Gheorghiu v Perpetual Trustees Victoria Ltd
[2007] VSCA 83
•27 April 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6285 of 2006
| CHRISTIAN GHEORGHIU | |
| Applicant | |
| v | |
| PERPETUAL TRUSTEES VICTORIA LTD | Respondent |
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APPLICATION ON SUMMONS
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JUDGES: | ASHLEY and NEAVE JJA |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 13 and 27 April 2007 |
DATE OF JUDGMENT: | 27 April 2007 |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 83 |
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Practice and Procedure – Application for leave to appeal against summary judgment - Application unnecessary – Oral application for enlargement of time to serve Notice of Appeal - Application refused – Proposed appeal hopeless.
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant in person | ||
| For the Respondent | Ms M B Loughnan | Russell Kennedy |
ASHLEY JA:
By summons filed 23 February 2007, Christian Gheorghiu, the defendant to a proceeding brought by Perpetual Trustees Victoria Ltd ("Perpetual"), sought leave to appeal against orders made by a judge of the Trial Division on 9 February 2007, and a stay on the orders pending determination of the proposed appeal. The application for leave to appeal was presumably made under s 17(4)(b) of the Supreme Court Act 1986. See also rule 64.03(3). The application for a stay was made under O 65.25(a), the Court being asked to "otherwise order".
The summons first came on for hearing on 13 April. In the circumstances which I shall later mention, it was adjourned part heard for further hearing and determination today.
Pertinent circumstances
I should first describe the issues as they stood when the plaintiff's summons filed 27 September 2006 was heard by a master and then on appeal by the learned judge below. Largely, but not completely, they were defined by the statement of claim and the defence.
Perpetual commenced the proceeding by writ filed 11 May 2006. It alleged that on 1 September 2005 it provided the applicant with financial accommodation, pursuant to a loan agreement, in an amount of $790,000. This was admitted.
It alleged that the applicant gave security for the loan by a mortgage over the property described in Certificate of Title Vol. 10506 Folio 284, known as 2/7 Karrakatta Street, Black Rock. This was admitted. I pause to say that Interstar Wholesale Finance Pty Ltd acted as mortgage manager for Perpetual in arranging the mortgage. At one point, the applicant said that he had no knowledge, in effect, of Perpetual's existence. But his defence made the pertinent admission.
Next, the statement of claim pleaded that there was a provision that all the loan moneys could be called in in the event of any payment being due and unpaid. This was admitted.
Then the statement of claim pleaded that, on or about 31 March 2006, the applicant was in default of his obligations under the loan agreement and/or the mortgage, arrears of instalments and fees then being about $16,500. This was admitted.
Next, the plaintiff alleged that on 24 April 2006 it served notice requiring payment of arrears by 8 May, failing which it would require payment in full of all moneys loaned. This was admitted.
The plaintiff alleged that the demand was not met. This was denied. But it was not disputed at the hearing of Perpetual’s summons - by which Perpetual sought summary judgment, or otherwise that the defence be struck out.
By its statement of claim, Perpetual sought:
• payment of all moneys owing;
• possession of the property.
The applicant admitted, at the hearing of Perpetual's summons, that the loan moneys remained outstanding and that he could not resist judgment for the money sum. But he resisted the claim for possession. The gist of his resistance, as pleaded, was that the loan and related mortgage had been negotiated with him by a mortgage broker, Claudio Zanelli, the latter acting for Perpetual. Mr Zanelli had represented that he would be allowed sufficient time to sell the property himself, without the need for a mortgagee sale, provided he obtained the best possible price by presenting the property in the best possible condition, and that Perpetual would not seek to recover possession but would await sale by him and apply the proceeds in repayment of the loan. In reliance upon those representations, the applicant alleged, he had entered into arrangements to borrow more, and refurbish the property. But, he asserted, Perpetual now sought to resile from its representation and recover possession. It was estopped from doing so.
I pause to note that Mr Zanelli swore an affidavit in which, in some detail, he rejected the pertinent allegations made by the applicant. I mention this not because the dispute thereby disclosed was adjudged below, or could be adjudged here; but only for sake of completeness and as a matter of balance.
