Mytton-Watson v Commonwealth Bank of Australia - [2012] WASCA 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MYTTON-WATSON -v- COMMONWEALTH BANK OF AUSTRALIA [2012] WASCA 232

CORAM: NEWNES JA
MURPHY JA

HEARD: 12 & 26 OCTOBER 2012

DELIVERED : 15 NOVEMBER 2012

FILE NO/S: CACV 110 of 2012

BETWEEN: TERRENCE ROGER MYTTON-WATSON
First Appellant
SIDNEY MARGARET MYTTON-WATSON
Second Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 1116 of 2012

Catchwords:

Practice and procedure - Application to extend time in which to appeal - Application for a stay of summary judgment - Mortgage of properties

Legislation:

Nil

Result:

Application to extend time dismissed
Stay application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     Ms J L Klaric

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
Respondent:     Gadens Lawyers

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

Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Simonsen v Legge [2010] WASCA 238
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT: This is an application for an extension of time in which to commence the appeal and for a stay of orders pursuant to a summary judgment entered against the appellants, in favour of the respondent (the bank) on 14 June 2012. On that day, Master Sanderson ordered that the appellants pay to the bank $666,851.64 plus interest, and give possession of two properties at 44 and 46 Saunders Way, Karragullen.

Background and history of the proceedings

The orders were made pursuant to a hearing on 14 June 2012 at which the appellants represented themselves (as they do in these applications). On that occasion, the principal affidavit relied on by the bank was one sworn by Mr Podrugovic, an officer of the bank, on 18 May 2012. Mr Podrugovic deposed to the effect that he had worked on, and was familiar with, the books of account kept by the bank with respect to the appellants' accounts with the bank, and had personal knowledge of the matters therein. He verified the statement of claim, which was to the effect that the bank had advanced certain money to the appellants pursuant to three loan agreements, the appellants had mortgaged the two properties to secure their borrowing, that there had been defaults specified by notice dated 12 October 2011 which had not been rectified, and in consequence of the unremedied defaults, the amounts owing under the loan agreements were due and payable and that the bank was entitled to possession of the properties. Mr Podrugovic annexed what he said were the relevant certificates of title, loan agreements signed on behalf of the bank and by the borrowers, the mortgage, terms and conditions of the relevant instruments and a statement of account with respect to the third of the loan facilities.
Mr Podrugovic had sworn that the principal amounts that the appellants had borrowed totalled approximately $613,000 comprising:
(a)$372,252 under the first loan agreement;
(b)$181,095 under the second loan agreement; and
(c)$174,475, reduced to $60,000 on or about 1 September 2009 under the third loan agreement.
As noted above, Mr Podrugovic had also deposed to the effect that each of the loans was secured by a mortgage over both 44 and 46 Saunders Way, Karragullen, and it is apparent that the appellants executed the loan agreements acknowledging the grant of the mortgages (Podrugovic affidavit pages 17, 24 and 30).
By the terms and conditions of the mortgage annexed to Mr Podrugovic's affidavit, the mortgages secured 'all Amounts Owing under any Secured Agreement'. The latter term is defined to mean agreements between the borrowers and the bank whenever made under which the borrowers undertook to repay money and in respect of which the borrowers acknowledged in writing the extension of the mortgage to such agreements. (See pt A and definitions of 'Amount Owing' and 'Secured Agreement' in cl A.1, Podrugovic affidavit page 71). Clause A21 provided, inter alia:
A21When are you in default?
You are in default if:
(a)you do not pay on time any of the Amount Owing;
...
A22What can happen then?
...
A22.2If you are in default and we choose to enforce this mortgage, then, except in the cases described in clause A22.3 and A22.4(c), we give you a notice before doing so.
A22.5If we have given you a notice under clause A22.2 or A22.4 and you do not fix the default within the time allowed in the notice, or you are in default and we are not required to give you a notice, we may:
(a)decide, without further notice to you, that the Amount Owing is due and payable immediately;
(b)take possession of The Property;
...
(d)sell .... The Property.
(e)do anything else the law allows us to do as mortgagee;
Clause 9 of the terms and conditions of the loans provided:
9.DEFAULT
