Brackenridge v Bendigo and Adelaide Bank Ltd - [2020] SASC 235

Supreme Court of South Australia
(Civil: Application)
BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED
[2020] SASC 235
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
2 December 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS - OTHER MATTERS
The respondent bank has been seeking possession of the property at 31 Waterfall Gully Road, Beaumont, South Australia, 5066 (the Property) for nearly two and a half years. In September 2018, the respondent obtained a default order for possession. On 23 January 2019, the date fixed for execution of the warrant, the applicant filed an application to set aside the order for possession. The order for possession was set aside by a Master on 14 March 2019.
On 24 June 2020, following a lengthy trial in this Court, judgment was delivered in favour of the bank, and it was granted an order for possession of the Property. The time for the institution of any appeal expired in July 2020. No appeal was lodged.
The bank subsequently sought possession of the Property on 27 October 2020. The applicant again applied to prevent the bank taking possession. On 27 October 2020, the Master granted an interim stay on the basis of the applicant filing a notice of appeal that day. By 4 November 2020, the notice of appeal had not been filed, so the Master set aside the stay. The applicant filed his notice of appeal on 30 November 2020, well over four months out of time. The applicant now seeks a stay of execution pending the determination of his appeal to the Full Court
Held, dismissing the application and granting a partial stay (on terms):
1. The Court’s processes may be abused where one party unintentionally causes the Court’s processes to occasion unjustifiable oppression to another party, particularly where to do so brings the administration of justice into disrepute.
2. A number of steps taken by the applicant, and his many delays in these proceedings, constitute an abuse of this Court’s process.
3. The applicant failed to provide evidence to establish the prejudice that he may sustain should the respondent execute the warrant of possession.
4. The application is dismissed on the respondent bank’s undertaking that subsequent to taking possession of the Property, it will not sell the property pending the determination of the applicant’s appeal.
UBS AG v Tyne (2018) 265 CLR 77, applied.
Bendigo and Adelaide Bank Ltd v Brackenridge [2020] SASC 114; Ryan v Urban Construct SA (Pty Ltd) (No 2) (2012) 114 SASR 410; Playford Vineyard v Wishford Nominees (No 2) [2018] SASC 152; Hackney Tavern Nominees v McLeod (1983) 33 SASR 590; Duke Group Ltd v Pilmer (unreported decision of the Supreme Court of South Australia, Mullighan J, 16 June 1998); Kalifair v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; The State of South Australia v Crossley [2020] SASC 198; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; Rogers v The Queen (1994) 181 CLR 251; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Westpac Banking Corporation v Hiskey [1999] SASC 419, considered.

BRACKENRIDGE v BENDIGO AND ADELAIDE BANK LIMITED
[2020] SASC 235
Civil: Interlocutory Application
LIVESEY J.
Introduction

In this action, the respondent (the bank) has been seeking possession of the property at 31 Waterfall Gully Road, Beaumont, South Australia 5066 for nearly two and a half years. This is the third attempt by the applicant to prevent the bank taking possession, notwithstanding that he remains very substantially in default of his financial obligations to the bank.
After a long trial, Doyle J delivered judgment in favour of the bank on 24 June 2020. No appeal was filed. The time for the institution of any appeal expired in July 2020. An order for possession was obtained by the bank in September 2020. By an application dated 30 November 2020, the applicant seeks the following orders:
1The warrant of possession of land dated 23 September 2020 … is stayed pending a determination of the applicant’s appeal.
2 The applicant is granted an extension of time to file his appeal.
The application was supported by an affidavit sworn by the applicant on 27 November 2020.
The application was opposed by the bank, and it relied upon affidavits filed by its solicitor, both at trial and subsequently.
The hearing of the application
This Court commenced the hearing of the application on 1 December 2020. The hearing was confined to the determination of the application for a stay. Due to the volume of the material supplied, the hearing was continued on 2 December 2020. An interim stay was granted until close of business on 2 December 2020 to enable the hearing and determination of the application.
Circumstances leading to the application
Proceedings were commenced by the bank in June 2018. The bank initially sought possession pursuant to the summary procedure under Part XVII of the Real Property Act 1886 (SA). The applicant filed no evidence in opposition, and the bank obtained an order for possession on 26 September 2018. The applicant did not attend the hearing at which that order was made.
It was only after the bank obtained and served a warrant for possession that the applicant filed an application to set aside the order for possession. The application was filed on 23 January 2019, the date fixed for execution of the warrant.
Later, on 14 March 2019, a Master of this Court set aside the order for possession on the basis that one of the potential defences raised by the applicant was arguable.
As for the course of the litigation thereafter, it is sufficient to refer to the recitation of the procedural history provided by Doyle J in his reasons for decision which are the subject of the applicant’s appeal.[1] It is clear that there is a great deal in the bank’s complaint that the applicant has been guilty of numerous delays throughout the course of this litigation.
[1] Bendigo and Adelaide Bank Ltd v Brackenridge [2020] SASC 114, [30]-[63] (Doyle J).
