Brosnahan v Secure Funding Pty Ltd
[2013] WASCA 169
•29 JULY 2013
BROSNAHAN -v- SECURE FUNDING PTY LTD [2013] WASCA 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 169 | |
| THE COURT OF APPEAL (WA) | 29/07/2013 | ||
| Case No: | CACV:143/2012 | 21 JUNE 2013 | |
| Coram: | PULLIN JA MURPHY JA | 21/06/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KIERAN BROSNAHAN BLAZENKA SUNJICH SECURE FUNDING PTY LTD |
Catchwords: | Whether any ground of appeal had reasonable prospect of succeeding Noncompliance with Supreme Court (Court of Appeal) Rules 2005 (WA) |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4) of pt 5, r 32(5) of pt 5, r 43(2)(g)(i) of pt 5, r 43(2)(g)(ii) of pt 5 |
Case References: | Avsar v Binning [2009] WASCA 219 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Secure Funding Pty Ltd v Brosnahan [2012] WASC 398 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BROSNAHAN -v- SECURE FUNDING PTY LTD [2013] WASCA 169 CORAM : PULLIN JA
- MURPHY JA
- BLAZENKA SUNJICH
Appellants
AND
SECURE FUNDING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : SECURE FUNDING PTY LTD -v- BROSNAHAN [2012] WASC 398
File No : CIV 1418 of 2012
Catchwords:
Whether any ground of appeal had reasonable prospect of succeeding - Noncompliance with Supreme Court (Court of Appeal) Rules2005 (WA)
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4) of pt 5, r 32(5) of pt 5, r 43(2)(g)(i) of pt 5, r 43(2)(g)(ii) of pt 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Mr G S Tinsley
Solicitors:
Appellants : In person
Respondent : Ashurst Australia
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Secure Funding Pty Ltd v Brosnahan [2012] WASC 398
1 REASONS OF THE COURT: These reasons deal with the dismissal of the appellant's appeal on 21 June 2013.
2 By notice dated 23 April 2013, the Court of Appeal Registrar notified the parties to attend a hearing on 24 May 2013 to consider whether the appeal should be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) because none of the grounds of appeal has a reasonable prospect of succeeding and because the appellants have not complied with the Court of Appeal Rules.
3 The proceedings below arise out of a loan agreement between the appellants and the respondent in which the respondent agreed to advance $288,000 to the appellants. The loan was secured by a mortgage over the appellants' interest in a property at 29 Talbot Road, Swanview. The appellants defaulted (according to the evidence) under the loan agreement and the respondent issued each of the appellants with a default notice in respect of the failure to make required loan repayments on 20 November 2011 and 20 December 2011. The appellants did not remedy the defaults and consequently, the respondent commenced proceedings seeking payment of the total outstanding amount under the loan agreement and vacant possession of the property. The respondent then made an application for summary judgment.
4 On 26 October 2012, Master Sanderson delivered his reasons in the summary judgment application: see Secure Funding Pty Ltd v Brosnahan [2012] WASC 398. The master said, relevantly, that the material tendered by the appellants at the hearing had no relevance to the dispute and that the appellants had failed to address the relevant defaults under the loan agreement. In effect, the appellants did not have an arguable defence to the respondent's claim. The master granted summary judgment for the respondent. One other aspect of the master's judgment should be noted. It appears that the appellants also sought to resist summary judgment on the basis of a judgment which they had obtained in the Magistrates Court against the respondent.
5 As to this, the master found the following facts. In the Magistrates Court, the appellants had obtained a default judgment against the respondent on 12 June 2012; the respondent had said that it never received service of those proceedings and had filed an application in the Magistrates Court to set aside the default judgment; that application was successful; and, based upon the uncontested evidence provided by the respondent, the magistrate was satisfied that the proceedings had never been served on the respondent and that the judgment was irregular and was consequently set aside as of right. The master observed:
The fact that there may have been a judgment in existence at some stage can in no way benefit the [appellants] in these proceedings [6].
6 On 6 December 2012, the appellants filed an appeal notice against the decision of the master. The Court of Appeal Registrar advised the appellants by letter dated 12 December 2012 that the appellants' case was required to be filed within 35 days after the date on which the appeal notice was filed. The following day, the Court of Appeal Registrar sent another letter to the appellants informing them to disregard previous correspondence, and that as the appeal was an interlocutory appeal, the appellants' case was due to be filed within seven days of the filing of the appeal notice. Given the error made by the Court of Appeal Registrar, the date for the filing of the appellants' case was extended by a further seven days to 20 December 2012.
7 The appellants did not file the appellants' case on time and the matter was listed for directions before Pullin JA on 6 March 2013 to consider the appellants' failure to file a service certificate and to file the appellants' case. Neither party attended this hearing (in the case of the respondent, for the reasons mentioned later). Pullin JA made orders to the effect that if the appellants' case was not filed and served by 20 March 2013, the appeal would be dismissed.
