Buttarelli v Perpetual Ltd
[2013] WASCA 254
•1 NOVEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUTTARELLI -v- PERPETUAL LTD [2013] WASCA 254
CORAM: PULLIN JA
MURPHY JA
HEARD: 29 OCTOBER 2013
DELIVERED : 29 OCTOBER 2013
PUBLISHED : 1 NOVEMBER 2013
FILE NO/S: CACV 103 of 2013
BETWEEN: VINCENZA PALMA BUTTARELLI
Appellant
AND
PERPETUAL LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 1506 of 2008
Catchwords:
Appeal - Application for a stay - Grounds of appeal having no reasonable prospect of succeeding
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 47(3)(d)
Result:
Application dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr E M Heenan
Solicitors:
Appellant: In person
Respondent: Rockwell Olivier
Case(s) referred to in judgment(s):
Buttarelli v Perpetual Ltd [2013] WASCA 160
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Elovalis v Elovalis [2008] WASCA 141
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
McCourt v National Australia Bank [2010] WASCA 154
Perpetual Ltd v Buttarelli [2012] WASC 512
Stead v State Government Insurance Commission (1986) 161 CLR 141
REASONS OF THE COURT: This appeal was listed for hearing on 29 October 2013 to consider:
(a)an application by the appellant (Mrs Buttarelli) for a stay to prevent the respondent (Perpetual) as mortgagee proceeding to sell her property at 74 Drummond Street, Bedford (Drummond Street property); and
(b)for Mrs Buttarelli to show cause why the appeal should not be dismissed on the basis that no ground of appeal had any reasonable prospect of succeeding.
After the hearing, the application for a stay was dismissed and the appeal was dismissed. These are the reasons for those orders.
The application for the stay and the appeal concerned judgment entered by Master Sanderson on 11 November 2010.
The judgment of Master Sanderson was in the following terms:
1.Within 28 days of the date of this judgment the first defendant deliver up to the plaintiff vacant possession of the property at 74 Drummond Street, Bedford in the State of Western Australia being Lot 1 on Strata Plan 34370 and being the whole of the land comprised in Certificate of Title Volume 2134 Folio 86.
2.The first defendant pay to the plaintiff the sum of $376,738.87, being the principal and interest due under the mortgage to 11 November 2010, plus interest at the rate provided by the mortgage, being 12.04% per annum, from 12 November 2010 to payment.
3.The first defendant pay the plaintiff's costs of the application and of the action on an indemnity basis pursuant to the mortgage.
Background
The background is that in 2003, Mrs Buttarelli purchased a property at 33 Tryall Avenue, Port Kennedy (Port Kennedy property) and required funds to pay the purchase price and fees amounting to $155,000. Perpetual's evidence before the master was that Mrs Buttarelli requested an advance of $310,000. Of that sum, $144,281.18 was disbursed to pay the vendor of the Port Kennedy property or their mortgagee. Additional amounts were advanced out of that sum by Perpetual to meet fees associated with the transaction. Mrs Buttarelli does not dispute that such sums were advanced. A sum of $33,397.28 was advanced by Perpetual to Mrs Buttarelli. Mrs Buttarelli admitted that such sum was credited to her account. According to Perpetual in affidavit evidence before the master, the balance, on Mrs Buttarelli's instructions, was to pay off a debt Mrs Buttarelli owed to Perpetual Trustees Victoria Ltd (Perpetual Victoria).
Perpetual's lawyers, at the time of settlement of the loan, detailed the disbursement of the $310,000 in its letter to St James Finance Corporation Pty Ltd (formerly UBS Mortgage Corporation Pty Ltd), the mortgage originator. The letter read:
Dear Sir,
BORROWER: VINCENZA PALMA BUTTARELLI
LOAN AMOUNT: $310,000.00LOAN NO: 60126261 and 81721951
We confirm that settlement of this matter took place on 27th February 2003.
