Von Risefer & Anor v Permanent Trustee Co Ltd

[2000] QCA 353

[2000] QCA 353

COURT OF APPEAL

PINCUS JA
MOYNIHAN J
ATKINSON J

Appeal No 5162 of 2000

EUSTACE VON RISEFER and
ELIZABETH VON RISEFER  Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED              Respondent

BRISBANE

..DATE 30/08/2000

JUDGMENT

PINCUS JA:  On 9 June 2000 judgment was delivered by his Honour Justice Byrne in an action brought by the respondent to this application for a stay.  The action related to a mortgage which was granted in respect of real property to secure repayment of $360,000 and interest.

His Honour found that defaults had been made prior to April 1999 but that, in particular, there had been no payments made since April 1999.  The applicants, represented by Mrs von Risefer, inform us today that the latter is still the situation; it is common ground that nothing has been paid under the mortgage for a considerable time.

After a hearing which was rather lengthy, Byrne J dealt with what he regarded as the principal issues at some length.  In his Honour's reasons which are quite detailed, he found that the substantial defence was that a "related agreement" did not include a loan offer which was made and discussed in paragraph 5 of the Judge's reasons.  Now having discussed that at some length, his Honour came to a conclusion adverse to the applicants; that is, the Judge was satisfied that the loan offer was part of the contract.  But it appears clear from the Judge's reasons, in particular at paragraph 21, that quite a number of other accusations were relied on by the applicants.

His Honour said:

"The defendants were given to strident recriminations of fraud, forgery, criminal acts, false accounting, and attempts to defraud the Revenue:  even to alleging a conspiracy involving illegal Chinese immigrants.  These are all baseless characterizations, as the defendants - Mrs von Risefer at any rate - must have appreciated."

His Honour was not impressed, it appears, with the credit of the witnesses called in support of the applicants' case.

In the result, his Honour decided in favour of the mortgagee and that decision and the judgment consequent on it brought about an application for a stay which was heard by me on
16 June 2000.  In that application, the applicants were represented by Mrs von Risefer as they are today.  And the reasons which I gave, I set out particularly at pages 4 and 5, various of the assertions which were made in support of the application.

In particular, it is set out there, at page 5 line 30, that it was alleged against the respondent, the mortgagee, that it had been involved in quite a great deal of "illegal and reprehensible activity".  Now, the application for a stay failed for the reasons then given.  Mrs von Risefer, acting on behalf of herself and Mr von Risefer, has renewed it and it has been heard today.

The applicants have alleged through Mrs von Risefer that there are matters which were not dealt with previously and which are now raised.  As far as I can tell, these consist principally and perhaps solely in allegations which were made on the second page of an affidavit made by Mrs von Risefer and sworn on 29 August 2000.  These allegations relate to breaches of the Foreign Acquisitions and Takeovers legislation and breaches of the Banking Act.  A notice of appeal was filed in this matter and I have examined it.  It was filed on 14 June.  It is quite a lengthy document, but it does not make either of these allegations.  It is not absolutely clear whether the allegations just mentioned were made before the primary Judge, and I simply do not recall whether they were made before me, but they are certainly not in the notice of appeal.

The principal grounds, as it seems to me, upon which the applicants through Mrs von Risefer say that the matter should be reconsidered are that it is in the public interest that the reprehensible activities of the mortgagee be exposed.  It is said that the mortgagee has done all kinds of things which need to be brought to light.  However the hard facts of the matter seem to be much the same as they were in June, that is, that the money was in fact lent, that the terms of the mortgage have not been complied with and that prima facie the mortgagee is entitled to have the security enforced.

Mrs von Risefer obviously feels very badly about this, and she has made an emotional appeal to us today.  She has in fact invited us to take the view that she was treated unjustly by this Court and in particular by Byrne J.  It appears to me, however, at least from the length of the hearing, that the case which she then put forward was looked at quite carefully by Byrne J over a considerable period of time.

The view which I take of the matter is that nothing has been placed before the Court to induce it to depart from the decision which was made in June, and that that decision was correct, that the matter should not be stayed pending the appeal.  I would therefore refuse the applications made for a stay and for relief relating to a stay.

MOYNIHAN J:  I agree.

ATKINSON J:  I agree.

PINCUS JA:  The application which was made for a stay by the appellants, that application being made by a document dated 25 August 2000, is refused.

...

PINCUS JA:  The application for a stay will be refused with costs to be assessed.  The other application, made by
Mr Drysdale, will be adjourned until Wednesday next at 9.30 a.m. in this Court.

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