Tomcsanyi v National Australia Bank Ltd [No 2]
[2019] WASCA 192
•27 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOMCSANYI -v- NATIONAL AUSTRALIA BANK LTD [No 2] [2019] WASCA 192
CORAM: MURPHY JA
MITCHELL JA
HEARD: 21 NOVEMBER 2019
DELIVERED : 21 NOVEMBER 2019
PUBLISHED : 27 NOVEMBER 2019
FILE NO/S: CACV 110 of 2019
BETWEEN: LEWIS MICHAEL TOMCSANYI
First Appellant
MICHELLE ELIZABETH TOMCSANYI
Second Appellant
AND
NATIONAL AUSTRALIA BANK LTD
Respondent
Catchwords:
Practice and procedure - Show cause - Whether any grounds of appeal had any reasonable prospect of succeeding - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 43(2)(g)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Mr W C J Zappia |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Allens |
Case(s) referred to in decision(s):
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Tomcsanyi v National Australia Bank Ltd [2015] WASC 448
Tomcsanyi v National Australia Bank Ltd [2017] HCASL 289
Tomcsanyi v National Australia Bank Ltd [2017] WASCA 140
Tomcsanyi v National Australia Bank Ltd [2019] WASCA 154
Tomcsanyi v National Australia Bank Ltd [No 2] [2019] WASC 343
REASONS OF THE COURT:
Introduction
This matter came to a hearing on 21 November 2019 by way of an amended registrar's notice to attend to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) and/or r 43(2)(g)(ii) of the Supreme Court (Court of Appeal Rules) 2005 (WA). On that day we dismissed the appeal and said we would provide written reasons. These are our reasons.
Background
The appeal is against a decision of Kenneth Martin J in Tomcsanyi v National Australia Bank Ltd [No 2] [2019] WASC 343 (primary decision).
The background to the appeal is outlined in a recent interlocutory decision of this court published 3 October 2019: Tomcsanyi v National Australia Bank Ltd [2019] WASCA 154 (stay decision). On that occasion we dismissed an application for a stay of the primary orders on the basis that, on the materials then relied on by the appellant, the appeal had no reasonable prospects of success.[1] We will use terms defined in the stay decision in their defined sense in these reasons.
[1] Stay decision [51] - [56].
Since then, on 7 November 2019, the appellants filed their appellants' case. It contains the following two grounds of appeal:
Ground of Appeal 1.
(1)[The primary judge] wilfully and knowingly ignored statute law and perverted the course of justice which aided and abetted [NAB] to defraud us.
(2)No principle [sic] sum in registered mortgage.
Ground of Appeal 2.
We have evidence [NAB] has assigned the mortgages which brings into question, is NAB the true mortgagee.
Disposition
The grounds of appeal and submissions in support contained highly generalised, and in some respects scandalous, assertions which failed to identify, in any sensible or meaningful way, any arguable error in the primary decision. Also the grounds and submissions largely attempted to cover matters which were found to be without any arguable merit in the stay decision, or otherwise sought directly or indirectly to raise issues which had been litigated unsuccessfully by the appellants (up to the High Court) in earlier proceedings between the parties.[2]
[2] See Tomcsanyi v National Australia Bank Ltd[2015] WASC 448; Tomcsanyi v National Australia Bank Ltd [2017] WASCA 140; Tomcsanyi v National Australia Bank Ltd [2017] HCASL 289.
At the hearing on 21 November 2019, the appellants did not address the grounds of appeal in their oral submissions. Rather, they contended, in effect, that they had received an affidavit sworn by a solicitor for the respondent which indicated that the mortgage the subject of the dispute between the parties was a forgery, and that accordingly the primary decision was procured by fraud. Upon inquiry by the court, the appellants said that the affidavit was an affidavit of Ms Salvo in the primary proceedings, dated 29 August 2019, which they received on 3 September 2019.[3]
[3] Appeal ts 10 - 13.
It is evident that the affidavit referred to was in the materials before the primary court and that the judge referred to it in the primary decision.[4] The appellants did not suggest that they had contested the primary decision on the basis the mortgage was a forgery. Also, the appellants' submissions at the hearing on 21 November 2019 to the effect that the mortgage was a forgery were no more than mere assertion, for which there was no evidence proffered by the appellants.
[4] Primary decision [7].
In any event, NAB's entitlement to possession of the Denmark property was established by the December 2015 Possession Orders and the July 2017 Possession Orders. Those Possession Orders are not the subject of this appeal. The orders which are the subject of this appeal are merely orders for the enforcement of the entitlement established by the Possession Orders. NAB's established entitlement to possession of the Denmark property could only be affected by fraud which was proven to vitiate the Possession Orders. An appeal against orders providing for the enforcement of the Possession Orders is not the proper forum to allege that the Possession Orders were procured by fraud.[5]
[5] See generally Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [160] ‑ [163].
Nothing was said in the appellants' written submissions or oral submissions to indicate that any ground of appeal had a reasonable prospect of succeeding. Accordingly we concluded that the appeal should be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy27 NOVEMBER 2019
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