Jinman v ANZ - [2017] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master)
JINMAN v ANZ
[2017] SASC 56
Judgment of The Honourable Justice Bampton
11 April 2017
MORTGAGES - ESTATE, RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE - POSSESSION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - MASTERS
Appeal against order for possession made pursuant to Part 17 of the Real Property Act 1886 (SA) – whether the Master erred in finding that the appellant had not raised an arguable case that warranted the ordering of pleadings and referral to trial.
HELD:
1. The Master was not in error in finding that the appellant had not raised an arguable defence.
2. The Bank was entitled to the order for possession made by the Master.
3. Appeal dismissed.
Real Property Act 1886 (SA) s 51A, Pt 17; Supreme Court Act 1935 (SA) s 50; Supreme Court Civil Rules 2006 (SA) r 204, r 280, r 286; Law of Property Act 1936 (SA) s 55A, referred to.
Financial Ombudsman Services Ltd v Utopia Financial Services Pty Ltd [2016] WASC 55; Cromwell Property Securities Ltd v Financial Ombudsman Services Ltd & Ors (2014) 288 FLR 374; Micarone & Anor v Perpetual Trustees Australia Ltd & Ors (1999) 75 SASR 1; Westpac Banking Corporation v Chadha [2012] SASC 223; Corporation of the Town of Moonta v Rodgers & Rodgers (1980) 26 SASR 143, considered.

JINMAN v ANZ
[2017] SASC 56
Appeal from a Master

BAMPTON J: On 18 August 2016, a Master made on order for possession (“the order”) of a residential property pursuant to Part 17 of the Real Property Act 1886 (SA) (“the RPA”). The order required Mr Jinman, who is the registered proprietor of property at 7 Black Hill Road, Cambrai (“Cambrai”), to give up possession of the property to the ANZ Banking Group Ltd (“the Bank”) within 28 days.
Consideration on appeal
Mr Jinman appeals the order pursuant to s 50(2) of the Supreme Court Act 1935 (SA). The exception to r 280(1)(a) of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) provides that an appeal against an interlocutory judgment of a Master is to be heard and determined by a single Judge. Rule 286 provides that on the hearing of the appeal I am to conduct a rehearing and I may, in my discretion, receive further evidence on any question of fact.
Mr Jinman represented himself before the Master and on appeal.
Documents before the Court on appeal
The Bank relies on the following documents:
·Affidavit of Terence Raymond Simpson, Manager of Commercial Collection Services of the Bank sworn on 29 March 2016 (“the Simpson affidavit”).[1]
·Affidavit of Glenn Gotting, Manager of Commercial Collection Services of the Bank sworn on 1 July 2016 (“the Gotting affidavit”).[2]
[1] FDN 3.
[2] FDN 9.
Mr Jinman filed an affidavit sworn on 20 June 2016[3] which alleges a number of defences and cross-claims (“the Jinman affidavit”).
[3] FDN 6.
Mr Jinman has applied to adduce further evidence on appeal by way of two affidavits sworn 18 October 2016 (“the October 2016 Jinman affidavit”)[4] and 29 November 2016 (“the November 2016 Jinman affidavit”).[5] The Bank opposes the admission of these affidavits, asserting that Mr Jinman has not established that the evidence could not, with reasonable diligence, have been obtained for use before the Master or that the evidence would have had any influence upon the result. I received this evidence de bene esse. However, for the following reasons, the matters deposed to in the affidavits do not affect my decision to dismiss the appeal.
[4] FDN 16.
[5] FDN 20.
Factual background
In February 2003, Mr Jinman acquired property at Cambrai in the Murraylands. In 2004, Mr Jinman granted a mortgage to Bank SA to secure a home loan. In 2005, Mr Jinman constructed a house on the property.
In June 2008, Mr Jinman sought finance to purchase a motel business, the Belvedere Motel and Restaurant (“the business”), through a finance broker. Mr Jinman deposes in the Jinman affidavit that he expected that finance would be arranged by December 2008. Mr Jinman says securing finance was subject to numerous delays and poor behaviour by the Bank which he describes as a debacle. During this period the Bank obtained four valuations.
In a letter dated 4 August 2008,[6] the Bank gave Mr Jinman an “indicative proposal” for finance of the business. The proposal stated both the freehold interest in Cambrai and the freehold interest in the business would be required as security for the finance:
The Bank would require a licensed valuation of the Motel Lease on which we would base our valuation (& subsequent borrowings). The valuation would be for your cost.
