Davey v Quigley - [2018] WASCA 137

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DAVEY -v- QUIGLEY [2018] WASCA 137
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   3 AUGUST 2018
DELIVERED          :   3 AUGUST 2018
PUBLISHED           :   3 AUGUST 2018
FILE NO/S:   CACV 43 of 2018
BETWEEN:   JOHN WALTER DAVEY
First Appellant
CHRISTOPHER MARK CREWE
Second Appellant
IAN BRUCE BELL
Third Appellant
AND
JOHN ROBERT QUIGLEY
First Respondent
LARISSA STRK
Second Respondent
SANDRA MARY BOYLE
Third Respondent
WESTPAC BANKING CORPORATION
Fourth Respondent
COMMONWEALTH BANK OF AUSTRALIA
Fifth Respondent

ON APPEAL FROM:
For File No:   CACV 43 of 2018
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MARTIN CJ
Citation: DAVEY -v- QUIGLEY [2018] WASC 107
File Number             :   CIV 1167 of 2018
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MARTIN CJ
Citation: DAVEY -v- QUIGLEY [2018] WASC 107
File Number             :   CIV 1167 of 2018

Catchwords:

Application for a stay pending determination of an appeal - Whether appeal has reasonable prospects of success - Turns on own facts

Legislation:

Nil

Result:

Application for a stay dismissed

Category: B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	No appearance
Third Appellant	:	No appearance
First Respondent	:	Ms M E Lindley
Second Respondent	:	Ms M E Lindley
Third Respondent	:	Ms M E Lindley
Fourth Respondent	:	Mr J Garas
Fifth Respondent	:	Ms J K Taylor

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
Third Appellant	:	In person
First Respondent	:	State Solicitor's Office
Second Respondent	:	Not taking part
Third Respondent	:	Not taking part
Fourth Respondent	:	Minter Ellison
Fifth Respondent	:	Dentons Australia

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

Davey v Quigley [2018] WASC 107
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Westpac Banking Corporation v Davey [2016] WASC 316
Westpac Banking Corporation v Davey [2018] WASC 189

REASONS OF THE COURT:

At the hearing of the application in this appeal, we made orders in effect dismissing the appellants' application for a stay of orders made by the General Division of this court. We also adjourned an application for a consolidation of this appeal with another appeal to a hearing listed for 24 August 2018. These are our reasons for making those orders.

Background

In 2009, the first appellant (Mr Davey) entered into loan agreements with the fourth respondent (Westpac). The loans were secured by mortgages over land of which Mr Davey was registered proprietor (Properties).[1] Westpac claimed that Mr Davey failed to make payments required under the loan agreements. On 11 January 2016, Westpac commenced proceedings (CIV 1027 of 2016) against Mr Davey seeking orders for possession of the mortgaged Properties. On 4 October 2016, Acting Master Strk allowed Westpac's application for summary judgment and made orders that, within 28 days, Mr Davey give Westpac possession of the Properties. The acting master gave written reasons for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Davey v Quigley and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WASCA 137
Decision Date: 3 AUGUST 2018

CaseChat Overview and Summary

The case of Davey v Quigley involved an application by the appellants, including Mr Davey, for a stay pending determination of their appeal against the orders made by Martin CJ in the primary proceedings. The primary proceedings were a judicial review of the acting master's orders made on 4 October 2016, which granted Westpac possession of certain properties. The appellants argued that the acting master's orders were unlawful and sought a stay pending the determination of their appeal.

The legal issues before the court were whether the appellants' appeal had reasonable prospects of success and whether a stay should be granted. The court considered the evidence and arguments presented by the parties and assessed the merits of the appeal. The court also considered the impact of the delay in filing the appellant's case on the prospects of success of the appeal.

The court found that the appeal did not have reasonable prospects of success. The court noted that the acting master's orders were based on the undisputed evidence before the court and that the appellants had not identified any errors of law or fact that would warrant a different outcome. The court also found that the delay in filing the appellant's case had a significant impact on the prospects of success of the appeal. The court held that the appellants had not demonstrated that the delay was justified or that it would not prejudice the respondent. The court therefore refused the application for a stay.

The court did not make any orders in relation to the appeal. The appellants were granted an extension of time to file their appellant's case, but it is unclear whether they have done so. The appeal is therefore likely to be dismissed for want of prosecution if the appellant's case is not filed within the extended time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In 2009, the first appellant (Mr Davey) entered into loan agreements with the fourth respondent (Westpac). The loans were secured by mortgages over land of which Mr Davey was registered proprietor (Properties).[1] Westpac claimed that Mr Davey failed to make payments required under the loan agreements. On 11 January 2016, Westpac commenced proceedings (CIV 1027 of 2016) against Mr Davey seeking orders for possession of the mortgaged Properties. On 4 October 2016, Acting Master Strk allowed Westpac's application for summary judgment and made orders that, within 28 days, Mr Davey give Westpac possession of the Properties. The acting master gave written reasons for that decision.[2][1] The mortgaged properties are 8 Rainsworth Gardens, Heathridge more particularly described as: Lot 123 on Plan 14812 and being the whole of the land comprised in Certificate of Title volume 1681 folio 183; Lot 22 Great Southern Highway, Broomehill more particularly described as: Lot 22 on Plan 2850 and being the whole of the land comprised in Certificate of Title volume 2094 folio 749; Lot 23 Great Southern Highway, Broomehill more particularly described as: Lot 23 on Plan 2850 and being the whole of the land comprised in Certificate of Title volume 2087 folio 782 and 29 Rodereda Crescent, Ravenswood more particularly described as: Lot 44 on Plan 7657 and being the whole of the land comprised in Certificate of Title volume 1306 folio 352.[2] Westpac Banking Corporation v Davey [2016] WASC 316 (Summary Judgment Decision). Mr Davey has never instituted an appeal against the acting master's orders of 4 October 2016. Mr Davey indicated from the bar table that he attempted to lodge an appeal notice against that decision but that versions of the appeal notice he had prepared were not accepted for filing by the court's registry. On 8 January 2018, Westpac sought and obtained Property Seizure and Delivery Orders in respect of the Properties under the Civil Judgments Enforcement Act 2004 (WA). On 2 February 2018, the appellants instituted the primary proceedings (CIV 1167 of 2018) seeking judicial review of a number of decisions. Relevantly for present purposes, the appellants sought judicial review of the acting master's orders of 4 October 2016. On 28 March 2018, Martin CJ dismissed the application in the primary proceedings on the ground that it had no reasonable prospect of succeeding. Martin CJ published written reasons for that decision.[3] Relevantly, his Honour dismissed the application so far as it related to the acting master's orders on the ground that the decisions of the Supreme Court (including when constituted by an acting master) were not amenable to judicial review other than by way of appeal.[4][3] Davey v Quigley [2018] WASC 107 (Primary Decision).[4] Primary Decision [39] - [44]. On 26 April 2018, the appellants commenced the present appeal against the orders made by Martin CJ. Despite being granted a number of extensions of time (the last being to 10 July 2018) the appellants have not yet filed a compliant appellant's case in this appeal.