National Australia Bank Ltd v Cone
[2014] WASC 121
•7 APRIL 2014
NATIONAL AUSTRALIA BANK LTD -v- CONE [2014] WASC 121
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 121 | |
| Case No: | CIV:1060/2013 | 1 APRIL 2014 | |
| Coram: | PRINCIPAL REGISTRAR GETHING | 7/04/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Enforcement suspended until 28 April 2014 Otherwise application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NATIONAL AUSTRALIA BANK LTD WILLIAM TERRENCE CONE REBECCA LEE WHINNEY |
Catchwords: | Suspension order |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Alvaro v Amaral [2013] WASCA 16 Cayne v Global Natural Resources plc [1984] 1 All ER 225 Duckworth v Commonwealth Bank of Australia [2013] WASCA 24 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43 Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WILLIAM TERRENCE CONE
First Defendant
REBECCA LEE WHINNEY
Second Defendant
Catchwords:
Suspension order
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Enforcement suspended until 28 April 2014
Otherwise application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr B C Smith
First Defendant : No appearance
Second Defendant : In person
Solicitors:
Plaintiff : Gadens Lawyers
First Defendant : In person
Second Defendant : In person
Case(s) referred to in judgment(s):
Alvaro v Amaral [2013] WASCA 16
Cayne v Global Natural Resources plc [1984] 1 All ER 225
Duckworth v Commonwealth Bank of Australia [2013] WASCA 24
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226
1 PRINCIPAL REGISTRAR GETHING: Rebecca Whinney is the registered proprietor of the land situated at 209 Seville Drive, Seville Grove in Western Australia (Property). In July 2007, the National Australia Bank Ltd (NAB) and Ms Whinney and William Terence Cone entered into a written loan agreement. Pursuant to this agreement, the NAB provided Ms Whinney and Mr Cone with a credit facility in the sum of $150,000. Ms Whinney secured repayment of all money payable under the loan agreement by a registered first mortgage over the Property.
2 In November 2009, the NAB entered into two subsequent loan agreements with Mr Cone, for amounts totalling $53,000. Ms Whinney guaranteed the two loans to Mr Cone, again securing the obligation by a mortgage against the Property.
3 By notice dated 27 September 2012 the NAB terminated the loan agreement with Ms Whinney and Mr Cone and demanded repayment of the outstanding moneys within seven days. Around the same time, Mr Cone defaulted on the two loan agreements to him. A default notice was issued in September 2012 in relation to these amounts.
4 In January 2013, the NAB commenced an action in this court against Mr Cone and Ms Whinney (the first and second defendants respectively). Neither Mr Cone nor Ms Whinney entered an appearance in the action. The NAB applied for, and was granted, judgment against Ms Whinney pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 62A. Specifically, by order made on 23 April 2013, she was ordered to, within 28 days of service of the judgment, deliver up to the NAB vacant possession of the Property. She was also ordered to pay the NAB the sum of $152,036.68 being the amount due under the mortgage as at the date of the judgment, together with ongoing interest and costs.
5 On 2 July 2013, the NAB obtained default judgment against Mr Cone in the amount of $201,647.06, together with costs.
6 On 29 April 2013 the NAB filed an affidavit of one Natasha Dougall (a paralegal employed by its lawyers) in which she deposed that on 26 April 2013 she lent sent a letter by express post to Ms Whinney at the Property enclosing a copy of the judgment dated 23 April 2013. The covering letter, which is annexed to Ms Dougall's affidavit, provided:
Please note that if you neglect to obey the Judgment by the time referred to therein we may receive instructions to enforce the Judgement and obtain possession of the Property.
7 On 6 September 2013 the court issued a Property (Seizure and Delivery) Order in relation to the Property.
8 On 31 March 2014, Ms Whinney filed an application for an order to suspend the enforcement of all or part of the judgment. She filed an affidavit in support of the application, sworn on the same day. The application was listed before me on 1 April 2014 on an urgent basis. The reason for the urgency was that the NAB had instructed the Sheriff to take possession of the Property on 2 April 2014. The basis for the suspension order is that Ms Whinney seeks additional time to provide to NAB a restructuring and refinancing proposal.
9 At the hearing on 1 April 2014 Ms Whinney was not able to appear in person, so she participated by telephone conference. Counsel for NAB appeared in person. At the conclusion of the hearing I made an order suspending enforcement of the judgment until 28 April 2014, for the purpose of allowing Ms Whinney and her children to leave the Property and find alternative accommodation in an orderly manner. I advised the parties I would publish my reasons.
10 The court has the power to suspend the enforcement of the judgment against Ms Whinney pursuant to Civil Judgments Enforcement Act 2004 (WA) (CJEA) s 15. This power may be exercised by a Registrar of the Court: RSC O 46 r 2(1).
11 The CJEA provides that the court may only make a suspension order 'if there are special circumstances that justify doing so': CJEA s 15(3). By CJEA s 15(4), 'a suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise'.
