Zippoz Pty Ltd v National Australia Bank Ltd

Judgment subject of the application 6Before the trial judge were six separate proceedings brought by the Bank seeking monetary judgments against three individuals and two companies (including the applicant), together with orders for possession of 17 separate properties owned by the various defendants (including one owned by the applicant). He noted that loans had been extended by the Bank in the years 2004 to 2006 in an amount exceeding $7.7 million: at [3]. The mortgagors ceased repayments in February 2007. The only issue at trial was whether the Bank was estopped from proceeding against the defendants on the basis of a conversation which allegedly took place between Ms Rosa Caporale and an officer of the Bank (Mr Vale) indicating that the mortgagors would be permitted to defer or capitalise payments of instalments until a proposed development "had reached a more advanced stage". So far as the evidence goes, the development never reached any stage, let alone an advanced stage, although a similar development may have proceeded on land not owned by any of the defendants or the subject of the mortgages the subject of the proceedings below. 7The early history of this matter is outlined in a judgment of this Court, dealing with an application (unsuccessful) for leave to appeal against entry of default judgments: Zippoz Pty Ltd v National Australia Bank Ltd [2011] NSWCA 164. Further procedural history was set out by the primary judge at [5]. 8The judgment under appeal set out the evidence of Ms Rosa Caporale as to her dealings with the Bank and the evidence of Mr Vale, the Bank officer who was alleged to have made the relevant representations: at [12]-[78]. Dealing with the evidence up to May 2009, the primary judge made the following comments: "79 First, whatever may have been the position prior to this stage, by no later than April 2009 NAB had made it absolutely clear to Ms Caporale that it intended to pursue its rights of enforcement. 80 Second, by this time Ms Caporale was asserting that she had some kind of agreement or understanding with NAB that there would be no such enforcement until the project had been completed. While she may have been asserting that, the findings that I have already made involve a rejection that any such understanding on her part had any proper objective basis. 81 Third, it follows from my acceptance of Ms Caporale's evidence on this part of the conversation, that Mr Hatter made reference to the Bank recovering 'capitalised interest'. However, that assertion does not advance the defendants' case. For the reasons I have already explained, the loan agreements made provision for interest to be capitalised, and that did not prevent there being a default nor was it inconsistent with the NAB pursuing its rights of enforcement." 9The reasons then set out the subsequent history up to the time at which proceedings were commenced, in June 2010. That date was, the judge noted, "over three years after interest payments ceased and over fourteen months after Mr Hatter made the NAB's position clear" that no repayment holiday was accepted: at [82]. He concluded at [88]: "The NAB did not represent to Rosa Caporale that it would not take action to recover what was owing to it, or enforce its securities pending the pursuit by her and the Caporale interests of the ... project. The context of all the discussions between her and the representatives of the NAB was that the latter were raising their concerns about the outstanding payments, and that she was seeking to allay those concerns by pointing to the positive prospects of the ... project. Whether or not the NAB extended considerable latitude to Ms Caporale and the other defendants because of bureaucratic tardiness or conscious inaction in an attempt to extend an indulgence to its customers is not clear, and does not matter. At no point did the NAB ever state that it would preclude itself from enforcing its rights until some unspecified point in the future development of the [project]." 10The judgment from [89]-[95] dealt with the paragraphs by which the claim of estoppel was pleaded. The judge then noted that "there is no evidence that the defendants suffered any relevant detriment by any alleged alteration of their position in reliance on any assurance by NAB that it would defer or capitalise interest until a particular stage of the ... project was reached": at [96]. His conclusions in rejecting the estoppel claims were further summarised as follows: "98 First, the claim fails at the outset because I find that there was no representation of the kind contended for by the defendants, namely, that the NAB would permit the defendants not to pay their interest or principal instalments, but instead would permit interest to be deferred or capitalised until a particular stage of the development of the ... project was reached. 