FEDERAL COURT OF AUSTRALIA
Davidson v Suncorp-Metway Limited (No 4) [2021] FCA 25
File number: QUD 18 of 2020 Judgment of: JACKSON J Date of judgment: 28 January 2021 Catchwords: HIGH COURT AND FEDERAL COURT - federal jurisdiction - originating application seeking preliminary discovery in respect of alleged breaches of federal legislation - prospective applicant seeking to raise further claim based on state legislation regarding enforceability of mortgage - consideration of whether federal and non-federal claims are part of same 'matter' - scope of the justiciable controversy found to encompass both claims - Federal Court of Australia has jurisdiction to determine non-federal claim
REAL PROPERTY - prospective applicant seeking declaration that mortgage he had granted is not enforceable - prospective applicant alleges that mortgage document does not adequately describe the amount of the debt or liability owing - prospective applicant prevented from arguing this point on the basis of issue estoppel - mortgage not void for uncertainty - consideration of s 73(1)(c) of the Land Title Act 1994 (Qld) - mortgage compliant with legislative requirements - application dismissed
Legislation: Competition and Consumer Act 2010 (Cth) s 131, 138, Part XI, Schedule 2 (Australian Consumer Law) ss 18, 20, 21
Judiciary Act 1903 (Cth) s 39B
Acts Interpretation Act 1954 (Qld) s 14B
Land Title Act 1994 (Qld) ss 3, 72, 73, 74
Land Title Amendment Bill 1994 (Qld)
Cases cited: Breskvar v Wall (1971) 126 CLR 376
Davidson v Suncorp-Metway Limited (No 3) [2020] FCA 1593
Davidson v Suncorp-Metway Ltd [2020] QSC 315
Deguisa v Lynn [2020] HCA 39; (2020) 384 ALR 209
Elroa Nominees Pty Ltd v Registrar of Titles [2003] QCA 165
Fencott v Muller (1983) 152 CLR 570
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1
Perpetual Trustees Victoria Ltd v Tsai [2004] NSWSC 745; (2004) 12 BPR 22,281
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 367
Printy v Provident Capital Ltd [2007] NSWSC 287; (2007) 13 BPR 24,603
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Small v Tomassetti [2001] NSWSC 1112; (2001) 12 BPR 22,253
Suncorp-Metway Ltd v Nagatsuma [2019] QSC 16
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Yazgi v Permanent Custodians Ltd [2007] NSWCA 240; (2007) 13 BPR 24,567
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 36 Date of last submissions: 16 November 2020 Date of hearing: 2 July 2020 Counsel for the First Prospective Applicant: The first prospective applicant appeared in person Counsel for the Second Prospective Applicant: The second prospective applicant did not appear
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- Case
- [2021] FCA 25
- Decision Date
CaseChat Overview and Summary
The court first considered whether the federal and non-federal claims were part of the same "matter" and thus fell within the Federal Court's jurisdiction. The court found that the scope of the justiciable controversy encompassed both claims and that the Federal Court had jurisdiction to determine the non-federal claim. The court then examined the enforceability of the mortgage under Queensland state legislation. Mr Davidson argued that the mortgage was void for uncertainty, which would render it unenforceable. However, the court held that issue estoppel prevented Mr Davidson from raising this argument, as the judgment of Ryan J in Suncorp-Metway Ltd v Nagatsuma necessarily entailed the conclusion that the mortgage was enforceable. Furthermore, the court found that the mortgage was not void for uncertainty and complied with s 73(1)(c) of the Land Title Act 1994 (Qld), which requires a description of the debt or liability secured by the mortgage.
Based on the above findings, the court dismissed the application and ordered that paragraph 4 of the applicant's interlocutory application dated 11 June 2020 be dismissed. The court also reserved the issue of costs pending a determination of whether they should be awarded on an indemnity basis. This decision highlights the importance of understanding the jurisdiction of the Federal Court of Australia and the application of issue estoppel in determining the enforceability of a mortgage under state legislation.
Orders
Orders of the court
1. Paragraph 4 of the first prospective applicant's interlocutory application dated 11 June 2020 is dismissed.
2. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As I have said, Mr Davidson relies on s 73(1)(c) of the Land Title Act. In so far as they are relevant, s 72, s 73 and s 74 are as follows:72 Mortgaging lot etc. by registration(1)A lot or an interest in a lot may be mortgaged by registering an instrument of mortgage for the lot or interest.…73 Requirements of instrument of mortgage(1) An instrument of mortgage must -(a)be validly executed; and(b)include a description sufficient to identify the lot to be mortgaged; and(c)include a description of the debt or liability secured by the mortgage; and(d)include a description sufficient to identify the interest to be mortgaged.…74 Effect of registration of a mortgageA registered mortgage of a lot or an interest in a lot operates only as a charge on the lot or interest for the debt or liability secured by the mortgage. I have set out the description of the secured liability given in the Mortgage. Mr Davidson made the following arguments about it: because of the generalised description of the debt or liability secured, and the absence of any specification of the amount owing, the Mortgage instrument is void for uncertainty, meaning there was no agreement when he signed it; this also means that the Mortgage did not comply with s 73(1)(c); as a result, s 74 does not operate in respect of the liabilities of Mr Davidson to the bank because there is no 'debt or liability secured by the mortgage'; the appearance of the words 'not applicable' in the General Request form that was used to lodge the bank's common mortgage provisions also makes the Mortgage void for uncertainty. There are four reasons why these arguments cannot succeed. The first reason is that issue estoppel prevents Mr Davidson from relying on them. I laid out the principles and how they applied in this case in Davidson No 3 at [62]‑[67]. For reasons I gave there, I held that the judgment of Ryan J in Suncorp-Metway Ltd v Nagatsuma [2019] QSC 16 necessarily entails the conclusion that the Mortgage is enforceable, so that Mr Davidson is estopped from contending otherwise. The second reason Mr Davidson's arguments fail is that the Mortgage is not void for uncertainty. It incorporates, by reference, standard terms which, as I have said, provide for it to be an 'all moneys' mortgage. So it is clear that any liability of Mr Davidson to the bank is secured by the mortgage. That liability arose under a guarantee of the liabilities of FNQ, which Mr Davidson signed. FNQ's liabilities are ascertainable by reference to a facility agreement, which makes provision for the advance of principal amounts and how interest is to be calculated. There is no uncertainty about what the parties have agreed by executing the Mortgage. The third reason Mr Davidson's arguments fail is that the Mortgage did comply with s 73(1)(c). That is a question of the proper construction of the provision and its application to the instrument lodged. Section 73(1)(c) seems to be unique to Queensland. It appears that the only decided case on it is a recent decision of Bowskill J in the Supreme Court of Queensland dismissing an application by Mr Davidson for a stay of execution of a warrant for possession of a property he occupied. I will return to that decision below, but I consider it appropriate first to address the issue on the basis of principle.