Thomas v Norfina Ltd

Case [2025] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

THOMAS v NORFINA LTD

[2025] SASC 108

Judgment of the Honourable Justice Gray  (ex tempore)

25 June 2025

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

The applicant alleges the learned Associate Justice erred in law by misapplying the issue of whether there was a triable issue in dispute; contending that there was fraud and unconscionability by the respondent, and that the loan broker was an agent for the respondent; and that there was a failure to transfer the mortgage.

Held: dismissing the application for leave to appeal:

1.The learned Associate Justice was correct to find that it was not reasonably arguable that the loan broker was the respondent’s agent at [43].

2.The evidence adduced by the application did not support a reasonably arguable case of special disability or disadvantage at [45].

3.There was no denial of procedural fairness, nor error in the findings concerning the allegations of misrepresentation or fraud by the respondent at [61]-[62].

4.There was no error in the rejection of the allegations of there being a failure to carry out checks during the loan approval process and a deliberate attempt by the respondent to ensure information was not received by the applicant at [65]-[67].

5.The learned Associate Justice correctly found that a change in name of the respondent did not require a transfer of the mortgage at [72].

6.The decision of the learned Associate Justice is not attended by sufficient doubt to warrant appellate reconsideration and would not result in substantial injustice to the applicant at [74].

Uniform Civil Rules 2020 (SA) r 186.1(2)(b), referred to.
McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146; Draoui v Le [2021] SASCA 33; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; Commonwealth v Saadat [2019] SASCFC 124; Montesa Investments Pty Ltd v Certance CT Pty Ltd [2022] SASC 43; De Pasquale v ASCF [2021] SASC 21; Serventy v Commonwealth Bank of Australia [No.2] [2016] WASCA 223; Esanda Finance Corporation Ltd v Spense Financial Group Pty Ltd [2006] WASC 177; Perpetual Trustee Co v Burniston (No.2) [2012] WASC 383; Tonto Home Loans v Tavers [2011] NSWCA 389; Toll (FGCT) Pty Limited v Alphapharm Pty Ltd [2004] HCA 52; Stubbings v Jams 2 Pty Ltd [2022] HCA 6; Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; Ramadan v CAN 098 408 176 Pty Ltd [2023] SASCA 91; Elkofairi v Permanent Trustee Co Ltd (2002) 11 BPR 20,841, considered.

THOMAS v NORFINA LTD

[2025] SASC 108

Single Judge Appeal:   Civil

  1. GRAY J (ex tempore): This is an appeal against orders of her Honour Associate Justice Bochner delivered on 12 February…

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Thomas v Norfina Ltd [2025] SASC 108
Case
[2025] SASC 108
Decision Date

CaseChat Overview and Summary

In the matter of Thomas v Norfina Ltd, the applicant, David Thomas, sought leave to appeal against a decision of the Supreme Court of South Australia which dismissed his application to set aside an order for possession of his property. The property in question, located at 8 Cascabel Way, Noarlunga Downs, was subject to a mortgage held by Norfina Ltd, the respondent. The applicant claimed that the credit contract and mortgage were obtained through fraudulent misrepresentations and undue influence by the respondent's mortgage broker, Mr Paley. The applicant further alleged that the respondent failed to comply with statutory obligations under the National Consumer Credit Protection Act 2009 (Cth).

The primary legal issue before the court was whether the applicant had established sufficient grounds to warrant appellate intervention in the Supreme Court's decision. This involved determining whether the decision was attended by doubt, whether substantial injustice would result if the decision were left unreversed, and whether the appeal raised issues of principle or general importance. The court also needed to consider whether the applicant's claims regarding fraud, undue influence, and non-compliance with statutory obligations were arguable and warranted further judicial scrutiny.

