JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PSAL PTY LTD -v- RAJA [2016] WASC 295
CORAM: PRITCHARD J
HEARD: 10 DECEMBER 2015 & FURTHER WRITTEN SUBMISSIONS
DELIVERED : 16 SEPTEMBER 2016
FILE NO/S: CIV 2406 of 2012
BETWEEN: PSAL PTY LTD
Plaintiff
AND
FAYYAZ AHMAD RAJA
DefendantDAYANG RAIHAN PANGRIAN HAJI AHMED RAFFAE
Claimant
Catchwords:
Interpleader - Sheriff's Interpleader - Where plaintiff obtained property (seizure and sale) order against defendant's land - Where land had been sold by registered mortgagee - Where surplus left after satisfying defendant's debt to registered mortgagee - Where plaintiff had unregistered mortgage over land - Where claimant was purchaser under unperformed contract to buy land - Whether plaintiff or claimant had equitable interest in surplus proceeds - Which of plaintiff or claimant's interest in surplus proceeds had priority
Property - Real property - Nature of purchaser's interest in land under contract of sale - Whether purchaser is equitable owner of land - Whether purchase price paid in full - Whether conditions precedent to transfer satisfied - Whether purchaser's equity is dependent on continued availability of specific performance
Property - Torrens land - Indefeasibility of title - Whether registration of legal mortgage extinguishes prior equitable interest of purchaser under contract of sale - Transfer of Land Act 1893 (WA) s 109 - Whether s 109 requires payment of unregistered mortgagees in priority to mortgagor or other equitable interests
Remedies - Election - Res judicata - Where judgment entered for claimant against defendant pursuant to springing order - Where order that damages to be assessed - Whether proprietary remedy no longer available - Whether judgment pursuant to springing order could be construed as election as to remedy - Whether judgment pursuant to springing order can found res judicata
Legislation:
Real Property Act 1900 (NSW)
Transfer of Land Act 1893 (WA)
Result:
Claimant entitled to the funds paid into court
Category: B
Representation:
Counsel:
Plaintiff: Mr K L Christensen
Defendant: No appearance
Claimant: Mr S K Shepherd
Solicitors:
Plaintiff: Gadens Lawyers
Defendant: No appearance
Claimant: Tottle Partners
Case(s) referred to in judgment(s):
Agip (Africa) Ltd v Jackson [1992] 4 All ER 451
Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679
Baines v State Bank of New South Wales (1985) 2 NSWLR 729
Brown v Heffer (1967) 116 CLR 344
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Chang v Registrar of Titles (1976) 137 CLR 177
Chief Commissioner of Stamp Duties (NSW) v ISPT Pty Ltd (1998) 45 NSWLR 639
Foskett v McKeown [2000] 3 All ER 97
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100; (2015) 105 ACSR 605
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
Haque v Haque (No 2) (1965) 114 CLR 98
Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326
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- Case
- [2016] WASC 295
- Decision Date
CaseChat Overview and Summary
The court found that the Registrar's Orders did not constitute an election by Mrs Raffae to abandon any remedy to which she was entitled by virtue of her equitable ownership of Lot 103. The court also held that the judgment pursuant to the springing order could not be construed as res judicata, as the issues in the current proceeding were not the same as those in the previous proceeding. The court further held that the priority of interests in the surplus proceeds of sale is determined by equitable principles, and that Mrs Raffae's interest had priority over PSAL's interest. Consequently, Mrs Raffae is entitled to the entirety of the Funds. The court ordered that interest be paid on the sum of $760,163.92 at the rate of 6% per annum from 17 April 2013 to the date of payment of the funds to Mrs Raffae or her representative, and that PSAL pay Mrs Raffae's costs of the interpleader proceeding.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Counsel for PSAL also referred to Residential Housing Corporation v Esber.[97] That was another case which dealt with s 58(3) of the Real Property Act 1900 (NSW). Campbell JA (with whom Macfarlan JA and Sackville AJA agreed) considered the operation of similar legislation in other States, including s 109 of the TLA, and expressed the view that references in s 109 to the payment of subsequent mortgagees referred only to subsequent registered mortgagees. His Honour went on to observe that the way in which the situation of an unregistered mortgagee was accommodated was 'not through the construction of s 58(3) but by equitable principle operating to modify the operation of s 58(3) to prevent it being used to produce inequitable results'.[98] His Honour's observations indicate no more than that - quite apart from the requirements of s 58(3) - equity may entitle the holder of an unregistered mortgage, of which the registered mortgagee was aware, to obtain relief to secure the payment of that unregistered mortgage out of surplus proceeds of sale before the registered mortgagee paid the surplus proceeds to the registered proprietor.[97] Residential Housing Corporation v Esber [2011] NSWCA 25 [98] (Campbell JA, Macfarlan JA & Sackville AJA agreeing).[98] Residential Housing Corporation v Esber [2011] NSWCA 25 [71], [166] (Campbell JA, Macfarlan JA & Sackville AJA agreeing). Neither Kerabee Park nor Esber suggest that an unregistered mortgagee is entitled to payment from the proceeds of sale of land pursuant to s 109 of the TLA, and neither authority suggests that an unregistered mortgagee will be accorded any greater priority than it would otherwise have had, vis a vis the holder of any other equitable interest, in the proceeds of a sale of land by a registered mortgagee. Is Mrs Raffae or PSAL entitled to the Funds? For these reasons, Mrs Raffae is entitled to the entirety of the Funds. The parties should confer in relation to the orders which should now be made. On 16 September 2016, I published reasons resolving an interpleader proceeding brought by the sheriff. The following reasons should be read together with those reasons (the Interpleader Reasons)[99]. The same abbreviations are used herein.[99]PSAL Pty Ltd v Raja [2016] WASC 295. The interpleader proceeding concerned the question of who was entitled to funds seized by the sheriff pursuant to a property seizure and sale order. (Those funds (the funds) were paid into court at the commencement of the interpleader proceeding.) The funds seized were the proceeds of the sale of lot 103, which sale had been conducted by Bankwest (the registered mortgagee) following a default by the registered proprietor and mortgagor, Mr Raja. Both Mrs Raffae and PSAL claimed an equitable interest in lot 103 and thus in the surplus proceeds of its sale. Mr Raja did not participate in the interpleader proceeding. I determined that Mrs Raffae was entitled to the funds. I made an order to that effect. Mrs Raffae now seeks two orders from the Court (the Application), namely:(1)an order that interest on the sum of $760,163.92 at the rate of 6% per annum be paid by PSAL, as from 17 April 2013 to the date of payment of the funds to Mrs Raffae or her representative; and(2)an order that PSAL pay Mrs Raffae's costs of the interpleader proceeding to be taxed as an action if not agreed.