The applicant opposed the bank taking possession a second time on 27 October 2020, the day when a warrant for the possession of land taken out on 23 September 2020 was to have been executed. This application, the third, was taken out the day before possession was scheduled to be taken on Tuesday, 1 December 2020.
When the matter came before a Master of this Court on 27 October 2020, an interim stay was granted on the basis that the applicant told the Court that he would file a notice of appeal later that day. When the matter was called back on the following day, the applicant told the Master that he wished to amend the notice. The Master did not know that the notice of appeal had not been filed.
Then, on 4 November 2020, the applicant told the Master that his notice of appeal had not been filed because he had discovered that he could not do so without either paying a filing fee (which he could not afford) or obtaining a waiver (which he had not obtained). By then, the Master had obtained from the Chief Justice a provisional listing of the appeal on 11 December 2020. In the absence of any notice of appeal, there was no longer any basis upon which to stay the execution of the order for possession made by Doyle J, and so the stay was dismissed and the December appeal date lost.
When the matter came on before me, the applicant had only just filed his notice of appeal on 30 November 2020 (well over four months out of time), having made various amendments but, substantively, adding three new grounds. His affidavit evidence did not deign to explain in any detail his delay from the time judgment was delivered on 24 June 2020 to filing on 30 November 2020. More particularly, there was no explanation of the delay after 4 November 2020, when the applicant was last before the Master.
The principles concerning an application for a stay
Regardless whether an application is made pursuant to r 215.4 of the Uniform Civil Rules 2020 (SA), s 17 of the Enforcement of Judgments Act 1991 (SA), or the inherent jurisdiction of this Court,[2] there is a long line of authority demonstrating that a successful litigant is ordinarily entitled to the benefit of a judgment unless and until that judgment is set aside or varied on appeal. The “norm is no stay”, such that if “there is to be a stay, cause must be shown”.[3]
[2] See Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410, [3], [16]-[18] (Nicholson J); Playford Vineyard v Wishford Nominees (No 2) [2018] SASC 152, [18]-[25] (Stanley J).
[3] Hackney Tavern Nominees v McLeod (1983) 33 SASR 590, 594 (White J).
As may be expected, the onus is on the party seeking the stay to justify the favourable exercise of discretion. That discretion is not to be fettered by the use of adjectives such as “special” or “exceptional”.[4] Ordinarily, the Court will act in the interests of justice, endeavouring to balance the interests of the parties, and ultimately considering the balance of convenience.[5] In many cases, the appellant seeking a stay must demonstrate serious issues for determination, together with the real risk of irreparable prejudice or damage in the event of a successful appeal.[6]
[4]    Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65.
[5]    Duke Group Ltd v Pilmer (unreported decision of the Supreme Court of South Australia, Mullighan J, 16 June 1998); Technilock (Aust) Pty Ltd v Mondami Pty Ltd [1999] SASC 94; Bartley v Myers [2001] SASC 212; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14.
[6]    Kalifair v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737, [17] (Handley, Sheller and Ipp JJA); Playford Vineyard v Wishford Nominees (No 2) [2018] SASC 152, [18]-[25] (Stanley J); The State of South Australia v Crossley [2020] SASC 198, [6] (Livesey J).
The submissions from the parties
The applicant contended that, from the time judgment was handed down on 24 June 2020, he has been working on his notice of appeal conscientiously and diligently, but encountering difficulty filing his appeal because he was both unrepresented and suffering from long-term psychological or psychiatric disability.
The applicant also contended that the grounds of appeal filed on 30 November 2020 raise serious issues for determination and raised “sufficient doubt to warrant … both a stay of the warrant of possession of land and an extension of time to file the notice of appeal” and that these were, in any event, of “general public importance”. The applicant contended that, unless there was a stay of the warrant of possession he would be “dispossessed” of his principal place of residence, and without “shelter or abode”. He submitted that, by reason of hardship, it is in the interests of justice that a stay be granted.
Whilst not denying that the grounds of appeal raise serious issues for determination, the bank opposed the grant of a stay because the applicant had “since the outset of this litigation, engaged in a course of conduct … calculated to frustrate and delay the bank’s prosecution of its claim”. The bank contended that the applicant had been guilty of deliberate non-compliance with many of the Court’s orders and dates for compliance and, thereby, sought to abuse the processes of this Court.
Determination of the application
The parties are subject to the overarching obligations set out in r 3.1 of the Uniform Civil Rules 2020 (SA) and, before May 2020, the duties set out in r 113 of the Supreme Court Civil Rules 2006 (SA).
Whilst the bank contended that the applicant had deliberately delayed proceedings, and was thereby guilty of an abuse of process over an extended period, it is difficult to regard the applicant as having deliberately prejudiced his own prospects. As he put it to me in argument, “Why would I put myself under such scrutiny?”.
