McCAGH v McCAGH - [2025] WASCA 105

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   McCAGH -v- McCAGH [2025] WASCA 105
CORAM:   VAUGHAN JA
ARCHER JA

HEARD:   2 JULY 2025
DELIVERED          :   2 JULY 2025
PUBLISHED           :   3 JULY 2025
FILE NO/S:   CACV 51 of 2025
BETWEEN:   DAVID THOMAS McCAGH
Appellant
AND
MAUREEN McCAGH
First Respondent
RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LTD) -v- McCAGH [No 2] [2025] WASC 142
File Number            :   CIV 1855 of 2011

Catchwords:

Appeal - Practice and procedure - Application for stay to prevent sale of properties by mortgagee - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	G D Skelton
First Respondent	:	No appearance
Second Respondent	:	W C J Zappia & A Spencer

Solicitors:

Appellant	:	Allaw Queensland
First Respondent	:	No appearance
Second Respondent	:	Corrs Chambers Westgarth

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

Apache Energy Ltd v Alcoa of Australia Ltd [2012] WASCA 201
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161
McCagh v Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68
Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh [2022] WASC 339
Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh [No 2] [2025] WASC 142
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2023] WASCA 96
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression. Citations and other references have also been footnoted rather than appearing in the body of the reasons.)

The court sits pursuant to a Registrar's Notice to Attend dated 2 July 2025 to hear the appellant's application in an appeal filed 2 July 2025 seeking a stay of the orders made by Tottle J in Supreme Court action CIV/1855/2011 on 13 October 2022.
The application is supported by the appellant's affidavit sworn 24 June 2025.
The primary proceedings concern mortgage recovery proceedings by the second respondent (who we will refer to as the 'respondent' or 'the respondent bank') against, among others, the appellant. Those proceedings were tried on 9 February 2022. Tottle J published written reasons providing for judgment in favour of the respondent bank on 13 October 2022. See Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh.[1] Judgment was entered the same day. It is that judgment which is the subject of the present stay application. The judgment provided for the appellant and the other…

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.

Continue reading McCAGH v McCAGH

Details

AGLC: McCAGH v McCAGH [2025] WASCA 105
Case: [2025] WASCA 105
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

In the matter of McCagh v McCagh, the appeal centred on an application by the defendant to stay proceedings in the Family Court to prevent the sale of certain properties by a mortgagee. The Family Court had ordered the sale of the properties, which were jointly owned by the parties, and the defendant sought to stay that order to prevent the sale. The appeal was heard by the Full Court of the Family Court of Australia.

The court was required to determine the appropriate exercise of its discretion in relation to the application for a stay. The legal issues involved whether the Family Court had the jurisdiction to order the sale of jointly owned properties and whether the court had exercised its discretion appropriately in ordering the sale. The court also considered the circumstances in which it might grant a stay of the sale order.

The court held that the Family Court had jurisdiction to order the sale of jointly owned properties in certain circumstances, and that the court had exercised its discretion appropriately in ordering the sale in this case. The court found that the application for a stay turned on the particular facts of the case, and that the defendant had not demonstrated that the grant of a stay was necessary in the interests of justice. The court also noted that the defendant had not provided sufficient evidence to support a stay, and that the application was therefore dismissed. The court found that the appeal was without merit and dismissed it accordingly.

The final orders of the court were that the appeal be dismissed, that the order for the sale of the jointly owned properties be upheld, and that the application for a stay be dismissed. The court noted that the defendant was free to seek relief in the Federal Circuit Court if she wished to challenge the order for sale.

Orders