9.1You are in default under the Contract if:
(a)you do not pay on time any amount payable under the Contract;
(b)you do not keep to the other terms of the Contract or the terms of any Security;
(c)we are not satisfied with the value or the title to the Security Property, or both;
(d)any Security Provider does not keep to the terms of the Security;
...
9.2In most circumstances we give you a notice requiring you to fix the default (if the default can be fixed) within a certain time of telling you what the default is. In some circumstances we do not have to give you a notice (for example, if a court excuses us from giving a notice).
9.3If you are in default and:
(a)you do not fix the default in the time allowed by the notice we give you under clause 9.2;
(b)the default cannot be fixed, and the time stated in the notice we give you under clause 9.2 elapses; or
(c)we do not have to give you a notice under clause 9.2,
THEN
(d)we may decide, without further notice, that all money owing by you under the Contract is due and payable immediately;
(e)we may sue you for payment of the money you owe us;
(f)we may exercise rights under the Security, including our right to sell the Security Property;
(g)we will not be required to make available to you any undrawn portion of the Loan (if applicable) nor will we be required to comply with any other of our obligations under the Contract.
We can do any or all of the above things in any order.
Under these terms and conditions, the word 'we' is defined as, in effect, the respondent bank.
The bank also relied upon an affidavit of Ms Pip Nagam, deposing to the service of the notice of default referred to in Mr Podrugovic's affidavit. The affidavit was dated 18 May 2012. The bank also filed an affidavit of Ms Kennedy sworn 29 May 2012, deposing to the fact of service of the chamber summons, and the affidavits in support of Ms Nagam and Mr Podrugovic. At the hearing, the bank was also given leave to file an affidavit by Ms Kennedy sworn 13 June 2012 which deposed to the alleged amounts outstanding on each of the loans calculated to 14 June 2012, and an affidavit of Ms Tyler of 13 June 2012, which deposed to the service of a letter dated 7 June 2012 from the bank's solicitors to the appellants with respect to the re‑listing of the bank's application for hearing on 14 June 2012.
At the hearing on 14 June 2012, the master explained to the appellants the nature of a summary judgment application and the procedure involved. In the course of describing the procedure, the master said (ts 6):
So in a summary judgment procedure like this, what I normally do is give you a period of time to file any affidavit material that you want to and then I look at the evidence provided by the plaintiff, look at the evidence provided by you, and make a decision as to whether or not the plaintiff has satisfied the very high standard of showing that there is no basis upon which the claim can be defended.
What I propose to do today, assuming that you don't agree with the judgment that is sought by the plaintiff being entered, assuming that that's the case, what I propose to do today is give you a period of time to file any affidavit material upon which you wanted to rely and then re‑list the matter for hearing at some time in the future.
Following this explanation, the male appellant inquired whether the master was 'operating under the constitutional seal' or the 'corporate seal'. The male appellant said that he needed clarification on this 'so I know where I'm coming from'.
The master indicated that he was unsure of the import of the question, but if it involved a contention that the court lacked constitutional validity, that argument would not succeed in resisting a summary judgment application.
The master then reiterated his inquiry as to whether the appellants wished to file any affidavit material in opposition to the bank's application. The appellants referred to a defence which had been filed.
Interpolating there, the defence stated 'As previously stated, there is no dispute with the plaintiff' and stated that the appellants had agreed to pay any lawful financial obligation owed to the bank on condition that the bank prove the debt and verify the claim against the appellants, 'ie; that is a signed invoice' and provide 'the original document binding both parties'. The defence also stated that the appellants 'reserve all ... lawful rights' and would not accept an offer unless it was 'shown to be lawful' by meeting conditions involving 'full disclosure of the offer, lawful terms and conditions' and the conditions referred to above in relation to validation and proof, 'with signatures of both parties, duly signed and witnessed'. The defence also stated that these conditions had 'not been complied with to our satisfaction'. The defence also stated that the appellants 'request validation to be made pursuant to the National Credit Protection Act, Corporations Act 2001 Part 2, Division 2 (Section 12CA)'. The defence concluded with the words 'without prejudice'.
