Appeal Outcome: Special leave dismissed by the High Court, 31 March 2010 s301/2009 & s301/2009 [2010] HCASL 61 New South Wales Court of Appeal CITATION: SATCHITHANANTHAM v KING MORTGAGES; CASH KING Pty Ltd [2009] NSWCA 358 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 12/10/2009 JUDGMENT DATE: 12 October 2009 JUDGMENT OF: Tobias JA at 1 & 15; Campbell JA at 2 & 20; Handley AJA at 2 EX TEMPORE JUDGMENT DATE: 12 October 2009 DECISION: Appeal dismissed for want of prosecution and no order as to costs. CATCHWORDS: APPEAL - dismissed for want of prosecution - no question of principle. LEGISLATION CITED: Corporations Act, s 500(2) CATEGORY: Principal judgment Hemalathasomhy Ranjini Satchithanantham - First Appellant PARTIES: Thambiapph Satchithanantham - Second Appellant King Mortgages Pty Ltd - Respondent Cash King Pty Ltd - Respondent FILE NUMBER(S): CA 40034/07, 40035/07, 40036/07 & 40037/07 COUNSEL: Mr Sachi for the First and Second Appellants No appearance for Respondents LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 13736 and 12756 of 2004 LOWER COURT JUDICIAL OFFICER: Bell J LOWER COURT DATE OF DECISION: 08/12/2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040037/07 040034/07 040035/07 040036/07 TOBIAS JA CAMPBELL JA HANDLEY AJA Monday 12 October 2009 HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407 HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407 CATCHWORDS APPEAL: dismissed for want of prosecution – no question of principle. HEADNOTE A joint mortgagor appealed from the decision of Bell J on 8 December 2006 to confirm the mortgage for the principal debt, and reduce the interest rate from 90% per annum to 10%. The respondent mortgagee went into voluntary liquidation on 5 November 2008 and the appeal was then stayed pursuant to s 500(2) of the Corporations Act. The appeal was listed for hearing on 10 March 2009. It could not proceed because of the stay, and was stood over. Directions were given for the appellant to receive pro bono advice and assistance, and for the filing of an application under the Corporations Act for leave to proceed. The appeal was called over before the Registrar on four occasions before being fixed for hearing on 12 October. A notice of motion for leave to proceed was not filed until 9 October. HELD: The appeal should be dismissed for want of prosecution. ORDER Appeal dismissed for want of prosecution with no orders as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 040037/07 040034/07 040035/07 040036/07 TOBIAS JA CAMPBELL JA HANDLEY AJA Monday 12 October 2009 HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407 HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v KING MORTGAGES PTY LTD HEMALATHA SOTHY RANJINI SATCHITHANANTHAM & ANOR v CASH KING PTY LTD ABN 91 086 718 407 Judgment 1 TOBIAS JA: I will ask Handley AJA to deliver the first judgment. 2 HANDLEY AJA: The underlying proceedings are an appeal from the decision of Bell J given on 8 December 2006 with final orders made on 15 December. The parties included the two mortgagee companies, King Mortgages and Cash King, and initially the defendants were Mr and Mrs Satchi. However, at an early stage Mr Satchi sought and was granted leave to be dismissed from the proceedings. His wife continued to be represented by counsel. 3 Bell J ordered that the mortgage between Mrs Satchi and King Mortgages Pty Ltd be varied by reducing the rate of interest from 90% per annum to 10% per annum and varying some of the fees payable by Mrs Satchi. She made no orders as to costs. A similar order was made in proceedings between Cash King Pty Ltd and Mrs Satchi. 4 There are also proceedings pending between Mrs Satchi and the National Australia Bank. McCallum J made an order for possession in favour of the National Australia Bank in February 2009 and varied the mortgage in favour of the bank by reducing the principal sum. 5 An appeal by Mrs Satchi to this Court from those orders was dismissed on 2 September 2009 and the execution of the writ of possession was stayed until 1 November this year on condition that Mrs Satchi pay the bank $4,000 interest in the months of September and October no later than the fifteenth day of each of those months. The Court understands that there is an outstanding application to the High Court of Australia for leave to appeal. 6 The mortgage to Cash King Pty Ltd as varied by Bell J has been discharged by payment in full but the mortgage to King Mortgages Pty Ltd as varied by the orders of Bell J remains in force. The two companies went into voluntary liquidation on 5 November 2008 and these proceedings have been stayed pursuant to s 500(2) of the Corporations Act. 7 This matter was before the Court differently constituted on 10 March 2009 when counsel appeared pro bono for Mrs Satchi and Mr Satchi sought to appear in person seeking to be joined as a party to the appeal. It seems that that application is not being pursued. 