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

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.
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”).
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.
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…

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

Case: [2015] NSWSC 287
Decision Date: 19 March 2015

CaseChat Overview and Summary

In the matter of Irina Prodger v Trevor William Prodger, the parties were engaged in a matrimonial dispute where the primary issue was the handling of securities held by the mortgagee over two properties, including the matrimonial home. The dispute came before the court as the plaintiff sought to address the possibility of rights of contribution arising from the sale of the matrimonial property. Notably, the plaintiff had not entered an appearance in the proceedings, which raised concerns about potential prejudice to her interests in the property settlement.

The court was tasked with determining whether the proceedings should be adjourned to allow the plaintiff to enter an appearance, thereby preventing any potential prejudice to her. The central legal issues revolved around the rights of contribution that the plaintiff might have, the procedural fairness in allowing her to enter an appearance, and the implications of not doing so on the outcome of the property settlement. The court considered whether the plaintiff's lack of appearance could result in an unfair outcome, given the complexity of the financial and equitable interests at stake.

The court concluded that, given the intricate nature of the financial and equitable interests involved, and the potential for prejudice to the plaintiff's rights of contribution, it was in the interest of justice to adjourn the proceedings. This would enable the plaintiff to enter an appearance and fully participate in the litigation. The court recognised the importance of ensuring that all parties are afforded an equitable opportunity to present their case and protect their interests. Consequently, the matter was adjourned to allow the plaintiff to enter her appearance and address the substantive issues in the dispute.

The court ordered that the proceedings be adjourned to allow the plaintiff to enter an appearance, ensuring that she could fully participate in the litigation and protect her rights of contribution. This decision aimed to prevent any potential prejudice to the plaintiff and maintain procedural fairness in the resolution of the dispute.

Orders