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…

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: [2023] WASCA 126
Decision Date

CaseChat Overview and Summary

In the appeal of Make It Raine Money Pty Ltd v Alvaro, the Court of Appeal of Western Australia dismissed the appellant's appeal against the dismissal of its application for summary judgment. The appellant, a lender, had commenced proceedings against the respondent, a borrower, to enforce a mortgage due to default in repayment. The appellant filed an application for summary judgment and an extension of time, which was opposed by the respondent. The master reserved his decision but delivered two sets of reasons, both dismissing the application for summary judgment. The master's final order dismissed the application without imposing any conditions on the respondent, effectively granting unconditional leave to defend.

The legal issues before the Court of Appeal were whether the appeal was competent and whether the right of appeal was excluded by section 60(1)(b) of the Supreme Court Act 1935 (WA). The Court held that the appeal was incompetent because the master's order dismissing the application for summary judgment without conditions was, in substance and effect, an order giving unconditional leave to defend. According to section 60(1)(b), no appeal lies from an order giving unconditional leave to defend an action. The Court rejected the appellant's argument that the reasons for the order should determine the applicability of section 60(1)(b), holding that the nature and effect of the order, not the reasons for it, are determinative.

The Court of Appeal's reasoning was consistent with its earlier decision in Abdel-Messih v Qaqish, which established that dismissing a summary judgment application without conditions is, in substance, an order granting unconditional leave to defend. The Court concluded that the appellant's appeal was barred by section 60(1)(b) and dismissed the appeal accordingly. The Court made no order as to the costs of the appeal.

Orders