Challenge Bank Ltd v Halliday
[2001] VSC 451
•19 November 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6809 of 1994
| CHALLENGE BANK LTD. | Plaintiff |
| v. | |
| PETER CAMERON PAUL HALLIDAY AND ANOTHER | Defendants |
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JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 NOVEMBER 2001 | |
DATE OF JUDGMENT: | 19 NOVEMBER 2001 | |
CASE MAY BE CITED AS: | CHALLENGE BANK v. HALLIDAY & ANOR. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 451 | |
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CATCHWORDS: Practice and Procedure – Order in favour of Victoria Legal Aid directing that money in court be paid out to satisfy its charge over real estate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms. N. Ellyard (Solicitor) | Victoria Legal Aid |
| For the First Defendant | In Person |
HIS HONOUR:
In 1980 the first defendant, Peter Cameron Paul Halliday, was the registered proprietor of a property being Unit 2 on registered plan No. 6609 at 7 Canyon Street, Balwyn, being the land more particularly described in Certificate of Title Vol. 9116 Folio 148.
On 8 October 1980 the then Legal Aid Committee granted legal aid to Mr Halliday and two companies with which he was associated in respect of the defence of proceedings in this court taken against him and the two companies with which he was associated by D.D. Webster Electronics Pty Ltd.
To obtain legal aid at that time Mr Halliday gave the then Legal Aid Committee a charge over two of his properties, including the Canyon Street property.
On 11 November 1980 the Legal Aid Committee registered a charge over the properties in question to secure repayment of the moneys advanced by the Legal Aid Committee to Mr Halliday. It would appear that at that time there was a first mortgage over the property to Challenge Bank Ltd. Westpac Banking Corporation took over Challenge Bank and the Legal Aid Committee has been replaced by Victoria Legal Aid.
At all events it would appear that in 1994 Mr Halliday made default under his mortgage to Challenge Bank. On 7 July 1994 Challenge Bank filed a writ in the court seeking to recover possession of the Canyon Street property. The matter came before Byrne, J. on 1 December 1998. His Honour delivered his judgment in the proceeding on 11 December 1998. His Honour ordered (inter alia): (1) that there be judgment for the plaintiff (which by then was Westpac Banking Corporation) for possession of the land; ordered that, upon the sale of the land and after deduction of the expenses of the sale including legal expenses and any sums expended pursuant to one of his Honour's earlier orders, the net proceeds of the sale of the land be paid into court and be held by the Senior Master pending the taking of accounts or further order. His Honour then reserved liberty to Westpac Banking Corporation and Mr Halliday to apply with respect to the payment of the net proceeds in court.
On 30 July 2001 Westpac Banking Corporation filed a summons in the court whereby it sought payment out of court of the sum necessary to discharge the mortgage.
The matter came before Master Wheeler on 3 August. The bank was represented by counsel; a solicitor appeared for the second defendant to the proceeding, the Official Trustee in Bankruptcy; Mr Halliday appeared in person; and a solicitors in the employ of Victoria Legal Aid appeared for Legal Aid. That day the solicitor appearing for Victoria Legal Aid made application to the Master for an order ordering payment out of court of the moneys it had advanced in respect of the earlier proceeding taken against Mr Halliday and two companies with which he was associated. That was done to enable Victoria Legal Aid to then discharge the caveat which had been registered over the land back in 1980.
On 3 August Master Wheeler made (inter alia) the following orders:
1.The following sums be paid from Common Fund No.1 and debited to account No. 65630 -
(a) to the plaintiff to discharge its mortgage over land more particularly described in Certificate of Title Vol. 9116 Folio 148, $160,331.90;
(b) to Victoria Legal Aid to discharge its caveat over the said land, $7,220.75.
