Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hammond v J P Morgan Trust Australia Limited [2012] NSWCA 156
• Hearing dates: 14 May 2012
• Decision date: 14 May 2012
• Before: Tobias AJA

Decision

Applicant's notice of motion filed on 4 May 2012 is 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: PRACTICE AND PROCEDURE - leave to appear as lay advocate for wife on substantive hearing - stay of execution of writ of possession - order sought prohibiting any lawyer retained by respondent from taking any further part in the proceedings.
• Legislation Cited: Uniform Civil Procedure Rules r 51.36(2)
• Cases Cited: JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 213; JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 317; House v The King (1936) 55 CLR 499
• Category: Procedural and other rulings
• Parties: Tracie HAMMOND (applicant); JP MORGAN TRUST AUSTRALIA LIMITED (respondent)
• Representation: Counsel: Patrick Hammond (husband in person for appellant); P Newton (respondent); Solicitors: Unrepresented (appellant); Kemp Strang (respondent)
• File Number(s): 2012/124059

Decision under appeal

• Citation: JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 213; JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 317
• Before: Johnson J
• File Number(s): 2008/284105

Judgment

1 TOBIAS AJA: Before the Court is a notice of motion filed on 4 May 2012 on behalf of Tracie Hammond, the applicant, from two judgments of Johnson J, the first of 9 March 2012 (JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 213) and the second of 3 April 2012 (JP Morgan Trust Australia Limited v Hammond [2012] NSWSC 317).

2 In the first of those judgments Johnson J refused an application by the applicant's husband, Mr Patrick Hammond, for leave to appear as lay advocate for his wife on the hearing of the substantive proceedings which were to commence before his Honour on 3 April 2012.

3 Mr Hammond's application arose out of a directions hearing on 9 March 2012 that came about as a consequence of his Honour ascertaining that Mr Hammond proposed to seek leave to appear on the substantive hearing on behalf of his wife, an application which was opposed by the present respondent. His Honour therefore thought it appropriate to deal with the matter in advance of the substantive hearing, which he did by refusing Mr Hammond's application.

4 At the hearing of 3 April 2012 his Honour records that Mr Hammond again appeared purportedly on behalf of his wife and again sought leave to appear on her behalf. He made submissions to his Honour with respect to that application which was again refused. His Honour then proceeded to hear the matter in effect ex parte as Mrs Hammond, the defendant to the substantive proceedings, had not appeared.

5 His Honour then gave detailed reasons as to why he found in favour of the present respondent. He made a number of orders including an order that the applicant give the respondent possession of the relevant premises and that it have leave to issue a writ of possession forthwith in relation to those premises.

6 The litigation arose out of a loan in the sum of $486,000 lent by the respondent to the applicant to enable her to purchase a home in Faulconbridge in which she and her husband intended to reside. Settlement occurred on 8 April 2005 and the monies were disbursed generally in favour of the vendor of the property. The applicant and her husband moved into the property and apparently are still in occupation.

7 In relation to the loan itself the evidence establishes that the applicant repaid a total of $134,476.39. However, the last payment made on the loan account was on 7 May 2008 in the amount of $23,034.84. The loan balance as at 14 May 2012 is said to be $881,850.82. The last valuation of the property, the subject of the proceedings, occurred in October 2010 when it was valued at $540,000.

8 A notice of appeal was filed by the applicant against both the judgment of Johnson J refusing Mr Hammond leave to appear on her behalf as well as against his Honour's substantive judgment. His Honour's decision of 9 March 2012 was an interlocutory decision in respect of which the applicant was required to obtain leave to appeal. The judgment and orders of 4 April 2012 was a final judgment in respect of which leave was not required.

9 The notice of appeal contains nine grounds of appeal but is then supported, apparently in purported compliance with UCPR r 51.36(2), by a list of the material facts for which the applicant contends. It contains ninety-five paragraphs. Mr Hammond, who now seeks leave to appear on his wife's motion filed in this Court on 4 May 2012, accepted that those ninety-five paragraphs sought to put in issue practically every sentence of his Honour's two judgments.

