McLean v Permanent Custodians Ltd - [2010] WASCA 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McLEAN -v- PERMANENT CUSTODIANS LTD [2010] WASCA 123

CORAM: PULLIN JA
NEWNES JA

HEARD: 28 MAY 2010

DELIVERED : 5 JULY 2010

FILE NO/S: CACV 7 of 2010

BETWEEN: SHONA DIMITY McLEAN
Appellant
AND
PERMANENT CUSTODIANS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :CIV 1636 of 2009

Catchwords:

Practice and procedure Application to dismiss appeal Rule 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) Grounds of appeal manifestly defective Failure to prosecute application for leave to adduce new evidence No effective progress in appeal over period of four months Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms L Horwood
Respondent: Mr P A Sheiner

Solicitors:

Appellant: L Horwood Solicitor
Respondent: Gadens Lawyers

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

McLean v Westpac Banking Corporation [2010] WASCA 124

JUDGMENT OF THE COURT: This appeal has been brought on to consider three applications in the appeal. They are:
1.The respondent's application filed on 4 May 2010 seeking, in substance, an order that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal has any reasonable prospect of succeeding, and, alternatively, that each of the grounds of appeal to be struck out pursuant to r 43(2)(f), on the same basis.
2.The appellant's application dated 16 March 2010 seeking:
(a)leave to adduce evidence that was not before the court below; and
(b)a stay of the orders made by the primary judge pending the determination of the appeal.
Before turning to a consideration of those applications it is necessary to outline the background to them.

Background

The appeal arises out of a loan agreement, dated 8 April 2008, made between the appellant and the respondent. In essence, pursuant to the loan agreement the respondent agreed to lend to the appellant the sum of $337,810, and the appellant agreed to repay that sum and interest on it by consecutive monthly instalments over a period of 30 years. The appellant granted the respondent a mortgage over a property in Ewen Street, Scarborough by way of security for the loan. The loan money was advanced by the respondent but the appellant subsequently failed to make repayments required under the loan agreement. Following the appellant's failure to rectify the default in accordance with a default notice served on her, the respondent commenced proceedings for vacant possession of the mortgaged property pursuant to the mortgage, and for recovery of the balance of the money owing to it.
The appellant, who was then acting in person, filed a memorandum of appearance and the respondent then brought an application for…

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: [2010] WASCA 123
Decision Date: 5 JULY 2010

CaseChat Overview and Summary

The appellant brought an appeal against the respondent in the Supreme Court of Western Australia, Court of Appeal, challenging a summary judgment entered in the primary court. The judgment had been entered in favour of the respondent in proceedings that the respondent had brought for possession of a mortgaged property and recovery of money owing under a loan agreement. The respondent filed an application for the appeal to be dismissed on the ground that none of the grounds of appeal had any reasonable prospect of succeeding. The appellant filed two applications: one for leave to adduce evidence that was not before the primary court and another for a stay of the orders made by the primary judge pending the determination of the appeal. The court had to determine whether the appeal should be dismissed and whether the appellant should be granted leave to adduce new evidence and a stay of the orders made by the primary judge. The court held that the appeal should be dismissed. The court held that the appeal was manifestly defective and that none of the grounds of appeal had any reasonable prospect of succeeding. The court held that the appellant had failed to make any effective progress in the appeal over a period of four months. The appeal was turned on its own facts and did not raise any substantial question of law. The court held that there were no grounds for the appellant to be granted leave to adduce new evidence and a stay of the orders made by the primary judge. The appeal was dismissed and the applications were refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: This appeal has been brought on to consider three applications in the appeal. They are:1.The respondent's application filed on 4 May 2010 seeking, in substance, an order that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal has any reasonable prospect of succeeding, and, alternatively, that each of the grounds of appeal to be struck out pursuant to r 43(2)(f), on the same basis.2.The appellant's application dated 16 March 2010 seeking:(a)leave to adduce evidence that was not before the court below; and (b)a stay of the orders made by the primary judge pending the determination of the appeal. Before turning to a consideration of those applications it is necessary to outline the background to them. The appeal arises out of a loan agreement, dated 8 April 2008, made between the appellant and the respondent. In essence, pursuant to the loan agreement the respondent agreed to lend to the appellant the sum of $337,810, and the appellant agreed to repay that sum and interest on it by consecutive monthly instalments over a period of 30 years. The appellant granted the respondent a mortgage over a property in Ewen Street, Scarborough by way of security for the loan. The loan money was advanced by the respondent but the appellant subsequently failed to make repayments required under the loan agreement. Following the appellant's failure to rectify the default in accordance with a default notice served on her, the respondent commenced proceedings for vacant possession of the mortgaged property pursuant to the mortgage, and for recovery of the balance of the money owing to it. The appellant, who was then acting in person, filed a memorandum of appearance and the respondent then brought an application for summary judgment. In response to that application, the appellant swore an affidavit in which she stated that she had a good defence to the claim. The appellant went on to say that that was based on her belief 'that the [respondent's] documentation is void and invalid in that it does not conform with Established Banking Practices as defined in "Dictionary of Banking" by William Thompson, January 1911 "Acceptance" '. Not surprisingly, that defence did not carry the day and, on 14 January 2010, summary judgment was entered for the respondent. Kenneth Martin J ordered that the appellant give possession of the property in Ewen Street, Scarborough to the respondent and pay to the respondent the sum of $393,729.80. The appellant was ordered to pay the costs of the application for summary judgment and of the action. The notice of appeal was filed, on 3 February 2010, by the appellant in person. On 10 March 2010, the appellant's current solicitor, Ms Horwood, filed a notice that she was acting on behalf of the appellant. At the same time the appellant's case was filed. It was signed by both the appellant and Ms Horwood. The grounds of appeal contained in the appellant's case were as follows:1.The appellant was acting in person and a miscarriage of justice has occurred as there is evidence of breaches of the Consumer Credit code and that evidence was not before the court.2.There has been a miscarriage of justice in that the Respondent/Plaintiff lender knew or should have known of the Appellant's lack of capacity to service the loan at the time that the loan monies were advanced.The misrepresentation is:(a)The Respondent's lender had an obligation to ensure that the Appellant had the income or financial capacity to support the application.(b)The Appellant did not have the income or financial capacity to support the loan repayments.(c)There have been breaches of the Consumer Credit Code and the original jurisdiction for said breaches is the State Administrative Tribunal.(d)The Appellant has accordingly issued proceedings in the SAT matter CC86 of 2010, that commenced on the 4th of February 2010 and are ongoing.3.His Honour relied on the loan agreement, which is subject to being set aside or varied in the SAT proceedings if it determined that there have been breaches of the Consumer Credit Code. Further, the lender/Respondent:i.Failed to provide documents despite requests (original loan details, loan application).ii.Failed to reply to correspondence previously forwarded to them by the Appellant requesting documentation.4.His Honour relied on the loan document which is liable to be set aside or varied if the SAT proceedings result in a finding that the Respondent lender breached the Consumer Credit Code.5.The Appellant will suffer a miscarriage of justice if the summary judgement is allowed to stand or is enforced.

