Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pachkovski v Australian Executor Trustees Ltd (No 2) [2011] NSWCA 95 Hearing dates: 8 April 2011 Decision date: 08 April 2011 Before: Hodgson JA at [1], [25]; McColl JA at [23]; Campbell JA at [24] Decision: Application for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - Application for leave to appeal out of time - No appearance for applicants on date appointed for hearing - Whether documents supplied by applicants supported the granting of leave. Cases Cited: Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 Australian Executor Trustees Ltd v Pachkovski [2010] NSWSC 1089 Category: Principal judgment Parties: Alexandre PACHKOVSKI (first applicant) Violetta PRIMANZON (second applicant) Grigoriy PRIMANZON (third applicant) AUSTRALIAN EXECUTOR TRUSTEES LTD (ACN 007 869 794) Representation: Counsel: No appearance (applicants) J SIMPKINS SC (respondent) Solicitors: Self-represented (applicants) Gadens Lawyers (respondent) File Number(s): 2009/295053 Decision under appeal Citation: Australian Executor Trustees Limited v Alexandre Pachkovski & Ors [2010] NSWSC 1089 Date of Decision: 2010-09-24 00:00:00 Before: Hidden J File Number(s): SC 2009/295053 Judgment 1HODGSON JA: On 24 September 2010, Hidden J determined proceedings in which the respondent, Australian Executor Trustees Ltd (the mortgagee), sought possession of land owned by the applicants at Rowe Street, Woollahra, holding that the mortgagee was entitled to possession of the property, and to recover the sum outstanding under the loan agreement which was secured by the applicants' mortgage: see Australian Executor Trustees Ltd v Pachkovski [2010] NSWSC 1089. 2On 12 October 2010, the primary judge gave judgment in favour of the mortgagee for a sum of just under $3 million, and ordered that the applicants give possession of the land. 3On 17 December 2010, the primary judge made an order dismissing a cross-claim that had been put on by the applicants. 4On 24 November 2010, the applicants applied for leave to appeal out of time from the primary judge's decisions. The application was listed for hearing before the Court today, on the basis that if leave was granted, the appeal would be disposed of without a further hearing. 5The applicants did not appear to-day but sent a letter to the Court applying for an adjournment. For reasons given this morning, that adjournment was not granted and the Court proceeded to hear the matter. 6In so doing, the Court had regard to documents provided by the applicants, including an 11-page document entitled "Argument to summons seeking leave to appeal". The Court was also assisted by Mr Simpkins SC, who appeared for the mortgagee. 7Previously, on 23 February 2011, McColl JA had determined a motion brought by the mortgagee seeking summary dismissal of the application, and also seeking the lifting of a stay previously granted on the primary judge's order. McColl JA lifted the stay, but declined to summarily dismiss the application: see Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23. 8In her reasons, McColl JA stated the background of the matter, and stated the issues raised on the application; and I will not repeat that statement here. While her Honour considered the foundation of the appeal slender, she did not have the high degree of certainty required to warrant dismissing the appeal. 9One matter particularly referred to in her judgment was an apparent discrepancy between the loan application signed by the applicants, which was expressed to be for a residential mortgage loan, and the documents recording the loan granted, which was described as a cash flow manager loan. Her Honour also noted that the application expressed that the interest was to be fixed, whereas the loan agreement documents expressed the interest as variable. 10This Court has now seen the documents which were before the primary judge, but not before McColl JA. It is apparent from those documents that any variation between the terms of the loan application and the terms of the loan agreements are not of continuing significance, if it be the case that the loan agreements, as presented to the Court, were the documents signed by the applicants. 11That was in fact the substantial issue that was in contest before the primary judge. It was the contention of the applicants before him that the loan documents that they signed did not contain pages which were included in the loan documents submitted to the Court. It was contended for the applicants that these pages, which they say they did not accede to, provided for an interest rate of 8.4% rather than 6.4%, and provided for default interest of another 4%, these being the particular complaints raised before the primary judge. 12The determination of that issue was a question of fact, determined by the primary judge on the basis of witnesses who gave evidence before him. 13The documents that had been provided by the applicants, including the draft notice of appeal and the submission document to which I have referred, raise no ground of any substance which could possibly justify appellate intervention concerning that determination of fact by the primary judge. 14One particular suggestion made in the submission document is that the evidence of the person who arranged the mortgage, one Michael Blier, supported the applicants' version, and that that evidence should have been accepted in preference to that of witnesses called for the mortgagee. 15In my opinion, there is no substance whatsoever in that suggestion. I note, among other matters, that a document signed by Michael Blier refers to a loan identified as a CFM loan, which has been identified as being the cash flow manager loan of the kind ultimately signed, and also refers to an interest rate of 8.45%, this being closer to the 8.4% provided by the mortgage document than to the 6.4% contended for by the applicants. 16I will refer to other issues raised by the documents provided by the applicants. 17There is a contention that one of the signatures of the applicants was forged. That was a matter originally raised in a cross-claim before the primary judge, but then contradicted by a defence provided before the primary judge and ultimately abandoned before the primary judge. That is not a matter then that would now support an appeal. 18There is a contention that the signature of behalf of one of the applicants by her mother purportedly under power of attorney did not bind that applicant. That was not the submission made before the primary judge. If it had been, then no doubt there could have been more evidence concerning the matter. Further, the mother, before the primary judge, relied on that power of attorney to be given a right of appearance before the primary judge. Again, that is not a matter that could possibly now support an appeal. 19There are contentions that the mortgagee and people on behalf of the mortgagee were guilty of false and misleading conduct in relation to the loan and mortgage. That too is not a matter that was raised before the primary judge, and cannot now be raised for the first time on appeal. 20Similarly, there are claims made that might be relevant to relief under the Contracts Review Act 1980 or possibly under the Consumer Credit Code . Those matters were not raised before the primary judge, and cannot now be raised. 21There is a complaint that the primary judge did not, in his principal judgment, deal with the cross-claim put on by the applicants. However, all the outstanding issues raised by the cross-claim were the same as issues raised by the applicants' defence to the mortgagee's claim. So the judgment did, in substance, deal with the cross-claim, and it supported the order subsequently made by the primary judge dismissing the cross-claim. 22In my view, that deals with all the matters which could conceivably be of substance in the grounds of appeal and submissions raised by the applicants; and for those reasons, in my view, the Court should dismiss the application for leave to appeal with costs. 23McCOLL JA: I agree. 24CAMPBELL JA: I agree. 25HODGSON JA: The judgment of the Court is: Application for leave to appeal is dismissed with costs. ****** 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: 13 April 2011