Our normal criteria are that we would lend up to 50% of the valuation. Based on a valuation of $450,000.00 this would be $225,000.
As such it would then be preferable for the Bank to take a second mortgage over your house/farm to enable the security to be acceptable.
[6] Exhibit PCJ1 to the Jinman affidavit.
The proposal referred to a business loan of $300,000 for the purchase of the business and a $19,900 overdraft. The proposal did not make any reference to the refinancing of the Bank SA loan.
On 11 September 2008, Mr Jinman gave instructions by email to his finance broker to seek the refinancing of the Bank SA loan.[7]
[7] Exhibit PCJ2 to the Jinman affidavit.
On 11 February 2009, a loan application was submitted on Mr Jinman’s behalf which referred to Mr Jinman having placed a value of $350,000 on Cambrai.
On 13 February 2009, the Bank offered Mr Jinman a business loan of $205,000 for the purchase of the business (“the business loan offer of $205,000”). The offer, which did not include the offer of an overdraft, stated that security would be a second ranking mortgage over Cambrai. Under the heading “Other Conditions Precedent” the offer stated that the Bank must also be satisfied of six matters which included:
·satisfactory bank valuation of Cambrai confirming the valuation listed in the loan application; and
·the Bank holding a first registered mortgage over Cambrai “with a maximum loan of $140,000 to be approved by” the Bank.[8]
[8] Exhibit PCJ11 to the Jinman affidavit.
By reference to Exhibit PCJ12 to the Jinman affidavit, the Bank sent a letter to Mr Jinman’s solicitors dated 16 February 2009 confirming that the facility of $205,000 for the purchase of the business had been approved.
Mr Jinman accepted that offer on 23 February 2009 by signing the document titled “Acceptance” attached to the letter of offer dated 13 February 2009 and signing a second ranking mortgage.[9]
[9] Exhibit PCJ11 to the Jinman affidavit.
The transfer of the liquor license for the business to Mr Jinman was approved on 23 February 2009.
Whilst Mr Jinman has not provided details of any contract regarding the purchase of the business it appears he committed to the purchase in early 2009.
By letter dated 27 February 2009, the Bank offered to refinance the Bank SA home loan secured by a first ranking mortgage over Cambrai.[10] The letter offered a loan of $140,000 for the stated Loan Purpose of “Refinance Bank SA”. The letter did not refer to the business loan and stated a date of advance of 13 March 2009.
[10] Exhibit TRS5 to the Simpson affidavit.
Mr Jinman signed the home loan offer and the first ranking mortgage on 3 March 2009 (“the home loan”).[11]
[11] Exhibits TRS2 and TRS5 to the Simpson affidavit.
Mr Jinman alleges that he signed the home loan offer on the condition that the loan of $205,000 would be made. However, he does not allege there was any communication between him and the Bank to that effect.
Settlement under the sale contract for the business was scheduled to take place between 26 February and 3 March 2009 but was delayed. Mr Jinman alleges that all steps for settlement except advance of monies by the Bank occurred on 3 March 2009.
The Bank informed Mr Jinman on 11 March 2009 that it would not proceed with the $205,000 business loan it had offered, explaining that Cambrai had been valued at $230,000 rather than $350,000. Mr Jinman argues that the Bank has therefore breached the agreement for the $205,000 transaction.
The refinancing of the Bank SA loan was completed with the Bank paying out Bank SA on 13 March 2009. The first registered mortgage signed by Mr Jinman on 3 March 2009 was stamped on 12 March 2009 and registered on 30 March 2009.
On 20 March 2009, a replacement business loan application was submitted to the Bank on Mr Jinman’s behalf. This application recorded a value of $230,000 for Cambrai.
By letter dated 24 March 2009, the Bank provided Mr Jinman with a replacement business loan offer of $150,000. A condition of the offer was that Mr Jinman would agree to a second ranking mortgage over Cambrai and also a mortgage over the business leasehold (“the replacement business loan offer”).[12]
[12] Exhibit TRS6 to the Simpson affidavit.
Mr Jinman complains that he was in dire financial circumstances by March 2009 (if not earlier) because of the Bank’s delays and the Bank’s poor behaviour in dealing with his applications for finance and in not providing the $205,000 facility.
Mr Jinman signed the replacement business loan offer on 16 April 2009 (“the business loan”). Mr Jinman alleges that he had no choice but to accept the replacement business loan offer as finance was not available from any other lender, and that he was under duress.
