Dandie v Perpetual Trustees Victoria Ltd
[2017] WASCA 74
•18 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: DANDIE -v- PERPETUAL TRUSTEES VICTORIA LTD [2017] WASCA 74
CORAM: MURPHY JA
MITCHELL JA
HEARD: 13 APRIL 2017
DELIVERED : 13 APRIL 2017
PUBLISHED : 18 APRIL 2017
FILE NO/S: CACV 121 of 2016
BETWEEN: TRACEY ANN DANDIE
Appellant
AND
PERPETUAL TRUSTEES VICTORIA LTD
Respondent
FILE NO/S :CACV 122 of 2016
BETWEEN :TRACEY ANN TOBIN (DANDIE)
Appellant
AND
XPLORE CAPITAL LTD
First RespondentPERPETUAL TRUSTEES VICTORIA LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 2317 of 2016
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 2079 of 2016
Catchwords:
Banking and finance - Mortgage - Appeal from grant of summary judgment - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
CACV 121 of 2016
Counsel:
Appellant: In person
Respondent: Ms N E Burns
Solicitors:
Appellant: In person
Respondent: Jackson McDonald
CACV 122 of 2016
Counsel:
Appellant: In person
First Respondent : Mr J T Schoombee
Second Respondent : Ms N E Burns
Solicitors:
Appellant: In person
First Respondent : SRB Legal
Second Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)
The respondents to these appeals have applied for orders dismissing the appeals on the basis that none of the proposed grounds have any reasonable prospect of success. In these reasons we will refer to the respondents as Perpetual Trustees and Xplore Capital. We shall refer to the appellant as Ms Tobin.
Uncontentious primary facts
There is no substantial dispute as to the following primary facts.
In June 2005, Greg Dandie and Ms Tobin (who was then Mrs Dandie) accepted a written loan offer made by Perpetual Trustees, by signing the execution panel. The financial table to the loan offer indicated that the offer was for a $320,000 facility, with an annual percentage rate of 7%. In the event the facility was drawn down in full on the date of first advance, the financial table provided for monthly payments of $2,149.13. The final repayment date was 15 October 2034. The type of facility was specified as 'Premium Variable Rate Principal & Interest until maturity'.
It was also a condition of the offer that, unless otherwise stated, Perpetual Trustees could change the following relevant matters without the consent of Mr Dandie and Ms Tobin:
The Annual Percentage Rate and the Default Rate.
The way interest is calculated.
The amount, frequency or time for payment of repayments and the period over which they are to be repaid and the manner in which they are to be paid.
Clause 7 of the 'Loan Terms & Conditions Booklet' (Loan Conditions) which were incorporated into Perpetual Trustees' offer, also provided for Perpetual Trustees to change interest rates, and the amount of payments so that they are sufficient to repay the facility within the agreed term.
Mr Dandie and Ms Tobin agreed to provide a mortgage security for the loan over a property in Dianella, of which Ms Tobin was registered proprietor. On 31 July 2005, Ms Tobin executed a mortgage in favour of Perpetual Trustees. The mortgage was registered on 9 August 2005. The mortgage was given as security for payment to Perpetual Trustees of the 'Secured Money'. The 'Secured Money' was relevantly defined to mean all amounts that are payable at any time or are contingently owing or payable to Perpetual Trustees under a 'Secured Agreement'. A 'Secured Agreement' was defined to mean:
•Any present or future agreement between Us, and You … that You acknowledge in writing to be an agreement secured by the Mortgage, and
•An agreement that varies such an agreement.
On 4 August 2005, the accountant for Mr Dandie and Ms Tobin wrote to Xplore Capital conveying Mr Dandie and Ms Tobin's request that the facility 'be changed to a $320,000 Line of Credit facility as was their original intention'. This letter was signed by Mr Dandie and Ms Tobin. The effect of this change would be to engage cl 15.8 of the Loan Conditions. Clause 15.8 provided that Mr Dandie and Ms Tobin were only obliged to pay interest for a 10‑year period in the event that the amount of the loan was less than 85% of the value of the Security Property.
On 16 September 2005, Xplore Capital faxed the letter requesting a Line of Credit facility to Interstar Wholesale Finance Pty Ltd, which was identified in cl 1.1 of the Loan Conditions as Perpetual Trustees' manager of the loan.
The $320,000 facility was drawn down and interest only payments were due until 16 September 2015, when the loan reverted to a principal and interest facility. The loan fell into arrears and Perpetual Trustees issued default notices to Ms Tobin, ultimately demanding repayment of the outstanding balance.
On 3 August 2016, Perpetual Trustees commenced proceedings CIV 2317 of 2016 in the general division of this court (the Perpetual Action) seeking judgement in the then outstanding amount of $338,904.77 and delivery of vacant possession of Ms Tobin's Dianella property. As at 12 September 2016, the loan was $19,358.45 in arrears and the amount remaining due under the loan was $344,395.18.
