Phillips v Hogg - [2001] QSC 390

SUPREME COURT OF QUEENSLAND

CITATION: Phillips v Hogg [2001] QSC 390

PARTIES: DOUGLAS PHILLIPS and MARGARET PHILLIPS trading as D & M Plant Hire
(plaintiff/applicant)
v
EARLE RAYMOND HOGG
(defendant/respondent)

FILE NO: S3683 of 2001

DIVISION: Trial Division

DELIVERED ON: 19 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 12 October 2001

JUDGE: Mullins J

ORDER:
1. There be a sale of Lot 7 on Survey Plan 108986 County of Ward Parish of Nerang Title Reference 50246682 (“the property”) pursuant to s 99(2) of the Property Law Act 1974.

2. Philip Arthur Hennessy be appointed to conduct the sale of the property and be appointed pursuant to s 99(7) of the Property Law Act 1974 to convey the property upon the sale of the property in accordance with these orders.

3.     Philip Arthur Hennessy be entitled to charge reasonable expenses for his time in conducting the sale of the property and those expenses be deemed to be part of the costs of the sale of the property.

4.     Philip Arthur Hennessy be entitled to deduct the costs of sale of the property from the proceeds of the sale of the property, before making payment to the applicant of the sum of $21,986.93 charged on the property.

5.     The respondent pay the applicant’s costs of the application to be assessed excluding the costs in relation to the preparation, service and proof of service of the notice of exercise of power of sale issued in respect of the property and dated 5 September 2001.

CATCHWORDS:
MORTGAGES – MORTGAGES AND CHARGES GENERALLY – remedy of equitable chargee – exercise of discretion to order judicial sale – s 99(2) Property Law Act 1974 – appointment of independent person to conduct the sale and convey the property

Property Law Act 1974, s 77, s 83, s 99
UCPR, r 278

AVCO Financial Services Limited v White [1977] VR 561
BBC Hardware Limited v GT Homes Pty Ltd (unreported SC(Q), Thomas J, 17 December 1996)
Re Lloyd; Allen v Lloyd (1879) 12 Ch D 447
Palk v Mortgage Services Funding plc [1993] Ch 330
Tennant v Trenchard (1869) LR 4 Ch App 537
Worrell v Issitch [2001] 1 QdR 570

COUNSEL: DH Locke (solicitor) for the applicant
The respondent in person

SOLICITORS: Murrays Lawyers for the applicant

MULLINS J: The applicant which is the plaintiff in this proceeding seeks an order for the sale of the property at Lot 7 on Survey Plan 108986 County of Ward Parish of Nerang (“the property”) pursuant to ss 83 and 99 of the Property Law Act 1974 (“the Act”) and such further orders including an order vesting the property or appointing a person to convey the property or an order creating or vesting in the applicant a legal estate of the property to enable the applicant to carry out the sale.

The proceeding commenced by claim filed on 27 April 2001 supported by a statement of claim. There was no defence to the proceeding filed by Earle Raymond Hogg…

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 Phillips v Hogg

Details

AGLC: Phillips v Hogg [2001] QSC 390
Case: [2001] QSC 390
Decision Date: 19 October 2001

CaseChat Overview and Summary

In the case of Phillips v Hogg, the matter before the court involved a dispute concerning a mortgage and the subsequent enforcement of a power of sale. The applicant, Phillips, sought an order for the sale of a property held by the respondent, Hogg, under a mortgage agreement. The court was tasked with determining whether it should exercise its discretion to order a judicial sale of the property and appoint an independent person to conduct the sale and convey the property.

The primary legal issue before the court was whether it should exercise its discretion under section 99(2) of the Property Law Act 1974 to order a judicial sale of the property. The court had to consider the circumstances and the terms of the mortgage agreement between the parties to determine if the conditions for such a sale were met. Additionally, the court needed to decide on the appointment of an independent person to conduct the sale and convey the property as per section 99(7) of the Act.

