Giovanni Notte and Barbara Notte v JULIE Maree Notte and Allen Notte
[2017] WADC 121
•15 SEPTEMBER 2017
GIOVANNI NOTTE & BARBARA NOTTE -v- JULIE MAREE NOTTE & ALLEN NOTTE [2017] WADC 121
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 121 | |
| Case No: | APP:20/2017 | 1 SEPTEMBER 2017 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 15/09/17 | |
| PERTH | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal struck out | ||
| PDF Version |
| Parties: | GIOVANNI NOTTE & BARBARA NOTTE JULIE MAREE NOTTE & ALLEN NOTTE |
Catchwords: | Practice and procedure Requirements of Appeal Grounds Powers of registrar Whether the grounds in the Appeal Notice comply with rules Whether any information presented to the court could be articulated in a satisfactory ground of appeal |
Legislation: | District Court Rules 2005 r 57(1), r 57(2) and r 55(3)(f) |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellants
AND
JULIE MAREE NOTTE & ALLEN NOTTE
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : HIS HONOUR MAGISTRATE COCKRAM
File No : MI 535 of 2014
Catchwords:
Practice and procedure - Requirements of Appeal Grounds - Powers of registrar - Whether the grounds in the Appeal Notice comply with rules - Whether any information presented to the court could be articulated in a satisfactory ground of appeal
Legislation:
District Court Rules 2005 r 57(1), r 57(2) and r 55(3)(f)
Result:
Appeal struck out
Representation:
Counsel:
Appellants : In person
Respondents : Mr S Leslie
Solicitors:
Appellants : Not applicable
Respondents : Zafra Legal
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HEWITT: Proceedings between the appellant and the respondent were concluded in the Magistrates Court on 8 March 2017 by the order of his Honour Magistrate Cockram. The proceedings concerned a claim and counterclaim between the appellant and the respondent and the decision delivered by his Honour was that both the claim and the counterclaim should be dismissed.
2 On 30 March 2017 the appellants filed a notice of appeal. The grounds of appeal upon which they relied were as follows:
1. Taking into consideration the findings of his Honourable Magistrate Cockram, we find that the amount of overpayments made by mistake from the 29 June 2008 to the 22 November 2013 and the 55K bank cheques paid by us to the Respondents it would be unjust at our expense to be retained by the Respondents.
2. After I paid the Respondents 10K in Feb. & 45K in May 2008, Mortgage IO26932 was discharged by the Respondents in 2008, the Respondents refinanced their financial affairs with the ANZ Bank in 2008 and further refinanced with BOQ in 2012. We were not advised of the refinancing because it was not in our interest to know, however if the Respondents believed Mortgage IO26932 was not paid by us, then we had every right to know the Respondents intention to refinance and for the Respondents to up hold their fiduciary obligations to us and raise a variation in the deed.
3. Julie Notte verbally instructed Barbara Notte from August 2008 to November 2013 to make payments to ANZ and then in 2012 to BOQ. Barbara made 157 repayments at $300 per fortnight in total. Barbara Notte bought it to my attention on the 22 December 2013, being the day of my mother funeral, I immediately told Barbara not to make any further payments as I had paid the mortgage in full in 2008. Paragraph 5 of his Honour introduction it states: By reference to recital D, cl 10 reads: 'At all times, the Defendants shall continue to pay all amounts outstanding under the registered mortgage No IO26932 against lot 181 from time to time'. Mortgage No 26932 was discharged in August 2008 and Lot 181 ceased its existence and became Lot 444, in fact Barbara Notte had been paying the Respondents personal and business Mortgage.
4. Paragraph 95 of His Honour findings, His Honour says, the repayments of the Mortgage amount to the ANZ and BOQ were to the benefit of the Appellants. Further, the repayments avoided the possibility of foreclosure by ANZ and BOQ for payment arrears on lot 181. In 2008 lot 181 ceased its existence, its existence was from 1987 to 2007, in our unwillingness to amalgamate our lot 134 with the shared lot 181 we helped the Appellants achieve their own title to their 4 acres of lot 181, where otherwise it would not have been possible, had we not agreed, today lot 181 would still be in existence and the land would be in joint ownership. After the amalgamation we were given 2 new lot numbers, lot 443 to the Appellant and lot 444 to the Respondent. Because of lot 181 becoming Mortgage free and did no longer exist we did not expect to pay any further money to the Respondents due to our sacrifice by amalgamating our lot 134 to help the Respondent achieve their own title. We the Appellants after signing the 2007 Deed realised the Respondents did not do us any favours and agreed to carry on paying Mortgage IO26932 up to 29 April 2008. I (Giovanni Notte) honoured the unjust commitment to the Respondent by paying the Respondent 45K bank cheque on the 29 May 2008 to discharge Mortgage IO26932.
