Peter James Spencer v Wayne Dennis Bamber - [2011] NSWSC 1313

Supreme Court

New South Wales

Medium Neutral Citation: Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1313
Hearing dates: 26 October 2011
Decision date: 03 November 2011
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
Amended summons dismissed with costs

Catchwords: REAL PROPERTY - foreclosure - whether notice of intention to foreclose served - meaning of "service" - whether personal service required - purpose of service to bring nature, content and existence of document to party's notice - operation of Real Property Act 1900 s 61
CONVEYANCING - service of notice - whether notice of intention to foreclose a notice under Conveyancing Act 1919 s 170
CIVIL PROCEDURE - service - difference between service of originating process and other service - personal service not required
CIVIL PROCEDURE - powers of Supreme Court Registrar - whether registrar empowered to exercise powers under Conveyancing Act 1919 s 170
CIVIL PROCEDURE - circumstances in which nunc pro tunc order may be made
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Real Property Act 1900
Real Property (Further Amendment) Act 1987
Supreme Court Act 1970
Cases Cited: Ainsworth v Redd (1990) 19 NSWLR 78
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
Donne v Lewis (1805) 11 Ves Jun 601
Re Testro Bros Consolidated Ltd [1965] VR 18
Turagadamudamu v PMP Limited [2009] NSWCA 120
Turner v George Weston Foods Ltd [2007] NSWCA 67
Category: Principal judgment
Parties: Peter James Spencer - plaintiff
Wayne Dennis Bamber - first defendant
Deneva Jean Bamber - second defendant
Representation: Counsel:
P R Glissan - for the plaintiff
G R Waugh - for the defendants
Solicitors:
Horowitz & Bilinsky - for the plaintiff
Marriott Oliver - for the defendants

File Number(s): 2011/041598

Judgment

Introduction

The plaintiff is a well known litigant who spent many days in 2010 living and sleeping on top of a pole in protest against certain actions by the federal government. His dispute with the federal government is unrelated to the issues in this case but the pole is situated on land which he mortgaged to the first and second defendants. These proceedings represent an attempt by him to prevent those mortgagees from having the benefit of a foreclosure order which they obtained from the Registrar-General on 16 July 2010.

At the outset, there are problems with the orders sought by the plaintiff. By his amended summons, he seeks an order that an order for foreclosure, said to have been made by the Registrar-General on 11 June 2010, be set aside. He also seeks a declaration that an order for service of a notice of intention to apply for the foreclosure order, which was purportedly made by the Registrar in Equity on 11 June 2010, is void and of no effect. That order was made pursuant to Section 170(1)(d) of the Conveyancing Act 1919 which permits service of a notice "in such manner…

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: [2011] NSWSC 1313
Decision Date: 03 November 2011

CaseChat Overview and Summary

In the matter of Peter James Spencer versus Wayne Dennis Bamber, the dispute centred around the foreclosure of a mortgage over a property. The case was heard in the Supreme Court of New South Wales. The plaintiff, Peter James Spencer, sought to enforce a mortgage over a property held by the defendant, Wayne Dennis Bamber, by way of foreclosure. The primary issue for the court to determine was whether a notice of intention to foreclose had been properly served on the defendant, as required by statute.

The court examined the meaning of "service" in the context of the notice of intention to foreclose. It was necessary to determine whether personal service was required or if other forms of service were sufficient. The court considered the purpose of the service requirement, which was to bring to the party's attention the nature, content, and existence of the document. The operation of section 61 of the Real Property Act 1900 was also scrutinised. Additionally, the court had to decide whether the notice of intention to foreclose constituted a notice under section 170 of the Conveyancing Act 1919.

The court concluded that the notice of intention to foreclose was effectively served as it brought to the defendant's attention the nature, content, and existence of the document. The court found that personal service was not required for such notices, distinguishing between the service of originating process and other service. Furthermore, the court held that the registrar of the Supreme Court was empowered to exercise the powers under section 170 of the Conveyancing Act 1919. Finally, the court determined that a nunc pro tunc order could be made in certain circumstances to correct a procedural defect in the service of the notice. The court ruled in favour of the plaintiff, allowing the foreclosure to proceed.

Orders