| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GRUBB -v- KENMUR HOLDINGS PTY LTD & ORS [2002] WADC 112 CORAM : LA JACKSON DCJ HEARD : 17 MAY 2002 DELIVERED : 12 JUNE 2002 FILE NO/S : CIV 2160 of 2000 BETWEEN : BRUCE GRAEME GRUBB Appellant (First Defendant)
AND
KENMUR HOLDINGS PTY LTD
Respondent (Plaintiff)
BRUCE GRAEME GRUBB
First Defendant
MARGARET ANN ELIZABETH GRUBB
Third Defendant
Catchwords: Appeal from decision of a registrar - Practice and procedure - Amendment of pleadings
Action on a mortgage - Whether a plea of mutual mistake lies
(Page 2)
Legislation:
Nil
Result: Appeal dismissed
Application to amend defence and counterclaim allowed in part Representation:
Counsel:
Appellant (First Defendant) : Mr K E Yin
Respondent (Plaintiff) : Mr D H Solomon
First Defendant : No appearance
Third Defendant : No appearance
Solicitors:
Appellant (First Defendant) : Leonard Cohen & Co
Respondent (Plaintiff) : Solomon Brothers
First Defendant : Not applicable
Third Defendant : Not applicable
Case(s) referred to in judgment(s):
Conlin v Registrar of Titles (2001) 24 WAR 299
Case(s) also cited:
Nil
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1 LA JACKSON DCJ: The plaintiff claimed against the defendant moneys owing on a mortgage. The claim was defended, as I understand it, on the basis that there was a balance due to the first defendant and a counterclaim was filed for that sum.
2 By chambers summons dated 8 November 2001 the first defendant sought to amend his defence and counterclaim. The application was heard by a registrar on 19 February 2002 and by a judgment delivered 1 March 2002 the application to amend was dismissed. 3 This is an appeal from that decision. 4 An appeal to a judge of the District Court from a decision of a registrar of the District Court is a hearing de novo. 5 The proposed amended defence and counterclaim, aside from making basic denials of matters pleaded in the statement of claim asserts a positive defence of a common mistake and pleads the mortgage is void or alternatively should be set aside. The counterclaim also pleads unconscionable conduct on the part of the plaintiff and seeks relief pursuant to the Trade Practices Act. 6 It is convenient to deal with those two different arguments separately.
Common mistake 7 In my opinion a mortgage entered into as a result of a common mistake and registered is, by the registration, a valid encumbrance upon a title. In Conlin v Registrar of Titles (2001) 24 WAR 299, Owen J in a major judgment on the subject discusses in great detail the concept of the indefeasibility of title. It is unnecessary for me in this judgment to cover any of the same ground. Suffice it to say that the system of registration under the Transfer of Land Act embodies the concept of the indefeasibility of title. It is the registration that gives the title; it is not a registration of a title. In my opinion once the mortgage was registered it gave to the plaintiffs a cause of action based on that mortgage. Whilst there are some exceptions to indefeasibility, such as fraud, I do not believe mutual mistake is one and a pleading based upon mutual mistake therefore cannot be allowed to stand. 8 The decision of the Registrar dealt only with the question of mutual mistake. Accordingly the appeal from his decision should be dismissed.
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Unconscionable conduct
9 The argument before the Registrar only dealt with the issue of mutual mistake. The question of unconscionable conduct was not argued and it was at the time assumed by the first defendant that there was no opposition to the amended pleading based on unconscionable conduct. Counsel for the plaintiff advised, and it was accepted by counsel for the first defendant, that the failure to argue the matter before the Registrar was a mistake and that it ought to have been argued. The matter was therefore canvassed before me by counsel for the plaintiff. Counsel for the first defendant had not expected to argue the matter and I gave leave to file written submissions later for my assistance. 10 The argument relating to the claim based on unconscionable conduct seems to me to have a disputed factual background as to the purpose for which the mortgaged property was purchased. An argument upon the validity of pleadings is not the place to resolve such disputes. Whilst it may well be that the findings of fact would uphold the plaintiff's arguments, I do not think it appropriate to refuse to allow the amendment with respect to unconscionable conduct. Counsel for the plaintiff, very fairly, acknowledged that the unconscionable conduct argument would not add a great deal to the litigation. In the circumstances, leave will be granted to amend. 11 The order dismissing the application for leave to amend should be quashed. 12 Paragraphs 2 and 3 of the proposed amended defence clearly relate to mutual mistake and they should not be allowed. 13 Paragraph 5 also appears to relate to the same subject and par 9 seems to require some alteration in view of this decision. 14 Otherwise the proposed amended defence and counterclaim should be allowed. 15 I will hear the parties as to the proper form of any order to be made and as to costs of this appeal. |