Catherine Renee Van Schayk (also known as Catherine Renee Ziverts) v Westpac Banking Corporation - [2013] WASCA 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CATHERINE RENEE VAN SCHAYK (also known as CATHERINE RENEE ZIVERTS) -v- WESTPAC BANKING CORPORATION [2013] WASCA 191

CORAM: PULLIN JA
MURPHY JA

HEARD: 24 JULY 2013

DELIVERED : 20 AUGUST 2013

FILE NO/S: CACV 29 of 2013

BETWEEN: CATHERINE RENEE VAN SCHAYK (also known as CATHERINE RENEE ZIVERTS)
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2525 of 2011

Catchwords:

Appeal - Application for a stay or suspension order - Application for extension of time to file appellant's case - Application for an adjournment - Whether grounds of appeal have reasonable prospects of success - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Applications for a stay or suspension order dismissed
Application for an adjournment dismissed
Application for an extension of time to file appellant's case dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B C Smith

Solicitors:

Appellant: In person
Respondent: Gadens Lawyers

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT: On 24 July 2013, the court heard the appellant's two applications for a stay or suspension order, together with her application for an extension of time in which to file her case. The court also heard the matters referred to in the registrar's notice to attend, which stated:
For the court to consider whether any of the grounds of appeal as set out in the draft grounds of appeal and the appellant's affidavit sworn 23 May 2013 has a reasonable prospect of succeeding and if not, whether the appeal should be dismissed under rule 43(2)(g)(i).
The background is that the appellant owned certain property in Albany (the Albany property) which she was seeking to develop to carry out a business on the property. The Albany property was near Yakamia Creek. Yakamia Creek had been prone to flooding. The respondent (Westpac) advanced certain monies to the appellant in an amount over $1 million. The appellant granted a mortgage over the Albany property and another property in Kordabup, registered in her name, to secure the borrowing. Westpac alleged default and then commenced proceedings seeking possession of the mortgaged properties. Westpac applied in master's chambers for summary judgment for possession. The appellant's son was named as a defendant in those proceedings.
The matter came on for hearing before the master on 19 February 2013. At the hearing the appellant relied on an unsworn document, on its face described as an affidavit of documents, dated 12 February 2013 (first affidavit). It had not been served on Westpac, and the master gave the solicitor for Westpac an opportunity to consider the document before proceeding. The master stood the matter down in his list for a short time for that purpose. In substance, the first affidavit raised two issues. One was that the appellant had been claiming compensation, unsuccessfully, from the City of Albany (the City) for a number of years as a result of certain damage to her Albany property from the flooding of Yakamia Creek. It appeared that she wished, in effect, to use the compensation she was seeking from the City to repay the undisputed amount of the Westpac loan. The second was that the appellant had made a complaint to the Financial Ombudsman Service concerning the loan and certain other matters in relation to financial accommodation provided to her by Westpac. The Financial Ombudsman Service (according to the appellant's document) recommended that Westpac credit certain interest charges and stamp duty to the appellant; stated that it had not been established that Westpac had failed to assist the appellant as a customer experiencing financial difficulty; and it indicated that Westpac should be entitled to:
recommence its collection activity in relation to the outstanding debt, which as at 26 March 2012 comprised:
•$392,394.56 … and
•$1,286,060.47 …
When the matter was restored for hearing in the master's list, the solicitor for Westpac said, in effect, that he was familiar with the matters raised in the first affidavit and was ready to proceed. The appellant made submissions on the merits of Westpac's claim for possession, but also applied for an adjournment 'to lodge an amended defence in relationship to the compensation awarded by the Ombudsman which was actually their maximum amount of compensation, being $280,000' (ts 4, 19 February 2013).
The master delivered extempore judgment. He said in his reasons:
This is an application for summary judgment by the bank. The requirements of Order 14 in the summary judgment that the statement of claim be verified on oath with the deponent to the affidavit stating that in his or her belief there is no defence to the claim, the formal requirements of the order have been complied with.
In addition to that, the affidavit of Dominic Cannalonga sets out the documents that support the loan arrangements and all other relevant material which establishes that here has been default, that the covenants in the loan agreements have been triggered and that the plaintiff is entitled to possession of the properties.
It is important to note that there may be some dispute as to the proper amounts of the loan, but what is sought in this application is possession of two properties which are secured by the mortgages.
In answer to the plaintiff's application, Ms Ziverts relies on an affidavit of hers which was sworn 12 February 2013. I have read that affidavit and taken all matters into consideration. It has to be said that there is nothing in that document which would provide a defence to the plaintiff's claim.
There are circumstances which can best be described as unfortunate and there are claims that Ms Ziverts may have against the Town of Albany, but those matters are not relevant to determining whether or not the plaintiff is entitled to exercise its rights to take possession of a property.
As to the application for an adjournment, I can see no basis upon which this claim could be resisted. There has been an adjournment to allow for the filing of affidavit material. The defendant has had an opportunity to put her case. She has put it, and there is no answer to the plaintiff's claim.
