Court of Appeal (WA)|2002-12-04|Before: Wallwork J, Murray J, Parker J

Yap v Granich & Associates [2002] WASCA 330 (4 December 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : YAP -v- GRANICH & ASSOCIATES [2002] WASCA 330

Appeal for rehearing of District Court action - Whether fresh or new evidence - Whether misrepresentation at earlier hearing - Previous applications in same matter before Full Court and High Court - No fresh or new evidence established

1 WALLWORK J: These are reasons for judgment after the hearing of an originating motion pursuant to which Mrs Yap asked for the rehearing of District Court Action No 6202/93: Yap v Granich & Associates, unreported; DCt of WA; Library No 4913; 7 May 1996. The grounds of Mrs Yap's application are that she has obtained fresh evidence which was not before the Court; also Mrs Yap relies on the respondent's alleged misrepresentation of facts at a hearing held on 10 August 1992 in District Court Action No DC1536/89 in which action the respondent acted on Mrs Yap's behalf.

2 In support of her application Mrs Yap presented the Court with a book of papers totalling 397 pages. Those papers included an affidavit sworn by Mrs Yap in support of her application. In her affidavit Ms Yap relates the grounds of the alleged fresh evidence upon which she relies.

3 It is convenient to look firstly at the reasons for judgment in Yap v Granich & Associates (supra). He dismissed Mrs Yap's claim against the respondent.

4 In the course of his reasons for judgment the Commissioner said that in 1989 Mrs Yap was sued by P. Vivante & Co Pty Ltd ("the company") in District Court proceedings No 1536/89. Essentially the company had claimed against Mrs Yap in respect of two amounts of money. Firstly, it was alleged that a company associated with Mrs Yap, namely Akibilt Pty Ltd, was indebted to the company in the amount of $25,000 in respect of concreting works which had been performed at Curtin University. Secondly, the company claimed an amount of $42,000 which was said to be due by Mrs Yap personally to the company in respect of loans made to her.

5 The Commissioner said that the company had obtained a default judgment against Mrs Yap on 10 April 1989. Subsequently, some of her property was seized. Eventually she had approached Melsom Robson & Co, chartered accountants, for assistance. On 21 December 1989 Mrs Yap swore an affidavit for the purposes of Part X Bankruptcy Act proceedings which had been instituted on her behalf by Melsom Robson & Co. A statement of affairs was annexed to that affidavit. The fifth mentioned unsecured creditor in that statement of affairs was "P. Vivante" in a sum of $34,000. The nature of that debt was described as "work done guarantee."

6 The Commissioner said that later, on 10 April 1992, Mrs Yap, acting without a solicitor had brought an application to set aside the default judgment which had been obtained against her in April 1989. In full knowledge of its existence she had allowed the judgment to stand for some three years. Mrs Yap's application to set aside the default judgment had been dismissed on 29 May 1992 on the basis of her non appearance at Court. She had then made a further application to set the judgment aside and supported the application with four affidavits sworn by herself.

7 The Commissioner said that in opposition to Mrs Yap's application to set aside the default judgment, the company, through its director Mr Vivante, had filed an affidavit sworn on 29 April 1992 in which Mr Vivante deposed amongst other things that:

"The plaintiff did receive a number of cheques from Akibilt during June 1988. However payment on all those cheques was stopped by the defendant."

8 The Commissioner said that having heard the argument on the application, Registrar Kingsley set aside the default judgment and granted Mrs Yap leave to defend the action (No 1536/89) conditionally on her paying $39,000 into Court by 7 July 1992, failing which the company was granted the liberty to once again enter judgment against her. On the day the default judgment was set aside Mrs Yap had engaged the respondent, a firm of solicitors, to act on her behalf.

9 The Commissioner said that after Mrs Yap had obtained copies of the relevant Akibilt cheques payable to the company and to Mr P Vivante from the ANZ Bank at South Perth, her solicitors had incorporated that information into an affidavit sworn by Mrs Yap on 7 July 1992. That was the fifth affidavit which Mrs Yap had sworn in her endeavours to set aside the default judgment unconditionally. That affidavit was prepared in furtherance of an application made by Mrs Yap for leave to appeal Registrar Kingsley's order to a Judge of the District Court. Two further affidavits were prepared on Mrs Yap's behalf on 6 August 1992 and 13 August 1992. The application for leave to appeal was argued before Viol DCJ on 3 August, 10 August and 21 August 1992.

