Peterson v Permanent Mortgages Pty Ltd - [2008] SASC 23

Supreme Court of South Australia
(Magistrates Appeals: Civil)
PETERSON v PERMANENT MORTGAGES PTY LTD
[2008] SASC 23
Judgment of The Honourable Justice Kelly (ex tempore)
21 January 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against an order of a master declining to grant a stay of possession in relation to a property - whether the master erred in dismissing the application for a stay - whether the appellant has locus standii. Held: appeal dismissed - master considered all relevant factors in declining to grant a stay of possession - no error by the master in the exercise of his discretion - no basis for a court to stay the order of the master - the appellant was declared bankrupt on 11 December 2006 - trustee in bankruptcy advised the master he did not wish to pursue the appellant's action - the appellant has no further interest in the property, nor standing in the appeal.
Enforcement of Judgments Act 1991 (SA), s 17; Bankruptcy Act 1966 (Cth), s 58, referred to.
Australian Central Credit Union v Hasda SCSA, Duggan J, 17 August 1994, S4730; Cummings v Claremond Petroleum NL (1996) 185 CLR 124, applied.

PETERSON v PERMANENT MORTGAGES PTY LTD
[2008] SASC 23
Magistrates Appeal

KELLY J (ex tempore): This is an appeal from an order of a master made on 10 December 2007 declining to grant a stay of possession in relation to a property at 76 Poynton Street, Ceduna. The order for possession was made on 16 October 2007 and the master declined to order a stay of that possession order on that date of 10 December 2007.
Thereafter the appellant filed a notice of appeal from the master’s refusal. On the appellant’s further application the master, in the exercise of his discretion, granted the appellant a stay of the possession order pending the outcome of the appellant’s appeal to this court.
By way of background, it appears from the material filed in the court that in about November of 2003 the respondent advanced monies to the appellant in the approximate amount of $397,600. It was a term of the loan that the appellant provide by way of security mortgages over properties, including the property at 76 Poynton Street, Ceduna. There were two other properties, one at 31 East Terrace, Ceduna, and another at 56A Coburg Road, Alberton, provided by way of security for that loan.
The loan was for a fixed term of 12 months, expiring in November 2004. The appellant failed to repay the principal, which became due and payable on 27 November 2004 and I was informed at the hearing today that there have been no payments made in respect of the appellant’s default on that loan since June 2004.
The respondent entered into possession of two of the properties offered by way of security, and collected some of the outstanding debt in relation to the sale of the two other properties. Given the shortfall, the respondent sought to exercise its rights in relation to the mortgage over the property at 76 Poynton Street, Ceduna. Proceedings were issued and it is in respect of that property that those proceedings culminated in the master making the order on 16 October 2007, granting possession to the respondent of the property at 76 Poynton Street, Ceduna.
The appellant in her notice of appeal, appeals the order made by the master on 10 December 2007 in which he declined to grant a stay of the order which had been previously made on 16 October 2007. In an affidavit filed in this court on 16 January 2008, the appellant complains that the respondent is hindering or preventing her from trying to settle this matter by way of private administrative process.
On the hearing of this appeal, the appellant reiterated her application that the appeal be granted in order for her to complete her outstanding matter with the respondent within 45 days by private administrative process. She also requested the time to complete her complaints about, and application for review of, the trustee in bankruptcy’s actions which have allegedly not been in her best interests.
The appellant, has a further complaint in relation to the inappropriate and, she alleges, unlawful actions of the mortgagee in effecting recovery of the mortgage debt.
Section 17 of the Enforcement of Judgments Act1991 grants a wide discretion to a court to grant a stay of execution of judgment in appropriate circumstances. The making of such an order will require careful consideration of the reason or reasons advanced in support of the application. A stay of execution will not be granted lightly: Australian Central Credit Union v Hasda SCSA Duggan J, 17 August 1994, judgment S4730 (unreported).
In this case, the appellant has identified several factors which she says justifies the granting of a stay. She requires time to attempt to resolve the dispute by private administrative process, time to investigate the trustee in bankruptcy’s actions and to investigate what she claims are the improper and illegal actions of the respondent in pursuing its remedies under the mortgage.
Whilst the appellant made a number of general complaints, none of them were supported by the provision of any particulars or any material in support of her generalised complaints. In particular the complaints that the properties were forcibly sold below value, and that the respondent committed criminal actions in relation to her chattels without regard to South Australian law and by not proceeding to public auction in relation to them were not supported by any material.
Moreover these complaints were raised before the master who considered all of these matters and ultimately concluded that the appellant had not demonstrated any proper grounds for a stay order. He dismissed the application for a stay.
The respondent in submissions today relied on two matters which it says are determinative of the outcome of this appeal. The first is the issue of the appellant’s standing to institute this appeal. The second is that irrespective of the issue of the appellant’s locus standii, there is no merit in the appeal.
I deal first with the argument as to the merits of the appeal.
I have considered all of the material which the appellant has placed before the court in the context of this appeal, either orally or by way of the affidavits filed. In my view none of that material establishes any proper basis for interfering with orders made by the master. In particular the appellant has not pointed to any error by the master. I can find no error by the master in the exercise of his discretion. It is true that the appellant may well be trying to resolve this matter by other means. However, the fact that a person may be trying to resolve a dispute by a private administrative process, whatever that may mean, or by trying to sort it out in another way, does not provide a basis for a court to stay the order of another court where no error can be demonstrated.
In these circumstances I have not been persuaded that the appellant has produced any evidence or given any proper reason which would justify this court in interfering with the order of the master on 10 December 2007
Although I have determined the appeal on its merits, counsel for the respondent argued that the appellant did not have any standing in this appeal. He argued that the appeal should therefore be dismissed as incompetent and relied on the authority of Cummings v Claremont Petroleum NL (1996) 185 CLR 124. Having read that decision in the adjournment I am inclined to the view that the respondent’s argument on this ground is also correct. The appellant was declared bankrupt on 11 December 2006 by virtue of s 58 of the Bankruptcy Act 1966 (Cth). Upon the making of that sequestration order in the Federal Court, the property, the subject of these proceedings vested in the trustee in bankruptcy.
The appellant’s trustee in bankruptcy advised the master in the course of these proceedings in October 2007 that he did not wish to pursue the action and consented to the order for possession which the master ultimately made.
It follows from those matters that the appellant has no further financial interest in the property and that she therefore does not have standing to institute this appeal on that ground. I would therefore have dismissed the appeal as incompetent, however because the appellant was unrepresented today, I have preferred to deal with her arguments on their merits.
While I accept that the appellant may have outstanding issues with the trustee in bankruptcy, which she is attempting to resolve elsewhere, I do not see how any of those matters can impinge on the correctness of the decision made by the master on 10 December 2007.
There will be the following orders:
1.     the appeal will be dismissed;
2.     the stay by the master on 20 December 2007 is discharged;
3.     the appellant will pay the respondent’s costs of the appeal to be taxed.