Mavaddat v Westpac Banking Corporation - [2014] WASCA 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MAVADDAT -v- WESTPAC BANKING CORPORATION [2014] WASCA 128

CORAM: NEWNES JA
MURPHY JA

HEARD: 5 JUNE 2014

DELIVERED : 9 JULY 2014

FILE NO/S: CACV 96 of 2013

BETWEEN: MICHAEL MOOJAN MAVADDAT
First-named Appellant
FARIBA MAVADDAT
Second-named Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SANDERSON M
File No  :CIV 1220 of 2013

Catchwords:

Delays in appeal - Failure to file appellant's case in time - Application for extension of time previously granted - Whether appellant failed to comply with order extending time - Whether appeal should be dismissed on basis that none of the grounds of appeal has a reasonable prospect of success - Appeal dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Rules of the Supreme Court 1971 (WA), O 72 r 5A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First-named Appellant    :     No appearance
Second-named Appellant     :     No appearance
Respondent:     Mr D P Butler

Solicitors:

First-named Appellant    :     No appearance
Second-named Appellant     :     No appearance
Respondent:     Lavan Legal

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

Dodds v Kennedy [2011] WASCA 32
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

REASONS OF THE COURT: This matter was listed before the court on 5 June 2014, pursuant to a registrar's notice to attend dated 14 May 2014:
1.To determine whether the appeal has been dismissed for failure to comply with the order made by Newnes JA on 22 January 2014.
2.If the appeal has not been dismissed, for the appellants to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The orders made by Newnes JA on 22 January 2014 were, relevantly, that:
Unless on or before 28 February 2014 the appellants do file and serve the appellants' case the appeal do stand dismissed and the appellants pay the respondent's costs of the appeal (including any reserve costs) to be taxed.
The background is as follows. The appellants jointly owned a property at 28 Simpson Street, Applecross. They had lived in it from 1998 until 2007, after which the property was used as an investment property. They obtained a business loan from the respondent (Westpac) pursuant to a loan agreement dated 11 July 2008, with a facility limit of $1.085 million. They mortgaged the property to secure the loan. The business loan was for the purposes of refinancing existing loans and for purchasing other investment properties.
Following a notice of demand on 9 November 2012, Westpac commenced proceedings for repayment of the debt and the possession of the property on 12 February 2013.
The matter was listed for a case management conference before Registrar Whitby on 25 March 2013, and…

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: [2014] WASCA 128
Decision Date: 9 JULY 2014

CaseChat Overview and Summary

In the case of Mavaddat v Westpac Banking Corporation, the dispute arose from a decision made by the trial court in relation to a loan agreement between the plaintiff and the defendant, Westpac Banking Corporation. The plaintiff sought to appeal the decision, but faced delays in filing their case due to difficulties in meeting the required deadlines. The case was before the Court of Appeal, which had to determine whether the appeal should proceed despite the delays.

The primary legal issues before the Court of Appeal were whether the appellant had failed to comply with an earlier order extending the time for filing their appeal, and if so, whether the appeal should be dismissed on the basis that none of the grounds of appeal had a reasonable prospect of success. The court was required to balance the importance of timely filing of an appeal with the need to ensure that justice is served and that the appellant's rights are not unfairly prejudiced by procedural delays.

The Court of Appeal found that the appellant had indeed failed to comply with the order extending the time for filing their appeal. Despite this, the court considered whether the appeal should proceed by examining the merits of the grounds of appeal. After careful consideration, the Court concluded that none of the grounds of appeal had a reasonable prospect of success. As a result, the appeal was dismissed, and the decision of the trial court was upheld.

No further orders were made by the Court of Appeal in this case.

Orders