Westpac Banking Corporation v Hiskey

[1999] SASC 419

WESTPAC BANKING CORPORATION V HISKEY

[1999] SASC 419

1. 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. 

2. 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.

3. On 27 July 1998 the plaintiff issued these proceedings for possession and served the proceedings on 12 August 1998.  

4. 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.

5. 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. 

6. 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. 

7. 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 under the Supreme Court Act are fixed by the Governor in Council, pursuant to s 130(1) of the Supreme Court Act.  There is no power in that section to dispense with the fees, nor does there appear to be any power in the regulations to dispense with or waive fees. 

8. There are decisions of this Court and other courts which suggest that there is inherent jurisdiction in the court to waive fees when a party is able to satisfy the court that the party is impecunious and unless the fees are waived the party will be denied justice: Pearce v Ryan (SCSA, Debelle J, 4 February 1997, unreported); King v South Australian Psychological Board (SCSA, Bleby J, 9 April 1998, unreported); R v Lord Chancellor ex parte Witham [1997] 2 All ER 779.

9. It seems to me that it would only be appropriate for me to make an order waiving fees if I was first satisfied that the applicant had some prospects of success on appeal.  I intend to proceed on the basis that I should first examine her prospects of success on appeal before I need to decide whether or not I do have power, in fact, to waive the fees.

10. The applicant could only succeed on appeal if she could establish one of three things.  First, that there was no debt payable to the plaintiff.  In the alternative, if there was a debt payable, the debt was not presently payable, or in the further alternative, if there was a debt presently payable there was an amount owed by the plaintiff to the defendant either by way of counterclaim or set-off of such significance that it would be appropriate to set aside the warrant for possession. 

11. The applicant has taken no steps to make out any of those three matters since the writ for possession was issued in July 1998.  She has told me from the bar table that during the intervening period she has been suffering from stress She said she has been suffering from since her retirement from employment at the University of Adelaide in August 1994. 

12. I accept everything that Ms Hiskey said from the bar table.  She put her argument articulately and she put everything that could have been said on her own behalf. 

13. As I pointed out to her, however, both parties on any application are entitled to considerations of fairness and justice.  Westpac is entitled to enforce its substantive rights unless it can be shown that those rights ought to be suspended for any of the three reasons which I have mentioned. 

14. The applicant has, by reason of her disablement, not been able to bring whatever proceedings she might wish to bring against Westpac in the meantime.  However, I was not convinced from what she said from the bar table that she has any substantive action against Westpac.  It may be, as she said in argument, that she has a number of actions against the University of South Australia, some of which she is presently pursuing in other jurisdictions.  But I am not convinced from what she said from the bar table that even if time was allowed to her that she would have any prospects of making out any of the three matters to which I have referred in proceedings against Westpac. 

15. In those circumstances, absent any proceedings to this point in time, it seems to me that her prospects of appealing from a decision of Judge Burley, which sought a stay of an order made now nearly one year ago, are not good.  In those circumstances it seems to me that I should refuse her applications.  I need not therefore decide whether I do have power to waiver fees. 

16. I am not unmindful of what it means to the applicant for me to refuse these applications, and the exacerbation, which that refusal may have upon the illness which he is presently suffering.  I am not unsympathetic to her plight.   But, at the same time, as I have said, both parties are entitled to consideration of fairness and justice and it seems to me that there is nothing which would disentitle Westpac from the enforcement of its rights. 

17. I therefore dismiss both applications.