10 Commissioner Martin said that in all there had been some seven affidavits of Mrs Yap relied upon in her application before Viol DCJ seeking leave to appeal the Registrar's decision and to alter his earlier orders.

11 In the course of his reasons for judgment in refusing Mrs Yap's application for leave to appeal Viol DCJ had expressed concerns in relation to the curious circumstances in which cheques and bank statements of Akibilt had come to be located at Mrs Yap's home. Commissioner Martin said that Viol DCJ had pointed to "what appeared to be an inconsistency between two alternate explanations by Mrs Yap on that issue."

12 With respect to an attempt by Mrs Yap to resile from her acknowledgement of indebtedness contained in the deed executed on 5 September 1998 Viol DCJ had said:

"I do not, in the circumstances of the defendant's obvious commercial experience, accept that necessarily there was the signing of the deed in circumstances in which perhaps she was overborne."

His Honour referred to the fact that after the signing of the deed there had been a payment made through Esanda of $34,000.

13 In his reasons for judgment Commissioner Martin said that on 11 September 1992 the respondent had filed on behalf of Mrs Yap an application for leave to appeal to the Full Court from the decision of Viol DCJ and other documents. The seven prior affidavits sworn by Mrs Yap were included in the application for leave to appeal. The matter came on before a Full Court comprised of Rowland, Seaman and Murray JJ on 10 June 1993. On that day the Full Court refused Mrs Yap's application for leave to appeal against the decision of Viol DCJ.

14 In the course of the reasons for judgment of the Full Court given on 10 June 1993 it was noted that the deed executed by Mrs Yap had expressly acknowledged commitments by her in the amount of $67,000. Seaman J also referred to the significance of Mrs Yap's sworn acknowledgment of indebtedness in her arrangements under Part X of the Bankruptcy Act in her affidavit verifying her statement of affairs and the acknowledgement of an indebtedness to P Vivante in 1988 for $34,000 for work done on guarantee.

"She sought on the affidavit material to show merit in her defence by asserting that she did not understand the deed and did not know what she was signing and that from February to May 1988 she paid the respondent $98,860, or her company did, giving a substantial overpayment by her to the respondent on a fixed price contract for $67,000. She is a business woman and company director who acknowledged her indebtedness in a solemn statement in her statement of affairs. She allowed this judgment to stand for two years. Essentially her defence is that she did not understand the deed which she signed. Whatever may be the personal circumstances unbeknown to the Court which lie behind these papers, it seems to me that on the evidence before us, which is the only material to which we can pay attention, that her defence is shadowy in all these circumstances."

16 Rowland and Murray JJ agreed with the reasons of Seaman J as well as his proposed orders refusing leave to appeal.

17 The action before Commissioner Martin was brought by Mrs Yap on the basis of allegations to the effect that the respondent firm had been negligent in its failure to secure on her behalf a result whereby the condition imposed by Registrar Kingsley as to the payment of $39,000 into Court was removed.

18 The Commissioner noted that Mrs Yap had conceded that the additional cheques obtained from the ANZ Bank, South Perth had in fact been incorporated by the respondent on her behalf into her affidavit of 7 July 1992. He said that there was no other information raising any further defence which she could point to, which could have been incorporated in that affidavit.

19 In the course of his reasons for judgment Commissioner Martin said:

"...Mrs Yap was also seeking to resile from the clear terms of a deed which acknowledged her indebtedness. Furthermore, she was seeking to resile from an express acknowledgement in her statement of affairs in the Part X proceedings as to the existence of a debt to P Vivante for $33,000." [It should have been $34,000]

20 The Commissioner said that in the proceedings before him, Mrs Yap had called as her first witness, under subpoena, Mr P Vivante. The Commissioner said that Mr Vivante's evidence gave no support to Mrs Yap's contentions surrounding misrepresentation or the overbearing of her will in relation to the execution by her of the undated deed stamped 9 September 1988. The Commissioner said:

"Indeed, Mr Vivante's evidence was to the effect that Mrs Yap had been very careful in reading the document over prior to executing it and that she had asked questions about certain aspects of its content; see transcript page 56. I accept Mr Vivante's evidence on these issues as reliable and consistent with the documents adduced in evidence before me."

21 The Commissioner referred to a letter from Esanda Finance to Mrs Yap dated 30 August 1988 which contained the following statement concerning the alleged debt to Mr Vivante's company:

"If such payment is received, Esanda will make the following payments: P Vivante & Co Pty Ltd $34,000, leaving balance of $33,000."

