Atkinson v Faure

[2004] NSWSC 997

CITATION:	Atkinson v Faure [2004] NSWSC 997
HEARING DATE(S):	14 October 2004
JUDGMENT DATE:	14 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Proceedings summarily dismissed.
CATCHWORDS:	PROCEDURE [93] - Summary disposal - No basis for proceedings - Plaintiff who claims to own property does not.
LEGISLATION CITED:	Supreme Court Rules 1970 Part 13 r 5
PARTIES :	George Atkinson (P) Camille Faure (D)
FILE NUMBER(S):	SC 5038/04
COUNSEL:	In person (P) L V Gyles (D)
SOLICITORS:	In person (P) RBHM Commercial Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 14 OCTOBER 2004

5038/04 GEORGE ATKINSON v CAMILLE FAURE

JUDGMENT

1 HIS HONOUR: These proceedings were commenced by a motion by which George Atkinson sought an order that a “mortgage taken over the plaintiff's property” at Muswellbrook be declared null and void because no authority was given by the plaintiff for the raising of the loan secured by the mortgage. Mr Atkinson in fact moves on a notice of motion asking for interlocutory orders that “the deal on the Muswellbrook property be frozen”, that there be no further dealings with the Muswellbrook property without his authorisation and that he be issued with a replacement certificate of title. In fact, the ownership of the property referred to has in various forms already been dealt with by the Family Court of Australia, by the courts of Vanuatu, by this Court and by the Court of Appeal on appeal from this Court. The course of those earlier proceedings is to some degree traced in an affidavit filed on behalf of the defendant and read in these proceedings. To that affidavit are attached two judgments, a judgment of Burchett AJ in this Court (18 February 2004 unreported) and a judgment of Ipp JA in the Court of Appeal (19 July 2004 unreported).

2 The defendant, who is a mortgagee of the property, has also applied by summons for the dismissal of the proceedings under Part 13 r 5 of the Supreme Court Rules 1970 (“the SCR”) on the ground that the proceedings are frivolous, vexatious and otherwise an abuse of the process of this Court.

3 The central fact in this case is that the registered proprietor of the property is not the plaintiff, George Atkinson, but is Atlas Investments Ltd, a Vanuatu company. The litigation in Vanuatu that I have referred to determined that Mr Atkinson did not own shares in that company. That is perhaps not of great importance. The central and important fact is that he is not the company. It is quite plain, therefore, that he has no legal interest in the Muswellbrook property.

4 He did at one stage propound that he had an equitable interest in the Muswellbrook property. The claim was that he and not the company had provided some or all of the purchase price of the property and that the company when it took title therefore held the property in whole or in part on a resulting trust for him. That claim was tested in the proceedings in this Court before Burchett AJ that I have mentioned. His Honour dismissed the claim. An appeal was taken from Burchett AJ's decision, but that appeal was settled and disposed of by consent when the matter came on before the Court of Appeal. Subsequently Mr Atkinson brought a motion which was dealt with by Ipp JA as a Judge of Appeal in the judgment to which I have referred claiming that the settlement of that appeal was entered into without his authority. Ipp JA held that there was no evidence before him of a lack of authority and dismissed the motion.

5 As I have said, there is a long history but I do not think I need to go into it further in these reasons for judgment. Bearing in mind what I have already stated about earlier proceedings and considering the evidence which has been laid before me by the plaintiff, it is clear that not the plaintiff but the company I have mentioned is the registered proprietor of the property; that the only claim that the plaintiff has propounded to have an equitable interest in the property has been dismissed in this Court; and that an appeal from that decision has been disposed of by the Court of Appeal. This means that the entire basis put forward for these proceedings disappears. As I have said from the start, they depend upon a claim that the property is the plaintiff's property. The evidence does not show the property to be owned in any way by the plaintiff at law or in equity.

6 I have been reminded by Mr Gyles, of counsel for the defendant, who is the mortgagee, that the proceedings as they stand are deficient for parties because the company, which is the registered proprietor of the Muswellbrook property and the mortgagor under the subject mortgage, is not joined as a party to the proceedings. If the proceedings had any prospect of success, that situation could be remedied, but, for the reasons I have already stated, the proceedings are totally without prospect of success. As Mr Gyles has put to me, it can probably be said correctly that they fall within all the heads mentioned in Part 13 r 5 of the SCR, ie, no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and the proceedings are an abuse of the process of the Court. The result must be that the proceedings be dismissed and I so order.

7 An order for costs is sought and it is sought on the indemnity basis. Two documents are put forward in support of the costs being awarded on the indemnity basis. I propose to order that the costs be paid and be paid on the indemnity basis by reason of the fact that the proceedings were quite hopeless. No material has been brought forward to support the proposition that the Muswellbrook property is the plaintiff's property and I have mentioned the material that is in evidence that shows otherwise. That of itself would be sufficient to justify an order on the indemnity basis. However, a letter was written on 14 September 2004 by the defendant's solicitors, drawing attention to the hopelessness of the proceedings and warning that costs would be sought on the indemnity basis if they were proceeded with. That is another ground for awarding costs on the indemnity basis, although in my view the hopelessness of the proceedings is itself a sufficient basis.

8 I shall make formal orders. They are as follows. I dismiss the plaintiff's notice of motion of 14 September 2004. I order that the proceedings be dismissed. I order that the plaintiff is to pay the defendant's costs of the proceedings on the indemnity basis.

**********

Last Modified: 11/09/2004