Satchithanantham v National Australia Bank
[2010] NSWCA 243
•13 September 2010
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Satchithanantham & Ors v National Australia Bank [2010] NSWCA 243
FILE NUMBER(S):
CA 2009/298148
HEARING DATE(S):
13/09/10
JUDGMENT DATE:
13 September 2010
EX TEMPORE DATE:
13 September 2010
PARTIES:
Hemalathasothy Ranjini SATCHITHANANTHAM (applicant)
NATIONAL AUSTRALIA BANK LIMITED (respondent)
JUDGMENT OF:
Macfarlan JA Handley AJA Sackville AJA
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
24 May 2010 and various
LOWER COURT JUDICIAL OFFICER:
Hodgson JA and various
COUNSEL:
Mr Krishnar, solicitor - Applicant
Ms N Bearup - Respondent
SOLICITORS:
Dibbs Baker - Respondent
CATCHWORDS:
ABUSE OF PROCESS – Court not bound to entertain argument where proceedings clearly abusive.
PRACTICE and PROCEDURE – Court not bound to entertain argument where proceedings clearly abusive.
LEGISLATION CITED:
Contracts Review Act
CATEGORY:
Procedural and other rulings
CASES CITED:
TEXTS CITED:
DECISION:
Order that the three notices of motion filed by the applicants on 7 June, 24 June and 6 August 2010 be dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
09/298148
MACFARLAN JA
HANDLEY AJA
SACKVILLE AJAMONDAY 13 SEPTEMBER 2010
NATIONAL AUSTRALIA BANK v HEMALATHASOTHY RANIJINI SATCHITHANANTHAM
HEMALATHASOTHY RANIJINI SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK LIMITED
CATCHWORDS
ABUSE OF PROCESS – Court not bound to entertain argument where proceedings clearly abusive.
PRACTICE and PROCEDURE – Court not bound to entertain argument where proceedings clearly abusive.
HEADNOTE
Three motions by the applicant to review interlocutory and final orders of the Court were summarily dismissed without a hearing where the decision of this Court on 2 September 2009 and the refusal of special leave by the High Court on 23 April 2010 had finally determined the rights of the parties and the judgment for possession in favour of the Bank had been enforced.
ORDERS
The three notices of motion filed by the applicants on 7 June, 24 June and 6 August 2010 dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
09/298148
MACFARLAN JA
HANDLEY AJA
SACKVILLE AJAMONDAY 13 SEPTEMBER 2010
NATIONAL AUSTRALIA BANK v HEMALATHASOTHY RANIJINI SATCHITHANANTHAM
HEMALATHASOTHY RANIJINI SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK LIMITED
JUDGMENT
HANDLEY AJA: The Court has before it notices of motion filed by or on behalf of one or other of Mr Satchi and Mrs Satchi (as they have generally been described) and their son. I will refer to the Satchi parties collectively as the applicants.
The first notice of motion filed on 7 June 2010 sought a review of the orders of Hodgson JA of 24 May 2010. The second filed on 24 June sought a review of the orders made by the Court and the Common Law Division between 22 May 2006 and 26 May 2010. They include orders made by Campbell JA on 14 July 2008 and those made by Giles JA on 15 June 2009. The third notice of motion filed on 6 August sought stays of all orders made in the Common Law Division between 21 March 2006 and 26 May 2010, stays of all orders made by this Court between 12 December 2007 and 5 August 2010 and an order for the re-delivery of possession of at 76 Houison Street Westmead of which the Bank took possession on 26 May 2010.
In my judgment the proceedings before this Court are a clear abuse of its process and the litigious history which I will summarise justifies the Court in summarily dismissing all three notices of motion without hearing further argument or addressing the lengthy materials relied upon by the applicants.
Mr Satchi filed four notices of motion in the Common Law Division seeking to be added as a party to the proceedings by the Bank against his wife which were all dismissed. He made two unsuccessful applications for leave to appeal from those orders which were dismissed on 23 May 2007 and 14 May 2008 and an application to review the decision of the Full Court of 14 May 2008 which was dismissed by Campbell JA on 14 July 2008.
On 6 February 2009 McCallum J gave judgment for the Bank for possession of the property and judgment for the mortgage debt reduced under the Contracts Review Act to $408,665.86. These were final orders and their legal merits could only be reviewed on appeal. However the enforcement of those orders was subject to the supervision of a Judge of the Common Law Division, and this Court.
On 7 April 2009 McCallum J refused to stay execution on the judgments. On 18 May 2009 Ipp JA granted a stay of execution until the hearing of the applicants’ appeal which was then fixed for hearing on 1 July 2009. The appeal was heard that day by a court comprising Giles, Hodgson and Young JJA. The Court’s reserved judgment was delivered on 2 September 2009. The appeal was dismissed with costs but a further stay of execution was granted on conditions until 1 November 2009.
On 11 September 2009 the applicants applied by notice of motion for a further stay of execution. This was dismissed by Young JA on 27 October 2009 but he extended the stay until 17 November.
On 30 September 2009 the applicants sought special leave to appeal to the High Court.
On 6 November the applicants filed a notice of motion seeking a review of the orders of Young JA which was heard by a bench comprising Allsop P, Basten JA and myself on 17 November. The Court reserved judgment and continued the stay. Judgment was given on 4 December dismissing the application for a review and refusing to extend the stay.
On 23 March 2010 Hoeben J refused a stay of execution but on 26 March Heydon J granted a stay until 30 April and fixed the hearing of the special leave application for 23 April. It was dismissed that day by French CJ and Kiefel J and the stay granted by Heydon J expired on 30 April. Applications for a further stay were dismissed by McClellan CJ at CL on 29 April, by Hulme J on 19 May, and by Barr J on 25 and 26 May. Hulme J said in his reasons for judgment:
“When one has regard to the material which is before me it is difficult to avoid the conclusion that the current applications are an abuse of process.”
A notice of motion filed on 19 May 2010 which sought to reopen the appeal to this Court and for a stay of execution was dismissed by Hodgson JA on 24 May.
The judgment of this Court of 2 September 2009 dismissing the appeal from the judgment of McCallum J of 6 February that year finally determined the rights of Mrs Satchi and the Bank and the High Court refused special leave to appeal. This means that the merits of this Court’s judgment of 2 September can no longer be examined or re-examined in any court anywhere. The judgment for possession has now been enforced. The merits or otherwise of the many interlocutory orders made in the Common Law Division and in this Court since 2006 are now only of historical interest, if that. The proposed re-examination of the merits of those orders cannot affect the rights of the parties as finally determined by this Court on 2 September 2009.
The Bank is and remains entitled to possession of the property and is and remains entitled to its judgment for the reduced mortgage debt. The proceedings before this Court on these three notices of motion cannot serve any useful purpose and are a clear abuse of process. The Court would only be compounding that abuse if it devoted any further public time to their consideration and caused any further expense to the Bank.
In my judgment therefore all three motions filed by the applicants should be dismissed with costs.
MACFARLAN JA: I agree.
SACKVILLE AJA: I also agree.
MACFARLAN JA: The order of the Court is accordingly that the three notices of motion filed by the applicants on 7 June, 24 June and 6 August 2010 be dismissed with costs.
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LAST UPDATED:
21 September 2010
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