Kenny v Ask Funding Limited - [2019] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

Kenny v ASK Funding Limited [2019] QCA 13

PARTIES:

LEONE JOAN KENNY
(appellant)
v
ASK FUNDING LIMITED
ACN 094 503 385
(respondent)

FILE NO/S:

Appeal No 5731 of 2018
DC No 1570 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2018] QDC 78 (Porter QC DCJ)

DELIVERED ON:

6 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2018

JUDGES:

Gotterson and McMurdo JJA and Bowskill J

ORDERS:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SETTING ASIDE – appeal against order granting summary judgment on a claim by the respondent/mortgagee for recovery of possession of land secured by registered mortgage – where it was not controversial that the mortgagee had made out its claim for recovery of possession under s 78(2) of the Land Title Act 1994 – whether the primary judge erred in finding that the appellant/mortgagor had no real prospect of successfully defending the mortgagee’s claim, on the basis of contentions about the conduct of the mortgagee, including that the mortgagee had unlawfully frustrated the sale of the mortgaged land, by refusing to extend the date for payment under a deed of compromise – whether, even if those contentions could be established by evidence, they would provide a basis to restrain or prevent the mortgagee from exercising its power of sale under the mortgage – whether the primary judge erred in not further adjourning the hearing of the summary judgment application

Land Title Act 1994 (Qld), s 78
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 292

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited
Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501; [2007] QCA 141, cited
Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421, cited
Harvey v McWatters (1948) 49 SR (NSW) 173; [1948] NSWStRp 58, cited
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74, cited
LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd[2011] QCA 105, cited
Morel v Bank of Queensland Limited[2015] QCA 58, cited
National Australia Bank Limited v McCall [2011] QSC 25, cited
National Australia Bank Ltd v Troiani[2002] QCA 196, cited
Queensland Pork Pty Ltd v Lott[2003] QCA 271, cited
Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625; [1993] HCA 47, cited
Samuel Keller (Holdings) Ltd v Martins Bank Ltd [1971] 1 WLR 43, cited

COUNSEL: The appellant appeared on her own behalf
C Templeton for the respondent

SOLICITORS: The appellant appeared on her own behalf
Boyd Legal for the respondent

GOTTERSON JA: I agree with the orders proposed…

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: [2019] QCA 13
Decision Date: 6 February 2019

CaseChat Overview and Summary

In the appeal case of Kenny v Ask Funding Limited, the appellant, Ms Kenny, sought to challenge the summary judgment granted in favour of the respondent, Ask Funding Limited, in relation to a claim for recovery of possession of certain land. The summary judgment was granted on the basis of a registered mortgage over lots 58 and 211, and a default by Ms Kenny. Ms Kenny argued that the primary judge had erred in determining that she had no real prospect of successfully defending the claim, and in not further adjourning the hearing of the summary judgment application. Ms Kenny's defences included allegations of unconscionable conduct by Ask Funding and unlawful frustration of the sale of the mortgaged land.

The primary judge found that Ask Funding had made out its claim for recovery of possession under the relevant statute, and that Ms Kenny had no real prospect of successfully defending the claim. The judge considered Ms Kenny's defences and found that, even if they were established by evidence, they would not provide a basis to restrain or prevent Ask Funding from exercising its power of sale under the mortgage. The judge also found that there was no need for a trial of the claim, given the lack of prospect of defending the claim on the current material.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. The court found that the primary judge had not erred in his determination, and that there was no need for a further adjournment of the hearing of the summary judgment application. The court also found that the evidence disclosed that Ask Funding had been willing to compromise the amount of its claim and delay enforcement action at Ms Kenny's request over many years. The court held that Ms Kenny's personal difficulties and challenges in managing the administration of her mother's estate were not defences to the claim for possession.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal.

