ROWETT v WESTPAC BANKING CORPORATION [1993] NSWCA 240

ROWETT v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 29 November, 2, 3 December 1993

[1993] NSWCA 240

In 1987 the claimants borrowed moneys from the opponent Bank on the security of a mortgage of their property in Kenthurst. The mortgage was registered under the Real Property Act and its validity was never challenged. On 18 June 1993 Allen J entered judgment in favour of the bank for $604,743 and for possession of the mortgaged property. At the trial the first claimant appeared in person and requested that a cross claim brought by her and her mother, the second claimant, be withdrawn. Allen J ordered a separate trial of the issues raised by this cross-claim. The time having expired for filing a notice of appeal, the claimants applied for an extension of time and for a stay of execution on the judgment.

Held: (1) While the Court is generally willing to cure procedural defaults in complying with time limits and other requirements of the Rules, it will not do so where the proposed appeal would be futile. Gallo v Dawson (1990) 64 ALJR 458 applied; (2) In considering whether a proposed appeal would be futile, the Court should limit its attention to the evidence before the trial Judge and any further evidence that would be admissible as fresh evidence on appeal (3) The fact that a party appeared in person at the trial in itself cannot rovide any basis for receiving fresh evidence on appeal outside the established principles for the reception of such evidence. (4) 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 he or she will ordinarily suffer when faced by a lawyer, but the Court should not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented person or act as the legal adviser or legal representative of the unrepresented party. Rajski v Scitec Corporation (unreported, 16 June 1986, Court of Appeal applied); (5) The proposed appeal against the judgment for possession had no appreciable prospects of success. (6) Accordingly the application for a stay of execution of the writ of possession should be refused.