NWC Finance Pty Ltd v Borsellino (No. 2)

[2016] NSWSC 1338

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

NWC Finance Pty Ltd v Borsellino (No. 2) [2016] NSWSC 1338

Hearing dates:

15 September 2016

Date of orders:

23 September 2016

Decision date:

23 September 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Declare that the Official Trustee is entitled to 50% of the funds in Court including interest;

 

(2) Declare that NWC is entitled to 50% of the funds in Court including interest;

 

(3) Direct payment to each of the parties of 50% of the funds in Court including interest;

 

(4) Dismiss the Notice of Motion filed by NWC on 22 July 2016; and

 (5) NWC is to pay the Official Trustee’s costs of the Motion filed by NWC on 22 July 2016 and the Motion filed by the Official Trustee in Bankruptcy on 24 August 2016.

Catchwords:

EQUITY – general principles – priority between equitable interests – registered co-proprietor of land made bankrupt – bankrupt mortgages land to lender – mortgage not registered – first registered mortgagee sells pursuant to power of sale – surplus funds – claim by Trustee in bankruptcy and lender for surplus funds – failure of bankrupt to complete Statement of Affairs - – searches by lender showed mortgagor was not listed on National Person Insolvency Index nor any caveat on mortgagor’s land – searches by Trustee did not disclose ownership of any land – subsequent lodgement of caveat by Trustee when land ownership ascertained – thereafter caveat lodge by mortgagee – whether Trustee’s prior interest postponed to that of mortgagee – whether failure of Trustee to lodge caveat promptly after sequestration order was disentitling conduct – no disentitling conduct

 

BANKRUPTCY – administration of property – realisation of property – Bankruptcy Act 1966 (Cth) s 58 – effect of sequestration – severance of joint tenancy between bankrupt and his wife – tenancy in common in equity between Trustee and bankrupt’s wife – bankrupt bare trustee – bankrupt retains no equitable interest in land – charge and mortgage not effectively created

  REAL PROPERTY – Torrens title – caveats against dealings – whether failure to lodge caveat was sufficient to postpone prior equity

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Cases Cited:

Abigail v Lapin [1934] AC 491
Bagshaw v Scott (2002) 126 FCR 27; [2002] FCAFC 362
J & H Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR 546
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265
Romeo v The Trust Company (PTAL) Ltd [2012] NSWCA 62
Shrophshire Union Railways and Canal Company v R (1875) LR 7 HL 496; 45 LJQB 31; 32 LT 283
Sistrom v Urh (1992) 40 FCR 550; (1992) 117 ALR 528
Spragg v Binkes (1800) 5 VES 583 at 590; 31 ER 751

Texts Cited:

Meagher, Gummow & Lehane, Equity Doctrines and Remedies (4th ed., Lexis Nexis 2002)

Category:

Procedural and other rulings

Parties:

NWC Finance Pty Ltd (Plaintiff)
Elisa Borsellino (First Defendant/Cross-Claimant)
Official Trustee in Bankruptcy

Representation:

Counsel:
A G Martin (Plaintiff)
No appearance (First Defendant/Cross-Claimant)
G M McGrath (Official Trustee in Bankruptcy)

  Solicitors:
Summer Lawyers (Plaintiff)
Yakenian Solicitor (First Defendant/Cross-Claimant)
Lobban McNally Lawyers (Official Trustee in Bankruptcy)

File Number(s):

2013/209276

Judgment

1. This judgment concerns two Notices of Motion each claiming payment out of funds in Court arising from a mortgagee sale. One Motion filed 22 July 2016 by NWC Finance Pty Ltd claims the funds under an equitable mortgage entered into by NWC and the mortgagors on 25 May 2013 in an amount of $350,000. The other Motion filed 24 August 2016 is by the Official Trustee in Bankruptcy, the bankruptcy trustee of one of the mortgagors, Stephen (aka Steven) Borsellino.

Background

2. Stephen (or Steven) and Elisa Borsellino owned three parcels of land being 4 Kew Street, St Johns Park, 11/91A – 97 Longfield Street, Cabramatta and 132A St Johns Road, Cabramatta.

3. On 28 February 2013 a sequestration order was made against Mr Borsellino. The Official Trustee was appointed trustee of his bankrupt estate with the Certificate of Appointment being dated 8 March 2013. On that day the Official Trustee wrote to Mr Borsellino informing him that he was made bankrupt on 28 February 2013 and requiring him to complete and file a Statement of Affairs.

