East v Repatriation Commission

[1987] FCA 242

Re: THE BANKRUPT ESTATE OF ROSS DANIEL HODBY
THE OFFICIAL RECEIVER FOR AND ON BEHALF OF THE OFFICIAL TRUSTEE IN BANKRUPTCY
And: COLIN LEO KLAU; GLENYS KAY KLAU; GLENCOL PTY. LTD.; R.S.C. RYMILL PTY.
LTD.; PATRICIA JANE RYMILL; KRAKAT PTY. LTD.; MICHAEL BERNARD HART; MAUREEN
HART; DONALD PATRICK PLUNKETT; JOYCE SUSANNA SMART and PAUL KERTESZ
Ex parte: STEPHENSON NOMINEES PTY. LTD. and A.F. & M.M. ROBERTS
No. 910/3 of 1986
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.

CATCHWORDS

Bankruptcy - tracing moneys through accounts of bankrupt land and finance broker - accounts in confusion - registered mortgagee and Official Receiver contesting moneys paid into Court by mortgagor - indefeasibility of registered mortgagee's title under REAL PROPERTY ACT (1886) S.A. - whether registered mortgagee had taken title for "valuable consideration" - registered mortgagee holds mortgage as constructive or resulting trustee for bankrupt estate.

Real Property Act (1886) S.A. ss.57,71,249 considered.

Bankruptcy - jurisdiction of Courts of Bankruptcy - not limited by s.30(1) of Act - jurisdiction where issue concerns "the extent of the assets which form part of the bankrupt's estate" - assets form part of estate even when "subject to enquities" - Section 116(2)(a) of Act not applicable when pool of mixed funds subject to tracing.

Bankruptcy Act 1966 s.30(1), 116(2)(a) considered.

HEARING

ADELAIDE

#DATE 16:4:1987

ORDER

The Official Receiver is entitled to the sum of $81,187.50 standing in Court to the credit of an account entitled "Estate of Ross Daniel Hodby - Stephenson Nominees Pty. Ltd. - Roberts" together with accrued interest thereon for the benefit of the estate of the bankrupt Ross Daniel Hodby, subject to any application which may be made by any party other than Stephenson Nominees Pty. Ltd. to trace his own money into the said sum of $81,187.50.

The question whether the said sum should be held by the Official Receiver for the benefit of the unsecured creditors of the bankrupt who prove in his bankruptcy or of the unsecured creditors who contributed to the monies in the control of the bankrupt from which the advance was made to the mortgagors which is secured by memorandum of mortgage No. 6259622 be adjourned for further consideration.

The cross-claim of Stephenson Nominees Pty. Ltd. be dismissed.

The question of any consequential directions under sub.s.134(4) of the Bankruptcy Act be adjourned for further consideration.

The question whether the costs of the parties before the Court on this application or any portion of those costs should be paid out of the bankrupt estate be reserved.

Liberty be granted to the parties to speak to the Minutes of this Order in Chambers at 2.15 p.m. this day, upon any party intending so to speak giving notice to the other party.

Note: Settlement and entry of orders is dealt with in Bankruptcy Rule 124.

JUDGE1

This is a further application by the Officer Receiver, for and on behalf of the Official Trustee in Bankruptcy ("the Official Receiver") as trustee of the bankrupt estate of Ross Daniel Hodby ("the bankrupt") seeking certain orders and directions in the administration of the bankrupt's estate. On 16 March 1987 the Official Receiver filed a notice of motion accompanied by points of claim whereby he made claim to the sum of $81,187.50 together with accrued interest thereon. This sum had on 6 March 1987 been paid to the District Registrar of this Court pursuant to orders of the Court made on 22 December 1986 and on 4 March 1987. It is presently held by the District Registrar in a separate account entitled "Estate of Ross Daniel Hodby - Stephenson Nominees Pty. Ltd. - Roberts" and is invested in accordance with directions otherwise than in the Litigants' Fund of this Court (O 63 r 4 of the Rules of Court).