8 A document purporting to be the 'appellants' case' was filed on 20 March 2013. It was apparent that the 'appellants' case' did not comply with pt 5 r 32(4) or r 32(5) of the Court of Appeal Rules. Indeed, the appellants did not provide any grounds of appeal. Rather, they instead provided an annotated account statement, a copy of a Department of Human Services brochure on the early release of superannuation benefits for mortgage assistance, a certificate of judgment from the Magistrates Court dated 7 March 2013 for the sum of $17,535 in favour of the appellants against the respondent, and a document setting out certain assertions of fact, principally dealing with the period prior to November 2011.
9 By the asserted facts, the appellants seemed to contend that the respondent was wrong to charge default fees against the loan as the appellants had remedied a number of defaults prior to November 2011 by drawing on their superannuation funds to make repayments under the loan agreement. These assertions of fact seemed to be the same matters set out in an affidavit of the second-named appellant sworn 4 October 2012 in the summary judgment proceedings, which were addressed in some detail by the respondent's affidavit before the master sworn 11 October 2012. The master found, in substance, that the appellants' assertions did not address the defaults of 20 November 2011 and 20 December 2011, which were the two defaults under the loan agreement upon which the respondent relied in its application for summary judgment.
10 Consistently with the absence of any grounds of appeal, there were no submissions in the 'appellants' case' which sought to identify any error on the master's part in granting summary judgment for the respondent.
11 On 25 March 2013, the Court of Appeal Registry advised the appellants by letter that the appellants' case did not comply with r 32 of pt 5 of the Court of Appeal Rules. The letter stated that the appellants must file an application seeking leave to file an amended appellants' case, and that if this was not done by 8 April 2013, the appeal would be listed before the court for the appellants to show cause why the appeal should not be dismissed: (a) for failure to comply with the Court of Appeal Rules; or alternatively (b) because none of the grounds of appeal had a reasonable prospect of success.
12 On 26 March 2013, the Court of Appeal Registry contacted the respondent to advise them that they had not filed a notice of respondent's intention. On the same day, solicitors for the respondent informed the Court of Appeal Registry that the appeal notice, contrary to the statement in the appellants' service certificate, was never served on the respondent despite numerous requests made to the second-named appellant for the appeal notice to be served. (This explains why counsel for the respondent was not in attendance at the directions hearing of 6 March 2013.) In addition, the appellants failed to serve the appellants' case on the respondent. The respondent only received a copy of the appellants' case after requesting a copy from the Court of Appeal Registry.
13 The appellants failed to file an application seeking leave to file an amended appellants' case.
14 The matter was listed for the hearing of the matters in (a) and (b) of [11] above on 18 April 2013. It was then adjourned to 24 May 2013 on the basis that the second-named appellant was said to be ill.
15 The appellants did not appear at the hearing listed for 24 May 2013 because the second-named appellant was said to be ill and the first-named appellant was said to be unavailable because of work. The court, again, adjourned the matter to 21 June 2013.
16 At the hearing on 21 June 2013, the second-named appellant appeared and handed up a letter from 'APRA' dated 23 June 2009. According to the second-named appellant, the letter showed that the appellants were 'ahead in [their] loan'. However, this does not appear from the face of the document. On the contrary, by its terms it is a request for more information from the second-named appellant concerning a possible decision as to whether to release to the second-named appellant certain superannuation moneys. Moreover, insofar as it relates to events in 2009, it gives no reason to doubt the correctness of the master's finding to the effect that any drawing of superannuation funds did not address the defaults of 20 November 2011 and 20 December 2011.
17 Rule 43(2)(g) of pt 5 of the Court of Appeal Rules provides that an appeal may be dismissed if none of the grounds of appeal has a reasonable prospect of succeeding, or if the appellant has not obeyed the Court of Appeal Rules or any order made under them.
18 The 'appellants' case' did not disclose any grounds of appeal whatsoever, let alone any ground which had a reasonable prospect of success. As this court observed in Avsar v Binning [2009] WASCA 219 [37], the task of an appellate court is to correct error. It is not enough that an appellant is disappointed with the result of a lower court decision. An appellant must demonstrate that there has been an error that falls to be corrected and which entitles the appellant to the orders or relief that he or she seeks. The appellants in this appeal had not stated their grounds of appeal and had failed to identify any alleged error on the part of the master in granting summary judgment for the respondent.
19 Although the court will take due allowance for the fact that an appellant is unrepresented (see Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]), it was impossible to extract from the appellants' document an arguable case that disclosed any error on the part of the master. The appellants' assertion that the respondent was wrong to charge default fees in 2009 was lacking in evidentiary cogency, and in any event did not indicate any error on the part of the master in relation to the defaults of 20 November 2011 and 20 December 2011. There is nothing to indicate that the master was not correct in finding that the appellants had no defence to the respondent's application for summary judgment. The APRA letter dated 23 June 2009 also failed to indicate any arguable defence to the respondent's application.
20 Further, the appellants had failed to comply with the rules on a number of occasions. The appellants failed to file their case on time (as extended) and in accordance with the requirements of r 32 of pt 5 of the Court of Appeal Rules. The appellants also failed to serve on the respondent the appeal notice and the appellants' case. The appellants' failures were, in the circumstances, egregious.
21 For these reasons, the court dismissed the appeal pursuant to r 43(2)(g)(i) of pt 5 of the Court of Appeal Rules and, or alternatively, pursuant to r 43(2)(g)(ii) of pt 5 of the Court of Appeal Rules.
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