Citi Nominees Pty Ltd v Skipworth - [2007] WASC 145

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CITI NOMINEES PTY LTD -v- SKIPWORTH & ANOR [2007] WASC 145

CORAM: LE MIERE J

HEARD: 27 APRIL 2007

DELIVERED : 29 JUNE 2007

FILE NO/S: CIV 2373 of 2006

BETWEEN: CITI NOMINEES PTY LTD
Plaintiff
AND
JEFFREY DONALD SKIPWORTH
JANET-JANE TURNBULL SKIPWORTH
Defendants

FILE NO/S :CIV 2374 of 2006

BETWEEN :PMB PLASTERBOARD PTY LTD
Plaintiff
AND
JEFFREY DONALD SKIPWORTH
JANET-JANE TURNBULL SKIPWORTH
Defendants

FILE NO/S :CIV 2375 of 2006

BETWEEN :HARRY ROBINSON
Plaintiff
AND
JEFFREY DONALD SKIPWORTH
JANET-JANE TURNBULL SKIPWORTH
Defendants

FILE NO/S :CIV 2376 of 2006

BETWEEN :CHEQUECASH PTY LTD
Plaintiff
AND
JEFFREY DONALD SKIPWORTH
JANET-JANE TURNBULL SKIPWORTH
Defendants

Catchwords:

Civil practice and procedure - Ex parte orders made - Application to set aside orders based on non-disclosure - Whether non-disclosure material - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth), s 133
Civil Judgments Enforcement Act 2004 (WA)
Family Law Act 1975 (Cth)
Transfer of Land Act 1893 (WA), s 109, s 138B, s 138C

Result:

Orders of 29 December 2006 discharged

Category: B

Representation:

CIV 2373 of 2006

Counsel:

Plaintiff: Mr N W Marsh
Defendants: Mr J G M Fiocco

Solicitors:

Plaintiff: Julienne Penny & Associates
Defendants: Fiocco's Lawyers

CIV 2374 of 2006

Counsel:

Plaintiff: Mr N W Marsh
Defendants: Mr J G M Fiocco

Solicitors:

Plaintiff: Julienne Penny & Associates
Defendants: Fiocco's Lawyers

CIV 2375 of 2006

Counsel:

Plaintiff: Mr N W Marsh
Defendants: Mr J G M Fiocco

Solicitors:

Plaintiff: Julienne Penny & Associates
Defendants: Fiocco's Lawyers

CIV 2376 of 2006

Counsel:

Plaintiff: Mr N W Marsh
Defendants: Mr J G M Fiocco

Solicitors:

Plaintiff: Julienne Penny & Associates
Defendants: Fiocco's Lawyers

Case(s) referred to in judgment(s):

Behbehani v Salem [1989] 2 All ER 143
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350
Lazard Bros & Co v Midland Bank Ltd [1933] AC 289
Liberty Financial Pty Ltd v Scott [2002] FCA 345
RAMS Mortgage Corporation Ltd v Skipworth & Anor (No 2) [2007] WASC 75
RAMS Mortgage Corporation Ltd v Skipworth & Anor [2007] WASC 24
Rogers v Resi‑Statewide Corporation Ltd (No 2) (1991) 32 FCR 344
Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639
Surefire Holdings Pty Ltd v Oxley Sports Drome Pty Ltd [2001] QSC 85
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679

LE MIERE J: The second named defendant ("Mrs Skipworth") in each of these four proceedings has applied to set aside orders made by Justice Miller on 29 December 2006 that the operation of four caveats be extended until further order of the Court.
Counsel for Mrs Skipworth commenced his oral submissions by saying that the present application to remove the caveats is to enable Mrs Skipworth to refinance the property by paying out the mortgagee, RAMS Mortgage Corporation Ltd ("RAMS"). It is therefore necessary to give some attention to the property,…

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.

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Details

Case: [2007] WASC 145
Decision Date: 29 JUNE 2007

CaseChat Overview and Summary

Citi Nominees Pty Ltd and three other companies sought to extend the operation of caveats lodged against property held in joint tenancy by Mr and Mrs Skipworth. Mrs Skipworth applied to set aside the orders extending the operation of the caveats, arguing that they were made as a result of material non-disclosure by the caveators. The dispute came before the Supreme Court of Western Australia. The central issue before the court was whether the ex parte orders extending the operation of the caveats should be set aside due to the material non-disclosure by the caveators. Specifically, the court had to determine if the non-disclosure was significant enough to warrant setting aside the orders. The court considered that the orders were made based on evidence of a purported charge having been granted by both registered proprietors. The fact that Mrs Skipworth had no notice of the applications and the allegations of forgery by Mr Skipworth were critical in the decision. The court concluded that the non-disclosure was indeed material and thus set aside the orders extending the operation of the caveats.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 11 October 2006 the trustee of the bankrupt estate of Mr Skipworth disclaimed property of the bankrupt, including the Property. On Mr Skipworth's bankruptcy his estate in the Property vested in the trustee. This constituted a disposition of Mr Skipworth's estate in the Property. The disposition severed the joint tenancy and from then, until the disclaimer, the Property was held in law as a tenancy in common in equal shares, with the bankrupt's undivided equal share, subject to the RAMS mortgage, being held by the trustee and the other undivided half share being held by Mrs Skipworth. Upon the notice of disclaimer being given by the trustee of Mr Skipworth's interest in the Property all Mr Skipworth's right, title and interest in the land terminated (without affecting the mortgagee's interest). Mrs Skipworth remains as the owner of a one undivided half share as tenant in common but, in the absence of a vesting order made under s 133(9) of the Bankruptcy Act 1966 (Cth). Mr Skipworth's interest will revert or escheat to the Crown: RAMS Mortgage Corporation Ltd v Skipworth & Anor [2007] WASC 24 at [82]. The certificate of title to the Property records a number of caveats having been lodged together with the registered mortgage to RAMS. It appears that a number of the caveats have been removed or lapsed following the issue of notices to remove the caveats which Mrs Skipworth caused to be issued under s 138B of the Transfer of Land Act 1893 (WA) ("TLA"). The four caveats the subject of this application remain in place. They are caveats by Citi Nominees Pty Ltd (J148142), PMB Plasterboard Pty Ltd (I980968), Harry Robinson (J000500) and Chequecash Pty Ltd (I963052). Mrs Skipworth says that these four caveats rely upon charges which she never authorised or ratified and in respect of three of which Mr Skipworth forged her signature. Mr Skipworth has been charged with having committed a number of alleged offences involving fraud or forgery in relation to these credit or loan agreements. Mrs Skipworth submits that the caveats are invalid and ineffective. However, in her present application Mrs Skipworth does not argue that the caveators' claims do not have substance and should be removed for that reason. In this application, Mrs Skipworth submits that the order extending the operation of the caveats by Miller J should be set aside on the ground that they were made as a result of material non‑disclosure by the caveators who are the plaintiffs in each of these proceedings. In December 2006 Mrs Skipworth caused the Registrar of Titles to issue to the plaintiff in each of these proceedings a notice under s 138B of the TLA that the caveat would lapse within 21 days unless the plaintiff obtained that order extending the operation of the caveat. The plaintiff in each of these proceedings applied to this Court ex parte during the Christmas recess period seeking orders extending the operation of the caveats. Those applications came on for hearing before the duty Judge, Miller J, on an ex parte basis. Faced with evidence of a purported charge having been granted by both registered proprietors, Miller J made orders extending those caveats. Mrs Skipworth had no notice of those applications.