Make It Raine Money Pty Ltd v Alvaro
[2023] WASCA 126
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAKE IT RAINE MONEY PTY LTD -v- ALVARO [2023] WASCA 126
CORAM: BEECH JA
VAUGHAN JA
LUNDBERG J
HEARD: 23 AUGUST 2023
DELIVERED : 23 AUGUST 2023
PUBLISHED : 23 AUGUST 2023
FILE NO/S: CACV 94 of 2022
BETWEEN: MAKE IT RAINE MONEY PTY LTD
Appellant
AND
ROCCO DOMENIC ALVARO
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
File Number : CIV 1966 of 2020
Catchwords:
Appeals - Where order made dismissing appellant's application for extension of time to apply for summary judgment and dismissing appellant's application for summary judgment - Whether appeal competent - Whether right of appeal excluded by s 60(1)(b) of Supreme Court Act 1935 (WA)
Legislation:
Supreme Court Act 1935 (WA), s 60(1)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | N Wallwork |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Summer Lawyers |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Abdel-Messih v Qaqish [2022] WASCA 30
Make It Raine Money Pty Ltd v Alvaro [2022] WASC 282
Southern Region Pty Ltd v Minister for Police [2003] VSCA 105
REASONS OF THE COURT:
Introduction
This appeal was heard on 23 August 2023. At the conclusion of the appeal the court was unanimously of the opinion that the appeal was incompetent and should be dismissed. The court made the following orders:
1.The appeal is dismissed.
2.There be no order as to the costs of the appeal.
The court said that its reasons would be published later. These are our reasons.
Background
In September 2020, the appellant lender commenced proceedings against the respondent borrower arising out of a loan made to the respondent, secured by a mortgage.[1] The appellant contends, and the respondent appears to accept, that the principal remains owing.[2] The appellant has brought these proceedings to enforce the mortgage it was granted by the respondent following default in repayment.[3]
[1] Writ of summons, BAB 14.
[2] Make It Raine Money Pty Ltd v Alvaro [2022] WASC 282 [2] (Master Sanderson), BAB 10.
[3] Statement of claim [8] - [17], BAB 24 - 26.
On 18 March 2022, the appellant filed an application for summary judgment pursuant to O 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) (RSC), including an extension of time application for this purpose. The application was supported by two affidavits affirmed by representatives of the appellant. The application was opposed by the respondent who swore an affidavit in opposition.
The appellant's application for summary judgment was heard on 13 June 2022.[4] The master reserved his decision. By reason of an apparent administrative oversight, the master delivered two sets of reasons. Those reasons are not identical.
[4] Transcript of proceedings, GAB 1 - 12.
The first reasons were given orally on 17 June 2022, as appears in the transcript.[5] In those reasons, the master indicated he would grant the plaintiff an extension of time to bring the application.[6] The master then explained why the case was an inappropriate one for the grant of summary judgment and dismissed the application.[7]
[5] BAB 2 - 6.
[6] BAB 4A.
[7] BAB 5E.
The second reasons appear in a written decision published on 13 September 2022.[8] In those reasons, the master indicated he was not satisfied that an extension of time ought be granted and dismissed the application.[9] The master concluded that while the appellant had a 'very strong case',[10] the circumstances of the matter were unusual as the appellant was seeking summary judgment for only part of the claim, and the master considered it would be inappropriate to not have all the issues disposed of at one trial.[11]
[8] Make It Raine Money Pty Ltd v Alvaro [2022] WASC 282.
[9] BAB 13, [12].
[10] BAB 11, [6].
[11] BAB 11, [6].
On 21 September 2022, the master made the following orders:[12]
1.The plaintiff's application be dismissed.
2.The costs be the defendant's costs in the cause.
[12] BAB 1.
To be clear, the first order made by the master was an order which dismissed the appellant's application for summary judgment without the imposition of any conditions.
The appeal
The appellant sought to appeal against the master's dismissal of its application for summary judgment. The respondent has not participated in this appeal.