Returning to the hearing on 14 June 2012, the master, having acknowledged the defence, indicated that under the summary judgment procedure, any defence was required to be raised in an affidavit. The master said (ts 7):
The rule in relation to defending summary judgment applications is that a defence, that is a statement of defence, a document which embodies the defence in paragraph fashion, isn't an answer to the claim. The evidence must be on affidavit because what I am required to do is determine whether there is evidence which will lead to a serious question to be tried.
I can only do that by looking at evidence and evidence is sworn evidence; that is, statements that are made under oath. So the question is this: do you want the opportunity to file affidavit evidence or do you want me to deal with this matter now?
The male appellant said that he would 'bypass that question for a second' and confirmed (as the defence had stated) that 'we have no dispute with the plaintiff'. Nevertheless, the male appellant said:
The plaintiff is yet to prove standing, therefore there is no controversy.
The master inquired what the male appellant meant by 'standing' and the male appellant reiterated the contention that the plaintiff had 'yet to prove standing'. He also indicated that he required a 'signed invoice'.
At this point the master said (ts 8):
Look, can I just say this to you. We first need to make the decision as to whether or not you want the opportunity to file evidence. If you do, I will give you that opportunity. If you don't, I will deal with this matter now.
But let me say to you that on the papers that I have at the moment I can't see any answer to the claim. Let me make it perfectly clear. I will give you every opportunity to put on evidence that will answer this claim but if you don't take that opportunity I will deal with the matter now.
In response, the male appellant said that he believed the matter was being 'dealt with administratively' and that if there were no controversy, then 'it's up to us to sort that out'.
The master informed the appellants that 'proceedings [had] been issued' and that 'the jurisdiction of the court [had] been invoked'. The male appellant, nevertheless, said that there had been no satisfactory answer to the questions that the appellants had asked, and that he believed 'we are entitled to those answers'. The particular 'answers' were said to be in relation to certain documents having been sent to the appellants and other requested documents which had not been sent.
The master inquired whether the appellants had Mr Podrugovic's affidavit and the male appellant confirmed that they had reviewed it. The master then said (ts 9):
I just want to make this perfectly clear. If we're going to go into an argument on the merits today I am perfectly happy to do so, but that means that you do so based upon this document, the defence, for what it's worth, and with great respect it's worth nothing. But if you want to argue the merits of the action today without putting on any evidence, then fine, but you must make a decision on that question.
The male appellant said, in this respect, that:
The plaintiff is yet to prove standing, there's no controversy and I'm walking out of here.
The master indicated that if the appellants wished the matter to be dealt with that day based on the evidence as it currently stood, he would do that.
There was further reference to the evidence filed by the bank, in response to which the male appellant said (ts 9):
Sir, I would just like to take it no further. That's it now. That's the end of it. Okay?
The female appellant added:
Okay, yes.
The male appellant again said that the bank had not proved standing and that there was no controversy, and he requested to leave the court. He then corrected himself and said:
Well, I don't request, I'm going to leave. Thank you.
The master said:
Very well. Thank you both. Alright. There should be judgment for the plaintiff in this matter. I am satisfied that the case is made out and ...
At that point counsel for the bank rose to indicate that the bank also sought to rely upon the affidavits of Ms Tyler and Ms Kennedy sworn 13 June 2012. The master granted leave and indicated that the affidavits should be filed.
Orders were made in accordance with the bank's minute of proposed orders.
On 7 August 2012, the principal registrar of the Supreme Court sealed Property (Seizure and Delivery) Orders in respect of the two properties.