1. On 8 October 1986 Anthony Feeley Roberts and his wife Maree Melville Roberts ("Mr & Mrs Roberts") executed a mortgage which was subsequently registered over the land comprised and described in Certificate of Title Register Book Volume 4265 Folio 792 of which land they were the registered proprietors of an estate in fee simple. The mortgage was granted in favour of Stephenson Nominees Pty. Ltd. ("the company") in consideration of the sum of $75,000 said to have been lent by the company to Mr & Mrs Roberts. The mortgage was registered No. 6259622 in the Lands Title Office on 19 December 1986 although it was produced for registration and noted on the said Certificate of Title on 8 October 1986. The delay between production and registration occurred because inter alia the long form of proof was not completed until 21 October 1986.

2. The bankrupt presented his own petition on 17 October 1986. I have recited in some detail in my reasons for judgment delivered this day in matter 910/11 of 1986 the evidence relating to the bankrupt's estate and I need not reiterate the chaotic state of his affairs. In that matter I dealt with the position of mortgagees under an unregistered mortgage who claimed to trace funds provided by them to the bankrupt into the sum secured by that mortgage. I also need not set out again the terms of an order made on 23 December 1986 whereby persons lending funds to the bankrupt were restrained from dealing with those monies. Provision was made in that order for persons affected thereby to apply to this Court for the terms of the order to be varied in their favour in appropriate circumstances.

3. Mr & Mrs Roberts were persons affected and they made application on 28 January 1987 for the order to be varied to enable them to discharge the Stephenson mortgage. Arrangements to this end had earlier been made with the company to make settlement on 23 December 1986 on the discharge of this mortgage so that Mr & Mrs Roberts could obtain development funds elsewhere. On 4 March 1987 an order was made for payment of the mortgage monies by Mr & Mrs Roberts into Court and directing the Registrar General to endorse a memorandum of discharge of the mortgage on the relevant Certificate of Title. The order however expressly preserved the right of the company to claim payment out of the monies in Court on the basis that the mortgage was in full force and effect.

4. The Official Receiver now claims this sum of $81,187.50 ("the mortgage sum") for the benefit of the general body of unsecured creditors of the bankrupt or alternatively for the benefit of another class of creditors, namely creditors who provided funds to the bankrupt for investment. In this matter also I do not propose to adjudicate between these two classes of creditors, deferring that issue until persons affected by an adjudication are represented before this Court. The Official Receiver's claim is contested by the company which claims to be entitled to receive the monies in Court. Points of claim, points of defence and cross-claim and a reply to cross-claim were filed. In an affidavit sworn by Athol Raymond Stephenson, a director of the company, which was received in evidence, facts were related which prima facie appeared to indicate that the company could trace its monies into the advance to Mr & Mrs Roberts and secured by the mortgage. In addition, the company's points of defence put in issue the jurisdiction of the Court to make the orders sought by the Official Receiver and further relied upon the indefeasible title of the company as the registered proprietor of an estate as mortgagee in the land. At the conclusion of the evidence, counsel for the company conceded that his client could not establish a tracing of the company's funds into the mortgage and he relied upon his two contentions of law. In the circumstances I need only make brief reference to the material before me although the bankrupt's evidence concerning the advance to Mr & Mrs Roberts and the manner in which Mr Stephenson was misled is illuminating. It illustrates how difficult it will generally be for any of the bankrupt's clients to trace their monies into the loans made and securities obtained by him.

5. There was again before me two detailed and most helpful affidavits of Mr. Govan, the officer in charge of the estate in the Official Receiver's office. This evidence, which was not challenged, set out clearly the nature of the bankrupt's business, the manner in which he obtained funds from his clients and lent them out to borrowers and the disgraceful state of his records. I can therefore turn at once to the circumstances surrounding the particular transaction. Mr Stephenson deposed in his affidavit, upon which he was not cross-examined, that in or about mid 1986 the company agreed to lend to the bankrupt and persons named as Ward and Donato the sum of $60,000 to be secured on their property at 809 Main North Road, Pooraka (hereinafter called "the Pooraka mortgage"). The bankrupt said that he inspected the property with Mr Stephenson. The latter deposed that he understood this sum of $60,000 was secured by a mortgage registered on the certificate of title to the said land. The company thereafter received two monthly payments of interest from the mortgagors. Mr. Stephenson believed that the mortgage was for a 12 months term unless it was repaid earlier.