Mr Halliday appealed from those orders to a judge of the court. His appeal came before Eames, J. on 19 September. His Honour ordered that the appeal from the orders of Master Wheeler made 3 August be allowed; that orders 2 and 4 of his Honour's order 2 (being the first order I referred to relating to the payment out of moneys in court) be set aside. He then ordered that if no further step is taken in prosecution of the counterclaim by 4 February 2002, then it stand dismissed. He ordered that the appeal from order 2(b), which I have numbered 1(b), of the orders of Master Wheeler made 3 August 2001 be adjourned to 18 October.
Clearly, on its face, His Honour's order is inconsistent because on the one hand he has said that the whole of order 2 be set aside; on the other hand, in relation to sub-paragraph (b) of order 2, he has adjourned that order to 18 October 2001. His Honour then ordered that the sum of $186,331.90 be paid from the Common Fund No. 1 and debited to account No. 65630 to discharge the plaintiff's mortgage over the land described in Certificate of Title Vol. 9116 Folio 148. His Honour then made an order as to the costs of the appeal which is not relevant for present purposes.
The appeal in relation to paragraph 2(a) of the Master's order came before Ashley, J. on 18 October. His Honour adjourned the hearing of the appeal to 17 November 2001 - which was an error: it should have been this day, 19 November 2001 - and gave leave to the parties, that is, Victoria Legal Aid and Mr Halliday, to file further affidavits in the matter. Both of those parties have availed themselves of His Honour's order or orders in that regard.
Mr Halliday, who appeared in person, now seeks an order allowing his appeal against paragraph 2(b) of the Master's order of 3 August 2001. He relies basically on two matters in support of his appeal: firstly that, by reason of the order made by Byrne, J. on 11 December 1998, Victoria Legal Aid is now estopped from making a claim in respect of the legal aid provided to Mr Halliday; and, secondly, on the ground that Victoria Legal Aid has not supplied him with details of the claim it makes against him.
In support of its claim the managing director of Victoria Legal Aid has signed and filed a certificate in the court pursuant to s.48B of the Legal Aid Act 1978, which reads:
"In any proceedings a certificate signed by the managing director stating the amount owed to VLA at the date of the certificate by any assisted person is evidence of the amount owed by that person at that date."
The certificate signed by the managing director of Victoria Legal Aid is dated 1 August 2001 and certifies that as at that date the amount owed by Mr Halliday was $12,305.75. In an affidavit sworn by the finance manager of Victoria Legal Aid on 31 October last, the finance manager has pointed out that the charge given by Mr Halliday back in 1980 only secures $7,220.75 of that sum.
In my opinion there is nothing at all about the orders made by Byrne, J. on 11 December 1998 which could in any way estop Victoria Legal Aid from making the claim it presently does. I am unaware of what material Legal Aid has made available to Mr Halliday justifying its claim for the sum it now seeks, namely, $7,220.75, although I note that for some considerable period of time the parties have been in communication with each other concerning the amount. In my opinion it is not a necessary prerequisite that Victoria Legal Aid make available to Mr Halliday details of the legal aid it has paid or advanced on his behalf. I have before me the certificate of the managing director, together with the explanatory affidavit of Matthews of 31 October, and I consider I am justified in acting on that material.
I order, therefore, that the sum of $7,220.75 be paid from Common Fund No. 1 and debited to account No. 65630 to Victoria Legal Aid to discharge its caveat over the land being Unit 2, 7 Canyon Street, Balwyn, and being the land more particularly described in Certificate of Title Vol. 9116 Folio 148.
I order that the first defendant pay the costs of the appeal from paragraph 2(b) of the order of the Master made 3 August 2001.
I give special leave to Victoria Legal Aid to rely upon the affidavit of Matthews sworn 31 October 2001.
I give special leave to the first defendant to rely upon the affidavits sworn by him on 16 November and 19 November respectively.
(Discussion ensued.)
HIS HONOUR: The order under "Other Matters" will note that in fact the Master has already released to Victoria Legal Aid the sum of $7,220.75.
I direct that this order be prepared by Victoria Legal Aid and within 48 hours brought to me for authentication.
(Discussion ensued as to costs.)
HIS HONOUR: I do not propose to vary the order I pronounced. In my opinion it is appropriate that costs follow the event.
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