Wall v Swift
[2019] WASC 132
•23 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PALERMO -v- COMMONWEALTH BANK OF AUSTRALIA [2019] WASCA 132
CORAM: MURPHY JA
MITCHELL JA
HEARD: 23 AUGUST 2019
DELIVERED : 23 AUGUST 2019
PUBLISHED : 26 AUGUST 2019
FILE NO/S: CACV 32 of 2019
BETWEEN: DIANA TINA PALERMO
Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ARCHER J
Citation: COMMONWEALTH BANK OF AUSTRALIA -v- PALERMO [2019] WASC 28
File Number : CIV 1986 of 2017
Catchwords:
Appeal - Practice and procedure - Where appeal dismissed pursuant to springing order as a consequence of a failure to file an appellant's case - Where appellant applies for an extension of time in which to file and serve her appellant's case - Whether the appeal and proposed grounds of appeal have any reasonable prospect of success - Whether it would be futile to grant an extension of time
Legislation:
Nil
Result:
Application for an extension of time to file and serve an appellant's case dismissed
Dismissal of appeal pursuant to springing order stands
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms J K Taylor |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Dentons Australia |
Case(s) referred to in decision(s):
Hunter v City of Joondalup [2018] WASCA 166
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
REASONS OF THE COURT:
Introduction
At the conclusion of the hearing of the appellant's (Ms Palermo's) application for an extension of time in which to file her appellant's case, we ordered that the application be dismissed for reasons to be published later. These are our reasons for making that order.
The respondent (the Bank) brought proceedings against Ms Palermo in the general division of this court. The Bank claimed it was owed money pursuant to loan agreements with Ms Palermo. The Bank also claimed possession of Ms Palermo's land pursuant to a mortgage securing those loans. On 13 February 2019, the trial judge entered judgment for the Bank. Ms Palermo was ordered to give the Bank possession of the claimed property and pay the Bank $485,732.06 plus post-judgment interest and costs.
On 5 March 2019, Ms Palermo appealed against the trial judge's decision. Ms Palermo was granted a number of extensions of time in which to file an appellant's case, but did not file an appellant's case that complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules). On 19 June 2019, Mitchell JA granted Ms Palermo a further extension of time for filing an appellant's case to 4 pm on 10 July 2019. He also made a springing order to the effect that the appeal would be dismissed unless Ms Palermo filed and served an appellant's case that complied with the Rules by that time.
No appellant's case was filed by 4 pm on 10 July 2019, with the consequence that the springing order sprung and the appeal was dismissed at that time.
On 11 July 2019, Ms Palermo lodged with the Court of Appeal Office a document purporting to be an appellant's case, which was not accepted for filing. A certificate of conclusion of civil appeal was issued by the Acting Court of Appeal Registrar later that day. Ms Palermo has deposed that she was unable to meet the springing order deadline due to a computer hard drive failure.
On 26 July 2019, Ms Palermo applied for a further extension of time in which to file an appellant's case, with which we are now dealing.
The general principles governing an application for an extension of time to comply with a springing order were summarised by the court in Hunter v City of Joondalup,[1] and need not be repeated here.
[1] Hunter v City of Joondalup [2018] WASCA 166 [21] - [23].
In the present case, Ms Palermo sought to file her document on the day after the springing order had sprung, and has explained that the delay was due to difficulties with her computer. There is no evidence of any particular prejudice to the Bank arising from the delay. In these circumstances it would be appropriate to grant the extension, if we were satisfied that the appellant's case which Ms Palermo seeks to file discloses a reasonably arguable case for interfering with the trial judge's orders. However, unless the proposed appellant's case discloses a reasonably arguable case for interfering with the trial judge's orders, it would be futile to grant the extension sought.
We turn now to consider whether the proposed appellant's case discloses a reasonably arguable case.
Facts found by the trial judge
The trial judge found that funds were advanced to Ms Palermo under three loan agreements, and secured by a mortgage over Ms Palermo's property.