The loan was disbursed as follows:
Settlement Fee $50.00
UBS (Application fee - cheque attached) $1,000.00
UBS (cheque attached) $753.50
Mony de Kerloy $1,375.00
Royal & Sun Alliance $100.00
Jackson McDonald $344.50
Perpetual Trustees Victoria Ltd $122,717.39
ANZ Bank Group Ltd $106,407.32
SR & KA Hooker $37,873.86
Concorde Settlements $676.50
MP Settlement Services $1,237.15
MP Settlement Services $4,067.50VP Buttarelli $33,397.28
TOTAL $310,000.00
Documents will issue in due course from the Land Titles Office.
To secure repayment of the $310,000 advanced, an all moneys mortgage was prepared by Perpetual. It showed, on its face, that it was to be registered over the Port Kennedy property and over the Drummond Street property. This mortgage was signed by Mrs Buttarelli and witnessed by her son. This will be referred to hereafter as the 'Mortgage'.
Later, the Port Kennedy property was sold. Mrs Buttarelli agrees that the Port Kennedy property was sold. From the proceeds of sale, the debt to Perpetual of $310,000, plus accumulated interest, was reduced by $53,982.41. Perpetual deposed that this payment brought the loan valuation ratio of the loan down sufficiently so that Perpetual was willing to discharge the mortgage over the Port Kennedy property.
Mrs Buttarelli now contends that she did not authorise the payment out of the advance a sum to Perpetual Victoria to discharge the debt owed by Mrs Buttarelli to the latter. Mrs Buttarelli also now contends that she did not owe Perpetual Victoria money.
Lying behind the Perpetual Victoria debt is a complex history of property dealings, in which Mrs Buttarelli appears to have purchased properties and borrowed monies to meet the purchase price of the properties. According to Mrs Buttarelli, documents prepared in relation to these transactions had her signature forged on them. She filed in this appeal an affidavit dated 1 October 2013. It exhibited a report by a Mr Horton dated 30 September 2013. Mr Horton claims to be a handwriting expert, and he expressed the opinion that on certain documents, what appeared to be Mrs Buttarelli's signature, was not Mrs Buttarelli's signature. However, Mr Horton did not express any opinion about Mrs Buttarelli's signature or her son's signature on the Mortgage. Thus, the Mortgage relied upon by Perpetual to gain summary judgment, and which is now relied upon to effect a sale of the Drummond Street property, is not alleged to be a forgery. What Mrs Buttarelli wished to dispute was the quantum of the money sum referred to in the judgment granted by Master Sanderson.
No dispute was raised by Mrs Buttarelli that on 22 February 2008, a demand notice was served on Mrs Buttarelli stating that she had defaulted in making payments secured by the Mortgage. That notice read as follows:
Dear Ms Buttarelli
Notice of demand - $310,000 Loan Contract
Pursuant to section s106 of the Transfer of Land Act 1893
We act for Perpetual Limited (formerly Perpetual Trustees Australia Limited) ACN 000 431 827 (Perpetual) and refer to the following documents:
1.Loan Contract entered into by offer to you from Perpetual and accepted by you, including the General Conditions applying to your Loan Contract, pursuant to which Perpetual agreed to provide a loan of $310,000 to you (Loan Contract); and
2.Mortgage No. I401541 dated 12 February 2003 granted by you in favour of Perpetual over, inter alia, the land being Lot 1 on Strata Plan 34370 in Certificate of Title Volume 2134 Folio 86 (Mortgaged Property), which includes the Mortgage Memorandum MCP No. G285621,
(together the Financing Documents).
On behalf of Perpetual, we hereby give you notice that you are in default under the provisions of the Financing Documents because you have failed to pay the following instalments under the Loan Contract:
Loan split #60126261 ‑ $155,000
Date instalment payable Amount payable 2 July 2007 $1,014.91 1 August 2007 $1,015.59 3 September 2007 $1,015.59 1 October 2007 $1,015.59 1 November 2007 $1,042.22 3 December 2007 $1,064.56 2 January 2008 $1,064.56 3 February 2008 $1,087.44 Total amount $8,320.46
Loan split #81721951 ‑ $155,000
Date instalment payable Amount payable 2 July 2007 $1,009.75 1 August 2007 $1,010.55 3 September 2007 $1,010.55 1 October 2007 $1,010.55 1 November 2007 $1,037.08 3 December 2007 $1,056.56 2 January 2008 $1,056.56 3 February 2008 $1,079.25 Total amount $8,270.85
Pursuant to the Financing Documents, Perpetual is entitled to recover from you its legal fees and disbursements arising out of your default. Perpetual has incurred legal fees and disbursements, which will be charged to you in due course. Additional legal fees and disbursements will be incurred and payable by you if you fail to comply with this notice of demand.