Mrs Yap had accepted the terms of the proposal put to her by Esanda Finance.

22 In another letter from Mrs Yap as director of Akibilt, to P Vivante & Co dated 30 August 1988 it is stated:

"Akibilt acknowledges that it is indebted to P Vivante & Co Pty Ltd for goods supplied and/or work done in respect to the above project. ... However, and subject to unanimous agreement by all of Akibilt Pty Ltd's other unsecured creditors, we make, without prejudice, the following offer:

'1. To pay within 10 days the sum of $34,000 in partial settlement of your account rendered.

2. To pay within 90 days the balance owing.'"

"Mrs Yap's attempts at trial to explain away these letters as being attributable to an officer of Esanda Finance other than in accordance with her instructions, were not convincing and I do not accept her evidence in that regard. It is not in dispute that the consequence of these arrangements was that the company received a bank cheque number 522839 from Esanda in the amount of $34,000 on 8 September 1988."

24 The Commissioner came to the conclusion that it was very clear from all the evidence adduced before him that the case for the company was overwhelming. The learned Commissioner said:

"In all the instances where she had signed either the deed or letters, such as those of 30 August 1988, which may be read as acknowledging an indebtedness on either her or Akibilt's part, she has sought to explain away those matters on the basis of either not reading or not understanding such documents which she says were prepared by others. She has said that she has simply signed them without careful consideration or an appreciation of their content and, in the case of the deed, that positive misrepresentations were made to her by a solicitor acting on behalf of the company. I do not accept her evidence in those respects. I find her explanations unconvincing."

"In many instances her answers to questions posed to her in cross-examination, when pressed about such issues, were evasive or non-responsive to the questions put to her. In one instance it appears that she caused, with the aid of a photocopier, a document of 23 March 1988 to be created bearing a photocopy of the stamp of P Vivante & Co Pty Ltd in respect of a quotation for works ... Her acknowledgement of her conduct in creating this document had to be extracted from her in cross-examination but in the end Mrs Yap conceded that she had created that document and had then caused it to be incorporated in her list of documents given as part of her supplementary discovery of 16 April 1996, on the basis that she held a document from P Vivante & Co Pty Ltd when, of course, all there ever was, was an oral quote from that company. Such matters detracted further from her credibility."

26 The Commissioner came to the conclusion that he did not regard Mrs Yap's evidence as reliable where it was not corroborated independently.

27 Importantly, the learned Commissioner having heard all the evidence said:

"In the circumstances, therefore, if I was required to rule upon the question of the final merits of the claimed debt between the company and Mrs Yap, I would have little hesitation in finding, on the evidence adduced in this case, that on the merits an indebtedness acknowledged by the deed of September 1988 had been made good by the company, less an acknowledged receipt of $34,000 from Esanda."

28 The learned Commissioner said he had accepted the evidence of a solicitor who had given evidence before him. Also that the remaining three grievances expressed against the respondent by reason of the alleged conduct of that solicitor in relation to explaining in Mrs Yap's affidavits the alleged invalidity of the deed, the lapse of time in applying to set aside judgment, and the aborting of the Part X arrangement by Mrs Yap, were all grievances which were completely without merit. The Commissioner concluded:

"The evidence which has been adduced before me, and to which I have referred, presents an almost overwhelming case against her by the company... In the circumstances, I find that the claims made by Mrs Yap against the defendant (respondent) are without foundation..."

29 The defendant, referred to by the learned Commissioner in that case was the respondent to this application.

30 In July 1997 a Full Court comprised of Malcolm CJ, Kennedy and Franklyn JJ considered an application by the respondent to dismiss an appeal by Mrs Yap against the judgment of the learned Commissioner referred to above, as incompetent or alternatively for want of prosecution: Yap v Granich & Associates, unreported; FCt SCt of WA; Library No 970487A; 21 July 1997. At the conclusion of argument on 21 July 1997 the Court was unanimously of the opinion that the appeal should be dismissed. In his reasons for judgment published on 26 September 1997, the learned Chief Justice said that he had found it impossible to determine from the papers that the appellant had an arguable case by way of appeal. His Honour said it was inevitable that Mrs Yap's appeal should be dismissed. That was the order of the Court.

