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Permanent Mortgages Pty Ltd v Vandenbergh

Permanent Mortgages Pty Ltd v Vandenbergh

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PERMANENT MORTGAGES PTY LTD -v- VANDENBERGH [2009] WASCA 156

CORAM: McLURE JA
NEWNES JA

HEARD: 14 AUGUST 2009

DELIVERED : 14 AUGUST 2009

PUBLISHED : 25 AUGUST 2009

FILE NO/S: CACV 95 of 2009

BETWEEN: PERMANENT MORTGAGES PTY LTD
Appellant
AND
JULES JOSEPH VANDENBERGH
MARIA HUBERTINA VANDENBERGH
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURPHY J
File No  :CIV 1074 of 2007

Catchwords:

Practice and procedure - Application by second-named respondent to amend her defence five days before trial - Amendments allowed - Whether primary judge erred in refusing appellant's application for adjournment of the trial - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant:     Mr D H Solomon
First-named Respondent     :     No appearance
Second-named Respondent :     Mr A J Camp

Solicitors:

Appellant:     Solomon Brothers
First-named Respondent     :     No appearance
Second-named Respondent :     Butcher Paull & Calder

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Bank of New South Wales v Rogers (1941) 65 CLR 42
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

JUDGMENT OF THE COURT: This is an application for leave to appeal against a decision of Murphy J of 13 August 2009 granting leave to the second‑named respondent (Mrs Vandenbergh) to make certain amendments to her defence and refusing an application by the appellant (Permanent Mortgages) for an adjournment of the trial of the action as a consequence of those amendments.
The application for leave to appeal and the appeal was heard on an urgent basis as the trial was due to commence on 18 August 2009. After the conclusion of the submissions on behalf of Permanent Mortgages, we dismissed the application for leave to appeal and the appeal, and said we would publish our reasons later. These are our reasons.

The background

In the action, Permanent Mortgages pleads that, pursuant to a loan agreement made on 20 December 2003, it advanced to the respondents the sum of $192,000. The loan was secured by a mortgage over a property in Mount Claremont which was registered in the name of the respondents. Permanent Mortgages claims that the respondents subsequently failed to make payment of instalments due under the loan agreement. It seeks possession of the property under the mortgage and the sum of the $223,509.68 which it says is owing pursuant to the loan agreement.
The first‑named respondent (Mr Vandenbergh) is the son of Mrs Vandenbergh. Mr Vandenbergh is bankrupt and, apart from denying that Permanent Mortgages is entitled to the relief claimed, has not pleaded to the claim.
Mrs Vandenbergh pleads in her defence that she is 85 years of age and lives in the property, which is situated in an aged person's village. She alleges that she was and is the…

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: [2009] WASCA 156
Decision Date: 14 AUGUST 2009

CaseChat Overview and Summary

Permanent Mortgages Pty Ltd brought an action against Mr and Mrs Vandenbergh for possession of a property and for money owing under a loan agreement. The loan was secured by a mortgage over the property, which was in Mrs Vandenbergh's name. Mrs Vandenbergh sought to amend her defence five days before the trial. The trial judge allowed the amendments, overruling his earlier decision to refuse the application. Permanent Mortgages applied for an adjournment of the trial, which was refused. Permanent Mortgages sought leave to appeal the judge's refusal to adjourn the trial. The court dismissed the application for leave to appeal and the appeal. The court held that the primary judge was entitled to conclude that the application for leave to amend the defence was made without sufficient explanation and at a late stage in the proceedings. The court also held that the primary judge was entitled to conclude that the application for an adjournment of the trial was an afterthought and that granting it would be unjust to the respondents.

ORDERS:
Leave to appeal refused.

Orders

Orders of the court

Leave to appeal refused

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 is an application for leave to appeal against a decision of Murphy J of 13 August 2009 granting leave to the second‑named respondent (Mrs Vandenbergh) to make certain amendments to her defence and refusing an application by the appellant (Permanent Mortgages) for an adjournment of the trial of the action as a consequence of those amendments. The application for leave to appeal and the appeal was heard on an urgent basis as the trial was due to commence on 18 August 2009. After the conclusion of the submissions on behalf of Permanent Mortgages, we dismissed the application for leave to appeal and the appeal, and said we would publish our reasons later. These are our reasons. In the action, Permanent Mortgages pleads that, pursuant to a loan agreement made on 20 December 2003, it advanced to the respondents the sum of $192,000. The loan was secured by a mortgage over a property in Mount Claremont which was registered in the name of the respondents. Permanent Mortgages claims that the respondents subsequently failed to make payment of instalments due under the loan agreement. It seeks possession of the property under the mortgage and the sum of the $223,509.68 which it says is owing pursuant to the loan agreement. The first‑named respondent (Mr Vandenbergh) is the son of Mrs Vandenbergh. Mr Vandenbergh is bankrupt and, apart from denying that Permanent Mortgages is entitled to the relief claimed, has not pleaded to the claim. Mrs Vandenbergh pleads in her defence that she is 85 years of age and lives in the property, which is situated in an aged person's village. She alleges that she was and is the sole beneficial owner of the property, Mr Vandenbergh's interest being held on a resulting trust for her. Mrs Vandenbergh says that Mr Vandenbergh borrowed the money from Permanent Mortgages for the purposes of his business and that she obtained no benefit from the transaction. She alleges that she is inexperienced in business and legal matters and reposed complete trust and confidence in her son in such matters. Mrs Vandenbergh pleads, in effect, that, to the knowledge of both Mr Vandenbergh and Permanent Mortgages, she did not receive any independent advice prior to signing the loan agreement and mortgage. Mrs Vandenbergh says she did not know or understand the purpose of the documents and she was not told that signing the documents presented a risk of her home being sold. Mrs Vandenbergh pleads that had she received independent advice she would not have entered into the loan agreement or the mortgage. It is Mrs Vandenbergh's case that, in the circumstances, the conduct of Permanent Mortgages in entering into and relying on the terms of the loan agreement and the mortgage was unconscionable, and that the loan agreement and mortgage is void or unenforceable. The action has been set down for trial for three days commencing 18 August 2009. By a chamber summons dated 5 August 2009, Mrs Vandenbergh sought leave to amend her defence and counterclaim. The proposed amendments were set out in a minute dated 3 August 2009. Some of the amendments were not opposed by Permanent Mortgages. In respect of the amendments which were opposed, the application was heard by the primary judge on 7 August 2009. In an ex tempore judgment delivered that day, his Honour declined to allow the amendments, essentially on the ground that they were not properly or sufficiently pleaded. His Honour also said it was unsatisfactory that there was no explanation on oath on behalf of Mrs Vandenbergh as to why the amendments were being sought for the first time so shortly before the trial.

Ratio Decidendi

Legal Principle Established

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