6. The bankrupt telephoned Mr. Stephenson at his home on or about 26 August 1986 informing him that the mortgagors under the Pooraka mortgage desired to repay the advance. Mr Stephenson deposed that the bankrupt asked him whether the company was prepared to advance $80,000 to Mr & Mrs Roberts, to be secured on a property at Molesworth Street, North Adelaide. He replied that the company might well be prepared to advance this sum subject to inspecting the Molesworth Street property. An inspection took place on 27 August 1986 and Mr Stephenson approved a loan of $75,000.

7. On 28 August 1986 Mr Stephenson drew on behalf of the company a cheque for $15,000 on the company's account at Co-operative Building Society, Marion, payable to him personally. On the same day he attended at the bankrupt's office and handed the cheque to the bankrupt. He received from the bankrupt a receipt for $75,000 which sum was therein stated to be "for first mortgage a/c A.F. & M.M. Roberts 134 Molesworth Street, North Adelaide 16.5%". Mr Stephenson understood that this receipt related to the sum of $60,000 which was shortly to be repaid under the Pooraka mortgage together with the cheque for $15,000. The bankrupt said that he obtained from Mr Stephenson a discharge of the Pooraka mortgage. Mr Stephenson made no reference to such discharge and did not give any oral evidence. He said in his affidavit that on or about 29 September the company received a cheque from the bankrupt for $1,031.25 being the first payment of interest under the mortgage.

8. The bankrupt gave evidence that the company had been placing monies with him for investment over a period of about 10 years, the amounts thereof ranging from $25,000 to $70,000 and totalling at any one time up to a maximum of $150,000. These investments were variously in the name of the company, Mr Stephenson, his wife or his daughter. He said that Mr Stephenson generally inspected the properties on which the loans were to be secured. In August 1986 the bankrupt had $60,000 of the company's moneys which sum was uninvested but on which he had been for a short period paying interest to the company. This amount he told Mr Stephenson, incorrectly, had been advanced to a Mr Harrison. Mr Stephenson usually required that all payments of interest be made by the borrowers direct to him and for this reason the bankrupt did not keep a card recording his investments. The consequence was, as the bankrupt admitted, that he did not know accurately how much money he had from this source at any particular point of time.

9. The bankrupt said in evidence that in August 1986 he had suggested to Mr Stephenson that the $60,000 be advanced as a loan secured on the home unit at Pooraka. He said that he, Ward and Donato intended to buy this unit. He went with Mr Stephenson to inspect the home unit and the latter agreed that the security was sufficient for a loan of that amount. A mortgage was prepared, he thought, and executed although he and his two partners did not buy the property. He did not give Mr Stephenson the mortgage. He said that he did not have $60,000 in his trust account at the time but made payments of interest out of a joint account in the names of himself and his partners. Mr Ward drew the cheques for payment of interest.

10. Some months later Mr & Mrs Roberts who had also provided funds to the bankrupt for investment approached him for a loan of $80,000. They said that they proposed to borrow on mortgage rather than redeem any of their investments with the bankrupt. Having obtained the approval for an advance of $75,000 from Mr Stephenson, the bankrupt said he had the company execute under seal a discharge of the Pooraka mortgage. Mr & Mrs Roberts executed a mortgage over the Molesworth Street property acknowledging a loan of $75,000 in favour of the company which mortgage was lodged for registration. The bankrupt paid to Mr & Mrs Roberts by cheque an amount of $60,000 and told them he was waiting on another settlement to take place before he could make the balance of $15,000 available. The evidence was that subsequently a cheque for this amount was given to the Roberts but on presentation it was dishonoured and they did not receive this portion of the sum of $75,000 referred to in the mortgage.

11. The sum of $60,000 paid by cheque was drawn on the trust account of the bankrupt's landbroking business, namely Ross D. Hodby & Associates No.2 Trust Account. There were at the time sufficient funds in that account because cheques totalling $122,126.94 had been credited on 3 October 1986. These cheques represented the proceeds of sale of a property owned by one Prior, for whom the bankrupt was acting, and monies paid on the discharge by a company W.I.P. International of a mortgage on other property. The company had no interest in any of these funds. Prior to the crediting of these amounts the balance in the account was $717.96.

