Brackenridge v Bendigo and Adelaide Bank Limited (No 2) - [2022] SASCA 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED (NO 2)
[2022] SASCA 16
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)
8 March 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
By Notice of Appeal dated 9 December 2021, the applicant sought to challenge the orders of a single Court of Appeal Judge dated 5 November 2021, refusing to grant the applicant a stay of the Court of Appeal’s judgment dismissing his appeal on 4 November 2021. The property the subject of the stay application has now been sold and the sale proceeds dispersed.
The applicant requires an extension of time and leave to appeal.
Held (per the Court):
1. The application for an extension of time to seek leave to appeal is refused.
Uniform Civil Rules 2020 (SA), referred to.
Brackenridge v Bendigo and Adelaide Bank Limited (No 2) [2021] SASCA 137; Brackenridge v Bendigo and Adelaide Bank Limited [2021] SASCA 129; Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 114; Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 235; Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASCA 4; DB v Secretar, Department of Family and Community Services [2016] NSWCA 63; Gallo v Dawson (1990) 93 ALR 479; Hardel Pty Ltd v Burrell and Family Pty Ltd (2009) 103 SASR 408; Hua Wang Bank Berhad v Deputy Commissioner of Taxation (2010) 81 ATR 66, considered.

BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED
(NO 2)

[2022] SASCA 16
Court of Appeal – Civil: Livesey P, Lovell and David JJA
THE COURT:

The applicant filed a Notice of Appeal on 9 December 2021 against orders made by Bleby JA on 5 November 2021, dismissing an application for a stay of orders made by the Court of Appeal on 4 November 2021 which permitted the respondent bank to take possession of and sell the applicant’s residential property.[1]
[1] Brackenridge v Bendigo and Adelaide Bank Limited (No 2) [2021] SASCA 137.
Though the applicant has indicated by email that he does not intend to press his appeal, he has not formally discontinued it and he has not appeared today because he is in isolation.
His mobile telephone number has been called, but he has not answered.
The Notice of Appeal dated 9 December 2021 is confined to the question whether Bleby JA erred in dismissing the stay application. Following the decision of Bleby JA on 5 November 2021, the applicant sought an interim injunction restraining the sale of his property pending the determination of his appeal against the decision of Bleby JA. That application was dismissed on 21 January 2022.[2]
[2] Brackenridge v Bendigo and Adelaide Bank Limited [2022] SASCA 4.
On 24 January 2022, the sale of the property was completed. The evidence from the bank shows that the sale proceeds have been received and dispersed.
The sale proceeded pursuant to an order for possession made by Doyle J on 24 June 2020 following a long trial.[3] The applicant’s appeal to the Court of Appeal against the possession order was dismissed on 4 November 2021.[4]
[3] Bendigo and Adelaide Bank Limited v Brackenridge [2020] SASC 114.
[4] Brackenridge v Bendigo and Adelaide Bank Limited [2021] SASCA 129.
At the time of the application for a stay, argued before Bleby JA on 5 November 2021, the applicant was contending that the stay was required so that he could file an application for special leave to appeal to the High Court against the decision of the Court of Appeal. The evidence from the bank shows that no application for special leave to appeal has been filed.
The bank contends that the decision of Bleby JA was interlocutory in nature, and so the applicant requires leave to appeal as well as an extension of time. Whether the order refusing the stay is final or interlocutory depends upon the legal effect, rather than the practical effect, of the order. The question is whether the order finally disposes of the legal rights of the parties.[5]
[5] Hardel Pty Ltd v Burrelland Family Pty Ltd (2009) 103 SASR 408, [24]-[36] (Kourakis J, with whom Nyland and David JJ agreed).
In our view, the orders made by Bleby JA did not finally determine any legal right concerning possession of the property. That question was determined by the Court of Appeal the previous day. The dismissal of the stay application addressed the practical question whether, effectively, the bank could proceed to sale; the Court of Appeal discharged the partial stay and released the bank from its undertaking that it would not sell the property pending the determination of the appeal from the decision of Doyle J.[6]
[6] The “partial stay” was granted in early December 2020, Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 235.
In our view, the decision the subject of this appeal was interlocutory in nature and the applicant requires leave to appeal, see r 213.1(a) of the Uniform Civil Rules 2020 (SA).
Accordingly, it is necessary to treat this appeal as an application for leave to appeal. Whilst the test for leave to appeal has been expressed in different ways, it is generally accepted that leave to appeal may be refused where the appeal lacks utility.[7] In circumstances where the property has been sold and the sale proceeds dispersed, there is no utility in determining an appeal against the order refusing to grant a stay of the order for possession, which was essential to the exercise of the power of sale. The absence of utility is only reinforced by the fact that no application for special leave to appeal has been filed.
[7] Hua Wang Bank Berhad v Deputy Commissioner of Taxation (2010) 81 ATR 66 (Lander, Middleton and Nicholas JJ), [38]-[42]; DB v Secretary, Department of Family and Community Services [2016] NSWCA 63, [50]-[59] (Meagher JA).
For this reason, we would not be prepared to grant leave to appeal.
In any event, the applicant requires an extension of time. As has been explained, the discretion to grant an extension of time:[8]
… can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. …
[8] Gallo v Dawson (1990) 93 ALR 479, 480-481 (McHugh J).
Though the extension of time required is not long, these proceedings have a very long history, characterised by inordinate delay by the applicant.[9] Having regard to the nature of this litigation, earlier described, and absent any utility in determining the appeal against the order dismissing a stay, it is difficult to see how the applicant could suffer any injustice if an extension of time is refused.
[9] Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 235, [10]-[13] (Livesey J); Brackenridge v Bendigo and Adelaide Bank Limited [2021] SASCA 129, [10]-[14] (Lovell, Livesey and Bleby JJA).
That conclusion is reinforced by a review of the Grounds of Appeal. In our view, those grounds are without merit. Insofar as the applicant says that he was denied procedural fairness at the hearing on 5 November 2021, it is difficult to understand how that might be so. As has been pointed out, the applicant was well-prepared and presented 18 pages of detailed written submissions, referring to numerous authorities, in support of his application.
Insofar as the applicant points to a difference between the mortgagee’s power of sale and its right to possession, it is difficult to see the basis for any complaint; the order for possession facilitated the exercise of the mortgagee’s power of sale. There was no error in finding potential prejudice to the bank if the sale did not proceed.
Otherwise, the proposed grounds of appeal do not identify any error in Bleby JA’s approach to dismissal of the stay application, nor any error in connection with the evaluation made of the evidence before the Court, or the apparent hardship that might be sustained, depending upon whether the stay was refused or granted.
In short, we are not satisfied that, even if the appeal had some utility, it has any merit.
In these circumstances, we are not prepared to grant an extension of time.
Accordingly, we refuse the application for an extension of time to seek leave to appeal.