Beraru v Perpetual Ltd - [2013] QCA 330

[2013] QCA 330

COURT OF APPEAL

FRASER JA

Appeal No 7728 of 2013
DC No 2872 of 2011

BENJAMIN BERARU &
MAGDALENA BERARU Applicants

PERPETUAL LIMITED Respondent

BRISBANE

FRIDAY, 1 NOVEMBER 2013

FRASER JA: Mr and Mrs Beraru have applied for a stay of execution of the judgment given in the District Court on 23 July 2013 pending the determination of their appeal against that judgment. The respondent bank’s claim was to recover possession of the applicants’ house property pursuant to a mortgage granted by the applicants to the respondent to secure the payment of a loan and for recovery of the outstanding accelerated amount of a loan ($707,050.83 including interest as at 23 July 2013).

Affidavits filed by the respondent in the District Court proved the written loan agreement made in May 2006 for a loan of $496,000, execution of the mortgage securing repayment of the loan, the advance of the loan, the applicant’s failure to comply with their repayment obligations, the issue in 2011 by the respondent to the applicants of the demand for repayment of the loan and the demand for possession of the mortgaged property in accordance with the loan agreement and the mortgage, and the applicants’ failure to make any repayment after earlier payments in July of 2010.

The applicants did not appear when called at the hearing of the summary judgment application. That application had originally been returnable a week earlier. The judge adjourned the hearing for a week because, although the applicants failed to appear, one of the applicants sent a medical certificate to the court seeking an adjournment for a month. The primary judge observed that the medical certificate in relation to the male applicant stated that he was receiving medical treatment and between 15 July and 15 August 2013 would be unfit to continue his usual occupation “due to depressive mood disorder”. Following that first hearing, the respondent’s solicitor sent to the applicants at the address indicated in their defence and to an email address which the applicants had used to communicate with the respondent’s solicitors and with the court, a letter conveying the view of the judge who heard the first application, that the applicants ought “to provide properly particularised evidence to the court in support of their request for a further adjournment”.

On 22 July 2013, the primary judge’s associate received an email seeking an adjournment of the hearing together with a medical certificate, undated, certifying that the doctor had, that day, examined the male applicant and, in the doctor’s opinion, he would be unfit for normal work from 19 July to 19 August 2013; the male applicant had been diagnosed with “depression and has commenced medication today. Court appearance is not recommended at this time.” The primary judge observed that there was nothing to show that the female applicant was disadvantaged, that it would be unsurprising that anybody facing eviction from his or her home would be in mental and emotional turmoil, and that “it seems idle…

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.

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Details

Case: [2013] QCA 330
Decision Date: 1 NOVEMBER 2013

CaseChat Overview and Summary

In the case of Beraru v Perpetual Ltd, the applicants, Mr and Mrs Beraru, sought a stay of execution of a judgment granted to the respondent, Perpetual Ltd, in the District Court. The District Court judgment ordered the Berarus to vacate their property and repay an outstanding loan amount of $707,050.83. The Berarus argued that they had arguable grounds for appeal against the District Court judgment, which included claims of procedural unfairness and challenges to the validity of the loan agreement and mortgage. The primary legal issue before the Court of Appeal was whether the applicants had demonstrated that it was appropriate to grant a stay of execution pending the determination of their appeal.

The Court of Appeal found that the applicants had not discharged the onus of proving that the appeal had arguable merit. The Court observed that the applicants' claims of procedural unfairness were unfounded as they had been served with the claim and had filed a defence and counterclaim. The Court also found that the applicants' challenges to the validity of the loan agreement and mortgage were unsupported by evidence and contrary to the signed documents. Furthermore, the Court found that there was no evidence to support the applicants' claims of predatory lending or that the bank had failed to properly assess their capacity to repay the loan. The Court of Appeal concluded that there was no real prospect of success in the appeal and that granting a stay would only serve to defer the inevitable.

In dismissing the applicants' application for a stay of execution, the Court of Appeal did grant a short stay of the enforcement of the warrant until 5 pm on 8 November 2013 to allow the applicants some time to organise their affairs. The Court also ordered the applicants to pay the respondent's costs of the application. The Court emphasised that this short stay was granted due to the extraordinary and unfortunate circumstances of the applicants, but that it would not be appropriate to grant a stay pending the determination of the appeal due to the lack of arguable merit in the appeal.

Orders