National Australia Bank Ltd v McAllister

[2003] QCA 508

SUPREME COURT OF QUEENSLAND

CITATION:	National Australia Bank Ltd v McAllister & Anor [2003] QCA 508
PARTIES:	NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 (plaintiff/respondent) v ERNEST WILLIAM McALLISTER and ELLORA CAROLINE JUDITH McALLISTER (defendants/applicants)
FILE NO/S:	Appeal No 3955 of 2003 SC No 25 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time/General Civil Appeal
ORIGINATING  COURT:	Supreme Court at Maryborough
DELIVERED EX	12 November 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2003
JUDGES:	McMurdo P, Williams JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Applications refused with costs to be assessed
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicants apply for extension of time within which to appeal against summary judgment – where refused
APPEAL – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where applicants apply for leave to call further evidence – where evidence not presented to primary judge – where refused
COUNSEL:	The applicants appeared on their own behalf B T Porter for the respondent
SOLICITORS:	The applicants appeared on their own behalf Flower & Hart for the respondent

THE PRESIDENT: On 26 February 2003, the primary Judge ordered that summary judgment be entered for the respondent against the applicants in the sum of $244,599.34 together with costs to be assessed. The applicants seek an extension of time within which to appeal against that order and apply for leave now to call further evidence not presented to the primary Judge on the original application.

The applicants' application was not filed until 6 May 2003, over one month out of time. They have given no sworn explanation for this delay, despite the guidance given on this point when the matter was mentioned before me on 1 August 2003 because of their delay in progressing the matter. The male applicant has orally explained today that he was immobilised awaiting a hip replacement and without a motor vehicle and that the applicants were living at a remote address and that this made the progression of the application difficult for them.

The learned primary Judge in his ex tempore reasons observed that the affidavit material before him confirmed that $244,599.34 was currently owed by the applicants under an overdraft facility and a bill facility extended to them by the respondent. The applicants' son, Andrew McAllister, who is not a party to these applications, guaranteed and indemnified the loan. The applicants filed a defence, which included a counterclaim that leased earthmoving equipment repossessed by the bank was sold at a substantial undervalue and that the repossession of that equipment meant that the applicants were unable to complete their obligations under another agreement relating to the screening and crushing of aggregate. Their counterclaim was for the loss of income from the failed contract and the loss caused by the sale of the equipment at an undervalue. The learned primary Judge referred to the applicants' difficulty in their counterclaim, namely that the equipment leases were not granted to the applicants personally but to a company, Silica Pty Ltd, now in liquidation, of which the applicants were directors and nor were the applicants parties to the contract for the screening and crushing of aggregate, which again was between Silica Pty Ltd and another. It followed that any loss was the loss of Silica Pty Ltd and not the appellants. It should also be noted that the applicants' counterclaim was not struck out at first instance.

The applicants now emphasise the respondent's letter to them personally, dated 17 December 1997, approving finance totalling $1,017,000 for the purchase of the business known as Groves Earthmoving, which incorporated both equipment and real property. This letter does not change the fact, referred to by the primary Judge, that the applicants were not personally parties to the transactions on which their counterclaim was based. I cannot see that the letter is of any assistance to them in these applications.

For the first time the applicants now seek to raise additional claims that the respondent sold property, which it was not authorised to sell, and at an undervalue, including a loader belonging to the applicants' son, property in a container including a boat, trailer and motor belonging to the applicants' daughter and other items belonging to Concrete Equipment Pty Ltd, the directors of whom were the male applicant and his son, and a further earthmoving machine belonging to Concrete Equipment Pty Ltd. There is no suggestion that the applicants only became aware of these facts after the making of the primary judge's order, which they now seek to appeal.

I also note that the applicants were served with the respondent's summary judgment application and the affidavits in support of it on 7 February 2003, well before the hearing on 26 February. The applicants could have raised these matters at the original hearing. In any case, the claims they now seek to pursue have the same difficulty as those considered at first instance. The applicants are not parties to the transactions upon which their claims are based, the undervalued claim and the claim that the respondent sold property, which it was not entitled to sell, are claims apparently belonging to the applicants' son, daughter and Concrete Equipment Pty Ltd, not the applicants.

As I have already observed, the applicants' counterclaim at first instance was not struck out. This claim, whether or not amended, can be pursued at a trial, although it must be said that at this stage it does not appear to be promising.

In the end, the applicants have failed to satisfactorily explain any acceptable reason for the delay in the filing of their applications and neither have they established that they would have promising prospects of success if time were extended to allow them to appeal. The further evidence they seek to lead does not assist them. I would refuse the applications with costs to be assessed.

WILLIAMS JA: I agree.

MULLINS J: I agree.

THE PRESIDENT: That is the order of the Court.

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