The appeal to this court

On 19 September 2012 the appellants filed their notice of appeal, approximately 11 weeks out of time. Their notice of appeal states:
The appellant appeals to the Court of Appeal against the [master's] decision, as a gross act of injustice:
1.Status conference listed 28th May 2012 at 11 am, vacated and adjourned sine die. Appellants present in hearing, respondent absent.
2.First hearing 7th June 2012, Sanderson adjourned the hearing sine die, in the appellants' presence, no attendance by the respondent.
3.Sanderson acted corruptly by later recalling the listing (number 5) on 7th June 2012 for the respondent's benefit, in the appellants' absence (Sanderson had already adjourned the hearing sine die (evidence, 7th June 2012 SC hearing transcript)). Sanderson adjourned hearing to 14th June 2012 in favour of respondent, in appellants' absence.
4.Second hearing 14th June 2012 Grossly Unfair; grossly biased towards respondent. No time given to appellant to present argument, evidence, and case.
5.Respondent withheld documents and evidence from appellant.
6.No orders documents made by Sanderson from the Supreme Court WA, have been sent to the appellant, from the SC.
The effect of the notice of appeal is that the master allegedly acted 'corruptly' and with 'gross bias', and denied the appellants the opportunity to present an argument or to put on evidence. (Subsequently the appellants were more temperate in their criticism of the master).
Also on 19 September 2012, the appellants filed an application for a stay of the Property (Seizure and Delivery) Orders. The application was supported by an affidavit sworn 18 September 2012. The appellants also filed affidavits sworn 3, 10, 11 and 19 October 2012, and handed up a written outline of argument in the Court of Appeal hearing on 12 October 2012, in support of their application for a stay and in support of their application to extend the time for commencing the appeal.
In substance, by these materials, the appellants appear to contend that:
(a)they have not seen certain affidavits pursuant to which the bank had obtained substituted service on the appellants, and that they had not seen a procedural affidavit of Ms Kennedy dated 29 May 2012 (as to service of documents), the affidavit of Ms Tyler dated 13 June 2012 (as to service of the letter from the bank's solicitors dated 7 June 2012), the affidavit of Ms Kennedy dated 13 June 2012, (as to the alleged current state of the indebtedness), and an affidavit of Ms Harris dated 27 June 2012 (as to the bank's solicitors sending a copy of the master's judgment to the appellants);
(b)Ms Kennedy's affidavit of 13 June 2012 was, in any event, hearsay and inadmissible;
(c)the bank, by letter dated 19 September 2012, had redacted certain information in certain documents which it had provided to the appellants relating to the loan facilities and the loan applications, pursuant to a reference by the Financial Ombudsman Service (FOS). In this letter, the bank had said:
Please note that references to other individuals have been blacked out in accordance with National Privacy Principle 6.1(c). We have also blacked out evaluative information regarding the bank's commercially sensitive decision making processes in accordance with National Privacy Principle 6.2.
(d)there had been a lack of procedural fairness, a deprivation of due process and bias, by virtue of the master's conduct of the hearings on 7 and 14 June 2012 and the fact that the appellants did not understand the master and what he proposed to do at the 14 June hearing (that is, that he might decide the matter); and
(e)a particular document was never signed by the appellants - the particular document is not annexed nor specifically identified in their affidavits, but, without any evidence, reference was made in oral submissions to a loan application which was 'full of errors' and did not contain their signatures. That appears to be part of a wider complaint that the bank has not verified its entitlement to the properties and has concealed documents from the appellants.
Further, in relation to the question of whether there was a triable issue, the appellants in their affidavit of 10 October 2012, said in effect that in April and May 2011 they were conscious that their level of debt was an 'issue' and decided to sell 44 Saunders Way. They spoke to a broker in April or May 2011, who informed the appellants that the bank would not allow the appellants to sell the property at 44 Saunders Way without taking out a new loan to discharge the existing loan. The appellants say they were thereby deprived of the ability to sell that property and 'pay the entirety of the proceeds to the bank'. The appellants further say that they are 'now aware' of 'information' (without deposing to what it is) which suggests that the broker was 'an agent of Colonial, a finance agency' of the bank, and that the statement that the bank would not allow the appellants to sell the property without taking out a new loan constituted misleading or deceptive conduct. The appellants further say that the relationship between the brokers and the bank should be 'clearly and unequivocally established'.

