Catlin v National Australia Bank Ltd - [2002] WASCA 316

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: CATLIN & ANOR -v- NATIONAL AUSTRALIA BANK LTD [2002] WASCA 316

CORAM: TEMPLEMAN J
WHEELER J
MCKECHNIE J

HEARD: 6 NOVEMBER 2002

DELIVERED : 6 NOVEMBER 2002

FILE NO/S: FUL 80 of 2002

BETWEEN: ADRIENNE MARIE CATLIN
ADRIAN CHARLES STEPHEN CATLIN
Appellants
AND
NATIONAL AUSTRALIA BANK LTD
Respondent

Catchwords:

Practice and procedure - Renewed application to appeal on the basis of fresh evidence - Promissory estoppel - Application for stay of execution of order for possession in mortgage action - Turns on own facts

Practice and procedure - Application for extension of time in which to enter appeal for hearing - No arguable prospect of success of appeal - Turns on own facts

Legislation:

Nil

Result:

Applications dismissed

Category: B

Representation:

Counsel:

First-named Appellant        :     In person
Second-named Appellant     :     No appearance
Respondent:     Ms P E Cahill

Solicitors:

First-named Appellant        :     In person
Second-named Appellant     :     No appearance
Respondent:     Jackson McDonald

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

Jackamarra v Krakouer (1998) 195 CLR 516
Kwa v City of Stirling [2001] WASCA 370

Case(s) also cited:

Catlin & Anor v National Australia Bank Ltd [2002] WASCA 224

TEMPLEMAN J: The Court has two applications before it, the irregularity of one which is somewhat in question but we will deal with it in any event. The first application is for a stay of execution of an order for possession of the applicant's property. That was an order made by Master Bredmeyer on 3 May of this year. It is an order for possession in favour of the respondent, the National Australia Bank Ltd, pursuant to a mortgage or mortgages and defaults in payments by the applicants who are the borrowers.
The applicants applied twice to the Full Court for a stay and on each occasion the stay was declined. We are told by Mrs Catlin that they applied also to the High Court against the last decision of Full Court but that their application for a stay was declined there also. The application is renewed today on the basis that there is fresh evidence.
That evidence is referred to in an affidavit sworn by Adrienne Marie Catlin on 4 November of this year. Mrs Catlin refers to a conversation that she has had recently with a Mr Mark Morrell who was at the material time employed as the Controller, Asset Structuring by the respondent bank. The essence of Mrs Catlin's evidence is that she has been told by Mr Morrell that in a conversation on 21 June 2000, he agreed on behalf of the bank, that the bank would accept the sum of $500,000 in full and final satisfaction of all the Catlins' indebtedness to the bank and would release the securities.
Mrs Catlin deposes to the fact that Mr Morrell informed her that he had discussed this with his superiors after agreeing to it with Mrs Catlin. Mr Morrell had said that the bank had looked at various options and such a settlement achieved a much better outcome for them financially than all of the other ways of dealing with the problem. Mrs Catlin said that Mr Morrell indicated that he had sent a letter but Mrs Catlin said they had not received this communication.
There was a further statement by Mr Morrell, according to Mrs Catlin, that the agreement would have been noted on the bank files because he would have made a diary record of it. He clearly remembered the agreement with respect to the $500,000 and that the Catlins should ask for access to bank records.
Mr Morrell, who is no longer employed by the bank, declined to meet Mrs Catlin but said he would give evidence in court if required to do so. The Catlins have been unable to obtain an affidavit from Mr Morrell and they intend, they say, to issue a subpoena for his attendance and also to require the bank to produce its records.
The point that Mrs Catlin makes is that there is now, which there never was previously, firm evidence about an agreement with the bank on 21 June 2000. The agreement was "a done deal", as Mrs Catlin puts it, which would have resulted in the bank, as she puts it, "getting out of their lives" on the payment of $500,000, and it was that that following 21 June 2000 she and her husband were working towards.
There are two things to be said about the evidence which Mrs Catlin refers to, and for my part I am perfectly content to accept the evidence as truthful and accurate. The first thing to be said about it is that in a decision of the Full Court on 16 August this year, the Full Court have already decided that if there was an accepted offer of compromise along the lines of the evidence that is now adduced, that would not, in short, make any difference - it would not assist the applicants. In par 28 of the judgment of the court delivered on 16 August 2002 the Court said this, and I quote:
"However, if there was an accepted offer of compromise, there is nothing to indicate that it was in terms which would preclude the respondent"
that is, the bank -
"from relying upon its security at a later time, given that there is no suggestion that there was any tender of payment of any kind, let alone pursuant to an accepted offer of compromise, by the time the operative notice of demand on which the respondent relies was given."
That passage is put on the basis that if there was an accepted offer of compromise, it would not make any difference. Accepting for present purposes that there was an accepted offer of compromise the Catlins' position cannot be advanced.
As the court noted, there is no suggestion that there was any tender of payment. Indeed it is not suggested today that beyond saying that the Catlins were working towards raising $500,000, that they would have achieved that, there is no evidence that success was imminent or even likely.
The second thing to be said about the new evidence is that it must be looked at in the light of a letter written some nine days later by the Catlins' solicitors, Arns and Associates, to Mr Indram Rahajuri, who was the bank's receiver in possession of one of the properties which is the subject of the security. The letter was written without prejudice but it was exhibited to Mr Catlin's affidavit and therefore the privilege relating to it has been waived.
In my view, the letter is perfectly consistent with the evidence about the agreement on 21 June because it opens by Mr Arns, who wrote the letter on behalf of his firm, saying that he was instructed by his client that family members had offered support in the form of providing assets as security to allow Mr and Mrs Catlin to refinance with another financial institution. I pause there to say that I infer that the refinancing was being sought in order to give effect to the deal which had been done with Mr Morrell on 21 June.
The letter went on to refer to tentative finance approval by various financial institutions and saying that our client, that is, the Catlins, would require a further 30 days to allow security documents to be prepared and arrangements generally to be completed. Mr Arns then went on to say that "The offer would be subject to the following," and there were three conditions:
"(1)the bank making available copies of all security documents to him;
(2)the bank's acceptance of $500,000 in full and final settlement of all or any further liability that Mr and Mrs Catlin or the company, might have to the bank; and
(3)the parties entering into a deed of release and discharge."
Mr Arns concluded by asking whether the bank would be prepared to extend the time to 31 July 2000 to allow his clients the time they required to finalise the arrangements needed to put a firm offer to the bank. Mrs Catlin says Mr Arns was in error in referring to the need to put a firm offer to the bank because a deal had been done. I am prepared to accept that for present purposes, but the fact remains that they were seeking, through their solicitors, something of the order of 31 days to allow the deal to be consummated, that is to say, by the raising of $500,000, and that was not done. The bank, it may be inferred, agreed to extend the time and indeed agreed to extend the time well beyond 31 July 2000 because they did not move to take possession of the property until October of that year, albeit then on very short notice.
It is submitted by Mrs Catlin that in the circumstances, a promissory estoppel arises which would have prevented the bank from moving to take possession. However, I am not persuaded that there is any evidence of that because there is no evidence of any representation made by the bank beyond apparently an agreement to extend to 31 July 2000.
In any event, even if there was a promissory estoppel, a promise can be withdrawn on reasonable notice. In the circumstances, albeit that the notice when given was very short, apparently only an hour or so, it would, I think be unlikely that the Court would exercise any discretion in favour of the Catlins. There is no evidence that even then, some two months beyond the extension they had sought, they were in a position to raise the $500,000.
It seems to me, therefore, that the new evidence which the Catlins seek to rely on does not carry the matter any further, and I would not on the basis of that material be prepared to stay the execution of the order made by Master Bredmeyer.
The second application is an application for an extension of time in which to enter the appeal for hearing. It is that application, the irregularity of which I think is in some doubt. Acting Master Chapman has already declined an extension, exercising apparently the jurisdiction of the Full Court. Without going into the technicalities of that question, I can express my view that the application should be dismissed in any event.
The Master ruled against an extension on the basis of a decision of the Full Court in Kwa v City of Stirling [2001] WASCA 370, a case in which an extension was refused where there was no arguable prospect of success of the appeal.
In the present case that is also the position, the Full Court having, in effect, twice reached that conclusion. The question which concerned me was whether the new evidence could only be adduced to the Full Court by way of the appeal being used as a vehicle for that purpose.
However, given my view that the new evidence would not advance the Catlins' position any further, that is not now a consideration in the application for an extension of time in which to enter the appeal.

