Irina Prodger v Trevor William Prodger

[2015] NSWSC 287

Supreme Court

New South Wales

Medium Neutral Citation:	Irina Prodger v Trevor William Prodger & Anor [2015] NSWSC 287
Hearing dates:	19 March 2015
Date of orders:	19 March 2015
Decision date:	19 March 2015
Jurisdiction:	Equity Division - Duty List
Before:	Slattery J
Decision:	See para [10] of judgment.
Catchwords:	EQUITY – matrimonial dispute – mortgagee holds securities over two properties including matrimonial property – contract for sale of matrimonial property – possibility of rights of contribution arising in plaintiff – plaintiff did not enter appearance – possibility of prejudice to plaintiff upon property settlement – adjournment of matter for plaintiff’s benefit.
Legislation Cited:	Family Law Act 1975 (Cth)
Cases Cited:	Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 Gibbins v Eyden (1869) LR 7 Eq 371 Re Smith; Hannington v True (1886) 33 Ch D 195 Sackville v Smyth (1873) LR 17 Eq 153
Texts Cited:	Fisher & Lightwood’s Law of Mortgage (2nd ed. 2005, Lexis Nexis) at 30.2
Category:	Costs
Parties:	Plaintiff: Irina Prodger First Defendant: Trevor William Prodger Second Defendant: Jason Stuart Prodger
Representation:	Counsel: First Defendant: T.W. Marshall Second Defendant: T. Fishburn Solicitors: Plaintiff: no appearance First defendant: John Hamilton Maxwell, Maxwell & Co Solicitors Second defendant: Andrew McInnes, McInnes Legal
File Number(s):	2015/52679
Publication restriction:	No

EX TEMPORE Judgment

1. These proceedings are back before the Court again this morning. The matter was called outside Court after the commencement of the morning’s list. There was no appearance on behalf of the plaintiff, Irina Prodger. Mr Marskell of Counsel appears for Trevor William Prodger and Ms Fishburn of Counsel for Jason Stuart Prodger.

2. Ms Prodger applies for various declarations of constructive trust and extensions of certain caveats over two properties. One is a matrimonial property that she and Mr Trevor Prodger the first defendant had as their matrimonial home (“the matrimonial property”). The other is a property owned and occupied by the first defendant, Trevor Prodger's mother, Mrs Audrey Prodger (“Audrey Prodger's property”).

3. By a contract for sale executed between Trevor Prodger and another person, the matrimonial property is being sold in order to satisfy liabilities to the Commonwealth Bank of Australia (“Commonwealth Bank”) secured over both the matrimonial property and Audrey Prodger’s property. Discussions took place between Trevor Prodger and the Commonwealth Bank before this sale.

4. When the matter was last before the Court, Irina Prodger said that she wished to bring Family Law Act 1975 (Cth) proceedings in the Federal Circuit Court. By now she should have done so. These Family Law proceedings will not be heard until 8 April 2015. The immediate difficulty is that Mr Trevor Prodger will be in breach of the contract for sale of the matrimonial property if the caveat is not removed by 30 March 2015 to permit settlement that day. However, if the sale goes ahead and the Commonwealth Bank’s liabilities are paid out, then there will be very little proceeds of sale from the matrimonial home. That may mean that rights of contribution may arise in Ms Prodger and rights in respect of the security that the Commonwealth Bank holds over Audrey Prodger's property.

5. It seems to me that if the caveat is removed the sale goes ahead and the Commonwealth Bank securities are satisfied, some potentially irremediable prejudice may occur to Irina Prodger. If the Commonwealth Bank releases its security over Audrey Prodger’s property then Irina Prodger may lose her right to use the bank’s securities in aid of enforcement of any rights of contribution she may have against Audrey Prodger: Fisher & Lightwood’s Law of Mortgage (2nd ed. 2005, Lexis Nexis) at 30.2; Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 at 350; Gibbins v Eyden (1869) LR 7 Eq 371; Sackville v Smyth (1873) LR 17 Eq 153; Re Smith; Hannington v True (1886) 33 Ch D 195.

6. But the plaintiff is not here today. Her absence is not explained in any satisfactory way. Mr Marskell has handed up the correspondence between his instructing solicitors and Mr Prodger attached to which is a medical report which is addressed and stating as follows:

"To whom it may concern. This is to certify that Irina Prodger is currently suffering from a medical condition from 17 March 2015 up until 31 March 2015. She will be unable to attend for her court case."

7. It is signed by Dr Jeffery Wang at the Toowong Medical Centre in Queensland. The certificate gives no indication of the nature of the plaintiff’s condition or why she is unable to attend for the court case. She was before the Court on Friday of last week and seemed to be in reasonable health at that time, at least to the Court's observation.

8. Despite the unsatisfactory nature of this correspondence (which will become Exhibit A on this application), I have decided to adjourn the proceedings until Thursday 26 March 2015 to allow some of the Court's concerns to be alleviated. It must be possible in discussions between the parties and the Commonwealth Bank for a situation to subsist in which if the sale goes ahead, but the Commonwealth Bank's securities over Audrey Prodger's property are not released for a limited period. That way Irina Prodger's possible rights in respect of those securities can be preserved. It seems to me that some kind of solution along those lines may be possible between now and 26 March 2015.

9. Someone will need to apply thought this issue. Otherwise I will hear the matter on 26 March 2015. Mrs Irina Prodger needs to understand that if she is unable to attend the Court herself that day, she will need to be represented by lawyers to protect her interests. Otherwise the matter may proceed to finality in her absence.

Conclusions and Orders

10. Accordingly, the Court makes the following orders and directions:

1.   Adjourn the matter before the duty judge at 10am, 26 March 2015.

2.   Vacate the listing date before the Registrar in equity’s list tomorrow, 20 March 2015 and adjourn it before the duty judge at 10am on 26 March 2015.

3.   Costs reserved.

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Decision last updated: 20 March 2015