Rural Bank (A Division of Bendigo and Adelaide Bank Ltd) v McCAGH [No 2] - [2025] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LTD) -v- McCAGH [No 2] [2025] WASC 142
CORAM:   TOTTLE J
HEARD:   9 APRIL 2025
DELIVERED          :   9 APRIL 2025
FILE NO/S:   CIV 1855 of 2011
BETWEEN:   RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LTD)
Plaintiff
AND
DAVID THOMAS McCAGH
First Defendant
MAUREEN McCAGH
Second Defendant
DAVID THOMAS McCAGH IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE OF THE LATE CECIL ROBERT McCAGH
Third Defendant

Catchwords:

Practice and procedure - Civil Judgments Enforcement Act 2004 (WA) - Where order for possession made - Where property seizure and delivery orders made - Whether order for possession required to be registered under s 58 of the Transfer of Land Act 1893 (WA) - No requirement for order for possession to be registered - Where defendant obstructed plaintiff's attempts to obtain possession and exercise rights to sell properties - Injunction granted to restrain defendants from further acts of obstruction - Turns on own facts

Practice and procedure - Where defendant commenced proceedings in Federal Court of Australia concerning enforcement of judgment of this court - Where purpose of proceedings is to frustrate enforcement of judgment of this court - Whether anti‑suit injunction should be granted - Anti‑suit injunction granted - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
National Consumer Credit Protection Act 2009 (Cth)
Residential Tenancies Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr W Zappia & Ms A Spencer
First Defendant	:	Mr G Skelton
Second Defendant	:	Mr G Skelton
Third Defendant	:	Mr G Skelton

Solicitors:

Plaintiff	:	Corrs Chambers Westgarth
First Defendant	:	Allaw Queensland
Second Defendant	:	Allaw Queensland
Third Defendant	:	Allaw Queensland

Case(s) referred to in decision(s):

Bell Group NV v Insurance Commission of WA [2017] WASCA 229
CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Insurance Commission of Western Australia v Woodings [2017] WASC 122

