Heggies Bulkhaul v Shirlaw - [2004] NSWSC 805

CITATION: Heggies Bulkhaul v Shirlaw [2004] NSWSC 805

HEARING DATE(S): 27 August 2004

JUDGMENT DATE:
27 August 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Summary relief granted establishing priority of lease over mortgage. Leave to withdraw admissions refused. Stay pending appeal refused.

CATCHWORDS: CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - trusts, equities and unregistered instruments and interests - unregistered lease and unregistered mortgage - no allegations of disentitling conduct - priorities dependent upon time of creation of equitable interests - PROCEDURE - miscellaneous procedural matters - withdrawal of admission in pleading made by mistake - when permitted - PROCEDURE - stay pending appeal - no undertaking as to damages offered - possibility of damage to third parties

LEGISLATION CITED: Corporations Act 2001 (Cth)
Real Property Act 1900
Supreme Court Rules 1970

CASES CITED: Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Heggies Bulkhaul v Global Minerals Australia [2003] NSWSC 851
Walsh v Lonsdale (1882) 21 Ch D 9

PARTIES :
Heggies Bulkhaul Limited - Plaintiff
Kevin Shirlaw (in his own right and as Receiver & Manager of Ostabridge Pty Ltd) - First Defendant
Christopher Palmer (in his capacity as Liquidator of Ostabridge Pty Ltd) - Second Defendant
Daniel Cvitanovic (in his capacity as Receiver & Manager of Global Minerals Australia Pty Ltd) - Third Defendant
Michael Jones (in his capacity as Liquidator of Global Minerals Australia Pty Ltd - Fourth Defendant
The Registrar-General of NSW - Fifth Defendant
Collex Pty Limited (formerly Collex Waste Management Pty Ltd) - Sixth Defendant

FILE NUMBER(S): SC 3054/04

COUNSEL: J Simpkins SC; N Kidd - Plaintiff
J M Ireland QC - First Defendant

SOLICITORS: PricewaterhouseCoopers Legal - Plaintiff
Carroll & Associates (as agent for Leonardus Gerardus Smits) - First Defendant
No appearance - Second Defendant
Submitting appearances - Third to Sixth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

CAMPBELL J

FRIDAY 27 AUGUST 2004

3054/04 HEGGIES BULKHAUL LIMITED v KEVIN SHIRLAW & ORS

JUDGMENT – Ex Tempore; Revised 30 August 2004

1 HIS HONOUR: This is a notice of motion which seeks the following orders:

“1. A declaration that the Plaintiff is entitled to have the Plaintiff’s Lease registered on the folios of the Register having Folio Identifiers 1, 2, 3, 4 and 5/253462 in priority to the mortgage having distinctive reference number 9585643 between Global Minerals Australia Pty Limited as Mortgagor and Ostabridge Pty Ltd (in Liquidation) (Receiver and Manager Appointed) and Kevin Richard Shirlaw as Mortgagees.

2. An order that the Fifth Defendant do all things necessary to forthwith register the Plaintiff’s Lease on the folios of the Register having Folio Identifiers 1, 2, 3, 4 and 5/253462.

3. An order that the injunction against the Fifth Defendant contained in paragraph 3 of the Orders made on 1 June 2004 otherwise be continued until further order.”

2 The circumstances from which the dispute arises are that until May 2000 Australia Machinery Equipment Sales Pty Limited (“AMES”) was the registered proprietor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 805
Decision Date: 27 August 2004

CaseChat Overview and Summary

In the case of Heggies Bulkhaul v Shirlaw, the dispute involved the rights and interests in a property, specifically regarding an unregistered lease and an unregistered mortgage. The parties contested the priority of their respective interests, which hinged on the timing of the creation of their equitable interests. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were the resolution of the priorities between the interests of the parties and the admissibility of evidence in the context of the withdrawal of an admission made in the pleadings. The court also considered the procedural matter of whether a stay pending appeal could be granted without an undertaking as to damages, given the potential for harm to third parties.

The court ruled that the priority of interests was determined by the time of creation of the equitable interests, and the unregistered lease took precedence over the unregistered mortgage. The court further held that an admission in the pleadings could be withdrawn if it was made in error, provided it did not unfairly prejudice the other party. Regarding the stay pending appeal, the court determined that it could be granted without an undertaking as to damages if there was a risk of damage to third parties. The court emphasised the importance of protecting third-party interests in such situations.

The final orders of the court were that the unregistered lease held priority over the unregistered mortgage, and the admission in the pleadings was withdrawn. A stay pending appeal was granted without the requirement for an undertaking as to damages, on the basis of the potential harm to third parties.

Orders