Kennedy-Smith v Commonwealth Bank of Australia - [2011] WASCA 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KENNEDY-SMITH -v- COMMONWEALTH BANK OF AUSTRALIA [2011] WASCA 113

CORAM: BUSS JA

HEARD: 2 MAY 2011

DELIVERED : 2 MAY 2011

PUBLISHED : 6 MAY 2011

FILE NO/S: CACV 50 of 2011

BETWEEN: STANTON THOMAS KENNEDY-SMITH
Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1412 of 2010

Catchwords:

Practice and procedure - Application for a stay pending the determination of an appeal - Application dismissed - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B C Smith

Solicitors:

Appellant: In person
Respondent: Gadens Lawyers

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

Nil

BUSS JA: (This judgment was delivered extemporaneously on 2 May 2011 and has been edited from the transcript.)
On 23 March 2010, the respondent, Commonwealth Bank of Australia, issued a writ of summons in the Supreme Court against Wendy Ann Kennedy-Smith, as first defendant, and the appellant, Stanton Thomas Kennedy‑Smith, as second defendant.
The respondent claimed, relevantly, the sum of $971,424.71 plus interest pursuant to a loan agreement and also possession of a property known as Lot 20, Shutter Lane, Blythewood (also known as Lot 20, Caris Park Road, Pinjarra) (the property).
Mrs Kennedy-Smith and the appellant are the registered proprietors of the property. They granted a first registered mortgage over the property to the respondent to secure, amongst other amounts, moneys advanced under the loan agreement. The facility limit under the loan agreement was $881,586. The loan was repayable on demand.
On 4 April 2010, the writ of summons was served on the appellant. On 14 April 2010, he entered a memorandum of appearance.
On 26 October 2010, Master Sanderson heard an application by the respondent for summary judgment. On or about 5 October 2010, the application was served on the appellant. On 8 October 2010, the appellant wrote to the Supreme Court. In his letter to the Supreme Court, the appellant acknowledged that he had received the application on 7 October 2010. He notified the Supreme Court in this letter, with a copy of the letter being sent to the respondent's solicitors, that he would be unable to attend a hearing of the summary judgment application listed for 14 October 2010. The appellant explained that he would be working out of Western Australia on that date and for the following three weeks.
On 14 October 2010, the application for summary judgment came before Allanson J. His Honour adjourned the application to 26 October 2010. On 14 October 2010, the respondent sent a letter to the appellant informing him of the adjourned hearing date. On 26 October 2010, the appellant did not appear at the hearing of the application before Master Sanderson. At the time he was overseas.
On 26 October 2010, the master, having heard the application (with an appearance on behalf of the respondent, but no appearance by or on behalf of the appellant), entered judgment for the respondent. He ordered, relevantly, that Mrs Kennedy-Smith and the appellant pay to the respondent, amongst other amounts, the sum of $1,029,106.16 owing under the loan agreement and the mortgage. He also ordered that Mrs Kennedy-Smith and the appellant, within 28 days of service of the judgment, give vacant possession to the respondent of the property. On 1 December 2010, the respondent's solicitors sent a sealed copy of the judgment to Mrs Kennedy-Smith and the appellant by post.
On 20 January 2011, the respondent obtained a Property (Seizure and Delivery) Order under the Civil Judgments Enforcement Act 2004 (WA) (the Act). On 9 March 2011, the appellant applied to set aside this order. On 22 March 2011, Registrar Whitbread dismissed his application.
On 29 April 2011, the appellant filed an appeal notice in relation to the judgment entered by the master on 26 October 2010. The appellant requires an extension of time to appeal. The last date for appealing was 16 November 2010.
Also on 29 April 2011, the appellant filed an application in the appeal. He seeks an order that the enforcement of the judgment entered by the master be stayed pending the determination of the appeal. This application is before this court this afternoon. The respondent intends to enter into possession of the property pursuant to the master's order at 5.00 pm today.
The appellant relies on affidavits sworn by him on 9 March 2011 and 27 April 2011 in support of his application for a stay. The respondent relies on an affidavit of Jessie Lee Thomas sworn 2 May 2011 in opposition to the application. I have read these affidavits.
The appellant's affidavits set out the circumstances in which default arose under the loan agreement and the mortgage. The appellant mentions his divorce and difficult personal circumstances. He also mentions the global financial crisis and its impact on him and his business. The appellant refers to 'a large sand resource' on the property and expresses the view that once developed this resource will produce substantial economic benefits that will be sufficient to repay the moneys owing to the respondent. According to the appellant, it would be desirable for the parties to enter into a joint venture for the purpose of developing the sand resource. He seeks mediation and a meeting with the respondent with a view to entering into 'an equitable arrangement'. The appellant also asserts that in his view the property has potential for subdivision.
The criteria which are ordinarily relevant to the exercise of this court's discretion to grant an extension of time to appeal are well‑established. Similarly, the criteria which are ordinarily relevant to the exercise of this court's discretion to grant a stay pending an appeal or a suspension order under the Act are well‑known. It is unnecessary to reproduce the relevant criteria in these reasons.
I am satisfied that the appellant's application for a stay should be dismissed. I am of that opinion for the following reasons.
First, there has been a substantial delay between the last date for appealing against the master's judgment and the date on which the appeal notice was filed, being a period of more than five months, and a significant proportion of this delay has not been explained satisfactorily.
Secondly, on the material before this court, the appellant did not have a reasonably arguable defence on the merits to the respondent's claim for summary judgment. If the appellant had appeared and been heard, either in person or by counsel, on the hearing of the summary judgment application, either on 26 October 2010 or on a later date after he had returned from overseas, it would still have been appropriate, on the material before this court, to enter judgment for the respondent.
Thirdly, on the material before this court, the appellant does not have reasonable prospects in the appeal of establishing that he has or had a reasonably arguable defence on the merits to the respondent's claim.
Fourthly, the appellant informed this court that he has not made any payments of principal or interest to the respondent for more than two years. Counsel for the respondent informed this court (without objection from the appellant) that as at 22 March 2011 the total amount owing by the appellant to the respondent was $1,068,754.43 with interest accruing on a daily basis at the rate of $268.26.
Fifthly, the commercial matters raised by the appellant in relation to realising the property to the best advantage are matters on which he may negotiate with the respondent, but they do not constitute a reasonably arguable defence on the merits to the respondent's claim and they do not justify this court exercising its discretion to grant a stay (or a suspension order under the Act).
In the circumstances, discretionary considerations, in particular the balance of convenience, are decisively against granting relief in terms of the application.
For these reasons, the appellant's application in the appeal must be dismissed.