4. On 8 March the Official Receiver conducted a search at the LPI under the name Stephen Guiseppi Borsellino, the name under which Mr Borsellino had been bankrupted. The search was returned “No records found”.

5. On 15 March 2013 the Official Trustee received a call from Mr Borsellino complaining that his CBA cheque account had been restricted. He was informed about his bankruptcy and he said he wanted to cancel it. He also informed the Official Trustee that he was no longer living at Petersham but at St John (sic) Park. I note that the letter of 8 March was sent to an address in Hillview Avenue, Bankstown and not an address at Petersham. The Official Trustee accepted, in any event, that Mr Borsellino never received the letter of 8 March. On 15 March 2013 the Trustee sent a letter to Mr Borsellino in identical terms to that of 8 March.

6. Notwithstanding his bankruptcy, on 25 March 2013 Mr and Mrs Borsellino entered into a loan agreement and a mortgage with NWC Finance pursuant to which they borrowed $330,500. NWC took a registered first mortgage over the property at 4 Kew Place, St Johns Park belonging to Mr and Mrs Borsellino. The Deed of Loan between NWC and the Borsellinos incorporated the Memorandum AF166417J which was in turn incorporated into the Mortgage. That Memorandum provided for a charge as follows:

226.   As security for the Debt the Debtor charges to the Lender the Charged Assets.

227.   …

228.   The Charge is a fixed charge over all of the Debtor’s present and future estate, right, title and interest in:

…

c)   the Debtor’s interests in real property;

7. The loan was a short term loan and was repayable on 25 June 2013. At the time of entry into the mortgage NWC was unaware of Mr Borsellino’s bankruptcy. On 15 March 2013 NWC’s solicitor performed a title search on the three properties owned by Mr and Mrs Borsellino. No caveats were noted on the searches including no interest noted in favour of the Trustee.

8. NWC’s solicitor also obtained from the Borsellinos’ solicitor a 100 Point Identification Check signed by that solicitor. The copies of the Driver’s licence, the Medicare card and the Bupa card provided all showed Mr Borsellino’s name as “Steven”. That was how his name appeared on the loan documents. On 22 March 2013 NWC’s solicitors searched the National Personal Insolvency Index under the name “Steven Borsellino” and the search result was “No matches”. On 21 Matrch NWC’s solicitors obtained a letter from the Borsellinos’ accountants, Assaf & Associates assuring the solicitors of the Borsellinos’ ability to meet all liabilities when they fell due.

9. Because of the delay in Mr Borsellino filing his Statement of Affairs the Trustee was unaware until May 2013 that the bankrupt owned properties. The Trustee initially became aware when it received an email from a collections agency at 3.10pm on 1 May 2013. The email said that the writer had just ascertained that the bankrupt owned the St Johns Park property in the name of Steven rather than Stephen. At 4.05pm the Trustee carried out a further search at the LPI on “Steven Borsellino” and the three properties referred to above were identified.

10. Mr Borsellino eventually filed his Statement of Affairs on 2 May 2013 disclosing the three properties. On 3 May 2013 a caveat was lodged by the Trustee over the three properties.

11. On 5 June 2013 NWC lodged a caveat over the property at 132A St Johns Road. On 29 October 2013 NWC lodged a caveat over the Longfield Street property. No explanation was offered for the late lodgement of those caveats.

12. The first mortgagee of the properties at St Johns Road and Longfield Street was St George Bank. St George sold both of those properties pursuant to its power of sale. The Longfield Street property completed on 12 February 2014 and the St Johns Road property completed on 18 December 2013. There was a surplus of funds after St George was repaid what was owing to it. Those funds amounting to $379,117.17 were paid into Court and the present claims by NWC and the Trustee concern those funds.

13. The parties to the present Motions were NWC and the Official Trustee. Mrs Borsellino had been given notice and served with the various documents but she did not appear. At the outset NWC and the Official Trustee agreed that the dispute concerned 50% of the funds in Court. The Official Trustee acknowledged that NWC was entitled to Mrs Borsellino’s 50% share of the funds.

14. The case argued by NWC was a straightforward one. Both parties had an equitable interest in the funds in Court and the Official Trustee’s interest was prior in time by reason of the date of the bankruptcy. However, the Official Trustee had engaged in disentitling conduct which postponed its interest to that of NWC. The disentitling conduct consisted chiefly of the failure to lodge a caveat claiming its interest in the two properties in an expeditious manner after the date of the bankruptcy. Coupled with that was the failure of the Official Trustee to search the LPI using a wider search term, perhaps “Borsellino” or perhaps “Steven Borsellino”. Had it done so it would have ascertained at an early time that Mr Borsellino was a co-owner of the land with the result that a caveat could have been lodged by the Official Trustee so that when NWC’s solicitors searched the various titles they would have ascertained that Mr Borsellino was a bankrupt.