99 Second, even if I had accepted Ms Caporale's evidence as to what the various NAB officers had stated to her, I do not consider that they would establish the making of the pleaded representation. Any such representation must be "clear and unambiguous" (Foran v Wight [1989] HCA 51; 168 CLR 385 at 411.1 per Mason CJ, and Legione v Hateley [1983] HCA 11; 152 CLR 406 at 435 to 437). None of the statements that Ms Caporale attributes to the NAB officers involves any clear or unambiguous statements by them, or acceptance by them, that the interest and principal payments could be deferred until some future stage of the development of the ... project. At most, they amounted to a statement that the NAB officers might consider any detailed proposal put forward by the defendants to allow a restructuring of their loans. 100 Third, the defendants have not established any relevant form of reliance on any relevant representation. As I have explained, the only relevant act that was identified in the evidence as having taken place prior to Mr Hatter's statements in 2009 was exchange on the property at Dapto. It was Sappia that exchanged and the involvement of each or any of the defendants in the financing of Sappia to exchange was not explored. 101 Fourth, there is no evidence that the defendants have suffered any detriment from NAB's (alleged) resiling in 2009 from what was said to be its earlier position that payments could be deferred until some future point in the development of the [project] (Walsh at [12]). This is particularly the case given the lapse of a further fourteen months between Mr Hatter's statement and the commencement of proceedings for recovery. The consequence is that it was not unconscionable for NAB to advise them in 2009 that it would pursue its enforcement rights, and then do so in June 2010." 11The conclusions and orders then set out the results in each of the proceedings; the following conclusions were noted in respect of the present applicant: "112 In proceedings No 2010/150149, NAB sued Zippoz in respect of a loan facility for $1,080,000.00 which was advanced on 9 May 2005. As at 14 August 2012 the total amount owing was $1,420,390.00 with interest of $247.88 accruing daily. As at 31 August 2012 the total indebtedness is $1,424, 603.96. There will be a judgment in favour of NAB for that amount. 113 These loans were secured over a property at Lilli Pilli. I will enter judgment for possession of that property and grant the NAB leave to issue a writ of possession."

Post-judgment proceedings 12Since the judgment was delivered and the orders made, there have been a number of applications for stays by various defendants. Each of the applications in the Common Law Division was unsuccessful. Their present relevance is in relation to the delay in bringing this application. 13Some four days before the expiration of the time within which the applicant needed to file a notice of intention to appeal or a notice of appeal, in the event that it wished to pursue an appeal, it filed a notice of motion in the Common Law Division seeking a stay "for all the matters ... in order to allow all the defendant [sic] to prepare an application to set aside the judgment of the 31st August 2012": Order 1. The document identified no matters, nor did it join any other party. An affidavit in support named Ms Caporale as the only defendant and alleged that "the defendant" sought a stay in order to prepare "an application to lodge a claim for damages/cross-claim". 14According to the transcript of a hearing before Adamson J on 9 October 2012, all of the six matters determined by the trial judge were listed and Ms Caporale appeared "in person" for all defendants. The following exchange took place immediately after appearances had been announced: "HER HONOUR: ... In order to, as you say, set aside the judgment the only part of this court that could alter that judgment is the Court of Appeal. DEFENDANT R CAPORALE: Right. HER HONOUR: So that's not something that a single judge could do. And the judgment having been delivered on 31 August, you have, I think, 28 days to file a notice of appeal. DEFENDANT R CAPORALE: Right. HER HONOUR: Have you filed a notice of appeal against this judgment? DEFENDANT R CAPORALE: No. ... my understanding was to set the judgment aside and I had to do that within 28 days. In fact, we did this in the 21st day .... So if that is the case, your Honour, then I'll probably have to be seeking leave, I guess, to be able to lodge the appeal. My concern this morning, your Honour, is really that the bank has proceeded to possess one of the properties and has put the locks in, and that's my concern, is probably having a stay on enforcement of judgment and proceeding to dispose of any of the properties to allow us to, if that's the case, then to be able to also seek leave to file an application in the Court of Appeal." 