McLean v Westpac Banking Corporation - [2010] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McLEAN -v- WESTPAC BANKING CORPORATION [2010] WASCA 124

CORAM: PULLIN JA
NEWNES JA

HEARD: 28 MAY 2010

DELIVERED : 5 JULY 2010

FILE NO/S: CACV 122 of 2009

BETWEEN: SHONA DIMITY McLEAN
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
File No  :CIV 1914 of 2009

Catchwords:

Practice and procedure Notice to appellant to show cause why appeal should not be dismissed 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 seven months Turns on own facts

Practice and procedure Application for stay of enforcement of judgment Civil Judgments Enforcement Act 2004 (WA), s 15 Failure to show appeal has reasonable prospect of success

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: Ms A J Preece

Solicitors:

Appellant: L Horwood Solicitor
Respondent: Jackson McDonald

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

Avsar v Binning [2009] WASCA 219
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Smolarek v Brian Keith McMaster As Administrator of Eznut Pty Ltd [2006] WASCA 216

JUDGMENT OF THE COURT: This appeal has been brought on pursuant to a registrar's notice to attend, dated 24 May 2010, requiring the parties to attend for the following purposes:
1.For the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal has a reasonable prospect of succeeding or, alternatively, the appellant has not complied with the Rules;
2.to consider the appellant's application for a stay of execution; and
3.for directions in relation to the appellant's application for leave to adduce additional evidence.

The background

It is necessary, before turning to those matters, to set out the relevant background.
The appeal arises out of a loan agreement made between the appellant and the respondent on or about 31 July 2008. In essence, the respondent agreed to advance to the appellant the sum of $560,000, repayable by the appellant by consecutive monthly payments over a period of 30 years, and the appellant agreed to secure the loan moneys by granting a mortgage over a property in Ledge Point. The mortgage was duly registered on or about 14 August 2008.
The loan money was advanced by the respondent but the appellant subsequently defaulted in repayments due under the loan agreement. On or about 6…

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 124
Decision Date: 5 JULY 2010

CaseChat Overview and Summary

The appeal in McLean v Westpac Banking Corporation was brought by the appellant, McLean, against the respondent, Westpac Banking Corporation. The dispute originated from a loan agreement dated 31 July 2008, where Westpac loaned McLean $560,000 to be repaid over 30 years, secured by a mortgage on a property in Ledge Point. After McLean defaulted on the loan, Westpac served a default notice and subsequently sought vacant possession of the property. The primary judge granted Westpac’s application for summary judgment, ordering McLean to vacate the property. McLean appealed this decision and filed a notice of appeal on 12 October 2009. The appeal raised several complex and lengthy grounds which were considered defective and did not properly address the issues at hand.

The court had to decide several key legal issues. Firstly, whether the grounds of appeal were adequate and had a reasonable prospect of success. Secondly, whether McLean had made sufficient progress in prosecuting the appeal, particularly in relation to her application to adduce new evidence. Thirdly, whether McLean's application for a stay of execution of the judgment should be granted, considering the likelihood of success on appeal. The court's task was to assess whether the appeal met the necessary criteria under Rule 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) and whether the appeal had progressed effectively over the stipulated period.

The court found that the grounds of appeal were manifestly defective, as they did not relate to the defence now being asserted and did not constitute proper grounds. Additionally, McLean had made no effective progress in the appeal over a period of seven months, failing to adequately address the application for leave to adduce new evidence. The court concluded that McLean had not demonstrated that the appeal had a reasonable prospect of success. Consequently, the court dismissed the appeal and denied the application for a stay of execution. The dismissal hinged on the fact that McLean had not shown that the appeal had a reasonable prospect of success and had not made effective progress in the appeal process.

The court ordered that the appeal be dismissed with costs to be paid by McLean. The court also made orders regarding the appellant's application for leave to adduce additional evidence, and for directions in relation to the enforcement of the judgment. This outcome underscored the importance of adhering to procedural rules and the necessity of demonstrating a reasonable prospect of success in appeals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This appeal has been brought on pursuant to a registrar's notice to attend, dated 24 May 2010, requiring the parties to attend for the following purposes:1.For the appellant to show cause why the appeal should not be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) on the ground that none of the grounds of appeal has a reasonable prospect of succeeding or, alternatively, the appellant has not complied with the Rules;2.to consider the appellant's application for a stay of execution; and 3.for directions in relation to the appellant's application for leave to adduce additional evidence. It is necessary, before turning to those matters, to set out the relevant background. The appeal arises out of a loan agreement made between the appellant and the respondent on or about 31 July 2008. In essence, the respondent agreed to advance to the appellant the sum of $560,000, repayable by the appellant by consecutive monthly payments over a period of 30 years, and the appellant agreed to secure the loan moneys by granting a mortgage over a property in Ledge Point. The mortgage was duly registered on or about 14 August 2008. The loan money was advanced by the respondent but the appellant subsequently defaulted in repayments due under the loan agreement. On or about 6 April 2009, the respondent served a default notice requiring the appellant to rectify the defaults specified in the notice. The appellant failed to do so and the respondent brought proceedings for vacant possession of the Ledge Point property under the terms of the mortgage. The appellant filed an appearance to the writ and the respondent then brought an application for summary judgment. That application came on for hearing before the primary judge on 21 September 2009. At that hearing the primary judge had before him affidavit evidence on behalf of the respondent verifying the respondent's claim. His Honour also had an affidavit of the appellant to which was annexed a large number of documents, apparently for the purpose of seeking judgment against the respondent. It is impossible to discern the basis upon which the appellant asserted she was entitled to judgment. It is sufficient, however, for present purposes to say that it was misconceived and that nothing contained in the appellant's affidavit or the documents annexed to it suggested that the appellant had a defence to the respondent's claim or that there was any issue in dispute which ought to be tried. It is significant that the appellant did not seek to raise in opposition to the summary judgment application the ground which she now seeks to raise on the appeal. His Honour found that the respondent was entitled to judgment and ordered that the appellant deliver up vacant possession of the Ledge Point property within 28 days of service of the judgment. The appellant filed an appeal notice on 12 October 2009. At that stage she was acting on her own behalf. The appellant's case was filed on 16 November 2009. The grounds of appeal contained in it were very lengthy and did not constitute proper grounds of appeal. It is unnecessary to reproduce them. They appear, however, to relate to matters referred to in the appellant's affidavit in opposition to the summary judgment application and not to the defence now sought to be raised.

Ratio Decidendi

Legal Principle Established

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