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 defendants to pay the respondent bank an amount in excess of $10 million. It also provided for the appellant and the other defendants to give vacant possession of the mortgaged properties.
[1] Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh [2022] WASC 339.
The mortgaged properties comprise two farming properties.
An appeal against Tottle J's judgment for payment of the monetary amount and delivery up of the mortgaged properties was unsuccessful. See McCagh v Rural Bank (A Division of Bendigo and Adelaide Bank Ltd).[2] Pending determination of the appeal this court suspended the enforcement of the judgment entered in favour of the respondent bank. That stay was discharged when this court dismissed the appeal on 24 June 2024.
[2] McCagh v Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68 (Appeal Judgment).
The relevant background is otherwise sufficiently summarised in the Appeal Judgment at [1] ‑ [5] and [7] ‑ [17].
Since 24 June 2024 the respondent bank has taken steps to enforce its judgment of 13 October 2022. The steps taken, and the appellant's response thereto, are summarised in a further decision of Tottle J delivered on 9 April 2025. See Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh [No 2].[3] Among other things the bailiff took possession of the mortgaged properties on 26 February 2025. Nonetheless, in the course of his reasons of 9 April 2025 Tottle J observed as follows:
I am satisfied the plaintiff [ie the respondent bank] has an unconditional right to possession of the properties. I am also satisfied that Mr David McCagh [ie the appellant], whether as a result of advice he has received or otherwise, has taken steps which are calculated to delay, obstruct and impede the plaintiff's rights to possession of the land. In the light of the history of this matter, I am satisfied that unless restrained from doing so, such steps will continue in ever inventive and imaginative ways and with reliance on further legal arguments which may have, as the arguments raised to date have had, no legal merit [25].
[3] Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCagh [No 2] [2025] WASC 142 [5] ‑ [6], [9] ‑ [19].
There has been no appeal from that finding.
Tottle J's reasons of 9 April 2025 resulted in orders made that day, later amended on 15 April 2025, which, among other things, restrained the appellant from accessing the mortgaged properties or disturbing or interfering with the sale and marketing of the mortgaged properties. Tottle J also made an anti-suit injunction preventing the appellant from proceeding with an action commenced against the Registrar of Titles in the Federal Court of Australia. That action sought to restrain the Registrar from transferring title to the mortgaged properties. Tottle J characterised the Federal Court proceedings as a 'transparent and meritless attempt to frustrate the integrity of the processes of this court' [28]. Again, there has been no appeal against that finding. Nor has there been an appeal against the orders of 9 April 2025 as amended on 15 April 2025.
Further orders were made on 17 April 2025 to give effect to aspects of the 9 April 2025 orders dealing with livestock that remained on the mortgaged properties.
The present appeal concerns orders that Tottle J made on 28 May 2025 in respect of a chamber summons filed by the appellant on 23 May 2025. Relevantly, under the heading 'The Bank does not have standing in Court', the chamber summons sought orders that:
1.Pursuant to Order 31 rule 2, set aside the orders made by the Honourable Justice Tottle on:
a)9 April 2025;
b)15 April 2025 (as amended);
c)17 April 2025; and
d)13 October 2022.
2.Pursuant to Order 47 rule 13, stay the Respondent, Bendigo and Adelaide Bank (BEN) from undertaking any further enforcement action - including eviction, foreclosure, or recovery - unless and until the Trustee is joined to the proceeding and a Perfection of Title Event is proven.
Accordingly, in substance the appellant sought to set aside the judgment for delivery up of vacant possession of the mortgaged properties together with the subsequent ancillary or incidental orders to assist in enforcement of the judgment for possession.
There was an obvious problem with the application so far as it invoked O 47 r 13 of the Rules of the Supreme Court 1971 (WA). That rule was repealed in 2007. Tottle J instead dealt with the application on the basis that it sought to suspend the enforcement of the orders pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA) or to stay the operation of the orders in the inherent jurisdiction of the court.
The application was supported by the appellant's affidavit sworn 21 May 2025. Among other things that affidavit attached, as annexure C, what was described as a 'Bespoke Report'. This commences at page 37 of the affidavit. Based on the Bespoke Report the appellant asserted that:
1.The respondent bank had assigned its mortgages and loans to an entity referred to as the 'Torrens Trust' (pars 11, 13, 14, 15).
