Chen v Cheng, Manager for Chinatown ANZ Bank

[2001] QCA 304

[2001] QCA 304

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
WILLIAMS JA

Appeal No 2531 of 2001

WEI XIN CHEN  Appellant (Plaintiff)

and

VINCENT CHENG, MANAGER
FOR CHINATOWN ANZ BANK    First Respondent (First Defendant)

and

CORALIE MOTT, MANAGER
FOR WISHART VILLAGE     Second Respondent (Second Defendant)

BRISBANE

..DATE 27/07/2001

JUDGMENT

WILLIAMS J: The Court today is concerned with an appeal against the decision of the President, made under Rule 759 of the Uniform Civil Procedure Rules, refusing to order that the appellant be exempt from complying with subrules 1 to 4 of that Rule.

The appellant applied to the Registrar for an order exempting her from the obligation to pay for the preparation of the appeal book, and that application was refused.  She then appealed pursuant to subrule 8 and the President dismissed that appeal on 15 May 2001.

The appellant now appeals to this Court seeking an order that she be exempted from an obligation to pay for the preparation of the relevant appeal book.

A deal of almost unintelligible material has been placed before the Court and in consequence it is desirable to set out the relevant background to the issue presently before the Court for determination.

On or about 28 September 1998, the appellant entered into a loan agreement with the ANZ Bank whereby she borrowed $112,000 against the security of a town house at 6/28 Stackpole Street, Wishart.  Subsequently the appellant made default in making repayments to the bank, and on 7 September 1999 the bank sought to recover possession of the security property by commencing action S8088/99.

Default judgment was entered in favour of the bank on 19 October 1999 and on 4 December 1999, the bank obtained possession of the security property pursuant to a warrant.

Thereafter it appears that the appellant regained possession of the property on some three occasions and on each of those occasions the bank took the necessary action to recover possession.  That was followed by a further agreement between the appellant and the bank, whereby the appellant was allowed back into possession of the subject property on certain conditions.  That agreement was entered into on 13 March 2000.

Consequent upon default by the appellant in meeting the conditions of that agreement, on 8 August 2000 the bank brought further proceedings for recovery of possession of the security property.  Again the appellant defaulted in delivering a defence and default judgment was obtained by the bank on 19 September 2000.  On 3 October 2000 the bank recovered possession of the security property pursuant to a warrant.

On 31 October 2000 the appellant made application to the Court, S9461 of 2000, seeking to restrain the ANZ Bank from taking possession of the subject property notwithstanding that it had already obtained possession pursuant to a warrant.

On 15 November 2000, Justice Moynihan dismissed the appellant's application with costs.  Then on 8 December 2000, the appellant commenced the subject proceedings, 10789 of 2000 against the bank and it would appear the manager of the town house complex known as Wishart Village.

A document purporting to be a statement of claim was delivered on 8 December 2000. The bank then applied pursuant to Rule 171 of the Uniform Civil Procedure Rules that the statement of claim be struck out and for summary judgment against the plaintiff pursuant to Rule 292.

The matter came before Justice Atkinson on 16 February 2001 and she delivered judgment on 22 February 2001.  Her Honour concluded that the purported statement of claim was unintelligible and did not disclose a cause of action.  She stated that no amendment based on facts presently revealed could result in a viable cause of action being pleaded.

Accordingly she struck out the statement of claim and granted summary judgment to the bank.  It is from that decision that the appeal is brought which has given rise to the application with respect to the appeal book. 

When the application under Rule 759 came before the Registrar, there was no material dealing with the matters made relevant to such an application by subrule 7. Accordingly he dismissed the application.

Before the President on appeal there was additional material which indicated that the appellant may well be impecunious.  I am prepared to assume her impecuniosity for the purposes of this appeal.

It is clear from Rule 759 (9)(b)(ii) that the Court may have regard to the preliminary merits of the appeal to which the application relates.

I have had regard to all the material before Justice Atkinson, to her reasons for judgment, and to all the material currently available to this Court including the applicant's oral submissions today.  There is no doubt in my mind that the appeal is entirely devoid of merit.

Insofar as the statement of claim and the affidavits are intelligible, it appears that the appellant is asserting that she has suffered loss and damage to her business as a result of the bank's conduct in retaking possession of the security property.  But, given the previous proceedings to which I have already referred, the statement of claim, the notice of appeal and other material filed by the appellant, nothing therein establishes or evidences a cause of action against either the bank or the second defendant.

As the appeal is prima facie entirely devoid of merit, there is no proper basis for exempting the appellant from the obligation to prepare an appeal book if she wishes to proceed in the matter.   It is not appropriate for the Court at this stage to do more than dismiss the appeal against the decision of the President of 15 May 2001.  If an appeal book is not prepared promptly, then there are obvious steps which can be taken by the respondents to have the matter finalised.

The appeal against the order of Justice McMurdo of 15
May 2001 should be dismissed.

THE CHIEF JUSTICE:  I agree.

McPHERSON JA:  I also agree. 

THE CHIEF JUSTICE:  The appeal is dismissed.

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