Resolution of Perpetual's summons below
On 1 February this year a master ordered, on the hearing of Perpetual's summons, that Perpetual recover possession of the land, and that the applicant pay it about $875,000 and costs. Evidently, the orders were made on the summary judgment application.
The applicant appealed. His appeal, a re-hearing de novo, was heard and determined by Hansen J on 9 February this year. His Honour dismissed the appeal. He did so on the basis that the facts supported an order for summary judgment.
On 2 March, to complete the picture, the Prothonotary issued a warrant of possession in respect of the mortgaged property. We were told by Perpetual's counsel on 13 April that the Sheriff had been instructed to take possession on 20 April.
Material before this Court on 13 April 2007
The applicant relied, on 13 April, upon an affidavit which he had sworn on 21 March. In it, he considerably expanded allegations about Mr Zanelli's conduct, both generally and in respect of the critical transaction. He also sought to reinforce his contention that Mr Zanelli had acted in that transaction as agent of Perpetual. So far as I can see, this material was readily available before the matter was heard below, and the applicant offered no explanation for not having raised and relied upon it earlier. In the ordinary course, he would encounter difficulty in seeking to rely upon it before this Court.
Perpetual, for its part, placed before the Court, as exhibits to affidavits sworn by Helen Mastos, solicitor, on 2 and 10 April, copies of the pleadings and of the affidavits and exhibits put in evidence below.
Is leave to appeal necessary?
Before addressing developments on 13 April, it is convenient to deal with the question whether the application for leave to appeal was well founded. The order below, effectively giving summary judgment in the plaintiff's favour, is regarded, at least in this state, as a final order.[1] It follows that leave to appeal was unnecessary.
Should the applicant have leave on oral application to enlarge the time in which to serve and file a notice of appeal?
[1]Trade World Enterprise Pty Ltd v Deputy Commissioner of Taxation [2006] VSCA 191 at [8]; Thomson v Deputy Commissioner of Taxation. (Court of Appeal, Brooking and Batt JJA, unreported, judgment 16 June 2000.)
Compare, doubtfully, Schiffer v Pattison (2005) FCA 494 at [58] – [63], where Weinberg J considered that Cox Bros Australia Ltd v Cox (1934) 50 CLR 34, a decision which addressed the old O XIV r 1, arguably still had application in the context of the Rules of the Federal Court.
The applicant, as it turns out, had an appeal as of right. He could have exercised it by serving a notice of appeal within 14 days of 9 February 2007, and then by filing such notice within seven days after service. But, in error, he filed an application for leave to appeal. Not until 27 March did he serve a document headed "Notice of Appeal” on Perpetual. Presumably he then did so on the footing that he did not want to be left without some remedy in the event that his application for leave to appeal proved to be unnecessary. The fact remains, however, that the notice of appeal was served out of time.
On 13 April, Perpetual, fairly having regard to the applicant being unrepresented, did not oppose the Court entertaining an application by Mr Gheorghiu for leave to enlarge the time for service of a notice of appeal; although its counsel submitted that such an application should be rejected. I explained Perpetual’s position to the applicant, and drew his attention to what he must demonstrate if an application to enlarge time was to succeed.
The Court's discretion to enlarge time is a wide one. It must consider whether justice between the parties is best served by granting or refusing the indulgence sought. One relevant circumstance is that the respondent has a vested interest in maintaining its judgment. Other matters for consideration - I do not state them in any order of importance - include the length of and reason for the delay, whether the applicant has an arguable, case and whether there is any prejudice to the respondent.
Developments on and subsequent to 13 April
It is now necessary to refer to what occurred at the hearing on 13 April and to developments since that time. Mr Gheorghiu appeared unrepresented on 13 April. He was obviously and understandably very emotional about his predicament. He said more than once that he wanted the chance to be judged by the people, not by lawyers. He complained about his inability to get legal representation, saying that if he killed someone he would be able to get representation, but that he could not do so in connection with his present civil dispute. He complained also that the actions of Perpetual now prevented him from working as an architect or builder; for he could no longer obtain necessary insurance.
