Lane v Oakley (No 2) - [2019] FCA 488

FEDERAL COURT OF AUSTRALIA
Lane v Oakley (No 2) [2019] FCA 488

File number: QUD 325 of 2017

Judge: RANGIAH J

Date of judgment: 11 April 2019

Catchwords:
BANKRUPTCY – power under s 30(1) of the Bankruptcy Act 1996 (Cth) to order that registrar sign a release of mortgage document

COSTS – Calderbank offer – whether indemnity costs should be ordered – whether unreasonable to refuse offer

Legislation:
Bankruptcy Act 1966 (Cth) ss 30(1), 120(1) and 121(1)

Family Law Act 1975 (Cth) s 106A(1)

Federal Court Rules 2011 (Cth) r 40.02

Cases cited:
Commonwealth v Gretton [2008] NSWCA 117

Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1

Calderbank v Calderbank [1975] All ER 333

Leroy as Trustee for the Bankrupt Estate of Shinton v Sun Sheet Metals (Qld) Pty Ltd [2017] FCCA 2735

Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd (No 2) [2018] QSC 133

Lane v Oakley [2019] FCA 107

Date of hearing: Determined on the papers

Date of last submissions: 22 March 2019 (Applicant)
9 April 2019 (Respondent)

Registry: Queensland

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Mr SM Gerber

Solicitor for the Applicant: Griffiths Parry

Counsel for the Respondent: Mr D de Jersey

Solicitor for the Respondent: Pope & Spinks Solicitors

ORDERS

QUD 325 of 2017

IN THE MATTER OF ESTATE OF ANN VIVIEN OAKLEY

BETWEEN:
MORGAN GERARD JAMES LANE AND PAUL ERIC NOGUEIRA AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF ANN VIVIEN OAKLEY

Applicant

AND:
TANIA MICHELE OAKLEY AS TRUSTEE FOR THE OAKLEY TRUST

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

11 APRIL 2019

THE COURT DECLARES THAT:
1.Registered Mortgage No. 717546726 between the respondent as lender and Ann Vivien Oakley as borrower dated 29 September 2016 is void against the applicants pursuant to s 120(1) and 121(1) of the Bankruptcy Act 1966 (Cth) (the Act).
2.The Mortgage Agreement between the respondent as lender and Ann Vivien Oakley as borrower dated 1 December 2015 is void against the applicants pursuant to ss 120(1) and 121(1) of the Act.
3.No money is due under or by virtue of the Mortgage Agreement between the respondent as lender and Ann Vivien Oakley as borrower dated 1 December 2015, and is secured by Registered Mortgage No. 717546726.

THE COURT ORDERS THAT:
4.The respondent shall prepare and lodge with the Queensland Titles Registry Office the documents necessary to effect the removal of any reference to Registered Mortgage No. 717546726 from the interest purportedly mortgaged by 4pm on 18 April 2019.
5.In the event that the respondent fails to comply with Order 4:
(a)the applicants shall file and serve an affidavit deposing to such failure;
(b)the applicants shall prepare a Form 3 Release of Mortgage in respect of the Registered Mortgage No. 717546726 for execution by a registrar of the Federal Court of Australia at Brisbane;
(c)a registrar of the Federal Court of Australia at…

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 Oakley (No 2)

Details

AGLC: Lane v Oakley (No 2) [2019] FCA 488
Case: [2019] FCA 488
Decision Date: 11 April 2019

CaseChat Overview and Summary

The applicants, Lane and Lane, sought to have a mortgage released from their property, which had been registered by the respondent, Oakley, without their consent. The dispute came before the Federal Court of Australia, where the applicants argued that they were entitled to have the mortgage removed and the respondent was ordered to pay their costs. The legal issues that the court needed to decide involved the power under section 30(1) of the Bankruptcy Act 1996 (Cth) to order the registrar to sign a release of mortgage document and the circumstances in which indemnity costs should be ordered. The court also needed to determine whether it was unreasonable for the respondent to refuse a Calderbank offer made by the applicants.

