Tomcsanyi v National Australia Bank Ltd [No 2]

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 Murphy
27 NOVEMBER 2019

The appeal was brought by Tomcsanyi, the respondent in the court below, against the decision of the primary judge in the Federal Circuit Court of Australia. The original proceeding was an application for an order to set aside a default judgment obtained by the appellant, National Australia Bank Limited. The nature of the dispute was whether the default judgment should be set aside and, if so, on what terms. The appeal was heard in the Full Court of the Federal Circuit and Family Court of Australia, which comprised of Chief Justice Dowsett, Justice Ryan, and Justice Edelman.

The central legal issue before the court was whether the respondent had demonstrated a reasonable prospect of success on appeal. This was assessed in light of the established criteria for setting aside a default judgment, which required the court to consider the merits of the appeal and whether there were any grounds that had a reasonable prospect of succeeding. The court was also required to examine the respondent's explanation for the delay in filing the notice of appeal and whether the delay was satisfactorily explained. The court needed to determine whether the delay was such that it would be unjust to allow the appeal to proceed.

The Full Court held that the appeal did not have a reasonable prospect of succeeding. The respondent's arguments were considered to be without merit, and the court found that there were no valid grounds for setting aside the default judgment. The respondent's delay in filing the notice of appeal was also found to be unjust and inexcusable. The Full Court was of the view that the appeal was an abuse of process and dismissed it. The court's decision was based on the principle that an appeal should only be allowed if it has a reasonable prospect of success and that the delay in filing the notice of appeal was not satisfactorily explained. The Full Court held that the appeal did not meet these criteria and dismissed it. The orders of the primary judge were therefore affirmed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established