Henderson v Thackray - [2012] WASCA 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HENDERSON -v- THACKRAY [2012] WASCA 197

CORAM: NEWNES JA
MURPHY JA

HEARD: 18 SEPTEMBER 2012

DELIVERED : 11 OCTOBER 2012

FILE NO/S: CACV 68 of 2012

BETWEEN: KIM HENDERSON
First Appellant
SUSAN JANE HENDERSON
Second Appellant
AND
JAMES GERARD THACKRAY
First Respondent
SHAUN ROBERT FRASER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :JAMES GERARD THACKRAY and SHAUN ROBERT FRASER (As joint and several receivers and managers of Bonthorpe Pty Ltd) (Receivers and managers appointed) -v- HENDERSON [2012] WASC 237
File No  :CIV 1487 of 2012

Catchwords:

Civil procedure - Appeal against summary judgment - Application for a stay - Application to have appeal struck out - Mortgage of properties

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
First Respondent           :     Mr T O Coyle
Second Respondent      :     Mr T O Coyle

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
First Respondent           :     Lavan Legal
Second Respondent      :     Lavan Legal

Case(s) referred to in judgment(s):

James Gerard Thackray and Shaun Robert Fraser (as joint and several receivers and managers of Bonthorpe Pty Ltd) (Receivers and managers appointed) v Henderson [2012] WASC 237
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
National Australia Bank Ltd v Joyce [2012] WASC 224
Palmer v Permanent Custodians Ltd [2009] VSCA 164
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

Introduction

There are two applications before the court. One is an application brought by the appellants for a stay and to join a third party. The appellants filed this application on 9 August 2012 and it is supported by affidavits sworn by the second appellant dated 8 August and 2 September 2012. The former affidavit annexed the second appellant's affidavit of 21 June 2012, upon which the appellants had relied in the primary court.
The other application is brought by the respondents, dated 5 September 2012, for an order that the appeal be dismissed pursuant to pt 5 r 43(2)(g) or that the grounds of appeal be struck out pursuant to pt 5 r 43(2)(f) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The respondents rely upon the affidavits filed in the matter below.
There was an oral hearing on 18 September 2012, in connection with which the parties had filed and served written submissions. In addition to the written submissions, the appellants have, since the hearing, provided one email and a letter containing further submissions, the contents of which have been carefully considered.

Summary of the dispute

This appeal arises out of certain orders made in favour of the respondents, by way of summary judgment against the appellants with respect to three parcels of land - a farm property in York which had been farmed by the appellants, and two lots in Shadforth, near Denmark, in the broader subdivision of which the appellants had been involved.
The three properties had (allegedly) been mortgaged to secure certain debts and the respondents (allegedly) were appointed receivers and managers after certain (alleged) defaults. In broad terms, the respondents (the receivers) had commenced proceedings seeking, inter alia, orders that the appellants give up possession of the York property, and not interfere with the sale of the York property or the other two lots. They applied for and, in general terms, obtained summary judgment in that regard. However, the master declined summary judgment on certain aspects of the receivers' claims.

