Chen v ANZ Banking Group Ltd [2001] QCA 182

SUPREME COURT OF QUEENSLAND CITATION: Chen v ANZ Banking Group Ltd & Anor [2001] QCA 182 PARTIES: WEI XIN CHEN (applicant/plaintiff) v VINCENT CHENG, MANAGER FOR CHINA TOWN AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) (first defendant/respondent) CORALIE MOTT, MANAGER FOR WISHART VILLAGE, KENMORE MANAGEMENT PTY LTD (ACN 005 709 478) (second defendant/respondent) FILE NO/S: Appeal No 2531 of 2001 SC10789 of 2000 DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 15 May 2001 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGE: McMurdo P ORDER: Application for waiver of the appeal record book fee is refused. CATCHWORDS: APPLICATION TO APPEAL REGISTRAR'S DECISION – whether Registrar's decision to refuse to waive the appeal record book fee correct Uniform Civil Procedure Rules 171, 293, 759(1)-(4), (7), (8) COUNSEL: Applicant appeared on her own behalf M P Kent for the first respondent No appearance for the second respondent SOLICITORS: Applicant appeared on her own behalf Nicol Robinson Halletts for the first respondent No appearance for the second respondent [1] McMURDO P: This is an application under UCPR 759(8) to review the decision of the Registrar under UCPR 759(7) refusing the applicant's application for waiver of the appeal record book fee. It is helpful to look at the background to this appeal and application. -- 1 of 3 -- 2 [2] In September 1998, the applicant borrowed money from the Australia & New Zealand Banking Group Ltd ("the Bank"); this loan was secured by a mortgage over the applicant's property at Wishart. The applicant defaulted in meeting repayments and in October 1999 the Bank obtained judgment in default against the applicant for recovery of possession of the Wishart property. The Bank subsequently recovered possession of the Wishart property from the applicant. [3] In March 2000, the Bank and the applicant entered into a fresh agreement which allowed the applicant to regain possession of the property. Because of the applicant's failure to comply with that agreement, the Bank instituted another claim for recovery of possession of the property and again obtained judgment in default for recovery of possession. The Bank retook possession of the property from the applicant on 3 October 2000. On 31 October 2000, the applicant applied to the Supreme Court for an order restraining the Bank from taking possession of the Wishart property. That application was dismissed with costs on 15 November 2000. [4] In December 2000, the applicant commenced the action the subject of this appeal in the Supreme Court. The Bank brought an application to strike out the statement of claim under UCPR 171 and for summary judgment against the applicant under UCPR 293. The learned primary judge found that the applicant's statements of claim were unintelligible and did not disclose a cause of action. Her Honour granted the orders sought by the Bank. Having perused the statements of claim, my preliminary view is that her Honour's assessment was correct. [5] On 24 April 2001, the Registrar refused the application to exempt the applicant from complying with UCPR 759(1)-(4); those subsections require an appellant to undertake in writing to pay for the preparation of the appeal book. In doing so, the Registrar correctly noted that the material filed by the applicant did not supply sufficient details to properly consider her overall financial position and the absence of any evidence as to whether any close relatives may be willing to give financial help to the applicant (see UCPR 759(7)(c)). The Registrar also noted the applicant's affidavit material did not state that if successful in the appeal and costs ordered in her favour she would reimburse the full cost of the appeal record book. [6] In an affidavit filed on 9 May 2001, the applicant acknowledges her responsibility to reimburse the court for the cost of the record book if the appeal is successful with costs. [7] She has provided a copy of a bank account in her name which shows a closing balance of $3.71, a further bank account operating as an auctioneers and agents trust account showing a balance of $2,835.13 and a business cheque account showing a balance of $170.07. The applicant does not, however, depose that these are her only assets nor that she has no close relatives willing to give her financial help. The provision of an overdue rates notice from the Brisbane City Council and an expired Auctioneers and Agents Act licence do not assist her. [8] As to the merits of her appeal, she relies on an outline of argument which, like the statement of claim the subject of the appeal, is incomprehensible. She seems to claim that she has real prospects on appeal and refers in her affidavit to a letter to her from her former solicitors, Chris Toogood Lawyers, dated 8 August 2000 (but -- 2 of 3 -- 3 citing correspondence dated 19 December 2000 and 31 October 2000). The portion upon which she relies states: "The only slim chance that you have of winning this Appeal is that the Court agrees with the writer that the notice to terminate your letting agreements and management agreements was not validly given and that the effect of this is that the contracts could not be validly terminated." [9] None of those facts referred to by Mr Toogood was pleaded in the applicant's statement of claim, the subject of this appeal. [10] A consideration of the material before the Registrar and the preliminary merits of the appeal to which this application relates persuade me that the Registrar's decision was correct. ORDER: The application for waiver of the appeal record book fee is refused. -- 3 of 3 --