2.The respondent bank had no further legal interest and no right to bring these actions to court. The appellant asserted that the respondent bank had no standing to take any action to recover or enforce the relevant loans (pars 11, 15).
The appellant's application by the chamber summons filed on 23 April 2025 was heard by Tottle J on 28 May 2025. Tottle J gave oral reasons dismissing the application that day. The present appeal is against the order dismissing the application. For that reason it is appropriate to set out Tottle J's reasons for dismissing the application in a little more detail. Tottle J first dealt with the evidentiary weight to be given to the Bespoke Report. His Honour stated:
The author of the Bespoke Report is not identified, and the report in effect contains assertions and conclusions of a legal nature and without any proper reasoning or foundation or identification of the factual foundation for the conclusions contained in that report, or indeed without any identification of the author or authors of the report or the qualifications of the author or authors. In short, the report has no evidential weight or value (ts 356).
After dealing with a matter that has not been raised on the present application Tottle J turned to whether the respondent bank was the proper plaintiff and had the right and title in law to commence the action and prosecute it to judgment and enforcement. Tottle J found:
The point raised or the argument raised by the defendant [ie the appellant] does not have a solid evidentiary foundation, for the reasons I dealt with a few moments ago, but more fundamentally, it is misconceived and has no legal merit. That is for at least these reasons. First of all, as Mr Zappia for the plaintiff contends [Mr Zappia being counsel appearing for the respondent bank], the plaintiff is the registered mortgagee and the register is conclusive as to its entitlement to the benefit of the mortgages and to all ancillary rights. Secondly, as was confirmed by Mr Skelton [Mr Skelton being counsel appearing for the appellant] in our exchanges, the defendants have received no notice under s 20 of the Property Law Act (WA) to the effect that the plaintiff's rights have been assigned to any third party.
The consequence of the absence of such a notice is that if - and this is a big if, and it is an assumption made in the defendants' favour - there has been an assignment, such an assignment can only have taken effect as an equitable assignment. And that being so, the [respondent bank] is indeed the proper plaintiff in this action, because an equitable assignee has no right to bring such an action. That is, the law in that respect was stated clearly by the Court of Appeal in APT Finance Proprietary Limited v Bajada [2008] WASCA 73 (ts 357 - 358).
Accordingly, Tottle J dismissed the application for the following three reasons:
1.First, no evidentiary weight could be attached to the Bespoke Report meaning that the appellant had not established that the mortgages and the loan had been assigned by the respondent bank to the Torrens Trust.
2.Second, the respondent bank was the registered mortgagee and the register as maintained by the Registrar of Titles was conclusive as to the respondent's entitlement to the benefit of the mortgages.
3.Third, even if, contrary to the first reason, there had been an assignment, in the absence of notice under s 20 of the Property Law Act 1969 (WA) - no such notice being asserted - the assignment could only take effect as an equitable assignment, and the respondent bank remained the proper plaintiff in the action.
On 17 June 2025 the appellant filed an appeal notice appealing from the orders made by Tottle J on 28 May 2025.
This morning the appellant filed an application in an appeal seeking to stay the orders of Tottle J made 13 October 2022 in the primary proceedings. The grounds of the application are described as follows:
Prima Facie Case
1.[The appellant] raises the legal issue, whether the Bank's assignment of the mortgages associated with the two properties concerned, to the Security Trustee of the Torrens Trust (a copy was supplied in the McCagh affidavit at the 28 May 2025 WASC hearing), removes legal control from the plaintiff bank notwithstanding the decision of the WASC of the 28 May 2025 to dismiss the Mortgagor's application based on the Property Law Act 1969, section 20, that the legal title to the mortgage remains with the Mortgagee Bank. Whilst the Bank may have bare legal title conferred under WA law, the assignment of legal control to the Trust denies the Bank's standing.
2.If the WASC decision is upheld and legal control remains with the bank then the bond holders in the Torrens Trust may have no security, because the security trustee of the Torrens Trust cannot enforce the security. The Trust would have no legal recourse to the land asset held by the mortgagee, Bank.
Balance of Convenience
3.If the stay is not granted, the Mortgagee Bank will sell the Mortgagor Plaintiff's two farming properties. The process of sale is advanced, but has not effected settlement yet. The Plaintiff is a 61 years old farmer and cannot recover if the farms are sold.