The claim in the proceedings below

In their statement of claim, in the proceedings below, the receivers alleged, in effect, the following.
Bonthorpe Pty Ltd (Bonthorpe) owned certain properties. The appellants were the directors of Bonthorpe and conducted a farming business on its properties. The National Australia Bank Ltd (NAB) had provided Bonthorpe with various loan facilities, totalling over $8 million. Security for the loans was provided with mortgages over a number of properties, including a property in York (the York property) and property in Shadforth, Denmark (which was later subdivided). There were also charges, including a fixed and floating charge made on or about 28 November 2005 over all of Bonthorpe's assets and undertakings. The charge contained terms that a default under any of the loan agreements also constituted a default under the charge. The mortgages contained terms to the effect that in the event of default, NAB could appoint receivers who would be entitled, inter alia, to sell the York property and the Shadforth property.
From 30 June 2009, Bonthorpe defaulted and a default notice was issued on or about 21 October 2009.
By Deed of Extension dated 15 February 2010, NAB agreed temporarily to forebear from taking steps to recover the money it was owed. Under the deed, Bonthorpe and the appellants acknowledged that Bonthorpe was in default, NAB was immediately entitled to enforce its securities and Bonthorpe and the appellants had no defence, set‑off or counterclaim in relation to the finance agreements or the moneys owed to NAB. Bonthorpe and the appellants agreed to pay all outstanding moneys by 12 April 2010.
Bonthorpe and the appellants failed to make payment in accordance with the Deed of Extension.
Another notice of default was sent on 5 May 2010, requiring Bonthorpe to rectify the default by 18 May 2010. That default notice was not complied with and the receivers were appointed as receivers and managers of Bonthorpe on 18 May 2010.
By a Licence Agreement made on 18 May 2010, the receivers then granted the appellants a licence to occupy the York property. On 25 July 2011, the appellants provided vacant possession of the York property to the receivers. The receivers took steps to sell the properties and sold all of the properties except the York property and two lots in Shadforth.
The appellants, in February and March 2012, nevertheless obstructed the receivers in their attempts to sell the York property and, in effect, resumed possession of the York property and refused to vacate it. The receivers also alleged that the appellants had written to the selling agents demanding that the agents cease to undertake any activities for the sale of the York and Shadforth properties. The receivers, in their writ, claimed:
(1)delivery of possession of the York property by the [appellants];
(2)an injunction restraining the [appellants] from:
2.1hindering the [receivers] from taking and maintaining possession of the York property;
2.2making statements to the [real estate agents] or any other persons to the effect that the [receivers] are not entitled to possession of, and to market and sell the York property, or any statements to that effect; and
2.3making any comments denying the validity of the [receivers'] appointment as receivers and managers of the [mortgaged] properties.
The receivers applied for summary judgment. The receivers' application was supported, principally, by an affidavit sworn by Mr Thackray, one of the receivers, dated 30 May 2012. Mr Thackray, in effect, deposed to the matters pleaded in the statement of claim. He also provided evidence of outstanding balances under the various loan facilities. Reference was also made at the hearing to an affidavit by Mr Butler, solicitor for the receivers, sworn 27 June 2012.
The application was resisted by the appellants, who relied upon an affidavit by the second appellant sworn 21 June 2012.

The hearing before Master Sanderson

The matter was heard before Master Sanderson on 28 June 2012. The receivers were represented by counsel and the appellants appeared with a Mr Freeman, who spoke on the appellants' behalf as a McKenzie friend. Mr Freeman indicated that the appellants were currently unrepresented and were seeking legal representation, which the master interpreted as an application for an adjournment (ts 5 ‑ 6, 11). Mr Freeman also made submissions as to why the matter needed to proceed to a trial, rather than be determined by summary judgment (ts 6, 12). Master Sanderson reserved his decision and said that he would consider three applications. The first was the appellants' application for an adjournment; the second was the receivers' application for summary judgment; and the third, which would only be considered if summary judgment was not given, was the issue of the grant of an injunction (ts 11).

After the hearing

It was common ground before this court that Mr Butler's affidavit was not provided to the appellants until the conclusion of the hearing on 28 June 2012. Various annexures to that affidavit were sent by email to the appellants on the evening of 25 June 2012, but the appellants did not see that email prior to the hearing. They say that they were, at that time, en route to Perth for the hearing on 28 June (ts 39 ‑ 40).
Later, on 28 June 2012, after the hearing, the receivers' solicitors wrote to the master's associate enclosing proposed minutes of order and referring the master to National Australia Bank Ltd v Joyce [2012] WASC 224 (Joyce).
On 2 July 2012 the appellants wrote to the master's associate, denying the relevance of Joyce and enclosing a 'defence and counterclaim'. This document appears to include a summary of certain matters raised by Mrs Henderson in her affidavit of 21 June 2012, and raises certain additional matters (which reflect certain matters also raised in the appellants' submissions to this court, which are thereby addressed below).

Master Sanderson's reasons - 3 July 2012

Master Sanderson delivered his reasons on 3 July 2012. He said that the receivers had included the documentation relating to the loans and the security, and had deposed to the belief that there was no arguable defence to the claim. Master Sanderson then examined in detail the matters raised by Mrs Henderson in her affidavit of 21 June 2012 (although he made no reference to the 'defence and counterclaim'). He found that the affidavit consisted of irrelevant or meaningless documents and allegations which were unsupported by any evidence. Master Sanderson concluded that the appellants had no defence to the claim. His reasons were published as James Gerard Thackray and Shaun Robert Fraser (as joint and several receivers and managers of Bonthorpe Pty Ltd) (Receivers and managers appointed) v Henderson [2012] WASC 237.In his reasons at [37] ‑ [38] the master said:
Having examined the defendants' evidence in some detail and setting it against the evidence led on behalf of the plaintiffs, it is clear the defendants have no defence to this claim. To my mind, there would be no useful purpose served in granting an adjournment. Nor would there be any utility in ordering further discovery.
It is important to bear in mind the relief sought by the plaintiffs is quite limited. It is for the delivery up of the [York] property. There can be no question about whether the plaintiffs are entitled to possession of that property. They clearly are. Nor can there be any question about the rights of the plaintiffs to go about their receivership unhindered. There is sufficient evidence to suggest the defendants are hindering the plaintiffs in the conduct of the receivership. The plaintiffs are entitled to an order preventing any further interference from the defendants.

