Hutson v Roufeil - [2020] NSWSC 864

Supreme Court

New South Wales

Medium Neutral Citation: Hutson v Roufeil [2020] NSWSC 864
Hearing dates: 17 December 2019
Decision date: 03 July 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Judgment for the plaintiffs for possession of the land identified by the hatching on Annexure “A” of the Schedule.
(2) The second defendant to pay the costs of the plaintiffs.

Catchwords:
REAL PROPERTY – possession of land –indefeasibility of title – personal equities – where the plaintiffs are receivers and managers appointed by a lender who has legal title over the property – where the second defendant alleges an in personam exception to indefeasibility – where second defendant alleges a life estate was granted and estoppel by convention applies – no evidence of the requisite assumptions being adopted by all parties – no exception to indefeasibility found – possession granted to the plaintiffs

Legislation Cited:
Real Property Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Charub Pty Ltd v Triandafyllou [2019] NSWSC 487
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25
Moratic Pty Ltd v Lawrence James Gordon & anor (2007) 13 BPR 24713; [2007] NSWSC 5
O’Brien v Bank of Western Australia Ltd (2013) 16 BPR 31705; [2013] NSWCA 71
Smilevska v Smilevska (No 2) [2016] NSWSC 397

Category: Principal judgment
Parties: Robert William Hutson as receiver and manager of certain property of Mark Noel Fraser (First Plaintiff)
Jennifer Anne Nettleton as receiver and manager of certain property of Mark Noel Fraser (Second Plaintiff)
Mark Damian Charles Roufeil in his capacity as trustee of the Estate of Mark Noel Fraser (a bankrupt) (First Defendant)
Noel George Fraser (Second Defendant)
Representation:
Counsel:
J Burnett (First and Second Plaintiffs)
J Dooley (Second Defendant)
Solicitors:
Herbert Smith Freehills (First and Second Plaintiffs)
Patey & Murphy Solicitors (Second Defendant)

File Number(s): 2019/309086

Judgment

HIS HONOUR: The nature of this matter is an application for summary judgment for possession of land, brought by way of a notice of motion filed on 7 November 2019 by the first and second plaintiff, being Robert Hutson and Jennifer Nettleton respectively (collectively, “the plaintiffs”). The plaintiffs are the receivers and managers appointed by a lender who has a registered mortgage over the property in question, following a default in repayments by the borrower, who is the registered proprietor. It is a rural property in the Hunter Valley, comprising 13 separate parcels of land (“the property”). The registered proprietor, Mark Fraser, is a bankrupt (“the bankrupt”). The first defendant, who is not defending the proceedings, is the trustee of Mr Fraser’s estate in bankruptcy.
The second defendant, who is the bankrupt’s father, Noel Fraser, claims that he has an unregistered life estate over part of each of four parcels of land over which he has lodged caveats, on which there is a house which he occupies, providing him with an in personam exception to the lender’s indefeasible title.

The relevant background

The background to the matter,…

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.

Keep reading for free

Create a free CaseChat account to read Hutson v Roufeil and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 864
Decision Date: 03 July 2020

CaseChat Overview and Summary

The plaintiffs, appointed receivers and managers of a lender, sought to establish their entitlement to possession of land over which the lender held legal title. The second defendant claimed a life estate in the property, alleging that an estoppel by convention applied, and that an in personam exception to indefeasibility was appropriate. The dispute was heard in the Supreme Court of South Australia. The court was required to determine whether there was evidence to support the second defendant's claims of an estoppel by convention and whether this could serve as an exception to the indefeasibility of the plaintiffs' title.

The court found that there was no evidence of the requisite assumptions being adopted by all parties, as required for an estoppel by convention to apply. The second defendant's evidence did not demonstrate that the plaintiffs and the lender had adopted assumptions which would give rise to an estoppel. The court also found that there was no basis for the second defendant's claim of a life estate, as there was no evidence to support this assertion. The court concluded that there was no in personam exception to indefeasibility available to the second defendant. The plaintiffs, as receivers and managers of the lender, were therefore entitled to possession of the property.

The court ordered that possession of the property be granted to the plaintiffs, as receivers and managers of the lender. The court further ordered that the second defendant's claims be dismissed. The decision reinforced the principle that indefeasibility of title is a fundamental aspect of the Torrens system in Australia, and that exceptions to this principle must be carefully substantiated by evidence.

Orders