Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd - [2007] QCA 141

SUPREME COURT OF QUEENSLAND

CITATION:

Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141

PARTIES:

CLAIRVIEW DEVELOPMENTS PTY LTD (ACN 074 023 126)
(plaintiff/appellant)
v
LAW MORTGAGES GOLD COAST PTY LTD (ACN 070 274 565)
(first defendant)
PAMELA JOAN HOLYOAK
(second defendant)
MARGARET AGNES SIMMONS
(third defendant/first respondent)
BEVERLEY ANNE EULER
(third defendant/first respondent)
ANNETTE ELIZABETH MEYER
(fourth defendant/second respondent)
MARGARET AGNES SIMMONS
(fourth defendant/second respondent)
LESLIE ROBERT SIMMONS
(fifth defendant/second respondent)
VICTORIA WOOD
(fifth defendant)
RALPH GRAHAM WOOD
(fifth defendant)

FILE NO/S:

Appeal No 8060 of 2006
SC No 3922 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2007

JUDGES:

McMurdo P, Jerrard JA and Helman J
Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Helman J dissenting in part

ORDER:

1. Appeal dismissed
2. Appellant pay the respondents’ costs

CATCHWORDS:

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – MODE OF EXERCISE OF POWER – GENERALLY – where the appellant alleged it was owed damages from the respondents in excess of the value of the mortgage – where the appellant was granted a caveat over the mortgaged land – where the respondents argued that a debt arose under the mortgages that exceeded the present value of the land – where the caveat was removed by court order and summary judgment was given against the respondents – where the respondents then purported to exercise the power of sale – whether the respondents were entitled to exercise the power of sale

Trade Practices Act 1974 (Cth), s 52
Land Title Act 1994 (Qld)
Property Law Act 1974 (Qld), s 84
Uniform Civil Procedure Rules 1999 (Qld), r 293

Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421, distinguished
Corello v Jordan [1935] St R Qd 294, distinguished
De Lisle v. Union Bank of Scotland [1914] 1 Ch 22, distinguished
Hill Corcoran Constructions Pty Ltd v Navarro [1992] QCA 17, considered
Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 164, applied
Nioa v Bell (1901) 27 VLR 82, distinguished
Parker v Jackson [1936] 2 All ER 281, distinguished
Samuel Keller Ltd v Martins Bank Ltd (1973) All ER 950, considered
Tessmann v Costello [1987] 1 Qd R 283, considered

COUNSEL:

P Hackett for the appellant
P Morrow for the respondents

SOLICITORS:

Tucker and Cowan Solicitors for the appellant
Robbins Watson Solicitors for the respondents

McMURDO P: I agree with Jerrard JA that the appeal should be dismissed. Jerrard JA has set out the relevant issues and facts so that my reasons can be shortly stated.

The appellant is the registered proprietor of land subject to registered mortgages, originally in favour of Law Mortgages Gold Coast Pty Ltd ("Law Mortgages"). Law Mortgages transferred the mortgages to…

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] QCA 141
Decision Date: 27 April 2007

CaseChat Overview and Summary

The dispute arose between Clairview Developments Pty Ltd, the appellant, and Law Mortgages Gold Coast Pty Ltd, the respondent. The appellant mortgaged certain land to the respondent to secure a loan. The appellant subsequently claimed damages from the respondent, arguing that the value of the damages exceeded the value of the mortgaged land. The appellant lodged a caveat over the land and obtained a summary judgment against the respondent for damages exceeding the mortgage amount. The respondent sought to remove the caveat and exercise the power of sale under the mortgage.

The primary legal issue was whether the respondent was entitled to exercise the power of sale under the mortgage given that the appellant had obtained summary judgment for damages exceeding the value of the mortgaged land. The court had to determine whether the respondent's right to exercise the power of sale was extinguished or merely suspended by the appellant's judgment. The court also had to consider whether the appellant's actions in obtaining summary judgment and lodging a caveat were proper and whether they affected the respondent's right to exercise the power of sale.

The court held that the respondent was entitled to exercise the power of sale under the mortgage. The court found that the appellant's actions in obtaining summary judgment and lodging a caveat did not extinguish the respondent's right to exercise the power of sale. The court held that the appellant's judgment did not affect the respondent's security interest in the mortgaged land. The court also held that the respondent's right to exercise the power of sale was not suspended by the appellant's actions. The court found that the respondent had properly exercised the power of sale and that the appellant's appeal should be dismissed.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs. The court held that the appellant's appeal was without merit and that the respondent was entitled to exercise the power of sale under the mortgage. The court also held that the appellant's actions in obtaining summary judgment and lodging a caveat were improper and that they did not affect the respondent's right to exercise the power of sale. The court ordered that the appellant pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant pay the respondents’ costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141
PARTIES:	CLAIRVIEW DEVELOPMENTS PTY LTD (ACN 074 023 126) (plaintiff/appellant) v LAW MORTGAGES GOLD COAST PTY LTD (ACN 070 274 565) (first defendant) PAMELA JOAN HOLYOAK (second defendant) MARGARET AGNES SIMMONS (third defendant/first respondent) BEVERLEY ANNE EULER (third defendant/first respondent) ANNETTE ELIZABETH MEYER (fourth defendant/second respondent) MARGARET AGNES SIMMONS (fourth defendant/second respondent) LESLIE ROBERT SIMMONS (fifth defendant/second respondent) VICTORIA WOOD (fifth defendant) RALPH GRAHAM WOOD (fifth defendant)
FILE NO/S:	Appeal No 8060 of 2006 SC No 3922 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2007
JUDGES:	McMurdo P, Jerrard JA and Helman J Separate reasons for judgment of each member of the Court, McMurdo P and Jerrard JA concurring as to the orders made, Helman J dissenting in part
ORDER:	1. Appeal dismissed 2. Appellant pay the respondents’ costs
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – MODE OF EXERCISE OF POWER – GENERALLY – where the appellant alleged it was owed damages from the respondents in excess of the value of the mortgage – where the appellant was granted a caveat over the mortgaged land – where the respondents argued that a debt arose under the mortgages that exceeded the present value of the land – where the caveat was removed by court order and summary judgment was given against the respondents – where the respondents then purported to exercise the power of sale – whether the respondents were entitled to exercise the power of sale Trade Practices Act 1974 (Cth), s 52 Land Title Act 1994 (Qld) Property Law Act 1974 (Qld), s 84 Uniform Civil Procedure Rules 1999 (Qld), r 293 Clarke v Japan Machines (Australia) Pty Ltd (No 2) [1984] 1 Qd R 421, distinguished Corello v Jordan [1935] St R Qd 294, distinguished De Lisle v. Union Bank of Scotland [1914] 1 Ch 22, distinguished Hill Corcoran Constructions Pty Ltd v Navarro [1992] QCA 17, considered Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 164, applied Nioa v Bell (1901) 27 VLR 82, distinguished Parker v Jackson [1936] 2 All ER 281, distinguished Samuel Keller Ltd v Martins Bank Ltd (1973) All ER 950, considered Tessmann v Costello [1987] 1 Qd R 283, considered
COUNSEL:	P Hackett for the appellant P Morrow for the respondents
SOLICITORS:	Tucker and Cowan Solicitors for the appellant Robbins Watson Solicitors for the respondents