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

The primary judge proceeded to hear the summary judgment application and, for detailed reasons given on 4 May 2018, made the orders sought for Ask Funding to recover possession of lot 58 and lot 211 from Ms Kenny.Reasons for granting summary judgment of the claim to recover possession of lots 58 and 211 In his Reasons, the primary judge set out at some length the factual background and procedural history of the matter. Favourably to Ms Kenny, his Honour took into account her three affidavits filed and read in relation to the earlier adjournment application, and the handwritten amended defence. His Honour accurately summarised the relevant principles which apply on a summary judgment application,[43] and there is no contention on this appeal that his Honour erred in that regard.[43]Reasons at [95]-[99]. His Honour found that Ask Funding had made out its claim for recovery of possession under s 78(2) of the Land Title Act – requiring as that does proof of a registered mortgage over the relevant lot, that the terms of the mortgage do not modify the right and that there has been default under the mortgage by the mortgagor.[44] There is no challenge on the appeal to his Honour’s conclusion in this respect.[44]Reasons at [100]-[111]. His Honour then turned to the various defences raised, or arguably raised, by Ms Kenny, for the purposes of determining the question under r 292(2)(a) – whether the defendant “has no real prospect of successfully defending all or a part of the plaintiff’s claim” – namely:(a)whether Ask Funding engaged in unconscionable conduct in entering into the various formal documents with Ms Kenny, by taking unconscientious advantage of her illness (Reasons at [113]-[119]);(b)whether Ask Funding unlawfully frustrated the sale of lots 58 and 211 (Reasons at [120]-[133]);(c)even if it did, whether that would give rise to a defence to the claim for possession (Reasons at [134]-[143]);(d)whether Ms Kenny could be held personally liable for costs incurred in her capacity as executor (Reasons at [144]-[149]); and(e)other matters raised in the amended defence (Reasons at [150]). Having considered all of those matters, carefully and in some detail, the primary judge concluded that Ms Kenny had no real prospect of defending the claim for possession of lots 58 and 211. His Honour was also satisfied there was no need for a trial of the claim, saying:“[151] I do not consider this is a case where there is a need for a trial of the claim despite the lack of any prospect of the defending the claim on the current material. Ms Kenny is self-represented and faces many difficulties. That is accepted. However, this proceeding has been conducted in a manner which gave her reasonable opportunities to formulate and put forward a case. Most starkly, that is demonstrated by the adjournment for two months to permit advice to be taken from the solicitors she had retained with the help of Law Right.[152]Further, this is not a case where there has been any challenge to the plaintiff’s positive case. The evidence required to make good Ms Kenny’s complaints was hers to give or locate. She clearly understood that, particularly in relation to the Lot 58 and 211 complaints.[153]Finally, the evidence discloses that Ask has been very willing to comprise [sic, compromise] the amount of its claim and delay enforcement action at Ms Kenny’s request over many years.Conclusion[154]I am acutely conscious that Ms Kenny has suffered much ill fortune in her life and faces grave health difficulties. I am also conscious that she seems also to have been unable to manage the challenges of conducting the administration of her mother’s estate. However, those matters are not of themselves defences to the claim for possession. In my view, she has no real prospect of defending the claim for possession advanced by Ask.”The appeal

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kenny v ASK Funding Limited [2019] QCA 13
PARTIES:	LEONE JOAN KENNY (appellant) v ASK FUNDING LIMITED ACN 094 503 385 (respondent)
FILE NO/S:	Appeal No 5731 of 2018 DC No 1570 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2018] QDC 78 (Porter QC DCJ)
DELIVERED ON:	6 February 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2018
JUDGES:	Gotterson and McMurdo JJA and Bowskill J
ORDERS:	1. The appeal is dismissed. 2. The appellant pay the respondent’s costs of the appeal.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SETTING ASIDE – appeal against order granting summary judgment on a claim by the respondent/mortgagee for recovery of possession of land secured by registered mortgage – where it was not controversial that the mortgagee had made out its claim for recovery of possession under s 78(2) of the Land Title Act 1994 – whether the primary judge erred in finding that the appellant/mortgagor had no real prospect of successfully defending the mortgagee’s claim, on the basis of contentions about the conduct of the mortgagee, including that the mortgagee had unlawfully frustrated the sale of the mortgaged land, by refusing to extend the date for payment under a deed of compromise – whether, even if those contentions could be established by evidence, they would provide a basis to restrain or prevent the mortgagee from exercising its power of sale under the mortgage – whether the primary judge erred in not further adjourning the hearing of the summary judgment application Land Title Act 1994 (Qld), s 78 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 292 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, cited Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501; [2007] QCA 141, cited Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421, cited Harvey v McWatters (1948) 49 SR (NSW) 173; [1948] NSWStRp 58, cited Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74, cited LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd[2011] QCA 105, cited Morel v Bank of Queensland Limited[2015] QCA 58, cited National Australia Bank Limited v McCall [2011] QSC 25, cited National Australia Bank Ltd v Troiani[2002] QCA 196, cited Queensland Pork Pty Ltd v Lott[2003] QCA 271, cited Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625; [1993] HCA 47, cited Samuel Keller (Holdings) Ltd v Martins Bank Ltd [1971] 1 WLR 43, cited
COUNSEL:	The appellant appeared on her own behalf C Templeton for the respondent
SOLICITORS:	The appellant appeared on her own behalf Boyd Legal for the respondent