The master's orders

The master ordered that the appellants provide unrestricted access to the York property and to the two properties in Shadforth and refrain from interfering with the receivers' possession and sale of such properties. He also ordered the appellants to leave forthwith the York property and remove their personal belongings from it. He also gave leave to the appellants to defend the action in relation to pars 2.2 and 2.3 of the statement of claim.

The appeal to the Court of Appeal

The appellants appealed Master Sanderson's decision by notice of appeal dated 6 July 2012. On 9 August 2012, the appellants filed an application, with a book of documents entitled 'affidavit', for the following:
1.An extension of 28 days to file the appellants' case for appeal.
2.To join NAB as a third party to the proceedings below and to this appeal.
3.A stay of the orders made by Master Sanderson pending determination of the appeal.
4.An order that any property owned by Bonthorpe not be sold pending the determination of the appeal.
5.An order that the appellants be allowed to return to the farm property at York pending the determination of the appeal.
6.An order that the receivers pay the appellants' costs of the application and of the appeal.
On 27 August 2012, Pullin JA made an order extending the time for the appellants to file and serve the appellants' case to 4 September 2012. His Honour ordered that the balance of the application be listed for hearing on 6 September 2012. This left points 2 to 6 (above) to be considered. On 6 September 2012 the applications were adjourned to 18 September 2012.

The appellants' case

The appellants' case was filed and served on 4 September 2012. There are 54 grounds of appeal. The grounds can be distilled into the following categories of complaint:
1.The appellants were denied natural justice in that they were denied the opportunity to obtain legal representation (grounds 1 and 53).
2.The master denied the appellants the opportunity to be heard, erred in allowing Mr Butler's affidavit to be received into evidence, and erred in disallowing an adjournment (grounds 2, 12 and 48).
3.The receivers were not lawfully appointed as the notices of demand were invalid and the charge and mortgages were invalid (grounds 3, 6, 19, 23 and 26).
4.The receivers and/or the bank had engaged in fraud, misleading and deceptive conduct, defamation and had unclean hands, and the bank was guilty of undue influence, unconscionable conduct and misrepresentation (grounds 5, 8, 9, 17, 27, 31, 33, 50 and 54).
5.The master erred when he ordered summary judgment when he should have allowed for the discovery of documents (grounds 7 and (in part) 48).
6.The master made certain errors in relation to a complaint to the Financial Ombudsman (grounds 11, 12, 13, 14 and 38).
7.The master erred in failing to find that the receivers' solicitors had a conflict of interest in that they also acted for NAB and that there had been a resultant denial of natural justice (grounds 15 and 16).
8.The master erred in failing to find that the NAB debt had been discharged by the payment of a bill of exchange drawn in the sum of $1 and in failing to find that as a result, NAB owed the appellants $44 million (grounds 18, 28, 29, 30, 32 and 44).
9.The master made certain errors of fact or law (grounds 10, 20, 24, 25, 34, 43 and 45).
10.The master erred in failing to find, in effect, that the receivers had not produced evidence which showed that NAB had valid mortgages over the subdivided lots in Shadforth, Denmark (ground 36).
11.The master erred in law in failing to find that certain alleged errors, including certain clerical errors, did not vitiate the legal effect of the instruments (grounds 35, 39, 40 and 41).
12.The master erred in finding that some expert evidence would be needed to support an allegation of a sale at undervalue, and that even if the evidence were produced, there would be doubts that, under the terms of the receivers' appointment, the appellants would have a right of action (grounds 46 and 47).
13.The deed of extension was defective in that it had not been signed by NAB (grounds 21 and 51).
14.NAB had failed to advise the appellants 'of their rights with regard to provisions for hardship' and had failed to meet its obligations under the National Credit Consumer Act 2009 [sic - National Consumer Credit Protection Act 2009 (Cth)] (grounds 22 and 52).
15.The master erred in his ultimate conclusion that there was no arguable defence to the receivers' action (grounds 4, 37, 42 and 49).