12. Against this background it was very obvious that the funds of the company, whether they be in the sum of $60,000 or the sum of $15,000, could not be traced into the amount of $75,000 secured by the registered mortgage. Mr. Angel Q.C. on behalf of the company acknowledged this situation and confined his contentions to the two matters of law. He submitted that this Court had no jurisdiction to make the orders sought by the Official Receiver or in the alternative that the company was entitled to rely upon its indefeasible title as registered proprietor of an estate as mortgagee. In each of these circumstances it would follow, he said, that the Court should uphold the company's claim to the sum of $81,187.50 together with accrued interest thereon.

13. In my opinion the starting point for consideration of each of Mr. Angel's contentions is the fact that the company did not provide either directly or indirectly the funds secured by the mortgage, namely $60,000. If the balance of $15,000 had been paid directly to Mr & Mrs Roberts, or in such a manner as enabled it to be effectively traced into the hands of the Roberts the circumstances might well require a different analysis. The bankrupt was the agent of the company for the purpose of investing its funds including this sum of $15,000, and not the agent of the Roberts. The fact is that the company did not pay to or provide the Roberts with the mortgage funds. These funds were provided by the bankrupt. Furthermore the company has conceded that it can not trace its monies into the advance to Mr & Mrs Roberts although its monies formed part of the pool of funds provided by investors. Thus its claim is it appears, rather in the nature of an "equity", an equitable charge upon investments and monies in the pool rather than on the funds secured by the mortgage.

14. Admittedly the company is the registered proprietor of an estate as mortgagee which title the Real Property Act 1886 (S.A.) provides, except to the extent expressly excluded by s.69 and s.70, to be indefeasible. It also prevails over other estates or interests which in earlier years might have been held to be paramount or to have priority. Such indefeasibility is irrespective of notice. Its registered estate secures a charge on the land for the repayment of a debt, the principal sum of which however was provided by another and to the beneficial interest in which it can have no direct entitlement.

15. Mr. Angel Q.C. submitted that this Court had no jurisdiction to adjudicate upon the Official Receiver's claim to be entitled to the monies in Court. He said that such a claim was outside the powers of this Court as provided by s.30 of the Bankruptcy Act. This section is to the extent here relevant as follows:
    
    

"30(1) The Court -

(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part X or Part XI coming within the cognizance of the Court; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter."

1. I agree with Neaves J's view of this sub-section expressed in Re: Vinko Bilen, Ex Parte David William Sistrom an unreported decision delivered on 11 April 1985, namely:
   
   

"In my opinion sub-section 30(1) of the Bankruptcy Act 1966 is not a provision limiting the Court's jurisdiction. It is a facultative provision giving the Court full power, within the limits of its jurisdiction to be found elsewhere, to make such orders as it considers should be made in order to carry out and give effect to the Act. The words used are not words of limitation but of extension."

1. The Official Receiver is seeking the exercise by this Court of its jurisdiction to determine whether he or the company is entitled to the funds previously secured by the mortgage but now in Court. He is seeking this determination in circumstances where these funds were advanced to the mortgagors by the bankrupt and not by the company. As a consequence he contended that the company, even though registered as mortgagee, had no beneficial interest in the monies loaned and that it followed that the legal estate in the registered mortgage was held in trust for the bankrupt who provided the monies. The fact that the bankrupt almost certainly has himself no beneficial interest in these monies which he held on behalf of the investors who provided them does not deny the validity of the Official Receiver's contention.

2. It is not correct to say that because the mortgage monies may be subject to a charge in support of the equities of the investors they are trust monies in which pursuant to para 116(2)(a), of the Bankruptcy Act the Official Receiver has no interest. I agree with the view of White J. in Re Goode (1974) 4 ALR 579 that that provision does not apply when a pool of mixed funds becomes subject to tracing principles, even though at an earlier stage they may have been held upon constructive trust. I refer to his reasons on pages 595 and thereafter of that decision.

