Commonwealth Bank of Australia v Kenney
[2016] WASC 230
•29 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- KENNEY [2016] WASC 230
CORAM: LE MIERE J
HEARD: 19 JULY 2016
DELIVERED : 29 JULY 2016
FILE NO/S: CIV 1869 of 2013
BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
GREGORY PETER KENNEY
Defendant
Catchwords:
Slip rule O 21 r 10 of the Rules of the Supreme Court 1971 (WA) - Clerical mistake or error - Order amended - Amending an order under the Civil Judgments Enforcement Act 2004 (WA) - Turns on own facts
Supplemental order under the Civil Judgments Enforcement Act 2004 (WA) - Order to allow entry upon and the taking possession of property - Turns on own facts
Application to stay property (seizure and delivery) order - No grounds for stay - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), pt 5 div 1, s 15, s 98, s 99, s 103, s 104, s 105
Rules of the Supreme Court 1971 (WA), O 21 r 10
Result:
Order of the Master and the property (seizure and delivery) order amended
Supplemental orders made under s 99 of the Civil Judgments Enforcement Act 2004 (WA)
The defendant's application for a stay is dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr M J Feutrill & Mr L D Ayres
Defendant: In person
Solicitors:
Plaintiff: Minter Ellison Lawyers
Defendant: In person
Case(s) referred to in judgment(s):
Nil
LE MIERE J:
Summary
The Master ordered the defendant, Mr Kenney, to deliver vacant possession of a farming property at Salmon Gums (the Property) to the plaintiff (the Bank). Mr Kenney did not deliver up possession of the Property. The court issued a property (seizure and delivery) order authorising the sheriff to take possession of the Property and deliver it into the possession of the Bank (the PSDO). The sheriff executed the order and the Bank's agent took possession of the Property. The Bank took no further action with respect to the Property until an appeal by Mr Kenney from the order of the Master was dismissed on 15 March 2016. Mr Kenney is in physical possession or occupation of the Property.
The Bank has applied to correct the order made by the Master and amend the PSDO by referring to Lot 466, not Lot 446, in the relevant property description within each order. The Bank further seeks supplemental orders to enforce the possession order made by the Master and the PSDO.
Mr Kenney and Ms Kenney have commenced proceedings against the Bank in the Federal Court in which they seek relief including a declaration that any indebtedness to the Bank has been discharged and an order discharging any mortgage over the Property in favour of the Bank. Mr Kenney has applied for a stay of the PSDO pending the resolution of the Federal Court proceedings.
For the reasons which follow, the order of the Master and the PSDO should be amended to refer to Lot 466 not Lot 446, supplemental orders should be made in order to enforce those orders and Mr Kenney's application for a stay should be dismissed.
Property Possession Order
The Bank loaned money to Mr Kenney and Ms Kenney. The loans were secured by a mortgage of the Property, which consists of:
•Fitzgerald Locations 580 and 1433, the whole of the land in Volume 1586 Folio 647;
•Lot 466 on deposit of plan 202810, the whole of the land in Volume 1586 Folio 648; and
•Lot 1538 on deposit of plan 172656, the whole of the land in Volume 1586 Folio 649;
of which Mr Kenney is the registered proprietor.
In 2011 Mr Kenney and Ms Kenney were in default under the terms of the loans. The Bank made demand for payment. The demands were not met. On 10 May 2013 the Bank served on Mr Kenney notices requiring him to deliver up vacant possession of the Property within 10 days. Mr Kenney failed to do so and the Bank commenced proceedings to recover the money said to be owing and for possession of the Property. Mr Kenney filed a memorandum of appearance and a defence. On 11 August 2014 Master Sanderson concluded that Mr Kenney had no arguable defence to the claim and gave summary judgment for the Bank. The Master ordered that Mr Kenney pay to the Bank amounts owing under the loans. The Master further ordered that Mr Kenney, within 28 days, deliver up to the Bank, as mortgagee pursuant to the mortgage, vacant possession of the Property (the Property Possession Order). The second lot was described in the order as the land comprised in Lot 446 on deposited plan 202810 being the whole of the land comprised in certificate of title volume 1586 folio 648. That is, the lot number was incorrectly described as Lot 446 rather than Lot 466.
PSDO
Mr Kenney did not deliver up possession of the Property. On 18 September 2014 pursuant to pt 5 div 1 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act) the court issued a property (seizure and delivery) order authorising the sheriff to enter the property named in the order, with force if necessary, evict persons not entitled to be there, take possession of the property and deliver it into the possession of the Bank (the PSDO). The description of the property included 'Lot 446 on deposited plan 202810 and being the whole of the land comprised in certificate of title volume 1586 folio 648'. On 16 October 2014 a representative of the bailiff attended at the Property with the agent of the Bank to take possession of the Property. The Bank's agent subsequently reported that on 16 October 2014 the PSDO was executed and the agent received full, quiet and peaceable possession of the Property.
