Rams Mortgage Corporation Ltd v Skipworth
[2008] WASCA 148
•21 JULY 2008
RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH [2008] WASCA 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 148 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:62/2007 | 18 JUNE 2008 | |
| Coram: | PULLIN JA BUSS JA MURRAY AJA | 21/07/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | RAMS MORTGAGE CORPORATION LTD JANET-JANE TURNBULL SKIPWORTH |
Catchwords: | Mortgage Stay of execution of Property Seizure and Sale Order Appeal against granting of stay Stay of execution already discharged when appeal was heard Mortgagee already in possession when appeal was heard Grounds of appeal moot Appeal without utility Turns on own facts |
Legislation: | Nil |
Case References: | Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24 Skipworth v State of Western Australia [2007] FMCA 1730 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH [2008] WASCA 148 CORAM : PULLIN JA
- BUSS JA
MURRAY AJA
- CACV 63 of 2007
- Appellant
AND
JANET-JANE TURNBULL SKIPWORTH
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CACV 62 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH & ANOR [2007] WASC 24
File No : CIV 1509 of 2006
For File No : CACV 63 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH & ANOR (NO 2) [2007] WASC 75
File No : CIV 1509 of 2006
Catchwords:
Mortgage - Stay of execution of Property Seizure and Sale Order - Appeal against granting of stay - Stay of execution already discharged when appeal was heard - Mortgagee already in possession when appeal was heard - Grounds of appeal moot - Appeal without utility - Turns on own facts
Legislation:
Nil
Result:
Appeals dismissed
(Page 3)
Category: B
Representation:
Counsel:
Appellant : Mr D H Solomon
Respondent : No appearance
Solicitors:
Appellant : Solomon Brothers
Respondent : In person
Case(s) referred to in judgment(s):
Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75
Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24
Skipworth v State of Western Australia [2007] FMCA 1730
(Page 4)
1 PULLIN JA: I agree with Buss JA.
BUSS JA:
Background to appeal CACV 62 of 2007
2 By an appeal notice dated 12 April 2007, the appellant appeals against the orders made by EM Heenan J on 8 February 2007 in Rams Mortgage Corporation Ltd v Skipworth [2007] WASC 24. On 18 April 2007, McLure JA ordered that the appellant be granted an extension of time within which to appeal.
3 EM Heenan J's decision arose from the respondent's application, dated 17 January 2007, in Supreme Court proceedings CIV 1509 of 2006, for an order, relevantly, restraining the appellant from, amongst other things, executing a Property (Seizure and Delivery) Order (the PSDO) obtained by it on 30 November 2006.
4 The first return of the respondent's application was heard before EM Heenan J on 17 January 2007 as an urgent matter in the Duty Judge List. After that hearing, his Honour made an order staying enforcement of the PSDO pending further hearing and determination of the application. The adjourned hearing occurred on 25 January 2007, also before his Honour. After the second hearing, his Honour reserved his decision with respect to the application and extended the stay pending delivery of his decision.
5 On 8 February 2007, EM Heenan J ordered, relevantly, that there be a stay of execution of the PSDO (and the judgment pursuant to which the PSDO was obtained) for a period of eight weeks, upon the usual undertaking as to damages by the respondent.
Background to appeal CACV 63 of 2007
6 By an appeal notice dated 12 April 2007, the appellant appeals against the order made by EM Heenan J on 29 March 2007 in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75. That decision also arose from the respondent's application dated 17 January 2007 in Supreme Court proceedings CIV 1509 of 2006.
7 On 8 February 2007, EM Heenan J ordered, relevantly, that further submissions be made by the parties as to the effect, if any, which Mr Jeffrey Donald Skipworth's bankruptcy trustee's disclaimer of the property situated at 15 Park Lane, Kardinya, Western Australia (the Property) had on the appellant's ability to effect a mortgagee sale of the
(Page 5)
- Property without a vesting order being made under s 133(9) of the Bankruptcy Act 1966 (Cth) (the Order). Mr Skipworth is the respondent's husband and he was a co-defendant with the respondent in the proceedings before his Honour; that is, CIV 1509 of 2006.
8 The parties made oral and written submissions to EM Heenan J in respect of the Order. The oral submissions were made on 1 March 2007, following which his Honour reserved his decision.
9 On 29 March 2007, EM Heenan J delivered written reasons for decision and ordered, relevantly, that there be a stay of execution of the PSDO (and the judgment pursuant to which the PSDO was obtained) until further order on the basis that neither the appellant nor anyone else had obtained a vesting order pursuant to s 133(9) of the Bankruptcy Act.
