Westpac Banking Corporation v Hiskey - [1999] SASC 419

WESTPAC BANKING CORPORATION V HISKEY

[1999] SASC 419

LANDER J This is an application by a defendant to a claim for possession by the Westpac Banking Corporation. The plaintiff and the defendant entered into a loan contract in April 1992 whereby the plaintiff lent the defendant the sum of $70,000, which sum was repayable on monthly payments of principal and interest. The sum was secured by mortgage. In August 1994 the defendant repaid $63,000 to the plaintiff, leaving an amount outstanding of something just over $5,000.
As I understand it the plaintiff thereafter allowed the defendant to draw against the amount which had been repaid, as it were, by way of a line of credit. The defendant drew those monies. She first fell into arrears in monthly payments in February 1998 but also failed to make her monthly repayment in March and April of 1998. The plaintiff issued a notice of default under s.55A of the Law of Property Act.
On 27 July 1998 the plaintiff issued these proceedings for possession and served the proceedings on 12 August 1998.
The first return of the proceedings was on 9 September and the matter was adjourned until 1 October 1998. On that day an order was made for the plaintiff to have possession of the property, the subject of the proceedings. The Master who made the order, Judge Bowen Pain, ordered a stay of the order for eight weeks from that date. The warrant of possession in this matter was issued on 9 March 1999. An application was made for a stay of execution of the warrant on 24 May 1999. On 2 June 1999 an application was then made for an extension of time within which to appeal from the decision of Judge Bowen Pain and a stay of the warrant.
That matter was heard by another master of the court, Judge Burley who, on 31 August 1999, dismissed the application for an extension of time within which to appeal and refused the stay of the warrant. He concluded at that time that there were no grounds for appeal and no extension should therefore be allowed. He, however, extended the time from which to appeal from his decision for 14 days, which time expired today.
The plaintiff who had previously given an undertaking not to enforce a warrant, was released from that undertaking to take effect from tomorrow 15 September. Today, 14 September, the defendant made an application for a stay of execution of the warrant and an application for an extension of time to appeal. She has also sought a waiver of fees to enable an appeal to be lodged.
She has claimed on this application, and I accept her claim, that she is impecunious and not in a position to pay the fee necessary for the lodgement of the appeal. The fee is, I believe, $460. The Supreme Court Act 1935, unlike the District Court Act, does not expressly provide power in the court to waive fees. Fees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] SASC 419
Decision Date: 14 September 1999

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Hiskey involved a legal dispute between the plaintiff, Westpac Banking Corporation, and the defendant, Hiskey. Westpac initiated proceedings for possession of property after Hiskey fell into arrears on a mortgage secured loan. The court was tasked with deciding whether to grant a stay of execution of the warrant for possession and an extension of time to appeal, as well as a waiver of appeal fees. The central legal issues were whether the court had the authority to waive appeal fees under the Supreme Court Act 1935 and whether Hiskey had sufficient grounds to appeal the earlier decision to grant possession to Westpac.

The court examined the statutory provisions and relevant case law to determine if it had the inherent jurisdiction to waive fees when a party could not afford them. The court found that while there was authority suggesting such jurisdiction existed, it was only appropriate to exercise it if the party had prospects of success on appeal. The court assessed Hiskey's potential grounds for appeal, which included the absence of a debt, the non-payability of the debt, or a significant counterclaim or set-off that would warrant setting aside the warrant. Given Hiskey's inaction since the proceedings began and her inability to articulate a viable appeal, the court concluded that her prospects of success were poor. Therefore, the court found it unnecessary to decide on its power to waive fees and dismissed Hiskey's applications.

Orders