Schafer v RHG Mortgage Corporation Limited [No 2]
[2015] WASCA 106
•28 MAY 2015
SCHAFER -v- RHG MORTGAGE CORPORATION LIMITED [No 2] [2015] WASCA 106
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 106 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:110/2014 | 23 APRIL 2015 | |
| Coram: | NEWNES JA MURPHY JA | 28/05/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Application for stay dismissed Application for 'reopening of transaction' and 'compensation orders' dismissed | ||
| B | |||
| PDF Version |
| Parties: | BARBARA MAGDALENA SCHAFER UWE SCHAFER RHG MORTGAGE CORPORATION LIMITED |
Catchwords: | Practice and procedure Whether grounds of appeal have reasonable prospects of success Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) Appeal from summary judgment Whether s 72 and s 89A of the National Credit Code shown arguably to apply to facts Practice and procedure Application for stay of enforcement proceedings Application for reopening of transaction Application for compensation orders |
Legislation: | Consumer Credit (Western Australia) Code Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth), s 2, sch 1, sch 5, sch 6 National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), sch 1, s 4 National Consumer Credit Protection Act 2009 (Cth), s 166, s 167, sch 1 National Credit Code, s 64, s 72, s 73, s 75, s 89A Rules of the Supreme Court 1971 (WA), O 37 r 6(1) Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) |
Case References: | RHG Mortgage Corporation Limited v Schafer [2014] WASC 297 Schafer v RHG Mortgage Corporation Limited [2015] WASCA 11 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SCHAFER -v- RHG MORTGAGE CORPORATION LIMITED [No 2] [2015] WASCA 106 CORAM : NEWNES JA
- MURPHY JA
- First-named Appellant
UWE SCHAFER
Second-named Appellant
AND
RHG MORTGAGE CORPORATION LIMITED
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : CHANEY J
Citation : RHG MORTGAGE CORPORATION LTD -v- SCHAFER [2014] WASC 297
File No : CIV 1479 of 2013
Catchwords:
Practice and procedure - Whether grounds of appeal have reasonable prospects of success - Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) - Appeal from summary judgment - Whether s 72 and s 89A of the National Credit Code shown arguably to apply to facts
Practice and procedure - Application for stay of enforcement proceedings - Application for reopening of transaction - Application for compensation orders
Legislation:
Consumer Credit (Western Australia) Code
Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth), s 2, sch 1, sch 5, sch 6
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), sch 1, s 4
National Consumer Credit Protection Act 2009 (Cth), s 166, s 167, sch 1
National Credit Code, s 64, s 72, s 73, s 75, s 89A
Rules of the Supreme Court 1971 (WA), O 37 r 6(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Result:
Appeal dismissed
Application for stay dismissed
Application for 'reopening of transaction' and 'compensation orders' dismissed
Category: B
Representation:
Counsel:
First-named Appellant : In person
Second-named Appellant : In person
Respondent : Mr J Lin
Solicitors:
First-named Appellant : In person
Second-named Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
RHG Mortgage Corporation Limited v Schafer [2014] WASC 297
Schafer v RHG Mortgage Corporation Limited [2015] WASCA 11
- REASONS OF THE COURT:
Introduction
1 This matter was listed on 23 April 2015 to consider:
(a) the appellants' application for a stay dated 24 September 2014;
(b) the respondent's application to dismiss the appeal dated 1 October 2014; and
(c) the appellants' application for 'reopening of transaction' and 'compensation orders' dated 5 November 2014.
2 These applications occur in the context of an appeal by the appellants against the decision of the primary judge, Chaney J, in RHG Mortgage Corporation Limited v Schafer.1
3 The primary judgment under appeal concerned the grant of summary judgment in favour of the respondent in relation to a claim for the recovery and enforcement of a secured debt, in connection with which it was not disputed by the appellants that monies had been advanced to the appellants, that the first-named appellant had granted a mortgage to the respondent to secure the advance, and that there had not been repayment in full.
4 A key element of the appellants' contentions in this matter is revealed in the following exchanges between the second-named appellant and Chaney J in the court below:2
Chaney J: And just so you're clear what my understanding is, your argument is that the [respondent] was not the lender because the money which was advanced to you at settlement was money from some other source. Is that right?
[Second-named appellant]: That would be overarching point. Yes.
5 Earlier, in the hearing before Chaney J, the second-named appellant submitted:3
[Second-named appellant]: So, behind the scenes what's going on is actually what I'm talking about. I'm not talking about at the onset. I know we've entered an agreement. I know we received something from someone. And who the heck it was I don't know.
