Perpetual Trustee Company Ltd v Saunders - [2013] SASC 89

Supreme Court of South Australia
(Civil: Application)
PERPETUAL TRUSTEE COMPANY LTD v SAUNDERS
[2013] SASC 89
Judgment of The Honourable Justice White (ex tempore)
31 May 2013
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - EXTENSION
On 11 October 2012 this Court made an order granting the plaintiff (as mortgagee) possession of the defendant's property - the plaintiff exercised the power of sale and settlement was to take place on 3 June - the defendant lodged a caveat on the title, claiming that defects in the plaintiff's default notice meant that it could not exercise the power of sale and gave him a caveatable interest.
The defendant applied for an extension of the time at which the Registrar-General is to remove a caveat.
Held (refusing the application):
(1) the appropriate time for the defendant to raise the present issues was at the hearing relating to the grant of the possession order;
(2) the applicant did not establish that there is a serious question to be tried concerning the validity of the respondent's power of sale;
(3) the balance of convenience does not favour the extension of time sought.
Real Property Act 1886 (SA), s 191; Law of Property Act 1936 (SA), s 55A, referred to.
Whallin v Bailbart Investments Pty Ltd (1987) 47 SASR 198; Stone v Leonardis [2011] SASC 153; (2011) 110 SASR 503; Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423; Accordent Pty Ltd v Breismark Nominees Pty Ltd [2008] SASC 196; (2008) 101 SASR 286; Bank of Western Australia Ltd v Wong [2012] SASC 124; Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161, considered.

PERPETUAL TRUSTEE COMPANY LTD v SAUNDERS
[2013] SASC 89
Application to a Single Judge

WHITE J. This is an application under s 191(g) of the Real Property Act 1886 (SA) (RPA) for an extension of the time fixed by s 191(f) of that Act at which the Registrar‑General is to remove a caveat.
The defendant (Mr Saunders) owns land at Hewitt Avenue, Rose Park. That land is mortgaged to the plaintiff (Perpetual) as a result of an assignment to it from the original mortgagee, Permanent Custodians Limited (Permanent Custodians). Following defaults by Mr Saunders in payment of the instalments due under the mortgage, on 11 October 2012 this Court made an order for possession of the property in favour of Perpetual. That order was made in proceedings commenced by Perpetual for such an order (the Perpetual Action). Provision was made in the order for re-delivery of the property in the event of payment by Mr Saunders of the full value of the mortgage.
The affidavit of Perpetual’s solicitor indicates that, since 21 June 2012, Mr Saunders has made only one monthly instalment, being a payment of $1,738. I was told that this was paid in early May this year. A warrant for possession of the property was issued on 3 December 2012 and Perpetual obtained possession…

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.

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Details

Case: [2013] SASC 89
Decision Date: 31 May 2013

CaseChat Overview and Summary

Perpetual Trustee Company Ltd, as the mortgagee, sought to enforce a power of sale over property belonging to Saunders. The dispute revolved around the validity of the mortgagee's power of sale, which was challenged by Saunders through the lodging of a caveat. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were whether the defendant, Saunders, was entitled to lodge a caveat against the mortgagee's power of sale and whether there were defects in the default notice that invalidated the power of sale. Additionally, the court needed to determine if the defendant's application for an extension of time to raise these issues was justified.

The court found that the defendant had failed to raise the issues of the power of sale's validity and the defects in the default notice at the appropriate time, specifically at the hearing relating to the grant of the possession order. The court held that the defendant did not establish a serious question to be tried concerning the validity of the mortgagee's power of sale. Furthermore, the balance of convenience did not favour the extension of time sought by the defendant. Consequently, the defendant's application for an extension of time was refused.

The court's final orders were that the defendant's application for an extension of time was dismissed, and no extension was granted. The court maintained the original possession order, allowing the mortgagee to proceed with the sale of the property as planned.

Orders

Orders of the court

Held (refusing the application):

(1) the appropriate time for the defendant to raise the present issues was at the hearing relating to the grant of the possession order;

(2) the applicant did not establish that there is a serious question to be tried concerning the validity of the respondent's power of sale;

(3) the balance of convenience does not favour the extension of time sought.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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