Principles relevant to a stay

A suspension order may be made under s 15 of the Civil Judgments Enforcement Act 2004 (WA). The court also has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal. Pullin JA outlined the relevant legal principles in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] as follows:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.

Part 5 rule 43(2)(f) and rule 43(2)(g)

Part 5 r 43(2)(f) and r 43(2)(g) of the Court of Appeal Rules provide that the court has power:
(f)to strike out any ground of appeal that does not have a reasonable prospect of succeeding;
(g)to dismiss the appeal if -
(i)none of the grounds of appeal has a reasonable prospect of succeeding; or
(ii)the appellant has not obeyed these rules or any order made under them.

The merits of the appeal

We will now examine the merits of the appeal, because such an examination is necessary in order to decide both the appellants' and respondents' applications.
The first two categories of complaint allege, in substance, a denial of procedural fairness. The appellants were not 'denied' legal representation by the master. The appellants had filed an affidavit in response to the application for summary judgment. They had the right to instruct a lawyer to appear for them at the hearing if they wished. They appeared at the hearing without a lawyer, but instructed a McKenzie friend to speak on their behalf. The McKenzie friend made submissions on their behalf. Even if the master erred in the exercise of his discretion not to grant an adjournment in order to give the appellants further time to obtain legal representation, there is no arguably sound basis to interfere with that interlocutory decision. There is no evidence to indicate that the appellants would have secured legal representation had an adjournment been granted, and, indeed, they remain unrepresented.

