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Bagshaw v RTS Super Pty Ltd

Bagshaw v RTS Super Pty Ltd

Case [2019] WASCA 85 13 June 2019

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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)…

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 Bagshaw v RTS Super Pty Ltd

Details

AGLC: Bagshaw v RTS Super Pty Ltd [2019] WASCA 85
Case: [2019] WASCA 85
Decision Date: 13 JUNE 2019

CaseChat Overview and Summary

Bagshaw, the appellant, brought an appeal against RTS Super, the respondent, concerning the enforceability of a mortgage. The dispute centred on the validity of the mortgage and the mortgagor's entitlement to possession of the property. The appeal was heard by the Supreme Court of Queensland. The primary legal issues were whether the appeal had been effectively commenced, whether the extension of time to commence the appeal should be granted, and if a stay of the summary judgment should be granted in the original proceeding.

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