Flynn v National Australia Bank
[2009] WASCA 168
•15 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FLYNN -v- NATIONAL AUSTRALIA BANK [2009] WASCA 168
CORAM: PULLIN JA
HEARD: 15 MAY 2009
DELIVERED : 15 MAY 2009
FILE NO/S: CACV 47 of 2009
BETWEEN: ROBERT FLYNN
Appellant
AND
NATIONAL AUSTRALIA BANK
Respondent
ON APPEAL FROM:
For File No : CACV 47 of 2009
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 2783 of 2008
Appeal Result : APPLICATION DISMISSED
Catchwords:
Practice and procedure - Appeal - Application for stay of judgment pending final appeal decision - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R M Johnson
Solicitors:
Appellant: In person
Respondent: Minter Ellison
Case(s) referred to in judgment(s):
Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172
PULLIN JA: On 7 April 2009 Master Sanderson made an order in favour of the National Australia Bank that the appellant do within 28 days deliver up possession of the property at 7 Oakmont Turn, Connolly, to the bank. On 24 April 2009 the appellant filed an appeal notice against that order and on 30 April applied for an order staying execution of the judgment pending a final decision in relation to the appeal. This application was supported by an affidavit of the appellant sworn 30 April 2009 which simply deposed that he was the appellant, that he had applied for a stay, that he had not conferred with the bank concerning the appeal application and that he made the application on the basis that it was urgent because repossession was due to take place on 5 May 2009.
On 30 April 2009 I made an order requiring the appellant to file and serve an affidavit disclosing what errors of fact or law he alleged were made by the Master and whether the refusal of a stay could render the appeal nugatory, and I indicated that when such an affidavit was received the application for a stay would be considered. Two further affidavits were filed by the appellant. They were both sworn on 1 May 2009. The longer of the two contains what appears to be a copy of the defence which had been filed in the primary proceedings. This contains a multitude of assertions. Before referring to it I will refer to the statement of claim filed in the primary proceedings. The second affidavit set out what the appellant says are provisions set out in a copy of Magna Carta displayed in the foyer of Parliament House in Canberra.
I now refer to the bank's statement of claim. It reveals that under certain loan and overdraft facilities moneys were loaned by the bank to a company called Kitchens U Can Fit Pty Ltd, of which the wife of the appellant is the sole director. These facilities were secured by securities including a guarantee by the appellant and Mrs Flynn and a registered mortgage over Oakmont Turn in Connolly. The bank's statement of claim pleaded out the overdraft and loan facility and also pleaded out the terms of a portfolio facility pursuant to which the bank advanced moneys to the appellant and Mrs Flynn. The statement of claim pleads that the company and the appellant are in default pursuant to the terms of the facilities, that is, the loan and overdraft facilities and the facility granted to Mr and Mrs Flynn. The statement of claim pleaded that the mortgage the bank held was registered, that a notice of default had been served and that $591,905.70 was owing to the bank on 13 December 2008. The statement of claim sought relief, being payment of moneys claimed and vacant possession of the property. Following the application for summary judgment the order was made by Master Sanderson which I indicated earlier. As mentioned, the appellant's second affidavit reproduced his defence. The defence contains various assertions including the fact that:
The bank entered into a criminal conspiracy to strip the appellant of his assets with malice aforethought.
It pleaded that the bank appointed an administrator to the company on 6 October 2008 and that:
This decision to appoint an administrator to control KUCF's affairs was incorrect, immoral, illegal and a conflict of interest.
and that:
The premeditated outcome was the aggressive takeover, rape and violation of KUCF which destroyed a small business with the prospective potential to trade out of its initial difficulties with cashflow.
The defence alleges 'negligent misrepresentation' of KUCF's business in the administrator's report and that there was misleading or deceptive conduct. It is not possible to deduce what the misleading or deceptive conduct was that might in any way affect the mortgage over the property. There are then a series of propositions appearing under the heading 'Philosophical Argument,' the central tenet of which seems to be that the bank was loaning 'not cash currency of the Commonwealth of Australia' but 'book entry credit created out of nothing.' In the proceedings before the master there was an affidavit from a bank officer verifying the allegations in the statement of claim. There had been some delay in the bank making application for summary judgment due to the fact that the appellant informed the bank that he was selling the property and that it was to settle on 27 January 2009. However, the property did not settle on 27 January 2009 because of the existence of disputes between the bank and the appellant. The appellant filed affidavits in the primary proceedings which argued that the company should not have been put into administration and which contained some generalised allegations of fact, some conclusionary statements and some submissions, none of which justified the master refusing to grant summary judgment to the bank in the form of an order for possession. No grounds of appeal have been filed by the appellant to this stage and the appellant has not identified proposed grounds of appeal. Section 15 of the Civil Judgments Enforcement Act 2004 (WA) grants a person against whom a judgment is given the right to apply for an order suspending the enforcement of a judgment. Section 15(3) states that the court may only make such an order if there are special circumstances that justify doing so. A stay may also be ordered as an interim order in an appeal: see Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(h). Principles that apply in relation to a stay are well known but I refer, for example, to Chief Executive Officer, Department for Child Protection v C [2007] WASCA 172 and, in particular, where Buss JA stated that:
A stay maintains the status quo which existed before the court or tribunal made the orders which are under appeal. See Edelsten v Ward [No 2] (1988) 63 ALJR 346 at 346; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 61 ALJR 612 at 614.
The criteria which are relevant to the exercise of this Court's discretion to grant a stay of orders, pending the determination of an appeal, were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308, at 311 [9]:
•The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
•It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
•It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
•The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
•If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
•If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted [13], [14].
If the appeal succeeds, then until the property has been sold by the bank the decision to grant possession to the bank may be reversed by the Court of Appeal. There is no evidence proffered that a sale is imminent or that any other action might be taken by the bank which will render the appeal nugatory at this stage. However, even if it could be demonstrated that the appeal might be rendered nugatory, it has not been established that the appeal has any reasonable prospects of success because of the absence of any grounds of appeal or foreshadowed grounds of appeal.
As to the balance of convenience, there are factors pointing both ways. First, the bank has a claim for a debt which is doubtless increasing day by day because of interest. It has an interest in selling the property as soon as possible so that the amount in excess of the value of the property does not become irrecoverable. On the other hand of course Mr Flynn's interests would point the other way if he was able to establish that there were reasonable prospects of success, which has not been established on the information before the court at the moment. On that basis the application for a stay is refused.
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