Kousal v Suncorp-Metway Ltd - [2011] VSC 312

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2011 02255

RONALD GEOFFREY KOUSAL	Plaintiff
-and-
SUNCORP-METWAY LIMITED	Defendant

JUDGE:	Mukhtar, AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2011
DATE OF JUDGMENT:	Orders pronounced on 30 June 2011. These reasons subsequently published on 6 July 2011
CASE MAY BE CITED AS:	Kousal v Suncorp-Metway Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 312

EXECUTION ― Judgment debt for sum of money ― Warrant of seizure and sale ― Unsuccessful attempt by Sheriff to sell judgment debtor’s land by auction ― Subsequent Court order permitting sale without reserve ― Sheriff’s obligations to judgment debtor ― Substantial value in debtor’s equity in land ― Meagre sale price ― No return to judgment creditor ― Impeachability of sale by judgment debtor

EXECUTION ― Warrant of seizure and sale ― Unsuccessful attempt of sale of judgment debtor’s land by auction ― Application by judgment creditor for sale without reserve price ― Court’s power ― Applicable considerations

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Harrison on 29 June 2011. The plaintiff in person on 30 June 2011.	Hutchinson Legal (given leave to cease acting on 30 June 2011)
For the Defendant	Mr G. Moffatt	Mills Oakley

HIS HONOUR:

On 30 June 2011 I granted the plaintiff, on certain conditions, his application under section 116A (3) (a) of the Transfer of Land Act to compel the defendant, as mortgagee, to produce the duplicate certificate of title to residential land he bought from the Sheriff at an auction.[1] The plaintiff needs the title to lodge his transfer from the Sheriff. The Court now publishes its reasons for that decision.
[1]The Court was constituted by an Associate Justice on a referral of powers under rule 77.05.

The case has some troubling features. Although the facts here are peculiar, this case demonstrates the great caution that must be taken before a Court permits the Sheriff to sell land under a warrant of seizure and sale without a reserve price. Such an order is not uncommonly sought and granted at the instance of the execution creditor if the Sheriff’s first attempted sale by auction fails for an absence of bids.

This judgment is a sequel to my decision in the closely associated proceeding of Guan Feng Wu v Li Ma and Zhiping Zhou[2] which is pending. For convenience and to give the full picture here, I shall rehearse facts from that earlier judgment even if repetitive.
[2][2011] VSC 208.

On 10 November 2008, Guan Feng Wu sued Li Ma and Zhiping Zhou in the Magistrates’ Court at Sunshine. The nature of the claim was described in the Complaint as being a breach of a loan agreement and a Letter of Undertaking. An amended statement of claim alleges the following. In about November 2006, the plaintiff lent the first defendant Ma the sum of Renminbi 440 000 (Chinese Yuan) which is equivalent to AU$96 660, as evidenced by document in…

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 Kousal v Suncorp-Metway Ltd 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: [2011] VSC 312
Decision Date: 30 June 2011

CaseChat Overview and Summary

This case involves an application under s 116A (3)(a) of the Transfer of Land Act 1994 for an order compelling the defendant, Suncorp-Metway Limited, as mortgagee, to produce the duplicate certificate of title to residential land. The plaintiff, Ronald Kousal, had bought the land from the Sheriff at an auction, but the defendant has refused to produce the certificate to enable Kousal to lodge his transfer with the Titles Office. The plaintiff needs the title to lodge his transfer from the Sheriff. The Court granted the application on certain conditions, designed to give the judgment debtor, Zhiping Zhou, more time to comprehend his predicament and obtain legal advice.

The main legal issues in this case were whether the sale by the Sheriff to the plaintiff was impeachable and liable to be set aside, and whether the Court should exercise its discretion in favour of Kousal. The Court held that the sale was not necessarily impeachable and that the Court should exercise its discretion in favour of Kousal, as he had a prima facie right to the production of the duplicate certificate of title. However, the Court emphasised that the order did not permit the Sheriff to sell at whatever price he could get, but rather allowed him to sell without reserve consistent with his duty to the judgment debtor.

The Court also expressed concern about the practice of granting ex parte orders permitting the Sheriff to sell without reserve, and suggested that such orders should be on notice to the debtor and possibly to the registered mortgagee. The Court may have to fix a "not below" price for itself to ensure the execution process has utility. The Court also recommended revisiting Rules of Court about this subject, as they may be ill-adapted to modern conditions.

Orders