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[2016] WASCA 122
General information, not legal advice.
Court of Appeal (WA)
2016-07-15
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : KONINGS -v- COMMONWEALTH BANK OF AUSTRALIA [2016] WASCA 122
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Practice and procedure - Application for suspension of enforcement of judgment - Civil Judgments Enforcement Act 2004 (WA), s 15 - Summary judgment - Litigants in person - Whether denied procedural fairness - Obligation of court to assist litigant in person - Appeal has no reasonable prospect of success
Application to suspend enforcement of judgment dismissed
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Tobin v Dodd [2004] WASCA 288
1 REASONS OF THE COURT: On 1 July 2016 we dismissed the appellants' application for a stay of the enforcement of a judgment of Master Sanderson, pursuant to which the appellants were ordered to pay to the respondent the sum of $992,932.92 plus interest and give vacant possession of a property which is secured by a mortgage to the respondent.
2 We said we would provide reasons for our decision later. The following are the reasons.
3 The first-named appellant is the registered proprietor of a property in Preston Settlement in Western Australia. On or about 17 July 2008, the appellants entered into a loan agreement with the respondent pursuant to which the respondent agreed to provide them with a credit facility in the sum of $767,606.00, secured by a mortgage over the Preston Settlement property. The loan amount was advanced to the appellants on or about 13 August 2008.
4 Under the terms of the loan agreement, the loan was repayable on demand and the appellants were required to make regular payments of interest on the amount outstanding. As at 15 December 2014, the appellants were in default as the amount owing exceeded their credit limit. The respondent issued a default notice requiring the default to be remedied. It was not remedied and the whole amount then owing by the appellants became due and payable.
5 The respondents subsequently commenced legal proceedings for the outstanding sum and for an order for vacant possession of the property under the provisions of the mortgage. Following the filing of a memorandum of appearance by the appellants, the respondent applied for summary judgment. In an affidavit, dated 23 October 2015, in support of the application the sum of $972,965.88, together with interest accruing at $161.27 per day, was said to be owing at the date of the affidavit.
6 On 19 February 2016, the master found that the appellants had no arguable defence to the claim and ordered that summary judgment be entered for the respondent. He gave ex tempore reasons. The master identified five contentions that had been raised by the appellants by way of a defence to the claim. Those contentions, in substance, were that (1) the appellants were not liable under the loan agreement because the relevant advances were made simply by book entries rather than by physical currency; (2) the loan documents were invalid under the Code of Banking Practice; (3) the loan documents had not been properly signed by the appellants; (4) the respondent had breached the National Credit Code (the Code); and (5) the respondent had engaged in misleading and deceptive conduct in relation to the loan transaction.
7 The master rejected each contention. He found that (1) the first contention was misconceived; (2) the Code of Banking Practice did not apply because the transaction occurred before it came into force; (3) the loan documents had been properly signed by the appellants; (4) it was not clear how the Code was said to apply or in what way the respondent was said to have breached it, but if (as it appeared) it related to alleged misleading and deceptive conduct in respect of the respondent's internal workings it was not relevant; and (5) if the appellants also made a stand-alone allegation of misleading and deceptive conduct that was different to (4), there was nothing in the evidence to suggest such conduct.
8 The appellants have appealed from the master's decision.
His Honour erred by not adequately considering the inequality of arms.
10 The court has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal, alternatively an order suspending the enforcement of a judgment may be made under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) if there are 'special circumstances' that justify doing so. There are no hard and fast rules applicable to an application under s 15 of the Act but the relevant general principles are those described in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308: see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]. The general principles relevant to an application for a stay under the rules are not materially different. While the present applications were framed in terms of a stay, it is appropriate to consider both forms of interim relief. For present purposes, the general principles applicable to both can be sufficiently stated as follows:
11 It appears that the appellants have been farming the property since 1990 and currently have cattle on it. It is also their primary place of residence. We accept that if a suspension order were not granted the right of appeal would be rendered nugatory or at least there would be practical difficulties in respect of the relief that may be granted on appeal.