In examining the merits of the appeal, the court found that the applicant had not demonstrated that the Associate Justice's decision was attended by sufficient doubt. The court concluded that the applicant's evidence was speculative and did not establish a triable issue. The court held that the applicant's claims of signature splicing, undue influence, misrepresentations, and falsified documents were not substantiated. Furthermore, the court found no error in the Associate Justice's application of the "triable issue in dispute" test, as the applicant had not provided conclusive proof of the alleged fraud and misrepresentations. The court also noted that the applicant's failure to make loan repayments since early 2016 and his inability to repay the borrowed amount justified the Supreme Court's decision to grant leave for a warrant to be issued for the sale of the property.

Consequently, the court refused to grant leave to appeal. The court found that the decision of the Associate Justice was not attended by sufficient doubt to warrant appellate reconsideration and that allowing the appeal would not result in substantial injustice to the applicant. The court also held that the applicant had not demonstrated an issue of principle or general importance arising from the grounds of the appeal. The decision of the Supreme Court correctly found that it was not in the interests of justice for the possession order to be set aside and for the matter to proceed by way of pleadings. The court noted that there was no utility in the matter proceeding by way of pleadings given the applicant's financial situation and the likelihood of the property needing to be sold.

Orders

Orders of the court

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Background

Background to the litigation

The applicant requires leave. The primary considerations for this Court on the question of leave are whether the decision sought to be impugned is attended by sufficient doubt to warrant appellate intervention, and whether substantial injustice would be done by leaving the decision unreversed.[1] [1] See McDonald v Attorney-General for the State of South Australia [2021] SASCA 57; McDonald v Attorney-General for the State of South Australia (No 2) [2021] SASCA 146 at [11]-[12]; Draoui v Le [2021] SASCA 33 at [60]; Commonwealth v Saadat [2019] SASCFC 124 at [50]-[52]; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11]. The Court may also consider particularly where an appeal relates to a matter of practice and procedure whether the appeal raises an issue of principle or general importance. Background and issues in dispute The applicant is the registered proprietor of a property known as 8 Cascabel Way, Noarlunga Downs (the ‘property’).[2] The applicant purchased the property with his former wife in April 2012.[3] Funds to purchase the property were borrowed from Bank of Western Australia (Bank West) in 2012.[4][2] Certificate of Title Register - Volume 6049, Folio 111.[3] Respondent’s Appeal Book (RAB) at 169 [13]-[14] (Affidavit of David Thomas dated 17 October 2024 (FDN 27) (First Thomas Affidavit).[4] RAB at 169 [13] (First Thomas Affidavit). When the applicant separated from his wife in November 2012, the applicant agreed to purchase his ex-wife’s interest in the property.[5] Just prior to the time required to make the payment to his ex-wife, the applicant engaged a mortgage broker to assist him to obtain a loan to refinance the property and make the required payment.[6] On or about 21 May 2013, an application for finance in the amount of $440,000 was made in the name of the applicant with the respondent.[7] The application was lodged by the applicant’s mortgage broker Mr Paley of Loan Market. [5] RAB at 169 [15]-[16] (First Thomas Affidavit).[6] RAB at 171 [38]-[40] (First Thomas Affidavit).[7] RAB at 188; RAB at 171 [46]-[47] (First Thomas Affidavit). On 30 May 2013, having accepted the application for finance, the respondent dispatched the relevant loan and mortgage documentation to the applicant’s broker for execution.[8] Shortly thereafter, on 3 June 2013, the applicant accepted a written loan offer from the respondent which contained the terms of the provision of the loan to the applicant (‘credit contract’).[9] That same day the applicant executed a mortgage in favour of the respondent securing the applicant’s obligation under the credit contract.[10][8] RAB at 365; RAB at 791 (Affidavit of Mitchell Broad dated 29 May 2025 (Second Broad Affidavit)) (FOS Complaint).[9] RAB at 27 [7] (Affidavit of Donnacha O’Coilean (FDN 2)); RAB at 76.[10] RAB at 27 [5]-[6], 29 [11]; RAB at 36-40 (Exhibit DO-02’) (Affidavit of Donnacha O’Coilean (FDN 2). Also on 3 June 2013, the applicant executed the disbursement authority and acknowledgment.[11] By that document, the applicant acknowledged that he had received:a.The Information statement about the Credit Contract;b.Borrower information Table and Offer of Loan;c.Security;d.Final Assessment; ande.The respondent’s Credit Guide.[11] RAB at 74.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
