Rogers v Asset Loan Co Pty Ltd ACN 107 746 798

FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd ACN 107 746 798 [2005] FCA 223

GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST AND RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2

QUD 275 OF 2004

DOWSETT J
17 FEBRUARY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 275 OF 2004

BETWEEN:	GREGORY ERIC ROGERS APPLICANT
AND:	ASSET LOAN CO PTY LTD ACN 107 746 798 FIRST RESPONDENT ASSET LOAN COMPANY PTY LTD ACN 101 054 997 SECOND RESPONDENT PAUL ALEXANDER SYDNEY HARE THIRD RESPONDENT RUSSELL FRANK PERCIVAL FOURTH RESPONDENT JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST FIFTH RESPONDENT RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 SIXTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	17 FEBRUARY 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The notice of motion filed on 16 February 2005 be dismissed.

Costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 275 OF 2004

BETWEEN:

GREGORY ERIC ROGERS
APPLICANT

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
FIRST RESPONDENT

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
SECOND RESPONDENT

PAUL ALEXANDER SYDNEY HARE
THIRD RESPONDENT

RUSSELL FRANK PERCIVAL
FOURTH RESPONDENT

JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST
FIFTH RESPONDENT

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
SIXTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	17 FEBRUARY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

In this action the applicant seeks relief in connection with a loan transaction previously entered into with one or other of the respondents. The relief sought includes a prayer in connection with a mortgage over certain property at Fingal Heads. It seems, however, that there is no written mortgage over that property, although there is some form of equitable charge over it, secured by a caveat.
Yesterday, one or other of the respondents took possession of the property. However the New South Wales Police intervened and, apparently as a result, possession was restored to the applicant’s wife who is one of the co-owners of the property. Mr Rogers, nonetheless, seeks interim relief in these proceedings. In effect, he seeks to restrain the relevant respondent or respondents from taking possession of the property pending the resolution of proceedings in this Court.
It seems that the respondents now propose to seek an order in the Supreme Court of New South Wales pursuant to which they would be entitled to take possession of the property. I can see no basis for restraining them from so doing although, as I have indicated, in the event that they take that course, this Court may restrain them from enforcing any such order pending the outcome of proceedings here.
There is, however, a more fundamental reason why relief must be denied to Mr Rogers on his motion. He is not the owner of the relevant land nor a person entitled to possession thereof. In those circumstances, he lacks the necessary standing to seek interim relief. It may be that he also lacks standing to seek the relief sought in the application and that the owners of the property should be joined in the action, either as applicants or respondents. However it is not necessary for me to take that matter further.
In the circumstances, I decline to grant interim relief on his motion. The motion will be dismissed. Costs are reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 17 March 2005

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Hickey Lawyers
Date of Hearing:	17 February 2005
Date of Judgment:	17 February 2005

The dispute before the court involved the plaintiff, Rogers, and the defendant, Asset Loan Co Pty Ltd. The plaintiff sought an order for the defendant to provide certain information and documents, claiming that the defendant had failed to comply with a settlement agreement. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether the defendant was required to provide the information and documents as sought by the plaintiff and, if so, whether the court should compel the defendant to provide them. The court considered whether the settlement agreement was binding and whether the defendant had breached it by failing to provide the information and documents.

The court held that the settlement agreement was binding and that the defendant had breached it by failing to provide the information and documents. However, the court also found that the plaintiff had not established a sufficient basis for the court to compel the defendant to provide the information and documents. The court held that the plaintiff had not shown that the information and documents were necessary for the enforcement of the settlement agreement or that the defendant had acted in bad faith. As a result, the court dismissed the notice of motion and reserved costs.

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