The first loan agreement was referred to as the 'Land Loan'. The trial judge's central findings were that:
(1)On or around 16 August 2012, Ms Palermo signed a Land Sale Contract for the purchase of the property for $184,000, subject to finance from Kiss Finance (Ms Palermo's mortgage broker).[2]
(2)On 29 November 2012, Ms Palermo signed an agreement for the Land Loan in the amount of $157,997.[3]
(3)On 14 December 2012, a mortgage of the property was signed by Ms Palermo and witnessed by Ms Julie Carroll,[4] an owner of a general store in Onslow. The mortgage secured all money Ms Palermo owed the Bank under or in relation to a 'Bank Document' (defined in a way that included the subsequent loan agreements).[5]
(4)At settlement of the property, the vendor was paid $155,509 by bank cheque. The property was transferred to Ms Palermo and the mortgage was registered on 20 December 2012.[6]
[2] Commonwealth Bank of Australia v Palermo [2019] WASC 28 (Primary decision) [22].
[3] Primary decision [29].
[4] Primary decision [30].
[5] Primary decision [108] - [110].
[6] Primary decision [31].
The second loan agreement was referred to as the 'Construction Loan'. The trial judge's central findings were that:
(1)On 26 February 2013, Ms Palermo signed an application for finance seeking funds for the purpose of constructing a new dwelling ($201,102.23) and refinancing the Land Loan ($157,897.77).[7]
(2)Also on 26 February 2013, Ms Palermo signed an agreement for the Construction Loan in the amount of $363,958.86.[8]
(3)Loan funds were disbursed to Ms Palermo's Bankwest loan account on 1 March 2013. Between April and September 2013, the Bank made progress payments in respect of invoices issued by the builder of Ms Palermo's house.[9]
[7] Primary decision [36].
[8] Primary decision [36].
[9] Primary decision [38] - [40].
The third loan agreement was referred to as the 'Final Loan'. The trial judge's central findings were that:
(1)On 24 October 2013, Ms Palermo signed an application for finance seeking funds to refinance the Construction Loan ($363,958.86) and for home improvements ($23,041.14).[10]
(2)Also on 24 October 2013, Ms Palermo signed an agreement for the Final Loan in the amount of $408,495.82.[11]
(3)The loan funds were disbursed into Ms Palermo's Bankwest loan account on 31 October 2013.[12]
[10] Primary decision [55] - [56].
[11] Primary decision [54], [56].
[12] Primary decision [58] - [59].
The trial judge found that Ms Palermo initially made regular repayments of the Final Loan, but her repayments became irregular in late 2014 and the loan fell into arrears.[13] The Bank issued a notice of default on 29 August 2016. Ms Palermo failed to rectify the default and, by letter dated 19 May 2017, the Bank demanded that Ms Palermo pay the debt or face legal action. Ms Palermo did not pay.[14]
[13] Primary decision [60].
[14] Primary decision [61].
Issues at trial and their resolution
The trial judge noted that Ms Palermo refused to file a proper defence, but submitted that she did not enter into a loan agreement with the Bank. The trial judge noted the issues sought to be raised by Ms Palermo at trial in the following terms:[15]
During the trial, Ms Palermo admitted, from the bar table, that she was the registered proprietor of the Property but denied entering into a contract to buy the land. Ms Palermo also denied, from the bar table, that she owed the Bank, or any bank, money. She denied receiving a notice of default or a letter from the Bank advising that it intended to take enforcement proceedings if the money owing was not repaid.
Ms Palermo also submitted that a number of documents were invalid because they had not been witnessed or were forgeries.
In addition, Ms Palermo raised issues relating to procedure, jurisdiction and treason.
[15] Primary decision [2] - [4].
It may be noted that, despite contending that documents purportedly signed or sent by her were forged, Ms Palermo did not give evidence at trial. There was no direct evidence from Ms Palermo that she did not sign the relevant documents or receive the benefit of the loaned funds.
The trial judge identified the following issues as arising for her determination. The manner in which the trial judge resolved those issues later in her Honour's reasons is indicated in bold text:[16]
[16] Primary decision [5].
1.Did Ms Palermo sign documents that appear to bear her signature? Yes. Did she send or receive emails that appear to have been sent or received by her? Yes.
2.Is the mortgage over the Property dated 14 December 2012 (Mortgage) a forgery? No.
3.Did Ms Palermo enter into any agreements with the Bank? Yes. Is Bankwest an unconnected entity to the Bank? No.
