FARRANT -v- WESTPAC BANKING CORPORATION [No 2] [2025] WASCA 53

Catchwords:
Appeal – Practice and procedure – Application for stay pending determination of proceedings in High Court of Australia – Special leave to appeal refused by High Court of Australia – Application for stay dismissed

[2025] WASCA 53
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : FARRANT -v- WESTPAC BANKING CORPORATION [No 2] [2025] WASCA 53
CORAM : VAUGHAN JA
HEARD : 11 APRIL 2025
DELIVERED : 11 APRIL 2025
PUBLISHED : 11 APRIL 2025
FILE NO/S : CACV 50 of 2024
BETWEEN : MEHRZAD FARRANT
Appellant
AND
WESTPAC BANKING CORPORATION
Respondent
Catchwords:
Appeal – Practice and procedure – Application for stay pending determination of proceedings in High Court of Australia – Special leave to appeal refused by High Court of Australia – Application for stay dismissed
Legislation:
Nil
[2025] WASCA 53
Page 2
Result:
Application for stay dismissed
Category: B
Representation:
Counsel:
Appellant
:
No appearance
Respondent
:
C M Guy
Solicitors:
Appellant
:
In person
Respondent
:
TG Legal & Technology
Case(s) referred to in decision(s):
Farrant v Westpac Banking Corporation [2024] WASCA 157
Farrant v Westpac Banking Corporation [2025] HCADisp 59
Westpac Banking Corporation v Farrant [2024] WASC 300
Westpac Banking Corporation v Farrant [2024] WASC 300 (S)
[2025] WASCA 53
VAUGHAN JA
Page 3
VAUGHAN JA:
(These reasons were delivered orally at the conclusion of the hearing
and have been edited to correct matters of grammar and infelicity of
expression.)
1 The court sits to hear the appellant’s application in an appeal dated
7 January 2025 to stay the enforcement of orders made in the General
Division of the Supreme Court of Western Australia for the appellant to
deliver up vacant possession of the property known as Unit 1, 8 Ednah
Street, Como, Western Australia.
2 The appellant says that the property is and has been her home for
the past 26 years.
3 The appellant has not appeared at today’s hearing. The appellant’s
non-attendance is foreshadowed in an email received yesterday by the
Court of Appeal office at 1.04 pm. That email reads:
4 The appellant’s email does not seek an adjournment of today’s
hearing. To the contrary, by referring to her affidavit and submissions
as filed, the appellant evidently seeks to remind the court of those
papers in the expectation that the hearing will proceed. If, contrary to
my reading, the email does seek an adjournment of the hearing, it is not
in the interests of justice to adjourn the hearing. There is no medical
evidence to substantiate the appellant’s assertion that she is not well
enough to attend the hearing. Accordingly, the appellant has failed to
establish a good reason for an adjournment. The prejudice to the
[2025] WASCA 53
VAUGHAN JA
Page 4
respondent in adjournment, and the waste of the public resources of the
court in adjourning the matter, outweigh any prejudice to the appellant in proceeding with the hearing of the application. Proceeding with the hearing of the application will also better achieve the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).
5
The papers on the application comprise the following:

