West v Secure Funding Pty Ltd
[2020] QCA 296
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- Unreported Judgment
- West v Secure Funding Pty Ltd[2020] QCA 296
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West v Secure Funding Pty Ltd[2020] QCA 296
West v Secure Funding Pty Ltd[2020] QCA 296
SUPREME COURT OF QUEENSLAND
CITATION: | West v Secure Funding Pty Ltd [2020] QCA 296 |
PARTIES: | MICHELE WEST (applicant) v SECURE FUNDING PTY LTD (FORMERLY LIBERTY FUNDING PTY LTD) ACN 081 982 872 (respondent) |
FILE NO/S: | Appeal No 12863 of 2020 DC No 1373 of 2017 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Security for Costs Application for Stay of Execution |
ORIGINATING COURT: | District Court at Brisbane – Date of judgment: 21 October 2020 (Burnett DCJ) |
DELIVERED EX TEMPORE ON: | 18 December 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 and 18 December 2020 |
JUDGE: | Mullins JA |
ORDERS: | Application filed 11 December 2020 for security for costs:
Application filed 30 November 2020 for stay:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant concedes that she was impecunious – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal – whether there should be an order for security as to costs in respect of the application for extension and any appeal PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where the respondent is the registered mortgagee and the applicant is the registered owner and mortgagor of the real property – where the respondent was successful in the trial before a jury in its claim to recover possession of the mortgaged property and where the applicant’s counterclaim was dismissed – where the applicant had not filed the notice of appeal in time and requires an extension of time to appeal – where the applicant had not shown that she has any reasonable prospects on her appeal – where the applicant concedes that, subject to her counterclaim, she is in default under the mortgage – whether the application for stay should be granted Uniform Civil Procedure Rules 1999 (Qld), r 761(2), r 772 JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, cited Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, cited Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, cited |
COUNSEL: | The applicant appeared on her own behalf C J Conway for the respondent |
SOLICITORS: | The applicant appeared on her own behalf Norton Rose Fulbright Australia for the respondent |
- [1]In the District Court after a trial before a jury the respondent Secure Funding Pty Ltd was successful in its claim as the registered mortgagee to recover possession of the property situated at Tecoma Road, Palmwoods from the applicant Ms West as the registered owner and mortgagor of the property. The applicant’s counterclaim was also dismissed. The judgment of the District Court was given on 21 October 2020. The jury answered 49 questions, including questions that were affected by their view of the credit of witnesses, and that determined the outcome of the proceeding in the District Court. The applicant was ordered to pay the respondent’s costs of the proceeding, including the reserved costs of the orders dated 15 August 2019 and 16 and 20 September 2019.
- [2]By application filed on 30 October 2020 the applicant sought an order in the District Court staying enforcement of the recovery of possession order pending the outcome of any appeal filed by the applicant. That application was dismissed by Judge Rosengren with costs reserved on 16 November 2020. The respondent applied for an enforcement warrant to enforce its judgment to recover possession of the subject property. That warrant was issued by the registrar on 17 November 2020.
- [3]The applicant’s notice of appeal was required to be filed by 18 November 2020, but it was not filed and served by that date. On 30 November 2020 the applicant filed an application for an extension of time to file the notice of appeal. Also on that date, the applicant filed an application seeking to stay enforcement of the judgment for possession. The applicant had also filed in the District Court on 30 November 2020 an application that the warrant for possession of the property be set aside. That application was dismissed with costs by Judge Porter QC on 30 November 2020.
- [4]On 11 December 2020, I commenced hearing the applicant’s application for a stay filed in the Court of Appeal. The respondent had foreshadowed applying for security for costs of the appeal. I therefore adjourned the hearing of the applicant’s stay application until today. In the meantime the respondent has filed and served its security for costs application which was set down for hearing at the same time as the stay application.
- [5]It is convenient to deal first with the security for costs application. It is brought pursuant to r 772 of the Uniform Civil Procedure Rules 1999 (Qld). The considerations that are relevant on this application take their context from the fact that the respondent has succeeded at trial before a jury against the applicant. The fact that the applicant has already “had her day in court” and lost before a jury is particularly relevant: see Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 at [3] and [9]. The proposed grounds of appeal appear to be directed at the manner in which the trial was conducted, which was the subject of directions hearings prior to the trial. The grounds of appeal do not relate to the directions actually given to the jury. The applicant has not endeavoured to show that she has any reasonable prospects on her appeal by reference to the matters in issue before the jury if she is successful in obtaining an extension of time to appeal. It is apparent from the material the applicant has filed in relation to her application that the applicant concedes that she is impecunious. It is therefore appropriate in all these circumstances that the applicant provide security for the respondent’s costs of the appeal. The respondent’s solicitors have estimated the costs of the appeal on the basis of a full two day hearing. In the circumstances, I consider it sufficient if the applicant is serious about pursuing her appeal that she provide security in the amount of $25,000 on or before 29 January 2021. The formal orders in relation to the security for costs application are therefore:
- On or before 29 January 2021, the applicant must provide security for the respondent’s costs of the application for extension of time to appeal and any appeal in the amount of $25,000.