4.Did the Bank and Ms Palermo enter into the Final Loan Agreement? Yes.
a.Did Ms Palermo sign the Final Loan Agreement? Yes.
b.Was there a concluded agreement? Yes.
5.Did the Bank advance money to Ms Palermo pursuant to the Final Loan Agreement? Yes.
6.Did Ms Palermo default in her obligation to repay the loan amount? Yes.
7.If the answer to question 6 is yes, is the Bank entitled to enforce its rights under the Mortgage? Yes.
8.Are any of the other matters raised by Ms Palermo relevant to the determination of the proceedings? No.
Proposed grounds of appeal
The proposed appellant's case is in a form that does not comply with the Rules. The proposed grounds of appeal are that:
1. An Error made by [the trial judge] on Trial Judgement Orders dated 13th February 2019, paragraph 8 is incorrect. This contradicts with paragraph 74 in regards to Julie Carroll witness a Mortgage Attestation. TBN1
2. The [Bank] has not followed due process to initiate or give any entitlement to enforce its rights to proceed in any court action or take possession of any property. A Default Notice pursuant to s88 of the National Credit Code 79 and 106 of the Transfer of Land Act was not issued.
3. [Ms Palermo] was denied her Rights to a Fair Trial by refusal of leave for all but one witness.
4. Witness gave false evidence in regards to witnessing and validation of Identification documentation.
5. Act of Mortgage Fraud not addressed.
Proposed ground 1
Proposed ground 1 concerns the trial judge's finding that Ms Palermo signed the mortgage and her signature was witnessed by Ms Carroll.
In summarising the evidence, the trial judge observed:[17]
Julie Carroll gave evidence that she witnessed what appears to be Ms Palermo's signature on the Mortgage.
[17] Primary decision [8].
Later, in the course of determining that Ms Palermo signed the mortgage, which was not a forgery, the trial judge made the following observations about Ms Carroll's evidence:[18]
The Mortgage appears to bear Ms Palermo's signature.
The witness to Ms Palermo's signature is 'Julie Carroll'. Ms Carroll and her husband own the 'Postie's General Store' in Onslow, which includes the post office, newsagency and Lotterywest agency. In that capacity, Mr and Ms Carroll witness signatures from time to time. Ms Carroll said that 'if we know the person, we get that person to sign in front of us and then we sign it as well. If we don't know the person, we ask for ID and they sign in front of us and then we sign'.
Ms Carroll said she had known Ms Palermo for a long time and considered her a friend. Ms Carroll said she could not remember seeing Ms Palermo sign the document, it being so long ago.
Ms Carroll said that the witness signature on the Mortgage 'looks very much like mine' and identified her handwriting of her name (in uppercase), address and occupation. On the Mortgage, after the uppercase printing of Ms Carroll's name, there appears in brackets 'Julie Elizabeth Carroll'. Ms Carroll said she did not write the words in the brackets.
[18] Primary decision [72] - [75].
In her evidence, Ms Carroll was shown the mortgage and asked if she recognised any signatures on page 3. She said '[t]hat's my signature as witness', and said that the printed name, address and occupation under the signature was her writing. However, she said that she could not recall seeing Ms Palermo sign the document. She later said that the signature of 'witness' on the mortgage 'looks very much like mine'.[19]
[19] Trial ts 230 - 231.
The trial judge's observations of Ms Carroll's evidence reflect what is recorded in the transcript. Taken as a whole, Ms Carroll's evidence supports the conclusion that she witnessed what appears to be Ms Palermo's signature on the mortgage. The observations made by the trial judge in the course of considering whether the mortgage was forged also recognise Ms Carroll's evidence that she had no independent recollection of having done so. Insofar as Ms Palermo contends otherwise, she proceeds on a misconstruction of the trial judge's reasons. There is no arguable error raised by the proposed ground.
Proposed ground 2
Proposed ground 2 in effect asserts that the Bank failed to issue a notice of default. That is inconsistent with the factual findings made by the trial judge.
