Matsoukatidou v CBA [2014] VSCA 229

The borrowers in this case were mother and daughter. The sought a stay of possession pending appeal of a summary judgment against them for possession.

The question arose at the time of the summary judgment application as to whether several FOS disputes which had been lodged by the borrower were still on foot. A FOS complaint had been made on the basis of hardship, including a fire which had destroyed the security property. Following settlement of that FOS complaint, the borrowers made several more complaints which were deleted by FOS. The Judge granted summary judgment.

The borrowers sought a stay pending appeal. The court noted that stays ought to be granted in circumstances where if they were not, the appeal would be rendered futile, but only if there is an arguable ground of appeal.

The borrowers submitted, in support of a special circumstance argument, that two of the disputes remained outstanding, relying on clause 5.3(b) of the FOS Terms of Reference which states:

If, within 30 days of receipt of the determination, the Applicant objects to an assessment made by FOS, FOS will review the matter if FOS is satisfied that the Applicant’s objection may have substance.

FOS had determined that the subsequent disputes fell outside its terms of reference. The borrowers had not been afforded the thirty days to object to that assessment and thus argued that the granting of summary judgment had denied them natural justice.

The Court of Appeal noted that:

In our view the borrower’s interpretation ignores the qualification that FOS must be satisfied that the applicant’s objection ‘may have substance’.

The Court of Appeal found that since FOS was not satisfied that the borrower’s objection to its decision may have substance, the disputes were no longer outstanding and noted it would be absurd to allow applicants to continually lodge objections and new disputes requiring all parties to put on further submissions. It would mean that relevant court proceedings could be stayed indefinitely.

The Court therefore considered there were no prospects for appeal and refused the stay. 

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