We hereby demand payment of the sum of $16,591.31. If you fail to repay that sum within 2 days, Perpetual may do any of the following:
1.Take enforcement proceedings against you, including the following:
(a)Take possession of the Mortgaged Property
(b)Issue Court proceedings against you
(c)Sell the Mortgaged Property
2.Exercise any other remedy available to Perpetual under the Financing Documents or at law or in equity.
That demand was not complied with.
On 1 April 2008, Mrs Buttarelli was served with notice to vacate the Drummond Street property.
On 9 May 2008, Perpetual issued a writ seeking possession of the Drummond Street property and judgment for $273,193.64, plus interest and costs.
On 16 May 2008, Mrs Buttarelli wrote to St James Finance Corporation Pty Ltd stating that she was trying to sell the Drummond Street property, and that the writ was not 'legally correct' because another person named on the writ did not reside at the property. Mrs Buttarelli did not otherwise dispute the writ, or contend that she did not owe the money claimed by Perpetual.
On 16 September 2008, a letter from Perpetual's lawyers requiring Mrs Buttarelli to vacate the Drummond Street property was affixed to the front and back doors of the property after Mrs Buttarelli changed the locks on the property.
On 17 September 2008, Mrs Buttarelli contacted Perpetual's solicitors stating that she would like to make payment towards past arrears and resume making instalment payments under the Mortgage. She did not dispute the validity of the Mortgage or the debt claimed in the writ of summons.
On 8 December 2008, Mrs Buttarelli sent an email to Perpetual's solicitors requesting the total payout figure and arrears for the Drummond Street property 'in order to enable the quick repayment of the amount pending [sic] to Perpetual Ltd'.
Perpetual filed an application for summary judgment on 13 August 2010. It came before the court on several occasions when Mrs Buttarelli was represented by solicitors. The matter was adjourned on 24 August 2010, 14 September 2010 and 16 September 2010 to allow Mrs Buttarelli the opportunity to put her position in an affidavit. No affidavit was filed. Mrs Buttarelli's solicitors then applied for an order under O 8 r 7 of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules) declaring that they had ceased acting for Mrs Buttarelli. On 9 November 2010 such an order was made by the master.
On 11 November 2010, the summary judgment application by Perpetual was heard. Mrs Buttarelli was in court when the summary judgment application came on before the master. Counsel for Perpetual related the history and pointed out that no affidavit had been filed by Mrs Buttarelli. The transcript reveals that the master was still aware of the order he had made under O 8 r 7 of the Supreme Court Rules, and that Mrs Buttarelli was then unrepresented by a lawyer. Mrs Buttarelli did not ask for an adjournment, although the master inferred that she was suggesting that the matter should be adjourned. The master said:
I just can't grant any more time in relation to this matter. The simple fact is that the summons for judgment was issued three months ago in August and since then there has been nothing put forward which could offer any explanation as to why the money shouldn't be repaid, possession of the property shouldn't pass to the plaintiffs. It just can't go on.
There are certain rights and entitlements that a party in the plaintiff's position has and I can give you or I have given you every opportunity to put your side of events. There is nothing that I can see that suggests that another two weeks … would be of any benefit (ts 4).
Mrs Buttarelli asked to address the court, and she was given the opportunity to do so. She addressed at some length, asking rhetorical questions and raising matters that did not make any sense without some documentary evidence, of which there was none. Towards the end of that address, she referred to her former solicitor who had spoken to her about the matter and who had asked her why it was that she did not 'owe Perpetual any money'. Mrs Buttarelli added:
I kept on saying 'but Geoffrey, if Perpetual is owed money' - if they say they're owed money, right - I'm not saying that they're not owed money. I said 'I'm only saying, where has that 122 gone?' - because that 122 has become the extra 155 and that's what it is, and I'm very close to getting it. I've got a lot of other information, your Honour, but I need the forensic accountant to help me put it together, because, you know, I can't express it (ts 7).
