JP Morgan Trust Australia Limited v Lees - [2009] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JP MORGAN TRUST AUSTRALIA LIMITED v LEES
[2009] SASC 339
Reasons of Judge Lunn a Master of the Supreme Court
4 November 2009
PROCEDURE
Possession order made for land under Part 17 of the Real Property Act - request by occupier under 6R 204A(6) that warrant of possession not issue - held anyone physically present on the land was an occupier for the purpose of 6RR 204 and 204A, but the status of occupier was not to be granted where interests were properly protected by another occupier - held no good and sufficient reason shown on circumstances since the making of the possession order to refuse the issue of the warrant.

JP MORGAN TRUST AUSTRALIA LIMITED v LEES
[2009] SASC 339
Reasons on whether a warrant for possession should issue.

JUDGE LUNN: The first defendant, Damien Lees, is the registered proprietor of the land in Certificate of Title, Register Book, Vol 5911 Folio 420, known as 14 North Street, Frewville (“the property”). He holds this land as the trustee of the KLV Family Trust, but the terms of that trust are not in evidence.
Kirsty Lee Viney (“Ms Viney”) at some point in the past has been a domestic partner of the first defendant within the meaning of the Domestic Partners Property Act 1996 and its predecessor. Ms Viney and the first defendant have had seven children, the youngest of whom is still quite young. The present status of the relationship between Ms Viney and the first defendant will be dealt with later. Ms Viney and the seven children continue to reside in the property. By virtue of 6R 204(5)(b) Ms Viney has become the second defendant in this action.
By a loan agreement entered into on 15 October 2006 the first defendant as the trustee for the KLV Family Trust borrowed $477,000 from the plaintiff for business or investment purposes. On that date he gave a first mortgage over the property to the plaintiff to secure the repayment of that loan. The terms of the loan included that interest was payable at the plaintiff’s variable rate plus a margin of 3.95% pa and an additional 4% pa if there was default. The first defendant was obligated to pay monthly instalments to the plaintiff which were initially $4,695 per month, but which varied subsequently depending upon adjustments to the variable interest rate.
On 26 September 2007 the plaintiff instituted this action under Part 17 of the Real Property Act, seeking an order for the possession of the property on the grounds that the defendant had defaulted in his monthly repayments. The summons first came on for hearing on 31 October 2007 before his Honour Judge Withers in the presence of a solicitor for the plaintiff and Ms Viney. The hearing was adjourned until 30 April 2008 with Judge Withers noting:
The premises are occupied by (the defendant’s) former partner and proposals are in place to have the premises transferred to her and…

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.

Keep reading for free

Create a free CaseChat account to read JP Morgan Trust Australia Limited v Lees and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] SASC 339
Decision Date: 4 November 2009

CaseChat Overview and Summary

In the case of JP Morgan Trust Australia Limited v Lees, the dispute centered around the interpretation and application of subr (6), with the plaintiff seeking a warrant and the defendant, Ms Viney, opposing it. The matter was heard in the relevant Australian court, where the defendant, Ms Viney, contested the plaintiff's application on the grounds of insufficient evidence to substantiate any agreements reached between the parties.

The primary legal issue was whether the defendant had provided sufficient evidence to establish any legally binding agreements with the plaintiff. The court was tasked with assessing the credibility of the defendant's affidavits and determining whether they contained admissible evidence of facts necessary to conclude that an agreement had been reached. The court also needed to evaluate the sufficiency of Ms Viney's legal arguments and submissions, considering her lack of legal training and the nature of her research into the law.

The court found that the defendant had not provided any admissible evidence to support her claims of agreements with the plaintiff. The evidence presented was mostly argumentative and not factual, and the court could not conclude that any legally binding agreement had been reached due to the lack of proper evidence. The court accepted the plaintiff's evidence and rejected the defendant's assertions, which were deemed to be mere allegations without factual basis. The court's reasoning was based on the need for proper evidence to establish contracts and the insufficiency of Ms Viney's submissions.

The final orders of the court were that the plaintiff's application for a warrant was to be granted, as the defendant had not demonstrated any reasonably arguable relevant circumstances to warrant the refusal of the issue of the warrant. The court dismissed the defendant's application and ordered the plaintiff to proceed with its application as sought.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is not necessary here to go into what might constitute “good and sufficient reason” to exercise the discretion under subr (6) in favour of a defendant or occupier. For the reasons below, the occupier has not shown that there are even any reasonably arguable relevant circumstances. Thus it is not necessary to consider what degree of circumstances would induce the Court to exercise its discretion to refuse the issue of the warrant.The evidence. The hearing under subr (6) was conducted on affidavit evidence with the right to cross-examine deponents. Ms Viney cross-examined the three deponents of the affidavits relied upon by the plaintiff. I accept the evidence in their affidavits. Nothing in their cross-examinations adversely affected their credit. The plaintiff’s counsel elected not to cross-examine Ms Viney on her affidavits. Ms Viney appeared unrepresented. She has no legal training but had obviously done a good deal of internet research on the law. For an unrepresented person she presented her case well, but she was mostly dealing with legal principles and concepts which she did not really understand. Much of her affidavits were strictly inadmissible as being argument and not evidence of facts, but the plaintiff did not object to them being used. Her written and oral submissions were a mish-mash of many points, most of which were not fleshed out sufficiently to make cogent arguments. I have done my best to deal below with the points which she was trying to make as best I could understand them. From May 2008 until recently there have been a series of convoluted negotiations between Ms Viney and various agents of the plaintiff. The evidence about many of them was incomplete and unsatisfactory. There is no utility in my attempting to construct from the evidence a narrative of what occurred. Many of the negotiations either did not result in any concluded agreement or were superseded by subsequent negotiations. There were some ad hoc short term arrangements for the plaintiff to defer action on the possession order pending other arrangements being finalised, which did not occur. Ms Viney deposed to a number of agreements which she says were made in this period with the plaintiff by deposing that there was an agreement in certain terms. Where such agreements were disputed by the plaintiff, as was the case with a number of them, the allegations of Ms Viney about them are merely assertions and not evidence of the facts. In order to establish a proper basis for a contract in law it is necessary to put forward admissible evidence in the form of documents or of what was allegedly said or done, so that from that evidence of facts the Court can reach a legal conclusion that a legally binding agreement had been reached or not reached. On the evidence in this matter, it is impossible to conclude that any agreement was reached where it is disputed by the other party. The basic building blocks on which to construct any findings of contracts are not there.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.