RAMS MORTGAGE CORPORATION LTD -v- SKIPWORTH & ANOR [2007] WASC 24
| Link to Appeal : |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 24 | |
| Case No: | CIV:1509/2006 | 17 & 25 JANUARY 2007 | |
| Coram: | EM HEENAN J | 7/02/07 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Stay of execution of Property Seizure Order and the judgment for possession for eight weeks or until further order Liberty to apply Mortgagee's counsel to provide revised undertaking to comply with s 27(3)(b) of Stamp Act Mortgagee's solicitors to remove from Court record all copies of affidavits filed in Family Law Act proceedings without leave being granted for their use on this application Further submissions to be made within 14 days on effect if any of s 133(9) of Bankruptcy Act | ||
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| PDF Version |
| Parties: | RAMS MORTGAGE CORPORATION LTD JEFFREY DONALD SKIPWORTH JANET-JANE TURNBULL SKIPWORTH |
Catchwords: | Stay of execution Judgment for possession of land Property Seizure Order Mortgagee's action Claim for time to redeem mortgage Effect of subsequent encumbrances Proceedings under the Family Law Act Whether res judicata or issue estoppel Effect of order under Family Law Act where mortgagee not joined as party Whether payment into court of balance due under mortgage a condition of relief Difference between relief to restrain power of sale and a stay of an order for possession Inadequate stamping of security document Dispute over costs added to mortgage debt Joint tenancy Other joint owner of mortgaged premises fraudulently granting subsequent charges over jointly owned property by forging the applicant's signature Caveators relying upon forged charges to claim subsequent interests in the land Other joint tenant bankrupt Disclaimer of bankrupt's interest by trustee in bankruptcy Effect of disclaimer Need for vesting order under s 133(9) of Bankruptcy Act |
Legislation: | Bankruptcy Act 1966 (Cth) Civil Judgments Enforcement Act 2004 (WA) Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) Family Law Rules 2004 (Cth) Legal Practice Act 2003 (WA) Oaths Affidavits and Statutory Declarations Act 2005 (WA) Property Law Act 1969 (WA) Stamp Act 1921 (WA) Supreme Court Act 1935 (WA) Trade Practices Act 1974 (Cth) Transfer of Land Act 1893 (WA) |
Case References: | 330 and Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128 Adams v Bank of New South Wales [1984] 1 NSWLR 285 Ainsworth v Hanrahan (1991) 25 NSWLR 155 Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342 Assets Co Ltd v Mere Roihi [1905] AC 176 Australian & New Zealand Banking Group Ltd v Comer (1993) 5 BPR 11,748 Blair v Curran (1939) 62 CLR 464 Bonnard v Perryman [1891] 2 Ch 269 Boscawen v Bajwa [1996] 1 WLR 328 Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 Cochrane v Cochrane (1985) 3 NSWLR 403 Commercial Bank of Australia Ltd v Schierholter [1981] VR 292 Commonwealth Bank of Australia v… |
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Details
- Case
- [2007] WASC 24
- Decision Date
CaseChat Overview and Summary
The case of Rams Mortgage Corporation Ltd v Skipworth involved a dispute over the possession of land where the mortgagee sought to enforce a judgment for possession against the mortgagor. The mortgagee, a financial institution, was the plaintiff in the matter, and the defendant was the mortgagor of the property in question. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over property disputes and family law matters. The court was tasked with determining several legal issues arising from the complex facts of the case.
The primary legal issues the court had to address were whether the mortgagee's action was barred by res judicata or issue estoppel due to prior family law proceedings, the effect of subsequent encumbrances on the property that were not disclosed to the mortgagee, and the consequences of an order under the Family Law Act where the mortgagee was not joined as a party. Additionally, the court had to consider whether payment into court of the balance due under the mortgage was a condition of any relief granted to the mortgagor. The court also had to distinguish between relief to restrain the power of sale and a stay of an order for possession, and whether the security document was adequately stamped.
The court's reasoning focused on the interplay between various legal doctrines and statutes, including the principles of res judicata and issue estoppel, the implications of orders under the Family Law Act, and the adequacy of stamping of the security document. The court found that the mortgagee's action was not barred by res judicata or issue estoppel because the family law proceedings did not address the mortgagee's rights or the validity of the mortgage. Regarding the subsequent encumbrances, the court held that the mortgagee was not bound by charges that were fraudulently created by one joint owner without the other's consent. The court also noted that the bankruptcy of one joint owner and the subsequent disclaimer of their interest did not automatically vest the property in the remaining joint owner without a vesting order under the Bankruptcy Act.
The court granted a stay of execution of the Property Seizure Order and the judgment for possession for eight weeks or until further order. It required the mortgagee to provide a revised undertaking to comply with the Stamp Act, remove certain documents from the court record, and made orders for further submissions on the effect of the Bankruptcy Act. The court's decision provided clarity on the rights and obligations of the parties involved and the legal principles applicable to complex property disputes.
The primary legal issues the court had to address were whether the mortgagee's action was barred by res judicata or issue estoppel due to prior family law proceedings, the effect of subsequent encumbrances on the property that were not disclosed to the mortgagee, and the consequences of an order under the Family Law Act where the mortgagee was not joined as a party. Additionally, the court had to consider whether payment into court of the balance due under the mortgage was a condition of any relief granted to the mortgagor. The court also had to distinguish between relief to restrain the power of sale and a stay of an order for possession, and whether the security document was adequately stamped.
The court's reasoning focused on the interplay between various legal doctrines and statutes, including the principles of res judicata and issue estoppel, the implications of orders under the Family Law Act, and the adequacy of stamping of the security document. The court found that the mortgagee's action was not barred by res judicata or issue estoppel because the family law proceedings did not address the mortgagee's rights or the validity of the mortgage. Regarding the subsequent encumbrances, the court held that the mortgagee was not bound by charges that were fraudulently created by one joint owner without the other's consent. The court also noted that the bankruptcy of one joint owner and the subsequent disclaimer of their interest did not automatically vest the property in the remaining joint owner without a vesting order under the Bankruptcy Act.
The court granted a stay of execution of the Property Seizure Order and the judgment for possession for eight weeks or until further order. It required the mortgagee to provide a revised undertaking to comply with the Stamp Act, remove certain documents from the court record, and made orders for further submissions on the effect of the Bankruptcy Act. The court's decision provided clarity on the rights and obligations of the parties involved and the legal principles applicable to complex property disputes.
Orders
Orders of the court
Stay of execution of Property Seizure Order and the judgment for possession for
eight weeks or until further order
Liberty to apply
Mortgagee's counsel to provide revised undertaking to comply with s 27(3)(b) of
Stamp Act
Mortgagee's solicitors to remove from Court record all copies of affidavits
filed in Family Law Act proceedings without leave being granted for their use
on this application
Further submissions to be made within 14 days on effect
if any
of s 133(9) of
Bankruptcy Act
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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