15. There was a faint suggestion that, having found out on 8 March 2013 that Mr Borsellino had changed his address, the Trustee ought to have carried out further investigations to see what property he owned. This submission did not appear to take the matter beyond the earlier submission that a wider search should have been conducted with the LPI.

16. NWC argued also that an examination of what it had done through its solicitors showed that it had acted entirely reasonably in the searches and enquiries that it undertook and that nothing that it could reasonably have done would have identified that Mr Borsellino was a bankrupt. NWC relied generally on what was said by the High Court in Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265.

17. The Official Trustee submitted that upon the sequestration order being made s 58 of the Bankruptcy Act 1966 (Cth) vested the whole of Mr Borsellino’s interest in the land in the Official Trustee. Whilstever Mr Borsellino remained the registered proprietor he held a bare legal interest with the equitable interest passing to the Official Trustee. The result was that the charge purportedly given by Mr Borsellino in the deed of loan was of no effect because he had no interest to pass to NWC. In those circumstances there was no occasion to consider any question of disentitling conduct or postponement of the Official Trustee’s equity because NWC never obtained an interest in the land.

18. The Official Trustee submitted that if it was necessary to examine its conduct, it had acted entirely appropriately on the information that it had. In particular, it was entitled to rely on the spelling of Mr Borsellino’s name in the sequestration order and, therefore, on the spelling of Mr Borsellino’s name on the National Personal Insolvency Index. The moment the Trustee had ascertained that land might have been owned by Mr Borsellino, albeit under a different spelling of his name, it acted with considerable expedition to ascertain that fact and thereafter to lodge a caveat. In any event, the Official Trustee submitted, the mere failure to lodge a caveat was not sufficient to result in the postponement of the prior equity. Reliance was placed on J & H Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR 546 and other authorities to similar effect.

Consideration

19. Section 58 of the Bankruptcy Act provides:

(1) Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b) after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

(2) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.

(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

(4) …

(5) Nothing in this section affects the right of a secured creditor to realize or otherwise deal with his or her security.

…

20. In Sistrom v Urh (1992) 40 FCR 550; (1992) 117 ALR 528 the Full Court of the Federal Court said (at 556):

When the land is registered under the Torrens system, the position is different insofar as the legal title and the equitable ownership must be distinguished. The effect of s.58 of the Bankruptcy Act, where a bankrupt and his wife are the registered proprietors of Torrens title land as joint tenants is to operate in equity to sever the joint tenancy and to impose an obligation upon the registered proprietors to hold the land in trust for the trustee in bankruptcy and for the wife of the bankrupt as tenants in common in equal shares. Thus, s.58(2) specifically provides that "property ... vests in equity in the trustee, by virtue of this section, [but] does not so vest at law until the requirements of that law have been complied with."

21. To similar effect was what was said by Young JA in Romeo v The Trust Company (PTAL) Ltd [2012] NSWCA 62 at [19].

22. The Trustee’s submission should be accepted that upon the making of the sequestration order in the present case the joint tenancy was severed, a tenancy in common in equity was created between Mrs Borsellino and the Official Trustee, and Mr Borsellino’s half interest in the property was vested in equity in the Official Trustee. Although Mr Borsellino remained as the legal owner of the land he held that land on trust for the Official Trustee. He had no remaining equitable interest in the land: Bagshaw v Scott (2002) 126 FCR 27; [2002] FCAFC 362. No equity of redemption remained in Mr Borsellino (Spragg v Binkes (1800) 5 Ves 583 at 590; 31 ER 751 at 754). He retained no equitable interest in the land that could be disposed of by way of the charge given to NWC. The result is that no equity was ever created in NWC for any priority issue to arise.

23. NWC’s submission that the Trustee’s equitable interest obtained by virtue of s 58 was subject to the swords and shields which equity provides is no answer to this. NWC submitted that the Trustee had clothed Mr Borsellino with the power to continue to deal with the property because the Trustee did not move to become registered as the legal owner as well as the equitable owner (echoing, perhaps, what was said by the Privy Council in Abigail v Lapin [1934] AC 491 at 505, and see also Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 at 339).