Kenney appeals and applies for suspension of PSDO
On 15 October 2014 Mr Kenney appealed from the order of the Master. The appeal was heard on 15 October 2015 and dismissed on 15 March 2016.
On 24 October 2014 Mr Kenney applied to the court for an order for suspension of the execution of the PSDO. On 15 December 2014 Registrar Dixon dismissed Mr Kenney's application for suspension of the PSDO.
Kenney is in occupation of Property
Mr Kenney was in March 2016, and remains, in physical possession or occupation of the Property. The Bank has requested and Mr Kenney has refused to deliver up vacant possession of the Property to the Bank's agent.
Application to correct lot number
The Bank seeks the following orders:
1.Pursuant to O 21 r 10 of the Rules of the Supreme Court 1971 (WA), the order by Master Sanderson on 11 August 2014 (Property Possession Order) be amended to refer to Lot 466 (not Lot 446) on deposited plan 202810; and
2.Pursuant to one or more of s 103, 104 and 105 of the CJE Act, the PSDO be amended to refer to Lot 466 (not Lot 446) on deposited plan 202810.
Orders should be corrected and amended
Order 21 r 10 of the Rules (the slip rule) provides that clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court on motion or summons without an appeal. The reference in the Property Possession Order to Lot 446 is a clerical mistake or error arising from an accidental slip or omission. The property in respect of which the Property Possession Order was made was the mortgaged property. The mortgage records that the relevant property is Lot 466 on deposited plan 202810, the whole of the land in Volume 1586 Folio 648. The Property Possession Order correctly recorded the certificate of title volume and folio numbers.
Mr Kenney submitted that the statement of claim incorrectly referred to the relevant property as Lot 446 and therefore the judgment of the Master and the Property Possession Order are irregular and should be set aside. I do not accept that submission. There can be no doubt that the statement of claim referred to the property which is Lot 466 but incorrectly described it as Lot 446. The mortgage was annexed to the affidavit of Mr Ficko adduced by the Bank in support of its summary judgment application. The mortgage correctly describes the property as Lot 466. Mr Kenney did not claim in the proceedings before the Master or in the appeal to the Court of Appeal that the property the subject of the proceedings and the Property Possession Order was any land other than Lot 466. The Property Possession Order will be corrected by substituting Lot 466 for Lot 446 in the order.
Section 103(2) of the CJE Act provides that the court may make an order that amends or cancels an order made under the Act. The PSDO should be amended to refer to Lot 466 not Lot 446. The PSDO was made to enforce the Property Possession Order. The PSDO should be amended to give effect to the correction to the Property Possession Order. The PSDO will be amended so that it refers to Lot 466 not Lot 446.
Supplemental orders
Section 99 of the CJE Act provides:
99. Court may order act to be done at expense of obligated person
(1)This section applies if a judgment requires or has the effect of requiring a person (the obligated person) to do an act.
(2)In order to enforce such a judgment, a person who is entitled to the benefit of the judgment may apply to the court for an order addressed to ‑
(a)the person entitled to the benefit of the judgment; or
(b)a person appointed by the court,
that authorises that person to do the act concerned, or as much of it as is practicable, at the expense of the obligated person.
(3)The court may make such an order and may do so on terms as to costs or otherwise.
(4)The court may make such an order whether or not proceedings for contempt are being taken against the obligated person.
(5)When or after making such an order the court may make any necessary ancillary or consequential order including an order providing for the expenses of carrying out the order to be determined by the court.
(6)When or after making such an order, the court may make an enforcement order under Part 4 for the purpose of enforcing the payment of ‑
(a)the enforcement costs associated with the order; and
(b)the expenses determined under subsection (5).
I am satisfied, on the balance of probabilities, that the Property Possession Order required Mr Kenney, within 28 days, to deliver up to the Bank vacant possession of the Property and that he has failed to do so. Mr Kenney is in occupation of the Property and has machinery and other chattels on the Property. Indeed, Mr Kenney asked the court to make any order requiring him to vacate the Property to not take effect until 17 December so that he can carry out a clearing sale on the Property on 15 December 2016. It is almost two years since the Bank became entitled to vacant possession of the Property. It is appropriate that an order under s 99 of the CJE Act now be made.