12 The grounds of appeal, however, have no reasonable prospect of succeeding. A party is not denied natural justice, or procedural fairness, merely because they do not have legal representation. That is the case whether the lack of legal representation is a matter of choice or because they are unable to afford it. It is accepted, however, that a court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought do to will depend upon the nature of the case and the litigant's capacity to understand the issues in the case: see Tobin v Dodd [2004] WASCA 288 [14]. But the court must not intervene to such an extent that a position of neutrality cannot be maintained or an unrepresented litigant is given a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] - [29].
13 The proposition that the appellants were denied procedural fairness is not reasonably arguable. In opposition to the application, the appellants filed two affidavits canvassing a number of grounds on which they relied by way of defence to the respondent's claim. It is clear from the transcript that at the hearing the master carefully explained the nature of the proceedings to them and provided the appellants with all the assistance they reasonably appeared to require to enable them to present their case. The issues in the case were not issues of great legal or financial complexity and the appellants did not indicate that they needed further assistance. Nor did they indicate that they needed any additional time to prepare their case or to present it.
14 It is also relevant that the appellants were not without some apparent expertise in financial matters. In an affidavit dated 23 November 2015 in opposition to the application, the first-named appellant indicated that he had considerable experience in a management position in a major industrial company, including compiling and executing multi-million dollar annual operating and capital budgets, which he said led to him becoming skilled and knowledgeable in its general accounting principles and practices. His submissions before the master on behalf of the appellants reflected an apparent sense of assurance on financial matters.
15 The appeal as it is framed in the grounds of appeal must fail.
16 There were, in addition, two other contentions in support of the appeal advanced in the affidavits and written submissions of the appellants. As these were not contained in the grounds of appeal, the respondent objected to them being raised, but it is convenient to deal with them.
17 First, the appellants argued that the respondent wrongfully failed to plead in its statement of claim that the Code applied to the loan transaction and thereby failed to alert the court to possible defences the appellants may have under the Code. There is no substance in that. The application of the Code was not an essential element of the respondent's cause of action and accordingly it was not required to plead it. It was for the appellants to raise it if they considered it afforded them any defence to the claim. In fact, the Code was considered by the master, who concluded that the appellants had no defences under it.
18 Second, the appellants submitted, in effect, that it was arguable the loan contract and the mortgage were unjust transactions under s 76 of the Code and liable to be reopened by the court. In support of that submission, the appellants sought to adduce additional evidence on the appeal in the form of an affidavit, dated 17 June 2016, of the first-named appellant. In it, the first-named appellant outlined certain matters said to form the basis for the appellants' contention that, having regard to the factors set out in s 76(2)(b), (c), (e), (i), (m) and (l) of the Code, the loan contract and the mortgage were unjust transactions. The affidavit also referred to the commencement by the appellants of proceedings in the Federal Court of Australia.
19 Having considered the matters relied upon (the details of which are unnecessary to set out) in our view nothing said in relation to the circumstances referred to in s 76(2)(b), (c), (e), (i) and (m) could conceivably support an argument that the transactions were unjust. Indeed, the appellant's primary focus appeared to be on s 76(2)(l), which enables a court to take into account whether at the time the relevant agreement was entered into the credit provider knew, or could by reasonable enquiry at the time have ascertained, that the debtor could not pay in accordance with its terms or not without substantial hardship. There was, however, nothing that was capable of making out such a case.
20 The application for the loan was made through a broker. The appellants described themselves in the loan application as self-employed business people on a total net income of $200,000 per annum. It is not to the point that they cannot now recall how they arrived at that income figure. The alleged errors they identify in the loan application are not material and, in any event, if made out, would appear to be the responsibility of the broker. There is nothing to indicate that the broker was other than the appellants' agent for the purposes of their loan application. On the evidence there was nothing that was capable of putting the respondent on enquiry as to the appellants' capacity to repay the loan on the agreed terms without substantial hardship.
21 There was nothing else in the affidavit material before the master or the additional affidavit material before this court that might suggest the appellants have an arguable defence to the respondent's claim.
22 As the appeal has no reasonable prospect of succeeding, the application for a suspension of enforcement proceedings or a stay must be dismissed.
23 It was for those reasons that we dismissed the appellants' application.
Eastland Technology Australia Pty Ltd
Whisson
(1999) 84 FCR 438
(2003) 28 WAR 308