The master then said that he was satisfied that Perpetual was entitled to judgment. He gave brief reasons for judgment in the following terms:
This is a summary judgment application. The plaintiff seeks to enforce the terms of a mortgage. The statement of claim is verified by the affidavit of Evashaninee Chetty 23957 which was sworn 2 July 2010. That affidavit set out the basis upon which the claim was made. As the affidavit verifies the statement of claim the evidentiary onus shifts to the defendant to produce credible testimony that the plaintiff's claim should not succeed.
The matter has been in the list on a number of occasions and just for the sake of completeness I'll mention those. The summons for judgment was first issued on 13 August 2010. It came on on 24 August 2010 when it was adjourned to 14 September. It was thereafter adjourned to 16 September and from 16 September it was programmed on to a special appointment today.
On 16 September matters that have been raised in earlier hearings as to the whereabouts of certain moneys [sic] alleged to have paid [sic] had been clarified and the solicitor then acting for the first defendant sought time to file affidavits which, it was said, would answer the plaintiff's claim. Nothing has been filed. Now, it must be acknowledged that the solicitor then on record has subsequently applied to be removed from the record and that being so the first defendant is today unrepresented. In such circumstances, it is always necessary to exercise care to ensure that the rights of the first defendant are respected. In this case there is simply nothing that I could rely upon to suggest that the plaintiff is not entitled to the relief that it seeks.
As I have indicated, the statement of claim is verified by affidavit as is required by order 14. Nothing has been put forward by the first defendant in answer to that claim. The first defendant, therefore, has not discharged the onus and the plaintiff is entitled to judgment. Having said all of that, putting the most beneficial interpretation on what I have been told from the bar table by the first defendant, I can't see that there is any basis upon which it can be said that the money claimed is not owing and that the plaintiff isn't entitled to possession of the property.
I have listened carefully to what was said. I have married that up against what is in the affidavit material provided by the plaintiff and I am satisfied that the plaintiff is entitled to the judgment they seek (ts 8).
Judgment was then entered.
Perpetual subsequently applied for a property seizure and delivery order, which was made. A second such order was later made following a delay which occurred after a complaint by Mrs Buttarelli was investigated by an ombudsman service. Mrs Buttarelli has now given up possession of the Drummond Street property.
Mrs Buttarelli's application for a stay in the General Division
After the property seizure and delivery orders were made, Mrs Buttarelli applied in the General Division of the Supreme Court for a stay of execution of the master's judgment, or alternatively for a suspension order under the Civil Judgments Enforcement Act 2004 (WA). That was heard by Corboy J, who made an order dismissing the application: Perpetual Ltd v Buttarelli [2012] WASC 512.
Mrs Buttarelli's appeal against Corboy J's order
Mrs Buttarelli appealed against Corboy J's judgment. That appeal was dismissed on 21 June 2013: Buttarelli v Perpetual Ltd [2013] WASCA 160.
Mrs Buttarelli commences this appeal
On 10 September 2013, the appeal against Master Sanderson's judgment was filed. That appeal is therefore nearly three years out of time. Any appeal against that judgment should have been instituted before the end of 2010.
Mrs Buttarelli's first application to this court for a stay
On 10 September 2013, Mrs Buttarelli applied to this court for a stay of the 'Execution of Sale and Seizure Orders and all orders made to date'. That application was dismissed on 1 October 2013.
Mrs Buttarelli's second application to this court for a stay
The second application was for a stay of the proposed sale by Perpetual as mortgagee exercising its power of sale in the Mortgage. That was the application dismissed on 29 October 2013. The auction is set for 2 November 2013.
