Hayes v Westpac Banking Corporation - [2015] QCA 260

SUPREME COURT OF QUEENSLAND

CITATION:

Hayes v Westpac Banking Corporation & Anor [2015] QCA 260

PARTIES:

THOMAS PATRICK HAYES
(appellant)
v
WESTPAC BANKING CORPORATION
ABN 33 007 457 141
(first respondent)
BALMAIN NB COMMERCIAL MORTGAGES LIMITED TRADING AS BALMAIN COMMERCIAL BN 98174824 (NSW) (A Firm)
ACN 074 619 980
(second respondent)

FILE NO/S:

Appeal No 2869 of 2015
SC No 7887 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 24 February 2015

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2015

JUDGES:

Chief Justice, Philippides JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. The appellant must pay the costs of each of the first and second respondents of the appeal.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where appellant was sued on a guarantee by the first respondent – where appellant counterclaimed against the first and second respondents – where trial was delayed by illness and absence of the appellant – where trial judge refused appellant’s application for a further adjournment – where trial judge then gave judgment in favour of first and second respondents – where order giving effect to the judgment had been filed – where appellant applied for an order setting aside the judgments against him pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld) after the order had been filed – where primary judge dismissed the application to set aside the order – where appellant appeals on the ground the primary judge should have followed the decision in McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 – whether the decision in McIntosh should be followed

Acts Interpretation Act 1954 (Qld), s 14, s 38
Uniform Civil Procedure Rules 1999 (Qld), r 7, r 661, r 667

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13, considered
McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152; [2008] QCA 410, not followed
WMJ Attractions Pty Ltd v Ireland [2008] QSC 167, considered

COUNSEL:

P A Kronberg for the appellant
E J Goodwin for the first respondent
S S Monks for the second respondent

SOLICITORS:

The appellant appeared on his own behalf
Allens for the first respondent
Minter Ellison for the second respondent

HOLMES CJ: I agree with the reasons of Mullins J and the orders she proposes.

PHILIPPIDES JA: I agree with the orders proposed by Mullins J for the reasons stated by her Honour.
MULLINS J: Westpac Banking Corporation sued Mr Hayes on a guarantee which he had given in favour of Westpac in respect of the indebtedness of Funk Road Developments Pty Ltd under a loan made to it by Westpac. Mr Hayes counterclaimed against Westpac based on allegations of misleading conduct by silence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCA 260
Decision Date: 4 December 2015

CaseChat Overview and Summary

Hayes v Westpac Banking Corporation is an appeal against the dismissal of an application to set aside judgments entered in favour of Westpac Banking Corporation and Balmain Commercial. The applicant, Mr Hayes, had been sued on a guarantee and had counterclaimed against both respondents. The trial was delayed due to the applicant’s illness and absence, which led to the trial judge refusing a further adjournment application. Consequently, the trial judge delivered judgment in favour of Westpac and Balmain Commercial. Mr Hayes subsequently applied for an order setting aside the judgments under r 667 of the Uniform Civil Procedure Rules 1999 (Qld) after the orders had been filed. The primary judge dismissed the application, leading to this appeal on the basis that the primary judge should have followed the decision in McIntosh v Linke Nominees Pty Ltd.

The central legal issue in this appeal was whether the primary judge should have adhered to the decision in McIntosh v Linke Nominees Pty Ltd when considering the application to set aside the judgment. Mr Hayes contended that the primary judge erred by not extending the time for the application under r 7 of the UCPR, as per the McIntosh decision. Westpac and Balmain Commercial argued that the decision in McIntosh should not be followed and that the primary judge’s decision should be upheld. The appeal also questioned the discretionary grounds on which the primary judge refused the application, including the applicant's reasons for not attending the trial and his intention to engage a barrister.

The Court of Appeal found that the primary judge did not err in dismissing the application to set aside the judgments. The Court held that the McIntosh decision was not binding and should not be followed in this context. The Court also found that the primary judge appropriately exercised his discretion in refusing the application on the grounds that Mr Hayes had not provided sufficient justification for the delay in filing the application and had not shown a reasonable prospect of success on the merits. The Court of Appeal concluded that the primary judge’s decision was correct and dismissed the appeal.