The application to extend time

The matters which are relevant to an application to extend the time for filing a notice of appeal were referred to in Simonsen v Legge [2010] WASCA 238 [8]. There, the court said that those matters included:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
In relation to delay, the period of delay is substantial - nearly 11 weeks, from 6 July 2012 to 19 September 2012.
As to the explanation for the delay, the appellants say that they acted 'immediately' when the Sheriff's officer arrived pursuant to the Property (Seizure and Delivery) Order made 7 August 2012. The appellants do not give the date on which they were contacted by the Sheriff's officer, but we will assume, for present purposes, that it was around 7 August 2012. That was nearly two months after judgment had been entered, and approximately one month after the time for commencing the appeal had expired. The appellants say that they did not understand what the master was telling them at the 14 June hearing and further, that they did not know of the existence of the judgment until they received a letter from the bank's solicitors dated 25 June 2012. They say that they do not know when they received the letter, but that generally speaking, correspondence arrived from the bank's solicitors some six to nine days after its date.
There is not, in our view, an adequate explanation of the delay in the period from the time the appeal was required to be commenced (6 July 2012) to 7 August 2012 (assuming that the latter date was the date on which the appellants 'acted immediately'). Even if they did not subjectively appreciate that judgment would be entered for the bank, it appears, in this case, that the failure to appreciate that fact stems from the appellants' conduct. That is, they did not engage with, and were even resistant to, the master's explanations of the summary judgment process and his offer to give them time to present their evidence, and they ultimately walked out on the hearing before its conclusion.
After 7 August there was a further delay until 19 September 2012, before the appellants filed their notice of appeal. The explanation given is that the appellants proceeded with inquiries with, and then a formal complaint to, the Australian Prudential Regulation Authority, although no date is given and no document evidencing the complaint is annexed. They also said that they complained to the FOS, pursuant to which the bank provided certain documentation by letter dated 19 September 2012. The appellants say that they were told by the FOS that while their dispute (that is, the dispute registered with the FOS) was pending, the bank should suspend any collection or recovery action, and that this was confirmed by a letter from the FOS to the appellants dated 3 September 2012 (annexure 'MW2' to the appellants' affidavit of 19 October 2012). The appellants say that as a result, they thought that the bank was unable to pursue the judgment it had obtained. It is not necessary to reach a final view on this aspect of the delay because even if the explanation were regarded as a proper one, it would not in all the other circumstances, avail the appellants in their applications.
Turning next to the prospects of the appellants succeeding in the appeal, their first complaint is that they did not receive certain affidavits listed in [31(a)] above.
The failure to serve affidavits sworn in support of an application for substituted service, and the failure to serve Ms Kennedy's affidavit of 29 May 2012 and Ms Tyler's affidavit of 13 June 2012, do not point to any denial of natural justice at the hearing on 14 June 2012, pursuant to which judgment was entered. They dealt with historical matters of procedure and there is no reasonable prospect of success in the appeal on the basis that those particular affidavits were not served. Further, in relation to Ms Tyler's affidavit of 13 June 2012, the effect of it was to depose to the sending of a letter by the bank's solicitors dated 7 June 2012. The appellants do not contend that they did not receive that letter. The affidavit of 27 June 2012 post‑dated the judgment and deposed to service of the judgment. It could not have affected the judgment itself.
Ms Kennedy's affidavit of 13 June 2012 ought to have been served prior to the hearing on 14 June 2012, and the appellants have an arguable case that the master should not have entered summary judgment in the particular money sum which he did based on that affidavit, without the affidavit having first been provided to the appellants. However, that arguable case is to be weighed against all the other circumstances, as discussed below.
The appellants' next complaint is that Ms Kennedy's affidavit of 13 June 2012 was inadmissible on the grounds of hearsay. The complaint, in our view, goes to the weight of the evidence rather than the admissibility of it, in light of O 14 r 2(2) of the Rules of the Supreme Court 1971 (WA), which states that in summary judgment proceedings, affidavits may contain statements of information or belief with the sources and grounds thereof. Ms Kelly's affidavit referred to below, also has relevance in this context.
Next, the appellants contend that the bank's provision of certain redacted documents in September 2012 pursuant to the appellants' application to the FOS, provides a basis for a successful appeal. In our view, it does not.
The appellants' complaints about the master's alleged 'bias' or 'corruption' in his conduct of the hearing on 14 June 2012, and in his conduct of the earlier attendances, when the matter was in his list on 7 June 2012, have no prospects of success. As to the hearing on 7 June, the matter was initially adjourned sine die when the bank's solicitor missed the appearance when she failed to hear the matter called on. The appellants then left court before the solicitor belatedly realised her omission and asked the master to restore the matter to the list for 14 June. The master did so and this led to the hearing on 14 June described above. The allegations of bias and corruption against the master are entirely without foundation. The master repeatedly offered the appellants the opportunity to present evidence and the appellants' contention that the master denied them such an opportunity is without merit.
In relation to the matters referred to in par (e) in [31] above, the document which the appellants say they did not sign, as we have noted, is not annexed to, or described with any particularity in the affidavits. Nevertheless, there are annexed to Mr Podrugovic's affidavit copies of the documents which he describes as the loan agreements which appear to have been signed by the appellants and a copy of the mortgage securing those loans. The loans were appropriately verified. Even if (for which there is no satisfactory evidential foundation) the appellants did not sign a loan application form, the appellants do not depose to not having signed the loan agreements or the mortgage. Nor do they depose to the fact that they did not borrow the money from the bank, and it is not suggested that they have repaid the debt to the bank. This complaint, even if it had been before the master, does not raise any triable issue.