4.If the stay is granted, the Mortgagor, McCagh cannot alter or dissipate the land asset, hence there is no prejudice to the Mortgagee bank beyond delay associated with the Appeal.
Abuse of Process or Injustice
5.Allowing the properties to settle will render the Applicant Mortgagor's Appeal nugatory. The Respondent bank claims the status of mortgagee in possession and continues to assert control over the two properties.
The reason why the appellant has delayed from 17 June 2025 to today to make an application for a stay is unexplained. However, the appellant says that the application is urgent. This is because, according to the appellant, one of the mortgaged properties is to be transferred today. That being the case the court has accommodated an urgent hearing. It should be pointed out, however, that the urgency is all of the appellant's own making. In oral submissions counsel for the respondent bank informed the court that settlement in relation to one of the mortgaged properties has already occurred. That settlement is said to have happened last Monday (ie two days ago). Settlement of the remaining mortgaged property is scheduled for 2.00 pm tomorrow afternoon.
The appellant's affidavit of 24 June 2025 takes the matter no further. The appellant says that he seeks a legal decision as to whether the legal interest in the mortgaged properties assigned to the Torrens Trust confers legal and equitable title on the Trust rather than the respondent bank (par 1). Otherwise he deposes that the judgment for possession has been executed, the sale of the mortgaged properties is in process and the transfer is imminent (par 3). The appellant says that the prospective buyer is already cropping one of the two farms (par 4).
The organising principles on which this court determines whether it will grant or refuse a stay are well established and apply equally to the various available sources of power to order a stay. See generally Eastland Technology Australia Pty Ltd v Whisson[4] and Tradesman Technologies Pty Ltd v Ameduri.[5] Broadly speaking, there are three primary considerations. First, whether a stay is necessary to preserve the subject matter of the appeal - ie whether, without the stay, the appeal might be rendered nugatory. In this respect the term 'nugatory' is used in the sense of indicating that a stay is necessary to preserve the subject matter or the integrity of the litigation or as indicating that, at the least, refusal of a stay could create practical difficulties in respect of the relief which may be granted on the appeal. Second, whether the appeal has reasonable prospects of success. Third, whether the balance of convenience favours the grant of the stay.
[4] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
[5] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] - [23].
The central issue will generally be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. In this respect, speaking broadly, the essential question is whether - having regard to the likely practical consequences as well as the legal consequences - the appeal would be futile unless a stay was granted: Sino Iron Pty Ltd v Mineralogy Pty Ltd.[6]
[6] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2023] WASCA 96 [44] - [45].
At the outset it should be stated that the application to stay the orders of 13 October 2022 is misconceived. The relevant aspect of those orders is the judgment for delivery up of vacant possession. Delivery up of vacant possession has been effected. What the appellant seeks to do is not to re-enter into possession of the mortgaged properties but rather to prevent the respondent bank transferring the mortgaged properties. Such a transfer could be effected even if this court stayed the operation of the orders of 13 October 2022 pending the hearing and determination of the appeal. If that is to be prevented the appellant must instead seek and obtain coercive orders enjoining the respondent bank from transferring the mortgaged properties pending the hearing and determination of the appeal. On this being raised by the court counsel for the appellant sought such injunctive relief. There was, however, no proffer of an undertaking as to damages. Nor was there any offer to make payment into court in accordance with the principles in Inglis v Commonwealth Trading Bank of Australia.[7]
[7] Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161, 164.
We will assume, without deciding, that this court may enjoin the respondent bank from effecting a transfer of the mortgaged properties notwithstanding that the respondent bank has effected its power of sale. There is at least doubt as to that proposition. In the limited time available to us we have not had a chance to consider the relevant authorities. We are, however, not satisfied that any such injunctive relief should be granted even if injunctive relief could be granted.
It is convenient to consider whether such injunctive relief should be granted by reference to the organising principles applicable to an application for a stay. That is the basis on which the application was brought. In that respect we accept that refusal of an injunction will create practical difficulties in respect of the relief which may be granted on the appeal. A sale of the mortgaged properties has been and will be effected by the respondent bank in the absence of an injunction restraining it from doing so. In terms of prejudice it is the future sale that is relevant. The sale that has been effected cannot be undone. The purchaser will obtain indefeasibility of title under the Transfer of Land Act 1893 (WA). This court will not be able to restore the appellant to his position as registered proprietor of the fee simple estate in the mortgaged properties. No doubt the appellant could obtain appropriate monetary relief if it transpires that he is successful on appeal. But that is not the primary relief which the appellant seeks by this appeal. It would be going too far to say that the appeal will be rendered futile unless an injunction is granted. However, for present purposes it suffices that the refusal of an injunction could create practical difficulties in respect of the relief which may be granted on the appeal.