We dismissed the appeal because it is incompetent by reason of s 60(1)(b) of the Supreme Court Act 1935 (WA), which provides:
(1) No appeal shall lie to the Court of Appeal -
…
(b)from an order of a judge or a master giving unconditional leave to defend an action[.]
Our reasons for reaching this conclusion are as follows.
First, the substance and effect of the order made on 21 September 2022 was to dismiss both the application for leave and the appellant's application for summary judgment. The order dismissed the 'application', being the chamber summons dated 17 March 2022. The orders sought within the chamber summons were, relevantly, (i) an order for leave to apply for summary judgment, (ii) an order entering summary judgment in favour of the appellant, and (iii) alternatively to (ii), orders for summary judgment in respect of part of the appellant's claim. In that regard, counsel for the appellant accepted that the master's order in this case is relevantly indistinguishable from the order under challenge in Abdel-Messih v Qaqish.[13]
[13] Abdel-Messih v Qaqish [2022] WASCA 30 (Mitchell, Beech & Vaughan JJA).
Second, that being so, the proposition expressed in Abdel‑Messih v Qaqish applies with equal force to an appeal against the master's order, namely that an order dismissing a plaintiff's application for summary judgment without imposing any conditions is, in substance, an order giving the defendant unconditional leave to defend within the meaning of s 60(1)(b). The relevant passages in Abdel‑Messih v Qaqish are as follows:
[7] In determining an application for summary judgment, the court may give the defendant against whom the application is made leave to defend the action either unconditionally or on such terms as to giving security or otherwise as it thinks fit. An order dismissing a plaintiff's application for summary judgment without imposing any conditions is, in substance, an order giving the defendant unconditional leave to defend. [Southern Region Pty Ltd v Minister for Police [2003] VSCA 105 [17] ‑ [18]]
[8] That is the effect of what occurred in this case. The master's order dismissing the appellant's application for summary judgment, without imposing any conditions, is, in substance and effect, an order granting unconditional leave to the respondent to defend the action. Consequently, any right of appeal is excluded by s 60(1)(b).
Counsel submitted that the appeal was competent on the basis that this court's reasoning in Abdel-Messih v Qaqish is to be confined to cases where the primary court's reason for dismissing the application is that there is a triable issue. Counsel supported this argument by reference to the passage in Southern Region Pty Ltd v Minister for Police that was cited in the footnote to [7] in Abdel-Messih v Qaqish.
This submission is without merit.
The appellant's submission attempts to make the reasons for an order the criterion of application of s 60(1)(b). That is inconsistent with the statutory text. Whether s 60(1)(b) operates to exclude a right of appeal depends upon the nature and effect of the order sought to be appealed, not the reasons for the making of the order. The effect of s 60(1)(b) is unmistakeably clear. If the order the subject of a proposed appeal gives unconditional leave to defend an action, the right of appeal is excluded.
When a plaintiff applies for summary judgment, apart from granting the application, the court has the powers provided by O 14 r 4(3) RSC:
The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim to which the application relates, either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.
As this court said in Abdel‑Messih v Qaqish, when a court dismisses a summary judgment application without imposing any conditions on the defendant, the court has, in substance and effect, given the defendant unconditional leave to defend. That will be so for the purposes of s 60(1)(b) regardless of the reasons given by the court for the order it made.
As noted at [9] above, the effect of the master's order in this case was to permit the respondent to defend the appellant's claim without imposing any conditions on the respondent. Thus, the master's order was an order giving unconditional leave to defend the action within the meaning of s 60(1)(b).
Conclusion
In Abdel-Messih v Qaqish, this court applied the well-established precept that appeals are creatures of statute and thus a right of appeal exists to the extent, and only to the extent, that a statutory provision confers a right of appeal.[14]
[14] Abdel-Messih v Qaqish [5].
By reason of s 60(1)(b), the appellant has no right of appeal against the master's order made on 21 September 2022. Accordingly, the present appeal is incompetent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
23 AUGUST 2023
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