…
Chaney J: What's the point of all this? That then when you found that out - - -
[Second-named appellant]: Yes.
Chaney J: - - - What … you pay that person back the money, will you?
[Second-named appellant]: Your Honour, I'm sorry, but that's ludicrous. If a fair [sic] party throws money at me without me even knowing them and without having any contractual relations, I would call that unsolicited. Now, would I pay them back? No, I would gratefully take it and say, thanks.
6 The following exchange also occurred:4
[Second-named appellant]: What I'm talking about is at settlement.
Chaney J: Yes.
[Second-named appellant]: If the funds at settlement weren't provided by the [respondent] either we're the wrong defendant or they're the wrong plaintiff in their book, and the other plaintiff, I don't know, so he can get stuffed. Do you see the point?
7 These reasons should be read, generally, with the court's earlier reasons in Schafer v RHG Mortgage Corporation Limited,5 although specific parts of those reasons will be incorporated into these reasons where appropriate.
8 Voluminous affidavits and submissions have been filed by the parties to which the court has had regard.
The appellants' case
9 The appellants have, since the last occasion, filed an appellants' case dated 6 March 2015.
10 The appellants' grounds of appeal are in the following terms:
1. Breach of 4th Loan Variation Agreement Nov 2012 - errors of mixed fact and law
His Honour erred in his presumption that the terms of the 4th loan agreement which remain in breach by the Respondent since 2012, were a request for documents that related to the underlying (behind the scene) funding arrangements of the plaintiff.
2. Matter of Hardship - errors of mixed fact and law
His Honour and the Respondent agreed that the Respondent accepted a Hardship notice which was offered by the Appellants. The notice was accompanied by a cheque for temporarily reduced monthly payments, which the Respondent deposited instantly.
Firstly, the Hardship Notice had additional terms and consequences, which after acceptance by conduct were ignored by the Respondent, who continued its case in court regardless.
Secondly, the Respondent never replied to the notice and thereby committed a serious breach of the National Credit Code.
His Honour deemed the above as too irrelevant to influence his decision to award summary judgment without trial.
3. Misconstruance of Pleadings about WHO provided funds on the day - errors of mixed fact and law
His Honour seemed to have understood the Appellant's pleadings during the hearing, yet his decision shows otherwise and makes a ruling based on a 'Securitisation' style argument, a path never pleaded by the Appellants.
The Appeals Court is already following the same erroneous path as has become obvious from the early Appeal hearings and interlocutory decisions, despite SOLID pleading by the Appellants to the contrary.
4. Power of Attorney / Mortgage Validity - errors of mixed fact and law
His Honour erred on the consequences relating to the validity of the mortgage and corresponding irrevocable power of attorney, which arise from the actual facts of WHO the party was who paid money at settlement.
5. Misleading and deceptive conduct - errors of mixed fact and law
The Appellants extensively highlighted throughout their pleadings that the conduct by the Respondent appeared to be clearly misleading and deceptive. Several items were raised in this regard, yet ignored by His Honour and deemed irrelevant.
6. Basis for Summary Judgment - errors of mixed fact and law
His Honour had numerous issues in front of him that made the basis for summary judgment far from being clear and well established.
7. Counterclaim and Set-Off ignored - error of law
The proceeding made it clear that an opportunity for potential counterclaim (for Respondent's agreement breach) and set-off (based on damages and civil penalties) exists. His Honour awarded judgment without trial regardless, ignoring the above.
8. Denial of Access to the Court - error of law
In addition, since summary judgment, the Appellants have been subjected to an outright refusal of access to justice on several occasions, both by the general court and now also the court of appeal, pursuant to suggestions put forth by His Honour earlier as to how the Appellants could seek remedy.
9. Exception to the Inglis Rule
As this matter is concerned in numerous details with the very core of the validity of the mortgage and power of attorney, an exception to the Inglis Rule applies.
Ground 1
11 The relevant agreement (Loan Agreement) was entered into on 6 June 2007.
12 Ground 1 relates to an alleged variation of the Loan Agreement in or about November 2012, which the parties referred to as the 'fourth variation'.
13 In support of this ground, the appellants summarised their arguments as follows:
Chaney J erred in his presumption that the terms of the 4th loan agreement which remain in breach by the Respondent since 2012 were a request for documents that related to the underlying (behind the scene) funding arrangements of the plaintiff.
