Appeal - Practice and procedure - Application to amend grounds of appeal - Grounds contain generalised allegations of fraud - No ground alleging error in Master's decision - Turns on own facts

Appeal - Practice and procedure - Application to dismiss on grounds appeal incompetent - Subject of appeal res judicata - Inordinate delay in progressing appeal - Appeal frivolous and vexatious - Turns on own facts

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1

In the Matter of the Application Re Yap Cheng See; Ex parte Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 970344; 28 May 1997

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52

Re Cheshire Holding; Ex parte See, unreported; SCt of WA; Library No 950634; 22 November 1995

Yap v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998

1 PULLIN JA: This is an application by the appellant to amend her grounds of appeal. Esanda Finance Corporation Ltd ("Esanda") opposes the application and seeks an order that the appeal be dismissed on grounds that the appeal is incompetent. The appeal is against Master Sanderson's order dated 19 August 1998, dismissing the appellant's application to reinstate the registration of Cheshire Holdings Pty Ltd ("Cheshire").

2 Cheshire was wound up by order of this Court on a petition presented by Mr P Fermanis on 5 June 1990. Cheshire failed to lodge annual returns after 1988 and for that reason, in 1992, its registration was cancelled. The appellant has made a total of four applications for reinstatement. The first was in COR 220 of 1994. Steytler J (as he then was) dismissed the application. See Re Cheshire Holding; Ex parte See, unreported; SCt of WA; Library No 950634; 22 November 1995. In Steytler J's reasons he said:

"The applicant's purpose in seeking this relief is that of facilitating the bringing of a claim by Cheshire against Esanda Finance Corporation Limited ('Esanda') for a substantial sum of money."

3 The claims relate to a building development project at Curtin University involving the construction of housing units for overseas students.

4 The applicant's purpose in seeking this relief is that of facilitating the bringing of a claim by Cheshire against Esanda Finance Corporation Ltd for a substantial sum of money. The claims relate to a building development project at Curtin University involving the construction of housing units for overseas students.

5 The appellant made a second application to reinstate the company in COR 131 of 1997. This was dismissed by Master Sanderson on 11 July 1997. See the Master's reasons in In the Matter of the Application Re Yap Cheng See; Ex parte Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 970344; 28 May 1997.

6 The Master said that he could see no difference whatever between the application before him and the application dismissed by Steytler J. The Master held that the matter was res judicata and the application was dismissed. Steytler J's decision on 22 November 1995 was the subject of appeal to the Full Court. The Full Court dismissed the application for want of prosecution. See Yap v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998. The Court concluded that the basis upon which the appellant wished to appeal against the decision of Steytler J was hopeless and that the appeal was bound to fail. There had been inordinate delay and the appellant had failed to comply with the rules of the Court. The appellant made an application for special leave to appeal to the High Court in High Court Appeal No P16 of 1998. Esanda was never advised of any step having been taken after that application was filed.

7 A third reinstatement application was made in 1997 in COR 239 of 1997. This was dismissed by Master Sanderson on 19 September 1997.

8 Undeterred by any of this history the appellant made the application to the Master which led to the order which is now under appeal. The application was supported by affidavits which again refer to material which relate to the appellant's dealings with Esanda. The Master made it plain that there was no prospect of Cheshire being reinstated and dismissed the application as "hopeless."

9 The appellant filed a notice of appeal on 3 December 1998. The grounds of appeal were deficient. They set out details about Cheshire's claim against Esanda but did not allege any error by the Master and merely in effect repeated the contention advanced by the appellant in her earlier applications that Cheshire should be reinstated in order to sue Esanda.

10 On 5 November 1998 Registrar Rimmer wrote to the appellant advising that in his opinion the grounds of appeal did not comply with O 63 r 2 because they did not identify any error by Master Sanderson, and advising that the matter had been referred to Owen J. Owen J then directed that no further steps be taken to settle the appeal book index in the appeal unless and until the appellant applied for and obtained leave to amend the grounds of appeal.

11 On 23 November 1998 a chamber summons for leave to amend the grounds of appeal was filed by the appellant. It was listed for hearing on 4 December 1998. It was adjourned to 11 December 1998 and then adjourned sine die. Nothing was done by the appellant to relist it until 12 January 2006, when the appellant wrote asking for it to be relisted for hearing.

