Henderson v Capita Mortgage Pty Ltd - [2022] NSWCA 107

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107
Hearing dates: 6 June 2022
Date of orders: 27 June 2022
Decision date: 27 June 2022
Before: Meagher JA
Decision:
(1) Direct that the appellant (Mr Henderson) have leave to file his amended notice of motion dated 31 May 2022 and that the copy emailed to the Registrar be treated as the filed copy of that motion.
(2) Direct that the copy of the affidavit of the appellant sworn on 30 May 2022 and emailed to the Registrar on the following day be treated as the filed copy of that affidavit.
(3) Order that the notice of appeal filed on 4 April 2022 be struck out.
(4) Order that the appellant pay the respondent’s (Capita Mortgage) costs thrown away in consequence of order 3.
(5) Direct that any application of the appellant for leave to file an amended notice of appeal and any affidavit in support of that application be filed no later than 27 July 2022.
(6) Order that execution of the judgment entered on 22 December 2021 and the orders made on 4 February 2022 be stayed on condition that on or before 27 July 2022 the appellant pays into Court an amount of $170,000 or otherwise provides security in that amount. Unless the Court otherwise orders, in the event that there is no application in accordance with order 5 or in the event that any such application is made and dismissed, the stay of execution should terminate on the later of 27 July 2022 or the date on which the application is dismissed. In the event that such an application is made and is successful, unless the Court otherwise orders the stay of execution is to continue until the final determination of any appeal.
(7) Order that the appellant pay 50% of the respondent’s costs of the appellant’s amended notice of motion dated 31 May 2022 and the respondent’s amended notice of motion filed on 26 May 2022.
(8) Otherwise dismiss each of the motions in order 7.

Catchwords:
APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made for making of application to file an amended notice of appeal
APPEALS – stay of execution pending appeal – where appellant seeks stay of orders for possession and sale of real property – where dispute as to amount of interest and costs recoverable – stay of execution conditional on payment into Court of security

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth)
National Consumer Credit Protection Act 2009 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.8, 51.9, 51.16(1), 51.18

Cases Cited:
Harvey v McWatters (1948) 49 SR (NSW)…

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: [2022] NSWCA 107
Decision Date: 27 June 2022

CaseChat Overview and Summary

In *Henderson v Capita Mortgage Pty Ltd*, the appellant, Mr Henderson, sought to appeal orders made by the primary judge concerning possession and sale of real property. The respondent, Capita Mortgage Pty Ltd, sought to strike out the notice of appeal and for a stay of execution of the primary judge's orders.

The Court of Appeal was required to determine whether the notice of appeal complied with the Uniform Civil Procedure Rules, specifically rule 51.18, which requires an appellant to identify the asserted errors of the primary judge and the challenged facts. The Court also considered the appellant's application for a stay of execution pending the determination of any appeal, and the respondent's application to strike out the notice of appeal.

Meagher JA found that the notice of appeal, consisting of 50 paragraphs of narrative statements, did not identify the asserted errors of the primary judge or the challenged facts, rendering it vexatious and an abuse of process. Consequently, the notice of appeal was struck out. The Court also ordered a stay of execution of the judgment and orders for possession and sale, conditional upon the appellant paying $170,000 into Court as security by 27 July 2022. Directions were made for the appellant to file an amended notice of appeal and supporting affidavit by the same date.

Orders

Orders of the court

(1) Direct that the appellant (Mr Henderson) have leave to file his amended notice of motion dated 31 May 2022 and that the copy emailed to the Registrar be treated as the filed copy of that motion.

(2) Direct that the copy of the affidavit of the appellant sworn on 30 May 2022 and emailed to the Registrar on the following day be treated as the filed copy of that affidavit.

(3) Order that the notice of appeal filed on 4 April 2022 be struck out.

(4) Order that the appellant pay the respondent’s (Capita Mortgage) costs thrown away in consequence of order 3.

(5) Direct that any application of the appellant for leave to file an amended notice of appeal and any affidavit in support of that application be filed no later than 27 July 2022.

(6) Order that execution of the judgment entered on 22 December 2021 and the orders made on 4 February 2022 be stayed on condition that on or before 27 July 2022 the appellant pays into Court an amount of $170,000 or otherwise provides security in that amount. Unless the Court otherwise orders, in the event that there is no application in accordance with order 5 or in the event that any such application is made and dismissed, the stay of execution should terminate on the later of 27 July 2022 or the date on which the application is dismissed. In the event that such an application is made and is successful, unless the Court otherwise orders the stay of execution is to continue until the final determination of any appeal.

(7) Order that the appellant pay 50% of the respondent’s costs of the appellant’s amended notice of motion dated 31 May 2022 and the respondent’s amended notice of motion filed on 26 May 2022.

(8) Otherwise dismiss each of the motions in order 7.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Henderson v Capita Mortgage Pty Ltd [2022] NSWCA 107
Hearing dates:	6 June 2022
Date of orders:	27 June 2022
Decision date:	27 June 2022
Before:	Meagher JA
Decision:	(1) Direct that the appellant (Mr Henderson) have leave to file his amended notice of motion dated 31 May 2022 and that the copy emailed to the Registrar be treated as the filed copy of that motion. (2) Direct that the copy of the affidavit of the appellant sworn on 30 May 2022 and emailed to the Registrar on the following day be treated as the filed copy of that affidavit. (3) Order that the notice of appeal filed on 4 April 2022 be struck out. (4) Order that the appellant pay the respondent’s (Capita Mortgage) costs thrown away in consequence of order 3. (5) Direct that any application of the appellant for leave to file an amended notice of appeal and any affidavit in support of that application be filed no later than 27 July 2022. (6) Order that execution of the judgment entered on 22 December 2021 and the orders made on 4 February 2022 be stayed on condition that on or before 27 July 2022 the appellant pays into Court an amount of $170,000 or otherwise provides security in that amount. Unless the Court otherwise orders, in the event that there is no application in accordance with order 5 or in the event that any such application is made and dismissed, the stay of execution should terminate on the later of 27 July 2022 or the date on which the application is dismissed. In the event that such an application is made and is successful, unless the Court otherwise orders the stay of execution is to continue until the final determination of any appeal. (7) Order that the appellant pay 50% of the respondent’s costs of the appellant’s amended notice of motion dated 31 May 2022 and the respondent’s amended notice of motion filed on 26 May 2022. (8) Otherwise dismiss each of the motions in order 7.
Catchwords:	APPEALS – procedure – where notice of appeal consists of 50 paragraphs in form of lengthy narrative statements which do not identify asserted errors of primary judge or challenged facts (cf UCPR r 51.18) – where most of those paragraphs vexatious and abuse of process – notice of appeal struck out and direction made for making of application to file an amended notice of appeal APPEALS – stay of execution pending appeal – where appellant seeks stay of orders for possession and sale of real property – where dispute as to amount of interest and costs recoverable – stay of execution conditional on payment into Court of security
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) National Consumer Credit Protection Act 2009 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.8, 51.9, 51.16(1), 51.18
Cases Cited:	Harvey v McWatters (1948) 49 SR (NSW)…