Catlin v National Australia Bank Ltd
[2002] WASCA 258
•28 AUGUST 2002
CATLIN & ANOR -v- NATIONAL AUSTRALIA BANK LTD [2002] WASCA 258
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 258 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:80/2002 | 28 AUGUST 2002 | |
| Coram: | WALLWORK J MURRAY J PARKER J | 28/08/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | ADRIENNE MARIE CATLIN ADRIAN CHARLES STEPHEN CATLIN NATIONAL AUSTRALIA BANK LTD |
Catchwords: | Practice and procedure Application for stay of execution pending application to High Court for special leave to appeal Turns on own facts |
Legislation: | Nil |
Case References: | Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (1994) 68 ALJR 196 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CATLIN & ANOR -v- NATIONAL AUSTRALIA BANK LTD [2002] WASCA 258 CORAM : WALLWORK J
- MURRAY J
PARKER J
- ADRIAN CHARLES STEPHEN CATLIN
Appellants
AND
NATIONAL AUSTRALIA BANK LTD
Respondent
Catchwords:
Practice and procedure - Application for stay of execution pending application to High Court for special leave to appeal - Turns on own facts
Legislation:
Nil
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Ms P E Cahill
Solicitors:
Appellants : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (1994) 68 ALJR 196
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Case(s) also cited:
Nil
(Page 3)
1 MURRAY J: The application now before the Court by motion is to grant a stay of execution of orders made by the Full Court on 16 August 2002. The application is made for a stay pending the hearing and determination of an application for special leave to appeal to the High Court.
2 We have been provided with the document of application dated 26 August 2002 in which there is some reference to the grounds, but, as Mr Catlin observes, it would no doubt be possible to elaborate upon those prior to the hearing of the application for special leave. Of those that are now articulated, the one that appears to be of substance is that it will be contended by way of the application for special leave that this Court erred in its disposition of the application to it in that we ought to have found that the applicant had prospects of success on an appeal to this Court on the merits.
3 To put that in a more understandable context, the matter originally before the Court was an action for possession by the respondent. There was an application in that action by the respondent for summary judgment. That was heard by a Master of this Court and the application was granted and appropriate orders were made. The applicants instituted an appeal against the decision of the Master. Pending the hearing and determination of that appeal, they applied for a stay of execution. That was heard by another Master of the Court and refused.
4 The application for a stay of execution pending their appeal against the Master's determination was renewed before this Court and it was that application which, on 16 August 2002, this Court refused. It did so understanding that the consequence of so doing might well be that the appeal to this Court would be rendered substantially nugatory in the sense that whatever might follow in relation to the financial situation as between the parties, the house which was the security for the mortgage that had been given, in relation to which default had been established, would be repossessed and sold and it would be lost. It is the home of the applicants.
5 The Court understood that and therefore looked particularly to see whether there were grounds for the grant of the exceptional relief which a stay of execution involves. It examined every point of contention which was raised by affidavit before this Court and which had been raised before the Master and this Court considered the merits of all of those matters and concluded ultimately that none of the grounds of appeal, supported in the way that I have mentioned, appeared to the Court to offer arguable prospects of success. And so there appeared to this Court to be no ground
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- upon which the exceptional remedy of a stay might be granted. The application was therefore dismissed.
6 The applicants really, it seems to me, seek to canvass error generally in that conclusion. They also rely particularly upon negotiations in respect of the compromise of the mortgage debt which occurred at the relevant time, matters which had been relied upon before the Master and dealt with by him and which were relied upon before us and dealt with in the judgment of this Court in par [26] to par [28] inclusive.
7 That matter has been aired again effectively by putting before us an affidavit sworn on 27 August. That affidavit certainly puts some new evidentiary material before the Court but I think there is no particular difficulty arising out of that. The affidavit effectively presents again the argument that the position had been reached at the relevant time whereby the arrangement or relationship between the applicants and the respondent was such as to cause a court to conclude that the respondent would be estopped from denying that it had made a concluded agreement to allow the refinancing of the debt and to compromise the debt in that way.
8 For my part, having examined again, in the context of the material presently put before us, that issue, it seems to me that there is again nothing there to indicate that the decision of this Court given on 16 August in relation to that issue is any way arguably in error; nor I think is the matter advanced by the other matters which have been raised this morning, relying particularly upon an affidavit sworn by Mr Catlin on 20 August 2002 which seems to me to effectively regurgitate, albeit at times in rather intemperate language, issues which had been raised, argued before us and dealt with in our reasons.
9 For my part, I can see no basis for concluding that there is an arguable case that in any respect in dealing with the application for a stay this Court erred in law or fact or both. The law in relation to the grant of a stay pending an appeal to this Court and pending an application for special leave to appeal is clear. In our judgment on 16 August 2002 we referred to the decision of this Court, and particularly passages from the judgment of Anderson J, in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79.
10 His Honour there referred among other authorities to the decision of his Honour Dawson J of the High Court inGerah Imports Pty Ltd v Duke Group Ltd (in liq) (1994) 68 ALJR 196, an application for a stay pending the hearing of a special leave application before his Honour in which he
(Page 5)
canvassed the relevant law at 197 - 198. His Honour makes the important point initially in these words:
"The inherent jurisdiction of this Court to order a stay of proceedings pending the determination of an application for special leave is well established. It is an extraordinary jurisdiction which will only be exercised in exceptional circumstances. Exceptional circumstances may arise where the subject matter of the proposed appeal will be lost without a stay, with the result that the application for special leave and any subsequent appeal will be nugatory."
11 A little later his Honour continues:
"Notwithstanding this circumstance, the jurisdiction to grant a stay is discretionary and other matters are relevant to the exercise of the discretion. Importantly, the applicant must establish a substantial prospect that special leave to appeal will be granted. It is I think the prospect of success in that application which is significant, although of course the prospect of ultimate success in any appeal, if leave is granted, is an important element to be taken into account by the Court in deciding whether or not to grant special leave. In addition, there are other matters to be taken into consideration in the exercise of the discretion to grant a stay."
12 His Honour referred particularly to any loss which may be caused to interested parties by the granting of a stay. That must be taken into account and the balance of convenience is always something to be considered. Those considerations apply equally to this Court when considering an application for a stay pending the determination of an application for special leave to the High Court. In my opinion there is nothing in this case which would bring it into the exceptional circumstances which would justify the grant of this extraordinary remedy. In particular, it seems to me, as I have already indicated, that the applicant has not established a substantial prospect that special leave to appeal would be granted in this case. I would refuse the application for a stay.
13 WALLWORK J: I agree with what Murray J has said and there is nothing I would like to add.
14 PARKER J: I also agree.
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