The appeal is out of time. There is no arguable prospect of success on the appeal as it stands. The new evidence would not add to the prospects of success, and I would therefore dismiss the application even if we have jurisdiction to deal with it for an extension of time.
WHEELER J: So far as the question of stay of execution is concerned, I am in agreement with the reasons of Templeman J. So far as the extension of time question is concerned there is perhaps some reason to believe that a further application for extension may be made where jurisdiction has purportedly already been exercised. I say that simply because there is an assertion, it seems, to that effect in Seaman's Civil Procedure, although I have not had the opportunity to consider it.
However, that said, the question then arises: even if there be jurisdiction in this Court to entertain the application for extension of time, the question is whether it should be granted. In many cases, it is undesirable, I accept, for the Full Court to make a decision on the basis merely of the apparent strength of the judgment against which it is desired to appeal.
There may be, and I leave for another day, a question as to the way in which one applies the principles in Kwa v City of Stirling [2001] WASCA 370, apparently applied by the learned Acting Master, in the light of the observations of the High Court in relation to applications of this kind in Jackamarra v Krakouer (1998) 195 CLR 516.
However, this is a case in which the prospects of success have been examined in some detail. That issue was and not only examined on notice to the applicants, but it was raised by the applicants themselves before the Full Court ‑ on not one but two occasions. Those issues were exhaustively canvassed by the Full Court in the reasons of 16 August 2002 and the issue again revisited on 28 August 2002.
This being therefore one of the rather unusual cases in which the proposed merits of an appeal have been the subject of detailed consideration and the Court having found that there is no prospect of success, it seems to me that it is appropriate in those circumstances to refuse an extension of time on that basis.
MCKECHNIE J: I agree with the reasons given by Templeman and Wheeler JJ that both applications should be refused.