Fletcher v Westpac [No 2] - [2014] WASCA 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FLETCHER -v- WESTPAC [No 2] [2014] WASCA 42

CORAM: NEWNES JA
MURPHY JA

HEARD: 17 OCTOBER 2013

DELIVERED : 24 FEBRUARY 2014

FILE NO/S: CACV 129 of 2011

BETWEEN: BRIAN FLETCHER AS TRUSTEE OF THE BRIAN FLETCHER FAMILY TRUST
Appellant
AND
WESTPAC BANKING
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ALLANSON J
Citation  :BRIAN FLETCHER AS TRUSTEE OF THE BRIAN FLETCHER FAMILY TRUST -v- ST GEORGE BANK LTD [No 2] [2011] WASC 277
File No  :CIV 2186 of 2006

Catchwords:

Practice and procedure - Trustee of appellant bankrupt - Application to substitute new trustee as appellant - Whether appeal has reasonable prospect of success - Appeal against findings of fact by trial judge - Relevant principles - Findings clearly open to trial judge - Appeal has no reasonable prospect of success

Legislation:

Nil

Result:

Application to substitute appellant dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms C L Di Russo
Non-party:     Mr C P Stokes

Solicitors:

Appellant:     In person
Respondent:     Gadens Lawyers
Non-party:     Chris Stokes & Associates

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

Brian Fletcher as Trustee of the Brian Fletcher Family Trust v St George Bank Ltd [No 2] [2011] WASC 277
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fletcher v Westpac [2012] WASCA 154
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Leeder v The State of Western Australia [2008] WASCA 192
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255

JUDGMENT OF THE COURT: There are two applications before the court. One is an application to substitute a new trustee of the Brian Fletcher Family Trust, Mr William Fletcher (the applicant), as the appellant. The other is an application by the respondent to dismiss the appeal on the ground that the appeal has no reasonable prospect of success.
The first application has come about because the current appellant, Mr Brian Fletcher (the appellant), is now bankrupt and accordingly the appeal cannot be pursued further by him: see Fletcher v Westpac [2012] WASCA 154. Mr William Fletcher is his brother and has been appointed as the trustee of the trust in substitution for the appellant.
The application to substitute Mr William Fletcher for the appellant was initially opposed by the respondent, among other things, on the ground that he would not be able to meet any order for costs that might be made against him and the trust has no tangible assets from which he might be entitled to be indemnified. Mr William Fletcher has since filed an affidavit in which he has said that he is a pensioner but he owns his home which is unencumbered. The home was…

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.

Continue reading Fletcher v Westpac [No 2]

Details

AGLC: Fletcher v Westpac [No 2] [2014] WASCA 42
Case: [2014] WASCA 42
Decision Date: 24 FEBRUARY 2014

CaseChat Overview and Summary

The case of Fletcher v Westpac [No 2] involves two primary applications before the court. The first application seeks to substitute Mr William Fletcher as the new trustee of the Brian Fletcher Family Trust in place of the current appellant, Mr Brian Fletcher, who is now bankrupt. The second application, brought by the respondent, is to dismiss the appeal on the basis that it lacks a reasonable prospect of success. The appeal originates from a dispute regarding the sale of a property owned by Mr Brian Fletcher in Bull Creek, which was leased to Baysilk Holdings Pty Ltd for operating a health club. The legal issues revolve around the trial judge's findings of fact and the criteria for determining whether an appeal against such findings has a reasonable prospect of success.

The court had to consider whether the appeal against the findings of fact by the trial judge was likely to succeed, particularly given the stringent standards for overturning factual findings based on credibility. The relevant principles, as elucidated in cases such as Minister for Immigration, Local Government and Ethnic Affairs v Hamsher and Devries v Australian National Railways Commission, require the appellant to demonstrate that the trial judge made a factual error rather than merely choosing between competing inferences. In this case, the court found that the appellant had failed to meet the burden of showing that the trial judge's findings were clearly erroneous. Many of the grounds of appeal were either unclear or irrelevant, and the court found that the appellant did not establish that the trial judge had misapplied the evidence or made findings that were glaringly improbable.