The trial judge's findings were based, among other things, on her acceptance of the evidence of Ms Jessie Klaric, a solicitor employed by the law firm which acts for the Bank. Ms Klaric gave evidence that she arranged for a default notice to be sent to Ms Palermo.[20] The trial judge referred to other evidence which corroborated Ms Klaric's evidence. In that regard, the trial judge said:[21]
The Bank sent a default notice to Ms Palermo pursuant to s 88 of the National Credit Code[22] and s 106 of the Transfer of Land Act. Ms Klaric, a solicitor at Dentons, gave evidence that she settled the default notice and arranged for it to be sent to Ms Palermo at the address provided by the Bank (the address of the Property) and at the address shown for Ms Palermo on the Certificate of Title (PO Box 98, Onslow). Dentons' records indicate that the letter was sent by registered post to both addresses. Dentons received a card from Australia Post confirming that the letter sent to the post office box address was collected.[23] Ms Klaric said that the letter sent to the Property address was returned, having not been collected.[24]
Ms Palermo did not give evidence. I infer that she received the letter sent by registered mail to her postal address.
[20] Primary decision [10] - [11].
[21] Primary decision [112] - [113].
[22] Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).
[23] Exhibits 2.163, 4.171, 4.172 and 4.177.
[24] Trial ts 305 ‑ 306.
When considering a challenge to a finding of primary fact such as this, it is important to bear in mind the principles governing an appeal on a question of fact summarised in Robinson Helicopter Company Incorporated v McDermott:[25]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. (footnotes omitted)
[25] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43].
This proposed ground and the oral and written submissions provide no arguable basis in the evidence adduced at trial for impugning the trial judge's factual finding that the default notice was sent. There is no arguable error raised by proposed ground 2.
Proposed ground 3
Proposed ground 3 contends that Ms Palermo was denied a fair trial 'by refusal of leave for all but one witness'. The substantive submission advanced in support of that ground contends that:[26]
On the 27th September 2018 application to seek leave to Subpoena Witnesses to give oral evidence leave for all but one [witness] was rejected'.
[26] Appellant's Submissions, par 10.
At a directions hearing on 30 August 2018, the trial judge asked the parties whether they had sought subpoenas for their witnesses yet.[27] Ms Palermo identified a number of witnesses on a list that she wished to call, including legal representatives of the Bank who she wanted to call for the 'tampering of the documents' they had given Ms Palermo.[28] At this point, the trial judge indicated that she was not going to allow anyone to issue a subpoena for a witness without leave.[29]
[27] Trial ts 59.
[28] Trial ts 62 - 63.
[29] Trial ts 64.
At this point, Ms Palermo also contended that one of the legal representatives of the Bank would be called as to 'the colluding in the transcript with himself and Registrar Boyle'. The trial judge made an order then that Ms Palermo did not have leave to subpoena Registrar Boyle, on the basis that 'the transcript is the transcript' and the evidence was not relevant to the issues to be dealt with at trial.[30]
[30] Trial ts 64.
Ms Palermo went on to give a further explanation as to why she intended to subpoena other proposed witnesses.[31] The trial judge made inquiries of both parties as to how long they required to apply for leave to issue subpoenas.[32] At the conclusion of the directions hearing, the trial judge made the following relevant orders:[33]
9.A subpoena is not to be issued in this matter without leave of the court by either party.
10.Both parties have leave to seek the issue of subpoenas for Stephen Edwards, Tibor Kiss and Julie Carroll.
11.[Ms Palermo] has leave to seek the issue of a subpoena for Justin Watts.
12.Leave is refused in relation to the proposed [witness] Registrar Boyle.
13.The parties are to seek leave to issue subpoenas for other witnesses by 27 September 2018.
[31] Trial ts 64 - 69.
[32] Trial ts 68 - 69.
[33] Trial ts 84 - 85. The orders as signed by the trial judge are quoted here.
Ms Palermo's applications for leave to issue subpoenas were considered at the next directions hearing on 10 October 2018. The trial judge explained to Ms Palermo that she did not need leave to issue subpoenas in relation to the persons already identified in the orders of 30 August 2018.[34] Her Honour said that, before she would grant leave to issue subpoenas to the other persons on Ms Palermo's list, Ms Palermo would need to satisfy the court that there was a proper basis for wanting them to give evidence.[35] The trial judge later said that, unless Ms Palermo explained why the proposed witnesses were relevant, she would not give leave to issue the subpoenas.[36]
[34] Trial ts 117.
