[2011] NSWCA 393

Rainima v GE Mortgage Solutions Ltd (No 2)

The application for leave to appeal 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

APPEAL - application for leave to appeal - no arguable basis to challenge judgment at first instance - no issue of principle - leave refused

Cases cited

King Investments Solutions v Hussain[2005] NSWSC 1076
Scott MacRae Investments Pty Ltd v Baylily Pty Ltd[2011] NSWCA 82

Legislation cited

Judiciary Act 1903 (Cth)

Judgment

[1]
MACFARLAN JA : By summons filed on 5 October 2011, Ms Losalini Rainima seeks leave to appeal against a judgment dated 1 July 2011 of Fullerton J sitting in the Common Law Division of the Court. Her Honour gave judgment for the present respondent, GE Mortgage Solutions Ltd ("GE"), for possession of land mortgaged by Ms Rainima to GE and gave judgment against Ms Rainima for $491,607.80.
[2]
Ms Rainima did not file a Notice of Appeal against that judgment although she had a right of appeal ( King Investments Solutions v Hussain [2005] NSWSC 1076 at [22] - [26]; Scott MacRae Investments Pty Ltd v Baylily Pty Ltd [2011] NSWCA 82 at [135]).
[3]
Ms Rainima's application for leave to appeal faces a number of problems.
[4]
First a grant of leave is inappropriate where, as here, the applicant had an entitlement to appeal as of right and did not exercise that right.
[5]
Secondly Ms Rainima's submissions do not reveal that she has any arguable basis to challenge Fullerton J's judgment. Ms Rainima's complaints relate to the hearing before her Honour and have been stated at length in Ms Rainima's oral and written submissions. In essence, they amount to the following.
[6]
First Ms Rainima complains that the hearing was wrongly allowed to proceed in her absence. The circumstances in which this occurred are fully described in her Honour's judgment. This demonstrates that her Honour carefully considered Ms Rainima's position and, for what appear to me to be good reasons, decided to proceed as she did. In particular, her Honour took into account her view that no acceptable excuse had been proffered for Ms Rainima's absence notwithstanding that the matter had been adjourned on a number of prior occasions due to Ms Rainima's indisposition. As well, her Honour took account of the fact that Ms Rainima had provided lengthy written submissions. Ms Rainima has not, in my view, identified any error that would vitiate her Honour's exercise of discretion.
[7]
Secondly Ms Rainima complains that her Honour wrongly ordered that Mr McClure, a person who sought to assist Ms Rainima's husband in the conduct of the hearing, leave the bar table and subsequently be removed from the court. Again I can see no arguable basis for the view that her Honour's discretion to make these orders was vitiated by error.
[8]
Thirdly Ms Rainima contends that Fullerton J displayed apparent bias against her. I can see no basis for this submission.
[9]
Fourthly Ms Rainima complains that Fullerton J should have adjourned the hearing before her to enable a notice under s 78B of the Judiciary Act 1903 (Cth) be given. Like Fullerton J, I can see no arguable basis for Ms Rainima's contention that the proceedings gave rise to any issue requiring the giving of such a notice.
[10]
As Ms Rainima has not shown that she would have any prospects of success on appeal, I propose that her summons be dismissed with costs.
[11]
WHEALY JA : I agree with the presiding judge.
[12]
MACFARLAN JA : The order of the court is therefore that Ms Rainima's application for leave to appeal be dismissed with costs.