IIB Global NV v Scott Darren Pascoe (No 5)

[2011] NSWSC 1505

Supreme Court

New South Wales

Medium Neutral Citation:	IIB Global NV & Anor v Scott Darren Pascoe & Ors (No 5) [2011] NSWSC 1505
Hearing dates:	3 November 2011
Decision date:	07 December 2011
Jurisdiction:	Equity Division
Before:	Black J
Decision:	Matter relisted before Registrar in Equity for further directions
Catchwords:	PRACTICE AND PROCEDURE - Further directions for conduct of proceedings
Legislation Cited:	- Real Property Act 1900 (NSW) s 138
Category:	Consequential orders
Parties:	Linden Prescott Dyason (Plaintiff) Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (First Defendant) Scott Darren Pascoe (Second Defendant)
Representation:	Counsel: The Second Plaintiff appeared in person B.J. Skinner (S.D. Pascoe & E.A. Occleshaw) Solicitors: The Second Plaintiff appeared in person Goldrick Farrell Mullan (S.D. Pascoe & E.A. Occleshaw)
File Number(s):	11/294682

Judgment

1. I delivered judgment in these proceedings on 3 November 2011 finding that there was a basis on which to strike out paragraphs 2-6 of the relief sought in the Summons and the associated pleadings and particulars. However, I also expressed the view that I could not make orders sought by Mr Pascoe under s 138 of the Real Property Act 1900 (NSW) because, even if the prerequisites to the exercise of the power under that section were satisfied, such orders could not be made without making a finding, on a final basis, adverse to IIB Global NV ("IIB Global") that the assignment of a mortgage from the Trust Company of Australia (PTAL) Limited ("PTAL") to IIB Global was ineffective. I noted that the observations as to that question made in my interlocutory judgment dated 21 September 2011 did not amount to a final determination adverse to IIB Global that would support relief in those terms. I noted that there was a real risk that an order dismissing the balance of the Summons without resolving those matters would not resolve the substantive matters in dispute between the parties and sought further submissions from the respective parties.

1. Both Mr Dyason and Mr Pascoe have made further submissions in respect of my judgment. Mr Dyason noted that he was overseas over Christmas and submitted that the only way forward was for IIB Global, which has not previously been represented in the proceedings by legal representatives or an officer who was entitled to appear for it and is not now party to the proceedings, to retain legal representation and that he should be allowed sufficient time to retain a solicitor and that the hearing of the matter should be adjourned until early February 2012.

1. Mr Pascoe's submission did not directly address the question whether he sought to have orders made striking out the balance of the proceedings, to which I held I was entitled in my judgment dated 3 November 2011 while noting their possible lack of utility. I assume that such orders are not sought, since Mr Pascoe has referred to other steps which he submits should be taken to bring the matter on for a final hearing.

1. In particular, Mr Pascoe referred to earlier evidence that IIB Global had discontinued its business but remained legally registered and submitted that the only matter which needed to be resolved before the Court could make orders (implicitly, in respect of Mr Pascoe's motion seeking orders under s 138 of the Real Property Act ) was to determine whether PTAL accepted that the transfer of mortgage previously executed by it was of no force and effect as against Mr Pascoe by reason of the earlier discharge of that mortgage.

1. Mr Pascoe submitted that further directions should be made for the filing and service of further affidavit evidence as to PTAL's position and that, if such evidence is not filed, Mr Pascoe should be granted leave to file a further Notice of Motion for the purpose of joining PTAL as a party to the proceedings. It is by no means clear to me that the joinder of PTAL as the transferor of the mortgage, without joinder of IIB Global as the party which took the purported transfer of mortgage, would be sufficient to allow the grant of final relief in respect of the matters raised by Mr Pascoe's motion.

1. In any event, it appears that there are several remaining issues to be addressed in these proceedings, including any further application by IIB Global (as foreshadowed by Mr Dyason) to be rejoined as party to the proceedings and the directions sought by Mr Pascoe in respect of PTAL.

1. I consider that the preferable course is not to make the directions sought by Mr Pascoe. It is, of course, open to Mr Pascoe to seek to obtain further evidence from PTAL and to file such further notice of motion as he may be advised in the ordinary course, and it is also open to IIB Global to file such motion as it considers appropriate to seek to be rejoined as party to the proceedings, provided that it is represented by a person who has a right to appear in respect of that motion.

1. I will instead relist the matter for further case management before the Registrar in Equity on 1 February 2012 in accordance with the usual practice of this Division. At that point, directions may be made in respect of any further motions filed or to be filed by the parties, which may be listed before me or another Judge of the Equity Division for hearing.

1. Accordingly, I order that the matter be relisted for directions before the Registrar in Equity on 1 February 2012. The costs of the motion heard before me on 3 November 2011 should be reserved.

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Decision last updated: 09 December 2011