15In an ex tempore judgment refusing the application (which is not available on Caselaw) the judge stated at [3]: "Ms Caporale seeks a stay of all of these orders in order that the defendants ... have time to prepare an application to lodge a new defence and also to lodge a cross-claim for damages against the bank. Ms Caporale appeared to be under the misapprehension that a single judge of this court would have power to set aside the judgment of Beech-Jones J. However, once it was brought to her attention that any challenge made to that judgment would need to be made to the Court of Appeal she endeavoured to make submissions about the reasons why a stay should be granted pending a challenge to that decision by leave to the Court of Appeal." 16Whatever difficulties Ms Caporale may have laboured under as a lay person engaged in litigation, the steps to be taken in order to challenge the judgment below were known by her and understood no later than 9 October 2012. 17On 23 October 2012 she filed a further notice of motion seeking a stay in similar terms to the motion refused by Adamson J. That motion came before Beech-Jones J on 25 October 2012. The trial judge set out various matters relied on by Ms Caporale and stated (again in a judgment not published on Caselaw) at [4]: "These aspects of the motion are entirely misconceived. The orders that were made on 31 August 2012 were final orders that followed a final hearing. Absent certain extraordinary grounds which have not been adverted to, the only means of challenging the orders and the judgment behind it is by way of appeal." 18On 13 November 2012 the defendant Caporale Buildings Corporation Sydney Pty Ltd filed a notice of motion in the Common Law Division seeking further stays "till a date after the 19th November 2012 which is suitable to the court to allow the advice and anticipated appeal application to be completed and filed and served and appear before the court ...". Ms Caporale swore an affidavit dated 12 November 2012 noting that earlier applications had been refused by Adamson J and by Beech-Jones J and, in respect of the latter, that the refusal was on the grounds that "a draft appeal had not been included": Affidavit, paragraph 12. Annexed to the affidavit was a solicitor's letter dated 12 November 2012 and stating: "We are unable to advise on the issues of the maintainability of an appeal in the substantive proceedings and/or an appeal, or application for leave to appeal, in respect to the refusal of the stay application (or, indeed, about whether a further stay application should be made) in the time available before 9.30am on Wednesday, 14 November 2012." 19The motion came before Latham J on 13 November 2012 and was refused. In a judgment not published on Caselaw, Latham J stated: "9 The height of the defendant's submission is that a solicitor has been engaged to consider the prospects of an appeal. There is no prospect of a successful appeal against Justice Beech Jones' decision unless the findings of fact underpinning the judgment are capable of being set aside by the Court of Appeal. On my understanding of the proceedings before Beech Jones J, this was not a case where those essential findings of fact could be seen to be 'glaringly improbable' or 'contrary to compelling inferences' in the case: see Fox v Percy [2003] HCA 22 at [29]. 10 The failure of the defendant to lodge a notice of appeal is particularly significant in the light of the hearing of a notice of motion filed 24 September 2012 before Adamson J on 9 October 2012. Justice Adamson's decision dismissing the notice of motion the same day reveals that the defendant made the same application that is being made before me .... Justice Adamson's judgment notes that it was brought to Ms Caporale's attention that any challenge to the judgment would need to be made in the Court of Appeal. ... 11 It is apparent therefore that Ms Caporale has been under no misapprehension since 9 October 2012 about the proper avenues by which an appeal against Justice Beech Jones's decision of 31 August ought be pursued. Notwithstanding that knowledge, Ms Caporale and the defendant took no steps towards mounting an appeal beyond instructing a firm of solicitors on or about 9 November to consider the matter. 12 Such tardy and leisurely steps purportedly taken to protect the defendant's asserted interests in the subject property are wholly inconsistent with the duty of the parties to assist the Court in facilitating the quick, cheap and just resolution of the dispute between them. More importantly, the plaintiff has been repeatedly deprived of the fruits of the litigation since August in circumstances where the defendant's indebtedness is approximately triple the amount capable of being realised from the sale of the various properties. No error in Beech Jones J's judgment has been identified by the defendant. ... 14 In all of the above circumstances, there is absolutely no merit in the defendant's argument for a stay." 20Not deterred by the unequivocal statements set out above, Ms Caporale brought a further motion on behalf of the applicant, filed on 28 November 2012, seeking a stay of the order for possession of the applicant's land. The affidavit related solely to the circumstances in which a notice to vacate had been served on those in occupation of the land. The motion came before Simpson J on 28 November 2012. The motion was rejected. The judge stated (judgment, p 2): "It is not asserted in these proceedings and nor could it be that there was any error on the part of Beech-Jones J. Indeed, Ms Caporale told me from the Bar table that she had sought a stay of the judgment delivered from his Honour and that was refused. The only avenue for a stay on the basis of any such error, therefore, lies in the Court of Appeal." 