In light of the above, the court dismissed the respondent's application to substitute Mr William Fletcher as the appellant, reasoning that no purpose would be served if the appeal had no reasonable prospect of success. The court held that the appeal did not meet the threshold for a reasonable prospect of success because the appellant had not demonstrated that the trial judge's factual findings were clearly erroneous. Consequently, the appeal was dismissed, and no substitution of the appellant was permitted.

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: There are two applications before the court. One is an application to substitute a new trustee of the Brian Fletcher Family Trust, Mr William Fletcher (the applicant), as the appellant. The other is an application by the respondent to dismiss the appeal on the ground that the appeal has no reasonable prospect of success. The first application has come about because the current appellant, Mr Brian Fletcher (the appellant), is now bankrupt and accordingly the appeal cannot be pursued further by him: see Fletcher v Westpac [2012] WASCA 154. Mr William Fletcher is his brother and has been appointed as the trustee of the trust in substitution for the appellant. The application to substitute Mr William Fletcher for the appellant was initially opposed by the respondent, among other things, on the ground that he would not be able to meet any order for costs that might be made against him and the trust has no tangible assets from which he might be entitled to be indemnified. Mr William Fletcher has since filed an affidavit in which he has said that he is a pensioner but he owns his home which is unencumbered. The home was valued in a subsequent affidavit at $300,000. In light of that material, the respondent does not now press that ground of opposition to the application but it opposes the application on other grounds. It is appropriate, however, to turn first to the respondent's application to dismiss the appeal. No purpose would be served in substituting a new appellant if the appeal has no reasonable prospect of success. The appeal arises out of the sale of a property that the appellant owned in Bull Creek (the property). The appellant leased the property to Baysilk Holdings Pty Ltd, a company associated with the appellant, which used it to operate a health club. In July 1995, the appellant granted a first mortgage over the property to Ould Pty Ltd. In August 1995, Baysilk obtained three loan facilities from the respondent, secured by, among other things, a second mortgage over the appellant's interest in the property. The appellant subsequently obtained further loan facilities from the respondent, also secured by the second mortgage. The appellant, the respondent and Ould entered into a Deed of Postponement under which the respondent would have priority and rank first in payment of any money owing to it by the appellant or Baysilk. In 1997, Baysilk sold the health club business to Tonesports Pty Ltd, which took an assignment of the lease. It appears that the appellant had no interest in Tonesports. On 4 July 2000, Ould demanded payment of the sum of $88,945.24 and interest of $38,945.24, which it said was due and owing under its first mortgage. The appellant claimed that the money had been repaid. Ould subsequently took steps to sell the property pursuant to its power of sale under the mortgage. On 12 December 2000, the appellant obtained an interim injunction to restrain the sale. The appellant failed, however, to comply with a condition of the injunction that $75,000 be paid into court and, on 31 January 2001, the injunction lapsed.

Ratio Decidendi

Legal Principle Established

The onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the learned trial judge. As the Full Court of the Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359:The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made (369). See also Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255 [60]; Leeder v The State of Western Australia [2008] WASCA 192 [84]. In relation to findings of fact based on credibility, in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said:More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (479). (footnotes omitted) It is not necessary to canvass the grounds of appeal in detail. Many of the grounds are difficult to understand and some are either meaningless or plainly irrelevant. On the hearing of the appeal, counsel for the applicant relied on the following grounds which, in substance, he described in the following way:1.grounds 1, 3 and 4 contend that the primary judge erred in fact in finding that the respondent did not give any undertaking to inform the appellant of a pending sale of the property so that he could take action to prevent it was against the weight of the evidence (ts 82); 2.grounds 5, 6, 7 and 8 contend that the primary judge erred in fact in finding that the appellant could not reasonably have held any assumption or expectation that the respondent would inform the appellant of a pending sale of the property, as his Honour misapprehended the appellant's case as being that the respondent would assist the appellant prevent the sale whereas it was simply that it would inform the appellant of a pending sale of the property (ts 84);3.grounds 9, 10, 11, 16 and 17 contend that the primary judge erred in fact in finding that the appellant knew that a payment into court was likely to be a condition of any injunctive relief sought by the appellant and that the appellant would need to sell property to make such a payment (ts 85); and4.ground 20 contended that his Honour erred in fact and law in not finding that the respondent was under a duty to disclose the settlement statement it received from Ould's agent (ts 87).