Those matters – important to Mr Gheorghiu – apart, the gist of what he said, as I understand it, was this: His first dealings with Perpetual and Mr Zanelli pertained to re-financing a loan in connection with an eight-unit development at Bonbeach which he, as an architect and builder, was undertaking. That property was already the subject of a loan for $3.3 million, secured by mortgage. He was seduced by Mr Zanelli, acting for Perpetual, and by Perpetual's "Lo Doc" loan scheme, to terminate his existing loan, this involving a $90,000 early settlement payment to the lender, in order to take up a loan of $3.7 million, secured by mortgages over the units, with Perpetual. $300,000 of that $3.7 million represented capitalised interest. He was led into this re-arrangement of his finances by Mr Zanelli, who told him that he had clients who would buy the completed units for $700,000 each.
Then, as I understand what Mr Gheorghiu said on 13 April, Mr Zanelli, manager of Gladiator Finance, allegedly as agent for Perpetual, approached him again, it having become clear that the $300,000 capitalised interest would be insufficient to meet loan repayments before the units were sold. He, Mr Gheorghiu, was persuaded to pay out an existing loan over his Black Rock home and to take a new loan with Perpetual in a much larger amount, $790,000 as against $400,000, in order to fund payments of interest on both the Bonbeach units and the Black Rock home until the former were sold. The much larger loan, secured by a mortgage over the Black Rock property, was one that he could never have serviced, as Mr Zanelli and Perpetual knew. In the event, when the units were sold, in all for $4.4 million, he got nothing, and was further left to pay GST on the sales; whilst he could not service the debt on his Black Rock property and so fell into arrears.
I pointed out to Mr Gheorghiu that almost nothing of what he had told us had been alleged by his defence. The only issue which had been raised was the allegation that Mr Zanelli, on behalf of Perpetual, had told him that in the event of his defaulting on loan repayments he would have an opportunity to sell the Black Rock property before the right of repossession was exercised. But, being concerned that Mr Gheorghiu as an unrepresented litigant should have a very full opportunity to state his case, we adjourned the hearing to this day and gave him a further opportunity to obtain legal advice, to re-plead his defence, and to go on affidavit further as he might desire.
What has happened since 13 April is this: Mr Gheorghiu has filed a proposed amended defence, and Perpetual has filed an affidavit, sworn by Helen Mastos on 24 April, deposing as to the disposition of the Black Rock loan moneys. The proposed amended defence first differs from its predecessor in that Mr Gheorghiu seeks no longer to admit that Perpetual agreed to provide advances pursuant to the Black Rock loan agreement as pleaded by Perpetual. It did not represent, he seeks to assert, the true agreement between Perpetual and himself. The explanation for this altered position is to be found in paragraphs 3 to 13 of the proposed pleading, which read as follows:
"3.Claudio Zanelli as a mortgage broker, was acting as agent for the Challenger Mortgage Management Pty Ltd ABN 72 087 271 109 a company controlled by the Respondent.
Particulars
Claudio Zanelli called upon me uninvited and told me that he had funds of his own in a trust fund to invest and would advance those funds to my company Archirom Investments Pty Ltd (ACN080 083 816) so that it could pay out its existing lender, La Trobe Capital Corporation Ltd and the whole loan would be cheaper and better for my company. He did not ever tell me about the respondent.
4.Further, Claudio Zanelli had prepared the mortgage application forms for the Applicant to sign. Included, was a statement that the Applicant’s income was $459,200 and the value of the Applicants home property was valued at $960,000 which income and property values were known to Claudio Zanelli to be false.
5.As a consequence of the false application the loan was approved when it should have been refused. Had the loan been refused, the Applicant would have avoided all of his loss and damage.
6.Claudio Zanelli, as agent for the Respondent, misrepresented the Loan Agreement to me and introduced me to execute the Loan Agreement by making false promises to me.
