Wondal v ING Bank (Australia) Ltd

[2013] NSWCA 286

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wondal v ING Bank (Australia) Ltd [2013] NSWCA 286

Hearing dates:

22 August 2013

Decision date:

22 August 2013

Before:

McColl JA [1];
Leeming JA [2]

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

Application for leave to appeal from summary dismissal - application filed substantially out of time - proposed appeal devoid of merit - leave refused

Legislation Cited:

Moratorium Act 1932
Moratorium (Amendment) Act 1968
Real Property Act 1900

Category:

Procedural and other rulings

Parties:

Susiany Wondal (Applicant) (In Person)
ING Bank Australia Ltd (First Respondent)
Gadens Lawyers Sydney Pty Ltd (Second Respondent)

Representation:

Counsel:
AC Casselden (First and Second Respondents)
Solicitors:
Gadens Lawyers (First and Second Respondents)

File Number(s):

2012/307760

 Decision under appeal 

Jurisdiction:

9111

Date of Decision:

2012-09-06 00:00:00

Before:

Macready AsJ

File Number(s):

2011/348007

Ex TEMPORE Judgment

1. McCOLL JA: I agree with Leeming JA's reasons and the orders his Honour proposes. The orders of the Court therefore are that the application for leave to appeal is dismissed with costs.

1. LEEMING JA: This is an application for leave to appeal from a judgment of Macready AsJ dated 6 September 2012 dismissing proceedings brought by the applicant pursuant to r 13.4 of the Uniform Civil Procedure Rules (UCPR). Leave is required for two reasons: first, the summary dismissal is an interlocutory judgment, and secondly, the summons seeking leave to appeal was filed on 4 April 2013, some seven months after the material date.

1. The respondents to the application are ING Bank (Australia) Ltd and Gadens Lawyers Sydney Pty Ltd. They oppose the grant of leave to appeal. They do so principally on the basis that the appeal is so devoid of merit it would be futile to permit it to proceed.

1. The essential chronology as revealed by the materials on the leave application is as follows. With effect from 7 June 2005, ING obtained judgment against Ms Wondal in the sum of $247,148.22, and possession of certain land in Kingsford, New South Wales. Pursuant to that judgment, ING took possession of the property and exercised a power of sale as mortgagee. The second respondent (Gadens) acted for ING on the sale. The property was sold, so far as the materials reveal, for $786,500, with completion taking place on 21 September 2009.

1. The underlying proceedings were commenced by Statement of Claim filed on 1 November 2007. Ms Wondal claims damages in the amount of $35,000,000. The respondents promptly sought summary dismissal of the proceedings in accordance with UCPR Rule 13.4. Thereafter, there were a series of adjournments, following which the applicant seems to have filed first an Amended Statement of Claim, and subsequently a Further Amended Statement of Claim (on 20 July 2012). In the intervening time, the applicant had been referred to a pro bono panel for legal assistance. It seems that that assistance was rejected. Macready AsJ stated in his reasons that:

"Once again, she has had the benefit of pro bono assistance. However, she instructed the barrister who appeared today before me that he was not to appear for her and she has again presented the case herself."

1. The pleading as amended, in the form that it took when Macready AsJ dismissed it summarily, was as follows:

"1. Plaintiff claim for Real Property Act 1900 Part 13 section 118

My mortgage not in default they just take in forced

I am first owner and registered legal owner

Property XXXXX Anzac Pde Kingsford NSW 2032

2. Plaintiff's claim for Moratorium Act 1937/57

Part 2 section 9

Plaintiff has pay loan interest until October 2009."

1. The relief claimed was as follows:

"1. I seek compensation for future loss income.

2. I seek compensation for all my personal belonging in garage XXXXX Anzac Pde Kingsford 2032.

3. I seek compensation to a disadvantage to open business there.

Its about positions and locations is what counts.

It is retail commercial property to make money and to get income from.

Amount of claim $35.000.000.00

Total $35.000.000.00."

1. The reasons of Macready AsJ record that in the absence of affidavit evidence, he invited the applicant to enter the witness box and give evidence. She did so, and was not cross-examined. His Honour recorded that:

"What little evidence she gave did not give me any comfort that there was any claim that she might have for some wrongful exercise of the mortgagee's powers."

1. His Honour stated that the reference to s 118 of the Real PropertyAct was not appropriate given that there was default judgment. His Honour noted that the Moratorium Act had ceased to be in force for many decades. His Honour concluded:

"The question is whether there is any reasonable prospect of prosecuting the proceeding. In the circumstance where there has been a judgment based upon a default, and where, despite numerous opportunities, the plaintiff has not been able to, or simply refuses to, give any details of what she puts forward as to her non-default, in my view, the proceedings should be dismissed."

1. In this Court, there was a limited explanation by Ms Wondal from the Bar table that the delay was occasioned by the absence of legal assistance. However the delay is substantial. The draft notice of appeal does not seek to identify any error made by the primary Judge. It makes various complaints against ING, Gadens, the Court, and the barrister who provided assistance to her pro bono. Most of those complaints, so far as the evidence reveals, had not been even articulated before the primary Judge; certainly, they were outside the scope of Further Amended Statement of Claim.

1. The power to dismiss proceedings summarily is only to be availed of sparingly, and imposes a high threshold upon the defendant. However, in the present case, not only is no error of principle disclosed by the reasons of the primary Judge, in my view it is plain that the underlying proceedings are completely devoid of merit. There was no appeal from the 2005 judgment for possession, and so s 118 of the Real Property Act can have no application. The Moratorium Act 1932 does not apply to mortgages of land executed or given after the commencement of the Moratorium (Amendment) Act 1968. No other basis for relief is disclosed on the materials. Accordingly, there is no basis for a grant of leave. I would propose that leave be refused with costs.

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Amendments

14 October 2013 - Insert under heading "DECISION UNDER APPEAL" the "Court/Tribunal" field and insert "Supreme Court"; delete the median neutral citations given (there is no median neutral citation for the decision under appeal)

Amended paragraphs: Coversheet

Decision last updated: 14 October 2013