12 About the same time the appellant filed an affidavit dated 5 December 2005 which contained a large quantity of documents which again relate to Cheshire's dealings with Esanda. On 3 April 2006 the Registrar ordered that one month's notice of intention to proceed be given to solicitors for Esanda and that the appellant file an affidavit explaining the delay. Two further affidavits were then filed by the appellant, sworn on 24 April 2006 and 26 September 2006.

13 The affidavits and exhibits filed in 2005 and 2006 contain more than 1100 pages. They rake over Cheshire's dealings with Esanda and what happened in a trial in 1989 in which Mr Fermanis was involved. Neither affidavit satisfactorily explains the delay in relisting the application to amend the grounds of appeal. The Court has now listed the application for hearing.

14 The chamber summons which was filed on 23 November 1998 was accompanied by a minute of the proposed amended grounds of appeal which read:

"Master Sanderson's decision to dismiss the application SC COR 209 to reinstate Cheshire Holdings Pty Ltd ACN 009 264 082 on the ground that it would be a travesty of justice if this company was to be reinstated and that I had been wasting everyone's time, is harsh and false because:

1. The Company made NO AGREEMENT dd 20 October 1987 with Mr P. Fermanis appointing him as its finance broker to procure funds on the company's behalf yet

2. Mr P Fermanis sued the company in SC CIV 1172/88 P Fermanis vs Cheshire Holdings Pty Ltd for $105,000, balance of full procuration fee of $125,000 thereby the company was wrongfully sued by him for service Mr P Fermanis neither performed nor could perform thereby the Judgement in SC CIV 1172/88 in Mr P Fermanis' favour was procured by fraud and

3. As a consequence of 1. and 2., the company was wrongfully deregistered pursuant to Mr P Fermanis' petition SC COR 256/90 filed on 5 June '90 for his bill of costs $34,788.57 in SC CIV 1172/88 P Fermanis vs Cheshire Holdings Pty Ltd, Judgement in which action he procured by fraud, to wind up the company substantiated by:

a. Affidavit of CS Yap sw:5.12.05 in support of this appeal.

b. Mr P Fermanis' Aff:sw:27.4.00 in SC COR 256/90CSY13 in a.".

15 It is evident that these proposed grounds involve a contention that Mr Fermanis, who had petitioned as a creditor to wind up Cheshire, was not a creditor; this on the basis that a judgment which Mr Fermanis gained in his favour "was procured by fraud." Perhaps this is for the purpose of arguing that Cheshire should be reinstated for the purpose of then making an application to set aside the winding-up order which had been made on the petition of Mr Fermanis. However, a court would not entertain such an application based on generalised assertions of fraud. Allegations of fraud must always be clearly and distinctly alleged. It is improper for a party to make generalised allegations of fraud.

16 The appellant's proposed grounds contain generalised assertions of fraud. The affidavit of Mr Fermanis referred to in the proposed grounds, which appears as an exhibit to the appellant's affidavit sworn 24 April 2006, provides no evidence of fraud.

17 According to the appellant's affidavits of 5 December 2005 and 24 April 2006 the Fermanis action against Cheshire was for a procuration fee for arranging the advance of moneys to Cheshire to carry out the project at Curtin University.

18 The action was tried 17 years ago in 1989 in the Supreme Court (CIV 1172 of 1998). However, the assertions of fraud are not sustained by the affidavits. In any event the observations just made may be put to one side because this is an appeal against Master Sanderson's order.

19 If the appeal is to succeed it will be necessary for the appellant to show that the Master erred in some respect: see Marsden v Ydalia Holdings (WA) Pty Ltd [2006] WASCA 52 at [73].

20 The appeal is not an opportunity for the appellant to bring a fresh application for a reinstatement on some new basis. As a result, the application to amend the grounds of appeal must be dismissed.

21 That leaves the appeal on foot on the basis of the original grounds of appeal. The grounds allege no error by the Master. The matter was res judicata when it came before Master Sanderson: see Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466 and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34].

22 The Master was therefore not in error in dismissing the application on the grounds that the application was hopeless. The appeal should be dismissed because, in the circumstances, it is frivolous and vexatious. See Metropolitan Bank v Pooley (1885) 10 App Cas 201. In addition, the inordinate delay of seven years in taking any steps to bring this appeal to a hearing, which in the circumstances must cause prejudice to Esanda, is another reason for dismissing the appeal.

23 MILLER AJA: I agree with everything Pullin JA has said. I have nothing further to add.