Ninan v Westpac Banking Corporation
[2016] WASCA 229
•22 DECEMBER 2016
NINAN -v- WESTPAC BANKING CORPORATION [2016] WASCA 229
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 229 | |
| THE COURT OF APPEAL (WA) | 22/12/2016 | ||
| Case No: | CACV:86/2016 | 7 DECEMBER 2016 | |
| Coram: | NEWNES JA MURPHY JA | 7/12/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEORGE NINAN WESTPAC BANKING CORPORATION |
Catchwords: | Practice and procedure Appeal against order to provide security for costs of counterclaim Whether any of the grounds of appeal has reasonable prospect of succeeding Turns on own facts |
Legislation: | Nil |
Case References: | Ninan v National Australia Bank [2015] WASCA 10 Ninan v Valuer General (WA) [2016] WASCA 120 Ninan v Westpac Banking Corporation [2015] WASCA 223 Ninan v Westpac Banking Corporation [2015] WASCA 94 Westpac Banking Corporation v Ninan [No 2] [2015] WASC 315 Wilden Pty Ltd v Green [No 5] [2016] WASCA 195 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NINAN -v- WESTPAC BANKING CORPORATION [2016] WASCA 229 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
WESTPAC BANKING CORPORATION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CHANEY J
Citation : WESTPAC BANKING CORPORATION -v- NINAN [No 3] [2016] WASC 250
File No : CIV 2202 of 2014
Catchwords:
Practice and procedure - Appeal against order to provide security for costs of counterclaim - Whether any of the grounds of appeal has reasonable prospect of succeeding - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C Davies
Solicitors:
Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Ninan v National Australia Bank [2015] WASCA 10
Ninan v Valuer General (WA) [2016] WASCA 120
Ninan v Westpac Banking Corporation [2015] WASCA 223
Ninan v Westpac Banking Corporation [2015] WASCA 94
Westpac Banking Corporation v Ninan [No 2] [2015] WASC 315
Wilden Pty Ltd v Green [No 5] [2016] WASCA 195
1 JUDGMENT OF THE COURT: On 7 December 2016, we dismissed an appeal from a decision of Chaney J who had ordered the appellant and Ms Molly George to provide $25,000 by way of security for the respondent's costs of defending the appellant's and Ms George's counterclaim. These are the reasons for our decision.
2 The appeal came before the court on a registrar's notice to attend:
a) to consider whether the appellant's case complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules); and
b) for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Court of Appeal Rules on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
3 The relevant background can be shortly summarised. The respondent commenced proceedings against the appellant and Ms George for possession of a property that was subject to a mortgage to the respondent and for payment of loan money secured by the mortgage. The appellant and Ms George filed a defence and counterclaim. Summary judgment was subsequently entered against them on the respondent's claim. An appeal against that decision was dismissed when, contrary to an order of this court, the appellant and Ms George failed to provide security for the respondent's costs of the appeal: Ninan v Westpac Banking Corporation [2015] WASCA 94.
4 That left the appellant's and Ms George's counterclaim outstanding. The appellant and Ms George filed an application for discovery of documents in the counterclaim. Shortly afterwards, the respondent filed an application for security for costs in the sum of $153,329. A dispute then arose as to which application should be heard first. The primary judge ordered that the application for security for costs should be heard first: Westpac Banking Corporationv Ninan [No 2] [2015] WASC 315. An application by the appellant and Ms George for leave to appeal from that decision was dismissed: Ninan v Westpac Banking Corporation [2015] WASCA 223.
5 On the hearing of the application for security for costs, it was not in issue that the appellant and Ms George are ordinarily resident out of the jurisdiction, residing in Bangkok, Thailand. That is a relevant, albeit not of itself decisive, consideration: Rules of the Supreme Court 1971 (WA) O 25 r 2. In addition, however, his Honour was satisfied on the evidence that the only asset of the appellant and Ms George within the jurisdiction was the secured property and, according to the evidence of the respondent, there was likely to be a substantial shortfall between the amount recovered by the respondent on the sale of the property and the amount owing under the mortgage.
6 The primary judge also expressed grave doubts as to the merits of the counterclaim. His Honour noted that the appellant and Ms George alleged they had been led to purchase several properties by false representations, particularly as to property values, by land developers, valuers and vendors' agents, but he considered that they had failed to identify how liability for the conduct of those parties could be sheeted home to the respondent [25]. The primary judge described the case against the respondent as 'made up of convoluted allegations against a range of people and entities in circumstances where liability for that conduct would not readily appear to be attributable to the [respondent]' [30]. In his Honour's view, any trial of the issues raised by the appellant and Ms George would be lengthy and likely to be productive of significant interlocutory disputes [29].
7 The primary judge considered that the enforcement of any action against the appellant and Ms George to recover costs would be difficult and expensive, and noted that the appellant and Ms George had made no effort to pay any of the costs awarded against them to date [30].