Particulars
Claudio Zanelli and [sic] told me that my units were of high quality and were valuable and that if Archirom Investments Pty Ltd changed its loan to his company, it would not need to sell its 8 Units at Bonbeach at a price less that [sic] $700,000 each. Further, he promised to me that he would introduce investors to me who would buy my units for prices not less that [sic] $700,000 each.
7. The promises of [sic] were false and misleading.
Particulars
aI was not able to find purchasers of the Units at prices of $700,000 or more; and
bClaudio Zanelli did not introduce any investors to me.
8.As a result, the money budgeted for the payment of interest was exhausted and Archirom Investments Pty Ltd defaulted in the loan repayments.
9.Claudio Zanelli then told the Applicant that he would need to borrow additional funds secured on the Applicant’s home. He further told the Applicant that if the Applicant did so he would ensure that the Applicant had additional time to sell the units at the best possible price and all of the borrowed funds would be repaid from the sale proceeds. Further, Claudio Zanelli confirmed again to the Applicant and this time also to the Applicant’s wife that he was the manager of Interstar Wholesale Finance Pty Ltd, and that he had control over all of the activities of that company.
Particulars
The Applicant’s wife asked him what would happen if the applicant could not pay the repayments on the loan. He replied ‘I am the manager of Interstar. I have got my own money in a trust. I manage the trust. I will take care of you and I will not allow the sale of the house but if worse came to worse, I will give you plenty of time to sell the property for the best price.’
10.Based upon the promises of Claudio Zanelli, the Applicant entered into the Loan Agreement.
11.The promises of [sic] made to the Applicant and his wife before the Applicant executed the Loan Agreement were false.
Particulars
When I received the Notice of demand for [sic] the Respondent, I telephoned to remind him of his promises, but he told me that he could not help as our loan account had been taken out of his hands. Further, Claudio Zanelli did not control Interstar Wholesale Finance Pty Ltd as it was a company controlled by the Respondent.
12.As a result of the false promises made by Claudio Zanelli which induced the Applicant to enter into the Loan Agreement, the Applicant has suffered loss and damage amounting to $1,330,000.
Particulars
aRefinance by Archirom Investments Pty Ltd from LaTrobe to Challenger the company suffered penalty interest and fees of $400,000
bLoss on sales of Units $700,000
cRefinance of loan on Applicant’s home $230,000
dTotal loss and damage $1,330,000
13.The Applicant claims that his loss and damage be set off against the amount owing under the Loan Agreement.”
Paragraphs 3 to 8 appear to relate to the refinancing of the Bonbeach units; and paragraphs 9 to 13 to the Black Rock loan.
Otherwise by his proposed amended defence, the applicant seeks to admit - subject to an asserted right of set-off - default in making payments on the Black Rock loan, and service upon him of notice of demand. Then his proposed defence departs from the numbering of the statement of claim. Probably, the applicant seeks to deny indebtedness - on the footing that he has a set-off; and to deny the plaintiff's asserted right to go into possession.
The proposed amended defence. What should be done about it?
Counsel for Perpetual submitted today, I thought with some asperity, that Mr Gheorghiu had been permitted by this Court to roam far and wide in seeking to make out a new case. The Court was not focusing upon the merits or otherwise of an appeal on the case as it had been pleaded, argued and decided below. In any event, counsel submitted, the material upon which Mr Gheorghiu now sought to rely was not new material. It had long been known to him, and he had provided no explanation for not having previously advanced a case in reliance on that material.
For my part, the prospect of a man no longer young being put out of his home and his profession, in circumstances where his private company, and then he, made large borrowings, those borrowings on his account having been engineered by a finance broker whom he sought to argue was the agent of the lenders, there being an alleged commonality of mortgage manager, and lenders which were likely interrelated, was a prospect which should cause the Court to carefully consider all potentially relevant material, and the use to which the applicant might legitimately put it. Particularly that is so where the applicant was unrepresented, and where refusal of enlargement of time within which to appeal from an adverse summary judgment would spell the end of the litigation. If I had considered that the matters sought to be pleaded by Mr Gheorghiu were of any revealed substance, a question would have arisen whether he should have been precluded from relying upon them, because they would turn on evidence long since available and known to him. In my opinion, however, those matters and the evidence which could support them are insubstantial, and the applicant should be refused leave to rely upon the proposed amended defence. I should say why that is so.
