Perpetual Trustees Victoria Ltd v English (No 2)
[2010] NSWCA 327
•30 November 2010
New South Wales
Court of Appeal
CITATION: Perpetual Trustees Victoria Ltd v English (No 2) [2010] NSWCA 327 HEARING DATE(S): On the papers
JUDGMENT DATE:
30 November 2010JUDGMENT OF: Allsop P at 1 DECISION: “1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as 36 Brisbane Road, Castle Hill and being the whole of the land comprised in folio identifier 4/13841 (Property) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder.
2. An order that, if contracts for the sale of the Property by the second and third respondent are not exchanged by 15 June 2010, on terms that are satisfactory to the Appellant, then effective from 16 June 2010:
(a) trustees for sale be appointed in respect of the Property under section 66G of the Conveyancing Act 1919 (NSW) and that the Property be vested in such Trustees, to be held by such trustees upon a statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919 (NSW);
(b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the trustees referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of trustees by the Court.
(c) An order that the trustees’ fees, expenses and legal costs be paid out of the proceeds of the sale.
(d) An order that the trustees pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares.
3. Liberty for the parties or any Trustee appointed, to restore the proceedings on 3 days notice to seek further orders.”
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: PROCEDURE - judgments and orders - additional orders by consent LEGISLATION CITED: Supreme Court Act 1970 s 46(1)(a) CATEGORY: Consequential orders PARTIES: Perpetual Trustees Victoria Ltd (Appellant)
Niel William English (First Respondent)
Kerrie Diane Therese English (Second Respondent)FILE NUMBER(S): CA 2009/40258 COUNSEL: Mr A Leopold SC, Mr D F C Thomas (Appellant)
Mr J Clifton (Second Respodent)SOLICITORS: Gadens Lawyers (Appellant)
LAS Lawyers & Consultants (Second Respondent)LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 11418/06 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 3 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 478
2009/40258
Tuesday 30 November 2010ALLSOP P
PERPETUAL TRUSTEES VICTORIA LTD v ENGLISH (No 2)
Judgment
On 12 March 2010 the Court made the following orders:
“1. Perpetual’s appeal against the dismissal of its claim against Ms English be dismissed.
2. Perpetual pay Ms English’s costs of the appeal.
3. Perpetual’s appeal against the dismissal of its claim against Mr English be allowed.
4. Perpetual be granted leave to further amend its amended statement of claim to claim the relief against Mr English identified in the notice of appeal.
5. The further amended statement of claim be filed within 14 days.
6. Perpetual file within 14 days of these orders short minutes of order giving effect to the judgment to the extent that additional orders are required in consequence of the appeal being allowed.
7. If Ms English disputes the terms of the proposed short minutes of order:
(a) Perpetual should file brief written submissions accompanying the short minutes of order supporting the terms of the orders it proposes; and
(b) Ms English should file within 14 days of these orders alternative short minutes of order accompanied by brief written submissions supporting the terms of the orders she proposes.
8. Mr English pay the costs of Perpetual’s appeal against dismissal of its claim against Mr English.
9. Perpetual, if otherwise qualified, have a certificate under the Suitors’ Fund Act 1951.”
2 The purpose of the orders was to allow Perpetual to file short minutes giving effect to the successful appeal by it against the dismissal of its claim against Mr English. Within that 14 day period there were filed in court short minutes of order which were in the following terms:
2. An order that, if contracts for the sale of the Property by the second and third respondent are not exchanged by 15 June 2010, on terms that are satisfactory to the Appellant, then effective from 16 June 2010:“1. A declaration that the Mortgage has full force and effect as against the interest of the first respondent in the property known as 36 Brisbane Road, Castle Hill and being the whole of the land comprised in folio identifier 4/13841 ( Property ) (as now vested in the Official Trustee) in respect of all moneys outstanding under the Loan Agreement and/or under the Mortgage and further interest, charges and costs payable thereunder.
(a) trustees for sale be appointed in respect of the Property under section 66G of the Conveyancing Act 1919 (NSW) and that the Property be vested in such Trustees, to be held by such trustees upon a statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919 (NSW);
(b) The appellant and the second and third respondent shall use their best endeavours to agree within 14 days upon the identity of the trustees referred to at 2(a) and failing agreement the proceedings shall be relisted for the appointment of trustees by the Court.
(d) An order that the trustees pay the net proceeds of the sale, after payment of the fees, expenses and legal costs referred to in order 2(c) above, to the appellant and the second respondent in equal shares.(c) An order that the trustees’ fees, expenses and legal costs be paid out of the proceeds of the sale.
3. Liberty for the parties or any Trustee appointed, to restore the proceedings on 3 days notice to seek further orders.”
3 Upon that document there was an original signature on behalf of the appellant and a facsimile of a signature for Ms English. There was apparently no debate from Ms English as to those matters. One aspect which was not dealt with in those short minutes which is implicit in order 3 originally made and in the additional orders is that the orders for the learned primary judge dismissing the claim against Mr English be set aside.
4 Unfortunately these orders were not brought to the attention of the Court by the Registry. There does not appear to be any prejudice to any party by these orders now being made rather than earlier.
5 In those circumstances the additional orders propounded by Perpetual and Ms English pursuant to order 6 made on 12 March 2010 will be made. There being consent I have power to make them under the Supreme Court Act 1970, s 46(1)(a).