On 28 June 2016, Ms Tobin commenced proceedings CIV 2079 of 2016 in the general division of this court (the Tobin Action). In essence, Ms Tobin claimed that Perpetual Trustees and Xplore Capital breached the terms of the loan agreement by managing the facility as an interest only loan for 10 years, and charging a higher interest rate than that specified in the financial table to the loan offer. Ms Tobin also alleged that this conduct constituted 'Deception, Misconduct, Misrepresentation, Misappropriation and Unconscionable Conduct'. She sought an order for the discharge of the mortgage and damages in the amount of $15,712,808.00.
Procedural History
On 29 November 2016, the Master awarded summary judgment for the plaintiff in the Perpetual Action and the defendants in the Tobin Action. Ms Tobin's action was dismissed, and she was ordered to deliver vacant possession of the Dianella property within 28 days.
Ms Tobin now appeals against the Master's orders. Her grounds of appeal are the same in each appeal, and are as follows:
1.Standard of Review. Master Sanderson wrongly held that he should not apply an intensive or rigorous standard of Review, which constitutes an error in Law.
2.Master Sanderson did err in awarding summary judgment to the Respondent in this case as 'The Court may not award summary judgment in a matter where there is deficit in Process or Service.' this constitutes an error in Law.
3.Master Sanderson wrongly chose the Respondents evidence over the Appellants, this constitutes written an error in Law and Fact.
4.Master Sandersons' findings are inconsistent with all available evidence, and unsupported by any evidence. This constitutes an error in Fact.
5.The Court, may not award a Plaintiff/Party to proceedings with more or other than they have requested Orders for, this constitutes an error in Law.
6.Master Sanderson did not give substantial or sufficient reasons, which is an error in Law.
7.Master Sanderson did fail in his constitutional duty to the Appellant as a self represented litigant to ensure that she received her common law rights to justice, and Rule of Law. This constitutes an error in Law.
8.Master Sanderson at all times showed and was bias to the Respondent. This constitutes an error in Law.
Perpetual Trustees and Xplore Capital have applied for the appeals to be dismissed on the basis that none of Ms Tobin's grounds of appeal have any reasonable prospect of succeeding.
Disposition of appeal
The main matter which Ms Tobin advanced at first instance, and advances on appeal, concerns the management of the loan as an interest only facility for a 10‑year period, and the variation of interest rates. There is no basis for either complaint. The loan agreement provides for Perpetual Trustees to vary the interest rate. Mr Dandie and Ms Tobin requested a 'Line of Credit' facility in circumstances where the Loan Conditions applying to such a facility provide for interest only repayments for the first 10 years of the loan.
We have considered the appellant's grounds of appeal and submissions filed in the appeals. None of the matters relied on provide any basis for doubting Ms Tobin's liability to Perpetual Trustees under the loan agreement, or the availability of the Dianella property as security for that liability. Nor do those matters provide any reason for thinking that Ms Tobin's action might succeed.
Ms Tobin complains about the standard of review applied by the Master on a summary judgment application. The Master did not specifically state the standard he applied. However, it is well established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[1] The present case satisfies that criteria.
[1] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] ‑ [55].
Ms Tobin also complains that the Master failed to refer to her own summary judgment applications. There was no error in that approach. It was unnecessary to specifically deal with Ms Tobin's applications, which became redundant when summary judgment was awarded against her.
Ms Tobin says that summary judgment should not have been awarded in the Perpetual Action because Perpetual Trustees did not plead the variation to the loan agreement effected by the letter of 4 August 2005 and Perpetual Trustees' acceptance of the request contained in that letter. There is no substance in that complaint. The terms of the loan agreement which Perpetual Trustees pleaded remained in force and established the liability asserted in the Perpetual Action. Any variation of the loan agreement clearly did not affect the application of the mortgage, which secured money owing under an agreement which varied a Secured Agreement.
Ms Tobin complains that the writ of summons in the Perpetual Action was not served on Mr Dandie. However, there was no need for Perpetual Trustees to do so in order to proceed to judgment against Ms Tobin. She was the sole registered proprietor and mortgagor of the Dianella property, and was individually (as well as jointly) liable under cl 21.4 of the Loan Conditions.
Before the Master, Ms Tobin also complained that default notices under the loan agreement and mortgage had not been served on Mr Dandie. On appeal, she challenges the Master's factual conclusion that the default notices had been served. It is unnecessary to resolve that factual challenge. Even if default notices were not issued to Mr Dandie, that would not affect Ms Tobin's individual liability under the loan agreement and mortgage. In the original proceeding, Ms Tobin did not give evidence that she had not been served with default notices.
Ms Tobin also complains, in effect, that the Master failed to accord her procedural fairness, showed bias against her and failed to give adequate reasons. There is no merit in either complaint. We have reviewed the record of the proceedings before the Master and are satisfied that he conducted the proceedings in a manner which was procedurally fair to Ms Tobin. The Master's reasons for decision adequately explained the basis for his decision, and respond to each of the matters which Ms Tobin sought to raise in the proceedings at first instance. Nor is there any reasonable basis for apprehending bias on the part of the Master against Ms Tobin.
Orders
We are satisfied that none of Ms Tobin's proposed grounds of appeal have any reasonable prospect of success. Both appeals should be dismissed. It is therefore unnecessary to deal with Ms Tobin's applications for a stay pending the determination of the appeals.
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