In accordance with the outcome, the appeal was dismissed, and Mr Hayes was ordered to pay the costs of the appeal to both Westpac and Balmain Commercial.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant must pay the costs of each of the first and second respondents of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

By application filed on 4 February 2015, Mr Hayes sought an order pursuant to either r 667(1)(b) or r 667(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) to set aside the judgment against him given in favour of Westpac and Balmain Commercial. That application was dismissed by the learned primary judge on 24 February 2015 and Mr Hayes was ordered to pay the costs of both Westpac and Balmain Commercial. Mr Hayes appeals against these orders. The first ground of appeal is the primary judge erred in law in not following the ratio decidendi of the decision of the Court of Appeal in McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 in respect of extending time pursuant to r 7 of the UCPR. Other grounds of appeal concern the decision to refuse the application on discretionary grounds, including the primary judge erred in not accepting Mr Hayes’ reasons for not attending at the trial on 3 November 2014 and failure of the primary judge to give sufficient weight to Mr Hayes’ expressed intention to engage a barrister for the continuation of the trial. Both Westpac and Balmain Commercial have filed notices of contention seeking to contend that the decision should be affirmed on the basis that the decision in McIntosh is wrong and should not be followed.The decision of Peter Lyons J In order to put the dismissal of the r 667 application in context, it is necessary to refer to the circumstances that resulted in Peter Lyons J’s decisions. The proceeding had commenced on 23 July 2009. On 31 July 2012 the trial had been set down to commence on 3 December 2012. That was adjourned on 15 November 2012. The matter was then set down for trial on 2 December 2013 and commenced on that day. On 13 December 2013 the trial was adjourned to 14 April 2014, but did not resume until 8 May 2014. On 22 May 2014 the trial was adjourned to 20 October 2014 for a hearing of three weeks. The trial did not resume until 29 October 2014, as Mr Hayes had undergone eye surgery on 20 October 2014. There had been 24 whole or partial sitting days by 3 November 2014. When the trial was adjourned on 31 October 2014, Peter Lyons J directed that if Mr Hayes wished to apply for any further adjournment of the hearing, he had to provide details by email sent by 5 pm on 1 November 2014 of the adjournment he was seeking and the grounds upon which he sought the adjournment. He was also directed to serve on the other parties written medical evidence that he relied on in support of any application for a further adjournment and that any medical practitioner be available for cross-examination at a time to be arranged by Mr Hayes, but no later than 12.30 pm on 3 November 2014. A direction was also made that Mr Hayes be at liberty to appear in person or by telephone on 3 November 2014. The solicitors for Westpac were directed on how to communicate the substance of those directions to Mr Hayes. On 31 October 2014 Westpac’s solicitors emailed Mr Hayes a draft order that set out the directions made by Peter Lyons J on that date.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hayes v Westpac Banking Corporation & Anor [2015] QCA 260
PARTIES:	THOMAS PATRICK HAYES (appellant) v WESTPAC BANKING CORPORATION ABN 33 007 457 141 (first respondent) BALMAIN NB COMMERCIAL MORTGAGES LIMITED TRADING AS BALMAIN COMMERCIAL BN 98174824 (NSW) (A Firm) ACN 074 619 980 (second respondent)
FILE NO/S:	Appeal No 2869 of 2015 SC No 7887 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 24 February 2015
DELIVERED ON:	4 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2015
JUDGES:	Chief Justice, Philippides JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. The appellant must pay the costs of each of the first and second respondents of the appeal.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where appellant was sued on a guarantee by the first respondent – where appellant counterclaimed against the first and second respondents – where trial was delayed by illness and absence of the appellant – where trial judge refused appellant’s application for a further adjournment – where trial judge then gave judgment in favour of first and second respondents – where order giving effect to the judgment had been filed – where appellant applied for an order setting aside the judgments against him pursuant to r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld) after the order had been filed – where primary judge dismissed the application to set aside the order – where appellant appeals on the ground the primary judge should have followed the decision in McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 – whether the decision in McIntosh should be followed Acts Interpretation Act 1954 (Qld), s 14, s 38 Uniform Civil Procedure Rules 1999 (Qld), r 7, r 661, r 667 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13, considered McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152; [2008] QCA 410, not followed WMJ Attractions Pty Ltd v Ireland [2008] QSC 167, considered
COUNSEL:	P A Kronberg for the appellant E J Goodwin for the first respondent S S Monks for the second respondent
SOLICITORS:	The appellant appeared on his own behalf Allens for the first respondent Minter Ellison for the second respondent