Rogers v Asset Loan Co Pty Ltd ACN 107 746 798
[2005] FCA 223
•17 FEBRUARY 2005
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 |
AND: | 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 RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 |
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 |
AND: | 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 RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 |
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 |
0
0