[35] Trial ts 118.
[36] Trial ts 122.
Ms Palermo gave an account as to why she wished to subpoena the other witnesses.[37] That account did not identify any evidence which the proposed witnesses might give that would be relevant to any issue to be determined at trial, other than a Ms Priscilla McKinnon (who was said to have witnessed a document that Ms Palermo could not identify).[38]
[37] Trial ts 118 - 130.
[38] Trial ts 126 - 127.
The trial judge ruled that leave to subpoena all of the other witnesses on Ms Palermo's list would be refused, on the basis that their proposed evidence was not relevant. The exception was Ms McKinnon, in respect of whom Ms Palermo would be given time to produce the document that Ms Palermo contended Ms McKinnon was involved in.[39] Ms Palermo left the courtroom after this ruling was made.[40]
[39] Trial ts 130.
[40] Trial ts 130.
On 4 February 2019, the first day of trial, the trial judge anticipated making an order for witnesses to remain out of court, and asked Ms Palermo which witnesses she would be calling.[41] Ms Palermo responded:[42]
You denied all my witnesses. I asked for leave of all witnesses. All my witnesses were denied except for one. So now you're saying I can have witnesses – and it's on the Friday – like three days before the trial.
[41] Trial ts 167.
[42] Trial ts 168.
The trial judge asked Ms Palermo which witnesses she wanted to call, and was told that the list of witnesses was the same as previously. The trial judge explained:[43]
Well, you understand the difference between subpoenaing a witness and simply having a witness voluntarily attend? So a subpoena is a compulsory process. A subpoena is a compulsory process that allows you to get the court to force someone to come to the trial. So both parties sought permission – or asked the court to effectively let them force people to come to the trial.
And in relation to the witnesses that you wanted the court to force to come to trial, I agreed with you that Mr Watts could be forced to come, and you were allowed to issue a subpoena in relation to him, but in relation to the others, when I asked you what their relevance was, you were unable to satisfy me that they were relevant, so that I didn't give you leave to force them to come. But you can still call witnesses who voluntarily come, who can give evidence that's relevant and in relation to whom you've given proper notice to the other side.
[43] Trial ts 168.
Ms Palermo gave a further explanation of the evidence which she contended the witnesses she sought to call might give.[44] At the conclusion of the explanation, the trial judge said:[45]
Well, voluntary or not, none of these witnesses would be relevant. So even if they were willing to attend court, they wouldn't be allowed to give evidence because they can't say anything that is relevant to the issues.
[44] Trial ts 168 - 180.
[45] Trial ts 181.
Ms Palermo indicated that she intended to call one witness, Mr Watts, a handwriting expert.[46]
[46] Trial ts 182.
Despite the trial judge explaining the consequences of Ms Palermo not giving evidence,[47] she chose not to do so and left the courtroom when pressed for an answer as to whether she would be giving evidence at trial.[48] Ms Palermo did call Mr Watts, although the trial judge found that his evidence (given before Ms Palermo was required to decide whether to give evidence herself) did not assist Ms Palermo.
[47] See, for example, trial ts 321 - 323, 385 - 386.
[48] Trial ts 386.
The proposed appellant's case and oral submissions provide no reasonable basis for impugning the trial judge's procedural decisions in relation to the issue of subpoenas. Given Ms Palermo's intention, indicated at the directions hearing on 30 August 2018, to subpoena persons on a list which included at least some persons who could give no relevant evidence, it was appropriate to direct that no subpoenas issue without leave. The trial judge gave Ms Palermo the opportunity to explain why persons she wished to subpoena or call could give evidence which was relevant to the issues to be determined at trial. That opportunity was given both at the directions hearing on 10 October 2018 and on the first day of the trial. Ms Palermo's submissions to the trial judge provided no basis for apprehending that the persons who Ms Palermo was refused leave to subpoena might be able to give relevant evidence at trial. Before this court, Ms Palermo relied on her submissions to the trial judge as explaining the potential relevance of the evidence the proposed witnesses might give.
In the above circumstances, proposed ground 3 does not raise any arguable error in the exercise of the trial judge's discretion to refuse leave to issue the subpoenas.
