Perpetual Ltd v Buttarelli [No 2]
[2013] WASC 190
•17 MAY 2013
PERPETUAL LTD -v- BUTTARELLI [No 2] [2013] WASC 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 190 | |
| Case No: | CIV:1506/2008 | 16 APRIL 2013 | |
| Coram: | CORBOY J | 17/05/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay or suspension order refused | ||
| B | |||
| PDF Version |
| Parties: | PERPETUAL LTD VINCENZA PALMA BUTTARELLI DONNA TRAJKOSKI |
Catchwords: | Practice and procedure Application for a stay/suspension order pending appeal No new principles Turns on its own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15(1) |
Case References: | Baden v Sociètè Gènèrale pour Favoriser le Dèvelopment du Commerce et de L'Industrie en France SA (note) [1993] 1 WLR 509; [1992] 4 All ER 161 Eastland Technology Australia v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Perpetual Ltd v Buttarelli [2012] WASC 512 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
VINCENZA PALMA BUTTARELLI
First Defendant
DONNA TRAJKOSKI
Second Defendant
Catchwords:
Practice and procedure - Application for a stay/suspension order pending appeal - No new principles - Turns on its own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15(1)
Result:
Application for stay or suspension order refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr E M Heenan
First Defendant : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Rockwell Olivier
First Defendant : In person
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Baden v Sociètè Gènèrale pour Favoriser le Dèvelopment du Commerce et de L'Industrie en France SA (note) [1993] 1 WLR 509; [1992] 4 All ER 161
Eastland Technology Australia v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Perpetual Ltd v Buttarelli [2012] WASC 512
(Page 3)
- CORBOY J:
The application and the result
1 Perpetual Ltd (Perpetual) commenced this action against Ms Buttarelli and another in May 2008. It claimed that Ms Buttarelli was indebted to it under a loan contract made on or about 27 February 2003. It further claimed that the loan had been secured by a mortgage (the Perpetual Mortgage) granted by Ms Buttarelli in respect of a property located in Bedford (the Bedford Property). Ms Buttarelli resides in the Bedford Property.
2 Master Sanderson granted an application by Perpetual for summary judgment in November 2010 (the Judgment). Ms Buttarelli was ordered to deliver up possession of the Bedford Property within 28 days of the Judgment.
3 Perpetual applied for and obtained, pursuant to the Civil Judgments Enforcement Act 2004 (WA) (the Act), property (seizure and delivery) orders in December 2010 and February 2012. Ms Buttarelli applied in May 2012 for a stay of execution, alternatively a suspension order made under the Act (the Suspension Application). Interim suspension orders were made to preserve the status quo pending determination of Ms Buttarelli's application.
4 The Suspension Application was refused: Perpetual Ltd v Buttarelli [2012] WASC 512. Perpetual subsequently applied to set aside the interim suspension orders. Ms Buttarelli had, by that time, commenced an appeal against the decision refusing the Suspension Application. However, she had not applied for an order to further stay or suspend execution on the Judgment pending the determination of her appeal. Accordingly, I made an order that:
(a) gave effect to the decision in the Suspension Application by setting aside the interim orders that had been made at the commencement of the application;
(b) specified that the order (that is, the order setting aside the interim order) was to only take effect on a nominated date - that allowed Ms Buttarelli to make a further application to stay or suspend enforcement of the Judgment pending her appeal if she wished. The order setting aside the interim suspension orders was subsequently amended so that it will only take effect on a date to be fixed by the court.
(Page 4)
5 Section 15(1) of the Act provides:
A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment.
6 Section 3 of the Act defines judgment to mean, among other things, 'a judgment or an order of a court that requires or has the effect of requiring a person … to give possession of any property to another person'. As to the power conferred by s 15(1)(b) of the Act, see pt 1, r 3 and pt 5, r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA).
7 Accordingly, Ms Buttarelli could have applied to the General Division of this court or to a single judge of the Court of Appeal for a further order under s 15(1) of the Act pending the determination of her appeal. The procedure that she adopted was to issue a chamber summons in these proceedings (and not the appeal) seeking a stay of execution.
