Shannon v Permanent Custodians Limited [No 2] - [2021] WASCA 119

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SHANNON -v- PERMANENT CUSTODIANS LIMITED [No 2] [2021] WASCA 119
CORAM:   QUINLAN CJ
VAUGHAN JA
TOTTLE J

HEARD:   2 JULY 2021
DELIVERED          :   2 JULY 2021
PUBLISHED           :   7 JULY 2021
FILE NO/S:   CACV 98 of 2018
BETWEEN:   ANITA LOUISE SHANNON
CHRISTOPHER CHARLES SHANNON
Appellants

AND

PERMANENT CUSTODIANS LIMITED
First Respondent

GEL CUSTODIANS PTY LTD
Second Respondent

AUSTRALIAN MORTGAGE SECURITIES PTY LTD
Third Respondent

AFIG WHOLESALE PTY LTD
Fourth Respondent

REGISTRAR OF TITLES
Fifth Respondent

PEPPER GROUP LIMITED
Sixth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: PERMANENT CUSTODIANS LTD -v- SHANNON [No 2] [2018] WASC 295
File Number            :   CIV 1174 of 2013

Catchwords:

Appeal – Loan agreement and mortgage – Loan agreement and mortgage declared to be unjust under s 76 of the National Credit Code – Whether consequential orders should be determined on appeal or by remitter

Legislation:

National Credit Code, s 76, s 77
Rules of the Supreme Court 1971 (WA)

Result:

Any consequential orders under s 76 and s 77 of the National Credit Code be determined by the Court of Appeal

Category: B

Representation:

Counsel:

Appellants	:	In person
First Respondent	:	G D Cobby SC
Second Respondent	:	G D Cobby SC
Third Respondent	:	G D Cobby SC
Fourth Respondent	:	G D Cobby SC
Fifth Respondent	:	No appearance
Sixth Respondent	:	G D Cobby SC

Solicitors:

Appellants	:	In person
First Respondent	:	Norton Rose Fulbright Australia
Second Respondent	:	Norton Rose Fulbright Australia
Third Respondent	:	Norton Rose Fulbright Australia
Fourth Respondent	:	Norton Rose Fulbright Australia
Fifth Respondent	:	No appearance
Sixth Respondent	:	Norton Rose Fulbright Australia

Case referred to in decision:

Shannon v Permanent Custodians Limited [2020] WASCA 198

QUINLAN CJ:

(This judgment was delivered extemporaneously on 2 July 2021 and has been edited from the transcript.)

On 24 November 2020 this court allowed the appellants' appeal from the judgment of Le Miere J, dated 21 September 2018.[1]
[1] Shannon v Permanent Custodians Limited [2020] WASCA 198 (Shannon v Permanent Custodians Limited).
On that date we set aside the orders made by his Honour and declared that the Loan Agreement made between the appellants and the second respondent and the Mortgage granted by the appellants to the second respondent were each unjust within the meaning and for the purpose of s 76 of the National Credit Code (Code).
Having found that the Loan Agreement and the Mortgage were unjust within the meaning of s 76 of the Code, it is necessary for the court to determine whether those transactions should be reopened and what, if any, orders the court should make under s 77 of the Code.
Following the delivery of the orders, the parties were referred to mediation, with a view to explore whether the parties might be able to reach a…

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: [2021] WASCA 119
Decision Date

CaseChat Overview and Summary

In Shannon v Permanent Custodians Limited [No 2], the appellants, Anita Louise Shannon and Christopher Charles Shannon, appealed against the judgment of Le Miere J, who had declared the loan agreement and mortgage between the parties to be unjust under s 76 of the National Credit Code. The respondents were Permanent Custodians Limited, Gel Custodians Pty Ltd, Australian Mortgage Securities Pty Ltd, AFIG Wholesale Pty Ltd, the Registrar of Titles, and Pepper Group Limited. The central issue before the Court of Appeal was whether the question of relief, if any, to be granted under s 77 of the Code should be remitted to the General Division of the Supreme Court or determined by the Court of Appeal itself.

The Court of Appeal, consisting of Quinlan CJ, Vaughan JA, and Tottle J, was seized of the matter and had already made several findings relevant to the relief to be granted. The Court considered that it was in the interests of justice to resolve the proceedings as soon as practicable and that the appropriate relief should take into account the various considerations that led to the conclusion that the loan agreement and the mortgage were unjust. The Court was satisfied that it could make the necessary findings based on the evidence adduced at trial, supplemented if necessary by additional evidence. The Court was also of the view that this approach better met the goals and objects of O 1 r 4A and O 1 r 4B of the Rules of the Supreme Court 1971 (WA) by minimising the application of the parties' private and the court's public resources in finalising the proceedings.

In light of the above, the Court determined that it should decide the outstanding issues of relief, if any, rather than remitting the matter to the General Division. The Court allowed the parties the opportunity to seek leave to adduce additional evidence on the appeal, particularly to bring the facts up to date from the date of trial. However, the Court emphasised that the issue of relief under s 77 of the Code could not be used by either party to relitigate old issues or to litigate new issues not pursued at trial.

The Court of Appeal proposed orders for the further conduct of the appeal, which would allow the parties to seek leave to adduce additional evidence and ensure that the rights of the parties would be determined based on the evidence at trial and their conduct of the trial. The Court of Appeal emphasised that the issue of relief under s 77 of the Code could not be used for either party to relitigate old issues or to litigate new issues not pursued at trial.

Orders