The court found that the applicants were entitled to have the mortgage removed from their property, as the respondent had registered it without their consent. The court exercised its power under section 30(1) of the Bankruptcy Act 1996 (Cth) to order the registrar to sign a release of mortgage document. The court held that it was not unreasonable for the respondent to refuse the Calderbank offer made by the applicants, as it was not sufficiently clear and specific. However, the court held that the respondent should pay the applicants' costs of the proceeding on a party and party basis, save that there be no order as to costs in respect of the submissions filed by the applicants on 22 February and 22 March 2019.

The court ordered that the respondent shall prepare and lodge with the Queensland Titles Registry Office the documents necessary to effect the removal of any reference to Registered Mortgage No. 717546726 from the interest purportedly mortgaged by 4pm on 18 April 2019. In the event that the respondent fails to comply with Order 4, the applicants shall file and serve an affidavit deposing to such failure. The applicants shall also prepare a Form 3 Release of Mortgage in respect of the Registered Mortgage No. 717546726 for execution by a registrar of the Federal Court of Australia at Brisbane. A registrar of the Federal Court of Australia at Brisbane shall execute the Form 3 Release of Mortgage, and the applicants’ solicitor is authorised to lodge with the Queensland Titles Registry Office the executed Form 3 Release of Mortgage for registration. The applicants are also authorised to pay any fees associated with the registration of the Form 3 Release of Mortgage. The respondent pay the applicants’ costs of the proceeding on a party and party basis, save that there be no order as to costs in respect of the submissions filed by the applicants on 22 February and 22 March 2019. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

4. The respondent shall prepare and lodge with the Queensland Titles Registry Office the documents necessary to effect the removal of any reference to Registered Mortgage No. 717546726 from the interest purportedly mortgaged by 4pm on 18 April 2019.

5. In the event that the respondent fails to comply with Order 4:

(a) the applicants shall file and serve an affidavit deposing to such failure;

(b) the applicants shall prepare a Form 3 Release of Mortgage in respect of the Registered Mortgage No. 717546726 for execution by a registrar of the Federal Court of Australia at Brisbane;

(d) the applicants’ solicitor is authorised to lodge with the Queensland Titles Registry Office the executed Form 3 Release of Mortgage for registration;

(e) the applicants pay any fees associated with the registration of the Form 3 Release of Mortgage.

6. The respondent pay the applicants’ costs of the proceeding on a party and party basis, save that there be no order as to costs in respect of the submissions filed by the applicants on 22 February and 22 March 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	QUD 325 of 2017
Judge:	RANGIAH J
Date of judgment:	11 April 2019
Catchwords:	BANKRUPTCY – power under s 30(1) of the Bankruptcy Act 1996 (Cth) to order that registrar sign a release of mortgage document COSTS – Calderbank offer – whether indemnity costs should be ordered – whether unreasonable to refuse offer
Legislation:	Bankruptcy Act 1966 (Cth) ss 30(1), 120(1) and 121(1) Family Law Act 1975 (Cth) s 106A(1) Federal Court Rules 2011 (Cth) r 40.02
Cases cited:	Commonwealth v Gretton [2008] NSWCA 117 Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 Calderbank v Calderbank [1975] All ER 333 Leroy as Trustee for the Bankrupt Estate of Shinton v Sun Sheet Metals (Qld) Pty Ltd [2017] FCCA 2735 Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd (No 2) [2018] QSC 133 Lane v Oakley [2019] FCA 107
Date of hearing:	Determined on the papers
Date of last submissions:	22 March 2019 (Applicant) 9 April 2019 (Respondent)
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicant:	Mr SM Gerber
Solicitor for the Applicant:	Griffiths Parry
Counsel for the Respondent:	Mr D de Jersey
Solicitor for the Respondent:	Pope & Spinks Solicitors

QUD 325 of 2017
IN THE MATTER OF ESTATE OF ANN VIVIEN OAKLEY
BETWEEN:	MORGAN GERARD JAMES LANE AND PAUL ERIC NOGUEIRA AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF ANN VIVIEN OAKLEY Applicant
AND:	TANIA MICHELE OAKLEY AS TRUSTEE FOR THE OAKLEY TRUST Respondent