8 I raised with the parties on the return of the summons whether it would be more efficient and expeditious for the application to be referred to a single judge of the Court of Appeal, given that the subject matter and history of the proceedings indicated that it was inevitable that any decision that I made would be the subject of an appeal. However, Perpetual contended that I had no power to refer the application to the Court of Appeal and when she was asked about a possible referral, Ms Buttarelli, perhaps understandably, addressed me in some detail on matters that she regarded as being relevant to her application for a stay/suspension order and to her pending appeal. I have decided in those circumstances to determine Ms Buttarelli's application. I express no view on whether I was bound to do so as Perpetual contended.
9 I have concluded that:
(a) Ms Buttarelli's application for a stay/suspension order pending the determination of her appeal should be refused.
(b) The date on which the order setting aside the interim suspension orders is to take effect shall be 21 clear days from the date on which these reasons are published. That will enable Ms Buttarelli to make a further application to the Court of Appeal if she wishes to appeal from this decision.
(Page 5)
The issues in the Suspension Application
10 Perpetual alleged that the loan contract was made pursuant to a loan application submitted by a mortgage broker. Ms Buttarelli gave evidence that the broker or one of its agents or employees had acted for her in arranging finance for several property developments and acquisitions. Ms Buttarelli's various property dealings were summarised in Perpetual Ltd v Buttarelli at [44] and following.
11 Ms Buttarelli denied that she was indebted to Perpetual. She alleged that:
(a) The loan application, the loan contracts and the mortgage were fraudulent documents. The documents had not been prepared with her authority or to her knowledge. Her signature had been forged in the documents.
(b) The loan purportedly made by Perpetual was part of a series of fraudulent dealings orchestrated by the mortgage broker.
(c) Perpetual was complicit in the fraudulent dealings that had occurred.
(d) Ms Buttarelli had not received the money allegedly advanced by Perpetual or the benefit of that money.
12 It was held in the Suspension Application that:
(a) Ms Buttarelli had not demonstrated that she had reasonable prospects of establishing that the Judgment was tainted by fraud; alternatively, that Perpetual was responsible for any fraud that may have occurred so that it would be inequitable for it to take the benefit of any judgment (Perpetual Ltd v Buttarelli [116]).
(b) Perpetual had, in fact, advanced the principal claimed pursuant to the loan contract (at [120] and following).
(c) The course of dealings with the Bedford Property and the other properties that Ms Buttarelli had owned did not support the allegations of fraud that she had made. In any event:
(i) Perpetual was not involved in that course of dealing prior to when it made loans to Ms Buttarelli;
- (ii) there was nothing in the course of dealing that would have alerted a reasonable and prudent lender in the position of Perpetual that there may have been fraudulent transactions in the past involving Ms Buttarelli and the mortgage broker or any of its employees or agents [127];
(iii) Ms Buttarelli had not demonstrated that she had reasonable prospects of establishing that her signature to the loan application had been forged and/or that the application was fraudulent [136]. Further, Ms Buttarelli did not have reasonable prospects of establishing that Perpetual knew (assessed by the categories of knowledge identified by Peter Gibson J in Baden v Sociètè Gènèrale pour Favoriser le Dèvelopment du Commerce et de L'Industrie en France SA (note) [1993] 1 WLR 509; [1992] 4 All ER 161) that her signature had been forged, if that had, in fact, occurred
Ms Buttarelli's appeal
13 Ms Buttarelli has not filed her appellant's case. However, she made an affidavit shortly after lodging her notice of appeal in which she foreshadowed her grounds of appeal (the Appeal Affidavit).
14 The statements made by Ms Buttarelli in the Appeal Affidavit covered the following matters:
(a) allegations about the conduct of the solicitor who had appeared for her in the Suspension Application (pars 1 - 43; pages 2 - 5);
(b) a report dated 4 October 2012 by Mr John Horton, a forensic consultant (pars 51 - 61; page 138);
(c) Ms Buttarelli's allegations as to why she denies that she is indebted to Perpetual and claims that she is the victim of a fraud (pars 62 - 104; pages 174 - 179).
