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Hou v Westpac Banking Corporation

Hou v Westpac Banking Corporation

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Case Copied 8 April 2015 30 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2015 0007

QIN QIN HOU AND SAVVAS KANAKARIDIS

WESTPAC BANKING CORPORATION

S APCI 2015 0008

QIN QIN HOU

WESTPAC BANKING CORPORATION

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 April 2015
DATE OF JUDGMENT:	8 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 57
JUDGMENT APPEALED FROM:	[2014] VSC 606 (Warren CJ)

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MORTGAGE RECOVERY – Applications for leave to appeal – Summary judgment pursuant to ss 61 and 63 of Civil Procedure Act 2010 granted by Associate Justice – Appeal to Trial Division – Nature of appeal pursuant to r 77.06.9 of Supreme Court (General Civil Procedure) Rules 2005 – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Hou	Mr S Kanakaridis in person
For the Applicant Kanakaridis	In person
For the Respondent	Mr S Hay	Gadens Lawyers

WHELAN JA
BEACH JA:

Two proceedings were issued by Westpac Banking Corporation (‘Westpac’), one against Qin Qin Hou (who we will refer to as ‘Ms Hou’), and one against her and her partner, Savvas Kanakaridis, in December 2010. For reasons which we will explain, summary judgment applications issued in September 2011 in those two proceedings were not heard and determined until April 2014. Judgment was given in favour of Westpac on each of those summary judgment applications. Ms Hou and Mr Kanakaridis appealed to the Trial Division of this Court under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’). That appeal was heard on 19 August 2014 by the Chief Justice. In a judgment delivered on 5 December 2014 those appeals were dismissed.[1]
[1]Hou v Westpac Banking Corporation [2014] VSC 606 (‘Reasons’).

There are three applications now before the Court in each proceeding. Ms Hou and Mr Kanakaridis seek:

·extensions of time in which to file applications for leave to appeal from the orders made 5 December 2014;
·a stay of the orders that have been made against them; and
·leave to appeal from the orders made by the Chief Justice on 5 December 2014.

The application for extension of time

Affidavits have been sworn by Ms Hou and Mr Kanakaridis deposing to the fact that they attempted to file documents seeking leave to appeal within time but, because of errors in the documents which the Registry required to be corrected, they had to be re-cast and re-submitted. As a consequence, the applications for leave to appeal were filed approximately 10 days late.

Ms Hou and Mr Kanakaridis are representing themselves. As we indicated during the course of the hearing, we consider that they should have an extension of time in which to apply for leave to appeal and we will make orders accordingly in each proceeding.

Applications for a stay

In the course of the hearing before us counsel for Westpac indicated that steps to enforce the judgments which had been obtained had not been taken and would not be taken if the applications for leave…

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] VSCA 57
Decision Date: 8 April 2015

CaseChat Overview and Summary

In the matter of Hou v Westpac Banking Corporation, the dispute arose from the defendant's application for summary judgment under sections 61 and 63 of the Civil Procedure Act 2010, which was granted by an Associate Justice. The plaintiff, Hou, sought leave to appeal the decision of the Associate Justice, arguing that there were genuine issues to be tried. The matter was heard in the Trial Division of the Supreme Court, which had to decide whether the Associate Justice's decision to grant summary judgment was correct and whether leave to appeal should be granted.

The primary legal issue before the court was whether the Associate Justice had correctly exercised their discretion in granting summary judgment, particularly whether there were genuine issues to be tried. The court needed to consider whether the plaintiff had raised any triable issues or if the defendant had established that there were no triable issues. The court also had to determine whether the plaintiff had demonstrated sufficient grounds to appeal the Associate Justice's decision.

The Trial Division held that the Associate Justice had properly exercised their discretion in granting summary judgment. The court found that the plaintiff had not raised any genuine issues to be tried, and the defendant had effectively demonstrated that there were no triable issues. The Trial Division further held that the plaintiff had not shown any grounds that would warrant leave to appeal the Associate Justice's decision. Consequently, the court dismissed the plaintiff's appeal and upheld the decision of the Associate Justice to grant summary judgment.

The Supreme Court refused the plaintiff leave to appeal the decision of the Trial Division, thereby upholding the Associate Justice's grant of summary judgment. This conclusion resulted in the dismissal of the plaintiff's appeal without any further orders.

Orders