Does the pros,p·ect of a further appeal, even if light of the affidavit that has just been filed?
your present application was granted, offer your
client any relief that you could avail yourself of?

MR WALES:

Yes, it does, Your Honour, for these reasons:

it certainly is common ground that the applicant
has vacated the premises. The reason for that is
and this is common ground as well: the premises

were, before the commencement of the action,
mortgaged by the proprietor, who is the respondent.
The respondent fell into default under the mortgage
and the mortgagee commenced to assert its rights
and issued notices of intention to claim possession

of the premises. It was our view that the mortgagee
being in the position of a bona fide purchaser for
value, that we had no defence to the claim for
possession by the mortgagee. Accordingly, we
sought no further stay of the ejectment order
made by the judge at first instance and we have,
as the affidavit says, vacated the premises.

What - - -

TOOHEY J:

I am not clear, Mr Wales.

The affidavit suggests

that the action taken to dispose of the respondent's
interest in the land was by way of contract rather
than some action taken by the mortgagee.

MR WALES: Well, certainly, my instructions are that there

was a mortgage on the premises and that·is common
ground and that the mortgagee was asserting its

rights and it was in the light of that situation that advice was given that there was no defence to the claim by the mortgagee.

WILSON J: But the change of circumstance, the significant

change of circumstance, apart from the matters that
you have referred to, Mr Wales, is unfortunately the
state of health of your client and the fact that she

would be unable to pursue the relief that the
counter claim that she advanced sought.and does not
that make our further consideration of the matter

moot?

MR WALES: It does not for these reasons, Your Honour: that

certainly she cannot now enjoy possession of the
subject premises. What she does have is a claim

for damages against the respondent. She cannot

SlTS/2/SH	2	14/10/88
Bogdanovic

pursue that claim until the legal position of
the respondent as a volunteer is clarified.

TOOHEY J:

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 Bogdanovic v Koteff

Details

AGLC: Bogdanovic v Koteff [1988] HCATrans 240
Case: [1988] HCATrans 240
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Ms Bogdanovic, sought to appeal a decision concerning her entitlement to remain in certain premises. The respondent, Mr Koteff, had sought possession of these premises. The applicant had vacated the premises due to a mortgage entered into by the respondent, which she believed left her with no defence to a claim for possession by the mortgagee.

The legal issues before the High Court included whether the applicant could still pursue relief despite having vacated the premises and the implications of the respondent's status as a volunteer in relation to the applicant's claim for damages. The Court also considered whether the applicant's equitable life tenancy interest was superior to the respondent's registered proprietor interest, and whether a refusal of special leave to appeal would preclude the applicant from bringing further proceedings.

The Court's reasoning focused on the practical consequences of the applicant's vacated possession and her health, which rendered her unable to pursue her original claim to remain in the premises. However, the applicant's legal representative argued that she retained a claim for damages against the respondent, which could not be pursued until the respondent's legal position as a volunteer was clarified. The Court noted that the present proceedings concerned the title of the respondent and its liability to be disturbed due to his volunteer status.

The transcript indicates that the application for special leave to appeal was being considered, with the Court questioning the utility of granting leave given the changed circumstances. The ultimate outcome of the special leave application is not explicitly stated in this excerpt, but the discussion suggests the Court was assessing whether any further appeal would offer the applicant meaningful relief.

Orders