This is an error of fact, as the Appellants clearly pleaded that the reason for the amending of the loan agreement was to 'compel' the Respondent to provide information which had been refused earlier already … information which went directly to the standing of the Respondent based on whether it had actually performed pursuant to its promises under the loan agreement and mortgage. (original emphasis)
14 The appellants also referred to O 37 r 6(1) of the Rules of the Supreme Court 1971 (WA) (RSC) which provides that an affidavit must be confined to such facts as the deponent is able, of his or her own knowledge, to prove.
15 In relation to this matter, this court in its earlier judgment6 observed that the primary judge had addressed this question in the following terms:
[T]here was a question concerning a variation to the Agreement [29] - [30], [37] - [41] (in the applications to this court the parties referred to this as the 'fourth variation'). It was common ground that the appellants were in arrears by October 2012. The respondent offered to capitalise the arrears. The respondent sent a loan variation agreement to the appellants on 3 October 2012, which the appellants signed and returned to the respondent by mail. This document was never received by the respondent. The respondent then sent another copy of the same variation to the appellants on about 2 November 2012 [29]. On 6 November 2012, the appellants added to the document an additional clause and signed and returned the document to the respondent. The additional clause stated, in effect, that the respondent would provide information regarding the Agreement to the appellants upon written request [30]. The appellants alleged that this additional clause had contractual effect, and that the respondent was in breach of it. In particular, the appellants alleged that in December 2012 they wrote to the respondent demanding certain documents (although the demands were not adduced in evidence), and that the respondent had not complied with the demand. On 24 December 2012, the appellants sent the respondent a 'Notice of Breach of Agreement' [34]. The appellants alleged that the respondent was not entitled to commence proceedings against them until it had complied with the requests for the provision of documents [34] - [35].
Chaney J found that even if the additional provision were an operative provision of the Agreement, its breach would not result in all of the other contractual obligations of the parties being suspended or terminated [42]. His Honour said:
'If the plaintiff was in breach of an obligation to provide documents of the character described in the additional provision, that breach would not result in the consequences asserted in the Notice of Breach, or any of them. It is not a breach the nature of which would give rise to an entitlement to terminate the loan agreement. At best, the breach may give rise to an entitlement to seek an order for specific performance, or, for damages if some damage could be demonstrated (which it has not). Even if the additional provision was an operative provision of the loan agreement, its breach would not result in all of the other contractual obligations of the parties being somehow suspended or terminated [42].'
17 Secondly, on the evidence before the primary judge, the respondent had standing to bring the claim because it had advanced funds to the appellants and had been granted a mortgage by the first-named appellant. The primary judge had evidence before him from Mr Handel in his affidavit sworn 21 May 2013, that the respondent had advanced the funds to the appellants.7 Mr Handel deposed, in effect, that he was employed by a company which was engaged by another on behalf of the respondent to provide services in connection with the servicing of mortgage loans made by the respondent, and that from his own knowledge and from his familiarity and understanding of the records of the respondent, he was cognisant of the facts to which he deposed in the affidavit. He annexed various documents, including a copy of the Loan Agreement and the relevant mortgage.8 Whilst Mr Handel did not say that he attended the settlement at which the funds were advanced to the appellants, his statement in the affidavit,9 that the respondent advanced the funds to the appellants, is to be understood as having been made on the basis of his familiarity and understanding of the records of the respondent. Moreover, the appellants did not dispute that they had received the monies, nor was it disputed that the first-named appellant had granted a mortgage to the respondent to secure the repayment of the monies. Also, there was no suggestion that any other lender had ever asserted to the appellants that it had advanced the funds to the appellants pursuant to the Loan Agreement, or that they had ever received any demand from any other lender purporting to have advanced them funds pursuant to the Loan Agreement.
18 There is nothing in the materials provided to this court which would indicate any arguable error on the part of his Honour in accepting Mr Handel's evidence. In so concluding, we have had regard to the first-named appellant's affidavit sworn 9 April 2015, which contains unparticularised assertions to the effect that Mr Handel did not work in Perth in a role related to settlements in 2007, and did not work for the respondent in 2007. The appellants' reliance on that evidence is of no assistance to them for two reasons. First, no weight can be given to the evidence given its generality and absence of detail. Secondly, Mr Handel was not required to attend the relevant settlement, or work for the respondent in 2007, in order to give the evidence that he did in his affidavit based on his familiarity with the respondent's records.
