HSBC Bank Australia Ltd v Wang - [2021] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION:

HSBC Bank Australia Ltd v Wang & Ors [2021] QSC 58

PARTIES:

HSBC BANK AUSTRALIA LIMITED
(applicant)

v
JIANYI WANG
CHUYUE WANG
HUIFEN XIE
(first respondents)
CRAIG MAX SCUTELLA
IRYNA MULLIGAN
(second respondents)

FILE NO:

BS 2251 of 2021

DIVISION:

Trial Division

DELIVERED ON:

25 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2021

JUDGE:

Holmes CJ

ORDERS:

1. The caveat lodged by the first respondents over Lot 6 SP105007 be removed.

2. The first respondents pay the costs of the applicant and the second respondents on the standard basis.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the first respondents purchased a property on Hope Island (“the property”) for an amount which was financed by a loan facility provided by the applicant and secured by a first registered mortgage over the property – where the first respondents fell into arrears on the loan and the applicant obtained default judgment for recovery of possession of the property – where the applicant contracted to sell the property to the second respondents – where, prior to settlement of the contract, the first respondents lodged a caveat claiming an equitable interest in the property on the ground that the applicant had failed to act in good faith in exercising its power of sale as mortgagee – where the marketing of the Property was made more difficult by government restrictions imposed during the COVID-19 pandemic and economic uncertainty – where the first respondents contend that the applicant sold the property too rapidly and at a significant undervalue – where the first respondents contend that the applicant should have waited for conditions to improve and continued to market the property – whether the claim that the applicant breached its duty to act in good faith in exercising the power of sale constitutes a serious question to be tried – whether the balance of convenience favours the removal of the caveat

Land Title Act 1994 (Qld), s 122(1)(c), s 127

Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 279 ALR 166; [2011] NSWCA 39, considered
Clarke v Japan Machines (Australia) Pty. Ltd. (No. 2) [1984] 1 Qd R 421, cited
Eng Mee Yong v Letchumanan [1980] AC 331, cited
Harvey v McWatters (1948) 49 SR (NSW) 173, cited
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74, considered
Macedonian Society of Western Australia (Inc) (Receiver and Manager appointed) v St George Bank Ltd [2003] WASC 17, cited
Maviglia Investments Pty Ltd v BKSL Investments Pty Ltd (in liq) & Ors [2017] NSWSC 490, cited
Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; [1912] HCA 9, applied

COUNSEL:

T Ritchie for the applicant
S Monks for the first respondents
G Coveney for the second respondents

SOLICITORS:

DLA Piper for the applicant
David Kam & Co for the first respondents
Hickey Lawyers for…

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: [2021] QSC 58
Decision Date: 25 March 2021

CaseChat Overview and Summary

The case of HSBC Bank Australia Ltd v Wang involved the applicant, HSBC Bank Australia Ltd, who had financed a loan to the first respondents for the purchase of a property on Hope Island. After the first respondents fell into arrears on their loan, the applicant obtained a default judgment for recovery of possession. The applicant then contracted to sell the property to the second respondents. Before settlement, the first respondents lodged a caveat claiming an equitable interest in the property, arguing that the applicant had not acted in good faith when exercising its power of sale as mortgagee. They contended that the applicant had sold the property too rapidly and at a significant undervalue, particularly given the difficulties in marketing the property due to COVID-19 restrictions and economic uncertainty. They further argued that the applicant should have waited for conditions to improve and continued to market the property.

The primary legal issues before the court were whether the claim that the applicant had breached its duty to act in good faith in exercising the power of sale constituted a serious question to be tried, and whether the balance of convenience favoured the removal of the caveat. The court had to consider the nature of the duty of good faith owed by the mortgagee in exercising the power of sale, as well as the factors relevant to determining whether the balance of convenience favoured the removal of the caveat. The court was required to balance the rights of the first respondents to protect their equitable interest against the rights of the applicant to sell the property and the second respondents to purchase the property.