3. The correct position in this matter, in my opinion, is that the Official Receiver can with justification contend that the company had no beneficial interest in the monies secured by the mortgage, and that he is entitled to claim them for the bankrupt estate. Such a contention arises in the administration of the estate and stated in this manner any resolution must affect the due administration of the estate. The question is whether the mortgage monies, provided by the bankrupt, are monies to which the registered mortgagee is exclusively entitled or whether they are subject to a charge in favour of or are distributable amongst various classes of creditors. The answer must, in the words of Judge Paine in Re Wippell 19 ABC 292 at 295, "concern the extent of the assets which form part of a bankrupt's estate". They are not excluded from forming part of that estate because they may be "subject to equities" in favour of a particular class of creditors. In my opinion support for this view of the jurisdiction of a Court of Bankruptcy is provided by the High Court decision of Price v. Parsons (1936) 54 CLR 332 at pages 354 & 360 which was relied upon by Judge Paine.

1. It is my opinion that this Court has jurisdiction to determine the questions raised by the notice of motion and points of claim.

2. Mr. Angel also contended that the company's registered title prevails over all others. He said that vis-a-vis the Roberts and the bankrupt the company was a purchaser for value without notice and that it was not correct to say that the company was a trustee of its registered estate for the Official Receiver. In this regard counsel doubtless had in mind s.71 of the Real Property Act 1886 S.A. which section expressly preserves certain rights. It is, to the extent relevant, in the following terms:
   
   

"7l. Nothing in the two preceding sections contained shall be construed so as to affect any of the following rights or powers, that is to say -

(i) ...

(ii) ...

(iii) ...

(iv) ...

(v) the rights of a cestui que trust where the registered proprietor is a trustee, whether the trust shall be express, implied, or constructive:

(vi) ...

Provided that no unregistered estate, interest, power, right, contract, or trust shall prevail against the title of a registered proprietor taking bona fide for valuable consideration, or of any person bona fide claiming through or under him"

He also referred at length to the provisions of s.249 of the Real Property Act but submitted that the Official Receiver could not rely upon this section if he failed under s.71. As I am of opinion that the Official Receiver does not fail under s.71 and also that the company has a liability for personal equities arising out of the provision of the mortgage funds by the bankrupt, I am relieved from considering the somewhat ambiguous provisions of s.249. Furthermore I note that the High Court in Stuart v. Kingston (1923) 32 CLR 309, a decision upon which Mr. Angel placed much reliance, was considering a situation in which s.71 had no application because the registered proprietor had taken for valuable consideration.

1. The company can be said to have taken the mortgage bona fide but it is also necessary for it to establish that such was taken for valuable consideration. If it fails, then it is a volunteer and the Courts have frequently been willing to go behind the register and deny the protection of the Real Property Act to volunteers. I refer in particular to the reasoning of Adam J. of the Supreme Court of Victoria in King v. Smail (1958) VR 273.

2. He said on page 279 as follows:
   
   

"In conclusion I should add that the view that Torrens legislation expressed in language not materially differing from the Victorian Acts does not confer a title, free from prior equities on a registered proprietor being a mere volunteer finds confirmation in decisions in other jurisdictions. Suffice it for me to refer in particular to the persuasive judgment of Boucaut, J., in Biggs v. McEllister (1880), 14 S.A.L.R. 86, a judgment concurred in by Way, C.J. Apart from the statement by P. Moerlin Fox in his text-book referred to earlier in this judgment, the text-books without exception appear to support this conclusion. Reference may be made to Hogg, Australian Torrens System, pp.832-3; Hogg, Registration of Title, pp.106-9; Wiseman's The Transfer of Land (2nd ed.), p.316; Baalman's Commentary on the Torrens System in New South Wales, pp.149-50; Kerr's The Australian Lands Titles

(Torrens) System, p.195."

1. It is pertinent to note that, the Victorian Transfer of Land Act does not contain an express provision such as in sub.s.71(v) of the South Australian Act.