10 Mr Hammond maintains that his Honour's discretion which he exercised on 9 March to refuse him leave to appear miscarried. In order to make that submission good, he must establish one or more of the grounds upon which the exercise of a discretion can be set aside in accordance with the decision of the High Court in House v The King (1936) 55 CLR 499 at 504-505.

11 Essentially, as I understand him, Mr Hammond asserts two errors on the part of his Honour. The first was that he, Mr Hammond, allegedly had a legitimate expectation that there would be no objection from the respondent to his appearing as advocate for his wife on the substantive hearing of the proceedings, as a consequence of the fact that up until 2 August 2011 the respondent had not objected to him appearing on behalf of his wife in the past, generally on directions hearings. The second was that in determining to refuse leave for him to appear, the primary judge failed to give proper regard and consideration to the submissions which he had made on that application.

12 As to his Honour's judgment of 3 April 2012, Mr Hammond asserts that his wife's case on the appeal would generally cover the following topics. First, a claim under the Contracts Review Act, presumably by way of some form of cross-claim, to the effect that the contract of loan entered into between the applicant and the respondent was such that the respondent should never have lent the relevant funds to the applicant. This was because it failed to adhere to its own lending guidelines and, further, relied on incomplete and invalid documentation being, relevantly, an application for the loan proffered by the applicant but containing statements as to the applicant's income which were incorrect and upon which, so it is asserted, the respondent relied in agreeing to make the loan.

13 Second, it is intended to assert that the loan offer which was made to the applicant by the respondent was invalid because in the relevant documents the lender was defined as "JP Morgan Trust Australia Limited as Trustee of Interstar Non-Conforming Finance Program" but there was no evidence that the respondent was in fact the trustee of that trust and, further, that there was no consideration moving from the respondent as trustee, although to whom or why is not clear.

14 The argument, as I understand it, is that if the respondent is not the trustee of that trust it made an offer which was incapable of acceptance and therefore, notwithstanding that it was accepted by the applicant, nevertheless the respondent has no right to enforce the loan agreement against her.

15 The notice of motion before me seeks an order pending the determination of the appeal, staying the execution of the writ of possession which was apparently issued on 12 April 2012 pursuant to the orders of the primary judge of 3 April 2012. Two other orders are sought as well as an order for costs. The first of those is an order prohibiting any lawyer employed by Kemp Strang and Mr Peter Newton of counsel who appear for the respondent of taking any further part in the proceedings upon the basis that, as I understand it, the respondent has no standing in the proceedings. It is possible that what is being asserted is a challenge to their retainer but it is more likely that it is being asserted that as the respondent is not the true lender of the relevant funds, then it has no standing to enforce the loan.

16 Alternatively, an order is sought estopping any lawyer employed by Kemp Strang and Mr Newton of counsel from making any further objections to Mr Hammond's appearance in the proceedings including on the present motion, apparently upon the basis of the alleged legitimate expectation referred to at [11] above.

17 In his judgment of 9 March 2012 the primary judge set out the relevant principles applicable to an application for leave by a non-qualified person to act as advocate for a party to litigation. I have read those decisions to which his Honour refers and there is no doubt in my mind that he accurately summarised them and, in my view, correctly applied them.

18 Although Mr Hammond asserts that his wife is suffering from a number of health issues which was accepted by the primary judge, nevertheless no medical evidence in the form of an up-to-date medical certificate has been provided to the Court to support the assertions that he makes from the bar table that she is incapable of presenting herself here today or at any other time to prosecute her appeal.

19 In my view the prospect of the applicant obtaining leave to appeal against the decision of the primary judge of 9 March 2012 to refuse Mr Hammond leave to appear as her advocate has no practical prospects of success. Furthermore, the defences that I invited Mr Hammond to articulate to me this morning and which I have set out above do not seem to me to have any merit whatsoever.

20 In my view, the application of the principles upon which leave can be given to a person in the position of Mr Hammond to appear as advocate on behalf of his wife, require that he not be granted leave to appear on her behalf on the notice of motion presently before me. I would add that in my view, even if that leave was granted, from what has been put to me, I would not in any event grant the orders that are sought.

21 My order, therefore, is that the applicant's notice of motion filed on 4 May 2012 is dismissed with costs.

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Decision last updated: 30 May 2012