24. I am not at all convinced that the Trustee clothed Mr Borsellino with anything to enable him to deal with the property. Section 58(1) and (2) brought about the result that Mr Borsellino came to hold the land as a bare legal trustee. This submission of NWC simply raises in a different guise the submission it makes about postponement of the Trustee’s prior equity through disentitling conduct. Here the disentitling conduct would have to be said to be failing to become registered on the title before NWC took its mortgage. Although for the reasons given above at [22] I do not consider that any charge was created, the further answer to NWC’s submission is found in what follows.

25. In case I am wrong in the conclusion that no charge was created it is necessary to consider the issue of competing equities and whether the Official Trustee’s equity is postponed by reason of disentitling conduct.

26. In Latec Investments Kitto J said (at 276):

… In all cases where a claim to enforce an equitable interest in property is opposed on the ground that after the interest is said to have arisen a third party innocently acquired an equitable interest in the same property, the problem, if the facts relied upon as having given rise to the interests be established, is to determine where the better equity lies. If the merits are equal, priority in time of creation is considered to give the better equity. This is the true meaning of the maxim qui prior est tempore potior est jure: Rice v. Rice [1853] EngR 1102; (1853) 2 Drew 73, at p 78 [1853] EngR 1102; (61 ER 646, at p 648). But where the merits are unequal, as for instance where conduct on the part of the owner of the earlier interest has led the other to acquire his interest on the supposition that the earlier did not exist, the maxim may be displaced and priority accorded to the later interest. In the present case it seems to me that there is much to be said for holding that, since during the long period of the mortgagor's delay in setting up the invalidity of the purchaser's title persons were induced to lend money on debentures in the belief that an unencumbered fee simple in the subject property formed part of the security under the trustee's floating charge, the mortgagor ought not to be allowed to insist upon its equity of redemption as against the equitable interest of the trustee.

27. It seems clear that the investigation involves an examination of the conduct of both parties. In Heid v Reliance Finance Mason and Deane JJ said (at 341-2):

[7]   For our part we consider it preferable to avoid the contortions and convolutions associated with basing the postponement of the first to the second equity exclusively on the doctrine of estoppel and to accept a more general and flexible principle that preference should be given to what is the better equity in an examination of the relevant circumstances. It will always be necessary to characterize the conduct of the holder of the earlier interest in order to determine whether, in all the circumstances, that conduct is such that, in fairness and in justice, the earlier interest should be postponed to the later interest. Thus in Latec Investments (1965) 113 CLR, at p 276 Kitto J. said that the case where the conduct of the prior owner leads the later owner to acquire his interest on the supposition that the earlier interest does not exist - the test stated by Dixon J. in Lapin v. Abigail (1930) 44 CLR, at p 204 - was just one "instance" of a case when the merits are unequal: see also Lapin v. Abigail (1930) 44 CLR, at pp 185-186 , per Isaacs J.; General Finance Agency, etc., Co. (In liq.) v. Perpetual Executors and Trustees Association, etc. [1902] VicLawRp 121; (1902) 27 VLR 739, at pp 742-744 . To say that the question involves general considerations of fairness and justice acknowledges that, in whatever form the relevant test be stated, the overriding question is ". . . whose is the better equity, bearing in mind the conduct of both parties, the question of any negligence on the part of the prior claimant, the effect of any representation as possibly raising an estoppel and whether it can be said that the conduct of the first or prior owner has enabled such a representation to be made. . . .": Sykes, Law of Securities, 3rd ed. (1978), p. 336; see also Dixon v. Muckleston (1872) LR 8 Ch App, at p 160 ; Latec Investments (1965) 113 CLR, at p 276 . Thus elements of both negligence and estoppel will often be found in the statements of general principle: see, for example, Lapin v. Abigail (1930) 44 CLR, at p 204, per Dixon J.

[8]   It may be that an equitable interest will not be postponed to an equitable interest created later in time merely because there is a causal nexus between an act or omission on the part of the prior equitable owner and an assumption on the part of the later equitable owner as to the non-existence of the prior equity. Fairness and justice demand that we be primarily concerned with acts of a certain kind - those acts during the carrying out of which it is reasonably foreseeable that a later equitable interest will be created and that the holder of that later interest will assume the non-existence of the earlier interest.

[9]   Thus, the mere failure of the holder of a prior equitable interest in land to lodge a caveat does not in itself involve the loss of priority which the time of the creation of the equitable interest would otherwise give (J. & H. Just (Holdings) Pty. Ltd. v. Bank of N.S.W. [1971] HCA 57; (1971) 125 CLR 546 ), notwithstanding that the person acquiring the later interest had, before acquiring that interest, searched the register book and ascertained that no caveat had been lodged. It is just one of the circumstances to be considered in determining whether it is inequitable that the prior equitable owner should retain his priority.

