Randles v Australia & New Zealand Banking Group Ltd
[2015] WASCA 138
•9 JULY 2015
RANDLES -v- AUSTRALIA & NEW ZEALAND BANKING GROUP LTD [2015] WASCA 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 138 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:69/2015 | 15 JUNE 2015 | |
| Coram: | NEWNES JA | 9/07/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER RANDLES LEONIE RANDLES AUSTRALIA & NEW ZEALAND BANKING GROUP LTD |
Catchwords: | Practice and procedure Application for suspension order Civil Judgments Enforcement Act 2004 (WA), s 15 Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Smolarek v McMaster [2006] WASCA 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RANDLES -v- AUSTRALIA & NEW ZEALAND BANKING GROUP LTD [2015] WASCA 138 CORAM : NEWNES JA HEARD : 15 JUNE 2015 DELIVERED : 9 JULY 2015 FILE NO/S : CACV 69 of 2015 BETWEEN : PETER RANDLES
- LEONIE RANDLES
Appellants
AND
AUSTRALIA & NEW ZEALAND BANKING GROUP LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
File No : CIV 2334 of 2012
Catchwords:
Practice and procedure - Application for suspension order - Civil Judgments Enforcement Act 2004 (WA), s 15 - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellants : In person
Respondent : Mr C F McLeod
Solicitors:
Appellants : In person
Respondent : Norton Rose Fulbright Australia
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Smolarek v McMaster [2006] WASCA 216
1 NEWNES JA: This is an application, filed on 20 April 2015, for an order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) suspending the enforcement of a judgment entered against the appellants (the Randles) and Cottage Holdings Pty Ltd.
2 The relevant facts can be summarised quite briefly. In 2010, Cottage Holdings borrowed a substantial sum of money from the respondent. The loan was secured by a mortgage over certain properties. The Randles entered into an agreement by which they guaranteed repayment of the loan and agreed to indemnify the respondent against any loss arising from it.
3 Subsequently Cottage Holdings defaulted under the loan agreement and the mortgage, and ultimately the respondent commenced proceedings against Cottage Holdings and the Randles to recover the loan money outstanding. The respondent applied for summary judgment. On the hearing of that application, the principal argument advanced by Cottage Holdings and the Randles was that they were entitled to an equitable set-off. In effect, they contended that certain of the secured land sold by the respondent as mortgagee had been sold at an under-value. They argued that that involved a breach of the respondent's equitable duty of good faith or a duty the respondent owed to them under s 420A of the Corporations Act 2001 (Cth), and they were therefore entitled to set-off the amount of the under-value.
4 The primary judge noted that the relevant agreements contained a provision which excluded Cottage Holdings and the Randles from relying on a set-off to relieve them of the obligation to repay the loan money. His Honour expressed doubt as to the correctness of a submission of counsel for Cottage Holdings and the Randles that the provision did not prevent the set-off being relied upon in the circumstances of this case, but found it unnecessary to decide the point. The primary judge found that entry of judgment for the amount claimed would not prevent Cottage Holdings and the Randles from pursuing by way of an account or inquiry any allegation that the secured property had been sold at an under-value.
5 On 25 March 2013, judgment was entered against Cottage Holdings and each of the Randles in the sum of $5,634,998.36, plus interest on that sum until payment pursuant to s 8 of the Act.
6 An appeal notice was filed on behalf of Cottage Holdings and the Randles on 22 April 2015. It was some two years out of time. An amended appeal notice was filed on 28 April 2015. It was accepted for filing only in respect of the Randles as Cottage Holdings was in liquidation and it was not represented by a solicitor (see O 4 r 3(2) of the Rules of the Supreme Court 1971 (WA)). In an email to the respondent's solicitors on 9 June 2015, the liquidator said that he was unaware of an appeal by Cottage Holdings and did not consent to it. It is to be inferred that the liquidator does not consent to the current application on behalf of Cottage Holdings and, in any event, again it was not made by a solicitor on behalf of Cottage Holdings. Although in the end nothing turns on it, I will treat the application as being made by the Randles only.
7 I should also note that while the time within which the appellants' case was required to be filed has passed, no appellants' case has been filed. The grounds of appeal have therefore not been revealed.
8 The general principles applicable to an application to suspend the enforcement of a judgment are not materially different from those which applied to an application for a stay of execution before the introduction of the Act: see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v McMaster [2006] WASCA 216 [33]. Those principles were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. It is unnecessary to set them out in full.
9 Suffice it to say that the ultimate question on such an application is whether the applicant has satisfied the court that there are special circumstances which justify a departure from the ordinary rule that a successful party is entitled to enforce the judgment pending the determination of any appeal. For that purpose, ordinarily the applicant will need to show, among other things, that a suspension order is reasonably necessary to prevent the appeal being rendered nugatory, or that refusal of a suspension order could create practical difficulties in respect of the relief which may be granted on appeal.
10 In an affidavit in support of the application, the Randles seek a suspension of any further enforcement of the judgment pending the outcome of proceedings they intend to bring against the respondent for damages for misleading and deceptive conduct, and in light of what they say are current investigations by the Financial Ombudsman into the loan. Attached to the affidavit are several summaries of alleged events between June 2010 and April 2013 in support of the contention that the respondent engaged in misleading and deceptive conduct in connection with the loan.
11 In the affidavit the Randles also say, among other things, that the respondent has seized and sold all of their assets apart from what are described as 'lowly valued assets which constitute normal household items', although they say they are in dispute with the Sheriff over the value of a motor vehicle which according to the Randles is necessary for them to earn an income and - contrary to the view they say has been expressed by the Sheriff - is of little value. In the course of argument, counsel for the respondent said that the Randles had also been the subject of a means enquiry by way of enforcement of the judgment. In practical terms, therefore, it would appear that the only remaining processes of enforcement available to the respondent are orders for payment or appropriation orders under pt 4 of the Act. The Randles say they seek the suspension order to prevent the respondent pursuing any such means of enforcement.
12 In my opinion, no grounds have been established upon which enforcement of the judgment might properly be suspended. First, even if the appellants have an arguable claim for damages against the respondent (a matter that cannot be assessed on the material available on this application) it does not assist them. The existence of such an action would not be a reason to suspend enforcement of the judgment, at least in the present circumstances where there is no doubt as to the respondent's capacity to meet any award of damages that might be made. Secondly, the investigations by the Financial Ombudsman, to the extent it might be thought they were a relevant consideration, have since been terminated. The respondent has produced on affidavit an email, dated 5 May 2015, from the Financial Ombudsman to that effect and at the hearing it was acknowledged by the Randles to be the case.
13 There is nothing else in the Randles' affidavit that might constitute circumstances which would justify suspension of enforcement of the judgment.
14 It follows that the application must be dismissed.
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