First, paragraphs 3 to 8 relate to refinancing the Bonbeach property. Central to the proposed defence is the allegation that Mr Zanelli acted as the agent of Challenger Mortgage Management Pty Ltd, a company controlled by Perpetual. But probably the lender in respect of the Bonbeach property was Perpetual Trustee Company Ltd, not the plaintiff in the present litigation. In any event, the defence could have no traction unless Mr Zanelli had been the agent of the mortgage manager subject to the alleged control of Perpetual; and on that point, I consider - see later in these reasons - that his case falls down.
Second, building upon the allegations which I mentioned a moment ago, Mr Gheorghiu sought to complain that Mr Zanelli completed a false loan application, one that should have been rejected if the real facts be known. So, the argument ran, because no loan should have been made, Mr Gheorghiu would have avoided all of his loss and damage.
But that case could not hold up. At the time when Mr Gheorghiu's private company refinanced the Bonbeach property, it already had a very large borrowing and was paying a high rate of interest. The units, according to Mr Gheorghiu, had by then been completed. But certainly none of them had been sold when the refinancing occurred, which seems to have been in late 2004; so there was still need for a loan, desirably at lower interest. Moreover, there seems to have been a need to meet future interest payments. Capitalisation of interest, as occurred, made sense.
Next, by the time that the Black Rock property was refinanced by Perpetual, Mr Gheorghiu's financial position seems to have been extremely difficult for reasons other than the refinancing of the Bonbeach property. Contrary to what he told us on 13 April - that is, that borrowings on the security of Black Rock as at August 2005 were about $400,000 - there were in fact two mortgages over the Black Rock property at that time, securing amounts which totalled about $650,000.[2] Moreover, as Mr Gheorghiu deposed at paragraph 5 of his affidavit sworn 8 December 2006, before re-financing through Perpetual he had attempted to extend his existing borrowing with the Commonwealth Bank, but had been rebuffed. One can accept that by August 2005 he might have needed additional money to meet payments on the Bonbeach loan; but only a small fraction of the money which he had borrowed on the security of the Black Rock property from Perpetual could have gone in that direction.
[2]Mr Gheorghiu conceded that he had made a mistake in telling the Court, on 13 April, that the borrowings as at August 2005 were only $400,000.
Third, I turn to that part of the proposed case which rested in the first place upon alleged representations by Mr Zanelli that the Bonbeach units were of high quality, were valuable, that if the applicant's company changed its loan to “his company” it would not need to sell any unit for less than $700,000, and that he, Zanelli, would introduce investors to buy the units at not less than $700,000 each. According to the proposed defence the applicant - rather, his company - was thereby induced to refinance of the Bonbeach property.
That part of the applicant's proposed case sought to make Perpetual responsible for the making of the loan on the basis that Mr Zanelli was not simply the agent of the lender, but that the lender was Perpetual. Exhibits 5 to 8 to the plaintiff's affidavit sworn 21 March this year show, however, as I mentioned a little earlier, that the lender was probably Perpetual Trustee Company Ltd. So, even if Mr Zanelli had acted as agent for the lender in respect of the Bonbeach re-financing, and even if, utterly improbably, his agency could have extended to making the alleged representations, and even if, utterly improbably, Mr Gheorghiu had been induced by those representations to take out a loan which was otherwise desirable, it would take him nowhere.
Resolution of the application to extend time
I should then consider the application to extend time to appeal having regard to the case as it was pleaded, argued, and determined below. In my opinion, the discretion to extend time should not be exercised in the applicant's favour.
Plainly enough, the application is only necessary because the unrepresented applicant made an error as to what process was necessary in order to instigate an appeal. So also is his failure to take the appropriate step within time explained. Those circumstances run in his favour; for if he had exercised his right of appeal, his appeal would have been heard and determined in due course, however weak the basis of the appeal might appear to be. Then, as to prejudice, if the applicant was permitted to appeal, Perpetual might be kept out of its money, or at least possession of the mortgaged property. It would all depend on the disposition of an application for a stay on the orders made by Hansen J. But, even on a worse case for Perpetual, its security would remain in statu quo, no doubt appreciating the while. Any delay, I add, would not much alter prosecution of a trial were an appeal to succeed. Mainly the trial would be a matter of documents; whilst Mr Zanelli's account of events is already on affidavit.
