Satchithanantham v King Mortgages - [2009] NSWCA 358

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SATCHITHANANTHAM v KING MORTGAGES; CASH KING Pty Ltd [2009] NSWCA 358
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40034/07, 40035/07, 40036/07 & 40037/07

HEARING DATE(S):
12/10/2009

JUDGMENT DATE:
12 October 2009

EX TEMPORE DATE:
12 October 2009

PARTIES:
Hemalathasomhy Ranjini Satchithanantham - First Appellant
Thambiapph Satchithanantham - Second Appellant
King Mortgages Pty Ltd - Respondent
Cash King Pty Ltd - Respondent

JUDGMENT OF:
Tobias JA Campbell JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
13736 and 12756 of 2004

LOWER COURT JUDICIAL OFFICER:
Bell J

LOWER COURT DATE OF DECISION:
08/12/2006

COUNSEL:
Mr Sachi for the First and Second Appellants
No appearance for Respondents

SOLICITORS:

CATCHWORDS:
APPEAL - dismissed for want of prosecution - no question of principle.

LEGISLATION CITED:
Corporations Act, s 500(2)

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Appeal dismissed for want of prosecution and no order as to costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

040037/07
040034/07
040035/07
040036/07
TOBIAS JA
CAMPBELL JA
HANDLEY AJA
Monday 12 October 2009

HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD
HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407
HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD
HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407

CATCHWORDS

APPEAL: dismissed for want of prosecution – no question of principle.

HEADNOTE

A joint mortgagor appealed from the decision of Bell J on 8 December 2006 to confirm the mortgage for the principal debt, and reduce the interest rate from 90% per annum to 10%. The respondent mortgagee went into voluntary liquidation on 5 November 2008 and the appeal was then stayed pursuant to s 500(2) of the Corporations Act. The appeal was listed for hearing on 10 March 2009. It could not proceed because of the stay, and was stood over. Directions were given for the appellant to receive pro bono advice and assistance, and for the filing of an application under the Corporations Act for leave to proceed. The appeal was called over before the Registrar on four occasions before being fixed for hearing on 12 October. A notice of motion for leave to proceed was not filed until 9 October. HELD: The appeal should be dismissed for want of prosecution.

ORDER

Appeal dismissed for want of prosecution with no orders as to costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

040037/07
040034/07
040035/07
040036/07
TOBIAS JA
CAMPBELL JA
HANDLEY AJA
Monday 12 October 2009

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] NSWCA 358
Decision Date: 12 October 2009

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Mrs Satchithanantham, and the respondent, King Mortgages. The appeal was heard by Tobias and Campbell JJA, and Handley AJA.

The primary legal issue before the Court was whether the appeal should be dismissed for want of prosecution, given the appellant's persistent failure to comply with procedural directions and timelines. The Court also considered the underlying merits of the appeal, noting that the mortgage to Cash King Pty Ltd had been discharged by payment in full, but the mortgage to King Mortgages Pty Ltd remained in force.

The Court reasoned that the appellant had demonstrated a persistent failure to prosecute the appeal effectively, both before and after previous directions were made on 10 March 2009. Despite orders for pro bono assistance and opportunities to seek leave to proceed, the necessary applications were not filed within the stipulated timeframes. Furthermore, the Court noted that the Registrar had not granted an extension of time as represented by the appellant. The Court also observed that, in light of the findings of fact by Bell J and the nature of the proceedings brought by the National Australia Bank, the appeal appeared to be without merit and likely futile.

Consequently, the appeal was dismissed for want of prosecution, and no order was made as to costs.

Orders

Orders of the court

Appeal dismissed for want of prosecution and no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

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

The mortgage to Cash King Pty Ltd as varied by Bell J has been discharged by payment in full but the mortgage to King Mortgages Pty Ltd as varied by the orders of Bell J remains in force. The two companies went into voluntary liquidation on 5 November 2008 and these proceedings have been stayed pursuant to s 500(2) of the Corporations Act. This matter was before the Court differently constituted on 10 March 2009 when counsel appeared pro bono for Mrs Satchi and Mr Satchi sought to appear in person seeking to be joined as a party to the appeal. It seems that that application is not being pursued. The Court made orders vacating the hearing, standing the matter over to the Registrar and directing that any notice of motion for leave to proceed against the respondent companies be accompanied by copies of the appeal books and that any affidavits in support of the application be filed and served within five weeks from 10 March 2009. A notice of motion for leave to proceed was not filed until 9 October. A copy of the notice of motion made returnable before this Court was handed up by Mr Satchi this morning. The Court orders of 10 March envisaged that pro bono legal advice and assistance would be provided to Mrs Satchi after the matter had been stood over. The matter was called over before the Registrar pursuant to those orders on 4 May when there was an appearance for the appellant, presumably by Mr Satchi. The Registrar made an order for pro bono assistance which was acted on by notice to Ms Clarissa Amato of counsel on 19 May. Ms Amato advised the Registrar on 10 August that she had given advice to Mr Satchi in writing and in conference but was no longer able to act for him and inferentially for Mrs Satchi in the proceedings and she returned the papers. Thereafter nothing effective was done until 9 October. Mr Satchi represented to the Court, appearing by leave on behalf of his wife, that the Registrar of this Court had extended time for lodging an application for leave to proceed. The call over sheets for 4 May, 22 June when there was no appearance for any party, 13 July when there was an appearance by Mr Satchi it would seem, and 31 August when there was again an appearance by Mr Satchi, do not record an extension of time granted by the Registrar. In those circumstances it is clear that there has been a persistent failure to prosecute the present appeal with effect both before and after 10 March this year and I would propose in those circumstances that the appeal be dismissed for want of prosecution. Having in mind the reasons for judgment of Bell J, the nature of her findings of fact, and the difficulty an appellant faces in challenging findings based on the Judge’s view of the credibility of witnesses, the appeal appears to be without merit in any event and is likely to prove futile in the light of the proceedings brought by the National Australia Bank unless the High Court takes the unusual step of granting special leave to appeal. In those circumstances, as I have said, I would propose that the appeal be dismissed for want of prosecution and that the Court should make no order as to costs.