The second mortgage that had been signed on 23 February 2009 was stamped to $150,000 on 1 July 2009 and registered on 3 August 2009.[13]
[13] Exhibit TRS3 to the Simpson affidavit.
The Bank advanced $150,000 for the purchase of the business and Mr Jinman obtained vendor finance for the difference of $55,000.
On 15 July 2009, the Bank established an overdraft account for Mr Jinman.
The mortgages
The mortgages incorporate the memorandum of standard terms and conditions deposited at the Lands Titles Office as 9781985 (“the memorandum”).
Pursuant to cl 7.1 of the memorandum, a default event would occur if Mr Jinman failed to pay any part of the secured money to the Bank on time.[14]
[14] The Simpson affidavit at [15].
Pursuant to cl 7.2 and cl 7.3 of the memorandum, if any default event occurred the Bank could require Mr Jinman to pay all secured money to the Bank immediately and take possession of Cambrai and sell it.[15]
[15] The Simpson affidavit at [16].
By 2 April 2014, Mr Jinman was in default of both the home loan and business loan. The Bank served a notice of default which Mr Jinman did not remedy.
The Bank commenced action 1191 of 2014 seeking an order for possession.
Financial Ombudsman Service Determination
Mr Jinman lodged a dispute with the Financial Ombudsman Service (“FOS”) on 30 September 2014.
On 8 July 2015, FOS published a 16 page determination (“the Determination”) which was “substantially in favour of” Mr Jinman, and was to the effect that Mr Jinman did not suffer any direct financial loss as a result of any actions of the Bank.
It provided, however, that should Mr Jinman accept the Determination within 30 days, within a further 14 days of acceptance the Bank must:
·pay Mr Jinman $5,500 for non-financial loss to compensate him for the stress and inconvenience associated with being misled by the Bank when the Bank communicated the $205,000 business loan offer and in failing to warn that a valuation obtained in November 2008 was not or might not be satisfactory and further valuations might be obtained before finance was approved; and
·pay Mr Jinman $3,000 non-financial loss to compensate him for stress and inconvenience caused when the Bank did not follow his instructions and proceeded to refinance his existing home loan when it had withdrawn the $205,000 business loan offer. Mr Jinman only wanted the home loan if the bank was also going to finance the business purchase.
The Determination gave Mr Jinman time to sell Cambrai within 180 days, failing which the Bank was entitled to recommence the enforcement action.[16]
[16] Exhibit PCJ28 to the Jinman affidavit.
Mr Jinman was granted an extension of time to consider the Determination and on 21 August 2015 he accepted it.
Accordingly, on 25 August 2015, the Bank discontinued action number 1191 of 2014 and paid the compensation of $8,500.
Unfortunately, the Cambrai property was not sold within the period permitted by the Determination.
Default on the loans
There is no dispute:
·that the business loan was made available to, and used by, Mr Jinman;
·that Mr Jinman has had the benefit of the home loan; and
·that Mr Jinman has breached the terms of the first and second mortgages by defaulting on the repayments.
The right to enter into possession
Pursuant to s 55A of the Law of Property Act 1936 (SA), the Bank has a right to enter into possession of Cambrai provided that the Bank served a notice in writing on Mr Jinman stating that he is in breach and requiring him to remedy the breach within one month of service of the notice.[17]
[17] The Simpson affidavit at [17].
On 25 January 2016, the Bank by its solicitors served a notice of default on Mr Jinman (“the notice”).[18] Mr Jinman failed to comply with the notice within the timeframe stipulated.[19]
[18] FDN 2 at [3].
[19] The Simpson affidavit at [21].
The Bank has complied with the procedural requirements for a summary order for possession under Part 17 of the RPA and r 204 of the Rules.
The Bank commenced these proceedings on 4 April 2016.
Status on the loans
According to the Gotting affidavit, as at 30 June 2016:
1The last payment made to the home loan account was on 24 December 2013.
2The last payment made to the business loan account was on 25 December 2013.
3Absent any acceleration, the arrears of the home loan were $26,755.62.
4Absent any acceleration, the arrears of the business loan were $51,696.47.
5The balance of the home loan was $155,269.69.
6The balance of the business loan was $180,651.02.
7The loan to value ratio was 146.05 per cent.
The decision of the Master
The Master was entitled to make the order for possession sought by the Bank in the event he was satisfied that there was no triable issue raised on the evidence. The Master correctly stated that for the Bank to be deprived of its remedy of a summary order for possession, Mr Jinman had to demonstrate a dispute of substance that warranted the ordering of pleadings and referring the dispute to trial.[20] The Master only needed to be satisfied that Mr Jinman had raised an arguable case supported by some evidence which, if accepted, could give rise to a particular defence.[21]
[20] Corporation of the Town of Moonta v Rodgers & Rodgers (1980) 26 SASR 143 at 160.