31 Mrs Yap then applied for leave to appeal in the High Court. During the hearing before the High Court Mrs Yap referred to the alleged absence of the cheques which point she still relies upon, and which would allegedly establish that she did not owe the money which she was said to have owed. She told the Justices of the High Court:

"I got the cheques on the 26th, all the cheques...but... my solicitor did not require the plaintiff of the action to provide all cheques they paid to us."

32 It was put to Mrs Yap by McHugh J that the case against her was extraordinarily strong: "You had a deed in which you admitted the debt. You had the letters written by Esanda."

33 Mrs Yap told the High Court that it was due to the omission by the respondent that her allegation that Akibilt Pty Ltd had fully paid the plaintiff, could not be substantiated. It was pointed out to Mrs Yap by McHugh J that she had signed a deed and had attempted to explain it away before Commissioner Martin. His Honour noted that Commissioner Martin had not accepted Mrs Yap's evidence in that regard.

34 Mrs Yap asserted to the High Court that she had signed the relevant deeds in reliance on a solicitor's representation (the plaintiff's solicitor). She alleged that the situation was deliberately misrepresented to her.

"Well you signed a deed and Commissioner Martin refused to accept your evidence in respect of it and he found your explanations unconvincing. In addition, you have to remember that you ultimately conceded in cross-examination that you had, in effect, forged a document of Vivante's."

36 Justice Kirby told Mrs Yap that she had put her arguments as well as they could be put. In giving the judgment of the Court, his Honour said that the application appeared to be entirely devoid of merit. The application was dismissed with costs.

37 In the course of her oral submissions to this Court Mrs Yap again raised her contention that her defence had not been properly presented. She alleged that she did not owe the company any money and that the position concerning her payment by the various cheques had not been properly ventilated in the original action before Commissioner Martin. That is what Mrs Yap has contended all along.

38 In Mrs Yap's application papers there is a lengthy affidavit in which Mrs Yap raises again the allegations concerning the alleged inadequate preparation and presentation of her case before Commissioner Martin.

39 Mrs Yap drew our attention to various passages in the papers which she says support her contentions. The problem Mrs Yap has is that in the hearing before Commissioner Martin she made the same allegations as she now makes. Commissioner Martin heard the evidence which

Mrs Yap wished to produce and did not accept that Mrs Yap had in any way been overborne or unjustly dealt with.

40 Mrs Yap told us that the six cheques at page 7 of her papers had not been presented at any Court hearing. The total of those cheques is $74,860. She says the respondent was negligent in not bringing these cheques before any Court.

41 Mrs Yap said that she knew this when she appeared before Commissioner Martin but the facts were "overpoweringly, deliberately misrepresented".

42 The problem arising from that is that following the hearing before Commissioner Martin and approximately 12 months later, Mrs Yap appealed to the Full Court of this State - I have already referred to the reasons of the Chief Justice which were given on that occasion. Mrs Yap then appealed to the High Court and her application for leave to appeal was refused on 22 October 1998.

43 With respect to the alleged deliberate misrepresentation of facts which is referred to in page 4 of the papers in this application - see 3(2) - those facts were raised in the hearing before Commissioner Martin. The learned Commissioner stated at page 13 of his reasons for judgment that "as the case progressed Mrs Yap abandoned her attacks against" the solicitor concerned. Mrs Yap then had further chances to fully argue those questions before the Full Court of this State in July 1997 and in the High Court of Australia in October 1998. Having failed in her hearings before Commissioner Martin and then in both the Full Court of Western Australia and in the High Court Mrs Yap cannot now reargue her case unless she has fresh or new evidence which was not available to her at the time of those hearings.

44 I have been unable to locate any fresh or new evidence in the papers which Mrs Yap has provided or in her oral submissions before this Court, which could result in an order for another hearing of the action which was heard by Commissioner Martin. In my opinion, Mrs Yap has not presented any evidence which should persuade this Court that the action should be re-opened.

45 I would therefore dismiss Mrs Yap's application for a rehearing of action DC6202/93 in the District Court.

46 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Wallwork J, to which I have nothing to add.

47 In the light of the history of the matter it seems to me that this application, which I take to be for a new trial on the ground of fresh evidence, is not competent; but in any event the evidence relied on is not fresh in any relevant sense.

48 I agree that the application should be dismissed.

49 PARKER J: Essentially for the reasons published by Wallwork J I agree that the application should be dismissed.

Yap v Granich & Associates [2002] WASCA 330

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Judgment (67 paragraphs)

Yap v Granich & Associates [2002] WASCA 330 (4 December 2002)

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