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Andersons Solicitors v Schigulski

Andersons Solicitors v Schigulski

Case [2004] SASC 21 30 January 2004

Unities of Joint Tenancy

Charging Order

Right of Survivorship

Property Law

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ANDERSONS SOLICITORS v SCHIGULSKI
[2004] SASC 21
Civil

MULLIGHAN J The plaintiff is a firm of solicitors which performed legal services for the defendant in a solicitor and client relationship during the period from July 1996 until May 2000. Fees and costs due to the plaintiff by the defendant remain unpaid and were taxed by this Court pursuant to s 42 of the Legal Practitioners Act 1981. An allocatur in the sum of $13,820.24 was issued on 6^th April 2001. This amount has not been paid.
The defendant and Mr Schigulski are jointly registered as the proprietors of land at Blewitt Springs in this State being the whole of the land comprised in Certificate of Title Register Book Volume 5185 Folio 150 (“the land”). The land is subject to two easements which are registered on the certificate of title and a mortgage to a bank which is also registered on the certificate of title. The easements and the mortgage are of no significance for present purposes.
The application made by the plaintiff is that the joint interest of the defendant in the land be charged with the payment of the amount due, pursuant to the allocatur, interest accrued and occurring under the Supreme Court Rules 1987, costs and stamp duty, together with costs paid under future orders for costs, and the costs of registration and withdrawal of the charge at the Lands Titles Office. The plaintiff also seeks an order that the defendant be prevented from dealing with the land charged whilst the charge remains in force and various ancillary orders. The defendant opposes the application and contends that a charging order cannot be made in the circumstances.
The issue on this application is simply whether a joint interest in registered land may be the subject of a charging order.
S 8 of the Enforcement of Judgments Act 1991 (“the Act”) provides:
“8(1) A court may, on application by a judgment creditor, charge property of a judgment debtor with a judgment debt or part of a judgment debt.”
R 101.18(2) of the Supreme Court Rules 1987 provides that when an allocatur is signed in accordance with the Rules and sealed by the Court, it shall have the effect of, and be enforceable in the same manner as, a judgment of the Court for the amount of the allocatur. The plaintiff is a judgment creditor and the defendant is a judgment debtor pursuant to s 8(1). The question is whether the joint interest of the defendant in the land is property of the defendant.
“Property” is not defined in the Act but “land” is defined as including premises, as well as residential premises. In CP (Adelaide) & Ors v Hartford (Holdings) & Anor (No 9) (2002) 221 LSJS 46 Judge Lunn of the District Court held that “property” in s 8(1) in its ordinary meaning includes land and I agree with that conclusion. There is no reason to restrict the meaning of “property” by excluding real property. S 7…

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.

Continue reading Andersons Solicitors v Schigulski

Details

AGLC: Andersons Solicitors v Schigulski [2004] SASC 21
Case: [2004] SASC 21
Decision Date: 30 January 2004

CaseChat Overview and Summary

The case of Andersons Solicitors v Schigulski, dealt with by the Supreme Court of South Australia, involves a dispute between a firm of solicitors, the plaintiff, and a client, the defendant. The plaintiff is seeking to recover unpaid fees and costs from the defendant, who is a joint tenant of certain land in Blewitt Springs. The plaintiff has applied for a charging order against the defendant's interest in the land, in order to secure the debt owed to them. The defendant opposes the application, arguing that a charging order cannot be made against a joint tenancy interest. The primary legal issue before the court is whether a joint interest in registered land can be the subject of a charging order.

The court considered the relevant legislation, the Enforcement of Judgments Act 1991 and the Supreme Court Rules 1987, and the nature of a joint tenancy in land under the law. The court found that a charging order does not create an interest in the property of the judgment debtor, but merely secures the judgment debt by making the order. The court also distinguished a charging order from a mortgage, stating that a charge does not confer a legal interest in land on the mortgagee, but only a right of realisation by judicial process in case of non-payment of the debt. The court held that a charging order does not sever the joint tenancy, but merely protects the interest of the judgment creditor.

The court found that the defendant, as a joint tenant, has an interest in the land, and therefore has property as required by s 8(1) of the Act. The court rejected the defendant's contention that a charging order cannot be made against a joint tenancy interest, and found that the plaintiff is entitled to the order as sought. The court made an order pursuant to s 8(1) charging the estate and interest of the defendant in the land with the payment of the total amount of the debt due by him to the plaintiff.

In conclusion, the court held that a charging order can be made against a joint tenancy interest in land, and that such an order does not sever the joint tenancy. The court made an order charging the defendant's interest in the land with the payment of the debt owed to the plaintiff.

Orders