Impedovo v Nolan - [2016] ACTSC 386

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Impedovo v Nolan
Citation:	[2016] ACTSC 386
Hearing Date:	3 November 2016
DecisionDate:	3 November 2016
ReasonsDate:	23 December 2016
Before:	Penfold J
Decision:	See [89] below.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – Enforcement of debt – seizure and sale order in place in favour of respondents – appeal from order of registrar refusing application for payment of debt by instalments – whether solicitors for respondents acted unconscionably in recording note on title of appellant’s property subject to seizure and sale order – whether seizure and sale order should be set aside – appeal dismissed with costs – seizure and sale order extended. EQUITY – General Principles and Maxims of Equity – whether noting seizure and sale order on title of affected real property unconscionable – whether using legal process against unrepresented owner of real property unconscionable – whether using legal process for the first time unconscionable. REAL PROPERTY – General principles – noting of seizure and sale order on title of affected real property – removal of note of seizure and sale order from title when order suspended by making of instalment order.
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 2010A, 2159, 2162, 2201(6) Land Titles Act 1925 (ACT), s 48 Magistrates Court (Civil) Rules 2013 (SA), r 124(1) Service and Execution of Process Act 1992 (Cth), ss 105, 108 Sheriff Act 2009 (Vic)
Cases Cited:	Chen v The College of Building Ltd [2015] ACTSC 19 Harris v Caladine [1991] HCA 9; 172 CLR 84 Stanley v Rees [2015] ACTSC 22 The Law Society of the Northern Territory v Nolan [2002] NTSC 46 Zhou v Kousal [2012] VSC 187; 35 VR 419
Parties:	Antonio Impedovo (First Enforcement Creditor) Eva Barbara Impedovo (Second Enforcement Creditor) Jonathan Peter Nolan (First Enforcement Debtor) Mary Maria Gabriel Vidovic (Second Enforcement Debtor)
Representation:	Counsel Self-represented (First Enforcement Debtor); Mr Nolan, by leave (Second Enforcement Debtor) Ms A Irving (Enforcement Creditors)
Solicitors Self-represented (Enforcement Debtors) Trinity Law (Enforcement Creditors)
File Number:	SC 471 of 2014

Background

Some time in 2014, the parties to this appeal signed a deed resolving a dispute over the appellants’ failure to complete the purchase of a residential property in Adelaide. The deed provided for an agreed debt, in the amount of $85,000, to be paid by the appellants (the debtors) to the respondents (the creditors) within 14 days after the date of the deed.

Payment was not made under that deed. Since then, the creditors have made various unsuccessful attempts to enforce the debt, including by way of a seizure and sale order against real property owned by at least one of the debtors, and the debtors have, in the context of resisting that order, made a number of instalment payments at different times; despite this, because the instalment payments have been irregular, or barely enough to cover the interest that is accruing, presumably under s…

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

AGLC: Impedovo v Nolan [2016] ACTSC 386
Case: [2016] ACTSC 386
Decision Date: 3 November 2016

CaseChat Overview and Summary

In the matter of Impedovo v Nolan, the dispute involved an appeal against an order that refused the appellant's application to pay a debt by instalments. The appellant argued that the solicitors for the respondents had acted unconscionably by recording a note on the title of the appellant's property, which was subject to a seizure and sale order. The appellant further argued that the seizure and sale order should be set aside. The case was heard in the Supreme Court of New South Wales.

The court was required to decide whether the solicitors for the respondents acted unconscionably in recording the note on the title of the appellant's property, and whether using legal process against an unrepresented owner of real property was unconscionable. The court also had to determine whether using legal process for the first time was unconscionable.

The court dismissed the appeal and found that the solicitors for the respondents had not acted unconscionably in recording the note on the title of the appellant's property. The court held that the solicitors had a duty to protect their client's interests and that they had acted within their rights in recording the note. The court also found that using legal process against an unrepresented owner of real property was not unconscionable, as the appellant had been given notice of the proceedings and had the opportunity to defend them. The court further held that using legal process for the first time was not unconscionable, as the respondents had a valid claim against the appellant. The seizure and sale order was extended, and the appeal was dismissed with costs.

Orders

Orders of the court

See [89] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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