In relation to the alleged triable issue concerning misleading or deceptive conduct, there is no context given to the alleged conversation with the broker as to the extent to which the appellants' existing debt was an 'issue' and whether repayments were being maintained. Also, the appellants have not deposed to the 'information' which they say they 'now' have which 'suggests' that the broker was an agent of the bank. This is against the background that generally speaking (but subject always to the terms of the relevant contract) brokers have been held to be the agent of the borrowers: Morlend Finance Corporation (Vic) Pty Ltd v Westendorp [1993] 2 VR 284, 308; Custom Credit Corporation Ltd v Lynch [1993] 2 VR 469, 486; cf Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353.
Accordingly, even at this late stage, the appellants' affidavits, with respect to the alleged triable issue concerning misleading or deceptive conduct, do not condescend to the necessary level of particularity: Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989) 20 (Malcolm CJ); Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109, 113. Further, insofar as the appellants contend that the master was 'ignoring the possibility of the merit' in relation to their alleged misleading or deceptive conduct claim (affidavit 10 October 2012, par 34), there is no evidence that the appellants ever informed the master that they believed they had a case in relation to misleading or deceptive conduct before leaving the hearing prior to its conclusion on 14 June 2012.
Moreover, as the mortgage over 44 Saunders Way secured all amounts owing under the three loan agreements, the basis upon which the appellants could have sold that property and obtained a discharge of the mortgage over it, without first paying off the whole of the debt owing to the bank, or reaching some other accommodation acceptable to the bank, is not explained. Nor is there any evidence that any compromise or other arrangement with the bank could, or may have been reached.
On the question of prejudice, the appellants say that the bank is not prejudiced by a stay because it continues to hold the assets as security which are worth more than the existing level of debt. There is no evidence to support that contention.
In our view, there is no basis for allowing the extension of time in which to appeal against the order for possession. There is nothing in the materials provided by the appellants to suggest that there is any prospect of success in contending that the appellants had or have a triable issue that the bank was not entitled to possession of both properties under the mortgages.
The only matter which might provide any justification for the grant of an extension of time, and even then only with respect to the order as to the payment of the money sum, is the arguable error with respect to the master acting upon Ms Kennedy's affidavit of 13 June 2012 when it had not been provided to the appellants.
Nevertheless, the appellants do not contend that they did not borrow the moneys deposed to by Mr Podrugovic in his affidavit and there was no evidence to the effect that the payout figure referred to in the notice of default dated 12 October 2011, in the sum of $634,741.93 (page 4 of Ms Nigam's affidavit) was not owing as at that time. Nor is there any positive evidence by the appellants to the effect that there is some error in the amount deposed to by Ms Kennedy in her affidavit of 13 June 2012. Further, the bank has filed and served another affidavit, sworn 24 October 2012 by Ms Kelly, in response to the appellants' applications. She deposes to the fact that as at 24 October 2012, the total amount owing by the appellants to the bank is $685,353.23. Ms Kelly deposes to the facts on the basis of information and belief based on statements by Mr Podrugovic, who was the officer of the bank who swore the principal affidavit in support of the application for summary judgment. As well as deposing to the amount outstanding on 24 October 2002, Ms Kelly also deposes to the fact that the last payment in respect of the first loan agreement was made on 25 July 2011, that the last payment in respect of the second loan agreement was made on 31 May 2011 and that the last payment in respect of the third loan agreement was made on 9 March 2012. The appellants did not point to any alleged error in this affidavit, but say that they would need to see the materials upon which it is based before they could accept its accuracy.
Bearing in mind that this affidavit contains statements of information or belief based on information provided by Mr Podrugovic, who was the bank officer familiar with the bank's books of account with respect to the appellants' accounts, and in the absence of any evidence from the appellants as to the state of the debt and the level of their repayments, there is no basis upon which to conclude that Ms Kelly's affidavit may be in error. Taking that matter into account, in conjunction with the matters referred to in [11], [34] to [49], and [51] above, we are not persuaded that it would be in the interests of justice to extend the time to appeal, even in relation to the first paragraph of Master Sanderson's orders, dealing with the payment of the money sum of $666,851,64 plus interest.
The application to extend time should accordingly be refused and the appeal should consequently be dismissed.

The stay application

As a result of the above findings, it is unnecessary to deal with the stay application, but in relation to that application we would make the following observations in any event.
The relevant principles were outlined by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] as follows:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.
Even if the appeal were not dismissed, for the reasons given in relation to the application to extend time there would be no proper basis to grant a stay of the order for possession. Nor would we have ordered a stay of the order for the payment of the judgment debt, on the basis that there is no real doubt that the bank would, in any event, have had the capacity to refund any sum in excess of the true amount outstanding. In any event, in light of Ms Kelly's affidavit sworn 24 October 2012, there is no reason to suppose that the money sum ordered by the master on 14 June 2012 overstated the amount outstanding as at that date.
In conclusion, we would:
(a)dismiss the application for an extension of time;
(b)dismiss the application for a stay of the orders made by Master Sanderson on 14 June 2012; and
(c)dismiss the appeal.
The parties should be heard on the question of costs.