Catlin v Registrar of Titles
[2003] WASC 94
CATLIN & ANOR -v- REGISTRAR OF TITLES & ORS [2003] WASC 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 94 | |
| Case No: | CIV:1457/2003 | 6 MAY 2003 | |
| Coram: | EM HEENAN J | 6/05/03 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend caveat dismissed | ||
| B | |||
| PDF Version |
| Parties: | ADRIENNE MARIE CATLIN ADRIAN CHARLES STEPHEN CATLIN REGISTRAR OF TITLES NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937) TERRY BRIAN HOWE CORAL PEARL HOWE |
Catchwords: | Caveat Application for extension Caveator a mortgagor in default Caveat claiming an interest to prevent completion of sale by mortgagee to third parties No caveatable interest shown No offer or ability to pay mortgage debt Application refused |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ADRIAN CHARLES STEPHEN CATLIN
Plaintiffs
AND
REGISTRAR OF TITLES
First Defendant
NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937)
Second Defendant
TERRY BRIAN HOWE
CORAL PEARL HOWE
Third Defendants
(Page 2)
Catchwords:
Caveat - Application for extension - Caveator a mortgagor in default - Caveat claiming an interest to prevent completion of sale by mortgagee to third parties - No caveatable interest shown - No offer or ability to pay mortgage debt - Application refused
Legislation:
Nil
Result:
Application to extend caveat dismissed
Category: B
Representation:
Counsel:
Plaintiffs : In person
First Defendant : No appearance
Second Defendant : Ms P E Cahill
Third Defendants : No appearance
Solicitors:
Plaintiffs : In person
First Defendant : No appearance
Second Defendant : Jackson McDonald
Third Defendants : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: This is an application for the extension of a caveat lodged by a registered proprietor mortgagor of certain property in Karratha. The property has been sold under an executory contract of sale by the mortgagee, the National Australia Bank Ltd, to purchasers at a sale conducted by the bank after there was a default in the obligations of the plaintiffs under the mortgage. The purchasers are Mr and Mrs Howe, the third defendants in the proceedings.
2 Although an agreement for sale has been reached, it has not yet been completed, and the caveat has been lodged by the plaintiffs, the defaulting mortgagors, to prevent the completion of the sale and the registration of the transfer of the land from the bank as mortgagee in possession to the third defendants as purchasers at the mortgagee's sale. While an auction for the property was held, the reserved price was not reached and it was subsequently sold by private treaty to the third defendants for $220,000.
3 The evidence before the Court includes a valuation provided to the bank by a valuer in Karratha, who put the current market value of the property at $235,000, but mentioned that a forced sale value might be $220,000. In fact, it was for this lower sum, as I have already mentioned, that the property was sold.
4 Mr Catlin, for himself and his wife, puts the proposition that this sale price of $220,000 is very significantly less than a figure of $280,000 which is a figure which he believes was the value of the property some years before, and that this discrepancy, coupled with the way in which and the time at which the property was sold, meant that the bank as mortgagee was in breach of its obligations in conducting its sale.
5 He further submits that the third defendants, or one of them, was associated with the firm of agents retained by the bank for the sale of the property, and was in a position of conflict of interest and should be restrained from completing the purchase. By this means, Mr Catlin has explained, quite naturally, that he hopes to be able to have this sale nullified, compel the bank to re-advertise and re-conduct the sale, and thus fetch a higher price, meaning that greater proceeds would be available to discharge his indebtedness.
6 In response to a question from me, Mr Catlin has quite frankly acknowledged that he is not able and will not be in any position in the immediate future to offer to tender to the bank or to Mr and Mrs Howe the $220,000 sale price for the house let alone any expenses associated with the sale.
(Page 4)
7 Despite the beliefs which Mr Catlin has about supposed deficiencies in the conduct of the sale by the bank, there is no evidence to suggest that the bank or the agents were in breach of their obligations in conducting the sale, or conducted the sale fraudulently, or with bad faith, or with reckless indifference to the need to obtain a fair price. Nor is there anything to suggest that the third defendants, as purchasers, were parties to any such breach by the bank.
8 In those circumstances, I do not consider that there is any basis upon which Mr Catlin or his wife can maintain a caveatable interest or an estate in the land, and that therefore the caveat should be removed. I therefore decline to extend this caveat.
9 While Mr Catlin quite naturally has made it plain that such a result is likely to have far-reaching, even devastating, effects upon him and his wife, I should observe that such a result is inevitable because of his inability to offer to repay the amount owing to the bank or the proceeds of the sale. I have also indicated that despite the sale proceeding, this result will not destroy or diminish his right to sue the bank for damages if any can be proved to have existed from an alleged breach of duty by the bank. That right remains, if it ever existed.
10 Similarly, this result would not prevent Mr and Mrs Catlin from suing the purchasers for damages if they are ever able to show that the purchasers were knowing parties to a breach of duty by the bank in the conduct of the sale.
11 What it does, however, mean is that Mr and Mrs Catlin are not able to prevent the sale being completed. Accordingly, I decline to extend the caveat.
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