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Lane v Conlan

Lane v Conlan

Case [2004] WASC 15 12 February 2004

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LANE & ANOR -v- CONLAN [2004] WASC 15

Reported Decision:	(2004) 28 WAR 337
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 15
Case No:	CIV:1555/2003	Heard:	30 SEPTEMBER & 26 NOVEMBER 2003
Coram:	PULLIN J	Delivered:	12/02/04
No of pages:	26	Judgment Part:	1 of 1
Result:	Summary judgment for the plaintiffs
Category:	A
PDF Version

Parties:	RODNEY RAYMOND LANE MARGARET ELIZABETH LANE MARK ANTHONY CONLAN
Catchwords:	Equity Common law claim to money paid under covenants in two mortgages Trustee on behalf of other persons claim to the moneys employing process of tracing Plaintiffs claiming to be bona fide purchasers of legal interests for value without notice Whether value given Whether plaintiffs had notice of breach of trust Whether purchaser may acquire legal title after notice of a breach of trust
Legislation:	Nil
Case References:	ASC v Melbourne Asset Management Nominees Pty Ltd (1994) 49 FCR 334 Australian Securities and Investments Commission v Rowena Nominees Pty Ltd [2003] WASC 112 Bailey v Barnes [1894] 1 Ch 25 Blackwood & Ibotson v London Chartered Bank of Australia (1874) LR 5 PC 92 Conlan v Registrar of Titles (2001) 24 WAR 299 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Eccles v Hall (1894) 13 NZLR 433 Harpham v Shacklock (1881) 19 Ch D 207 In re Diplock [1948] Ch 465 J C Houghton & Co v Nothard, Lowe & Wills Ltd [1928] AC 1 Keefe v Law Society of New South Wales (1998) 44 NSWLR 451 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 London Freehold & Leasehold Property Company v Baron Suffield [1897] 2 Ch 608 Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1995] 3 All ER 747 Maloney v Hardy and Moorshead [1971] 2 QB 442 Park v Dunn [1916] NZLR 761 Patroni v Conlan [2004] WASC 16 Powell v London & Provincial Bank [1893] 1 Ch 610 Redman v Permanent Trustee Co of New South Wales Ltd (1916) 22 CLR 84 Skinner v Trustee of the Property of Reed [1967] Ch 1194 Sorrell v Finch [1977] AC 728 Target Holdings Ltd v Redferns [1996] AC 421 Taylor v Blakelock (1886) 32 Ch D 560 Taylor v Russell [1892] AC 244 Thompson v Palmer (1933) 49 CLR 507 Thorndike v Hunt (1859) 3 DE G & J 563; 44 ER 1386 Wall v Cockerell (1863) 10 H L Cas 229; (1863) 11 ER 1013 Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 196 ALR 482 Aequitas Ltd v Sparad No 100 Ltd (2001) 19 ACLC 1006 Applicant S70 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1338 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588 Australian Securities and Investments Commission v Rowena Nominees Pty Ltd [2003] WASC 106 Backstop Nominees Pty Ltd v Goscor Pty Ltd [1990] VR 468 Barlow Clowes International Ltd (in liq) v Vaughan [1992] 4 All ER 22 Bass v Permanent Trustee Co…

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.

Continue reading Lane v Conlan

Details

AGLC: Lane v Conlan [2004] WASC 15
Case: [2004] WASC 15
Decision Date

CaseChat Overview and Summary

Lane & Anor v Conlan [2004] WASC 15 is a case heard by the Supreme Court of Western Australia. The plaintiffs, Rodney and Margaret Lane, are seeking summary judgment against the defendant, Mark Conlan, who is the liquidator of Rowena Pty Ltd, trading as Graeme Grubb Finance Brokers. The plaintiffs seek a declaration that they are entitled to the sum of $100,457.84 held by the defendant, as well as an order for the defendant to pay that sum to the plaintiffs. The case arises from the collapse of Rowena Pty Ltd and the plaintiffs' investment in mortgages arranged by Rowena.

The court had to decide whether the plaintiffs were entitled to the moneys paid by the mortgagor, Cordova Pty Ltd, under the covenants in two mortgages. The defendant argued that the plaintiffs were not entitled to the moneys because they were only the beneficiaries of an equitable interest, and that the moneys paid by Rowena (the finance broker) could be traced to other investors who may have a claim to the moneys. The plaintiffs argued that they were bona fide purchasers for value without notice of any breach of trust and therefore had good title to the covenants and the moneys paid by Cordova.

The court found that the plaintiffs were entitled to the moneys paid by Cordova pursuant to the covenants in the mortgages. The court held that the plaintiffs were bona fide purchasers for value without notice of any breach of trust by Rowena. The court also found that the plaintiffs had given value for the covenant to repay in Mortgage 2, even though the trust account was overdrawn between the time the plaintiffs paid moneys to Rowena and the time Rowena drew moneys out in relation to the Mortgage 2 transaction. The court concluded that the plaintiffs were entitled to summary judgment for the full amount of the claim.

Orders