IIB Global NV v Pascoe - [2012] NSWSC 96

Supreme Court

New South Wales

Medium Neutral Citation: IIB Global NV v Pascoe [2012] NSWSC 96
Hearing dates: Friday, 3 February 2012
Decision date: 03 February 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [41], [43] and [44] of judgment.

Catchwords:
PRACTICE AND PROCEDURE - Application for adjournment raised in correspondence refused - no question of principle

MORTGAGES - Discharge of mortgage - principles of subrogation referred to

REAL PROPERTY - application to reject and cancel unregistered dealings pursuant to s138(3) Real Property Act 1900 - transfer of mortgage and change of name - no opposition to order that the Registrar-General reject the registration of the transfer of the mortgage
REAL PROPERTY -practice and procedure - powers of the Registrar-General to reject and cancel unregistered dealings pursuant to s138(3) Real Property Act 1900 - no power to order the Registrar-General to cancel unregistered dealings - orders made to ensure correct recording on the register
Legislation Cited: Conveyancing Act 1919
Civil Procedure Act 2005
Real Property Act 1900
Cases Cited: Scott Darren Pascoe As Trustee of the Property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason and Ors [2011] NSWSC 1217
IIB Global NV & Anor & Scott Darren Pascoe & Ors (No. 4) [2011] NSWSC 1413
IIB Global NV and Anor v Scott Darren Pascoe and Ors [2011] NSWSC 1136
Butler v Rice [1910] 2 Ch 277
Ghana Commercial Bank v Chandirim [1960] AC 732
Chase Corporation Australia Pty Ltd v North Sydney Brick & Tile Company Limited (1994) 35 NSWLR 1
Paul v Speirway Limited (in Liq) [1976] Ch 220
Category: Principal judgment
Parties: IIB Global NV (1st Plaintiff)
Linden Prescott Dyason (2nd Plaintiff)
Scott Darren Pascoe, Elizabeth Ann Occleshaw & Lindsey Jane Dyason (Registered Proprietors) (1st Defendant)
Scott Darren Pascoe (2nd Defendant/Applicant)
Representation: No appearance for the plaintiffs
B Skinner (2nd Defendant/Applicant)
Farrell Goldrick Mullan

File Number(s): 2011/294682

Judgment

HIS HONOUR : The applicant, Mr Pascoe, is the trustee in bankruptcy of the estate of Mr Arthur Linden Dyason. The bankruptcy commenced on 3 May 2007. Mr Arthur Dyason was registered as a joint tenant with his wife, Mrs Lindsey Jane Dyason, as proprietors of land at Briarfield in New South Wales. By a summons filed on 30 September 2010 and an amended summons filed on 9 November 2010 Mr Pascoe sought orders that he be appointed as trustee for sale of the property. Those orders were not made, but on 14 October 2011 orders were made appointing Mr Morgan James Chubb and Mr Gavin Thomas, chartered accountants, as trustees for sale of the Briarfield property. The orders were made pursuant to s 66G of the Conveyancing Act 1919 ( Scott Darren Pascoe As Trustee of the Property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason and Ors [2011] NSWSC 1217). The orders of 14 October 2011 were stayed for 21 days, but I am informed that the stay has not been extended.

On 13 September 2011, a summons was…

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.

Continue reading IIB Global NV v Pascoe

Details

AGLC: IIB Global NV v Pascoe [2012] NSWSC 96
Case: [2012] NSWSC 96
Decision Date: 03 February 2012

CaseChat Overview and Summary

In the matter of IIB Global NV versus Pascoe, the dispute was brought before the Supreme Court of New South Wales. The primary issue concerned the discharge of a mortgage over a property and the subsequent transfer of the mortgage to another party. The court also had to consider an application to reject and cancel unregistered dealings related to the property, as well as an application for an adjournment which was raised in correspondence.

The legal issues the court needed to address were whether the mortgage could be discharged, the principles of subrogation in this context, and the Registrar-General's powers under section 138(3) of the Real Property Act 1900. Specifically, the court needed to determine if the Registrar-General could be ordered to cancel unregistered dealings and if there was any power to ensure the correct recording on the register.

The court found that the application for an adjournment, which was raised in correspondence, was refused as it did not involve a question of principle. Regarding the discharge of the mortgage, the court considered the principles of subrogation, which allow a mortgagee to step into the shoes of the original creditor once the debt is paid. The court also examined the application to reject and cancel unregistered dealings, noting that there was no opposition to the order that the Registrar-General reject the registration of the transfer of the mortgage. Furthermore, the court clarified that there was no power to order the Registrar-General to cancel unregistered dealings, but it could make orders to ensure the correct recording on the register.

The final orders of the court were to ensure the correct recording on the register of the property, rejecting the registration of the transfer of the mortgage, and clarifying the Registrar-General's limited powers under section 138(3) of the Real Property Act 1900.

Orders