Archer v Permanent Custodians Ltd - [2010] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ARCHER -v- PERMANENT CUSTODIANS LTD [2010] WASCA 125

CORAM: PULLIN JA
NEWNES JA

HEARD: 28 MAY 2010

DELIVERED : 5 JULY 2010

FILE NO/S: CACV 155 of 2009

BETWEEN: GREGORY JOHN ARCHER
VANESSA KERAN ARCHER
Appellants
AND
PERMANENT CUSTODIANS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :PERMANENT CUSTODIANS LIMITED -v- ARCHER [2009] WASC 363
File No  :CIV 2086 of 2009

Catchwords:

Practice and procedure Notice to appellant to show cause why appeal should not be dismissed Rule 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) Grounds of appeal manifestly defective Failure to prosecute application for leave to adduce new evidence No effective progress in appeal over period of six months Turns on own facts

Practice and procedure Application for stay of enforcement of judgment Civil Judgments Enforcement Act 2004 (WA), s 15 Failure to show appeal has reasonable prospect of success

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: Ms L Horwood
Respondent: Mr B W Ashdown

Solicitors:

Appellants: L Horwood Solicitor
Respondent: Galilee Solicitors

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
McLean v Westpac Banking Corporation [2010] WASCA 124
Permanent Custodians Limited v Archer [2009] WASC 363
Smolarek v McMaster [2006] WASCA 216

JUDGMENT OF THE COURT: This appeal has been brought on by a registrar's notice to attend dated 24 May 2010 requiring the parties to attend for the following purposes:
1.For the appellants to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal have a reasonable prospect of succeeding or that the appellants have failed to comply with the Rules;
2.to consider the appellants' application for a stay of the enforcement of the judgment; and
3.for directions in relation to the appellants' application for leave to adduce additional evidence.

The background

It is necessary before turning to those applications to outline the relevant background.
The proceedings between the parties arose out of a loan agreement between the appellants and the respondent, dated 24 September 2007. In essence, pursuant to the loan agreement the respondent agreed to lend to the appellants the sum of $511,013 and the appellants agreed to repay that sum and interest on it by consecutive monthly instalments of principal and interest over a period of 30 years. The appellants granted to the respondent a mortgage over the appellants' property in Pinjarra by way of security for the loan. The loan money was advanced by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Archer v Permanent Custodians Ltd

Details

AGLC: Archer v Permanent Custodians Ltd [2010] WASCA 125
Case: [2010] WASCA 125
Decision Date: 5 JULY 2010

CaseChat Overview and Summary

Archer v Permanent Custodians Ltd is a case that arose from a loan agreement between the appellants and the respondent, which the respondent sought to enforce through proceedings for possession of the mortgaged property. The appellants argued that the loan agreement was unjust because the respondent failed to assess their capacity to repay the loan, which they claim is a duty imposed by the Consumer Credit (Western Australia) Act 1996 (WA) and the Consumer Credit Code. The appeal was dismissed for being manifestly defective, and the application for leave to adduce new evidence was dismissed for lack of progress.

The court was required to determine whether the grounds of appeal had a reasonable prospect of success and whether the appellants had complied with the procedural requirements set out in the Supreme Court (Court of Appeal) Rules 2005 (WA). The court also had to consider the application for a stay of enforcement of the judgment under the Civil Judgments Enforcement Act 2004 (WA) and the application for leave to adduce new evidence. The court found that the appellants had not provided any explanation for the failure to adduce the evidence or to pursue the application to adduce further evidence. The court held that it was not in the interests of justice to afford the appellants another opportunity to put the grounds of appeal in a proper state, as they had demonstrated a complete inability or unwillingness to do so or to attempt to prosecute the appeal with reasonable diligence.

The court dismissed the appeal and denied the application for leave to adduce new evidence. The court also denied the application for a stay of enforcement of the judgment as the appellants had not shown that the appeal had a reasonable prospect of success. The court held that the appeal had been pending for six months and there had been no effective progress in it. The court found that the appellants had not identified the evidence upon which they sought to rely, and there was nothing to indicate the basis upon which they said new evidence should be received on the appeal. The court held that it was time the matter was brought to an end and that the respondent had been left with the appeal hanging over it for long enough.