19 There is no arguable merit in ground 1 and it has no reasonable prospect of success.
Ground 2
Preliminary observations and the primary judge's reasons
20 In relation to the alleged 'hardship notice', this court observed in its earlier decision:10
The letter dated 31 January 2014 stated:
'NOTICE OF FINANCIAL HARDSHIP
Dear Glenn,
Further to the correspondence we provided on 06 Jan 2014, and as we haven't heard back yet, please take note of the following.
Due to Barbara's fathers ailing health throughout 2013, she was required to travel to Germany numerous times. Her father passed in later December. This has disallowed her from properly establishing herself in a new career since completing her studies in psychology/counselling earlier in the year.
I, Uwe Schafer, was left looking after the kids and keeping the family financially afloat. A major downturn in my web design business has all but wiped out earlier cashflow in place to the point where the family is now under EXTREME financial hardship.
We fully intend to bring the account back into order as soon as possible once the situation has stabilised.
Additionally, we advise that despite near two years of demanding further and better particulars, the question of RHG's proper standing to bring a claim in the matter has not yet been answered. All requests for certain documentation were openly rejected by RHG despite lawful requirements to assist, in particular, providing us an opportunity to examine the original bona fide wet ink signature loan agreement so as to establish that RHG Mortgage Corporation Limited is the genuine creditor to the loan. We hereby afford RHG this final opportunity to provide us within seven days of the date of this notice an examination of the original bona fide wet ink signature loan agreement. If it is not forthcoming, it shall be taken as an equitable estoppel whereby RGH accepts and agrees it is not the creditor to the loan; has no legal status to pursue the loan and waives all rights to pursue the loan any further.
Even engagement of FOS did not assist with any provision. All remedy in that respect was denied.
Notwithstanding the above lack of proof of creditor status, we are prepared to make a good faith offer of $500 per month until further notice to maintain 'CLEAN HANDS IN EQUITY', enabling us to recover the family finances whilst sorting out all matters with the immediate family in Germany since the father's passing.
Even $500 is currently beyond our means; however, we assure you that we will do whatever it takes to honour this arrangement. A personal cheque of $500 is attached as the first payment.
We look forward to your kind consideration in the matter.'
A cheque for $500 was enclosed, and debited against the appellants' indebtedness [46].
Chaney J said:
'Section 74 of the National Consumer Credit Code permits a debtor to apply to a court where no change to the credit contract is made following a hardship notice, seeking an order to change the credit contract. The court is not able to reduce the amount ultimately payable by the debtor to the credit provider under the contract even if it changes the contract. The court may also stay enforcement proceedings [48].'
Chaney J found that there was no evidence of any attempt by the appellants to seek any change in the credit contract as a result of the failure of the credit provider to respond to the hardship notice. Further, his Honour said that the court is not able to reduce the amount ultimately payable by the debtor, and that therefore, there was nothing in the Code to prevent the respondent from continuing proceedings [44] - [50].
…
As the appellants contended in their submissions, the primary judge made no reference to s 89A of the Code, although on the materials presently available to this court, it is difficult to see that his Honour's attention was drawn to that provision during the hearing of the summary judgment application. (emphasis added)
The parties' arguments
21 In relation to ground 2, the appellants said that their arguments in summary were as follows:
His Honour and the Respondent agreed that the Respondent accepted a Hardship Notice which was offered by the Appellants … The notice was accompanied by a cheque for temporarily reduced monthly payments, which the Respondent deposited instantly.
Firstly, the Hardship Notice / OFFER had additional terms and consequences, which, after the Respondent displayed acceptance by performance by depositing the attached cheque, were however ignored by the Respondent, who continued its case in court regardless.
The Hardship Notice established an Equitable Estoppel effected through the Respondent's non reply.
Secondly, the Respondent never replied to the notice and thereby committed a serious breach of the National Credit Code, accompanied by the highest possible civil penalty of 2000 penalty units, a fact also admitted by His Honour and the Respondent. (original emphasis)
22 In relation to the allegation concerning the National Credit Code (the Code), the appellants referred to s 72(4).
23 The Code appears as sch 1 to the National Consumer Credit Protection Act 2009 (Cth) (National Credit Act). The current provisions of the Code were set out in the court's earlier reasons.11
24 The respondent contends that the relevant statutory position is as follows:
(a) the Loan Agreement dated 6 June 2007 was subject to the operation of the Consumer Credit (Western Australia) Code (WA Code);
(b) section 3 of the National Credit Act, and the Code, came into operation on 1 April 2010;
(c) section 3(2) in div 2 of sch 1 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) (Transition Act) provided, in effect, that the Code applies to a 'carried over instrument' as defined in s 4 of the Transition Act, but subject to s 3(5) in div 2 sch 1;
(d) the Loan Agreement between the appellants and the respondent was a 'carried over instrument' within the meaning of s 4 of the Transition Act; and
(e) by virtue of s 3(5) in div 2 of sch 1 of the Transition Act, s 72 - s 75 inclusive of the Code did not apply to the Loan Agreement of 6 June 2007, or any of the subsequent variations to it, for the reasons set out below.
