Pourzand v Home Building Society
[2001] WASC 340
POURZAND -v- HOME BUILDING SOCIETY [2001] WASC 340
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 340 | |
| Case No: | CIV:2605/2001 | 6 DECEMBER 2001 | |
| Coram: | MASTER SANDERSON | 13/12/01 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | HOSSEAN POURZAND HOME BUILDING SOCIETY |
Catchwords: | Summary judgment Application by both plaintiff and defendant Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
HOME BUILDING SOCIETY
Defendant
Catchwords:
Summary judgment - Application by both plaintiff and defendant - Turns on own facts
Legislation:
Nil
Result:
Applications dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr J C Giles
Defendant : Mr A J McLean
Solicitors:
Plaintiff : Solomon Brothers
Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER SANDERSON: On the plaintiff's application for summary judgment I have determined that the application should fail and it is therefore inappropriate for me to deal at any lengths with the facts of the case. However, I acknowledge the strength of the plaintiff's argument and in the circumstances the plaintiff is entitled to know why the application did not succeed.
2 The dispute between the parties is of narrow compass. The facts taken from the statement of claim may be summarised as follows. At all material times until 30 July 1999 one Maurizio Antonio Oteri ("Oteri") was indebted to the defendant. The amount of the debt was $300,000 and it was secured relevantly by a mortgage over property acquired by Oteri on 4 February 1999. By deed of priority dated 16 December 1998 the plaintiff and the defendant and Oteri agreed in relation to all existing and future securities held by the plaintiff and the defendant over Oteri's assets that the defendant would have limited priority over the plaintiff. That priority was limited to an amount of $531,000 plus interest and costs. The plaintiff would then rank second in priority for all amounts owed by Oteri to the plaintiff. The deed of priority contained a provision that the defendant would not transfer a sign or otherwise deal with any security, the subject of the deed of priority, without first causing the transferee, assignee or other party to enter into a deed with the plaintiff by which he, she or it undertook to the plaintiff to be bound by the deed of priority.
3 On 30 July 1999 the defendant transferred the first mortgage it held over Oteri's property to the St George Bank Ltd. The plaintiff pleads that on registration of the transfer of the mortgage, St George Bank acquired indefeasible title to the first mortgage unaffected by the plaintiff's claim under the deed of priority by virtue of s 68 of the Transfer of Land Act. Prior to entering into the transfer the defendant did not arrange for the St George Bank to be bound by the terms of the deed of priority. Oteri subsequently defaulted on the loan and the property was sold. The sale price was $900,000 which yielded a net amount of $886,429.59. St George Bank took all of these moneys. It was entitled to do so under the provisions of its mortgage, there being in place no deed of priority. The plaintiff now says that if the deed of priority had been in place, St George Bank would have been entitled only to $531,000 plus interest and costs. The plaintiff would have recovered the $300,000 plus some further interest it was entitled to receive from Oteri. The plaintiff says he is entitled to damages from the defendant and the case is unanswerable.
4 If this were the extent of the factual matrix I should have had no hesitation in granting to the plaintiff summary judgment. However, there
(Page 4)
- is more. In his affidavit sworn 29 November 2001 and filed in support of the application, the plaintiff says that prior to St George Bank taking a transfer of the mortgage from the defendant the plaintiff had discussions with St George Bank about the refinancing. No detail of those discussions is given. The plaintiff says that the deed of priority was not mentioned. There is no reason to doubt the plaintiff's evidence on this point. However, it seems clear that for one reason or another the plaintiff did not mention to St George Bank, the existence of the deed of priority.
5 On the day the transaction was to be settled the plaintiff's solicitors were contacted by the solicitors for St George Bank. St George Bank sought to have the plaintiff discharge his mortgage, allow registration of their "All Moneys" Mortgage and then to have the plaintiff's mortgage reinstated. This was done. During the course of this transaction it would appear that once again no mention was made of the deed of priority. On behalf of the plaintiff it was submitted that if the defendant had caused St George Bank to enter into the deed of priority, the order of registration of the securities would not have affected the plaintiff's priority under the deed: See cl 5.2.5 (annexure "HP3" to the plaintiff's affidavit sworn 1 November 2001). Thus it was said on behalf of the plaintiff that the fact that the plaintiff's mortgage was discharged to allow registration of a further mortgage by St George Bank was of no moment. On behalf of the defendant it was said that in the circumstances of the case the plaintiff may have acquiesced in the registration of the St George Bank Mortgage with the effect that an equity has arisen and it would now be unconscionable for the plaintiff to rely upon the provisions of the deed of priority. It must be said that this line of argument was not particularly well developed by counsel for the defendant. It must also be acknowledged that as matters stand at present it could not be said that the defendant has a clear identifiable and easily articulated defence. But to use the words of O 14 r 3(1), I am satisfied that there is an issue which ought to be investigated and that there is some other reason why summary judgment ought not be granted. It is important in the context of this application to note that the defendant was not a party to any of the discussions which took place between the plaintiffs and/or his solicitors and St George Bank. In my view the interests of justice require that the defendant be given the opportunity to explore the precise nature of this transaction. At this stage I could not be satisfied that there is no prospect that the defendant could successfully defend this action.
6 The plaintiff's chamber summons will be dismissed. The costs, including reserved costs, should be costs in the cause.
(Page 5)
7 In relation to the defendant's application for summary judgment it should also be dismissed. The defendant has gone nowhere near establishing that the plaintiff does not have a cause of action which should go to trial. Any reasoned analysis of the defendant's position would quickly have established that it faced grave difficulties in avoiding summary judgment and that it was in no position to pursue its own application. On that basis, and subject to hearing from counsel, I think the proper order is that the defendant's application for summary judgment ought be dismissed and the defendant ought pay the plaintiff's costs in any event. As the question of costs on this application as not argued at the hearing I will give counsel the opportunity to make submissions before making final orders.
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