TOTTLE J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

By chamber summons filed on 28 March 2025, the plaintiff sought (among others) the following orders:
1.Sophie McCagh be joined as a fourth defendant in these proceedings pursuant to Order 18 rule 6(2) of the Rules of the Supreme Court 1971 (WA) (RSC).
2.…
3.Pursuant to section 95(3) of the Civil Judgments Enforcement Act 2004 (WA), further or alternatively the inherent jurisdiction of the Court, Sophie McCagh vacate the land comprised in Lot 1756 on Deposited Plan 247785, being the whole of Certificate of Title Volume 1856 Folio 682, with a street address of 648 Arthur Road, Georgina (648 Arthur Road), within 3 days of the date of this order and be restrained from making any attempt to re-enter 648 Arthur Road.
4.To the extent a further Property (Seizure and Delivery) Order is required, leave be given to the plaintiff to apply for a further Property (Seizure and Delivery) Order under section 95(1) of the CJE Act in terms of the Form 6 attached as Annexure A in respect of 648 Arthur Road.
5.Pursuant to section 95(3) of the CJE Act, further or alternatively the inherent jurisdiction of the Court, the first and third defendant, David McCagh, whether by himself, his employees, his agents or otherwise be restrained until further order from:
(a)accessing or entering onto the Properties (as defined by order 6 below) other than with the:
(i)written consent and express written authorisation of the plaintiff, given by its employees or agents or given by any person who purchases the Properties from the plaintiff and becomes its registered owner (New Registered Owner); and then
(ii)only under the direct supervision of either the plaintiff (by its employees or agents) or after the settlement of the sale of the Properties, any New Registered Owner; and
(b)engaging in any conduct or taking any steps, personally or by others, to obstruct, disturb or interfere with:
(i)the plaintiff's right to possession of the Properties; and/or
(ii)the sale and marketing of the Properties;
(c)continuing the proceeding WAD 54/2025 in the Federal Court of Australia commenced against the Registrar of Titles; and
(d)commencing any claim concerning the subject matter of these proceedings and the orders of the Honourable Justice Tottle made 13 October 2022 (as amended on 7 August 2024), including their enforcement, in any Court other than the Supreme Court of Western Australia.
The plaintiff relied upon: affidavits of Ms Michelle Dean, the plaintiff's solicitor, sworn on 26 March 2025, 27 March 2025 and 7 April 2025; affidavits of Mr Ian Francis, an accountant who is a member of the firm of accountants and consultants (FTI Consulting) retained by the plaintiff to act as the plaintiff's agent and mortgagee in possession, sworn on 20 March 2025 and 27 March 2025; and two affidavits of Mr Tony Millington, a process server and assistant bailiff located in Geraldton, sworn on 28 March 2025.
The following factual background has been derived from the affidavits and the court record.
On 13 October 2022, judgment was entered in favour of the plaintiff. The action was a mortgagee possession action and the defendants were ordered to give vacant possession of the land the subject of the action by 13 January 2022. The defendants appealed against the order for possession and the associated money judgment. The appeal was dismissed on 24 June 2024. The land comprised a number of farming properties on at least one of which there is a residential dwelling.
On and before 9 January 2025, property seizure and delivery orders were made under s 95 of the Civil Judgments Enforcement Act 2004 (WA). The object of the seizure and delivery orders was to enable the plaintiff to sell the properties as mortgagees in possession pursuant to div 3 of pt IV of the Transfer of Land Act 1893 (WA). It is important to record the orders obtained by the plaintiff were property seizure and delivery orders not property seizure and sale orders made pursuant to s 59 of the Civil Judgments Enforcement Act. This is a point I return to later in these reasons.
The defendant, Mr David McCagh, has taken the position that the plaintiff is not entitled to enforce its rights to possession of the properties because the orders of 13 October 2022 were not registered against the title to the properties. Mr McCagh contends that the orders are an instrument that must be registered pursuant to s 58 of the Transfer of Land Act 'to pass title' to the properties to the plaintiff. That proposition is wholly devoid of any merit. It reveals a fundamental misunderstanding of both s 58 and s 63 of the Transfer of Land Act (s 63 was also prayed in aid of the argument advanced by Mr McCagh) and of the provisions of div 3 of pt IV of the Transfer of Land Act relied on by the plaintiff.
In contrast to property seizure and delivery orders, property seizure and sale orders must be lodged for registration against the title to the properties to which they relate by operation of s 133 of the Transfer of Land Act. This distinction underlines the difference between these two forms of order and highlights the lack of merit in the submissions made by the defendants in relation to the operation of s 58 of the Transfer of Land Act.
The defendants' contentions in relation to s 58 of the Transfer of Land Act first found expression in proceedings commenced for judicial review of the 13 October 2022 orders. The judicial review proceedings (numbered CIV 1098 of 2025) were commenced in this court on 31 January 2025. Those proceedings were dismissed on 6 February 2025.
On 26 February 2025, Mr Millington in his capacity as the assistant bailiff, took possession of the properties. The procedure followed by Mr Millington was described in his affidavit sworn on 28 March 2025 and I accept his evidence in that respect. As mentioned earlier, there is a residential dwelling on at least one property. The street address of that property is 648 Arthur Road, Georgina. Mr Millington deposed that the residential dwelling was occupied by Ms Sophie McCagh and by another woman who was sharing the accommodation with her.
Ms McCagh is Mr McCagh's daughter. In a letter dated 7 March 2024,[1] the defendants' solicitor contended that Ms McCagh was a tenant of the property with rights under the Residential Tenancies Act 1987 (WA). In the course of submissions made at the hearing on 9 April 2025, that contention was withdrawn by the defendants' solicitor. In an affidavit sworn by Mr McCagh on 8 April 2025, he deposed that Ms McCagh has now vacated the property and was formerly in occupation of it under a family domestic arrangement. The defendants' solicitor confirmed that Ms McCagh has vacated the property and is now residing in a rental property in Geraldton. I note there remains some doubt as to the accuracy of that statement.[2]
[1] The reference to 2024 in the letter was a typographical error and should have instead referred to 2025.
[2] Affidavit of Ms Michelle Dean sworn on 7 April 2025.
