Court of Appeal
New South Wales
Case Title: Hammond v JP Morgan Trust Australia Ltd Medium Neutral Citation: [2012] NSWCA 295 Hearing Date(s): 4 September 2012 Decision Date: 18 September 2012 Jurisdiction: Before: Basten JA at [1];
Meagher JA at [2];
Bergin CJ in Eq at [76]Decision: (1) Appeal be dismissed.
(2) Appellant to pay the respondent's costs of the appeal.
(3) The stay of execution of the writ of possession issued on 12 April 2012 be dissolved.
(4) Mr Hammond's motion for review of the decision of Beazley JA of 13 August 2012 and other relief be dismissed.
(5) Mr Hammond to pay the respondent's costs of that application.[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ESTOPPEL - promissory - whether mortgagee prevented from relying on non-compliance with a default notice and prosecuting proceedings for possession
REAL PROPERTY - mortgagee's claim for possession - whether mortgagor has benefit of promissory estoppel preventing reliance on default notice
PROCEDURE - joinder of parties - whether a person, who claims that a registered proprietor and mortgagor holds property subject to a resulting trust, is a necessary party to proceedings brought by the mortgagee for possession of the property
Legislation Cited: Consumer Credit (New South Wales) Act 1995
Consumer Credit Code
National Credit Code (Cth)
Real Property Act 1900
Supreme Court Act 1970Cases Cited: Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; 66 ACSR 325
Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570
Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Crime Commission v Gray [2003] NSWCA 318
Delehunt v Carmody [1986] HCA 67; 161 CLR 484
Foran v Wight [1989] HCA 51; 168 CLR 385
Galaxidis v Galaxidis [2004] NSWCA 111
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; 59 CLR 641
Hammond v JP Morgan Trust Australia Ltd [2011] NSWCA 57
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 156
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 188
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 261
Hughes v Metropolitan Railway Company (1877) 2 App Cas 439
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 213
JP Morgan Trust Australia Ltd v Hammond [2012] NSWSC 317
Legione v Hateley [1983] HCA 11; 152 CLR 406
MCI World Com International Inc v Primus Telecommunications Inc [2004] 2 All ER (Comm) 833
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
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- Case
- [2012] NSWCA 295
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Mr Hammond could rely on the doctrine of promissory estoppel to prevent the mortgagee from enforcing its rights under the mortgage due to non-compliance with a default notice, and whether a third party claiming a resulting trust over the property was a necessary party to the mortgagee's possession proceedings.
The Court of Appeal dismissed Mr Hammond's appeal. It reasoned that the elements of promissory estoppel were not established on the facts. Specifically, there was no clear and unequivocal promise by the mortgagee that it would not rely on the default notice, nor was it unconscionable for the mortgagee to resile from any such alleged promise. The court also found that the third party claiming a resulting trust was not a necessary party to the possession proceedings, as the mortgagee's claim was against the registered proprietor and mortgagor.
Consequently, the appeal was dismissed, and Mr Hammond was ordered to pay the respondent's costs. The stay of execution of the writ of possession was dissolved, and Mr Hammond's separate motion for review was also dismissed with costs.
Orders
Orders of the court
(1) Appeal be dismissed.
(2) Appellant to pay the respondent's costs of the appeal.
(3) The stay of execution of the writ of possession issued on 12 April 2012 be dissolved.
(4) Mr Hammond's motion for review of the decision of Beazley JA of 13 August 2012 and other relief be dismissed.
(5) Mr Hammond to pay the respondent's costs of that application.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BERGIN CJ
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