That takes me to what I regard as the decisive consideration with respect to the application. In my opinion, any appeal would be hopeless.
First, as Hansen J concluded, and as my reference to the pleadings and the concessions by the applicant shows, no defence to Perpetual's money claim has been disclosed.
Second, the claim for possession is resisted, according to the defence, by reliance on an estoppel. The estoppel would depend upon proof of at least three circumstances: that Mr Zanelli was the agent of Perpetual and not the applicant; that the account of the representations was sufficiently precise to found an estoppel; and that the representations had not already been acted out. In my opinion, the alleged estoppel unarguably would fall down at each point.
As to the first of them, the question whether a finance broker is the agent of the borrower rather than of the financier in a particular case depends upon the circumstances of the matter. We were referred to cases in which it has been said that ordinarily a finance broker is the agent of the borrower.[3] I mention also Custom Credit Corporation v Luff.[4] Those cases did not establish a binding principle that a broker cannot be the agent of the financier. But a broker is not constituted the agent of the lender only because he promotes the lender’s “product”, arranges for the execution of documents, takes other steps to enable the smooth processing of the loan application, or receives commission from the lender.[5]
[3]Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284 and Custom Credit Corporation Ltd v Lynch [1993] 2 VR 569.
[4]Unreported, Full Court, 27 November 1990.
[5]Morelend at 508 per Fullagar J, and see also Custom Credit at 486-487 per Marks J.
In the present case the defence simply referred to Mr Zanelli as the "representative" of Perpetual. No circumstances were alleged as would establish that Mr Zanelli had been Perpetual's agent. But, in his affidavit sworn 20 October 2006, the applicant deposed that Mr Zanelli -
"said words to the effect that he was not just in the position of a standard finance broker but that he represented Interstar, and that, via his business Gladiator Finance, he would actually manage the Interstar loan on Interstar's behalf. He said that this then allowed him to be in a position to make decisions regarding the repayment terms and enforcement of the loan. He said that as he would be managing the loan I would deal directly with him and so that if I was unable to keep up with the loan repayments he would give me plenty of time to organise my affairs and sell the Black Rock property on my terms (which included selling at the best possible price and presenting the property in the best possible condition) without there being a need for Interstar to follow up and take possession and sell the property as mortgagee."
and –
“He again told me that as he would be managing the loan on behalf of Interstar he would be able to in effect ‘look after me’ if I did fall behind – to allow me to sell the Black Rock property, if necessary, under my own terms.”
Perpetual put in evidence a Loan Origination and Management Agreement made between two Interstar companies, Mr Zanelli and his partner. Its content was quite inconsistent with Mr Zanelli being the agent of Interstar, and derivatively of Perpetual, in his dealings with the applicant in connection with the Black Rock property.
Hansen J said this concerning the alleged agency:
"In my view, the point is barely arguable, if at all, on the oral statements of Zanelli set out in the defendant's affidavit and I think it is not arguable on the documents. When I say 'barely' arguable if at all on the affidavit of Mr Zanelli, I mean that the statement of Zanelli, that he was not in the position of a standard finance broker, but represented Interstar and that his business, Gladiator Finance, would actually manage the loan on Interstar's behalf, is equivocal at best. In my view, the mere reference to “managing” is to be understood in the overall context of what is said by the defendant in that affidavit which clearly indicates that he is the person for the defendant to deal with, but that would not establish that Zanelli was the agent for the plaintiff in making the statements set out in the defence or his affidavit and in particular, for the purpose of binding the plaintiff to it as an estoppel."
I respectfully agree. I would add that there seems to be no evidence from which it could be concluded that Perpetual did anything, known to the applicant, to suggest, when the Black Rock loan agreement was made, that Mr Zanelli was acting as its agent.
