CIUPRYK v Thorp
[2006] WADC 165
•12 OCTOBER 2006
CIUPRYK -v- THORP & ANOR [2006] WADC 165
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 165 | |
| Case No: | CIV:2901/1999 | 11 AUGUST 2006 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 12/10/06 | |
| PERTH | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Claim not sustained | ||
| PDF Version |
| Parties: | STEVEN DALE CIUPRYK DOUGLAS HENRY ALBERT THORP PAUL HUDSON |
Catchwords: | Sheriff's interpleader summons under Civil Judgment Enforcement Act 2004 Determination of claimants interest in land |
Legislation: | Civil Judgment Enforcement Act 2004 |
Case References: | Nil Baumgartner v Baumgartner (1987) 164 CLR 137 Jandric v Jandric [1999] WASC 22 Kais v Turvey (1994) 11 WAR 357 Muschinski v Dodds (1985) 160 CLR 583 Olsson v Dyson (1969) 120 CLR 365 Silvester v Sands [2004] WASC 266 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff/Judgment Creditor
AND
DOUGLAS HENRY ALBERT THORP
Defendant/Judgment Debtor
PAUL HUDSON
Claimant
Catchwords:
Sheriff's interpleader summons under Civil Judgment Enforcement Act 2004 - Determination of claimants interest in land
Legislation:
Civil Judgment Enforcement Act 2004
Result:
Claim not sustained
(Page 2)
Representation:
Counsel:
Plaintiff/Judgment Creditor : Mr P D Quinlan
Defendant/Judgment Debtor : No appearance
Claimant : Mr P Arns
Solicitors:
Plaintiff/Judgment Creditor : Lewis Blyth & Hooper
Defendant/Judgment Debtor : Not applicable
Claimant : Arns & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Jandric v Jandric [1999] WASC 22
Kais v Turvey (1994) 11 WAR 357
Muschinski v Dodds (1985) 160 CLR 583
Olsson v Dyson (1969) 120 CLR 365
Silvester v Sands [2004] WASC 266
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The judgment creditor has obtained a property (seizure and sale) order under the Civil Judgments Enforcement Act 2004 against the interest of the judgment debtor in the property at 84 Alexandra Road, East Fremantle. In undertaking the process of execution under that order the Sheriff was notified of the claimant's claim against the judgment debtor's interest in the property. By his interpleader summons of 4 April 2006 the Sheriff has facilitated the determination of that claim. The claimant and judgment creditor agreed that they would file affidavits relating to the claim. On 23 May 2006 the claimant filed his affidavit and on 20 June 2006, in the presence of the claimant the claim was adjourned for hearing on a date to be fixed.
2 I have chosen to canvass that last detail as at the hearing the claimant submitted that the claim would be appropriately determined at trial. There is no reason to consider that the determination made by the court on 20 June 2006 was other than consistent with the opinion then held by the claimant of the appropriate manner of determining the claim. I accept that both circumstances and a party's view of circumstances may change, however in advancing the submission the claimant did not point to any particular aspect of the evidence that would be the subject of contest at trial. Indeed it appeared to be the case that the evidence put by the claimant was uncontested by the judgment creditor. Be that as it may, if in the process of determining the application the court came to the view that it was either inappropriate to do so or that it would be preferable to put the claim to trial it would be open for the court to consider adopting that course.
3 It is appropriate to consider that the claimant carries the onus of persuading the court that the interest that he has claimed qualifies the interest of the judgment debtor in the land.
4 According to par 5 of the claimant's affidavit of 22 May 2006 and following, in January 1994 he and the judgment debtor were registered as proprietors of the property in equal shares as tenants in common. Their purchase was financed by the vendor to the tune of $80,000 and what is described as the Carrick loan for $160,000. The vendor was duly paid and the Carrick loan was replaced by what is described as the Clifton loan which was for $220,000. Surplus funds from the Clifton loan were utilised by its borrowers for purposes unrelated to the land. The apportionment of those surplus funds was $5,000.00 to the claimant and $44,221.34 to the judgment debtor. At par 11 the claimant deposes that the Clifton loan was replaced with a loan from the National Australia Bank for $220,000.
(Page 4)
5 At par 14 he deposes:
"Until approximately the 27th of August 1998, the (judgment debtor) and I were each contributing to all expenses incurred in the maintenance and upkeep of the Property including payments on the NAB Mortgage. Since August 1998 I have been meeting all of the mortgage payments and expenses relating to the Property. The financial history and respective payments made by myself and the (judgment debtor) are set out in the attached schedules."
