Haughton v Australia & New Zealand Banking Group Ltd

[2020] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

HAUGHTON v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD

[2020] SASCFC 14

Judgment of The Full Court

(The Honourable Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)

27 February 2020

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES

Application for permission to appeal against an order made by a Judge of this Court, dismissing an appeal against an order of an Auxiliary Master giving the respondent possession of certain land owned by the applicant over which it held a mortgage.

Held by the Court, refusing permission to appeal:

1.  The Judge properly dismissed the grounds of appeal.  The application for permission to appeal is devoid of any merit.

Law of Property Act 1936 (SA) s 55A; Royal Style and Titles Act 1973 (Cth), referred to.
Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198, discussed.
Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260; Petrie, Trustee of the Property of Aitken (Bankrupt) v Aitken [2019] FCCA 16; Sill v City of Wodonga [2018] VSCA 195, considered.

HAUGHTON v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
[2020] SASCFC 14

Full Court:  Kourakis CJ, Nicholson and Lovell JJ

1. THE COURT:     This is an application for permission to appeal against an order made by a Judge of this Court (the Judge) dismissing an appeal against an order of an Auxiliary Master giving the respondent, Australia and New Zealand Banking Group Ltd (the ANZ), possession of certain land owned by the appellant, Mr Haughton, over which it held a mortgage.[1] The mortgage secured a business credit facility that had a $1,000,000 limit, which the ANZ granted to Mr Haughton, under a loan contract dated 8 April 2014. On 6 November 2018, the ANZ served Mr Haughton with a notice of default pursuant to s 55A of the Law of Property Act 1936 (SA). On Mr Haughton’s failure to comply with the notice, the ANZ filed a summons seeking an order for possession on 29 January 2019. After hearing argument, the Auxiliary Master made an order for possession on 15 August 2019.

   [1]    Haughton v Australia and New Zealand Banking Group Ltd [2019] SASC 198.

2. On 25 September 2019, Mr Haughton filed a notice of appeal, which was heard by the Judge on 6 November 2019.  The Judge dismissed the appeal and delivered reasons on 22 November 2019.

3. On 5 December 2019, Mr Haughton made an application for permission to appeal against the order for dismissal.  Mr Haughton has filed a lengthy affidavit in support of the application.  It is not possible to discern in that material any rational ground of appeal or any particular error which it is contended was made by the Judge.  It is necessary, therefore, to consider the reasons given by the Judge for dismissing Mr Haughton’s appeal from the Auxiliary Master.

4. Mr Haughton contended before the Judge that he was not bound by the loan agreement because he did not complete it personally.  However, Mr Haughton never claimed that he had not signed the loan application.  That ground was, therefore, bound to fail and was properly dismissed by the Judge.

5. Mr Haughton also claimed that the ANZ had breached the Code of Banking Practice by relying on a grossly overstated value for the mortgaged property.  The Auxiliary Master concluded that the material adduced by Mr Haughton did not establish the alleged breach.  Importantly, the Auxiliary Master noted that, in any event, a breach of the Code would give Mr Haughton no more than an action in damages and would not impugn the validity of the mortgage.  That ground was also bound to fail.

6. Finally, Mr Haughton advanced certain ‘constitutional’ arguments related to the validity of Australian legislation following the enactment of the Royal Style and Titles Act 1973 (Cth) which, he claimed, was invalid. The Auxiliary Master and the Judge noted that similar arguments have been dismissed in a number of interstate authorities, as well as in a decision of the High Court of Australia.[2]  Those contentions were also bound to fail.

   [2]    See, e.g., Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260; Petrie, Trustee of the Property of Aitken (Bankrupt) v Aitken [2019] FCCA 16; Sill v City of Wodonga [2018] VSCA 195.

7. The application for permission to appeal is devoid of any merit.  We dismiss it.