Principles governing the application for a stay
The principles governing an application for a stay or suspension order are well settled. The principles were set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9] and have been applied in many cases since then. Stated briefly, a successful litigant will ordinarily be entitled to enforce judgment pending the determination of any appeal, and it is for an applicant for a stay or suspension order to move the court to a favourable exercise of its discretion. It has to be shown that a stay would be necessary to preserve the subject matter or integrity of the litigation, or that refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. However, even if that can be demonstrated, the stay will, generally, still be refused unless it can be established that the appeal has ultimately reasonable prospects of succeeding.
In relation to mortgagee actions, there is another principle to bear in mind. It is the general rule that, where a mortgagee has a judgment for monies due under a mortgage and a stay is sought to prevent the sale of the mortgaged property pending the hearing of an appeal, a stay will not be granted where, in effect, the appellant is merely disputing the amount that is secured by the mortgage unless the applicant pays the disputed debt or pays it into court: see Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161.
Mrs Buttarelli informed the court that she did not have the ability to pay the amount claimed. In those circumstances, it would have been futile to grant a stay conditional on payment of the debt: McCourt v National Australia Bank [2010] WASCA 154 [11]. In any event, what appears below reveals that the appeal did not have reasonable prospects of succeeding, and that also provided a reason for dismissing the application for a stay.
The grounds of appeal
Mrs Buttarelli filed an appellant's case. It did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules), but it did contain a section headed 'Grounds of Appeal' followed by a subheading 'request for summary judgment … to be set aside'. The grounds of appeal did not comply with r 32 of the Rules, but two points could be gleaned from the 62 pars appearing under the heading 'Grounds of Appeal'. They were:
(a)the appellant's allegation that the master erred in the exercise of his discretion in not adjourning the application for summary judgment in circumstances where Mrs Buttarelli was no longer represented by lawyers; and
(b)the appellant's allegation that Perpetual engaged in fraud, which allegation was supported by an application to adduce fresh evidence.
There was no merit in the appellant's allegation that the master erred in the exercise of his discretion in refusing to adjourn the application for summary judgment. It had been adjourned before. Mrs Buttarelli had had the opportunity to file affidavits to set forth whatever defence she said she might have. No affidavits were filed. The mere fact that Mrs Buttarelli was no longer represented by a solicitor did not establish error on the part of the master.
In any event, even if the master had erred in not adjourning, then that would not necessarily have resulted in the appeal being allowed. That is because not every denial of the opportunity to make submissions or adduce evidence amounting to a departure from the rules of procedural fairness requires judgment to be set aside and a new hearing ordered. If there was no merit in the submissions or the additional evidence it would have been futile to set aside the judgment and order a new hearing: Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. The question then was whether the allegation of fraud had any merit.
The allegation of fraud did not have merit because it did not impugn the Mortgage. Rather, it amounted, in effect, to a challenge to the quantum of Perpetual's claim. The dispute was about how much is owing and secured by the Mortgage. Even if Mr Horton's report was received as additional evidence in the appeal, it does not impugn the Mortgage. Mrs Buttarelli attacked the documents recording the loan or the application for a loan, but that provided no basis for a successful appeal because, even if those documents were not signed by her, the Mortgage is an 'all moneys' mortgage and it was beyond dispute that Perpetual advanced money to Mrs Buttarelli.
Further, Mrs Buttarelli's application to adduce additional evidence under r 47(3)(d) of the Rules had no reasonable prospect of success. The evidence which she sought to adduce, that is, the Horton report dated 30 September 2013, is evidence which, by reasonable diligence, could have been made available before the summary judgment application was heard. That failure was a relevant factor which had to be taken into account when exercising the discretion to admit additional evidence: see Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [12]; Elovalis v Elovalis [2008] WASCA 141 [56]. That factor provided a substantial reason for a refusal of the application to adduce additional evidence in this case.
As a result of the foregoing, the application for a stay to prevent the auction of the Drummond Street property going ahead on 2 November 2013 was dismissed.
Further, none of the grounds of appeal was shown to have any reasonable prospect of succeeding. As a result, pursuant to r 43(2)(g)(i) of the Rules, the appeal was dismissed with an accompanying order that the appellant pay costs.
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