The grounds of appeal in appeal CACV 62 of 2007
10 The grounds of appeal in appeal CACV 62 of 2007 are these:
1. The learned Judge erred in law in holding that the respondent had a prima facie entitlement to the relief sought. His Honour should have held there was no such entitlement because the respondent was unable to commence a tenable redemption suit to redeem mortgage H989743 (the 'Mortgage') over the property at 15 Park Lane Kardinya ('the Property') as:
1.1 the respondent was in substantial arrears in payments of interest and default legal costs with respect to the Mortgage;
1.2 the purported offer of finance tendered as evidence by the respondent was conditional upon being secured by a first ranking registered mortgage over the Property;
1.3 the respondent was required to obtain a vesting order pursuant to s 133(9) of the Bankruptcy Act 1966 with respect to the interest escheated to and held by the State, as a tenant in common with the respondent in equal shares, in the Property, before she could refinance the loan secured by the Mortgage;
1.4 4 of the caveats recorded on the title to the Property, which were subject to notices given by the respondent pursuant to s 138B of the Transfer of Land Act 1893 (WA), had been extended by order of the Supreme Court on 28 December 2006; and
- 1.5 the respondent had not made any offer to the appellant to redeem the Mortgage prior to making her application to the Supreme Court on 17 January 2007.
- 2. The learned judge should have held that there was no arguable legal or equitable cause of action in support of which the relief sought by the respondent could be given.
3. The learned Judge erred in law in holding that the balance of convenience favoured the granting of an 8 week stay when:
3.1 the respondent had not demonstrated that she had a prima facie or any entitlement to the relief sought;
3.2 the respondent was in substantial arrears in repayments of principal interest and default legal costs with respect to the Mortgage;
3.3 the respondent did not have the means to pay the said arrears to the appellant;
3.4 the respondent did not dispute the validity of the Mortgage or the amount of secured moneys claimed by the appellant as due and owing under the Mortgage;
3.5 the respondent was required to obtain a vesting order pursuant to s 133 (9) of the Bankruptcy Act 1966 with respect to the interest escheated to and held by the State, as a tenant in common with the respondent in equal shares, in the Property, before she could refinance the loan with respect to the Mortgage;
3.6 the Federal Magistrates Court in Federal Magistrates Court Proceedings PTW 1014 of 2006 (Skipworth v Dufall & Anor) (the 'FMC Proceedings') had made an order providing for the Property to be sold by the appellant by way of mortgagee sale;
3.7 the appellant had acted bona fide at all times; and
3.8 the respondent had not made any offer to the appellant to redeem the Mortgage prior to making her application to the Supreme Court on 17 January 2007.
4. The learned Judge erred in law in not requiring payment, or payment into court of the amount of the secured moneys the subject of the Mortgage sworn to by the appellant as a condition of granting the 8 week stay by application of the rule in Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161.
(Page 7)
- 5. The learned Judge erred in law and in fact in finding that the respondent disputed that the appellant's default legal costs can, or should, be added to the secured moneys owing under the Mortgage when the respondent's position was merely that she did not have the means to pay the entire arrears of principal, interest and default legal costs due and payable under the Mortgage.
6. The learned Judge erred in law in holding that none of the orders made by the Honourable Magistrate Moroni in the FMC Proceedings, or the FMC Proceedings in general, affected the respondent's injunction application or prevented it from being examined and determined on the merits because the respondent's application should have been dismissed as an abuse of process in seeking to contest a point which the respondent had lost, alternatively substantially lost, in the FMC Proceedings.
7. The learned Judge erred in law in holding that he should not permit any use to be made by the appellant, in the course of the respondent's application, of the affidavit materials filed in the FMC Proceedings [as leave to use those materials was neither sought nor granted], and subsequently requiring that all such affidavits or other evidence comprising part of the record of the FMC Proceedings filed and proferred without leave be forthwith uplifted and removed from the record of Supreme Court proceedings CIV 1509 of 2006 (RAMS Mortgage Corporation Limited v Skipworth & Anor), because:
7.1 the material in question was permitted to [be] adduced by the appellant without leave;
7.2 his Honour denied the appellant natural justice in respect of the issue as he made the order without any application for it by the respondent and did not give the appellant any notice that he intended to order the material in question uplifted and removed or any opportunity to be heard or make submissions in respect of the issue.
11 The grounds of appeal in appeal CACV 63 of 2007 are these:
1. The learned Judge erred in law in holding that the appellant (plaintiff) was required to obtain a vesting order pursuant to s 133(9) of the Bankruptcy Act 1966, or await the vesting of an undivided half interest in 15 Park Lane, Kardinya (the 'Property') in some other person who can be joined in enforcement proceedings, before it could take further steps to obtain possession of or sell the Property by way of mortgagee sale under mortgage H989743 (the 'Mortgage'), and that the absence of such a vesting order was a reason for staying execution of the judgment for possession
- obtained by the appellant, when such a vesting order was not required to have been obtained by the appellant in order for it to take further steps, as a registered mortgagee, to obtain possession of or sell the Property pursuant to the Transfer of Land Act 1893 and the Mortgage.
