Jackson v Arawak Holdings Pty Ltd - [2016] QSC 57

SUPREME COURT OF QUEENSLAND

CITATION:

Jackson v Arawak Holdings Pty Ltd & others [2016] QSC 57

PARTIES:

LIANA RENAE JACKSON
(applicant)
v
ARAWAK HOLDINGS PTY LTD ACN 157 865 195 AS TRUSTEE
(first respondent)
VAULT 8 HOLDINGS PTY LTD ACN 105 339 759 AS TRUSTEE (RECEIVER & MANAGER APPOINTED AND IN LIQUIDATION)

(second respondent)

CRAIG ANDREW PERRY
(third respondent)
REGISTRAR OF TITLES

(fourth respondent)

FILE NO/S:

SC No 7304 of 2015

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 November 2015

JUDGE:

Philip McMurdo JA

ORDER:

The Amended Originating Application will be dismissed. Caveat number 716252673 lodged by Ms Jackson over the property will be ordered to be removed and the cross application otherwise be dismissed.

CATCHWORDS:

MORTGAGES – OTHER MATTERS – where the applicant is the registered owner of freehold property in the Gold Coast hinterland – where the first respondent, as registered mortgagee, claims the applicant is in default under the mortgage and seeks to take possession of the property and exercise a mortgagee’s power of sale – where the mortgage is said to secure a loan made to the applicant by the second respondent – where the purchase of the property was completed on 8 April 2010 and the mortgage, loan agreement and other associated documents bear that date and the applicant’s signature – where the applicant contends that there was no loan because the property was purchased with her own funds that had been paid to her in repayment of advances previously made to the third respondent – where the applicant further contends that the mortgage should not be given effect because she did not execute the mortgage, loan instrument or other documents and her apparent signature on those documents are forgeries – whether the property was purchased with funds to which the applicant was entitled – whether the applicant executed the mortgage documents

MORTGAGES – MORTGAGE CONTRACT – WHAT AMOUNTS TO A MORTGAGE – INTENTION OF THE PARTIES – where the first respondent, as registered mortgagee, claims the applicant is in default under the mortgage and seeks to take possession of the property and exercise a mortgagee’s power of sale – where the applicant and third respondent were in a de facto relationship and acquired the property to build a house for the couple and their children – where the mortgage was prepared in 2010 but not registered until 2014 – where evidence of backdating documents demonstrated a willingness of the third respondent to deceive – where the applicant could not give evidence of her intended effect of the loan documents – where, in the circumstances, the applicant contends that the mortgage is a sham because neither party intended the mortgage to have its apparent effect – whether the mortgage is a sham

CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – AVOIDANCE OF DISPOSITIONS OF PROPERTY – OTHER CASES – where the first respondent…

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: [2016] QSC 57
Decision Date: 17 March 2016

CaseChat Overview and Summary

The case of Jackson v Arawak Holdings Pty Ltd involved a dispute over the ownership and mortgage of a property located in the Gold Coast hinterland. The applicant, Ms Jackson, claimed that she was the rightful owner of the property, but the first respondent, as the registered mortgagee, asserted that Ms Jackson was in default under the mortgage and sought to take possession of the property and exercise the power of sale. Ms Jackson argued that the mortgage should not be enforced as it was not executed by her and the signatures on the mortgage documents were forgeries. She further claimed that the property was purchased with her own funds, and no loan was involved.

The legal issues that arose in this case included whether the property was purchased with Ms Jackson's own funds, whether she executed the mortgage documents, and whether the mortgage was a sham because neither party intended for it to have its apparent effect. Additionally, the case addressed whether the transfer of the mortgage to the first respondent was void or improper due to s 468 of the Corporations Act 2001 (Cth). Lastly, the court considered whether the caveat lodged by Ms Jackson to prevent the first respondent from exercising their power of sale should be removed.

The court found that the evidence did not support Ms Jackson's claims that the property was purchased with her own funds, and that the signatures on the mortgage documents were forgeries. The court also found that the mortgage was not a sham and that there was an intention to create a security interest in the property. The court further determined that the transfer of the mortgage to the first respondent was not void or improper. Finally, the court ordered that the caveat lodged by Ms Jackson be removed.

The court dismissed the amended originating application and ordered that the caveat be removed, with all other orders in the cross application dismissed.

Orders

Orders of the court

The Amended Originating Application will be dismissed. Caveat number 716252673 lodged by Ms Jackson over the property will be ordered to be removed and the cross application otherwise be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jackson v Arawak Holdings Pty Ltd & others [2016] QSC 57
PARTIES:	LIANA RENAE JACKSON (applicant) v ARAWAK HOLDINGS PTY LTD ACN 157 865 195 AS TRUSTEE (first respondent) VAULT 8 HOLDINGS PTY LTD ACN 105 339 759 AS TRUSTEE (RECEIVER & MANAGER APPOINTED AND IN LIQUIDATION) (second respondent) CRAIG ANDREW PERRY (third respondent) REGISTRAR OF TITLES (fourth respondent)
FILE NO/S:	SC No 7304 of 2015
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	19 and 20 November 2015
JUDGE:	Philip McMurdo JA
ORDER:	The Amended Originating Application will be dismissed. Caveat number 716252673 lodged by Ms Jackson over the property will be ordered to be removed and the cross application otherwise be dismissed.
CATCHWORDS:	MORTGAGES – OTHER MATTERS – where the applicant is the registered owner of freehold property in the Gold Coast hinterland – where the first respondent, as registered mortgagee, claims the applicant is in default under the mortgage and seeks to take possession of the property and exercise a mortgagee’s power of sale – where the mortgage is said to secure a loan made to the applicant by the second respondent – where the purchase of the property was completed on 8 April 2010 and the mortgage, loan agreement and other associated documents bear that date and the applicant’s signature – where the applicant contends that there was no loan because the property was purchased with her own funds that had been paid to her in repayment of advances previously made to the third respondent – where the applicant further contends that the mortgage should not be given effect because she did not execute the mortgage, loan instrument or other documents and her apparent signature on those documents are forgeries – whether the property was purchased with funds to which the applicant was entitled – whether the applicant executed the mortgage documents MORTGAGES – MORTGAGE CONTRACT – WHAT AMOUNTS TO A MORTGAGE – INTENTION OF THE PARTIES – where the first respondent, as registered mortgagee, claims the applicant is in default under the mortgage and seeks to take possession of the property and exercise a mortgagee’s power of sale – where the applicant and third respondent were in a de facto relationship and acquired the property to build a house for the couple and their children – where the mortgage was prepared in 2010 but not registered until 2014 – where evidence of backdating documents demonstrated a willingness of the third respondent to deceive – where the applicant could not give evidence of her intended effect of the loan documents – where, in the circumstances, the applicant contends that the mortgage is a sham because neither party intended the mortgage to have its apparent effect – whether the mortgage is a sham CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – AVOIDANCE OF DISPOSITIONS OF PROPERTY – OTHER CASES – where the first respondent…