The court made no order as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: This appeal has been brought on by a registrar's notice to attend dated 24 May 2010 requiring the parties to attend for the following purposes:1.For the appellants to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal have a reasonable prospect of succeeding or that the appellants have failed to comply with the Rules;2.to consider the appellants' application for a stay of the enforcement of the judgment; and3.for directions in relation to the appellants' application for leave to adduce additional evidence. It is necessary before turning to those applications to outline the relevant background. The proceedings between the parties arose out of a loan agreement between the appellants and the respondent, dated 24 September 2007. In essence, pursuant to the loan agreement the respondent agreed to lend to the appellants the sum of $511,013 and the appellants agreed to repay that sum and interest on it by consecutive monthly instalments of principal and interest over a period of 30 years. The appellants granted to the respondent a mortgage over the appellants' property in Pinjarra by way of security for the loan. The loan money was advanced by the respondent but the appellants subsequently failed to make repayments required under the loan agreement. Following the appellants' failure to rectify the default in accordance with a default notice served on them, the respondent commenced proceedings on 12 June 2009 claiming possession of the mortgaged property and the balance outstanding under the loan agreement. The appellants filed a memorandum of appearance on 3 July and a defence to the claim on 20 July 2009. In the defence it was pleaded, among other things, that the respondent had failed to make reasonable enquiries into the appellants' ability to meet the payments required by the loan agreement and that it should have been aware the appellants did not have a regular income sufficient to enable them to do so. On 26 August 2009, the respondent brought an application for summary judgment. The first appellant swore three affidavits in opposition to the application. None of those affidavits denied the facts relied upon by the respondent in the summary judgment application. Nor did the appellants verify the allegations set out in the defence. The affidavits were concerned with an application the appellants had made on 7 August 2009 to the State Administrative Tribunal (SAT) for relief under the Consumer Credit (Western Australia) Act 1996 (WA) and the Consumer Credit Code in respect of the loan agreement and mortgage. There was, however, nothing in the affidavits which set out in admissible form the basis of the appellants' claim for relief under the Act or Code. In an affidavit of 18 September 2009, the first‑named appellant (Mr Archer) said that he had told a member of SAT at a directions hearing that the respondent had made no attempt to assess the appellant's capacity to service the loan and that the appellants felt that they had been 'railroaded' into the loan. In an affidavit of 17 November 2009, Mr Archer deposed to the appellants having filed a 'Statement of Issues, Facts and Contentions' at SAT. A copy of the document was annexed to the affidavit. A number of statements regarding the circumstances in which the loan was obtained are set out in it but Mr Archer did not depose to the truth of its contents.

Ratio Decidendi

Legal Principle Established

Putting aside questions of admissibility, it therefore appears, as in McLean v Westpac Banking Corporation, the appellants contend that at the time it was entered into the loan agreement was unjust because the respondent knew, or ought to have known, that the appellants did not have the financial capacity to make the loan repayments. That in turn seems to rest on the proposition that a lender is under a duty to satisfy itself of the capacity of a borrower to repay a loan before making the loan. We were not referred to any provision of the Act or Code (or any other relevant legislative provision) which imposes such a duty. What appears from s 70(2)(l) of the Code is that whether the lender knew or could reasonably have ascertained that the borrower could not pay in accordance with the terms of the loan is a factor that SAT may take into account in determining whether, in all the circumstances, a transaction was unjust. The case the appellants seek to advance depends upon evidence which was not before the master. No explanation has been provided for the failure to adduce that evidence. In that connection, it is significant that at that stage the appellants had legal representation. Nor has any explanation been provided for the failure to pursue the application to adduce further evidence, although that application is clearly critical to the appeal. It has made no progress since it was filed, unsupported by an affidavit, on 29 March 2010. Despite the order of 19 April 2010 that the appellants file and serve any affidavits in support of the application by 30 April 2010, no such affidavit has been filed. The evidence upon which the appellants seek to rely remains unidentified. Moreover, Ms Horwood told us that she had not seen any of the documents upon which the appellants seek to rely as additional evidence and could not say whether there was anything in them that would be of relevance to an appeal against the decision of the master. It is plainly unacceptable that some six months after the appeal was commenced the grounds of appeal are still not in a proper state. It is also unacceptable that some two months after the application for leave to adduce new evidence was filed nothing has been done to advance it: the new evidence has still not been identified and there is nothing to indicate the basis upon which the appellants say new evidence should be received on the appeal. In the circumstances, it is not in the interests of justice to afford the appellants another opportunity to put the grounds of appeal in a proper form. So far the appellants have demonstrated a complete inability or unwillingness to do so or to attempt to prosecute the appeal with reasonable diligence. To the extent the appellants have made any endeavours to formulate acceptable grounds of appeal those endeavours have been entirely ineffectual. There is nothing to indicate that the position will improve. In the meantime the respondent has been left with the appeal hanging over it. The appellants have had sufficient opportunity to put the grounds of appeal in order and it is time the matter was brought to an end. We would dismiss the appeal.