Foundas v Australian Central Credit Union

[2021] SASCA 127

Supreme Court of South Australia

(Court of Appeal: Civil)

FOUNDAS v AUSTRALIAN CENTRAL CREDIT UNION

[2021] SASCA 127

Reasons of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

28 October 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW

The applicant sought leave to appeal against an order of a Master of this Court dated 17 May 2021 granting possession of the applicant’s property to the mortgagee, Australian Central Credit Union.

Held, (the Court) refusing permission for leave to appeal and dismissing the appeal:

1.The applicant raises no arguable error in the reasons of the Master, and it is not in the interests of justice to grant leave to appeal.

2.      There is no utility in granting the applicant an extension of time.

Law of Property Act 1936 (SA) s 55A; National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) sch 1 ss 3 and 4; National Credit Code s 88; Real Property Act 1886 (SA) s 132; Uniform Consumer Credit Code, referred to.
Inglis v Commonwealth Trading Bank (1972) 126 CLR 161; Jinman v ANZ [2017] SASC 56, considered.

FOUNDAS v AUSTRALIAN CENTRAL CREDIT UNION
[2021] SASCA 127

Court of Appeal – Civil: Livesey P, Doyle and David JJA

THE COURT:

1. This is an application for permission to appeal following an order for the possession of real property made by a Master of this Court on 17 May 2021.

2. It is necessary for the applicant to raise, at least arguably, a contention impugning the respondent’s entitlement to possession so as to demonstrate that the respondent is not entitled to enforce its rights under its security.  That is not done by demonstrating the existence of a claim in damages.[1] 

   [1]     Inglis v Commonwealth Trading Bank (1972) 126 CLR 161, 164-165 and see, by way of example, Jinman v ANZ [2017] SASC 56, [85] (Bampton J).

3. The applicant has filed submissions dated 19 August, 27 August and 24 September 2021.  The respondent has filed a submission dated 9 September 2021. 

4. The applicant’s grounds of appeal are, with respect to him, difficult to follow.

5. In broad terms, the applicant has raised no issue of principle, rather, he contends that there was a conflict of interest affecting the respondent’s solicitors and the Master, inadequate reasons and, on various grounds, that the decision is wrong.

6. The suggested conflicts of interest concern the respondent’s solicitors acting for a different client who obtained a charging order which was registered on the title of the property.  So far as the Master is concerned, she was employed by the respondent’s solicitors more than 20 years ago.  Neither of these contentions even arguably raises a relevant conflict of interest. 

7. In addition, the applicant says that his evidence was erroneously rejected, and he was given no explanation as to why his claims were regarded as irrelevant.  This appears to be a complaint of inadequate reasons.  The reasons of the Master dated 17 May 2021 are adequate to explain why the Master thought that the applicant had not raised any arguable issue or contention sufficient to resist an order for possession. 

8. So far as error is concerned, the contentions start with the assertion that there was no default under the relevant mortgage, in part because there was an agreement concerning payments with the result that the failure to make stipulated payments did not comprise a default.  The applicant has not led evidence to demonstrate the existence of such an agreement and there was none before the Master. 

9. On the contrary, before the Master there was evidence that the relevant statutory notice of default dated 5 August 2020 was served, which complied with the mortgage, s 88 of the National Credit Code, s 132 of the Real Property Act 1886 (SA) and s 55A of the Law of Property Act 1936 (SA). This was supported by an affidavit from an authorised officer of the respondent deposing to the default.

10. In the circumstances, it is unsurprising that the Master found that the respondent had made out a case for summary possession and the applicant had not demonstrated any arguable contention to the contrary.  To recapitulate:

    1.On 8 January 2008, the applicant entered into a loan agreement with the respondent, secured by the mortgage. 

    2.The applicant defaulted under the loan agreement and therefore the mortgage. 

    3.The default notice was served on the applicant, as required.

    4.The default notice was not complied with.

    5.Accordingly, the respondent became entitled to possession of the property and to bring possession proceedings; the applicant was served with the originating application dated 3 November 2020 and supporting affidavit evidence.  This was done by way of substituted service.

    6.Despite many opportunities, the applicant did not adduce evidence sufficient to displace the respondent’s entitlement to an order.

11. No arguable error has otherwise been raised.  For example, in so far as the applicant raises the Uniform Consumer Credit Code and the National Credit Code, it is clear that the loan was governed by the former when first advanced, but that from after 30 June 2010 recovery is now governed by the latter.[2]  In so far as the applicant raises the question of legal costs debited to the loan, it is difficult to understand the issue.  No amount for fees or costs was included in the notice of default and the recoverability of any costs is not an issue for the possession proceedings. 

    [2]     National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), see sch 1 ss 3 and 4.

12. Finally, the applicant makes allegations of irresponsible lending and cites the Financial Ombudsmen Service (FOS) determination.  It is clear, however, that the respondent was required by the FOS determination to credit the loan by a specified amount and not to charge any further interest, and thereafter only sought to recover the amount limited by the FOS determination, less any payments made by the applicant.  The respondent’s position was set out in its letter to the applicant dated 9 July 2020. 

13. In all of these circumstances, no basis has been raised to call into question the capacity of the respondent to pursue possession proceedings on a summary basis, or to undermine the order made by the Master. 

14. Whilst the issues raised are of obvious importance to the applicant, he has identified no arguable error and it is not in the interests of justice to grant leave to appeal.  Indeed, the applicant requires an extension of time and, in these circumstances, there is no utility in granting an extension. 

15. The appeal is dismissed.

16. We make an order for costs in favour of the respondent fixed in the amount of $1,500.