The documents attached to the Appeal Affidavit
15 Ms Buttarelli attached a number of documents to the Appeal Affidavit. It is necessary to make some comments about those documents:
(Page 7)
- (a) The document entitled 'first defendant's outline of further submissions' at pages 8 - 16 of the affidavit was provided to the court and considered in the Suspension Application.
(b) Attachment 'VP 1' (pages 17 - 49) comprised an email dated 25 September 2012 from Ms Buttarelli's daughter, Ms Davies, to Ms Buttarelli's former solicitor. The email attached what was described as an 'up to date' affidavit to be provided to the court the following day. However, neither Ms Buttarelli nor Ms Davies made an affidavit in a form that corresponded with the draft. Ms Buttarelli explained what had occurred with the draft affidavit in the Appeal Affidavit. However, the draft affidavit did not raise any matter that was not considered in the Suspension Application.
(c) Attachment 'VP 2' (pages 50 - 93) comprised an email dated 8 October 2012 from Ms Davies to Ms Buttarelli's former solicitor attaching what was described as a draft affidavit and a flowchart. The attached documents comprised a document headed 'Simone's affidavit' (a reference to Ms Davies); a document headed 'Mum's affidavit'; a flowchart showing dealings with the Bedford Property and other properties and a bundle of documents apparently lodged with Landgate.
(d) The documents headed 'Simone's affidavit' and 'Mum's affidavit' were also incorporated (with minor inconsequential amendments) in an annexure to an affidavit made by Ms Buttarelli on 11 October 2012 and filed and served in the Suspension Application (attachment 'VP 3' to the affidavit). The documents were described in Ms Buttarelli's affidavit of 11 October 2012 (the October Affidavit) as 'statements of fact' by Ms Davies concerning 'errors or inconsistencies' in a flowchart that had been prepared by Perpetual as an aid. The flowchart was referred to in Perpetual Ltd v Buttarelli as the 'Dealing Schedules'. A copy of the flowchart was annexed to the reasons. Similarly, the 'statements' by Ms Davies (that is, the documents headed 'Simone's affidavit' and 'Mum's affidavit') were referred to and considered in the reasons (at [74] - [89]).
(e) Attachment 'VP 2' to Ms Buttarelli's affidavit filed in the appeal incorporated a bundle of land title documents apparently lodged with Landgate. All of those documents were annexed to the October Affidavit, apart from the documents at pages 65 - 76 of the Appeal Affidavit. Those documents concern the purchase by
- Mr and Mrs Hooker in February 1999 of a property located in Port Kennedy. (Ms Buttarelli subsequently purchased the property from Mr and Mrs Hooker; the property was referred to in Perpetual Ltd v Buttarelli as the 'Port Kennedy Property'). The documents are, in my view, irrelevant to any issue raised and determined in the Suspension Application.
- (f) Attachments 'VP 3' to 'VP 7' concerned the circumstances in which Ms Buttarelli made an affidavit on 2 November 2012. That affidavit explained how certain handwritten amendments had been made to the October Affidavit. I note that the contents of an email dated 17 October 2012 forming part of attachment 'VP 5' appears to be inconsistent with the allegations that Ms Buttarelli now makes about the conduct of the Suspension Application by her former solicitor.
(g) Attachment 'VP 5' also incorporated another bundle of land title documents apparently lodged at Landgate. All of those documents were either incorporated in attachment 'VP 3' to the October Affidavit or as an attachment to the affidavit of Alana Rebecca Salsano made on 19 September 2012.
(h) Attachment 'VP 8' to the Appeal Affidavit included what were described as an updated flowchart; that is, a further version of the flowchart that was attachment 'VP 1' to the October Affidavit. As best as I have been able to discern, the updated flowchart does not introduce any new matters that are material to the findings made in the Suspension Application.
(i) Attachment 'VP 9' contained the report by Mr Horton dated 4 October 2012. Mr Horton had provided two reports to Ms Buttarelli that were received in the Suspension Application (dated 4 June and 24 August 2012; copies of those reports are attachment 'VP 10' to the Appeal Affidavit). Mr Horton's 4 October 2012 report was provided after the last hearing in the Suspension Application but prior to when Ms Buttarelli made the October Affidavit. It was not included in that affidavit.
