Re: Art Pacific Pty Ltd; Wilde v Morgan - [2013] VSC 330

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST

S CI 2013 02978

IN THE MATTER OF ART PACIFIC PTY LTD (ACN 089 489 270)

BETWEEN:

MILTON WILDE	First Plaintiff
- and -
ART PACIFIC PTY LTD (ACN 089 489 270)	Second Plaintiff

AND BETWEEN:

BRENT LEIGH MORGAN and GEOFFREY NIELS HANDBERG	First and Second Defendants
- and -
BENDIGO & ADELAIDE BANK LIMITED (ACN 068 049 178)	Third Defendant

---

JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 20 and 24 June 2013
DATE OF JUDGMENT:	27 June 2013
CASE MAY BE CITED AS:	Re: Art Pacific Pty Ltd; Wilde v Morgan & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 330

---

CORPORATIONS – mortgage of land – service of notices – whether valid service of demand and notice to pay under mortgage and s 76 of the Transfer of Land Act1958 – memorandum of common provisions – deemed service if left at or sent by post to address shown in the mortgage or where a new address has been notified to that new address - whether notification of new address for service precludes service at address in the mortgage – service also deemed effective where the notice is left or sent by post in any manner provided by statute, where applicable –s 418A of the Corporations Act2001 – application to make supplementary submissions – plaintiffs re-opening case – application of the doctrine of ‘fair notice’.

---

APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Mr R. Kendall QC with Mr D. Kim	ICA Lawyers
For the First, Second and Third Defendants	Mr C. Möller	Piper Alderman

HIS HONOUR:

Introduction

By originating process filed 12 June 2013 the plaintiffs seek declarations under s 418A(2) of the Corporations Act 2001 (“the Corporations Act”) as follows:

(a)that the appointment of the first and second defendants as agents for the third defendant, by Deed of Appointment of Agents for Mortgagees in Possession dated 23 October 2012 (“the Deed of Appointment”), under mortgage of land between the second plaintiff and the third defendant dated 18 April 2002 (“the Mortgage”) was invalid;
(b)further, or alternatively, that the first and second defendants’ entry into possession, or assumption of control of the land of the second plaintiff pursuant to the Deed of Appointment under the Mortgage was invalid.

The land in question is at 253-257 Maroondah Highway, Ringwood, Victoria and is the land described in certificates of title volume 5481 folio 080 and volume 4143 folio 465 (“the Property”).

The matter came on urgently on 12 June 2013, when the plaintiffs sought, and obtained, an interim injunction restraining the defendants from selling the Property at an auction set to take place on 13 June 2013 at 11.00am.[1] The serious question to be tried that was raised in the application for an interim injunction was whether a demand and notice to pay (“Default Notice”) by the…

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.

Keep reading for free

Create a free CaseChat account to read Re: Art Pacific Pty Ltd; Wilde v Morgan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] VSC 330
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the matter of Art Pacific Pty Ltd, the plaintiffs Wilde and Morgan were involved in a dispute regarding a mortgage of land. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether the service of a demand and notice to pay under the mortgage was validly executed. This hinged on the interpretation of sections 76 of the Transfer of Land Act 1958 and 418A of the Corporations Act 2001. The court needed to determine if the notification of a new address for service precluded service at the address shown in the mortgage and whether service was deemed effective under the specified statutory provisions.

The court examined whether the service of notices could be considered valid when left at or sent by post to the address shown in the mortgage, or where a new address had been notified. It also considered the application of the doctrine of ‘fair notice’ in the context of the plaintiffs' application to make supplementary submissions and re-open their case. The court had to balance the requirements of the statutory provisions with the principles of fairness in legal proceedings.

In its reasoning, the court found that the notification of a new address for service did not preclude service at the original address if the new address had not been effectively notified. The court held that the service of notices was valid if left or sent by post in accordance with the statutory provisions. The doctrine of ‘fair notice’ was applied to ensure that the plaintiffs had an adequate opportunity to respond to the defendants' submissions. Ultimately, the court determined that the service of the demand and notice to pay was valid, and the plaintiffs' application to re-open their case was denied.

The final orders of the court were that the service of the demand and notice to pay under the mortgage was valid, and the plaintiffs' application to make supplementary submissions and re-open their case was dismissed. The court emphasised the importance of adhering to statutory requirements for service and the need for fairness in the legal process.

Orders