- 2. The learned Judge erred in law in holding that notice of the appellant's intention to enforce its judgment against the Property should have been given to the Crown in the right of the State based on the provisions of Order 18 Rule 10 and Order 62A Rule 3(5) of the Rules of the Supreme Court 1971, and subsequently reasoning that, if the effect of an action for possession or the execution of any judgment for possession can be seen as having a prejudicial effect upon a person with a proprietary interest in the subject land, regardless of whether or not they are in possession of the subject land, then such a person should be given notice of the proceedings, or be permitted to be joined as a defendant to oppose them, when:
2.1 the giving of such a notice in such circumstances was not required by the Rules of the Supreme Court 1971 by reason of Order 62A Rule 1(3) (which was not referred to by his Honour in his analysis of Order 62A) or the Civil Judgments Enforcement Act 2004 or the Civil Judgments Enforcement Regulations 2005; and
2.2 his Honour denied the appellant natural justice in respect of his decision on the issue as it was not the subject of any submissions made at the hearing on 1 March 2007, and his Honour did not give the appellant notice that he intended to decide this issue or an opportunity to be heard or make submissions on it.
12 In appeal CACV 62 of 2007 the appellant sought an order, relevantly, that the order made by EM Heenan J on 8 February 2007 be set aside and, in lieu thereof, the respondent's application dated 17 January 2007 be dismissed.
13 In appeal CACV 63 of 2007 the appellant sought an order, relevantly, that the order made by EM Heenan J on 29 March 2007 be set aside and, in lieu thereof, the respondent's application dated 17 January 2007 be dismissed.
The issues raised in the appeals are moot
14 At the hearing of the appeals, the appellant was represented by counsel but there was no appearance by the respondent.
(Page 9)
15 It soon became apparent, from the answers given by the appellant's counsel to questions from the court, that the issues raised in the appeal are moot and the appeals are without utility.
16 Since the appeals were commenced, several relevant events have occurred.
17 First, on 18 October 2007, in proceedings in the Federal Magistrates Court (File No: (P) PEG 47/2007), Federal Magistrate Lucev ordered, relevantly:
The interest held by the State of Western Australia, formerly held by Mr Jeffrey Donald Skipworth, in the property situated at 15 Park Lane, Kardinya, Western Australia ('Property'), be vested in the second named respondent, RAMS Mortgage Corporation Limited, under s 133(9) of the Bankruptcy Act 1966 (Cth), subject to the following conditions:
(a) That RAMS Mortgage Corporation Limited sell the Property under its powers as registered mortgagee under Mortgage H989743 and s 108 of the Transfer of Land Act 1892 (WA) ('Mortgage') by no later than 9.00am on 18 October 2008;
(b) After payment of the expenses of and incidental to and consequent on that sale and the monies due or owing under the Mortgage, RAMS Mortgage Corporation Limited commence interpleader proceedings in the Supreme Court of Western Australia to determine the person entitled to distribution of any surplus under s 109 of the Transfer of Land Act 1892 (WA) and condition (c) below; and
(c) Any portion of any such surplus which, but for the disclaimer by the trustee of the bankrupt estate of Jeffrey Donald Skipworth ('Trustee') of any interest in the Property, would have been payable to the Trustee be paid from such surplus to the Trustee for the benefit of the creditors of that bankrupt estate.
- Also see the learned magistrate's reasons in Skipworth v State of Western Australia [2007] FMCA 1730.
18 Secondly, on 10 March 2008, upon the application of the appellant in Supreme Court proceedings CIV 1509 of 2006, and upon hearing counsel for the appellant and the respondent in person, EM Heenan J ordered that:
1. The stay of execution of the Property (Seizure and Delivery) Order filed herein on 30 November 2006 ordered on 8 February 2007, and extended on 29 March 2007, be and is hereby discharged.
2. The [appellant] have leave to execute the Property (Seizure and Delivery) Order made in this action on 5 March 2008.
(Page 10)
- 3. The [respondent's] application for a stay of execution filed 17 January 2007 be dismissed.
4. The [respondent] pay the [appellant's] costs of and incidental to the application, including reserved costs, to be taxed.
19 Thirdly, by a memorandum dated 11 April 2008 and sent by facsimile transmission on that date from the Sheriff of Western Australia to the appellant's solicitors, the Sheriff informed the appellant's solicitors that on 8 April 2008 the PSDO was enforced in respect of the Property.
20 Fourthly, at the hearing of the appeals on 18 June 2008, counsel for the appellant informed the court that the appellant had obtained possession of the Property.
21 Counsel for the appellant submitted, in his written submissions, that leave to appeal was not required in that each appeal 'concerns' the granting of an injunction. See s 60(1)(f) of the Supreme Court Act 1935 (WA). It is unnecessary to determine the accuracy of that proposition.
22 If leave to appeal is required, I would refuse leave, and if leave to appeal is not required, I would dismiss the appeals, on the basis that all of the grounds of appeal are moot and the appeals are without utility.
23 I note that EM Heenan J's reasons for decision deal with, and the appellant's grounds of appeal raise, issues of some novelty and importance. It is inappropriate, however, in the circumstances, to express any opinion in relation to those issues or, with respect, the correctness of his Honour's decisions and reasons. The issues in question should await consideration by this court in an appeal where the grounds of appeal are not moot, the appeal has utility and a contradictor appears to argue the case.
24 The appeals should be dismissed.
25 MURRAY AJA: I agree with Buss JA.
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