12 The onus is on Ms Whinney to move the court to a favourable exercise of its discretion: M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43 [4] (Pullin JA); Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 226 [16] (Newnes JA); Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9] (Murray & Parker JJ).
13 In considering whether there are 'special circumstances' as required by CJEA s 15(3), the court may consider hardship and the balance of convenience: Hamersley Iron Pty Ltd v Lovell (No 2)(1998) 20 WAR 79, 91, 94 (Anderson J); Duckworth v Commonwealth Bank of Australia [2013] WASCA 24 [2] (Pullin JA); Alvaro v Amaral [2013] WASCA 16 [3] (Pullin JA). The court may also consider whether it is 'just' for the enforcement to be suspended. This is evident from the explanatory memorandum to the CJEA which contains the following general comment about the power in s 15 (pages 5 - 6):
Circumstances may arise where enforcement action has been commenced and it is just that the enforcement be suspended. An example is where judgment was obtained by default in that the defendant did not respond to a summons but there is an explanation for the default such as hospitalisation. Another example could be where the debtor was impecunious.
14 The issue of whether it is 'just' to suspend enforcement is perhaps more usefully expressed in terms used the context of the grant of an injunction, where key discretionary consideration is sometimes expressed as the balance of the risk of doing an injustice: Cayne v Global Natural Resources plc [1984] 1 All ER 225, 237 (May LJ) ; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 536 (McLelland J).
Grounds on which the suspension order is sought
15 In order to analyse Ms Whinney's application at its strongest, it is instructive to quote the entirety of the affidavits sworn 31 March 2014:
1. Internal dispute with NAB, case is open.
2. I'm needing my Judgment put aside.
3. I need an extension (so then I can get legal advice).
4. I need to Negotiate or and restructure my loans and or refinance.
5. NAB accepted Hardship but I have struggled to facilitate a proposal they are willing to accept.
6. ...
7. My land is worth more.
8. William Terrence Cone is able to work and does work he can accommodate loans yet has failed too.
9. I have four children I am a single Mother I am not able to go back to work yet.
- Mr Cone is Ms Whinney's former de facto partner.
16 The reference to an internal dispute appears to be a reference to a complaint made by Ms Whinney to the Financial Ombudsman Service (FOS). At the hearing counsel for NAB handed up a copy of a letter from FOS to Ms Whinney dated 28 March 2014 which is to the effect that under its terms of reference FOS cannot consider a dispute which has been previously dealt with by a court. The letter stated that FOS was therefore not able to consider any concerns held by Ms Whinney about NAB's conduct before the date of the judgment.
17 Ms Whinney annexed to her affidavit a letter from Gadens, NAB's solicitors, dated 19 March 2014. This letter is marked 'without prejudice'. By annexing it to her affidavit, Ms Whinney may be taken to have waived any claim for privilege over the document. At the hearing before me, counsel for NAB also consented to the privilege being waived. I am thus able to have regard to it for the present application. It provides:
We refer to your email dated 12 March 2014.
Your proposal is not acceptable to our client, in circumstances where:
1. you have previously applied to restructure the Facilities with our client and the restructure application was unfortunately declined; and
2. you are personally liable for the business debt as you have provided a guarantee in relation to the business Facilities.
Accordingly, we are instructed to proceed with enforcement action, including proceedings with the eviction for the Property scheduled on 2 April 2014, without further notice to you.
If you have any concerns about your legal position, you should seek independent legal advice.
Our client reserves all rights generally, including under the loan agreements and mortgage.
18 It is clear to me that Ms Whinney has been aware of the existence of the judgment against her since it was served on her in late April 2013, nearly 12 months ago.
19 It is also evident from her affidavit, the letter from Gadens quoted and other correspondence provided by counsel for NAB at the hearing that Ms Whinney has sought to refinance the loan, but has not been able to do so. I consider that she has had ample time to place before NAB a refinancing proposal acceptable to it. She has provided no evidence of being able to present a different proposal to the NAB in the near future. On the material available to me I am drawn to the conclusion that allowing more time will simply postpone the inevitable.
20 Ms Whinney has not discharged the onus on her to satisfy the court that the special circumstances exist that would warrant a suspension order being made either on a permanent or medium term basis.
21 Ms Whinney deposes is a single mother with four children. The Property is their residence.
22 The discretion in CJEA s 15 is, as I have stated, very broad. Within the boundaries of the words of the section, it allows the court to balance the risk of injustice. In the exercise of that discretion, I do consider it just to suspend enforcement of the judgment until Monday 28 April 2014 in order to allow Ms Whinney time to find alternative accommodation and move out in an orderly manner.
23 The formal orders made are:
1. Enforcement of the Property (Seizure and Sale) Order dated 6 September 2013 be suspended until 28 April 2014.
2. The application be and is otherwise dismissed.
3. There be no orders as to costs.
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