28. The principal matter relied upon by NWC to point to disentitling conduct is the failure of the Trustee to lodge a caveat on the properties at an earlier time than it did and, in particular, prior to the taking of the mortgage on 25 March 2013. If that was all that the Trustee failed to do it would be difficult to suggest that its equity should be postponed to that of NWC’s equity. That is the more so when the Trustee did not have any knowledge that Mr Borsellino owned properties over which caveats could be placed. There is no basis for the suggestion that, because the Trustee found out that Mr Borsellino had changed addresses, the Trustee should have carried out further enquiries to see what, if any, real property he owned. It is not said on what basis such enquiries could or should have been carried out.

29. The high point of NWC’s case must be that the Official Trustee did not search the LPI in the name Steven as well as Stephen. In my opinion, the Trustee was under no duty to do so. It was entitled to rely on the spelling of his name contained in the sequestration order. It had no basis for thinking that Mr Borsellino might have been trying to mislead his creditors or anybody else by spelling his name in different ways. Moreover, if the Trustee can be criticised for not having searched under both spellings NWC can equally be criticised for not having searched the Insolvency Index under both spellings. In saying that, I do not suggest that it ought to be criticised. NWC did almost everything it reasonably could to ensure that the person from whom it was taking the charge was the person it believed to be Mr Borsellino. Except for doing a credit search it did all the appropriate searches and obtained all the appropriate identification documents.

30. In my opinion there is nothing to distinguish the conduct of the Trustee and NWC in the circumstances. Even if the failure to lodge a caveat had been sufficient to postpone a prior equity, the reason for the non-lodgment of the caveat is well explained.

31. Those conclusions apply equally to answer NWC’s submission regarding the effect of s 58 on the ability of Mr Borsellino to create a charge. The Trustee did not become registered on the titles to the properties because it did not know of them and was not negligent nor guilty of disentitling conduct in not knowing.

32. In any event, I have considerable doubts that the principle from Latec Investments operates in the present circumstances where the equity in the properties acquired by the Trustee was acquired by force of statute. What the Court in Latec was concerned with, and what the cases have followed it were concerned with were equities created as a result of contractual arrangements between parties. It is difficult to see how what amounts to an equitable interest given by the statute which vests the property in the Trustee can be lost by the principles considered in those cases whether it be characterised as negligence or estoppel or even some form of constructive fraud. The answer may be as I noted earlier that at the time Mr Borsellino purported to grant a charge or a mortgage over his real estate he had nothing to charge. In that way it can be seen that nothing that the Official Trustee does or fails to do can divest the Trustee of the interest that s 58 vests in the Trustee.

33. The Official Trustee also relied for his priority on the principle from Shropshire Union Railways and Canal Company v R (1875) LR 7 HL 496; 45 LJQB 31; 32 LT 283 which held that usually cestuis que trust are entitled to rely on their trustee and claim immunity from the consequences of his unauthorised dealings, no matter what statements, express or implied, he makes, no matter how reasonably the subsequent equity holder has acted to his detriment, and no matter how negligent the trustee was in his conduct or the cestuis que trust in permitting his conduct to exist or continue (Meagher, Gummow & Lehane, Equity Doctrines and Remedies (4th ed., Lexis Nexis 2002) at [8-050]). The application of such a principle here was said to mean that the Trustee’s prior equity could not be postponed by failure on his part otherwise adjudged to be disentitling conduct.

34. For the reasons already given it is not necessary to decide if that principle would apply in the present case.

Conclusion

35. In my opinion, at the time Mr Borsellino purported to give a charge or a mortgage to NWC he had no equitable estate to do so. The charge was ineffective because the whole of the equitable estate had been vested by virtue of s 58 of the Bankruptcy Act in the Official Trustee. Even if NWC acquired an equitable interest in the properties the Trustee’s interest was not postponed to that of NWC.

36. The result is that the Official Trustee is entitled to Mr Borsellino’s 50% share of the funds in Court.

37. I make the following orders:

1. Declare that the Official Trustee is entitled to 50% of the funds in Court including interest;

2. Declare that NWC is entitled to 50% of the funds in Court including interest;

(3)   Direct payment to each of the parties of 50% of the funds in Court including interest;

(4)   Dismiss the Notice of Motion filed by NWC on 22 July 2016; and

(5)   NWC is to pay the Official Trustee’s costs of the Motion filed by NWC on 22 July 2016 and the Motion filed by the Official Trustee in Bankruptcy on 24 August 2016.

**********

Decision last updated: 23 September 2016