JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAGSHAW -v- RTS SUPER PTY LTD [2019] WASCA 85
CORAM: MURPHY JA
MITCHELL JA
HEARD: 11 JUNE 2019
DELIVERED : 11 JUNE 2019
PUBLISHED : 13 JUNE 2019
FILE NO/S: CACV 44 of 2019
BETWEEN: HILLAND STANFORD BAGSHAW
First Appellant
JENNIFER MARGARET BAGSHAW
Second Appellant
AND
RTS SUPER PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ACTING MASTER WHITBY
Citation: RTS SUPER PTY LTD -v- BAGSHAW [2019] WASC 81
File Number : CIV 2358 of 2018
Catchwords:
Practice and procedure - Whether appeal commenced - Whether purported service of notice of appeal was ineffective under the Service and Execution of Process Act - Whether extension of time in which to commence appeal should be granted
Practice and procedure - Application for a stay of summary judgment in action by mortgagor for possession of secured property - Allegation that mortgagor engaged in unconscionable conduct - Whether appeal rendered nugatory if stay not granted - Whether appeal has reasonable prospects of success - Balance of convenience - Whether payment of principal loan sum into court should be required as a condition for the grant of a stay
Legislation:
Service and Execution of Process Act 1992 (Cth), s 8, s 9, s 12, s 15, s 16, s 17
Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27, r 29
Result:
Extension of time in which to appeal granted
Stay granted subject to condition that $525,000 is paid into court
Category: B
Representation:
Counsel:
| First Appellant | : | Ms L K Thurston-Moon |
| Second Appellant | : | Ms L K Thurston-Moon |
| Respondent | : | Mr M W Mistilis |
Solicitors:
| First Appellant | : | Cullen MacLeod Lawyers |
| Second Appellant | : | Cullen MacLeod Lawyers |
| Respondent | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Argyle Diamonds Ltd v Flour Australia Pty Ltd [2018] WASC 356
ASIC v Australian Lending Centre Pty Ltd (No 3) [2012] FCA 43; (2012) 213 FCR 380
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Blomley v Ryan (1956) 99 CLR 362
Clack v Murray [2017] WASCA 88
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Kowalczuk v Accom Finance [2008] NSWCA 343
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Perpetual Trustees Australia Ltd v Schmidt [2010] VSC 67
Serventy v Commonwealth Bank of Australia [2016] WASCA 86
Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223
REASONS OF THE COURT:
At the conclusion of the hearing of the appellants' (Mr and Mrs Bagshaw)…
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- Bagshaw v RTS Super Pty Ltd [2019] WASCA 85
- Case
- [2019] WASCA 85
- Decision Date
CaseChat Overview and Summary
The court examined whether the notice of appeal was properly served under the Service and Execution of Process Act. The court determined that the notice of appeal was indeed served in accordance with the Act, and thus the appeal was effectively commenced. Regarding the extension of time to commence the appeal, the court found that the appellant had demonstrated exceptional circumstances justifying the extension. The court granted the extension, allowing the appeal to proceed. In relation to the stay of summary judgment, the court assessed the merits of the appeal, the balance of convenience, and the possibility that the appeal would become nugatory if the stay was not granted. The court found that the appeal had reasonable prospects of success and that the balance of convenience favoured granting the stay. As a result, the court ordered a stay of the summary judgment, contingent upon the appellant depositing the principal loan sum into court.
The court's final orders included the grant of an extension of time to commence the appeal, the stay of the summary judgment in the original proceeding, and the requirement for the appellant to deposit the principal loan sum into court as a condition for the stay.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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