5. Paragraphs 53 and 93 of His Honours findings should be taken into consideration. One shall not unjustly profit at the expense of another. We are seeking to recover monies paid under mistake of fact, is at law. 1. The enrichment. 2. That the enrichment was obtained at the Appellant expenses. 3. The enrichment (or its retention) is unjust. The monies were paid by mistake, and the recipient had knowledge of the mistake. The payments were procured dishonestly and wrongfully. The payments were made by mistake, and it would be unjust or unconscionable for the Respondents to retain the money. We seek to recover all monies paid by mistake.
3 The appeal appears to have been filed out of time but the procedural requirements in order to obtain leave to proceed out of time do not appear to have been addressed by the appellant at that stage. The matter came before Deputy Registrar Kubacz on 6 June 2017. The deputy registrar obviously perceived some deficiencies within the notice of appeal and granted the appellant's leave to amend their notice of appeal to include an application for an extension of time within which to appeal and to redraft their grounds of appeal. She gave until 20 June 2017 for that process to take place and also ordered that the appellants file any affidavit in support of their appeal and the extension of time also by 20 June. The costs order made was that the costs be in the appeal.
4 On 20 June 2017 the appellants filed an amended notice of appeal and the grounds of appeal appearing within that notice are as follows:
1. The Appellants in March 2017 obtained new evidence from the CBA Bank (evidence the Respondent failed to produce at trial) that proves the Respondents did receive the 10K bank cheque given to them by the Appellant's. The Respondents committed perjury at trial by denying receiving the 10K. RE: Is made to His Honourable findings Paragraph's 36 & 37. And also the Manager of Bankwest Tracy Elshaw evidence in paragraph's 27 to 31.
2. The Learned Magistrate erred in Fact and Law. We paid 45K to the Respondents to have Mortgage IO26932 discharged and the Respondents did discharge Mortgage IO26932. After the discharge lot 181 became Mortgage free and we the Appellant did not get any enrichment from the payments made by mistake by Barbara Notte. RE: is made to paragraph 95.
The Deed signed by us in 2007 ended when we paid out Mortgage IO26932 in May 2008 by giving the Respondent a 45K Bank cheque to discharge the said Mortgage IO26932.
5 Additionally the appellants indicated that an extension of time was required and indicated their application for that extension on the appeal form. It will be seen by comparison with the first grounds of appeal and those more recently filed that there was a significant change in the basis from which the appellants pursued their appeal. On 27 July 2017 the respondents brought an application within the appeal seeking the following orders:
1. An order that the appellants pay the respondents' costs of and incidental to, and thrown away by reason of, the striking out of the grounds of appeal to the appeal notice dated 30 March 2017 and by reason of the amendment to the appeal notice and the grounds thereof.
2. The appellants appeal, alternatively application for extension of time to appeal, alternatively proceeding, be dismissed.
3. The appellants pay the respondents' costs of and incidental to these proceedings.
In the alternative to paragraphs 2 and 3
2A. Ground 1 and the first and second sentences of ground 2 of the appellants' amended appeal notice dated 19 June 2017 be struck off.
3A. Within 14 days of the date of these orders the appellants file an affidavit in compliance with District Court Rule 51(2) explaining why the appeal is not commenced within time.
4A. The appellants pay the respondents' costs of and incidental to this application.
6 The provisions of r 51 of the District Court Rules 2005 (WA) (DCR) are relevant to the appeal and r 51(1), (2) and (3) provide as follows:
(1) To -
(a) commence an appeal (other than a WCIMA appeal) to the Court against an appealable decision; or
(b) apply for an extension of time within which to commence such an appeal,
the appellant must file these documents -
(c) a Form 6 (Appeal notice) that sets out the grounds for the appeal in accordance with subrule (3);
(d) any document required by subrule (2).
