Mr Patel said his Honour was correct. Hodgson JA then asked whether there was any evidence that the appellant had at all times been ready, willing and able to pay the interest on the $400,000 and had continued to do so.
39 Mr Patel conceded there was no direct evidence of that, but said that the Bank decided, without any legitimate excuse or reason, that the mortgage should be called up. The Court then pointed out to Mr Patel that there was no material in the pleadings or in the evidence to suggest that the appellant ever took the position that she accepted liability for $400,000, was willing to pay interest on it and had always been willing to do so.
40 Mr Patel put that the relief granted by the judge should not merely have deemed the parties to have varied the loan so that the amount of the loan was $408,000, but should have deemed the loan to have been varied so that it was a home loan with conditions appropriate to a home loan.
41 Unfortunately, apart from the lack of evidence referred to above, if what is set out at pages 155-6 of the Blue Book is the standard home loan contract, whilst the term appears to be 30 years, there are the usual provisions that if any default is made, then the balance of the loan will be repaid with interest and fees and charges upon demand. In the absence of any evidence that all the payments were up to date, and there was no default, and indeed, there is an overall flavour in this case that there was some default, it would not matter if the loan were a 30 year home loan.
42 Ms Bearup made the further submission that the appellant's counsel had never actually stated what were the alleged "appropriate conditions" for a home loan to which the judge should have adjusted the contract. Furthermore, no such case was ever put to the primary judge nor does it rate a mention in the original or even the amended notice of appeal.
43 Mr Patel appeared to be submitting that there was no contract because of some mutual, common or even unilateral mistake. Not only was this not pleaded, nor does it appear to have been put below and it does not appear in the notice of appeal, but also it runs contrary to the basal facts of the case. In any event, if it be correct, the consequence would still be that Mrs Satchi should refund any money paid to her under the void contract as money had and received to the use of the Bank.
44 As Ms Bearup has submitted, the judge really gave the appellant as much as she could when still doing justice to the Bank. The judge believed the appellant and modified the loan so that the amount repayable was based on the benefit that the appellant actually received. The only matter which does provoke examination is her Honour's determination that Yerkey v Jones was inapplicable in this sort of case.
45 The main reason why her Honour took that view is that Yerkey v Jones primarily deals with the situation where a wife or equivalent mortgages her property and receives no benefit at all from the funds produced by the mortgage. There is a very limited area where a wife can take advantage of the Yerkey v Jones principle where she receives some benefit, usually in the case where she is a director and shareholder of a corporate borrower; see eg the cases referred to by Clarke JA in Warburton v Whiteley (1989) NSW Conv R 55-453 at 52,287-58,291 and my decision at first instance in Garcia v National Australia Bank Ltd (1993) NSW Conv R 55-662 at 59,787.
46 None of the extensions in the cases referred to would allow the Court to bring the present case under the Yerkey v Jones principle. The primary judge's ruling on the issue was undeniably correct.
47 After hearing from Mr Patel and Ms Bearup and at the close of the oral argument, we gave leave for the appellant to file and serve supplementary written submissions by 22 July 2009, but we made it clear that those submissions "are to be signed by Mr Patel of counsel and are to be supplementary to the matters outlined today as to the matters on which Mrs Satchi relies in the appeal. That is subject to the question of costs … . The respondent's submissions in reply are to be filed and served within a further seven days thereafter".
48 As to costs, after hearing further argument we directed that the direction noted above extends also to written submissions appealing against the costs orders made by the trial judge and responding thereto. Subject to receipt of those two tranches of submissions the Court reserved its decision but extended the stay granted by Ipp JA until 4pm on the day on which we deliver judgment.
49 On 22 July 2009, the appellant filed in the Registry a further Orange Appeal Book entitled "No 3". This showed that it had been prepared in haste as one of the documents in it was marked as a working draft.
50 Orange Appeal Book No 3 actually contained four documents, (a) supplementary submissions by Mr Patel; (b) a document entitled "Supplimentary [sic] Submissions by Appellant's husband"; (c) a chronology of settlement efforts; and (d) an allied document to document (c).
51 On 29 July 2009, the appellant filed two further Orange Appeal Books Nos 4 and 5 which contained a heterogeneous mass of so-called "supplementary documents" including a copy of the appellant's husband's written case in the High Court in, apparently, a bankruptcy appeal. Page 183 of Orange No 5 alleges, inter alia, that the husband had many suspicions, but did not know why this Court had, on 1 July, rejected his efforts to help his wife's case as the Court had not given reasons for this decision.
