King Investments Solutions v Hussain

[2011] NSWCA 160

Court of Appeal

New South Wales

Case Title:	King Investments Solutions v Hussain
Medium Neutral Citation:	[2011] NSWCA 160
Hearing Date(s):	18 April 2011
Decision Date:	18 April 2011
Jurisdiction:
Before:	Handley AJA
Decision:	Appeal dismissed for want of prosecution and the appellant to pay the costs of the appeal and of the motion, other than the costs of 4 April.
Catchwords:	PRACTICE & PROCEDURE - Appeal - dismissal for want of prosecution - no question of principle
Legislation Cited:	Real Property Act 1900, s 60
Cases Cited:	Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14, 142
Texts Cited:
Category:	Principal judgment
Parties:	Appellant - Fahmi Mustafa Hussain Respondent - King Investments Solutions Pty Limited (ACN 109 493 969)
Representation
- Counsel:	Counsel Respondent - Ms LR Young
- Solicitors:	Solicitors Appellant - Mr Douglas Knaggs, of Bisley Cooper Pty Ltd Respondent - Heidtman & Co Lawyers
File number(s):	2009/00295960
Publication Restriction:

Judgment Ex Tempore

1. HIS HONOUR : On 29 July 2010 Hidden J entered judgment for the plaintiff mortgagee for possession. Campbell J in earlier proceedings had given judgment for the plaintiff for the mortgage debt.

1. The defendants appealed as of right on 26 August 2010. Successive orders were made for filing the red appeal book and the appellants' submissions by 2 December 2010, 31 January 2011, 23 March and 30 March 2011. On 30 March the respondent filed a notice of motion for dismissal of the appeal for want of prosecution.

1. The notice of motion came before Young JA on 4 April when it was stood over to today's date because Ms Young, counsel for the respondent, was ill and unable to attend. Young JA noted (quoting from the Associate's record of the proceedings) that:

"The reason for today's adjournment is the illness of counsel for King Investments Solutions Pty Ltd. I urge the appellant to make sure the appeal papers are in a position where the appeal can be set down for hearing as far as possible before it comes back to the Court again".

and his Honour reserved costs.

1. The red appeal book has been filed and served in the meantime but the order for filing and service of the appellants' written submissions in substance has not been complied with. All that has happened is that the written submissions below on behalf of the defendants have been refiled in the appeal. Those submissions dated 1 February 2010 are not a compliance with the Court's order for the filing of written submissions in the appeal. The submissions are not directed to the grounds of appeal and do not identify error on the part of Hidden J.

1. The position today is that the appellants are still in default under orders requiring submissions to be filed by 2 December 2010, 31 January, 23 March, and 30 March 2011, despite the clear warning by Young JA on 4 April.

1. The applicant has therefore established a basis for an order dismissing the appeal for want of prosecution. I have read the reasons for judgment of Hidden J and the defendants' written submissions below which he considered and rejected.

1. The grounds of appeal raise a defence of res judicata based on the earlier decision of Campbell J who rejected the respondent's then claim for possession, because its Torrens title mortgage had not been registered.

1. The mortgage has since been registered and the current proceedings are based on a different title from that rejected by Campbell J. There is therefore no res judicata defence available to the appellants.

1. The grounds of appeal also assert that the respondent, as a registered second mortgagee, is not entitled to maintain ejectment against the mortgagor.

1. The rights of a registered mortgagee of Torrens title land to maintain ejectment are conferred by s 60 of the Real Property Act 1900. In Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14, 142 this Court held that a registered second mortgagee could maintain ejectment. The decision has stood for a long time without being questioned and was followed by Hidden J.

1. The grounds of appeal are prima facie hopeless and there has been a long history of procedural default. In my opinion, the applicant has established a case for the appeal to be dismissed for want of prosecution.

1. I therefore order that the appeal filed on 26 August 2010 be dismissed for want of prosecution and order the appellant, the respondent on the motion, to pay the costs of the appeal and the costs of the motion, other than the costs of the motion on 4 April.

1. They are the orders of the Court.

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