25 The respondent observed that s 3(5) in div 2 of sch 1 of the Transition Act provides, in effect, that section 72(5) of the Code does not apply to a carried over instrument, and that instead the following section 72(5) applies:
Application
(5) This section and sections 73 to 75 do not apply to a credit contract under which the maximum amount of credit that is or may be provided is more than an amount equal to 110% of the amount of the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments in the most recent publication entitled Housing Finance, Australia, as published from time to time by the Australian Bureau of Statistics.
26 The respondent provided the following table12 setting out the date of the Loan Agreement; the dates of each loan variation agreement; the loan amounts; the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments as published by the Australian Bureau of Statistics; and 110% of such average loan sizes.
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20 April 2010 |
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18 November 2011 |
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6 April 2012 |
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(October/November 2012?) |
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27 The information in the table was, in effect, verified by an affidavit sworn by T Wall on 23 April 2015 on behalf of the respondent. The affidavit annexed documents from the Australian Bureau of Statistics and was handed up at the hearing without objection from the appellants.
28 The respondent submits that as the amount of the Loan Agreement is more than 110% of the average loan size in New South Wales, s 72 of the Code could not apply to the Loan Agreement.
29 Moreover, the respondent also contends that the current s 72 of the Code, and s 89A of the Code, were inserted by s 1 and s 6 respectively, of pt 1 of sch 1 of the Consumer Credit Legislation Amendment (Enhancements) Act 2012 (Cth) (Amending Act). They contend that by virtue of s 2 of the Amending Act, the current s 72, and s 89A of the Code, commenced operation on 1 March 2013. They further contend that by s 5 and s 6 of pt 2 of sch 5 of the Transition Act, pursuant to sch 6 of the Amending Act, the current s 72, and s 89A of the Code, only apply in relation to credit contracts made on or after the date of commencement, that is 1 March 2013.
Disposition
30 This ground has no prospects of success for essentially three reasons. The first is that the appellants could not generate an equitable estoppel in their favour merely by paying a lesser amount than the amount that was due under the Loan Agreement at the time, and asserting that if certain documents were not provided to them, the respondent would be taken not to be the creditor and would be precluded from recovering under the Loan Agreement. Secondly, whilst it would appear that his Honour's attention was not drawn to all the relevant provisions concerning the potential application of the Code, including s 89A upon which the appellants have relied in this court, the appellants have not shown any arguable basis for the contention that s 72 and s 89A of the Code in their current form had any application to the facts of the case. There was no suggestion that the table referred to above incorrectly stated the relevant figures derived from the Australian Bureau of Statistics. Nor, apart from mere assertion, was there any reasoned challenge to the respondent's submissions in relation to the operation and application of the Code and related statutory instruments referred to in [23] - [29] above.
31 Further, and in any event, by virtue of s 166 of the National Credit Act, only ASIC may apply to the court for a declaration that a civil penalty provision has been contravened, and under s 167 of the National Credit Act, only ASIC may apply to the court for an order that the person pay the Commonwealth a pecuniary penalty.
Ground 3
32 In relation to ground 3, the appellants stated that:
One of the Appellant's [sic] main contentions … is the absence of any substantive evidence that the Respondent actually paid money to the Appellants at settlement. The Appellants pleaded this point almost 20 times in various forms throughout the proceedings on the paper and orally at the summary hearing. The court and counsel constantly misconstrued the Appellant's argument (and even the court of appeal still does so) to allegedly mean that the Appellants' central point was the funding arrangements of the Respondent behind the scene.
33 The appellants, in their written submissions, pressed their arguments in the following (presumably rhetorical) question:
Who paid the money?
34 There is no merit in this ground for the reasons given in relation to ground 1.
Ground 4
35 In relation to ground 4, the appellants contend by way of summary:
By not providing money on the day of settlement itself, the Respondent did not perform according to its promise under the loan agreement and mortgage. It's acquisition of the mortgagor's consent to mortgage and the corresponding Irrevocable Power of Attorney was based on fraudulent misrepresentation. It therefore committed offences pursuant to established Commonwealth laws.