52 No leave had been given in respect of any of the material in Orange Appeal Books Nos 3, 4 or 5 except for pages 2-10 of Orange No 4 which purports to be Mr Patel's further submissions. In accordance with the standard practice of this Court, I have ignored the material filed without leave except insofar as it was already in evidence or consists of documents referred to in the Bank's counsel's submissions in reply and associated documents.
53 If one merely took cognisance of the index to Orange 3, one would think that the extra material was filed by leave of the Registrar. This is clearly not the case as other material shows.
54 Mr Patel's further submissions 1-44 deal with material which suggests that the appellant was at a severe disadvantage during the hearing. This was of little use. Not only did it not develop Mr Patel's principal submissions made at the oral hearing, but it also did not take account of the fact that it was really impossible for any advocate on behalf of the appellant to obtain a better result than obtained before the primary judge.
55 The fact that the appellant cannot surmount is that she received an actual benefit from the Bank of approximately $408,000. In so far as she seeks relief in equity, the maxim applies that "she who seeks equity must do equity". She needs to see that $408,000 is repaid or at least come to an acceptable commercial arrangement with respect to that sum. This she has never offered to do.
56 So far as the Contracts Review Act is concerned, the Court's jurisdiction only goes so far as avoiding, as far as practicable, an unjust consequence or result. The circumstances of this case did not permit the primary judge to absolve the appellant from the consequences of entering into this written contract over and above that which was unjust and that, according to the primary judge, and in my view her Honour made no mistake in this, was limited to the amount over $408,000.
57 I expected that the additional submissions would have expanded on the submission that the primary judge should have further adjusted the contract to remove the "right" of the Bank to demand repayment short of the period allowed in a home loan mortgage. However, there is no such additional submission. It may well be that this is because: (a) the submission was doomed for reasons set out earlier in these reasons; and (b) it was never raised before the primary judge or even in the amended notice of appeal.
58 Paragraph 45 of the submissions by Mr Patel are hard to follow. It consists of 15 sub-paragraphs the gravamen of which may be summarised by quoting from para 45.8 that the Bank has "not removed the blinkers to see what is absurd about the facility they advanced to Mrs Satchi" and that the Bank constantly refused to accept Mrs Satchi's attempts to reach a fair and reasonable compromise.
59 Ms Bearup responded to the additional submissions. She pointed out much of what was said bore no relation to the grounds of appeal. She further pointed out that appeals from orders made under the Contracts Review Act 1980 are appeals from discretionary orders and appeals from such orders face the difficulties always faced by those who appeal from such orders.
60 In my view, the decision of the primary judge was correct and, even if it were open to Mr Patel to put the arguments he has put to us, the appeal still would have to be dismissed.
61 Before turning to questions of the proper order for costs below, because the appellant's husband appears to be alleging that he still does not know why this Court would not permit him to "help" his wife on the appeal, I should say plainly that it would not serve the interests of justice principally for two reasons: (1) the husband's submissions made in this case previously have been of no assistance; and (2) it is almost impossible for a court to accept as an appellant's "McKenzie friend" the very person accused of applying undue pressure on the appellant. Reasons to this effect were given at the oral hearing.
62 As to the costs below, the additional submissions suggest that the Bank was unjustifiably intransigent and forced costs to amass without justification.
63 The appellant's submissions as to costs are somewhat difficult to comprehend. However, I cannot see anything in those submissions which would make me rule that her Honour's decision as to the costs below was not an appropriate exercise of her discretion.
64 Ms Bearup's response to these submissions was that, before the primary judge, the appellant did not rely on any offers made by her during the proceedings on the issue of costs. The judgment on costs was a discretionary judgment made on a proper consideration of the issues and should not be disturbed on appeal. I agree.
65 As the appeal has been wholly unsuccessful, the appellant should pay the Bank's costs of the appeal.
66 Accordingly, in my view the appeal should be dismissed with costs.
67 The appeal was expedited and a stay was granted which we extended until the delivery of these reasons. The property concerned is the appellant's home. It is usual, in such a case, to stay the execution of the order for six to eight weeks at least. In my view we should amend the order below by giving leave to the Bank to issue a writ of possession on or after 1 November 2009; however, that order should be conditional upon the appellant paying to the Bank $4,000 (which is my approximate calculation of the monthly interest), in each of the months of September and October 2009, failing any payment being made, a writ of possession to be issued within seven days after such default.
68 Accordingly the orders that the Court makes are these: