosecution. The main issues before the Court were whether Ms Jackson was prejudiced by the delay and whether there was justification for the delay in prosecuting the appeal. The Court considered that the only aspect of the orders on 18 August 2020 that compelled Ms Jackson to take a step was her undertaking to prosecute the appeal diligently. However, no meaningful steps were taken to advance the application to extend time, or the appeal. There were no amendments made to the notice of appeal beyond those filed on 11 August 2020, and no steps were taken to progress the appeal in terms of settling an index to the record book, preparing the record book itself, or preparing outlines. The Court found that Ms Jackson’s failure to prosecute the appeal amounted to a failure to comply with an order of the Court and dismissed the application for want of prosecution. However, the Court did not order costs against Ms Jackson.

Orders

Orders of the court

1. Application refused.

2. No order as to costs.

Background

Background to the litigation

The appeal has been brought from orders made by McMurdo JA (after a trial) in March 2016. The synopsis below has been adopted from the reasons of McMurdo JA.[1][1]Jackson v Arawak Holdings Pty Ltd & Ors [2016] QSC 57.Background The applicant, Ms Jackson, is the registered owner of a freehold residential property which she purchased in April 2010. The first respondent in the appeal, Arawak, held a registered mortgage over the property. Arawak was a company controlled by the third respondent, Mr Perry. He and Ms Jackson were once de facto partners. The mortgage was said to secure a loan to Ms Jackson of $730,000 to enable her to pay the purchase price ($710,000) and other expenses of her purchase of this property. The lender (not Arawak) was another company controlled by Mr Perry. According to the mortgage instrument, the lender acted as a trustee. Arawak took a transfer of the lender’s title to the mortgage and so became the registered mortgagee. Arawak claimed that Ms Jackson had defaulted under the mortgage with the consequences that she owed Arawak more than $1 million and Arawak was entitled to possession and to exercise a mortgagee’s power of sale. Ms Jackson was (and is) not in possession of the property. Instead, Mr Perry lives there, as he has done since April 2012, not long after the de facto relationship between Ms Jackson and Mr Perry ended. On 27 July 2015 Ms Jackson commenced proceedings claiming that the mortgage should be given no effect. She claimed that there was no loan at all to her for the acquisition of the property and, more particularly, no loan as apparently recorded by a loan agreement which was dated 8 April 2010, the date of the completion of her purchase. She claimed that she did not execute the mortgage instrument, the loan agreement or any other associated documents and that her apparent signature in each case was a forgery. Alternatively, she claimed that the mortgage was a sham and should be given no effect and be removed from the register. That challenge was unsuccessful. On 17 March 2016, McMurdo JA ordered that Ms Jackson’s application be dismissed, and that the caveat lodged by her over the property be removed. On 30 August 2019 the present applicant (Bigwhale) purchased the real property from Arawak as mortgagee in possession. The purchase price was $1,150,000 and the contract settled on 30 October 2019. However, Bigwhale still does not have title to the property because Ms Jackson has applied for an extension of time within which to appeal from the orders of McMurdo JA.Overall progress of the proceedings The material shows that the relevant steps in the application for extension of time to appeal, and other steps, have been as follows:(a)on 17 March 2016 the orders were made by McMurdo JA;(b)on 30 August 2019 Bigwhale entered into a contract to purchase the land from Arawak acting as mortgagee in possession;(c)on 28 October 2019 the application for extension of time to appeal was filed, as well as an application for an interlocutory injunction preventing transfer of title to the land;(d)on 30 October 2019 settlement of the land purchase occurred;(e)on 31 October 2019 a notice of appeal was filed;(f)on 9 December 2019 Fraser JA ordered that: (i)Ms Jackson have leave to amend the notice of appeal by adding grounds in accordance with the UCPR;(ii)no date be fixed for the hearing of the injunction application until Ms Jackson confirmed to the Registry that she had amended in the way described, and that she had filed all her affidavit evidence for the injunction application;(g)on 24 June 2020 Bigwhale applied to be joined in the proceedings;(h)on 23 July 2020 Mullins JA ordered that: (i)Bigwhale’s application to be joined, the application by the Registrar of Titles to be removed from the proceedings, and the injunction application, all be listed for hearing on 18 August 2020;(ii)an amended notice of appeal be filed and served by 11 August 2020;(i)on 18 August 2020, on the undertaking of Ms Jackson to prosecute the application for leave to appeal diligently, Mullins JA ordered that:(i)Bigwhale be joined as a party to the proceedings;(ii)pending the determination of the appeal the Registrar of Titles be restrained from registering the transfer;(iii)to the extent that Ms Jackson sought relief in relation to the exercise of the power of sale by Arawak in favour of Bigwhale based on contentions not raised before McMurdo JA, she was directed to bring those matters by application in the Trial Division;[2](j)on 14 January 2021 the present application was filed.[2]This was because the extra relief had been sought in an amended application filed 23 July 2020.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 10 December 2020 the registry contacted Ms Jackson as well as representatives of other parties. The initial part of that email was concerned with setting a date for the current application to be heard. However, it is also evident that by that time, notwithstanding the undertaking to prosecute the appeal diligently, no steps had been taken to do so. No index to the appeal record book had been prepared, nor any steps taken to prepare the record book itself. In that respect Ms Jackson and the others were advised that if an index was not supplied by 15 January 2021, then the registrar would settle the index, and the registry would produce the record book once an application for that had been lodged.Consideration The present applicant, Bigwhale, was only joined as a party to the appeal on 18 August 2020, thus the period of delay about which it might legitimately complain is the seven months since the matter was dealt with by Mullins JA in August 2020. The application it has brought in response to that delay is to dismiss the proceedings for want of prosecution. It does not seek to strike out the appeal on the basis that no viable case can be articulated. The application by Bigwhale has been brought pursuant to r 775 of the UCPR. It provides:“775 Effect of failure to prosecute appeal(1)If the appellant fails to comply with any step required under these rules or a practice direction, including a practice direction about filing or serving an outline of argument, the Court of Appeal may, at or before the hearing of the appeal and of its own initiative or on an application by a respondent, dismiss the appeal for want of prosecution.” Accepting that a failure to comply with a step under the UCPR would include failure to comply with an order of the court, or a direction of the Registrar, r 775(1) is enlivened here because of:(i)failure to comply with the orders of Mullins JA on 18 August 2020; and(ii)failure to comply with the timetable set by the Registrar. More specifically, the only aspect of the orders on 18 August 2020 that compelled Ms Jackson to take a step is her undertaking to prosecute the appeal diligently. Order No. 2 was concerned with contentions that Ms Jackson sought to pursue, but which were not raised before McMurdo JA in the trial. Order No. 2 relevantly provided that “if Ms Jackson wishes to pursue those contentions it is directed that Ms Jackson bring an application in the Trial Division to pursue those contentions that are not properly the subject of the appeal”. That Order merely directed that if she wished to pursue them then she should do so in the Trial Division. That order did not compel her to do so. Following 18 August 2020 nothing meaningful was done to advance the application to extend time, or the appeal. There were no amendments made to the notice of appeal beyond those filed on 11 August 2020.[11] No steps were taken to progress the appeal in terms of settling an index to the record book, preparing the record book itself, or preparing outlines.[11]Those amendments mirrored the amendments made to the application itself, and simply claimed relief rather than articulating proper grounds of appeal. Therefore, they did not advance the case at all.