Against that, however, the appellant has not established that the appeal has reasonable prospects of success. Nor does the balance of convenience favour the grant of an injunction.

What is sufficient to amount to reasonable prospects of success for the purpose of a stay application is ordinarily not a high hurdle. It will usually be enough to show that the grounds of appeal have a rational and logical prospect of succeeding: Apache Energy Ltd v Alcoa of Australia Ltd;[8] Sino Iron Pty Ltd v Mineralogy Pty Ltd [50]. Grounds of appeal that have a rational and logical prospect of succeeding are grounds that are not irrational, fanciful or absurd: Samuels v The State of Western Australia.[9] Accordingly, this consideration is concerned with unmeritorious appeals. It means that the court may refuse a stay in circumstances where it is plain that the appeal is without merit and was brought merely for the purpose of delaying compliance with the judgment or order under appeal: Apache Energy Ltd v Alcoa of Australia Ltd [27].
[8] Apache Energy Ltd v Alcoa of Australia Ltd [2012] WASCA 201 [27].
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
After the application in an appeal was filed the appellant was ordered to file draft grounds of appeal. Nothing in the draft grounds of appeal challenges the first two reasons given by Tottle J for the dismissal of the application by chamber summons filed 23 May 2025. The challenge is confined to his Honour's reason based on s 20 of the Property Law Act. Accordingly, even if the draft grounds of appeal had prospects of success - something on which we make no findings - the appeal itself cannot succeed based on the draft grounds of appeal. The first and second reasons given by Tottle J for dismissing the application would still stand. Any error in terms of the draft grounds of appeal - if there be such error - is immaterial and cannot result in this court disturbing Tottle J's order dismissing the appellant's application by chamber summons filed 23 May 2025.
The absence of demonstrated merit in the appeal suffices of itself to refuse the appellant's application in an appeal filed 2 July 2025.
We turn finally to the balance of convenience. This too is firmly in favour of refusal of the appellant's application in an appeal filed 2 July 2025. One matter in favour of the grant of an injunction is the practical difficulties that will otherwise arise in respect of the relief which may be granted on the appeal. Against that, however, is the lack of merit in the appeal. In any case, while this court will not be able to effect restoration of the mortgaged properties to the appellant in the event of the appeal succeeding, there may be substitutive restoration in terms of monetary relief should it be established that the respondent bank lacks legal title to the mortgages and the debt. Accordingly, the refusal of an injunction by way of a stay will not render the appeal entirely nugatory.
Otherwise the relevant factors are all against the grant of an injunction. First, the appellant has delayed in filing his application in an appeal. That delay appears to be deliberate and is in keeping with Tottle J's observation that the appellant has taken steps which are calculated to delay, obstruct and impede the respondent bank's rights. Second, no undertaking as to damages is proffered. Third, the mortgage debt has not been paid into court; nor is there any suggestion that it might be. Fourth, the appellant has already brought an unsuccessful appeal against the substantive judgment of 13 October 2022. The application of 23 May 2025, and the current appeal from the dismissal of that application on 28 May 2025, is self‑evidently a strategic attempt to advance a second appeal by a side‑wind notwithstanding that there is but one right of appeal which has been exhausted. No cogent explanation has been advanced as to why the argument now advanced based on a supposed assignment of the mortgages and the debt was not advanced in the prior appeal to this court. Fifth, the respondent bank has proceeded to exercise its power of sale; one sale has completed and a further transfer pursuant to the sale is imminent. An injunction would potentially render the respondent bank in breach of its contractual obligations as to the second transfer in circumstances where no undertaking as to damages is proffered. Sixth, the injunction would be potentially deleterious to the purchaser from the respondent bank - a third-party who is not before the court.
For these reasons we would dismiss the appellant's application in an appeal filed 2 July 2025. We would hear the parties as to the costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Hon Justice Vaughan
3 JULY 2025