RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH [2008] WASCA 148

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 148
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:62/2007	Heard:	18 JUNE 2008
Coram:	PULLIN JA BUSS JA MURRAY AJA	Delivered:	21/07/08
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	B
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Parties:	RAMS MORTGAGE CORPORATION LTD JANET-JANE TURNBULL SKIPWORTH
Catchwords:	Mortgage Stay of execution of Property Seizure and Sale Order Appeal against granting of stay Stay of execution already discharged when appeal was heard Mortgagee already in possession when appeal was heard Grounds of appeal moot Appeal without utility Turns on own facts
Legislation:	Nil
Case References:	Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24 Skipworth v State of Western Australia [2007] FMCA 1730

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH [2008] WASCA 148 CORAM : PULLIN JA

BUSS JA

MURRAY AJA

HEARD : 18 JUNE 2008 DELIVERED : 21 JULY 2008 FILE NO/S : CACV 62 of 2007

CACV 63 of 2007

BETWEEN : RAMS MORTGAGE CORPORATION LTD

Appellant

AND

JANET-JANE TURNBULL SKIPWORTH

Respondent

(Page 2)

ON APPEAL FROM:

For File No : CACV 62 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : EM HEENAN J

Citation : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH & ANOR [2007] WASC 24

File No : CIV 1509 of 2006

For File No : CACV 63 of 2007

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : EM HEENAN J

Citation : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH & ANOR (NO 2) [2007] WASC 75

File No : CIV 1509 of 2006

Catchwords:

Mortgage - Stay of execution of Property Seizure and Sale Order - Appeal against granting of stay - Stay of execution already discharged when appeal was heard - Mortgagee already in possession when appeal was heard - Grounds of appeal moot - Appeal without utility - Turns on own facts

Legislation:

Nil

Result:

Appeals dismissed

(Page 3)

Category: B

Representation:

Counsel:

Appellant : Mr D H Solomon

Respondent : No appearance

Solicitors:

Appellant : Solomon Brothers

Respondent : In person

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

Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75
Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24
Skipworth v State of Western Australia [2007] FMCA 1730

(Page 4)

1 PULLIN JA: I agree with Buss JA.

BUSS JA

Background to appeal CACV 62 of 2007

2 By an appeal notice dated 12 April 2007, the appellant appeals against the orders made by EM Heenan J on 8 February 2007 in Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24. On 18 April 2007, McLure JA ordered that the appellant be granted an extension of time within which to appeal.

3 EM Heenan J's decision arose from the respondent's application, dated…

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: [2008] WASCA 148
Decision Date: 21 JULY 2008

CaseChat Overview and Summary

The case of Rams Mortgage Corporation Ltd v Skipworth involved a dispute between a mortgagee, Rams Mortgage Corporation Ltd, and the mortgagor, Skipworth. The central issue before the court was whether the mortgagee could execute a property seizure and sale order that had been stayed by the lower court. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant, Rams Mortgage Corporation Ltd, sought to overturn a decision that had granted a stay of execution of a Property Seizure and Sale Order. The legal issues before the court included whether the appeal was moot and whether the stay of execution had any utility given that the mortgagee had already taken possession of the property when the appeal was heard. The court found that the appeal was moot because the stay of execution had already been discharged, and the mortgagee was already in possession of the property when the appeal was heard. The court also found that the appeal had no utility as the facts of the case had changed since the lower court's decision. Consequently, the appeals were dismissed, and the orders of the lower court were affirmed.

Orders

Orders of the court

Appeals dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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