As to the affidavit of Mr Butler, it was remiss of the receivers' solicitors not to ensure service on the appellants prior to the hearing on 28 June 2012 and it is remarkable that when, at the hearing before the master, they gave the master a hard copy of that affidavit, they did not at the same time (and in accordance with conventional practice) hand a copy to the appellants or the appellants' McKenzie friend. Despite the omission, however, Mr Butler's affidavit was directed, in effect, to 'tidying up' some loose ends and the primary evidence on which the master acted remained that of Mr Thackray. Also, it appears that the appellants had the affidavit after the hearing, including at the time that they wrote to the master subsequent to the hearing, and before delivery of reasons for judgment. Neither at that time, nor since then, has there been any evidence which puts into serious contest the additional documents annexed to Mr Butler's affidavit. Nor is there any evidence to the effect that had an adjournment been obtained, the appellants would have procured additional evidence which raised a triable issue. None of the appellants' evidence in these applications does so. What evidence the appellants did adduce before the master, and the court, has not condescended to particulars. The affidavits generally contain bare allegations unsupported by material facts: Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) 20 (Malcolm CJ); Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113.
The third and fourth categories of complaint contained generalised allegations lacking specificity, save to the extent now mentioned.
The principal allegation made by the appellants is that the charge under which the receivers were appointed was fraudulently altered. The allegation arises from a handwritten alteration to the ASIC form giving notice of the charge dated 28 November 2005. The master referred to this allegation in his reasons at [27] and found that there was a handwritten addition on the front of the notice of a charge to be lodged with ASIC and that it may well have been the case that the handwritten addition was added after the notice was signed. The master said that the legal effect of the charge itself remained the same. The master was correct. The notice was changed to refer to the chargor granting the charge in its personal capacity and in its capacity as trustee. The charge was executed by the chargor in both capacities and the notice was amended to reflect that matter in the form lodged with ASIC. There is no evidence that NAB made fraudulent alterations to the terms of the charge itself.
In the written submissions in support of ground 8 of the appeal, the appellants also allege that the receivers instructed valuers, in relation to the proposed sale of the York property, to disregard extensive and valuable mineral deposits and to disregard the conditional approval for the subdivision of the property. There is no, or no cogent, evidence before this court in that regard and there was no evidence before the master which would raise a triable issue on that ground, even if it were relevant to the claim for possession of the York property.
The appellants also deposed to a conversation with a NAB representative to the effect that NAB's lending was well outside normal guidelines. However, no context is given and, on its own, it did not raise a triable issue, particularly in light of the matters referred to in [34] ‑ [38] below. Further, there was no evidence before the master capable of supplying an arguable defence in relation to other general allegations of fraud, misconduct, undue influence and unconscionable conduct.
Moreover, the York property, the principal subject of the master's orders, was dealt with by the parties and NAB under the Deed of Extension and the Licence Agreement. There is no evidence that those documents were procured by fraud or would be voidable in equity. The Deed of Extension was dated 17 February 2010. It was executed by Bonthorpe and by the appellants. The deed recited that the customers (including the appellants and Bonthorpe) were in default and that NAB was entitled to enforce its securities. It also recited that NAB was immediately entitled to exercise its rights against the customers pursuant to the facilities and the securities. It further recited that NAB had agreed, at the request of the customers, to permit the continued operation of the facilities and temporarily to forebear from enforcing its rights in respect of the defaults pursuant to the securities. The operative terms included (cl 2) acknowledgements by the customers of:
(a)the provision of specified facilities, including an overdraft account 46‑163‑0865 for $1.5 million (see page 302 of Mr Thackray's affidavit read with page 91), and a market rate account 59‑576‑5503 for $335,000 (see page 302 read with page 91 of Mr Thackray's affidavit);
(b)the existence of securities, including the mortgage over the York property; and
(c)their default under the facilities.
Provision was also made for forbearance by NAB (cl 3), and the customers warranted that they had had the opportunity to obtain independent legal advice as to the nature, effect and extent of the deed, and had signed the deed in the presence of the solicitor as indicated in the attached certificates (cl 6). Attached to the deed were certificates of 'Independent Advice' signed by a solicitor.
The certificates were given in respect of each of the appellants and Bonthorpe. At the hearing before this court, the appellants accepted that they had obtained independent legal advice in relation to the Deed of Extension but contended that their solicitor had not properly advised them.
The Licence Agreement recited that the receivers had been appointed as receivers and managers of Bonthorpe on 18 May 2010, that the receivers intended to sell the property by auction during early November 2010, and that the receivers had agreed to permit Bonthorpe to grant a licence to the appellants to use and occupy the property on the terms set out in the licence. The property with which the licence deals is the York property. By cl 2, Bonthorpe granted the appellants a licence to occupy the property commencing on 18 May 2010 and ending on 17 November 2010. The Licence Agreement provided for early termination in certain circumstances (cl 6) and for holding over (cl 7). Clause 9 provided that at the conclusion of the licence, the appellants were to vacate the property, hand over the keys and other security devices to the receivers, conclude all agricultural activities on the property and return possession of the property to allow the receivers to take over the property. By cl 15, the appellants acknowledged that the receivers entered into the Licence Agreement on behalf of, and in their capacity, as receivers of Bonthorpe. There was also an entire agreement clause (cl 15.5). The appellants took advantage of the Licence Agreement by occupying the York property under the terms of the licence, and holding over, until 25 July 2011.
As there was nothing on the material before the master to indicate that these instruments were procured by fraud or were otherwise voidable, there is no arguable error in the master's finding that the receivers were entitled to possession of the York property.
The fifth category of complaint has, in itself, no prospect of success. Discovery would only be allowed if the appellants were otherwise given leave to defend.
The sixth category of complaint concerns the Financial Ombudsman. The master would appear to have been in error (reasons [25]) in finding that the complaint 'was found not to be of any substance'. The material annexed to Mr Butler's affidavit suggests that the Financial Ombudsman Service did not deal with the complaint because it did not regard itself as having jurisdiction. However, there is no arguable error in the master's ultimate conclusion that the evidence before him on this topic did not assist the appellants in providing an arguable defence to the receivers' claims.
As to the seventh category of complaint, it is not apparent why the receivers and NAB could not appoint the same solicitors without the solicitors being in conflict. But even if there were a conflict, it was a matter for NAB and the receivers. It does not provide an arguable defence to the receivers' claims, and the appellants were not denied natural justice in this regard.
The eighth category of complaint is factually and legally incomprehensible, and has not the slightest prospect of success.
As to the ninth category of complaint, the first alleged error (ground 20) concerns the master's reasons at [4]. The master said that the letter of offer of 25 November 2005 was an agreement by which NAB agreed to provide 'three further loan facilities'. The master also said that there were four facilities up to $5 million. This ground does point to an arguable error of fact. The letter dated 25 November 2005 and annexed to Mr Thackray's affidavit (JGT3) appears to refer to two facilities only, totalling $1,085,000. The letter dated 22 November 2005 (JGT2) (referred to by the master at [3]) appears to refer to a facility of $423,000. This, together with the two facilities mentioned above, appears to total $1,508,000. However, the appellants have not denied a substantial indebtedness to the NAB, nor sought to explain how the error could impeach the conclusion that the receivers were entitled to possession of the York property, particularly having regard to the Deed of Extension and the Licence Agreement. Accordingly, there is, ultimately, no arguable error capable of disturbing the master's judgment based on this ground.
Next, (by grounds 10, 24 and 43), it is alleged that there was no evidence to indicate that the appellants were hindering the sale of the York property or that the appellants had fixed a sign to the front gate of the York property stating, in substance, that nobody was entitled to enter the property without the authority of the appellants. No arguable error is disclosed as there was evidence open to the master to make that finding (see pars 29 ‑ 37 of Mr Thackray's affidavit and the annexed copies of emails, a photograph and reports). Further, the master was correct in stating that even if part of the appellants' conduct may have been explicable, this did not answer all the matters raised by the receivers. Nor does such explanation justify the appellants' other conduct in hindering the receivers.
Next (ground 25) the appellants allege that the master erred in finding that Mr Thackray annexed all the relevant security documentation. The error alleged is that the master failed to find that the receivers had not annexed the 'loan application documents' and 'supporting evidence from the NAB when they approved the loans' (appellants' submissions par 25). The master did not make an arguable error in this regard. It was sufficient for the receivers to provide evidence of the relevant agreements which, they contended, supported their right to possession of the three properties.
Next it is alleged in effect (ground 34), that the master erred in failing to find that certain dates in the statement of claim were incorrect. The ground, and the submissions directed to it, do not identify the alleged erroneous dates. There is nothing to suggest that any alleged incorrect dates in the statement of claim would have raised a triable issue as to the particular claims made by the receivers in the court below.
Next it is alleged (ground 45), that the master erred when he said that the appellants had not attempted to specify any defaults alleged against the receivers, when Mrs Henderson in her affidavit of 21 June 2012, had provided the evidence referred to in [50] below. This point is addressed in the twelfth category, in [51] below.
The tenth category of complaint raises no arguable error. The certificate of title for each of the two Shadforth properties the subject of the master's orders showed that NAB's mortgage No J557224 was registered against each title (see pages 364 ‑ 365 of Mr Thackray's affidavit).
As to the eleventh category, no arguable error is shown.
The twelfth category relates to Mrs Henderson's evidence (pars 86 ‑ 92 of her affidavit of 21 June 2012) to the effect that:
(a)the receivers appointed Elders as selling agents, instead of Mr Denis Davis 'who has the most extensive knowledge in the locality of Denmark' and who had 'offered his services' at a certain rate; and
(b)in the sale of one lot in the subdivision, the receivers had rejected a particular offer and later sold the lot for $12,000 less than the previous offer.
It is unnecessary to determine whether the master erred in finding that these matters lacked cogency in the absence of expert evidence. It is sufficient to note that they did not constitute an arguable defence with respect to the claims for possession of the York property or in respect of the other orders made by the master.
As to the thirteenth category of complaint, there was evidence that the deed was executed by NAB (page 19 of Mr Butler's affidavit). In any event, the deed contained provision for execution by counterparts. The document annexed to Mr Thackray's affidavit showed execution by the appellants. That was sufficient. No arguable error is disclosed.
As to the fourteenth category of complaint, there was no evidence to support those allegations. Moreover, the evidence was that the relevant loans and the securities were entered into prior to the commencement of the National Consumer Credit Protection Act 2009 (Cth). No arguable error is disclosed.
The fifteenth category of complaint is, in substance, a general assertion which must stand or fall on the basis of the other complaints.