21On 29 November 2012 the applicant sought a stay in this Court in relation to the writ of possession granted over land held by it at 701 Port Hacking Road, Lilli Pilli. A stay was granted by Young AJA on conditions, breach of any one of which would mean that a fresh writ of possession might issue forthwith: order 1. One condition was that the Bank be paid $20,000 by 4pm on Friday, 30 November 2012. It was common ground that that condition was met. A further condition was that an "application for leave to appeal" be filed by 7 December 2012. An affidavit by Ms Caporale annexing a draft notice of appeal was filed on that date. It named Ms Caporale herself as the "appellant". 22The Court file contains a document, apparently filed on 12 December 2012, purporting to be a notice of motion in the Common Law Division in the proceeding involving the other corporate defendant, Caporale Builders Corporation Sydney Pty Ltd, seeking "a stay for writ of possession of all properties ... listed in the judgment" of the primary judge. There is a handwritten annotation on the front page of the motion "no listing". There is no record of any orders being made in response to any motion filed on 12 December 2012. 23Ms Caporale's affidavit of 7 December referred to a bundle of documents which was not before this Court. Further, a white folder was filed on 14 January 2013, which was also not before this Court. However, the Bank asserted that the draft notice of appeal in the white folder was substantially different from that provided on 7 December and that now relied on.

Application to extend time 24The Bank submitted that the application for an extension of time should be refused on the primary ground that the proposed appeal was devoid of merit and that an extension of time to permit it to proceed would be futile. The principles relied upon were stated by Brennan CJ and McHugh J in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7], namely that such an application seeks to put at risk the substantive rights of the respondent and that "where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success". 25The Bank also submitted that the applicant had had ample opportunity to formulate appropriate grounds of appeal and should not be given a further indulgence if it were accepted that the grounds as presently drafted were hopeless. In support of that submission, the Bank referred to the post-judgment history of the proceedings. Because an extension of time should not normally be granted in the absence of a satisfactory justification for delay, it is convenient to deal first with that aspect of the matter.

(a) delay 26In a possession matter, delay, if unexplained, is a significant factor militating against an extension of time. No doubt the complexity of the proceedings below, involving multiple parties and properties, may have caused a person without legal training some difficulty. Nevertheless, there was no evidence that the company was unable to obtain legal assistance: on the contrary, there was evidence that it had instructed a solicitor to brief counsel for advice on a possible appeal and that, when a condition of a stay imposed by Young AJA involved the payment of $20,000 within 24 hours, the condition was complied with. Further, there appears to have been no attempt to come to grips with the consequences of one party rather than all seeking to challenge the judgment below or seeking interlocutory relief in respect of the orders made. Again, these matters may be confusing to the legally untrained, but where a family business operates through a number of separate entities and landowners, the individuals concerned may be expected to understand the legal significance of the structure they have adopted. 27The history set out above calls for a clear explanation as to why no attempt was made to challenge the judgment of the trial judge expeditiously, if not within time, then at least shortly after 9 October 2012. Ms Caporale's explanation was substantially limited to the expenditure of time and energy on the unsuccessful stay applications in the Common Law Division. There was no indication as to when legal advice was first sought, or even whether the advice which was apparently sought in November was in fact obtained. In short, no satisfactory justification was provided for the delay. 28Although it would not be inappropriate to refuse an extension of time on this ground alone, that step should not be taken without taking into account the prospects of success on appeal. The failure to explain the delay satisfactorily does, however, permit a higher standard to be imposed on the prospects of success than would otherwise be appropriate.