In ruling on the matter, the court noted that the conditions for the exercise of the power of sale had been satisfied, and it was in the best interest of both parties for the property to be sold. The court found that the applicant had provided sufficient evidence to support the claim that the mortgagee was entitled to exercise the power of sale. The court exercised its discretion to order the sale of the property and appointed Philip Arthur Hennessy to conduct the sale and convey the property. The court also ruled that Hennessy was entitled to charge reasonable expenses for his time and that these expenses would be part of the costs of the sale. Furthermore, Hennessy was entitled to deduct the costs of sale from the proceeds of the sale before making payment to the applicant.

In conclusion, the court ordered the sale of the specified property, appointed Philip Arthur Hennessy to conduct the sale and convey the property, and allowed Hennessy to charge reasonable expenses. The respondent was ordered to pay the applicant's costs of the application, excluding certain specified costs.

Orders

Orders of the court

1. There be a sale of Lot 7 on Survey Plan 108986 County of Ward Parish of Nerang Title Reference 50246682 (“the property”) pursuant to s 99(2) of the Property Law Act 1974.

2. Philip Arthur Hennessy be appointed to conduct the sale of the property and be appointed pursuant to s 99(7) of the Property Law Act 1974 to convey the property upon the sale of the property in accordance with these orders.

3. Philip Arthur Hennessy be entitled to charge reasonable expenses for his time in conducting the sale of the property and those expenses be deemed to be part of the costs of the sale of the property.

4. Philip Arthur Hennessy be entitled to deduct the costs of sale of the property from the proceeds of the sale of the property, before making payment to the applicant of the sum of $21,986.93 charged on the property.

5. The respondent pay the applicant’s costs of the application to be assessed excluding the costs in relation to the preparation, service and proof of service of the notice of exercise of power of sale issued in respect of the property and dated 5 September 2001.

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

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CITATION:	Phillips v Hogg [2001] QSC 390
PARTIES:	DOUGLAS PHILLIPS and MARGARET PHILLIPS trading as D & M Plant Hire (plaintiff/applicant) v EARLE RAYMOND HOGG (defendant/respondent)
FILE NO:	S3683 of 2001
DIVISION:	Trial Division
DELIVERED ON:	19 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2001
JUDGE:	Mullins J
ORDER:	*1. There be a sale of Lot 7 on Survey Plan 108986 County of Ward Parish of Nerang Title Reference 50246682 (“the property”) pursuant to s 99(2) of the Property Law Act* 1974.** 2. Philip Arthur Hennessy be appointed to conduct the sale of the property and be appointed pursuant to s 99(7) of the Property Law Act 1974 to convey the property upon the sale of the property in accordance with these orders. 3. Philip Arthur Hennessy be entitled to charge reasonable expenses for his time in conducting the sale of the property and those expenses be deemed to be part of the costs of the sale of the property. 4. Philip Arthur Hennessy be entitled to deduct the costs of sale of the property from the proceeds of the sale of the property, before making payment to the applicant of the sum of $21,986.93 charged on the property. 5. The respondent pay the applicant’s costs of the application to be assessed excluding the costs in relation to the preparation, service and proof of service of the notice of exercise of power of sale issued in respect of the property and dated 5 September 2001.
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – remedy of equitable chargee – exercise of discretion to order judicial sale – s 99(2) Property Law Act 1974 – appointment of independent person to conduct the sale and convey the property Property Law Act 1974, s 77, s 83, s 99 UCPR, r 278 AVCO Financial Services Limited v White [1977] VR 561 BBC Hardware Limited v GT Homes Pty Ltd (unreported SC(Q), Thomas J, 17 December 1996) Re Lloyd; Allen v Lloyd (1879) 12 Ch D 447 Palk v Mortgage Services Funding plc [1993] Ch 330 Tennant v Trenchard (1869) LR 4 Ch App 537 Worrell v Issitch [2001] 1 QdR 570
COUNSEL:	DH Locke (solicitor) for the applicant The respondent in person
SOLICITORS:	Murrays Lawyers for the applicant