In determining the issues, the court considered the relevant principles of equity and the law relating to the exercise of the power of sale by a mortgagee. The court found that the first respondents' claim that the applicant had breached its duty to act in good faith did not constitute a serious question to be tried, as it was unlikely to succeed. The court also found that the balance of convenience favoured the removal of the caveat, as the applicant and the second respondents would suffer significant prejudice if the caveat remained in place. The court emphasised the importance of the applicant's right to sell the property and the second respondents' right to purchase it, particularly in the context of the economic uncertainty caused by the COVID-19 pandemic. The court also noted that the first respondents had not demonstrated that they would suffer significant prejudice if the caveat was removed.

Accordingly, the court ordered that the caveat lodged by the first respondents over Lot 6 SP105007 be removed, and that the first respondents pay the costs of the applicant and the second respondents on the standard basis. The court's decision highlights the importance of balancing the rights of all parties involved in a dispute over the exercise of the power of sale by a mortgagee, particularly in the context of economic uncertainty and changing market conditions. The court's decision also emphasises the need for mortgagees to act in good faith when exercising their power of sale, and the potential consequences of failing to do so.

Orders

Orders of the court

1. The caveat lodged by the first respondents over Lot 6 SP105007 be removed.

2. The first respondents pay the costs of the applicant and the second respondents on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	HSBC Bank Australia Ltd v Wang & Ors [2021] QSC 58
PARTIES:	HSBC BANK AUSTRALIA LIMITED (applicant) v JIANYI WANG CHUYUE WANG HUIFEN XIE (first respondents) CRAIG MAX SCUTELLA IRYNA MULLIGAN (second respondents)
FILE NO:	BS 2251 of 2021
DIVISION:	Trial Division
DELIVERED ON:	25 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2021
JUDGE:	Holmes CJ
ORDERS:	1. The caveat lodged by the first respondents over Lot 6 SP105007 be removed. 2. The first respondents pay the costs of the applicant and the second respondents on the standard basis.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the first respondents purchased a property on Hope Island (“the property”) for an amount which was financed by a loan facility provided by the applicant and secured by a first registered mortgage over the property – where the first respondents fell into arrears on the loan and the applicant obtained default judgment for recovery of possession of the property – where the applicant contracted to sell the property to the second respondents – where, prior to settlement of the contract, the first respondents lodged a caveat claiming an equitable interest in the property on the ground that the applicant had failed to act in good faith in exercising its power of sale as mortgagee – where the marketing of the Property was made more difficult by government restrictions imposed during the COVID-19 pandemic and economic uncertainty – where the first respondents contend that the applicant sold the property too rapidly and at a significant undervalue – where the first respondents contend that the applicant should have waited for conditions to improve and continued to market the property – whether the claim that the applicant breached its duty to act in good faith in exercising the power of sale constitutes a serious question to be tried – whether the balance of convenience favours the removal of the caveat Land Title Act 1994 (Qld), s 122(1)(c), s 127 Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd (2011) 279 ALR 166; [2011] NSWCA 39, considered Clarke v Japan Machines (Australia) Pty. Ltd. (No. 2) [1984] 1 Qd R 421, cited Eng Mee Yong v Letchumanan [1980] AC 331, cited Harvey v McWatters (1948) 49 SR (NSW) 173, cited Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74, considered Macedonian Society of Western Australia (Inc) (Receiver and Manager appointed) v St George Bank Ltd [2003] WASC 17, cited Maviglia Investments Pty Ltd v BKSL Investments Pty Ltd (in liq) & Ors [2017] NSWSC 490, cited Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676; [1912] HCA 9, applied
COUNSEL:	T Ritchie for the applicant S Monks for the first respondents G Coveney for the second respondents
SOLICITORS:	DLA Piper for the applicant David Kam & Co for the first respondents Hickey Lawyers for…