(b) whether arguable grounds 29The Bank noted that the claim for estoppel had failed, on the evidence, at each essential point, namely: (a) the Bank did not make any representations of the kind contended for by the defendants: see [88], [90] and [98]; (b) none of the representations that the defendants alleged involved clear or unambiguous statements: at [99]; (c) the defendants failed to establish any relevant form of reliance on any relevant representation: at [100], and (d) there was no evidence that the defendants had suffered any detriment from the Bank allegedly resiling in 2009 from the alleged representations: at [101]. 30The case before the trial judge turned on the evidence given by Ms Rosa Caporale for the applicant, and Mr Vale, for the Bank. To the extent that the judge rejected Ms Caporale's evidence and accepted that the conversations were probably in the terms indicated by Mr Vale for the Bank, no arguable error has been demonstrated. Ms Caporale submitted that the trial judge had approached the evidence with a mind closed to the possibility that Ms Caporale's account might be true, whatever the unlikelihood that the Bank would have approved of its officer making the representations he did. However, the reasons for judgment reveal no such "mindset". Whilst the demeanour of the witness and the manner in which testimony is presented are not disregarded, it is commonplace, and usually desirable, that a trial judge assess conflicting testimony against the likelihood of one proposition rather than another being more probable, in accordance with common experience. The assessment made was in accordance with the objective probabilities, based on the surrounding circumstances. No basis has been shown for this Court on an appeal to interfere with the findings of fact. 31The applicant's submissions, set out by Ms Caporale in the draft notice of appeal, complained that proffered evidence was improperly rejected by the primary judge. The evidence was not identified and no transcript reference was given to the judge refusing to allow further evidence to be adduced. In the course of oral submissions, Ms Caporale suggested that the rejected evidence might have included a list of purchasers for a development undertaken at Dapto, together with evidence of other events occurring after the proceedings commenced. She submitted that such evidence would have been relevant to the question of "detriment" resulting from the Bank resiling from its representations. 32In response, counsel for the Bank noted that five volumes of exhibits to Ms Caporale's affidavit of 1 December 2011 had been admitted and may well have contained the material referred to. The Bank further noted that a more plausible basis for the ground of appeal may have been a judgment delivered on 17 August 2012, a copy of which had been provided by the Bank with its materials, in which the trial judge had rejected an application by Ms Caporale for further time to produce evidence in support of the proposition that the project for which the funds had been obtained had reasonable prospects of success. That evidence was proposed in response to a submission by the Bank that the estoppel claim should be rejected because there were no reasonable prospects of the project being successful: judgment at [1]. That ground had not been pleaded and was ultimately withdrawn by counsel: judgment at [3]. If that were the basis for the impugned refusal of an opportunity to adduce further evidence, it is unimpeachable. In the absence of any other suggested basis, the ground is without substance. 33Two other specific grounds require to be addressed. The first, ground 10 (using the paragraph numbers in the notice, where the grounds commence at 8), alleged that the trial judge set the threshold for proof for promissory estoppel too high. In support of that ground reference was made to an unsourced statement by Tobias JA. However, with the assistance of the Bank's solicitor, the quotation was traced to Galaxidis v Galaxidis [2004] NSWCA 111. There, after referring to the earlier decision of this Court in Australian Crime Commission v Gray [2003] NSWCA 318, Tobias JA stated at [93]: "In my opinion, the effect of this Court's decision in Gray is that even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely." [Emphasis in original.] 34In a passage relied upon from the Court's judgment in Gray, it appeared that the Court had in some degree lowered the standard of clarity and lack of ambiguity identified by Mason and Deane JJ in Legione v Hateley [1983] HCA 11; 152 CLR 406 at 436-7. However, it is not necessary to inquire further as to the precise test. As the trial judge held in the present case, the "representation" proposed by the applicant was not capable, even if accepted in the terms proposed, of giving rise to the necessary element of unconscionability on the part of the Bank, in the departing from the "representation". 