(2) If Form 6 says an extension of time within which to commence the appeal is needed, the form must be filed with an affidavit by the applicant or the applicant’s lawyer or both explaining why the appeal was not commenced within time.
(3) The grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.
7 Rule 57(1) and (2) are relevant to the powers which I may exercise in determining this application and by r 55(3)(f) I am granted the power conferred on the court under r 57 save for those powers which are contained in pars (h) and (j) of that rule. Included within the power is the power to strike out the appeal.
8 The application which is brought by the respondent seeks firstly that the court recognise the fact that the significant amendments to the grounds of appeal introduced by the amended notice of appeal deserve recognition in terms of a costs thrown away order and secondly that the grounds of appeal as they presently stand on the court record are such that the appeal should be struck out. Additionally the respondents rely on the fact that the appeal was brought out of time and even though the appellants were given an opportunity to make good that situation, they have filed to file an affidavit supporting their application for an extension of time without which the appeal is doomed to fail.
9 Dealing with the latter point first, it is correct that the appeal is out of time but the appellants have gone some distance towards giving effect to the opportunity to seek an extension of time. The appellants are litigants in person and are not well versed, as is obvious from the appearance before me, in the effect of the DCR, the manner in which they are applied and the way of courts generally. With that in mind I gave the appellants an opportunity to explain to me why it was that the appeal was not lodged in time. I am satisfied that if the appellants swore an affidavit setting out the material which was presented to me they would have good prospects of obtaining leave to appeal out of time. I am reinforced in that view by the fact that on my calculations the original appeal notice was only lodged about two hours after the deadline for filing such a document. If that were the only issue I would have no difficulty in giving a further opportunity to the appellants to pursue their application for an extension of time. There are however other issues which require consideration and in particular, I have concerns about the manner in which the grounds of appeal have been articulated. The first ground of the amended notice of appeal concerns what is said to be new evidence obtained from the Commonwealth Bank of Australia which apparently is capable of proving that the respondents did receive a cheque for $10,000 which they denied at trial. Their denial is characterised as perjury in the grounds of appeal. The difficulty which I discern is that whatever the evidence may have been, whatever the facts may have been about the $10,000 bank cheque which is referred to in ground one of the amended grounds of appeal, it had nothing to do with the outcome of the case and the dismissal of the appellant's counterclaim.
10 Point 2 of the amended grounds of appeal is as follows:
The learned magistrate erred in fact and law. We paid $45,000 to the respondent to have mortgage IO6932 discharged and the respondents did discharge mortgage IO6932 after the discharge lot 181 became mortgage free and we the appellant did not get any enrichment from the payments made by mistake by Barbara Notte. RE is made to paragraph 95.
The deed assigned by us in 2007 ended when we paid out mortgage I102693 in May 2008 giving the respondent a $45,000 bank cheque to discharge the said mortgage I owed to 6932.
11 In truth this ground of appeal confuses the respondent's claim against the appellants for recovery of sums paid under the mortgage which was the basis of their claim in the Magistrates Court. It appears to have nothing to do with the counterclaim the subject of the present appeal or the dismissal of that counterclaim.
12 Both the original grounds of appeal and the amended grounds of appeal are drafted in such a way that it is very difficult to understand exactly what is intended to be meant. To the extent that I am able to discern such a meaning, in my view the meaning does not properly articulate a ground of appeal which is capable of success in these proceedings. The grounds of appeal appear to me to deal with peripheral matters which do not go to the heart of his Honour's decision.
13 Despite the impression which I formed of the quality of the notice of appeal, I realise that as a litigant in person without legal training, the appellants were handicapped in their capacity to understand the requirements of the appeal process and to articulate the necessary arguments. Accordingly, I allowed the appellants to address me for a considerable period of time concerning the merits of the appeal in order to discern whether there was in truth a proper basis upon which an appeal could proceed and potentially succeed. Sadly, that process was unavailing and I was unable to identify within the material which I received in the address from the bar table from the appellants anything which in my opinion was capable of forming the basis of a successful appeal. Therefore I have reached the decision that the appeal should be struck out. The issue of the costs of the appeal and costs thrown away which are raised by the application can be dealt with when my decision is handed down.
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