Fazio v Westpac Banking Corporation - [2014] WASCA 80

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FAZIO -v- WESTPAC BANKING CORPORATION [2014] WASCA 80

CORAM: PULLIN JA
NEWNES JA

HEARD: 20 FEBRUARY 2014

DELIVERED : 16 APRIL 2014

FILE NO/S: CACV 118 of 2013

BETWEEN: ARTURO FAZIO
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1279 of 2013

Catchwords:

Practice and Procedure - Appeal from order granting summary judgment to respondent - Grounds of appeal have no reasonable prospect of success - Appeal dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B C Smith

Solicitors:

Appellant: In person
Respondent: Gadens Lawyers

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

Heedes v Legal Practice Board [2005] WASCA 166
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Legal Practice Board v Heedes [2004] WASC 260
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio (No 3) [2014] FCA 92
Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18

JUDGMENT OF THE COURT: The appellant has appealed against an order of Master Sanderson of 24 September 2013, granting summary judgment to the respondent. An appeal notice was filed by the appellant on 17 October 2013, together with an application for an order that execution on the judgment be suspended pending the determination of the appeal. As the appeal notice was filed out of time, the appellant requires an extension of time to commence the appeal.
On 24 January 2014, the respondent applied for the appeal to be dismissed on the basis that none of the grounds of appeal has any prospect of success, or alternatively, on the basis that the appellant has failed to comply with a number of the provisions of the Supreme Court (Court of Appeal) Rules 2005 (WA). In the further alternative, the respondent sought an order striking out each of the grounds of appeal on the basis that they have no prospect of succeeding.
The appellant's application for the suspension of execution on the judgment and the respondent's application for the appeal to be dismissed were heard at the same time, pursuant to a registrar's notice to attend dated 30 January 2014. It is convenient to turn first to the respondent's application.

Background

The appellant is the registered proprietor of a property in Hannah Place, Leeming (the property). The property is subject to a first mortgage to the respondent to secure a loan of $520,000 made to the appellant pursuant to a written loan agreement made on or about 20 February 2009.
On 21 February 2013, the respondent commenced proceedings against the appellant alleging that the appellant was in default under the loan agreement and the mortgage, and had failed to rectify the default in accordance with…

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.

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Details

Case: [2014] WASCA 80
Decision Date: 16 APRIL 2014

CaseChat Overview and Summary

The appellant has appealed against an order of Master Sanderson of 24 September 2013, which granted summary judgment to the respondent. The respondent, Westpac Banking Corporation, had commenced proceedings against the appellant, alleging default under a loan agreement and mortgage. The court was required to determine whether the appeal had a reasonable prospect of success and whether the appellant had complied with procedural requirements. The respondent argued that the grounds of appeal were without merit and that the appellant had failed to adhere to certain procedural rules. Additionally, the respondent sought to dismiss the appeal on the basis that the appellant's mental health issues did not justify a further adjournment.

The court considered the merits of the appeal and the procedural compliance by the appellant. It found that the grounds of appeal lacked a reasonable prospect of success and that the appellant had not complied with certain procedural requirements. The court also noted that the appellant had been able to manage other legal proceedings despite his claimed mental health issues, which undermined his request for further adjournments. The court concluded that the appeal should be dismissed as it had no reasonable prospect of success and that the appellant had not demonstrated sufficient justification for the procedural failures.

The appeal was dismissed, and the order granting summary judgment to the respondent was upheld. The court further determined that there was no basis for suspending the execution of the judgment pending the appeal. The respondent's application to strike out the grounds of appeal was also granted. The court found that the appellant had not provided any evidence to support his claims or to rebut the respondent's affidavit. The court ruled that the appeal was frivolous and that the appellant had not shown any likelihood of success on appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant has appealed against an order of Master Sanderson of 24 September 2013, granting summary judgment to the respondent. An appeal notice was filed by the appellant on 17 October 2013, together with an application for an order that execution on the judgment be suspended pending the determination of the appeal. As the appeal notice was filed out of time, the appellant requires an extension of time to commence the appeal. On 24 January 2014, the respondent applied for the appeal to be dismissed on the basis that none of the grounds of appeal has any prospect of success, or alternatively, on the basis that the appellant has failed to comply with a number of the provisions of the Supreme Court (Court of Appeal) Rules 2005 (WA). In the further alternative, the respondent sought an order striking out each of the grounds of appeal on the basis that they have no prospect of succeeding. The appellant's application for the suspension of execution on the judgment and the respondent's application for the appeal to be dismissed were heard at the same time, pursuant to a registrar's notice to attend dated 30 January 2014. It is convenient to turn first to the respondent's application. The appellant is the registered proprietor of a property in Hannah Place, Leeming (the property). The property is subject to a first mortgage to the respondent to secure a loan of $520,000 made to the appellant pursuant to a written loan agreement made on or about 20 February 2009. On 21 February 2013, the respondent commenced proceedings against the appellant alleging that the appellant was in default under the loan agreement and the mortgage, and had failed to rectify the default in accordance with a default notice served by the respondent. The respondent sought an order for possession of the property pursuant to the mortgage. An application for summary judgment was made by the respondent on 19 August 2013. That application was supported by an affidavit of Mr Cannalonga, an officer of the respondent. In the affidavit, which was sworn on 10 May 2013 but filed on 19 August 2013, Mr Cannalonga deposed to the loan and the appellant's default, and to arrears owing by the appellant in the sum of $140,537.24 as at the date of the affidavit. Copies of the loan agreement and the mortgage were attached to the affidavit. The application for summary judgment came before the master on 10 September 2013. The appellant did not appear in person or by counsel. He had, however, written to the court, by a letter dated 9 September 2013, requesting an adjournment of the application for 28 days to enable him to obtain legal assistance. In the letter, the appellant said that he was currently incapable of preparing an affidavit in opposition to the application because of certain mental health problems from which he was suffering. The master adjourned the application for 14 days. On 10 September 2013, following the hearing, the respondent's solicitors wrote to the appellant advising him that the application had been adjourned to 24 September 2013 and saying that if he required a further adjournment he would need to provide evidence from a medical practitioner explaining why he was unable to participate in the proceedings, failing which the hearing may proceed in his absence. The respondent noted that the appellant had been capable of commencing an appeal in proceedings in the Federal Court on 1 August 2013.

Ratio Decidendi

Legal Principle Established

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