2. Mr. Angel's submission was that the company was not a volunteer vis-a-vis either Mr & Mrs Roberts or the bankrupt. He said that Mr. Stephenson, on behalf of the company, "procured" the payment of the mortgage moneys to Mr & Mrs Roberts by his direct dealings with them. He referred to the fact that Mr Stephenson inspected the property of Mr & Mrs Roberts and approved the advance to them. It was, he said, Mr. Stephenson's "intervention that caused the payment to be made and that is sufficient consideration." Likewise he contended that the company was not a volunteer in that it had in the past provided funds to the bankrupt for investment as its agent and that it had authorised the bankrupt to pay its monies to Mr & Mrs Roberts.

3. However these considerations do not in my opinion establish the company as providing valuable consideration for the grant of the registered estate. Doubtless, the mortgage being deemed to be a deed by s.57 of the Real Property Act, the Roberts were bound by their acknowledgment that the sum of $75,000 had been lent by the company although they could deny having received the full amount thereof. But assuming that the involvement of Mr Stephenson by the bankrupt in this transaction was not a sham and a facade and had more reality than the Pooraka transaction, it still can not be said that the company provided "valuable consideration". That expression has been frequently considered by the Courts under the Bankruptcy Act and I only direct attention to the recent decision of Barton v. Official Receiver (1984) 58 A.L.R. 328. Valuable consideration need not be adequate or sufficient consideration but it must have a real and substantial value, amounting to a quid pro quo in a commercial sense. In my opinion whatever consideration can be said to have been provided by the company, it was not "valuable" in this sense. Furthermore the company has acknowledged that it is not able to trace any of its funds into the mortgage moneys. In my opinion the company should be regarded as a volunteer not providing valuable consideration for the grant of the registered estate. It's otherwise indefeasible title may be subject to an action of a personal character arising out of this circumstance.

4. Because the bankrupt provided the funds lent it is my opinion that the company holds the registered mortgage as a constructive or resulting trustee for him of the registered mortgage. In so far as the bankrupt's intention as regards the company is of any relevance, that intention related to the protection or advantage which he hoped the allocation of a security might give to it. The funds he had in the past received from the company had been inextricably mixed by him, misapplied and invested if at all, without security. He could not make an effective gift to the company of the mortgage funds to replace the funds he had lost. As a volunteer the company, even though a registered proprietor, has a liability for personal equities See per Barwick C.J. in Breskvar and Another v. Wall and Another (1971) 126 CLR 376 at page 385 and Frazer v. Walker (1967) l AC 569 at page 585. Many authorities establish a right to proceed in personam against a registered proprietor in these circumstances, See per Wells J. in Palais Parking Station v. Shea 24 S.A.S.R. 425 at page 436-442. In this regard it is nothing to the point that the bankrupt was almost certainly not lending his own monies. While the company is answerable to the bankrupt, who provided the funds to Mr & Mrs Roberts the monies in the hands of the bankrupt are also subject to equities in favour of the investors. In my opinion the company is a trustee of the mortgage for the bankrupt and its claim is at the most to a claim against the fund which provided the advance to Mr & Mrs Roberts. I expressly reserve for further consideration the extent of the company's entitlement.
   
   The orders that I make are as follows:
   
   

5. I declare that the Official Receiver is entitled to the sum of $81,187.50 standing in Court to the credit of an account entitled "Estate of Ross Daniel Hodby - Stephenson Nominees Pty. Ltd. - Roberts" together with accrued interest thereon for the benefit of the estate of the bankrupt Ross Daniel Hodby. I make this declaratory order subject to any application which may be made by any party other than Stephenson Nominees Pty. Ltd. to trace his own money into the said sum of $81,187.50. I adjourn for further consideration the question whether the said sum should be held by the Official Receiver for the benefit of the unsecured creditors of the bankrupt who prove in his bankruptcy or of the unsecured creditors who contributed to the monies in the control of the bankrupt from which the advance was made to the mortgagors which is secured by memorandum of mortgage No. 6259622.

6. I dismiss the cross-claim of Stephenson Nominees Pty. Ltd. I adjourn for further consideration the question of any consequential directions under sub.s.134(4) of the Bankruptcy Act and reserve the question whether the costs of the parties before the Court on this application or any portion thereof should be paid out of the bankrupt estate. I grant liberty to the parties to speak to the Minutes of these Orders in Chambers at 2.15 p.m. this day upon any party intending so to speak giving notice to the other party.