The properties have been marketed, pursuant to a marketing campaign that commenced on 5 March 2025 and that campaign was due to end on 7 April 2025.
On 25 February 2025, Mr McCagh commenced proceedings against the Registrar of Titles in the Federal Court of Australia seeking orders restraining the Registrar from transferring title to the properties. Those proceedings came on for a directions hearing before Vandongen J of the Federal Court on 4 April 2025. The proceedings have been adjourned for a further directions hearing on 16 April 2025.
The grounds upon which that application was made are obscure. They are set out in an affidavit sworn by Mr McCagh on 25 February 2025. They purport to invoke the provisions of the National Credit Code and the Act by which the Code was brought into effect.[3] Even though the defendants' counsel sought to explain them to me, I confess I do not understand the grounds. There are, it seems to me, at least three problems with the defendants' reliance on the National Credit Code. First, the Code came into force on 1 July 2010 and the finance facilities the subject of the proceedings were made on dates between 16 July 2004 and June 2007. Second, the facilities were advanced for business purposes which, in and of itself, ordinarily takes the facilities outside the operation of the National Credit Code. Third, the defendants' apparent reliance on the National Credit Code is a matter that should have been raised in the defence of the present proceedings.
[3] National Consumer Credit Protection Act 2009 (Cth).
Although the proceedings in the Federal Court are not proceedings between the defendant and the plaintiff, and thus no Anshun estoppel arises, the three matters that I have alluded to are powerful indicia that the Federal Court proceedings were commenced for the purposes of undermining and frustrating the enforcement proceedings that are taking place in this court.
The plaintiff also contended that Mr McCagh has taken steps and conducted himself in a manner that interferes with their rights to possession. There was no serious attempt by the defendants to contend that Mr McCagh has not objected to or obstructed the plaintiff's attempts to obtain and retain possession of the properties and to effect a sale of them. The defendants' position was that the steps taken by Mr McCagh were steps that he was entitled to take, though his entitlement was founded in a mistaken belief as to the extent of his rights. The conduct relied upon by the plaintiff to establish such interference was as follows.
First, on 26 February 2025 as Mr Millington was in the process of taking possession of the properties, Mr McCagh had an exchange with Mr Millington which Mr Millington described as involving or amounting to threatening behaviour. Mr Millington deposed that Mr McCagh said that he was trespassing on Mr McCagh's property and he had 'better be gone by the time Mr McCagh got back or else'.[4] Mr McCagh disputes that he said the words 'or else' but says he did threaten to call the police. On Mr McCagh's own recollection of that conversation, this exchange amounted to an attempt to interfere with the plaintiff's process of obtaining possession.
[4] Affidavit of Tony Millington (in his capacity as process server) sworn on 28 March 2025.
Second, on 28 February 2025 the defendants' solicitor sent a text message to Ms Jacqiue Sinclair, an employee of FTI Consulting who was assisting in the process of taking possession and selling the properties. Among other remarks made in those text messages, the solicitor said the court orders of 13 October 2022 were ineffective until registration under s 58 of the Transfer of Land Act and that Mr McCagh had advised Mr Millington on three occasions that he was trespassing, that those warnings had been ignored and there were issues that had arisen in relation to criminal trespass, breaking and entering and harassment.[5] The tenor and content of that text message constitutes an attempt to interfere with and intimidate the plaintiff's agents from going about their lawful entitlement to obtain and retain possession of these properties with a view to selling them.
[5] Affidavit of Ian Francis sworn on 20 March 2025.
Third, on 28 February 2025 Mr McCagh refused to let a video producer, engaged by FTI Consulting to conduct a drone survey of the properties for the purposes of marketing them.[6]
[6] Affidavit of Ian Francis sworn on 20 March 2025.
Fourth, on 3 March 2025 it appeared that the gates to one of the properties had been locked with a chain and padlock.[7] The plaintiff contended that it may be inferred the padlock, lock and chain were put in place by Mr McCagh given the position that had previously been expressed on his behalf by his solicitor. That is an inference that I am prepared to draw. Indeed, the inference arises powerfully and is compelling. It is also consistent with the position taken by Mr McCagh in an email sent to the plaintiff's sales agents on 6 March 2025, in which Mr McCagh wrote:[8]
You are put on notice. I am still the proprietor of the land. No one is permitted to enter upon my land without my permission, and if anyone does, they will be removed and charged with trespass.
If I suffer any loss or damage by any action, I will sue you.
[7] Affidavit of Ian Francis sworn on 20 March 2025.
[8] Affidavit of Ian Francis sworn on 20 March 2025.
I turn now to the issue concerning the presence of livestock on the properties. It appears that Mr McCagh is the owner of sheep that are on the properties.[9]
[9] Affidavit of David McCagh sworn on 7 April 2025.
The plaintiff seeks orders in addition to those set out in the chamber summons and in that respect seeks leave to amend the chamber summons to include an application for an order that Mr McCagh notify FTI Consulting of an address where the livestock on the properties are to be delivered by 11 April 2025 and an order that Mr McCagh accept delivery of the livestock on a date to be arranged but on a date before the close of business on Thursday 17 April 2025.
I granted leave to the plaintiff to amend the chamber summons to seek orders in those terms.
Mr Zappia, the plaintiff's counsel, informed me from the bar table that there is no impediment of an animal welfare nature in relation to the movement of the livestock on 17 April 2025, that position is to be confirmed by affidavit evidence to be filed and served on 9 April 2025. It is appropriate that an order in the terms sought by the plaintiff be made to ensure the plaintiff is able to sell the properties with vacant possession.
The defendants have been aware of the plaintiff's attempts to obtain and retain possession of these properties for many months. The defendants' failure to remove the sheep rests entirely on their shoulders. That is especially so given the argument that somehow s 58 of the Transfer of Land Act operated to defeat or impede the plaintiff's right to possession is entirely misconceived.