Ratio Decidendi

Legal Principle Established

The appellant's case, as in the Westpac appeal, appears to be based on s 70 and s 71 of the Consumer Credit (Western Australia) Code, made under the Consumer Credit (Western Australia) Act 1996 (WA). The effect of the relevant provisions of the Act and Code is described in McLean v Westpac Banking Corporation [2010] WASCA 124 and it is unnecessary to repeat what is said there. The appellant says that the primary judge erred in finding that the respondent was entitled to summary judgment in circumstances where the loan agreement and the mortgage are liable to be set aside by the State Administrative Tribunal (SAT) under s 71 of the Code in proceedings she has instituted in SAT. (We note that, as in the Westpac appeal, the SAT proceedings were commenced after judgment was given in this court). The only explanation of the factual basis of the appellant's claim in SAT is set out in the affidavit of the appellant which accompanied the application for a stay of the judgment. In the affidavit, the appellant deposes to having lodged an application under the Code in SAT on 18 January 2010, and annexes to the affidavit a copy of the application. The appellant does not depose to the truth of the contents of the application. In the SAT application, it is asserted that:[A] contract was created unlawfully, using unjust and improper information on application. That the [respondent] failed to conduct proper due diligence to ascertain the correct facts. The [respondent] created the loan, knowing that the [appellant] did not meet proper lending criteria and that the loan default the [respondent] would be likely to obtain the secured property. Under the Consumer Credit Code Section 70 [sic]. It is to be inferred that the contract referred to is the loan agreement between the appellant and the respondent. The appellant goes on in the affidavit to say (relevantly) as follows:7.The application for Execution of Summary Judgement is inappropriate at this time due to my current application with both SAT and the Appeal Court wherein I am seeking to Set Aside Summary Judgement as there is a risk of prejudice to me if judgement is executed without the SAT having the opportunity to ventilate relevant issues in which it has original jurisdiction under the Consumer Credit Act.…9.My application to the State Administrative Tribunal is brought under s 70 of the Consumer Credit Code which provides that the SAT may if it finds that a contract is unjust, set it aside, discharge a mortgage or make an order for relief, which is not within the power of the Supreme Court in an original capacity. It would be unjust to allow the Bank to dispose of my property which the Plaintiff has a mortgage over in connection with the loan the subject of this action.10.I did not hold the property for investment purposes.11.Advice I received prior to lodging the appeal suggests, and I do believe, that the bank breached the consumer credit code by failing to ascertain whether I had the capacity to pay back the loan repayments under the loan agreement I entered into with the Plaintiff.12.In fact, at the time the bank advanced the money it should have been obvious that I did not have that capacity and they have breached the code by advancing monies to me and taking a security over the property in those circumstances and these issues have to be considered by the State Administrative Tribunal if justice is to be served.13.I have not been in full employment for the past 10 years and have been self‑supporting. These and other submissions, and the fact that the majority of the loan monies advanced were applied to domestic purposes and living expenses and not applied for investment purposes.14.If the bank sells the property I can never be compensated adequately even if I am awarded monetary damages as it is a unique property with a lifetime of memories attached to it.