Disposition - the receivers' applications

None of the grounds has reasonable prospects of success. The appellants' affidavits filed 9 August and 4 September 2012 do not advance the matter. They do not contain any material which would indicate that the appellants would have an arguable defence to the receivers' claims. In the circumstances, it is appropriate to dismiss the appeal.

Disposition - the stay application and the application to join NAB

In light of the conclusion reached above, it is unnecessary to deal with the application for a stay. However, if the appeal had not been struck out, we would not have granted a stay in any event.
Even if the grounds of appeal were to be regarded as arguable, the appellants' prospects of success would nevertheless be poor. In addition, the following matters would also be highly relevant.
The property is owned by Bonthorpe, and not the appellants. The appellants, on the evidence, were, relevantly, only in possession pursuant to the Licence Agreement. They delivered up possession of the York property on 25 July 2011, before re‑entering the property in 2012. Their course of conduct since 2010 has not revealed any assiduous attempt to assert the alleged rights. Further, it is not suggested that the appellants require the property as a residence as it appears that they have places to reside in Queensland and elsewhere in Western Australia. Also, insofar as the appellants' real complaint is that the receivers will breach their duties on the sale of the properties, there are remedies available should any breach of duty subsequently be established: see Palmer v Permanent Custodians Ltd [2009] VSCA 164 [66].
In relation to the application to join NAB, NAB was not a party before the master and there is no occasion to join it as a party to this appeal.