6 The schedules headed "Carrick Loan", "Clifton Loan" and "NAB Mortgage", disclose what I take to be the date of each relevant payment, the amount paid, the method of payment and by whom it was made. The schedule headed "Rates and Taxes and other property expenses" identifies what I take to have been amounts paid for relevant statutory charges and goods or services purchased and by whom they were paid. There is no deposition by the claimant to the content of those schedules but on face value it would substantiate the summary of payments made by the judgment debtor and claimant expressed at par 19 of the affidavit. That summary reveals a combined expenditure of $202,458.01 to which the judgment debtor defrayed $20,676.52 and the claimant, the balance. I take it to be implicit that the quantum of the claim includes a component for the claimant's contribution to that combined expenditure to the extent that it exceeds what would have been an equal contribution by himself and the judgment debtor.
7 At par 2 he deposes that on 25 June 2001 he lodged a caveat against the judgment debtor's estate and interest in the property. It is attached to the affidavit as is a copy of the undated statutory declaration upon which its registration was founded. The caveat expressed a claim as chargee of the judgment debtor's interest in the land. That claim was expressed to be founded on a right to receive a portion of the proceeds of sale of the judgment debtor's interest of the land on the basis of an equitable right to contribution. In the statutory declaration the claimant specified that he had made a greater contribution to rates, taxes and mortgage payments to the tune of $60,000 and that the judgment debtor had drawn approximately $38,000 in excess of the claimant's drawings from joint borrowings by the judgment debtor and the claimant secured by a registered mortgage. In his affidavit the claimant makes no deposition to the content of the statutory declaration but taking into account the date of the caveat, it is broadly consistent with the content of par 19 of the affidavit.
(Page 5)
8 The only claim actually expressed by the claimant is at par 20 and is for interest on a proportion of the combined expenditure expressed at par 19.
9 On my analysis of the affidavit it does not express any process or mechanism by which the charge expressed in the caveat would be generated.
10 To the extent that the content of the schedules would reveal the character of each payment, none would suggest that it would qualify the judgment debtor's registered interest. In the case of each payment made to the mortgagees, regardless of whether it was allocated to principal or interest, it does not establish an interest in land or found a charge against such an interest. In the case of payment made to the relevant statutory authority or the State Government for land tax, whilst non-payment may have resulted in the imposition of a statutory charge, the fact of payment does not confer an in rem entitlement on a payee. As to the balance of what is contained in the same schedule, there is nothing that would suggest that any payment made by the claimant would impact upon the judgment debtor’s registered interest.
11 As to the disproportional allocation of funds from the Clifton loan, there is no evidence of any process that operated between the parties that led to the particular distribution. All that is stated is that the funds were utilised for purposes unrelated to the property. If such a distribution were to have the effect for which the claimant contends then the court would be required to infer not only that the parties had so agreed but also that a term of the agreement was that the judgment debtor’s registered interest would be qualified.
12 As to the claim to interest, there is no reference made by the claimant to any agreement upon which either any such an entitlement or a sufficient entitlement would be established.
13 There is no evidence of the circumstances whereby the claimant assumed responsibility for paying the greater share of outgoings. There is no evidence to establish any connection between what the claimant describes in this affidavit and statutory declaration as "claims" and the land. The distinction to be drawn is between in rem interests and in personam entitlements. Of itself the fact that there had been different contributions to either the maintenance of the property or the value of registered interests of the proprietors would not generate any in rem entitlement of one against the other.
(Page 6)
14 If I were to consider the prospect that the judgment debtor had gained some advantage to the detriment of the claimant by the claimant's greater expenditure input expressed in par 19 of his affidavit, I would not be able to reach any useful conclusion. That is because I know nothing as to the circumstances whereby the parties had disproportionately distributed the surplus funds from the Clifton loan or their contributions to the purchase price of the property from sources other than the Carrick loan.
15 A further complicating feature of the context from which the claim emerges is that the claimant could not rely upon the court drawing an inference that in purchasing the property it had been the common intent of the claimant and the judgment debtor to advance their broader financial interests. Apart from the issues that I have mentioned in the last paragraph, the purpose of the exercise appears to have been to accommodate the mother of the judgment debtor and grandmother of the claimant. It transpires that she has been accommodated at the property and may otherwise have been financially accommodated.
16 As I have already noted the claimant proposed that the claim be determined at trial. Ultimately he submitted that the case was insufficiently clear to allow for what would in effect be a final judgment in relation to the claim. In my opinion any perceived lack of clarity in the case before me is attributable to the claimant's failure to provide any useful evidence which would substantiate the claim that he makes. As to each of the prospects that I have countenanced I am satisfied that the claimant has failed to bring any useful evidence either in support of his claim or of his inability to do so.
17 At that point the case at that point resolves to whether there is a sufficient reason to send the issues to be determined to trial simply because the claimant has utilised particular terminology in expressing his claim and in the statutory declarations supported the caveat. In my opinion the claimant's case is revealed as being without substance and therefore without any claim to justification for the issue raised upon the summons to proceed to trial.
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