Proposed ground 4
Proposed ground 4 contends that a witness gave 'false evidence in regards to witnessing and validation of Identification documentation'.
The following written submissions would appear to relate to this proposed ground:[49]
On the 5th February witness Tibor Kiss gave false evidence at trial stating he witnessed [Ms Palermo] sign all documentation and [Ms Palermo's] identification was verified in person in his office on the 2nd September 2013. Bank Statements can verify [Ms Palermo] was not in Perth the dates Mr Tibor falsely claimed under oath that [he] witnessed [Ms Palermo] signing documentation. TBN7
[49] Appellant's Submissions, par 4.
Mr Kiss, the proprietor of Ms Palermo's finance broker, gave evidence of receiving emails from Ms Palermo on 2 September 2013, and completing a Kiss Finance customer identification form.[50] Mr Kiss did not give evidence that Ms Palermo was in his office when he completed the customer identification form.
[50] Trial ts 206, 224 - 225; exhibits 2.85 - 2.88.
The trial judge made the following findings in relation to this evidence:[51]
On 2 September 2013, Ms Palermo sent emails checking on the progress of her loan application and providing additional information.[52] She also emailed Mr Kiss saying she was attaching 'signed documents as requested'. Attached to her email was a Bank form titled 'Privacy & Spam Statement Consent', which she had signed and dated.[53]
On 3 September 2013, Mr Kiss signed another 'Customer Identification Form' in relation to Ms Palermo, which attached a copy of Ms Palermo's driver's licence.[54]
[51] Primary decision [43] - [44].
[52] Exhibits 2.85 and 2.86.
[53] Exhibit 2.87.
[54] Exhibit 2.88 and trial ts 206.
The trial judge therefore did not proceed on the basis that Ms Palermo was in Mr Kiss' office in Perth on 2 September 2013. The submissions in support of this proposed ground proceed on a false premise as to the evidence Mr Kiss gave, and the findings made by the trial judge based on that evidence.
Ms Palermo also contended that there was no basis for Mr Kiss to sign the customer identification form in Ms Palermo's absence. However, the execution by Mr Kiss (who was Ms Palermo's mortgage broker) of the customer identification form in the absence of Ms Palermo could not deprive the Bank of its entitlements under the loan agreements and mortgage.
Proposed ground 4 raises no arguable error.
Proposed ground 5
Proposed ground 5 complains that the trial judge did not address the 'Act of Mortgage Fraud'. There is no arguable merit in that proposed ground. The trial judge addressed the issue by considering Ms Palermo's contention that her signature on the mortgage was forged, and finding that it was not.
Other matters
Ms Palermo's submissions deal with a number of matters which are not the subject of any ground of appeal. None of those matters provide any arguable basis for doubting the correctness of the trial judge's decision.
Disposition of application for an extension of time
For the above reasons, none of Ms Palermo's proposed grounds of appeal have any reasonable prospect of success. It is also appropriate to recognise the hurdles faced by Ms Palermo in seeking to challenge to the findings of primary fact as to her signing the loan agreements and mortgage, and receiving the loan funds. The Bank adduced evidence of its records of documents signed by Ms Palermo and the advance of loan funds for her benefit. Ms Palermo did not give any evidence at trial to the contrary. There was other evidence indicating that Ms Palermo was a party to the transactions. The Bank's records show that the loan funds were used to pay the purchase price for land of which Ms Palermo is registered proprietor and to build the house, in which Ms Palermo lives, on that land. In that evidentiary context, the factual findings made by the trial judge adversely to Ms Palermo were plainly correct. Having regard to the principles governing appeals from findings of primary fact noted at [26] above, there is no basis on which those findings may be successfully impugned in the appeal. The trial judge's findings of primary fact clearly established Ms Palermo's liability to the Bank.
The proposed grounds of appeal, and the appeal itself, have no reasonable prospect of success. It would therefore have been futile to extend the time for Ms Palermo to file her appellant's case. Ms Palermo's application for an extension of time to file her appellant's case was therefore dismissed, with the consequence that the dismissal of the appeal pursuant to the springing order stands.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell26 AUGUST 2019
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