1. The appellant’s application in an appeal dated 7 January 2025.
2. The appellant’s affidavit affirmed 7 January 2025.
3. The appellant’s affidavit affirmed 23 January 2025.
4. The affidavit of the respondent’s solicitor, Cassandra Michelle Guy, sworn 21 January 2025.
5. The appellant’s submissions dated 23 January 2025.
6. The respondent’s submissions dated 3 February 2025.
7. The appellant’s speaking notes dated 4 February 2025.
   6
   In addition the court has available to it a copy of the appellant’s application to the High Court of Australia for special leave to appeal in proceedings P2 of 2025.
   7
   The background to the dispute is provided in the reasons for decision of the primary court (Acting Master McDonald) and in the reasons for decision of the Court of Appeal dismissing an appeal from the orders of the primary court. See Westpac Banking Corporation v Farrant [2024] WASC 300, Westpac Banking Corporation v Farrant [2024] WASC 300 (S) and Farrant v Westpac Banking Corporation [2024] WASCA 157. I will not repeat those matters. It suffices to say that the respondent brought mortgage recovery proceedings against the appellant. The respondent obtained summary judgment before the acting master. The acting master ordered that the appellant deliver up vacant possession of the property to the respondent. The appellant’s appeal against the order for summary judgment failed.
   8
   The present application arises out of an application that the appellant made to the High Court of Australia for special leave to appeal from the orders of this court dismissing her appeal against the orders made by the acting master. The application for special leave to appeal is dated 6 January 2025 and is designated as proceedings P2 of 2025.
   [2025] WASCA 53
   VAUGHAN JA
   Page 5
   9
   By the application in an appeal dated 7 January 2025 the appellant applied for an order as follows:
   Suspension of orders issued on 13-Dec-2024 by Supreme Appeal Court of WA, until the proceeding of the Applicant’s Appeal to the HIGH COURT OF AUSTRALIA is finalised.
   10
   While, in terms, the application is directed to the Court of Appeal’s orders dismissing the appeal against the primary court’s orders, it is patently clear that what the appellant seeks is an order staying the enforcement of the primary court’s order to deliver up possession of the property pending the determination of the appellant’s application to the High Court of Australia for special leave to appeal.
   11
   Programming orders were made on the appellant’s application in an appeal dated 7 January 2025 on 13 January 2025. Among other orders, this court ordered that:
8. Pending the hearing and determination of the Application [ie the appellant’s application in an appeal dated 7 January 2025] the respondent inform the Court of Appeal registrar and the appellant of any intention to apply for an order enforcing the primary court’s orders at least 48 hours before filing the application for an enforcement order.
9. In the event that notice is given in accordance with par 5 above the appellant have liberty to apply on an urgent basis to a single judge of appeal in relation to the Application.
   12
   The appellant’s application in an appeal dated 7 January 2025 was listed for hearing on 4 February 2025. On that day the court ordered that the application be adjourned to today. The court gave the following reasons for the adjournment:
   In our view, it is not, in all of the circumstances of the present case, necessary for the court to determine the stay application at this time. Given the High Court’s current procedure for dealing with special leave applications, it is to be expected that the appellant’s special leave application will be determined by the beginning of April this year or possibly even earlier. If special leave is granted, then the case for a stay pending determination of the appeal to the High Court will be very strong. If special leave is refused, then the question of a stay will fall away. In the meantime, the appellant’s position is protected by orders made by the court on 13 January 2025 requiring the respondent to give notice of any intention to apply for an enforcement order. If that notice is given, then the court can bring the matter back on for determination urgently in the context where the determination of the stay application will actually be required. However, the prospect of notice being given
   [2025] WASCA 53
   VAUGHAN JA
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   before the beginning of April seems relatively unlikely. (emphasis added)
   13
   The appellant had earlier stated that what was proposed in this respect ‘will be fine’ (see ts 3).
   14
   The High Court of Australia determined the appellant’s application for special leave to appeal on 3 April 2025. See Farrant v Westpac Banking Corporation [2025] HCADisp 59. The application for special leave to appeal was refused. The High Court of Australia (Gordon and Beech-Jones JJ) stated that:
   The application for special leave to appeal does not raise a question of law of public importance and any appeal would have no prospects of success. It is not in the interests of the administration of justice, either generally or in this case, for special leave to appeal to be granted.
   15
   The application for special leave to appeal having been refused there is no longer any foundation for the appellant’s application to stay the enforcement of the primary court’s orders pending the determination of the appellant’s application for special leave to appeal. That conclusion is not altered by the appellant’s assertion that she will be seeking reconsideration of the application for special leave to appeal. No such application has been adduced in evidence. In any event the prospects of such an application being successful are non-existent given the High Court’s determination that any appeal would have no prospects of success. The application in an appeal dated 7 January 2025 must be dismissed. It is also appropriate to revoke pars 5 and 6 of the orders of the court made 13 January 2025.
   16
   Accordingly, I now make orders that:
10. The appellant’s application in an appeal dated 7 January 2025 is dismissed.
11. The orders made in pars 5 and 6 of the orders of the court made 13 January 2025 are revoked.
    [2025] WASCA 53
    VAUGHAN JA
    Page 7
    I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
    SD
    Associate to the Hon Justice Vaughan
    11 APRIL 2025