Foundas v Australian Central Credit Union

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…