[21] Westpac Banking Corporation v Chadha [2012] SASC 223 at [35].
The Master found that Mr Jinman had not raised an arguable case supported by some evidence which could give rise to a particular defence. His Honour therefore granted the order for possession of the Cambrai property.[22]
[22] FDN 12.
The notice of appeal
Mr Jinman sets out in para [3] of the notice of appeal his grounds of appeal. In paras [3.1] to [3.8], Mr Jinman makes a new allegation on appeal that the Bank was only entitled to a mortgage of the business leasehold for the business loan.
The import of Mr Jinman’s allegations in paras [3.9] and [3.10] of his notice of appeal are that the second ranking mortgage registered over Cambrai is a false document.
Paragraph [3.11] of the notice of appeal is to the effect that the Master should have ordered discovery of documents.
Paragraph [3.12] appears to assert the Master erred in not finding that Mr Jinman had an arguable cross-claim.
Mr Jinman’s submissions
The nub of Mr Jinman’s appeal relates to a copy of a Memorandum of Mortgage bearing the date 16 April 2009 transmitted by facsimile[23] that was not in evidence before the Master. Mr Jinman alleges that the business loan was secured only by a mortgage over the lease relating to the business and not by a mortgage over Cambrai and that this is proven by the facsimile record. Mr Jinman further alleges that the evidence tendered by the Bank of the second ranking mortgage dated 23 February 2009 is false and that the Bank has avoided discovery.
[23] Exhibit PCJ33 to the October 2016 Jinman affidavit.
Mr Jinman argues that the Bank’s failure to proceed with the business loan offer of $205,000 constitutes a breach of contract. Mr Jinman further accuses the Bank of unconscionable conduct and alleges unjust enrichment.
Mr Jinman complains that the Bank did not act “with due haste/diligence/delays/inaction/silence”; has defrauded the Office of the Liquor and Gambling Commissioner; is guilty of breach of contract, fraud, forcing him to sign the business loan agreement for $150,000 under duress, refusing to produce requested documents; and presenting false evidence.
Mr Jinman also seeks compensation for loss of quality of life, being unable to care for his elderly father, mental anxiety and inability to provide for his children and family.
The Bank’s submissions
The Bank submits that the first ranking mortgage was registered on 30 March 2009 in relation to the home loan and stamped to the value of $140,000. The second ranking mortgage executed on 23 February 2009 was registered on 3 August 2009 in relation to the business loan and stamped to the value of $150,000. The Bank rejects the argument that either of these mortgages were limited to the business loan offer of $205,000. Further, the Bank submits that the terms of the business loan made clear that security over both Cambrai and the business was required.
In relation to the allegations of unconscionable conduct, the Bank submits that there is no evidence of any pressure being applied to Mr Jinman. In relation to the arguments relating to delays and breach of contract, the Bank submits that the Master was correct in finding that even at best, these arguments would not excuse the default under the mortgages.
The Bank argues that there is no merit to the allegation of false evidence. The memoranda of mortgage tendered by it are consistent with the Title Register Search put before the Court.
Finally, the Bank submits that an order for discovery was not made by the Master as his Honour was concerned with whether an arguable case existed.
Analysis
The Master identified the three defences advanced by Mr Jinman. He also correctly identified two possible cross-claims for damages.
The first defence was that the second ranking mortgage Mr Jinman signed on 23 February 2009 could only be registered as security for a loan of $205,000 recorded in the business loan offer of $205,000.
The second defence is that Mr Jinman was forced to accept the replacement business loan offer because he had no other economic course of action and the Bank was to blame for that.
The third defence is the assertion that the refinance of the home loan was conditional upon the Bank agreeing to provide a loan for $205,000 for the purchase of the motel business.
The first claim for damages the Master identified arises out of Mr Jinman’s allegations of delay in processing of his applications for finance.
The second claim for damages asserted by Mr Jinman arises out of the Bank’s refusal to honour the business loan of $205,000.
Mr Jinman’s application seeking to adduce fresh evidence[24] concerns four documents including a copy of a memorandum of mortgage apparently signed on 16 April 2009.[25] The other three documents relate to the negotiations with the Bank. Mr Jinman submitted by way of the November 2016 Jinman affidavit that he could not reasonably have obtained the documents prior to the hearing before the Master because they were located in Naracoorte and he was in Cambrai.
