Haughton v Australia and New Zealand Banking Corporation
[2021] SASCA 128
•28 October 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
HAUGHTON v AUSTRALIA AND NEW ZEALAND BANKING CORPORATION
[2021] SASCA 128
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Bleby)
28 October 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
MORTGAGES - ESTATE, RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE - POSSESSION
MORTGAGES - MORTGAGEE'S REMEDIES - POSSESSION
The applicant seeks leave to appeal against a possession order made by an Auxiliary Master of the Supreme Court on 15 August 2019 granting the respondent possession of a property in Lonsdale of which the applicant was the registered proprietor and the respondent mortgagee. The applicant's previous appeal against the order was dismissed by a Judge of this Court. The applicant sought leave to appeal the Judge’s decision to the Full Court, but leave was refused.
The applicant now seeks leave to appeal against the Auxiliary Master’s order (the new appeal), for the second time, contending that fresh evidence has emerged that shows fraud on behalf of the respondent.
Held, refusing an extension of time to file the notice of appeal:
1.The new appeal is incompetent because it purports to institute a second appeal against the decision of the Auxiliary Master, despite a first appeal being dismissed by a single Judge of this Court.
2.There is no fresh evidence and nothing to otherwise justify a second appeal. The appeal is incompetent and without merit.
Law of Property Act 1936 (SA) s 55A; Royal Style and Titles Act 1973 (Cth); Uniform Civil Rules 2020 (SA) rr 212(a), 213(1), referred to.
Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198; Haughton v Australia & New Zealand Banking Group Ltd [2020] SASCFC 14; Commonwealth Bank of Australia v Haughton [2020] SASC 135; Commonwealth Bank of Australia v Haughton (No 2) [2020] SASC 187; Commonwealth Bank of Australia v Haughton (No 3) [2020] SASC 199, considered.
HAUGHTON v AUSTRALIA AND NEW ZEALAND BANKING CORPORATION
[2021] SASCA 128Court of Appeal – Civil: Livesey P and Bleby JA
THE COURT:
Introduction
The applicant, Peter Scott Haughton, seeks leave to appeal against a possession order made by an Auxiliary Master of the Supreme Court on 15 August 2019. On that date, the Master made an order granting the respondent possession of a property in Lonsdale (the property) of which the applicant was the registered proprietor and the respondent mortgagee. The applicant previously appealed this order to a Judge of this Court and was refused permission to appeal the Judge’s decision to the Full Court of the Supreme Court.[1]
[1] See Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198 (Kelly J); Haughton v Australia & New Zealand Banking Group Ltd [2020] SASCFC 14 (Kourakis CJ, Nicholson and Lovell JJ).
Today Mr Haughton raised issues similar to those addressed in the Commonwealth Bank of Australia v Haughton litigation.[2]
[2] See, eg, Commonwealth Bank of Australia v Haughton [2020] SASC 135; Commonwealth Bank of Australia v Haughton (No 2) [2020] SASC 187; Commonwealth Bank of Australia v Haughton (No 3) [2020] SASC 199.
The new appeal ignores the decisions of the Judge and the Full Court and seeks to reagitate the appeal against the order of the Auxiliary Master out of time. For the reasons that follow, the notice of appeal is liable to be struck out as incompetent and there is no basis on which the applicant might be given permission to appeal.
Background
On 8 April 2014, the applicant and the respondent entered into a loan agreement pursuant to which the respondent granted the applicant a business facility with a $1 million limit, secured by way of a registered mortgage over the property. On 6 November 2018, the respondent served the applicant with a notice of default pursuant to s 55A of the Law of Property Act 1936 (SA). Upon the applicant’s failure to comply with the notice, the respondent filed a summons seeking an order for possession on 29 January 2019. Following a hearing, the Auxiliary Master made an order for possession on 15 August 2019. On 25 September 2019, the applicant filed a notice of appeal which was heard by a single Judge of this Court on 6 November 2019.
On appeal, the applicant contended that he was not bound by the loan agreement because he did not complete it personally, although he did not suggest that he had not signed the loan application (the fraud claim). The applicant also contended that the respondent had breached the Code of Banking Practice by relying on a grossly overstated value for the mortgaged property, although he adduced no evidence before the Auxiliary Master to support this claim.
Finally, the applicant advanced a number of “constitutional” arguments relating to the validity of Australian legislation following the enactment of the Royal Style and Titles Act 1973 (Cth), which he claimed was invalid. The Judge found that the applicant had failed to demonstrate any error in the Auxiliary Master’s reasons and dismissed the appeal.[3]
[3] Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198, [24], [32]-[33],[39] (Kelly J).
The applicant subsequently sought permission to appeal the Judge’s dismissal of his appeal to the Full Court of the Supreme Court. That application was dismissed by the Full Court after the Court found that it the application was “devoid of any merit”.
The applicant now seeks to pursue a second appeal against the Auxiliary Master’s orders.
The new appeal
On 7 September 2021, the applicant filed another Notice of Appeal, purporting to appeal the Auxiliary Master’s possession order of 15 August 2019. By this new Notice of Appeal, the applicant raises one ground of appeal, which appears to be an attempt to reagitate the fraud claim:
The Fraudulent Loan Application Form is identical as outlined by Banking & Finance Consumers Support Association Senate Economics Standing Committee and the Banking Royal Commission.
Putting aside the fact that this Court has already heard (and dismissed) an appeal by the applicant against the Auxiliary Master’s order, this new appeal is plainly out of time.
Striking out the appeal
As the Auxiliary Master’s order is a decision under Chapter 19, Part 11 of the Uniform Civil Rules 2020 (SA) (Uniform Civil Rules), an appeal lies to a single Judge of this Court.[4] Leave to appeal is required by r 213(1) of the Uniform Civil Rules. The new appeal is incompetent because it purports to institute a second appeal against the decision of the Auxiliary Master, despite the dismissal of the first appeal. The appellant appealed the Judge’s dismissal of his appeal to the Full Court, which again found that there was no discernible error in the Auxiliary Master’s decision and, accordingly, no error by the Judge in dismissing the appeal.
[4] Uniform Civil Rules 2020 (SA), r 212(a).
The only explanation offered by the appellant as to why a second appeal is justifiable is that he had a “[c]hance meeting of the handwriter of the Fraudulent Instrument Mrs Katie Scholes, where [the appellant] was told it was hers”. This is not fresh evidence and does not suggest error in the decision of the Auxiliary Master. It does not justify a second appeal.
As the appeal is incompetent and without merit and represents an abuse, there is no utility in granting an extension of time, and no basis upon which to grant permission to appeal. The orders of the Court are:
1.The application for an extension of time to file the notice of appeal is refused.
2.The respondent is to have its costs of the appeal paid by the applicant, fixed in the amount of $1,500.
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