Stone v Permanent Custodians Ltd - [2016] WASCA 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STONE -v- PERMANENT CUSTODIANS LTD [2016] WASCA 200

CORAM: NEWNES JA
MURPHY JA

HEARD: 11 NOVEMBER 2016

DELIVERED : 25 NOVEMBER 2016

FILE NO/S: CACV 47 of 2016

BETWEEN: PETAH JOHN STONE
VALERIE KAYE STONE
Appellants
AND
PERMANENT CUSTODIANS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2544 of 2015

Catchwords:

Practice and procedure - Whether appeal has reasonable prospect of succeeding - Appeal against summary judgment for defendant/respondent - Claim by plaintiffs/appellants on alleged cause of action on mortgage arising before bankruptcy - Appellants discharged from bankruptcy - Whether proceedings commenced by appellants after discharge incompetent

Legislation:

Bankruptcy Act 1966 (Cth), s 7(2), s 58(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants: In person
Respondent: Mr M Holler

Solicitors:

Appellants: In person
Respondent: Norton Rose Fulbright Australia

Case(s) referred to in judgment(s):

Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178
Samootin v Shea [2010] NSWCA 371

JUDGMENT OF THE COURT: This is an appeal from a decision of Master Sanderson who ordered that summary judgment be entered against the appellants on their claim against the respondent. The respondent has applied for an order dismissing the appeal, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.

Background

In 2004, the appellants, who are farmers, entered into a loan agreement with Landmark Operations Ltd, Landmark (Queensland) Ltd and Rabobank Australia Ltd (the Original Lenders) pursuant to which the Original Lenders advanced to the appellants a seasonal or overdraft facility of $1,400,000 and a term loan of $2,211,000. The funds were secured by a registered mortgage over the first‑named appellant's land. The loan agreement was subsequently varied from time to time and, on or about 30 November 2005, the Original Lenders assigned their interest in the loan agreement and mortgage to the respondent.
The original loan agreement was superseded by a loan agreement, dated 27 March 2006, between the appellants and the respondent pursuant to which the respondent advanced to the appellants the sum of $2,000,000 by way of a seasonal or overdraft facility and the sum of $2,211,000 by way of a term loan. Those funds were secured by the same mortgage. Again, the loan agreement was subsequently varied from time to time.
The appellants defaulted in repayment of the seasonal facility and the term loan and the respondent demanded repayment of the sum then due and owing plus interest.
The appellants did not pay the sum demanded and the respondent commenced proceedings (CIV 2021/2008) claiming vacant possession of the mortgaged land and the amount outstanding under the loan agreement and the mortgage. The appellants filed a defence and counterclaim. Among other things, the…

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.

Continue reading Stone v Permanent Custodians Ltd

Details

AGLC: Stone v Permanent Custodians Ltd [2016] WASCA 200
Case: [2016] WASCA 200
Decision Date: 25 NOVEMBER 2016

CaseChat Overview and Summary

This appeal concerns the competency of a proceeding initiated by the appellants after their discharge from bankruptcy. The appellants, who are farmers, had previously entered into a loan agreement with the Original Lenders, which was assigned to the respondent. The appellants defaulted on their repayment obligations, leading the respondent to commence proceedings seeking vacant possession of the mortgaged land and the outstanding loan amount. The appellants filed a defence and counterclaim, which were subsequently settled through a Deed of Settlement and Release. The appellants then initiated a new proceeding against the respondent, claiming damages for alleged breaches of contract and statutory obligations. The respondent applied for summary judgment, which was granted by the Master, leading to this appeal.

The central legal issue in this case is whether the appellants' proceeding against the respondent is incompetent due to the appellants' prior bankruptcy and discharge. Specifically, the court had to determine whether the terms of the Deed of Settlement and Release barred the appellants from initiating further proceedings against the respondent. Additionally, the court had to consider whether the appellants' claim had a reasonable prospect of succeeding on the merits.

The court found that the terms of the Deed of Settlement and Release were broad and unambiguous, effectively barring the appellants from pursuing any future claims against the respondent. The court also held that the appellants' proceeding was incompetent because it was commenced after their discharge from bankruptcy. The court further determined that none of the grounds of appeal had a reasonable prospect of succeeding, as the appellants' claims were effectively foreclosed by the terms of the settlement deed. Therefore, the court dismissed the appeal.

The court's decision resulted in the dismissal of the appellants' appeal and the affirmation of the summary judgment entered against them. The court held that the appellants were barred from pursuing further claims against the respondent due to the terms of the Deed of Settlement and Release, and that their proceeding was incompetent as it was commenced post-bankruptcy discharge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal from a decision of Master Sanderson who ordered that summary judgment be entered against the appellants on their claim against the respondent. The respondent has applied for an order dismissing the appeal, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. In 2004, the appellants, who are farmers, entered into a loan agreement with Landmark Operations Ltd, Landmark (Queensland) Ltd and Rabobank Australia Ltd (the Original Lenders) pursuant to which the Original Lenders advanced to the appellants a seasonal or overdraft facility of $1,400,000 and a term loan of $2,211,000. The funds were secured by a registered mortgage over the first‑named appellant's land. The loan agreement was subsequently varied from time to time and, on or about 30 November 2005, the Original Lenders assigned their interest in the loan agreement and mortgage to the respondent. The original loan agreement was superseded by a loan agreement, dated 27 March 2006, between the appellants and the respondent pursuant to which the respondent advanced to the appellants the sum of $2,000,000 by way of a seasonal or overdraft facility and the sum of $2,211,000 by way of a term loan. Those funds were secured by the same mortgage. Again, the loan agreement was subsequently varied from time to time. The appellants defaulted in repayment of the seasonal facility and the term loan and the respondent demanded repayment of the sum then due and owing plus interest. The appellants did not pay the sum demanded and the respondent commenced proceedings (CIV 2021/2008) claiming vacant possession of the mortgaged land and the amount outstanding under the loan agreement and the mortgage. The appellants filed a defence and counterclaim. Among other things, the appellants alleged that (a) the assignment by the Original Lenders was ineffectual as notice of the assignment was not given to the appellants, and (b) in breach of the loan agreement the respondent had failed to provide funds to which the appellants were entitled and had wrongfully refused to permit the appellants to give a crop lien to another lender, thereby reducing the land the appellants were able to crop. The appellants claimed damages for the respondent's alleged breaches and for alleged breaches of s 52 of the Trade Practices Act 1974 (Cth). The proceedings in CIV 2021/2008 were subsequently settled and the terms of settlement recorded in a Deed of Settlement and Release dated 11 February 2011 (the deed). By the deed, relevantly, the appellants released the respondent from 'any action, demand, notice, claim, damages or proceeding which they have or may have in the future relating to, or arising out of, or in connection with the Loan Agreement, the Mortgage, the Dispute or the Proceedings.' The 'Dispute' is defined in the deed in the widest terms to cover any claim of any nature by the appellants against the respondent in connection with the loan agreement, the mortgage, or the proceedings. Clause 13 of the deed provides that the deed may be pleaded as a bar to any such claim.

Ratio Decidendi

Legal Principle Established

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