Mr Jinman relies on a memorandum of mortgage signed 16 April 2009 to allege that the mortgage he signed on 23 February 2009, stamped on 1 July 2009, and registered on 3 August 2009 is a false document. He argues that the sole security that was agreed to be provided for replacement business loan offer was the mortgage over the leasehold interest in the motel business.
First asserted ground of defence – second ranking mortgage limited to the business loan offer of $205,000
[24] FDN 19.
[25] Exhibit PCJ33 to the October 2016 Jinman affidavit.

The Master identified that the second ranking mortgage was stamped to the amount loaned pursuant to the replacement business loan offer, being $150,000, and that there was no reason for the Bank not to have used the previously executed mortgage on 23 February 2009 as security for the replacement business loan offer. To do so would have led to unnecessary expense.
Mr Jinman neither alleged nor referred to any evidence of communication between him and the Bank which supports the limitation on the use of the second ranking mortgage he asserts.
The replacement business loan offer dated 24 March 2009[26] provided under the heading “Security” that:
[26] TRS6 to the Simpson affidavit.
Securities for the facilities are detailed below. Additional security requirements may be detailed in the conditions precedent section of this letter.
(a)Second Registered Mortgage by Paul Christopher Jinman over the property situated at 7 Blackhill Road, Cambrai SA 5353 (To be taken)
and under the heading “Conditions Precedent” the following words appear:
ANZ’s obligation to make any facilities available is subject to ANZ being satisfied that you have complied with any conditions precedent as set out in the ANZ Business Banking Finance Conditions of Use.
In addition ANZ must also be satisfied that:
·Provision of Fully Executed Contract of Sale confirming Purchase Price of $200,000
·Evidence of vendor finance for $55,000 with repayment arrangement no greater than $350.00 per month
·Provision of Fully Executed Lease agreement confirming minimum 15 year term
·Mortgage over Leasehold property 17 Fourth Avenue, Naracoorte SA 5271 and associated Right of Entry to be taken to supplement security shortfall
·Evidence of Income Protection Insurance obtained by Paul Christopher Jinman.
(Emphasis added)
17 Fourth Avenue, Naracoorte is the address of the motel business.
As can be seen, the replacement business loan offer clearly stated that the Bank required two separate items of security for the loan, namely the second ranking mortgage over Cambrai and the mortgage over the business leasehold.
As submitted by the Bank, there would be no business efficacy in construing the words “(To be taken)” to mean a fresh mortgage, otherwise identical in form, was required to be executed by Mr Jinman after acceptance of the business loan offer.
Mr Jinman’s contention that the registered second ranking mortgage is a false document
Mr Jinman seeks the admission of the mortgage he says he signed when he signed the replacement business loan offer on 16 April 2009. He alleges that this mortgage signed by him on 16 April 2009 is the only mortgage provided for the $150,000 business loan and that the second ranking mortgage registered 3 August 2009 is a false document.
Mr Jinman says that the copy of mortgage 11212833[27] put before the Court is false because page 3 of the document is identical to page 3 of the first ranking mortgage. As the Bank points out, pages in two documents based on a standard form that require no insertions will be identical. Further, Mr Jinman relies on the fact that the facsimile transmission markings appear on the copy of the leasehold mortgage but not the registered second ranking mortgage. The fact that the leasehold mortgage was sent by facsimile has no bearing on whether the second ranking freehold mortgage is of effect.
[27] Exhibit TRS3 to the Simpson affidavit.
Exhibit TRS1 to the Simpson affidavit is a search copy of the Certificate of Title for Cambrai which records mortgage 11212833 in favour of the Bank. Exhibit TRS3 to the Simpson affidavit is a copy of the mortgage 11212833 stamped by the Land Titles Office on 1 July 2009 and registered 3 August 2009. Section 51A(1) of the RPA provides:
(1)Subject to this Act, a certificate of title must be accepted in legal proceedings as conclusive evidence of title to land and to any other estate or interest in land that it records and as evidence (which may be rebutted) of any other information that it records.
(2)A document that purports to have been certified by the Registrar-General to be a correct copy of a certificate of title may be accepted in legal proceedings as if it were the certificate of title.
I accept Exhibit TRS1 as a copy of a Certificate of Title pursuant to s 51A(2) of the RPA. As such, it establishes that the second ranking mortgage 11212833 is registered on the Certificate of Title for Cambrai.