My findings of fact in relation to the delivery up of vacant possession of the Property do not express any conclusion for the purpose of the contempt proceedings which have been brought against Mr Kenney. For the purposes of contempt, hearsay is not admissible and facts must be established beyond reasonable doubt. I express no view as to whether there has been disobedience for the purposes of s 98 of the CJE Act. Nor do I express any view as to whether any failure to comply was a deliberate failure to comply with an order of which Mr Kenney was aware. Those matters will be determined in the course of the contempt proceedings.
It is appropriate that there be an order under s 99(2) of the CJE Act that the Bank, by its employees and agents, may enter upon, take physical possession of and occupy the Property. The order does not authorise the Bank, its employees or agents, to use force if any person in occupation of the Property resists the Bank entering upon or taking physical possession or occupation of the Property. The order will be to the effect that the Bank, its employees or agents may, enter upon, take physical possession of and occupy the Property.
It is appropriate that Mr Kenney, whether by himself, his employees, his agents or otherwise be restrained from preventing or obstructing the Bank from entering into, taking physical possession of and occupying the Property.
Time at which authority should take effect
Mr Kenney requested that, if the court makes orders authorising the Bank to enter upon and take physical possession of the Property, the authority to do so should not take effect until 17 December 2016. Mr Kenney wishes to conduct a clearing sale of his machinery and chattels on the Property. He says that farmers will be occupied with farming activities and would not attend such a sale until 15 December 2016.
Mr Kenney was ordered on 11 August 2014 to deliver up vacant possession of the Property within 28 days. That was almost two years ago. It is not appropriate to deny the Bank the benefit of the orders made in its favour for another five months. Mr Kenney should have a short period in which he may make arrangements to remove machinery and other chattels from the Property. The authority given to the Bank to enter upon and take physical possession of the Property should take effect from 15 August 2016.
Mr Kenney's application to stay the PSDO
Mr Kenney did not state the source of the court's power to make the order sought in his notice of originating motion that the Property Possession Order 'be stayed pending res judicata in relation to Federal Court application'. It might be, as counsel for the Bank suggested, an application under s 15 of the CJE Act. It is unnecessary to recite the principles which govern the exercise of the discretion under s 15. Mr Kenney's application fails to disclose any ground for the exercise of the discretion.
Mr Kenney submitted that there is new evidence to support his claim that judgment should not have been entered in favour of the Bank. Mr Kenney said that the new evidence is contained in [8] to [10] of his affidavit sworn on 1 June 2016. In [8] Mr Kenney says that in the proceedings before this court it was put by the legal representatives of the Bank that he was bound by terms and conditions in a Memorandum of Provisions lodged at Landgate on 30 April 1992. Mr Kenney says that at the time he was unrepresented, was not told the date of lodgement and did not ask to see and was not offered to sight a copy of the document. He says that the document is not binding upon him. It was tied to a previous contract which was discharged before the contract the subject of the proceedings giving rise to the Property Possession Order was entered into. Mr Kenney says that he is not bound by the terms in the Memorandum.
That is not fresh evidence or new evidence. The mortgage and the Memorandum of Provisions were in evidence before the Master. They are annexures to the affidavit of Mr Ficko sworn on 30 April 2014 and adduced by the Bank in support of its application for summary judgment. Furthermore, Mr Kenney's contention has no merit. The mortgage provides:
The Mortgagor and the Debtor will observe the provisions set forth in the Memorandum of Provisions filed and registered with the Department of Land Administration Western Australia as No G00141 which provisions are deemed to be incorporated.
The Memorandum of Provisions filed and registered as No G141 is the Memorandum of Provisions lodged on 30 April 1992.
Secondly, Mr Kenney referred to [16] of his affidavit where he says that the mortgage was only to provide security for a limited amount of financial accommodation, for a limited time and only in the event of default. Mr Kenney alleges that
for illicit reasons now before the Federal Court related to the unconscionable and fraudulent and unauthorised secret sale of my entire mortgage into a scheme of conversion of it into an illegally created financial derivative known by the name 'Securitisation', the [Bank] has divested itself of all right and title to that mortgage.
Mr Kenney says the mortgage is his property, it is now in the hands of third party investors and the Bank has no lawful capacity to enforce its contract and that to do so would be a further fraud.
None of that, of course, is evidence. They are merely allegations made at a high level of generality. In his oral submissions Mr Kenney conceded that there was no evidence of fraud before this court and submitted that it would be presented in the Federal Court proceedings. That provides no grounds for a suspension order.
If Mr Kenney's application for a stay is made pursuant to the court's inherent jurisdiction then no grounds have been established for the making of such a stay.
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