I go to the second matter which I mentioned a little earlier: want of necessary precision in the alleged representation. A representation must be unambiguous. At best for a representee, the position is that, even if the language can possibly be open to different interpretations, it must be such as will be reasonably understood in a particular sense by the representee.[6] According to the defence, as I earlier noted, the representation was this:
" … that the [applicant] would be allowed sufficient time to sell the property himself without the need for a mortgagee sale, provided he obtained the best possible price by presenting the property in the best possible condition, and that [Perpetual] would not seek to recover possession of the property and would await sale of the property and apply those proceeds in repayment of the loan."
[6]Paraphrasing Low v Bouverie [1891] 3 Ch 82 at 106, per Bowen LJ, in a passage frequently cited with approval.
In his affidavit sworn 20 October 2006, however, the applicant deposed to somewhat different effect. I refer to the two passages which I set out at [43].
To my mind, the alleged representation, varying in content, was altogether too imprecise to be accounted unambiguous. Was it a representation that the applicant would have sufficient time to sell before Perpetual repossessed, or a representation that Perpetual would stand by until the applicant made a sale, whenever that might occur? If the representation was of the former kind, what was the length of the “sufficient time”? By whom was sufficiency of the elapse of time to be assessed? Again, was the permitted sale by the applicant simply to be “under [his] own terms”, or on terms that the best possible price be obtained by him, presenting the property in the best possible condition, or on the applicant's terms which included selling at the best possible price and presenting the property in the best possible condition? If it was the last of those alternatives, what was included in the applicant's “own terms” other than the matters specified?
I go to the third aspect of difficulty with the alleged estoppel. Unless the alleged representation was that Perpetual would never exercise its right to repossess and sell, it was a representation that sufficient time be given to the applicant in which to effect the sale. The material shows that the applicant began to default in making loan repayments in December 2005. According to his affidavit sworn 20 October last year, it became clear to him in about January 2006 that the property would have to be sold in order that the loan be repaid. He put the property on the market. He made improvements so as to achieve the best possible sale price. The property went to auction on 25 February 2006, but did not sell. Since then it had remained on the market. There had been a prospective sale at $750,000, but Interstar had refused to permit it. Apparently, I interpolate, there was disagreement between the applicant and Interstar about the disposition of the proceeds of sale: see paragraph 5 of the affidavit of Andrea Preece sworn 20 November 2006.
Out of the circumstances just outlined, it seems to me impossible to argue that, if a “sufficient time” representation was made by Mr Zanelli on behalf of Perpetual, it was not adhered to.
There are other difficulties with the alleged estoppel. They were mentioned by Hansen J in his reasons at [22]-[23]. I respectfully agree with what his Honour there said.
So, as I said earlier, leave to enlarge time to serve a notice of appeal should be refused. But what if I was wrong in concluding that the case was one in which leave to appeal need not have been sought? For the sake of completeness, I should say that in my opinion the practical result should have been no different. Applying the considerations described in Neimann v Electronic Industries Ltd,[7] the application should have been refused on the basis that it had not been shown that the orders below were wrong or attended with sufficient doubt to warrant a grant of leave.
[7][1978] VR 431. See also King v Lintrose Nominees Pty Ltd and Ors (2001) 4 VR 619 at 629, [27].
Also for the sake of completeness, I add a postscript. It is my provisional view that, had time to bring an appeal been enlarged, or, if applicable, had leave to appeal been granted, there should have been no stay on the orders made by Hansen J. The money amount was surely owed and, except on a wholly improbable view of the content of the alleged representation, Perpetual was not to be shut out for a long period from exercising its power of repossession and sale.
NEAVE JA:
I would also refuse the application to enlarge time for the appeal. For the reasons given by Ashley JA, I agree that the appeal would be hopeless.
ASHLEY JA:
The orders that the Court will make are these:
1. The application for leave to appeal made by summons filed 23 February 2007 is dismissed as incompetent.
2. The oral application for enlargement of time within which to file and serve notice of appeal is dismissed.
3. The summons filed 23 February 2007 is otherwise dismissed.
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