- The security required by order 1 be provided by payment into Court or in such other form as the registrar of the Court permits.
- Costs of the application filed on 11 December 2020 are reserved.
- [6]The respondent takes the point that there is no jurisdiction to grant a stay pursuant to r 761(2) of the UCPR, as there is no appeal on foot, because the applicant has applied for an extension of time to bring the appeal: see Stone v Copperform Pty Ltd [2002] 1 Qd R 106 at 107. The Court retains the inherent jurisdiction to grant a stay of enforcement in appropriate cases: see JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243 at 257 and 259. The test to be applied on whether or not a stay should be granted is whether it is an appropriate case for a stay. Relevant factors are whether there is a good arguable case, whether the applicant would be disadvantaged if a stay were not ordered, whether there is some competing disadvantage to the respondent should the stay be granted which outweighs the disadvantage suffered by the applicant if the stay is not granted.
- [7]The matters that are raised by the applicant to support the stay are the broken femur she sustained on 2 November 2020 in respect of which she has been advised that it will take six weeks before she is mobile again, that she does not believe that she will be able to find accommodation that she can afford that will house herself, her mother, her son and his wife and child and that she asserts that she will succeed on the appeal.
- [8]It is relevant that the applicant has already failed in at least one attempt in the District Court to preclude the enforcement of the respondent’s judgment. The applicant purports to rely on the document that was used by the respondent to attract funds to the investment scheme pursuant to which the loan was made to her by the respondent to assert that it was always contemplated by investors that there was no guarantee in relation to their investment in residential mortgages. The applicant asserts that demonstrates that no loss would occur to the respondent due to her default under the mortgage contract. The document that the applicant relies on is one that governs the relationship between the respondent and investors and not one that affects the relationship between the respondent and the applicant. It was also not a document that was adduced in evidence in the District Court. It is therefore totally irrelevant to the applicant’s prospects of successfully appealing against the District Court judgment. The applicant was given leave to file a further affidavit today in the course of the hearing. The applicant disputes the various amounts that have been debited against her load account with the respondent and is seeking now to pursue her rights as a third party payer of the legal fees that the respondent’s solicitors have charged the respondent which have been debited against the loan account between the applicant and the respondent. The applicant also raises issues about the entitlement of the respondent to pursue those legal fees when, if the respondent succeeds on her appeal in respect of the counter-claim, she is hopeful of establishing that she was not in default because of unconscionable interest charged by the respondent and that she will be able to, in effect, reverse the enforcement expenses that have been debited against her loan account by the respondent. It is apparent there are ongoing issues between the parties as to the amount that is properly owed by the applicant to the respondent.
- [9]The applicant accepts that she borrowed the principal sum of $390,000 and calculates that over the years that she has repaid an amount of $376,000, some of which would have been attributed to interest. If any moneys were owed by the applicant to the respondent, s 78(2) of the Land Title Act 1994 conferred the right on the respondent as mortgagee to recover possession of the property from the applicant from the time of the default. Although the respondent’s original claim was filed in 2012, the respondent ultimately relied on a notice of default given in July 2018. It took over two years for the matter to be finalised at a trial. I can infer that even from July 2018 significant funds have been expended by the respondent in endeavouring to enforce the mortgage and to obtain the judgment of the Court for recovery of possession. The judgment of the Court after a trial is not a provisional judgment. It is only if there was an appellable error that the applicant can succeed on the appeal (if the extension to appeal is granted) and the existence of an appellable error in respect of the judgment for recovery of possession is not apparent on the material that has been relied on by the applicant. There was no offer by the applicant to pay any money to the respondent pending the hearing of the application to extend the time to appeal. The strength of the respondent’s position is found in the nature of the claim it pursued to judgment which was only for recovery of possession of the mortgaged property where the applicant concedes that, subject to her counterclaim, there was money owed by her under the mortgage to the respondent. That is a compelling consideration against the personal convenience for the applicant and her family for not giving up possession of the mortgaged property pending the outcome of any appeal. The applicant has been given a notice to vacate by the bailiff or enforcement officer who has commenced steps to implement the warrant for possession. It is apparent though that any eviction will not be enforced until 20 January 2021 from the information provided by the enforcement officer to the applicant and the respondent.
- [10]Despite the applicant’s extensive and articulate written and oral submissions, I am not persuaded that in view of the delay of three months from the judgment of the Court until the anticipated enforcement of the eviction on 20 January 2021 that it is either an appropriate case to order a stay or to defer further the enforcement of the warrant. The application filed on 30 November 2020 is therefore dismissed. I am prepared to make an order just that the applicant pay the respondent’s costs of that application unless there is anything that you wish to say about that, Ms West, or Ms Conway ... I will just make it the application filed on 30 November 2020 is dismissed with costs.