35The second specific matter, which appeared to find no home in the grounds of appeal, was that the trial judge had failed to deal with an argument based on the terms of the Bank's statement of claim. Paragraph 9 of that document stated that the defendant (Zippoz) "first went into default under the Agreement on or about October 2008 when it failed to make repayments as due under the Agreement". Ms Caporale submitted that if, as the Bank implicitly admitted, the first default occurred in October 2008, there had been no previous "default". Accordingly, the failure to make monthly repayments between March 2007 and October 2008 must have been because of the promise by the Bank not to require compliance with the terms of the agreement. She referred to clause 18 of the "Facility Agreement General Terms" which included a failure to pay on time as a ground of "default". 36However, as the Bank submitted, clause 19.1 of the General Terms required that the Bank give a notice requiring that the default be remedied within a specified period and that it is only upon the failure to rectify the default within the period allowed that the Bank is then entitled to sue for the amount owing or to enforce any security. The term "default" is not a term of art, but it is used to refer to a failure to comply with a default notice and is commonplace in such proceedings: see, eg, Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295, particularly at [57] and [64] (Meagher JA). It is accepted in the present case that a document described as "default notice and notice pursuant to s 57(2)(b) of the Real Property Act, 1900" dated 16 October 2008 was served on the applicant and that it was the applicant's failure to comply with the notice which grounded the entitlement to take enforcement proceedings. So understood, paragraph 9 of the statement of claim could not be relied upon for the inference identified by the applicant. 37Otherwise, the draft notice of appeal contained some 42 paragraphs setting out grounds. Most of the other grounds were unclear in their scope, without substance, or repetitive. However, for completeness, the following grounds should be noted. 38Ground 18 stated that the judge failed to find that the respondent's witness "was not a credible witness" whose evidence could not be relied on. The limitations on an appellate court intervening on such a basis in circumstances where the findings of the trial judge accord with what might objectively be expected in the circumstances, are well established. The ground was not, in any event, elucidated by reasons which would allow an appellate court to make such a finding, in accordance with the principles in Fox v Percy [2003] HCA 22; 214 CLR 118. 39Grounds 34-49 involved challenges to specific paragraphs of the reasoning of the trial judge. These included the challenges to the following: (a) the failure to find that the limitations on Mr Vale's authority within the Bank were not communicated to the appellant: grounds 34-37, 39 and [12], [22]; (b) the finding that Ms Caporale had presented no "concrete proposal" capable of "serious consideration": grounds 38, 42, 43 and [23], [27]; (c) the finding that the defendants could no longer pay the instalments on the loans, for reasons which were not revealed by the evidence: ground 40 and [25]; (d) the finding that the change, in late 2007 or early 2008, of the site for the proposed development to a site which was not the subject of security held by the Bank was significant from the Bank's perspective: ground 41 and [26]; (e) the finding that in the absence of any discussion with the Bank as to the nature of the project, the possibility of obtaining funds "from investors" was remote and uncertain and also constituted an inadequate basis for the estoppel: grounds 46, 47 and [29]. 40The reasons given by the trial judge were more than sufficient to demonstrate why he made the challenged findings. The appellant has failed to demonstrate an arguable case giving rise to a real prospect that such findings might be overturned. In those circumstances, no grounds have any real prospect of success. It has not been necessary to traverse them all because the applicant failed at several steps; as noted above, if it failed in its challenge at any one step, such as the making of the alleged representation, the appeal must fail. 41In these circumstances, the submissions put forward by the Bank were accepted. The application for an extension of time within which to appeal was refused and the stay in respect of the execution of a writ of possession with respect to the applicant's property was vacated. The applicant was ordered to pay the Bank's costs of the proceedings in this Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2013