I should also note in passing that the Financial Ombudsman Service has considered the matter and considered the matter in some detail. The view of the officer of the ombudsman is that there is no impediment to the plaintiff taking the recovery action which it has initiated.
In all the circumstances, I am satisfied there is no defence to this claim and the plaintiff is entitled to the judgment it seeks.
Accordingly, on 19 February 2013, an order was made by Master Sanderson that the appellant give possession to Westpac of the Albany property and the Kordabup property, and pay the costs of the action. There was no order against the appellant's son.
The master said that 'in the extenuating circumstances' of the case, he would extend the time for delivery for possession from 28 days to 56 days.
On 12 March 2013, the appellant filed an appeal notice appealing against the order for possession.
Subsequently, the appellant's son indicated that he desired to be joined as an appellant in the appeal, although no orders had been made against him. He attempted to do this merely by filing another appeal notice in the same appeal showing him as an appellant. The registrar of the Court of Appeal wrote to him on 13 June 2013 explaining that if he wished to be joined as an appellant, he should file a proper application with supporting affidavit. No such application has been filed.
On 23 May 2013 and on 29 May 2013, the appellant filed applications for a stay. Another application, filed on 29 May 2013, sought orders for 'extension of time to lodge appellant's case as unable to source any legal assistance due to financial hardship and the court is our only avenue to deal with the fraud, misconduct and imprudent lending as FOS is unable'.
An affidavit was filed by the appellant on 23 May 2013, attaching 'draft grounds of appeal', a Centrelink summary as 'proof of unaffordability' and a copy of s 15 of the Civil Judgments Enforcement Act 2004 (WA). The affidavit deposed that the appellant was 'seeking leave of the court to source legal representation due to my lack of capacity to continue on. Medical grounds and health issues. A stay or suspension order to delay enforcement of judgment due to these unforeseen circumstances. New evidence, Centrelink summary and proof of unaffordability at time of loan'.
The appellant relied on the draft grounds of appeal for the purposes of the hearing on 24 July 2013. The draft grounds of appeal contained 20 paragraphs which, for the most part, did not, arguably, allege any error on the part of the master in ordering summary judgment. Insofar as they alleged error, the allegations appear to be that the appellant was denied natural justice in that the master had:
(1)refused her an adjournment; and
(2)refused to allow her to tender affidavit evidence, alternatively had failed to take into account her affidavit evidence.
Another affidavit was filed by the appellant in this court on 29 May 2013. It stated that the Albany property was 'unsaleable due to flooding at least 30 times a year due to Albany City not upgrading a drain', and that 'the current legal action is in the Supreme Court for a status conference'.
A further affidavit, sworn 24 July 2013, was also filed by the appellant in this court for the purpose of the hearing on 24 July 2013. It made, in effect, generalised but unsubstantiated allegations of fraud and asserted that ASIC has the power to prosecute for fraud and that ASIC was undertaking certain investigations. These were matters of assertion rather than evidence.
At the hearing on 24 July 2013, it appeared that the appellant's contention in respect of the alleged error set out in (2) of [12] above, was that the master had not taken into account her affidavit of 18 February 2013 served on the appellant on 28 May 2013 (second affidavit) (see annexure BCS2 to Mr Smith's affidavit of 26 June 2013). The appellant, in effect, said that the second affidavit had been emailed to the court just prior to the hearing on 19 February 29013, but the material was too bulky to be received by email and it had not been before the court on 19 February 2013 (written submissions par 9).
At the hearing in this court on 24 July 2013, the appellant accepted that she was liable, at least, in a sum of $1 million to Westpac. She made generalised allegations of fraud unsupported by any evidence and reiterated that she required a stay pending the resolution of her claim against the City. She also applied for an adjournment.
If a stay is to be ordered or a suspension order is to be made under s 15 of the Civil Judgments Enforcement Act, special circumstances have to be shown. The first question which generally has to be considered is whether, without the grant of a stay, the right of appeal will be rendered nugatory. However, even if that is demonstrated, the stay will generally be refused unless it can be established that the appeal has ultimately reasonable prospects of success. See, generally, Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
There was nothing in the material presented to this court which provided any basis for suggesting that the appeal might ultimately have any reasonable prospects of success. The grant of an adjournment would only have delayed the inevitable and served no proper purpose. The draft grounds of appeal relied on by the appellant, for the most part, did not allege arguable error and, to the extent that they did, there was nothing to indicate that the master erred in the exercise of his discretion in refusing an adjournment. The second affidavit was not before the master and was not served on Westpac until 28 May 2013. There was no error in the master not taking into account that affidavit at the hearing on 19 February 2013. The master did take into account the first affidavit but said, correctly, that it raised no arguable defence. Insofar as the appellant wishes to proceed with her claim against the City, the order for possession will not affect that. For these reasons, on 24 July 2013, the court dismissed the appellant's applications for an adjournment and a stay.
For similar reasons, we would now dismiss her application for an extension of time and her appeal must, in our view, be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA). Accordingly the court will now order that:
(1)The appellant's application for an extension of time be dismissed.
(2)The appellant's appeal be dismissed.