Serventy v Commonwealth Bank of Australia
[2016] WASCA 86
•27 MAY 2016
SERVENTY -v- COMMONWEALTH BANK OF AUSTRALIA [2016] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 86 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:146/2015 | 25 MAY 2016 | |
| Coram: | MURPHY JA | 27/05/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for stay granted | ||
| B | |||
| PDF Version |
| Parties: | ROLAND PHILIP SERVENTY EVELYN ROXANNA SERVENTY COMMONWEALTH BANK OF AUSTRALIA |
Catchwords: | Practice and procedure Stay application Appeal against summary judgment Turns on own facts |
Legislation: | Nil |
Case References: | Commonwealth Bank of Australia v Bouwman [2003] WASC 205 Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342 Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177 Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205 Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 Perpetual Trustees Victoria Ltd v Burns [2015] WASC 234 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SERVENTY -v- COMMONWEALTH BANK OF AUSTRALIA [2016] WASCA 86 CORAM : MURPHY JA HEARD : 25 MAY 2016 DELIVERED : 27 MAY 2016 FILE NO/S : CACV 146 of 2015 BETWEEN : ROLAND PHILIP SERVENTY
- First Appellant
EVELYN ROXANNA SERVENTY
Second Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1950 of 2014
Catchwords:
Practice and procedure - Stay application - Appeal against summary judgment - Turns on own facts
Legislation:
Nil
Result:
Application for stay granted
Category: B
Representation:
Counsel:
First Appellant : Mr R Butcher
Second Appellant : Mr R Butcher
Respondent : Ms N Fraser
Solicitors:
First Appellant : Butcher Paull & Calder
Second Appellant : Butcher Paull & Calder
Respondent : Gadens Lawyers
Case(s) referred to in judgment(s):
Commonwealth Bank of Australia v Bouwman [2003] WASC 205
Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342
Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177
Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Perpetual Trustees Victoria Ltd v Burns [2015] WASC 234
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
1 MURPHY JA: This is an application for a stay by the appellants in an appeal against a summary judgment decision of Master Sanderson in which the learned master ordered that the appellants pay certain loan moneys to the respondent (bank) and give possession of certain property in Gooseberry Hill to the bank. The Gooseberry Hill property is the appellants' family home.
2 The background to the application is that the appellants were self-represented for a considerable period of time. They had filed an appellants' case last year. Earlier this year, the appellants' retained their current solicitors. The appellants' solicitors filed a minute of proposed amended grounds of appeal dated 13 May 2016. I ordered the appellants' case as previously filed to be struck out, and I gave the appellants leave to file and serve an amended appellants' case in accordance with the appellants' minute dated 13 May 2016.
3 The appellants also applied for leave to adduce additional evidence on the appeal. I ordered that application to be returned to the hearing of the appeal.
4 The appellants' central contention is that on the proper construction and application of a lengthy agreement described as an 'Intermediary Agreement', there was a triable issue (including when regard is had to the proposed additional evidence) as to whether an intermediary who arranged the loan from the bank was an agent of the bank who had engaged in misleading or deceptive conduct or unconscionable conduct.
5 On the question of whether there was any agency created so as to make the intermediary the bank's agent, counsel for the bank contended that properly construed and applied, the Intermediary Agreement made the intermediary the agent of the borrowers. Counsel contended that this would be consistent with what would ordinarily be the case. The parties, in this context, referred to various provisions of the Intermediary Agreement and certain cases, including Permanent Mortgages Pty Ltd v Vandenbergh;1Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd;2 Perpetual Trustees Victoria Ltd v Burns.3 I have considered those cases. However, any contract is ultimately to be construed according to its terms, and decisions in other cases in relation to other contracts are often of limited value.
6 Having considered, in a preliminary way, the terms of the Intermediary Agreement, and considered the parties' written and oral submissions, my provisional view is that whilst the appellants' case may not be strong, I could not conclude at this stage that the matters raised are unarguable. I am satisfied that the appeal is, for present purposes, reasonably arguable and has not been lodged merely to delay execution of the summary judgment: Croney v Nand;4Commonwealth Bank of Australiav Bouwman.5
7 The principles relevant to a stay application were summarised in Tradesman Technologies Pty Ltd v Ameduri6 as follows:
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
8 In relation to whether the appeal would be rendered nugatory if a stay were not granted, the position is that the bank would be entitled to sell the home if a stay were not ordered. If this court were ultimately to allow the appeal, the effect of the court's decision would be to find that the bank did not have an entitlement to sell the appellants' home without the appellants first having a determination of their alleged defences on the merits. Accordingly, in my opinion, the grant of a stay would preserve the subject matter or integrity of the litigation.
9 On the other hand, the bank contends that even if an appeal were successful, the debt secured over the Gooseberry Hill property would not 'disappear' and that the appellants could not, in any event, obtain the benefit of the transaction they were seeking to set aside.7 That may be so, and may be an issue at trial if the appellants were ultimately successful in their claims for unconscionable conduct against the bank. Yet, the point of the present appeal would, in substance, be whether the appellants should have been shut out of having their claims determined on the merits, by operation of the order of summary judgment. As I have said, in my view, the grant of a stay would preserve the subject matter or integrity of the litigation.
10 As to the balance of convenience, the bank contended that the Gooseberry Hill property is worth approximately $580,000, and that the judgment debt is in the order of $1 million with interest accruing every day.8 I accept that these matters are matters favourable to the bank on the question of balance of convenience. However, in my view they would have greater force if this had been a judgment after trial involving a full contest of the merits, rather than an appeal against a summary judgment.
11 Further, there have been delays in the prosecution of this appeal, particularly arising from the period in which the appellants were self-represented. There should be no further unnecessary delays.
12 Taking everything into account, on balance I am inclined to order a stay on the basis of the appellants' undertaking do everything necessary and reasonable to prosecute the appeal expeditiously.
13 For these reasons, I would order a stay of the orders of Master Sanderson made 17 September 2015, pending determination of the appeal herein, subject to the appellants filing and serving an undertaking of the kind I have just mentioned.
1Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353.
2Esanda Finance Corporation Ltd v Spence Financial Group Pty Ltd [2006] WASC 177.
3Perpetual Trustees Victoria Ltd v Burns [2015] WASC 234.
4Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342 [38].
5Commonwealth Bank of Australiav Bouwman [2003] WASC 205 [4].
6Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22], cited in Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205 [20].
7 Respondent's written submissions filed 21 March 2016, par 14.
8 Respondent's outline of submissions filed 21 March 2016, pars 43 - 49.
9
1