8 His Honour concluded that it was appropriate the appellant and Ms George provide security for costs. The question then was the amount of the security to be provided. The appellant and Ms George were ordered to pay an initial sum of $25,000 into court to cover preliminary interlocutory steps in the counterclaim, in order to crystallise the issues and enable a more accurate assessment to be made of the likely costs of the proceedings. His Honour ordered that the counterclaim be stayed pending payment of the $25,000 and that unless that sum was paid into court within 28 days the counterclaim would stand dismissed and the appellant and Ms George must pay the respondent's costs of the counterclaim.
9 The appellant sought leave to appeal to this court from that decision. Leave to appeal is required as the decision appealed from is an interlocutory decision: Supreme Court Act 1935 (WA) s 60(1)(f). The appellant filed an appeal notice and, in due course, an appellant's case. Although the grounds of appeal refer to the 'Appellants', Ms George is not a party to the appeal. She has not applied to be joined as a party and to date the appellant has declined to join her.
10 The grounds of appeal are as follows:
1. Appellants' case is so meritorious that [the respondent] failed to defend and reply; a failure of duty conceived and concealed by the Supreme Court.
2. A serious defaulter cannot be a winner in a judicial proceeding.
3. All judgments including WASC 250 of 2016 are solely based on criminal concealments of facts, of logics & of evidences; criminally concealed by [the respondent] and the judges jointly; criminally conceived to deny justice to Appellants.
4. Appellants' Singapore citizenships invalidate any order for security for costs.
5. Residence of Appellants, the only reason for the orders, is an illogical reason.
6. The true principles of ordering security for costs invalidate any order for security for costs in this proceeding.
11 The appellant appeared by telephone from Bangkok on the hearing of the registrar's notice to attend. He peremptorily terminated the call when the court declined to answer questions as to its composition and jurisdiction and required the appellant simply to put submissions as to the matters he sought to raise. At the time he terminated the call, the appellant had not made oral submissions as to the matters referred to in the grounds of appeal although he had been specifically invited to do so. It is necessary then to turn to the appellant's written submissions.
12 Those submissions are not only difficult to follow but, as in other proceedings involving the appellant, are replete with outlandish allegations of conspiracy and fraud (for previous examples, see Ninan v Valuer General (WA) [2016] WASCA 120; Ninan v Westpac Banking Corporation [2015] WASCA 94; Ninan v National Australia Bank [2015] WASCA 10). It is evident, however, that grounds 1 and 2 are directed to the doubts expressed by the primary judge as to the merits of the counterclaim. In his written submissions, the appellant asserted that, contrary to his Honour's view, the respondent has no credible defence to the counterclaim. We do not accept that. The primary judge was, with respect, entirely correct to doubt that the counterclaim has any merit, for the reasons he gave. Indeed, the appellant's prospects of success could properly be described more bleakly.
13 Ground 3 repeats the same sort of groundless and odd assertions that have been a notable feature of claims by the appellant in other proceedings, such as those referred to above. Beyond noting that they make no sense, they require no comment.
14 The contention in ground 4 that the Singapore citizenship of the appellant and Ms George invalidates any order for security for costs is not explained in any comprehensible way in the appellant's written submissions and is plainly wrong. The same can be said for ground 5 - the contention that it is illogical to order security because of the overseas residency of the appellant and Ms George - noting that that was not, of course, the sole basis of his Honour's decision.
15 Ground 6 appears from the written submissions to be an assertion that the appellant and Ms George should not be shut out of a claim that has some merit because they are impecunious. We have dealt with the merits above. In circumstances where (a) the claim appears to be lacking in merit; (b) the appellant and Ms George are resident overseas without any assets in the jurisdiction available to meet an order for costs; and, (c) the appellant and Ms George have an established propensity not to meet costs orders made against them, it was clearly open to the primary judge to find that an order for security for costs should be made. It would hardly have been open to his Honour to decide otherwise.
16 Finally, as we have mentioned, at the outset of the hearing the appellant sought to raise matters relating to the composition and jurisdiction of the court. First, the appellant argued that the court was not lawfully constituted because it consisted of two judges instead of three, with the result that the appellant had no right of appeal. There is no substance in that. As this court explained in Wilden Pty Ltd v Green [No 5] [2016] WASCA 195 [14], the Court of Appeal is constituted by two or more judges of appeal and in civil proceedings as so constituted may exercise all of the powers of that court: Supreme Court Act s 57(1). A party who is dissatisfied with a decision of the Court of Appeal (whether constituted by two or more judges) has the right to seek special leave to appeal to the High Court.
17 Secondly, we understood the appellant to submit, in effect, that the court could not dismiss an appeal summarily but only after the respondent had filed an answer and there had been a hearing on the merits. That submission is misconceived. Rule 43(2)(g)(i) of the Court of Appeal Rules provides that a single judge may dismiss an appeal if none of the grounds has a reasonable prospect of succeeding. That is not a power within the exclusive jurisdiction of a single judge of appeal but is a power that may also be exercised by the Court of Appeal constituted by two or more judges: Wilden Pty Ltd v Green [No 5] [14]. It is clear that the power may be exercised at any time, its obvious purpose being to enable the court to dispose of appeals that do not have a reasonable prospect of succeeding at the earliest appropriate opportunity and without the need for a full hearing on the merits.
18 As none of the grounds of appeal had a reasonable prospect of succeeding we ordered that the appeal be dismissed.
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