Mahaffy v Mahaffy - [2010] NSWSC 1358

CITATION: Mahaffy v Mahaffy [2010] NSWSC 1358

HEARING DATE(S): 2 November 2010

JUDGMENT DATE :
2 November 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 2 November 2010

DECISION: 1. Summons dismissed; 2. Plaintiff to pay the defendant's costs; 3. Exhibits may be returned after 28 days.

CATCHWORDS: PROCEDURE – application to restrain sale of property or require sale proceeds to be paid into court pending final determination – where interlocutory orders previously made dismissing application to restrain sale – where mortgagee entered into sale contract in purported exercise power of sale – whether applicant in contempt of court for non-compliance with court orders – whether contempt of an order in same suit or proceedings – whether serious question to be tried that power of sale exercised validly – whether notice properly given under s 57(2)(b) of Real Property Act 1900 – where application seeks to vary or set aside previous interlocutory orders in absence of material change of circumstance or fresh material – balance of convenience – no question of principle

LEGISLATION CITED: Real Property Act 1900 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Leaway Pty Ltd v Newcastle City Council (No. 2) [2005] NSWSC 826; (2005) 220 ALR 757
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Harvey v McWatters (1948) 49 SR (NSW) 173
Solid Holdings Pty Ltd v IMFML Finance Pty Ltd [2008] NSWSC 573
Carr v Finance Corporation of Australia Limited (No 2) (1982) 150 CLR 139
Morton v Suncorp Finance Ltd (1987) 8 NSWLR 325
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

PARTIES: Plaintiff: David Bruce Mahaffy
Defendant: Jeffrey Robert Mahaffy

FILE NUMBER(S): SC 2010/358001

COUNSEL: Plaintiff: In person
Defendant: In person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 2 November 2010

2010/358001 David Bruce Mahaffy v Jeffrey Robert Mahaffy

JUDGMENT

1 HIS HONOUR: By summons filed on 28 October 2010 the plaintiff, Mr David Mahaffy, seeks an order restraining the sale of a property at 4 Adams Street, Narrabri, New South Wales by the defendant Mr Jeffrey Mahaffy "until final hearing has been heard in appeals court". Alternatively, he seeks an order that "The money that defendant has cost order be placed in Supreme Court trust acc until final hearing in appeal court has been heard [sic])".

2 The summons was filed in court before Slattery J who was duty judge. The plaintiff appeared in person. There was no appearance for the defendant. His Honour ordered that upon the second plaintiff (sic) giving the usual undertaking as to damages, the defendant and the defendant by his servants and agents be restrained from dealing with or disposing of proceeds of sale of 4 Adams Street, Narrabri until 4 pm on 2 November 2010. Today, the plaintiff seeks the relief as claimed in the summons, essentially an order restraining the sale of the Adams Street property until a final determination of proceedings pending…

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 Mahaffy v Mahaffy

Details

AGLC: Mahaffy v Mahaffy [2010] NSWSC 1358
Case: [2010] NSWSC 1358
Decision Date: 2 November 2010

CaseChat Overview and Summary

The matter before the court involved an application from the applicant to restrain the sale of property or to require the proceeds of the sale to be paid into court pending the final determination of the proceedings. The case was heard by the Supreme Court of New South Wales in the Equity Division. The applicant sought these orders in relation to a property that was the subject of a mortgage and which the mortgagee purported to sell under a power of sale. The dispute arose due to the applicant's contention that the mortgagee had not validly exercised the power of sale and that the sale should be restrained or the proceeds held in court.

The primary legal issues the court needed to address were whether the applicant was in contempt of court for non-compliance with the previous interlocutory orders, whether the contempt was of an order in the same suit or proceedings, whether there was a serious question to be tried that the power of sale had been validly exercised, and whether the notice given under section 57(2)(b) of the Real Property Act 1900 was adequate. The court was also required to determine whether there was a material change in circumstances or fresh material that warranted varying or setting aside the previous interlocutory orders, and whether the balance of convenience favoured the applicant's application.

The court found that the applicant was not in contempt of court for failing to comply with the previous interlocutory orders, as the contempt was not of an order in the same suit or proceedings. The court held that there was a serious question to be tried as to whether the power of sale had been validly exercised. However, the court also concluded that the notice given under the Real Property Act was sufficient. As there was no material change in circumstances or fresh material, and the balance of convenience did not favour the applicant's application, the court dismissed the application to vary or set aside the previous interlocutory orders.

The court made no orders as to costs and dismissed the application in its entirety. The matter was to proceed to final hearing on the merits, where the validity of the power of sale would be determined.

Orders