36 This ground proceeds on the basis, in effect, that there is a reasonably arguable case that the primary judge erred in finding that the respondent had advanced monies to the appellants. For the reasons given in relation to grounds 1 and 3, ground 4 has no reasonable prospect of succeeding.
Ground 5
37 In relation to ground 5, the appellants summarise their argument as follows:
The Appellants extensively highlighted throughout their pleadings that the conduct by the Respondent appeared to be clearly misleading and deceptive. Several items were raised in this regard, yet ignored by His Honour and deemed irrelevant.
38 The appellants' arguments effectively proceed on the basis that there was misleading or deceptive conduct in relation to the identity of the lender of the funds. For the reasons given in relation to grounds 1, 3 and 4, this ground has no reasonable prospect of succeeding.
Ground 6
39 In relation to ground 6, the appellants summarised their argument as follows:
His Honour had no clear basis to award summary judgment. There is a plethora of unresolved items which are central to first establishing a clear cut case that warrants judgment. The matter should have gone to trial to award both sides an equal opportunity.
40 This ground alleges in general terms that his Honour erred in granting summary judgment. It adds nothing material to any of the other grounds of appeal and has, in itself, no prospect of success.
Ground 7
41 In relation to ground 7, the appellants summarised their argument as follows:
7. Counterclaim and set-off ignored - error of fact
(b) The matter before the court holds a clear element of a possible counter claim by the Appellants based on the Respondent's breach of agreement, and tortuous [sic] damages resulting from the 2 + years of vexatious legal crusade by the Respondent.
(c) This was ignored by His Honour and should have been sent to examination at a proper trial.
(d) An order for specific performance and moving the matter to trial is what the court should have made.
(e) His Honour further ignored the opportunity for Set-Off based on the lawful opportunity for a person to apply to the court for damages based on civil penalties to be applied as damages in favour of that person.
(f) This also should have been investigated at trial in depth.
43 Insofar as it is alleged that the appellants have claims for 'civil penalties' for alleged breaches of s 72 of the Code, the appellants have failed to demonstrate any arguable basis for such claims for the reasons given in relation to ground 2.
Ground 8
44 In relation to ground 8, the appellants summarised their submissions as follows:
8. Denial of Access to the Court - error of law
The following paragraphs expand on what happened at and since summary judgment …
(a) His Honour denied the Appellants having the matters of 'breach of agreement' and 'breach of the Credit Code' properly dealt with by the court during the proceedings, ie by moving the matter to trial.
(b) He however did suggest the possibilities of 'specific performance orders' and 'civil penalties' during the hearing and in his decision.
(c) Based on the above, on or around 17 October 2014, the Appellants attempted to file a fresh Originating Process seeking clear orders of the two items in the general court:
A. a Specific Performance in the Respondent's admitted Breach;
B. Compensation/Civil Penalties applied as Damages.
Ground 9
46 In relation to ground 9, in written submissions dated 15 April 2015 (par 15) the appellants clarify that the 'Inglis rule' is not intended to be a ground of appeal.
Conclusion
47 As none of the grounds of appeal has a reasonable prospect of succeeding, the respondent's application to dismiss the appeal dated 1 October 2014 should be granted, and the appellants' application for a stay should be dismissed. The appellants' application for 'reopening of transaction and compensation orders' dated 5 November 2014 should also be dismissed in consequence. That application should also be dismissed for the further reason that even if the appellants had reasonable prospects of success in the appeal (which they do not), the most that this court could do, if the appeal succeeded, would be to set aside the decision of the primary judge and make strictly consequential orders. It would not make orders for 'reopening of transaction' and 'compensation orders'.
1RHG Mortgage Corporation Limited v Schafer [2014] WASC 297 (primary reasons).
2 Ts 42 - 43.
3 Ts 37 - 38.
4 Ts 42.
5Schafer v RHG Mortgage Corporation Limited [2015] WASCA 11.
6Schafer [12] - [13].
7 Paragraphs 2 and 7 of Mr Handel's affidavit.
8 Mr Handel's affidavit paragraphs 4 and 5.
9 Mr Handel's affidavit par 7.
10Schafer [15] - [18], [47].
11Schafer [39] - [43].
12 Par 13 in respondent's written submissions in application to dismiss appeal dated 27 March 2015.
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