Mr Horton's 4 October 2012 report
16 Ms Buttarelli alleged in the Suspension Application that the loan application, the loan contract and other documents had been fabricated by an agent or employee of the mortgage broker that she had engaged to arrange finance for her property development and acquisitions. That
(Page 9)
- allegation apparently provided the context for Mr Horton's report of 4 October 2012. He compared various sets of documents to ascertain whether one document was a photocopy of another document.
17 Several points should be made about Mr Horton's report:
(a) The documents that Mr Horton inspected and compared were all attached to the various affidavits that had been read in the Suspension Application.
(b) Mr Horton's report described differences in the documents compared that he detected from a visual inspection. Consequently, the task that he performed did not involve the application of any expertise and the conclusions he expressed were not expert opinions.
(c) The documents that Mr Horton compared included two copies of the mortgage that Perpetual alleged had been granted by Ms Buttarelli. The two copies are plainly different. The difference in the documents was noted and considered in Perpetual Ltd v Buttarelli in the context of Ms Buttarelli's allegations that she had not signed the mortgage (at [55]).
(d) There was no issue that Ms Buttarelli had acquired the Port Kennedy property from Mr and Mrs Hooker. The attestation sheets inspected by Mr Horton appear to be the same document before and after it had been signed by Mr and Mrs Hooker. In any event, there was no allegation that Ms Buttarelli's signature had been forged on the transfer of land document.
(e) The allegations made by Ms Davies concerning the mortgage apparently granted to the Australian and New Zealand Banking Group Ltd were considered in Perpetual Ltd v Buttarelli at [82] and following. Mr Horton's observations about the documents he inspected do not affect what was stated in that section of the reasons.
(f) Similarly, the mortgages apparently granted to Police & Nurses Credit Union were considered in Perpetual Ltd v Buttarelli and Mr Horton's observations do not affect what was stated in the reasons.
(Page 10)
The final section of the Appeal Affidavit
18 Ms Buttarelli repeated in the final section of the Appeal Affidavit her allegations that she was not indebted to Perpetual and that the loan application, loan contract and mortgage, on which Perpetual had relied, were fraudulent documents. The matters stated in that part of the affidavit had been raised and considered in the Suspension Application.
The relevant principles
19 The principles relevant to an application for a suspension order or a stay pending an appeal were explained by the Court of Appeal in Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 and Eastland Technology Australia v Whisson [2003] WASCA 307; (2003) 28 WAR 308. The matters that must be established by the applicant were summarised in Perpetual Ltd v Buttarelli [95].
Conclusion
20 As was earlier noted, the gist of the allegations made by Ms Buttarelli in the Appeal Affidavit was that her former solicitor had failed to present in the Suspension Application all of the relevant information that he had been instructed to provide. The necessary inference was that Ms Buttarelli would have succeeded in establishing that she was not indebted to Perpetual had her instructions been followed. However, the only material included in the Appeal Affidavit that was not presented in the Suspension Application was the report of Mr Horton dated 4 October 2012. As has been explained, that report did not, in substance, raise any matter that had not been canvassed in the Suspension Application. It follows that Ms Buttarelli has not raised any 'fresh' matter in the Appeal Affidavit that has made it necessary to reconsider the findings made in the Suspension Application.
21 Ms Buttarelli, of course, disputes the result in the Suspension Application. However, she has not identified any particular error in the reasons that were delivered, apart from her complaint that not all of the relevant documents were produced to the court. The focus of the Appeal Affidavit was on the alleged failure of her former solicitor to fully and properly present her case.
22 It was accepted in the Suspension Application that the balance of convenience favoured a suspension order being made if Ms Buttarelli could establish that she had reasonable prospects of setting aside or appealing from the Judgment. In my view, that remains the position.
(Page 11)
- However, I do not consider that Ms Buttarelli has advanced any reason for concluding that she has reasonable prospects of succeeding in her appeal given the grounds foreshadowed in the Appeal Affidavit.
2
1
1