It follows I consider there is no merit in this ground of the appeal.Conclusion For the reason identified above, I would not grant leave to appeal. The learned Associate Justice’s decision is not attended by sufficient doubt to warrant appellate reconsideration, and if allowed to stand it would not result in substantial injustice to the applicant. The applicant has not demonstrated an issue of principle or general importance arising from the grounds identified on this appeal. There was and is no utility in this matter proceeding by way of pleadings. The decision of the learned Associate Justice correctly found that it was not in the interests of justice for the possession order to be set aside and for the matter to proceed by way of pleadings. The applicant’s evidence indicates that he has failed to make loan repayments to the respondent since early 2016 and he is not in a position to repay the moneys borrowed from the respondent. It follows that the property will need to be sold and the learned Associate Justice was correct in granting leave to have a warrant issued. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The applicant requires leave to pursue this appeal. The respondent submits that the Associate Justice’s decision is not attended by sufficient doubt to warrant appellate reconsideration and if allowed to stand, would not result in substantial injustice to the applicant and as such there is no utility in the matter proceeding by way of pleadings.[33] The respondent submits that this is not a case in which leave to appeal should be granted considering the lack of merits in the grounds of appeal. [33] Harris Scarfe Ltd (In Liq) v Ernst & Young (No 2) [2005] SASC 168 at [4]-[11] (Bleby J); Commonwealth v Saadat [2019] SASCFC 124 at [50]-[52] (Kourakis CJ, with whom Peek and Nicholson JJ agreed); Draoui v Le [2021] SASCA 33 at [60] (Doyle JA, Lovell and Livesey JJA); McDonald v Attorney-General for the State of South Australia [2021] SASCA 57 at [12] (Kelly P, Lovell and Doyle JJA).Consideration in respect of the merits of the grounds of appeal I propose to address the merits of the grounds of appeal and the question of leave in respect of these grounds. I have considered the detail of the submissions advanced by both parties in respect of each of the grounds. I will address the central contentions in these reasons. Ground One Ground one alleges that the learned Associate Justice erred by misapplying the “triable issue in dispute” test. The applicant asserts that the learned Associate Justice:[34]a.Erred in requiring conclusive proof of fraud, agency and unconscionability rather than assessing whether those complaints were arguable; andb.Further erred in dismissing the evidence led by the applicant as “mere speculation”.[34] Notice of appeal (FDN 1); RAB at 5. There are five central aspects to this ground which the applicant advances. First, he states that the applicant’s evidence raises triable issues of signature splicing, and in support of this ground the applicant relies upon a report produced indicating that the signature page of the relevant loan application differed from other aspects of the document.[35] In oral submissions, the applicant indicated that it was Mr Payley that engaged in signature splicing and that was the primary allegation.[36][35] Appellant’s Appeal Book (AAB) at 12 [101]-[102] (First Thomas Affidavit); see also, Exhibit DT-05. [36] Appeal Transcript (AT) at 42, line 27. Secondly, the applicant relies upon assertions that he advances as to Mr Payley’s undue influence in relation to him and misrepresentations that the applicant claims Mr Payley made about the documents that the applicant executed. Thirdly, the applicant claims that Mr Payley attached a falsified rental appraisal to the unauthorised loan application. Fourthly, the applicant states that he did not accept the findings of the Financial Ombudsman Service. Fifthly, the applicant relies upon an email communication between Mr Payley and an employee of the respondent which states “I pity da fool”.[37][37] RAB at 326 (Second Thomas Affidavit). The error that the applicant seeks to identify is that the applicant claims that the Associate Justice did not consider these matters in dismissing the applicant’s claim as “speculative” and the Associate Justice is said by the applicant to have ignored the above issues.