By registration, the Bank obtained indefeasible title to the second ranking mortgage and, in the absence of fraud, Mr Jinman is bound by it.
Second asserted ground of defence – that Mr Jinman was forced to accept the replacement business loan offer
The Master rejected this asserted ground of defence of economic duress or unconscionable conduct as there is no evidence of any pressure being applied to Mr Jinman by the Bank.
The Bank submitted that there is a further reason why this asserted defence must be dismissed. Mr Jinman was content to go ahead with a loan of $205,000 from the Bank yet he does not argue that the requirement that the loan of $205,000 be secured by a second ranking mortgage was unconscionable. Further, when the loan amount was reduced to $150,000, Mr Jinman was able, with the assistance of vendor finance, to fund the purchase.
Third asserted ground of defence – home loan refinance tied to the business loan offer of $205,000
The Master rejected Mr Jinman’s argument that the first ranking mortgage over Cambrai which secured the refinancing of the Bank SA loan was held illegally by the Bank.[28]
[28] FDN11 at [18].
On appeal Mr Jinman asserted that it was a condition of the refinance of the home loan that the Bank provide a business loan of $205,000. However, Mr Jinman did not produce any communication with the Bank to that effect. Neither the home loan offer or business loan offer of $205,000 nor the replacement business loan offer refer to such a condition. The email dated 11 September 2008 sent by Mr Jinman instructing his finance broker to seek the refinancing of the Bank SA loan[29] did not tie the refinance to any particular amount for the business loan. As submitted by the Bank, the circumstances do not call for any such restriction to be imposed where the refinancing was on usual commercial terms.[30]
[29] Exhibit PCJ2 to the Jinman affidavit.
[30] Micarone & Anor v Perpetual Trustees Australia Ltd & Ors (1999) 75 SASR 1 at [652].
The Master correctly rejected Mr Jinman’s argument that the first ranking mortgage over Cambrai was held illegally by the Bank. There is no dispute that Mr Jinman has defaulted under the home loan agreement. Accordingly, the Bank is entitled to an order for possession solely pursuant to the first ranking mortgage.
The asserted counterclaims – the delay in processing the loan application and breach of the business loan offer of $205,000
As the Master correctly found, Mr Jinman’s complaints about delay and breach of the business loan offer of $205,000 could, at best, only give rise to claims based on breach of contract, negligence and misleading and deceptive conduct, all of which could only give rise to damages which would not invalidate the mortgages.
Mr Jinman is bound by the FOS Determination
I agree with the Bank’s assertion that any defence including allegations of duress or unconscionability or any claim for damages put forward by Mr Jinman was compromised when Mr Jinman accepted the FOS Determination and the Bank did what it was required to do to effect the compromise. Mr Jinman accepted the Determination whereupon it became binding upon him. The Determination was the culmination of a careful inquiry by FOS. Mr Jinman does not allege that he was put under any pressure to accept that compromise.
The operational guidelines to the FOS terms of reference provide that a determination is a final decision that is binding upon the applicant and the financial services provider.
In Financial Ombudsman Services Ltd v Utopia Financial Services Pty Ltd,[31] the Court stated that “Where a complainant elects to accept the decision of the Panel, the complainant is bound by all aspects of that decision”.[32]
[31] [2016] WASC 55.
[32] [2016] WASC 55 at [17].
The Court in Cromwell Property Securities Ltd v Financial Ombudsman Services Ltd and Others[33] said “a Determination is a final decision and is binding upon all parties if the applicant accepts the Determination within 30 days”.[34]
[33] (2014) 288 FLR 374.
[34] (2014) 288 FLR 374 at [29].
Upon accepting the Determination Mr Jinman was bound by it.
The Master, whilst not basing his decision on it, correctly found that the compromise in accordance with the Determination bound Mr Jinman. The effect of the compromise is that Mr Jinman cannot now attempt to rely on any defence or claim that he has agreed to settle.
Conclusion
Mr Jinman did not raise, before the Master or on appeal, an arguable case supported by some evidence which, if accepted, could give rise to a particular defence.[35] None of the arguments or grounds of appeal advanced by Mr Jinman demonstrate there is a dispute of substance warranting the ordering of pleadings and referral to trial.[36] The Master was not in error.
[35] Westpac Banking Corporation v Chadha [2012] SASC 223 at [35].
[36] Corporation of the Town of Moonta v Rodgers & Rodgers (1980) 26 SASR 143 at 160.
The Bank was entitled to the summary order for possession made by the Master on 18 August 2016. I therefore dismiss the appeal.