GPS First Mortgage Services Pty Ltd v Clay & Clay

[1998] QCA 23

[1998] QCA 023

COURT OF APPEAL

McPHERSON JA
PINCUS JA

MOYNIHAN J

Appeal No 157 of 1998

GPS FIRST MORTGAGE SERVICES PTY LTD	Appellant
and
JAMES WAIN CLAY and
LARAINE EILEEN CLAY	Respondents

BRISBANE
..DATE 04/02/98
040298 T16/JB M/T COA4/98
MOYNIHAN J: The applicant seeks an extension of the time in
which to seek leave to appeal from the decision of a
District Court Judge for leave to appeal and to have the
substantive appeal disposed of.

The decision that is the origin of the applications was a decision by a District Court Judge to give unconditional leave to mortgagors to defend a mortgagee;s action for recovery of possession.

It is necessary to seek an extension of the time in which to apply for leave because, for no particularly satisfactory reason, an application for leave was not made to a District Court Judge during the time for bringing of an appeal. It is, of course,, true that this Court has a discretion to extend the time and to deal with the application for leave.

The applicant complains about two aspects of the proceedings, one as it occurred before the District Court Judge and the other as a consequence of subsequent events.

The first complaint is that the District Court Judge failed to consider section 95 of the Property Law Act 1974 and failed to impose terms as to the granting of leave. The District Court Judge heard argument and delivered a short extempore judgment granting, as I have said, leave to defend.

At the conclusion of the extempore judgment for the firs
time the applicant's representative raised the issue or the
040298 T16/JB M/T COA4/98
issues in relation to the imposition of terms. The District
Court Judge declined to deal with the matter saying that
notice would have to be given to the respondent.

I should have thought that it was, as a matter of practicality, late in the day to be raising the issue. There is, however, another aspect to it. We have been told that the terms which it was sought to have imposed were terms that the principal and interest owing under the mortgage be brought into Court or otherwise secured and it was accepted or conceded by counsel for the applicant before us that that application would not have been successful or could not have been sustained and what was contended for here was for an order that the outstanding instalments be secured rather than the principal debt and outstanding interest.

The position therefore is that the application for leave is late for what I have said is no particularly satisfactory reason. It is founded on the consequences of a failure by the applicant's representative below to canvass the issue in a timely way and it is clear enough that had the application been made it would have either failed or, if successful, have been unsustainable.

The other aspect which is relied on as founding the application for special leave is that the District Court Judge reached conclusions including that the respondents were willing to pay the outstanding instalments and, since the matter was determined by her, have not done so. Now, 040298 T16/JB M/T COA4/98

there is no doubt that this Court would not lightly accept a situation where it was established, by subsequent events, that a Judge has been misled so as to act on a basis disadvantageous to someone in the applicant's position. It is however clear enough that the considerations which arise as a consequence of the subsequent non-performance are tied up with the resolution of the issues which led the District Court Judge to grant leave.

The circumstances being as I have mentioned, there is no question of general importance in relation to the construction and application of section 95 of the Property Law Act. The circumstances are those specific ones to which I have referred.

In my view there is nothing which demonstrates it would be appropriate to grant leave and the difficulty in relation to the application for an extension of time, taken in combination with that, has the consequence that in my view the application for an extension of time to seek leave to appeal from the decision below should be refused with costs.

McPHERSON JA: I agree.

PINCUS JA: I agree.

McPHERSON JA: The application is dismissed with costs.

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