Nonetheless, what comprises an abuse of this Court’s process is insusceptible of formulation into closed categories.[7] Indeed, there can be an abuse of this Court’s process even where one party unintentionally causes this Court’s processes to occasion unjustifiable oppression to another party, particularly where to do so brings the administration of justice into disrepute.[8] As was emphasised in UBS AG v Tyne, the determination whether the bringing or continuation of proceedings comprises an abuse is to be addressed, at least in part, by the procedural law administered by the Court, including the overarching obligations imposed on the parties by the governing procedural rules. As has been said many times, the “just resolution” to proceedings requires the minimisation of both delay and expense, and a just resolution will usually require that parties have a sufficient opportunity to agitate the issues they wish to press, as distinct from whether they actually do so.
[7] Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 265-267 (Gleeson CJ, Gummow, Hayne and Crennan JJ).
[8] UBS AG v Tyne (2018) 265 CLR 77, [1], [34]-[38] (Kiefel CJ, Bell and Keane JJ).
In my view, it is plain that a number of the steps taken by the applicant, and his many delays in these proceedings, have given rise to a state of affairs which is properly characterised as an abuse of this Court’s processes.[9] I emphasise this, not so as to punish the applicant, but to put into proper context the indulgence that he now seeks regarding the stay of a warrant of execution. The applicant seeks this indulgence in circumstances where he no longer has available to him an appeal as of right because of his failure to comply with the timeframe for the institution of an appeal; r 214.1 of the Uniform Civil Rules 2020 (SA) requires that an appeal be instituted within 21 days of the date of the judgment or ruling.
[9] Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J).
It has been recognised on a number of occasions that, merely because a party is a large commercial corporation, that does not mean that it cannot be subjected to oppression or prejudice.[10] Indeed, this has been recognised in respect of a bank when seeking possession in the face of an application for a stay.[11]
[10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) and UBS AG v Tyne (2018) 265 CLR 77, [58] (Kiefel CJ, Bell and Keane JJ).
[11] Westpac Banking Corporation v Hiskey [1999] SASC 419, [13] and [16] (Lander J).
In the result, this is a case where the applicant no longer has the benefit of an appeal as of right, but faces the risk of the irreparable prejudice of his property being taken by the bank and sold before his appeal can be heard.
So far as the bank is concerned, after diligently pursuing its rights for two and a half years, it finally has the benefit of a judgment of this Court in its favour which, ordinarily, it should be entitled to act upon.
These respective positions have been exacerbated, significantly in my view, by the applicant’s long history of failing to comply with the times stipulated, and orders made, by this Court.
Whilst the applicant opposed the bank taking possession, even if on the basis of what might be described as a “partial stay” of execution, he was not able to identify with any degree of precision the prejudice that he might then sustain. For example, if a partial stay were granted so that possession was given up, but a sale did not proceed, the applicant maintained that he would be without anywhere to live and that he had no family or friends on whom he might rely. The applicant claimed that he would therefore be “out on the streets” or “in gaol” because he needed somewhere to live. However, this was said from the bar table and without any evidence to demonstrate what, if any, steps have been taken by him to address his threatened homelessness since learning of Doyle J’s decision in June of this year.
In a similar vein, the applicant said that he would be unable to properly prepare for his appeal because of his ongoing psychological or psychiatric difficulties. The Court was given no evidence which independently documented precisely what these difficulties were, or how they might be affected by the bank taking possession of the property, or, for that matter, this litigation generally. Whilst the Court is not unsympathetic to the applicant’s plight, it must be said that he has faced the risk of dispossession now for some years and, notwithstanding, his presentation during the course of a difficult hearing over two days was that of a man who is well prepared, articulate and very intelligent.
The applicant’s principal submission about a partial stay was that it was pointless: it did not give the bank what it sought, and the warrant only gave possession, not any power of sale, whereas the applicant would be put to the hardships earlier mentioned. The bank countered that it regarded possession as an essential first step to the exercise of the power of sale granted under the mortgage. In addition, whilst the bank would take possession subject to onerous duties as mortgagee in possession, it would then be better placed to quickly realise its security should the appeal be dismissed.
Not without some hesitation, I am prepared to grant a partial stay to the applicant, on terms.
The orders of the Court are as follows:
On the applicant’s undertaking to diligently and expeditiously prosecute his appeal to a hearing before the Full Court on Tuesday, 2 February 2021 at 10.15 am; and
On the bank’s undertaking that, subsequent to taking possession of the property at Beaumont, in the State of South Australia, as a mortgagee under Memoranda of Mortgage 10762379 and 11382696, it will not sell the property as mortgagee unless or until the applicant’s application for an extension of time within which to bring the appeal is dismissed, or the appeal is otherwise determined; it is ordered that:
1.The application by the applicant for a stay of the warrant of possession is dismissed.
2.     The bank is to prepare the appeal books.
3.The matter is listed for hearing before the Full Court on Tuesday, 2 February 2021 at 10.15 am.
4.     The parties have liberty to apply.
5.     The bank is to have the costs of and incidental to this application.