8 The Court made orders vacating the hearing, standing the matter over to the Registrar and directing that any notice of motion for leave to proceed against the respondent companies be accompanied by copies of the appeal books and that any affidavits in support of the application be filed and served within five weeks from 10 March 2009. A notice of motion for leave to proceed was not filed until 9 October. A copy of the notice of motion made returnable before this Court was handed up by Mr Satchi this morning. 9 The Court orders of 10 March envisaged that pro bono legal advice and assistance would be provided to Mrs Satchi after the matter had been stood over. 10 The matter was called over before the Registrar pursuant to those orders on 4 May when there was an appearance for the appellant, presumably by Mr Satchi. The Registrar made an order for pro bono assistance which was acted on by notice to Ms Clarissa Amato of counsel on 19 May. 11 Ms Amato advised the Registrar on 10 August that she had given advice to Mr Satchi in writing and in conference but was no longer able to act for him and inferentially for Mrs Satchi in the proceedings and she returned the papers. Thereafter nothing effective was done until 9 October. 12 Mr Satchi represented to the Court, appearing by leave on behalf of his wife, that the Registrar of this Court had extended time for lodging an application for leave to proceed. The call over sheets for 4 May, 22 June when there was no appearance for any party, 13 July when there was an appearance by Mr Satchi it would seem, and 31 August when there was again an appearance by Mr Satchi, do not record an extension of time granted by the Registrar. In those circumstances it is clear that there has been a persistent failure to prosecute the present appeal with effect both before and after 10 March this year and I would propose in those circumstances that the appeal be dismissed for want of prosecution. 13 Having in mind the reasons for judgment of Bell J, the nature of her findings of fact, and the difficulty an appellant faces in challenging findings based on the Judge's view of the credibility of witnesses, the appeal appears to be without merit in any event and is likely to prove futile in the light of the proceedings brought by the National Australia Bank unless the High Court takes the unusual step of granting special leave to appeal. 14 In those circumstances, as I have said, I would propose that the appeal be dismissed for want of prosecution and that the Court should make no order as to costs. 15 TOBIAS JA: I agree and would simply add the following. By letter dated 14 April 2009 Mrs Satchi, as well as her husband, sought the leave of the Registrar to extend the time limited by orders 2 and 3 made by this Court on 10 March. It is not clear, as Handley AJA has indicated, whether that extension was granted. However, it is clear, as has been indicated, that on 19 May the matter was referred by the Registrar to pro bono counsel for the purpose of advising Mrs Satchi as to the prospects of her appeal from Bell J's decision succeeding. 16 I am prepared to assume in Mrs Satchi's favour that it was not unreasonable for her not to file an application for leave to proceed with the appeal until that advice was received, even though it appears that no extension of time until that advice was obtained was granted by the Registrar. Nevertheless, on 10 August that advice was provided and it is not difficult to discern from the letter sent by Ms Amato to the Registrar the nature of that advice. 17 The matter was then listed for directions on 31 August 2009 when the Registrar set it down for hearing today for the purpose of the appeal being dismissed for want of prosecution. For no explicable reason and notwithstanding the advice of 10 August and the fact that on 31 August the matter had been set down for today for the purpose of the appeal being dismissed for want of prosecution, it was not, as Handley AJA has indicated, until last Friday that Mr Satchi, on behalf of his wife, filed a notice of motion in this Court seeking leave to proceed against the liquidated respondents. The timing of that application is of concern and I do not accept that it is a genuine application. For those additional reasons I would agree with the order proposed by Handley AJA. 18 For those additional reasons I would agree with the order proposed by Handley AJA. 19 TOBIAS JA: The order of the Court is as proposed by Handley AJA. 20 CAMPBELL JA: I agree with both judgments and with the order proposed. ********** 04/11/2009 - Typographical error - Paragraph(s) 16 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.