Perpetual Trustees Victoria Limited v Babasa

[2021] NSWSC 1062

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Trustees Victoria Limited v Babasa [2021] NSWSC 1062

Hearing dates:

24 August 2021

Date of orders:

24 August 2021

Decision date:

24 August 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

Orders set out in par 20

Catchwords:

REAL PROPERTY – possession of land – Family Law Proceedings 10 years ago – Family Law Act Deed – signed transfer not registered – orders sought declaring the second defendant is entitled to be registered proprietor – application not contested – orders made

Legislation Cited:

Family Law Act 1975 (Cth)

National Credit Code (Cth)

Category:

Procedural rulings

Parties:

Perpetual Trustees Victoria Limited (Plaintiff)
Sheila Hinch Babasa (First Defendant)
Ian Raymond Clissold (Second Defendant)

Representation:

Counsel:
E Phelan (Second Defendant)

Solicitors:
Thomson Geer Lawyers (Plaintiff)
Raymond Perkes Lawyer (Second Defendant)

File Number(s):

2020/30267

Publication restriction:

Nil

Judgment

1. The second defendant, Ian Clissold (Mr Clissold), has today filed an Amended Notice of Motion seeking orders in the proceedings to allow him to be recognised as the owner of the subject property at Hebersham, and to pay out the remaining sum due under a mortgage to the plaintiff, Perpetual Trustees Victoria Limited (Perpetual). The orders are in similar terms to those sought in his Notice of Motion filed in June 2021.

2. These proceedings were commenced by Statement of Claim filed on 30 January 2020 seeking possession and judgment in the sum of $239,786 plus interest. The proceedings were filed against Ms Sheila Babasa (Ms Babasa), (the first defendant), because she was and is currently the sole registered proprietor of the property in question. The Statement of Claim alleged that there had been default in mortgage repayments. On 12 July 2019 a Notice of Default pursuant to s 88 of the National Credit Code (Cth) was served upon Ms Babasa via the premises address. She did not respond, and no Defence has been filed on her behalf.

3. Based on Affidavit evidence tendered, which is not contested, and which I have no reason not to accept, Mr Clissold was the occupier of the premises since March 2010 and has asserted an entitlement to be noted as the registered proprietor based on the Family Law Deed and Transfer executed in March 2011 after he and Ms Babasa divorced.

4. Mr Clissold wishes to pay out the mortgage, but has not been able to do so because Perpetual have apparently refused to provide him with a payout figure as he is not the registered proprietor, nor a named party to the initial mortgage.

5. Perpetual’s solicitor, Ms Nagam, appeared today and indicated that she was instructed to neither oppose nor consent to the orders sought in the Amended Notice of Motion.

6. Having reviewed the affidavit material tendered, and assisted by the written submissions of counsel, Ms Phelan, I am of the view that the orders sought in the Amended Notice of Motion should be made. These are my reasons.

Evidence

7. The applicant relies upon five affidavits which outline the relevant circumstances and append the necessary documentation that underpins the relevant history:

1. Affidavit of Raymond Perkes affirmed 18 May 2021;

2. Affidavit of Raymond Perkes affirmed 5 July 2021;

3. Affidavit of Raymond Perkes affirmed 26 July 2021;

4. Affidavit of Raymond Perkes affirmed 23 August 2021; and

5. Affidavit of Ian Raymond Clissold affirmed 29 July 2021.

8. Based on the affidavit of Mr Perkes affirmed 23 August 2021, I took the view that I should dispense with formal service of the Amended Notice of Motion upon Ms Babasa and that it could be and should be dealt with today, given the threats of Perpetual to take other action in respect of the property.

9. The background to the application is that Ms Babasa and Mr Clissold married on 22 December 2006. The property was purchased and a Transfer dated 21 December 2006 named Ms Babasa as the Transferee. A mortgage between Perpetual and Ms Babasa was executed on the same date.

10. Mr Clissold asserts, and I have no evidence to the contrary, that he contributed amounts to the purchase of the property, as well as continuing to pay the mortgage payments both before and after he and Ms Babasa separated in March 2010.

11. In evidence is a Financial Agreement under s 90 C of the Family Law Act1975 (Cth) dated 30 March 2011 between Mr Clissold and Ms Babasa which provided, amongst other things, that in return for payment of $55,000 to Ms Babasa, Mr Clissold shall receive a signed Transfer effecting transfer to him of all Ms Babasa’s “right, title and interest in the property”.

12. Also tendered is a Transfer, apparently signed by Ms Babasa and Mr Clissold, dated 24 March 2011. It appears that the Transfer was not stamped nor registered by Mr Clissold’s then solicitor.

13. Mr Clissold says Ms Babasa left Australia for the Philippines and that he had not had contact with her since March 2011. He only became aware of the proceedings against Ms Babasa regarding the property when a document from an organisation known as Home Loan Help, dated 12 October 2020, turned up at the premises.

14. Given that Perpetual had sought and obtained leave to proceed by way of substituted service against Ms Babasa, it is perhaps understandable that Mr Clissold was unaware of the proceedings until that time.

15. The affidavits of Mr Perkes outline efforts he made on behalf of Mr Clissold to negotiate repayment of the debt. There were delays in the proceedings associated with necessary mechanical steps such as the Notice of Motion filed and dealt with in June 2021, joining Mr Clissold as a defendant to the proceedings.

16. It seems Ms Babasa was in Australia in July 2021, if not before. Mr Perkes deposed to an attempt to have a conversation with Ms Babasa having obtained her mobile number from Ms Babasa’s former solicitor. Mr Perkes says that Ms Babasa said to him that she “did not wish to speak to him”. Mr Perkes also deposed to having informed Ms Babasa by text of the orders to be sought today.

17. Mr Clissold and Mr Perkes deposed to arrangements that have been made to refinance and thus pay out the amount due to Perpetual. There is no prejudice to Perpetual in terms of the relief it seeks. Mr Clissold seeks orders that will result in payment of the sum due to Perpetual, and effective resolution of the proceedings.

Decision

18. Based on the affidavits, and taking the appended documents at their face value, Mr Clissold has the right to be recorded as the registered proprietor of the property.

19. There has been no evidence tendered on this application that raises doubt as to why I should question the validity of the history cited in the affidavit material, nor the authenticity and veracity of the Financial Agreement under s 90 C of the Family Law Act 1975 (Cth) and the signed Transfer between Ms Babasa and Mr Clissold dated 24 March 2011.

20. In those circumstances I consider it appropriate to make orders in accordance with the Amended Notice of Motion as follows:

1. A declaration that the Second Defendant, Ian Raymond Clissold, is the equitable owner of the property located at [REDACTED], Hebersham NSW 2770, being the land contained in folio identifier [REDACTED] (the Property).

2. A declaration that the Second Defendant, Ian Raymond Clissold, is entitled to be the legal owner of the Property.

3. On or before 27 August 2021, the Plaintiff, Perpetual Trustees Victoria Ltd, is to provide to the Second Defendant a pay out figure in relation to registered mortgage numbered [REDACTED] (Pay Out Figure).

4. Within 7 days of the Plaintiff informing the second defendant of the Pay Out Figure in accordance with Order 3:

1. the Second Defendant is to pay the Pay Out Figure to the Plaintiff by bank transfer; and

2. in exchange for payment of the Pay Out Figure, the Plaintiff is to deliver to the Second Defendant;

1. a Discharge of Mortgage numbered [REDACTED] in registrable form; and

2. the Certificate of Title for the Property, or alternatively a CoRD Consent to registration of the Transfer of the Property to the Second Defendant.

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Decision last updated: 25 August 2021