LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL

[2009] WASCA 86

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LAW -v- AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2009] WASCA 86

CORAM:   McLURE JA

PULLIN JA

HEARD:   22 JANUARY 2009

DELIVERED          :   15 MAY 2009

FILE NO/S:   CACV 100 of 2008

BETWEEN:   MAURICE FREDERICK LAW

Appellant

AND

AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

Citation  :AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC) -v- HALL [2007] WASC 34

File No  :CIV 2073 of 2003

Catchwords:

Appeals - Standing - Appellant not a party to litigation at first instance - Whether just or convenient to allow appellant to bring appeal

Appeals - Application for extension of time - Appellant not a party to litigation at first instance - Non­compliance with rules - Gross delay in commencing appeal

Legislation:

Nil

Result:

Application refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr A M Prime

Solicitors:

Appellant:     In person

Respondent:     McCallum Donovan Sweeney

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

Audrey Frances Hall as Executrix of the Will of Kenneth Duncan Hall (dec) v Hall [2007] WASC 34

Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518

Hall v Chin [2008] WASC 255

Spunter Pty Ltd v Hall [2006] WASC 6

Spunter Pty Ltd v Hall [No 2] [2007] WASC 239

1. McLURE JA:  I agree with Pullin JA.

2. PULLIN JA:  The appellant filed a notice of appeal on 13 October 2008 against the judgment of Jenkins J dated 19 February 2007.  Any appeal against that judgment should have been commenced within 21 days of 19 February 2007.  The appellant applies for an extension of time in which to appeal.

3. The proceedings before Jenkins J leading to the judgment under appeal were proceedings between Audrey Frances Hall as executrix of the will of Kenneth Duncan Hall (deceased) as plaintiff, and Nancy Cloonan Hall as defendant.  The claim by the plaintiff was for possession of land at Hazelmere and Mount Lawley.  The defendant was the registered proprietor.  The plaintiff was the registered proprietor of a mortgage over these lands.  The original mortgagee was Engineering Facilities Pty Ltd.  The mortgage secured repayment of an advance of $350,000 to Nancy Cloonan Hall.  The mortgage was transferred to Kenneth Duncan Hall upon payment to Engineering Facilities Pty Ltd of the money then due to that company.  Jenkins J held that the plaintiff as mortgagee was entitled to the order for possession of the land.  See the reasons of Jenkins J in Audrey Frances Hall as Executrix of the Will of Kenneth Duncan Hall (dec) v Hall [2007] WASC 34.

4. The appellant was not one of the parties to that litigation.  Attached to his notice of appeal was an affidavit in which he claims that Spunter Pty Ltd 'had claim' over the property the subject of the litigation 'in the form of a mortgage and caveat'.  The Spunter mortgage was not produced, but the affidavit states:

   I was assured by Nancy Cloonan Hall that Spunter Pty Ltd held the first mortgage on the property.

5. There have been other proceedings in which Spunter Pty Ltd claims to have an equitable charge over the land.  See Spunter Pty Ltd v Hall [2006] WASC 6 and Spunter Pty Ltd v Hall [No 2] [2007] WASC 239.

6. Paragraph 7 of the appellant's affidavit reads:

   As the director and principle [sic] person made responsible by the three Shareholders of SPUNTER PTY LTD  to oversee and ensure that the interests of SPUNTER PTY LTD are secured, I am simple [sic] asking AUDREY FRANCES HALL to provide clear evidence that the property awarded to her by Justice Jenkins was in fact encumbered by an original payment of $374,000 made by Engineering Pty Ltd to NANCY CLOONAN HALL.  If this cannot be clearly shown by AUDREY

FRANCES HALL then the document supplied by her as an alleged mortgage is nothing more than a document in legal fiction.

1. In Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518 (Ipp J, Pidgeon and Seaman JJ agreeing) said:

   The general rule is that there is no right of appeal by a third party against a judgment in favour of the plaintiff: see Asphalt & Public Works Ltd v Indemnity Guarantee Trust Ltd [1969] 1 QB 465 at 472. This rule is, however, subject to certain exceptions. A third party may appeal against the principal judgment if he is directed to be bound thereby: see The Millwall [1905] P 155. In this case no such order was given and indeed it appears that no third party directions were ever given. Nevertheless, notwithstanding the absence of third party directions, leave will be given to a third party to appeal directly against the plaintiff whenever it is just and convenient to do so: see Asphalt & Public Works Ltd v Indemnity Guarantee Trust Ltd (supra) (at 471); Helicopter Sales (Australia) Pty Ltd v Rotor‑Work Pty Ltd (1974) 132 CLR 1 at 14‑15 (521).

2. Jenkins J did not order or direct that the appellant was to be bound by the judgment.  The appellant's affidavit reveals that he attempted to intervene in the proceedings before Justice Jenkins, but in his affidavit he says:

   I was excluded from those proceedings and also denied access to any transcripts to the said hearings.

   The appellant has not provided any evidence before this court of what evidence he relied upon before Jenkins J and there has been no appeal against Jenkins J's decision refusing to allow the appellant to intervene.

3. There is nothing which makes it just and convenient to allow Mr Hall to bring this appeal.  Spunter claims to have an interest in the land and it is for Spunter Pty Ltd to pursue that claim if it wishes to do so.  It did so unsuccessfully in Hall v Chin [2008] WASC 255.

4. The appellant has no standing to bring the appeal.  The registrar granted an extension of time to file the appellant's case by 9 January 2009 but that order was not complied with.  The appellant has not filed his case.  Finally, there is no satisfactory explanation for the gross delay in commencing the appeal.  As a result, the application for an extension of time should be refused and the appeal dismissed.