ACP Properties (Townsville) Pty Ltd & Ors v 11 Oonoonba Road Pty Ltd & Anor - [2022] HCATrans 227

[2022] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2022

B e t w e e n -
ACP PROPERTIES (TOWNSVILLE) PTY LTD ACN 631 282 203
First Applicant
ACP PROPERTIES (QLD) PTY LTD ACN 606 370 870
Second Applicant
STEPHEN GEORGE CAMPBELL
Third Applicant
and
11 OONOONBA ROAD PTY LTD ACN 615 776 148
First Respondent
TIMOTHY EDMONDS
Second Respondent
Application for special leave to appeal

GORDON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 15 DECEMBER 2022, AT 2.30 PM

____________________

MR N.H. FERRETT, KC: May it please the Court, I appear with my learned friend, MR J.P. HASTIE for the applicants. (instructed by Archibald & Brown Lawyers)

MS C.C. HEYWORTH‑SMITH, KC: May it please the Court, I appear with my learned friend, MR L.M. COPLEY for the respondents. (instructed by Macrossan & Amiet Solicitors)

GORDON J: Yes, Mr Ferrett.

MR FERRETT: Your Honours, the application seeks leave for a proposed appeal essentially under two headings, one relates to the operation of section 88 of the Property Law Act (Qld), the other relates to what will be sufficient to impute waiver to a party. If I can turn first to the section 88 point. You will have seen in the application book that two grounds are proposed. The first of those – well, both of them have to be seen against the background that section 88 and its analogues have been seen for a very long time now as what have been called machinery provisions. In other words, they do not create substantive rights – or they do not create new substantive rights as opposed to regulating and ensuring that priorities are observed when a mortgagee stands possessed of sale proceeds.

GORDON J: Do they have different operation other than the – as compared with the common law?

MR FERRETT: No, it does not. In our respectful submission, it – and this comes out of ANZ v Evans and also out of Mercantile Credits v ANZ that Justice Morrison cited in the first set of reasons in the Court of Appeal, that the provision stands to make sure that the priorities otherwise created at law and protected in equity are observed.

GORDON J: How do you deal with this allegation that the second mortgage was registered unlawfully?

MR FERRETT: We do no derogate from that. The finding has been made. The effect of it – or the reason for the effect of it – is not really made clear, with respect, in the Court of Appeal’s reasoning. The way you contest that is to say, if the company that was lawfully registered – in other words, the assignee of the NAB mortgage – had simply decided not to exercise its rights, that would have the same outcome. So, when ACPQ – the unlawfully registered mortgagee, if we can call it that – had gone ahead…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ACP Properties (Townsville) Pty Ltd & Ors v 11 Oonoonba Road Pty Ltd & Anor [2022] HCATrans 227
Case: [2022] HCATrans 227
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicants, ACP Properties (Townsville) Pty Ltd, ACP Properties (Qld) Pty Ltd, and Stephen George Campbell, sought leave to appeal a decision of the Queensland Court of Appeal. The respondents were 11 Oonoonba Road Pty Ltd and another party. The core of the dispute revolved around the distribution of proceeds from a sale of property subject to multiple mortgages, and specifically, the operation of section 88 of the *Property Law Act 1974* (Qld) and the imputation of waiver.

The legal issues before the High Court were twofold. Firstly, whether the Court of Appeal had erred in its interpretation of section 88 of the *Property Law Act 1974* (Qld), particularly concerning its application to a second mortgage that had been registered unlawfully. The applicants argued that section 88 was a machinery provision that regulated priorities but did not create new substantive rights, and that the Court of Appeal had incorrectly elevated its operation to impose an obligation on a lawfully registered mortgagee. Secondly, the applicants contended that the Court of Appeal had erred in imputing waiver to a party based on what the court considered should have happened, rather than on unequivocal conduct objectively demonstrating an intention to abandon a right.

The High Court refused special leave to appeal, finding that the proposed appeal would have insufficient prospects of success. While the applicants argued that the Court of Appeal’s interpretation of section 88 was flawed by suggesting it imposed an obligation on mortgagees and by considering the lawfulness of registration when determining priorities, the High Court did not grant leave to explore this. Similarly, the applicants' argument that waiver should not be imputed based on hypothetical conduct, but rather on clear and unequivocal actions, was also not considered to warrant an appeal. The court implicitly accepted the Court of Appeal's reasoning on both the statutory interpretation and the waiver points.

Orders