Permanent Custodians Ltd v Fullston - [2011] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PERMANENT CUSTODIANS LTD v FULLSTON & ANOR
[2011] SASC 170
Judgment of Judge Lunn a Master of the Supreme Court
11 October 2011
PROCEDURE
Order for possession of land made against defendants and stay of it had lapsed – request by plaintiff under 6R 204A for permission to issue a warrant of possession – applications by defendants for a further stay on the order or relief under s 55A(3) of Law of Property Act – held “good and sufficient” reasons under 6R 204(6) usually needs to be based on some act or knowing acquiesence of the plaintiff – circumstances in favour of the plaintiff existing before the making of the order could be taken into account – defendants could not rely on prejudice of their own making – hence no good and sufficient reason established not to issue the warrant and no proper basis for the stay of the order for relief under s 55A(3) – application by defendant dismissed and warrant to issue.

PROCEDURE
Application under 6R 89 by occupier to intervene in proceedings for stay of possession order – occupier was company in which the first defendant and his wife were the directors – intervention refused as application made too late, the defendants and the proposed intervener were closely related, the relevant issues had been addressed by the defendants and the costs and delay resulting from intervention would not be justified.

PERMANENT CUSTODIANS LTD v FULLSTON & ANOR
[2011] SASC 170
JUDGE LUNN:
Reasons on defendants’ applications for stay of possession order
Background

The defendants, who are son and mother, are the registered proprietors of the land comprised in Certificates of Title 5210/519, 5989/65 and 5978/298 (referred to as “Cloverland”). Cosproh Pty Ltd (“Cosproh”) is a company in which the first defendant and his wife are the directors. It has a share farming agreement with the defendants in respect of Cloverland.
The defendants gave a registered first mortgage over Cloverland to the plaintiff to secure repayment of large sums of money. On 31 July 2007 the plaintiff instituted this action seeking possession of Cloverland and judgment for the amount owing by the defendants. The action was defended by the defendants with a Counterclaim for relief against the plaintiff.
Shortly after a trial of the action had been adjourned because of health problems of the first defendant, a settlement was negotiated between the parties. At this time no solicitors were on the file as representing the defendants, but the defendants were receiving some legal advice. A deed dated 11 December 2009 was entered into between the parties (“the Deed”). It provided, inter alia, that as at 31 December 2009 the sum of $1,577,047 would be owing by the defendants to the plaintiff. The defendants would pay $12,000 a month to the plaintiff until 28 February 2011 when the balance of the monies would be payable to the plaintiff. It was agreed that if this sum had not been paid by 28 February…

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 Permanent Custodians Ltd v Fullston

Details

AGLC: Permanent Custodians Ltd v Fullston [2011] SASC 170
Case: [2011] SASC 170
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the case of Permanent Custodians Ltd v Fullston, the plaintiff sought to enforce a possession order against the defendants by issuing a warrant of possession, pursuant to the relevant provisions of the Supreme Court of Victoria’s rules. The defendants applied for a stay of the order or relief under s 55A(3) of the Law of Property Act 1958 (Vic). The legal issues before the court were whether the plaintiff had established good and sufficient reasons not to issue the warrant, and if the defendants had demonstrated sufficient grounds for a stay under s 55A(3). The court considered the nature of the reasons required for such a stay, noting that it typically requires some act or knowing acquiescence by the plaintiff. The court held that circumstances existing prior to the order could be considered when determining whether subsequent circumstances constitute good and sufficient reasons. The court found that the defendants could not rely on prejudice of their own making and dismissed the application for a further stay. The court also concluded that the defendants had not established good and sufficient reasons for the court to refuse permission for the warrant to issue.

The court’s reasoning was based on the principle that good and sufficient reasons for refusing permission to issue a warrant of possession usually need to be based on some act or knowing acquiescence of the plaintiff. However, the court clarified that circumstances existing prior to the making of the order could be taken into account in determining whether subsequent circumstances amount to good and sufficient reasons. The court also emphasised that factors in favour of the plaintiff, including those which existed before the order was made, are to be taken into account. The court found that the defendants could not rely on prejudice of their own making as a sufficient ground for a stay. The court concluded that the plaintiff had established good and sufficient reasons to issue the warrant of possession and dismissed the application for a further stay under s 55A(3). The court ordered that the warrant of possession be issued.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The defendants have not taken any proceedings seeking to set aside the Deed. That is a separate issue from setting aside the consent judgment, although the two are closely related. As was emphasised by the plaintiff’s counsel, the Deed stands unimpeached and its terms are a major bar to the defendants succeeding on their present application. Operation of 6R 204A 6R 204A provides:204AWarrants of possession to be executed more than six months after the possession order.(1)This rule applies to any warrant of possession which is to be executed more than six months after the making of the order for possession on which it is based.(2)The plaintiff must not cause a warrant to which this rule applies to be executed unless:(a)it was issued by permission of the Court under this rule; or(b)it was issued under subrule (8).(3)At least 20 days before applying for the issue of a warrant to which this rule applies, a plaintiff is to send, by ordinary prepaid post, a notice in an approved form to:(a)each defendant at their last known address; and(b)the occupiers of the premises which are to be the subject of the warrant.(4)A defendant or occupier who wishes to oppose the issue of the warrant, must, within 10 days of the date of the notice sent to them, file in the Court a request, in an approved form, for a hearing together with any affidavits deposing to facts on which they seek to rely.(5)If a request under subrule (4) is filed the Registrar will, before issuing a warrant of possession, convene an urgent hearing by the Court and will send a notice of it to all plaintiffs and defendants and to all persons identified in the application for the issue of the warrant or in the request for a hearing as an occupier of the premises.(6)Upon a hearing under subrule (5) the Court will consider whether, having regard to the circumstances which have occurred since the making of the order for possession, there is any good and sufficient reason why permission for the warrant to issue should not then be granted and, unless satisfied that such reason exists, will order the issue of the warrant.(7)The plaintiff may prove compliance with subrule (3) by filing a certificate in the approved form.(8)When a certificate has been filed under subrule (7), and no request has been received under subrule (4), the Registrar may issue the warrant of possession. In sub-r (6) the onus is on the defendants to show that there is “good and sufficient reason” why permission should not be given for the warrant of possession to issue. The inquiry of the Court under sub-r (6) is limited to “the circumstances which have occurred since the making of the order for possession”. This is to prevent any parties reagitating issues which were determined on the making of the possession order, or which were available at that time but which were not then pursued. However, it does not mean that circumstance existing prior to the making of the order cannot be taken into account in determining whether subsequent circumstances amount to a “good and sufficient reason”. “Sufficient reason” means that on the evidence then before the Court the justice of the case requires that a warrant should not issue.[1] Whether the reasons put forward by the defendants that the warrant should not issue are sufficient will require a balancing against any other reasons available on the evidence for why the warrant should then issue.[2][1] I need not enter into whether “good” adds anything to “sufficient” in this phrase.[2] I do not accept the defendants’ tentative submission that “good and sufficient reason” here is confined to the circumstances of the defendants. Factors in favour of the plaintiff, including those which existed before the order was made, are to be taken into account.