Interference with the plaintiff's right to possession

As may be apparent from the observation made earlier in these reasons, I am satisfied the plaintiff has an unconditional right to possession of the properties. I am also satisfied that Mr David McCagh, whether as a result of advice he has received or otherwise, has taken steps which are calculated to delay, obstruct and impede the plaintiff's rights to possession of the land. In the light of the history of this matter, I am satisfied that unless restrained from doing so, such steps will continue in ever inventive and imaginative ways and with reliance on further legal arguments which may have, as the arguments raised to date have had, no legal merit.
I am satisfied that the attempts to obstruct the plaintiff's right to possession of the properties may include encouraging Ms Sophie McCagh to occupy (if she has, in truth, left occupation) 648 Arthur Road, Georgina[10] or if she has not vacated that property, to remain in occupation of 648 Arthur Road. In my judgment this is a significant and justified cause for concern on the plaintiff's part.
[10] Affidavit of Michelle Deane sworn on 7 April 2025.

The Federal Court proceedings

This court undoubtedly has the power to grant injunctions to protect the integrity of its processes once set in motion.[11] The power of this court to protect the integrity of its own processes extends to the power to make what are described as anti‑suit injunctions.[12]
[11] CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391.
[12] Insurance Commission of Western Australia v Woodings [2017] WASC 122 (Pritchard J). Her Honour's decision was overturned on appeal in Bell Group NV v Insurance Commission of WA [2017] WASCA 229 though, the Court of Appeal did not cast any doubt on the existence of this court's power to grant anti‑suit injunctions restraining a person from continuing proceedings in the Federal Court of Australia.
I am satisfied that the proceedings commenced by Mr McCagh in the Federal Court of Australia are a transparent and meritless attempt to frustrate the integrity of the processes of this court.
Mindful that this court must exercise caution when granting anti‑suit injunctive relief, I am satisfied that such relief is appropriate in the circumstances of this case. At the risk of repetition, there are two reasons for reaching that conclusion. First, the Federal Court proceedings are a transparent attempt to frustrate the processes of this court and second, on the material provided to this court, including the explanation provided by the defendants' counsel, the basis for the Federal Court proceedings have no legal merit whatsoever.
I am also satisfied that the unusual and extraordinary steps taken in this case by Mr McCagh including the application for judicial review and the commencement of Federal Court proceedings, neither of which had any legal merit, justify what may in other circumstances be considered relief of an extreme nature, that is, Mr McCagh should be restrained from commencing any proceedings concerning the subject matter of the proceedings in this court and in this action without first obtaining leave of a judge of this court. I note for the sake of clarity that such relief does not prevent Mr McCagh from commencing proceedings in this court, or in another court, provided the judge presiding over the matter is persuaded the proceedings have some underlying merit and involve something more than a collateral attack on the integrity of the processes of this court, exemplified by the two sets of proceedings to which I have referred.

For these reasons, I make the following orders
1.Sophie McCagh be joined as a fourth defendant in these proceedings pursuant to Order 18 rule 6(2) of the Rules of the Supreme Court 1971 (WA) (RSC).
2.The time for service of this summons on Sophie McCagh and the first and third defendants be abridged pursuant to Order 59 rule 5(2) of the RSC.
3.Sophie McCagh vacate the land comprised in Lot 1756 on Deposited Plan 247785, being the whole of Certificate of Title Volume 1856 Folio 682, with a street address of 648 Arthur Road, Georgina (648 Arthur Road), within 3 days of the date of this order and be restrained from making any attempt to re‑enter 648 Arthur Road.
4.There be a Property (Seizure and Delivery) Order made in the terms of the Form 6 attached as Annexure A to the plaintiff's Amended Chamber Summons dated 9 April 2025 in respect of 648 Arthur Road.
5.The first and third defendant, David McCagh, whether by himself, his employees, his agents or otherwise be restrained until further order from:
(a)accessing or entering onto the Properties (as defined by order 6 below) other than with the:
(i)written consent and express written authorisation of the plaintiff, given by its employees or agents or given by any person who purchases the Properties from the plaintiff and becomes its registered owner (New Registered Owner); and then
(ii)only under the direct supervision of either the plaintiff (by its employees or agents) or after the settlement of the sale of the Properties, any New Registered Owner; and
(b)engaging in any conduct or taking any steps, personally or by others, to obstruct, disturb or interfere with:
(i)the plaintiff's right to possession of the Properties; and/or
(ii)the sale and marketing of the Properties;
(c)continuing the proceeding WAD 54/2025 in the Federal Court of Australia commenced against the Registrar of Titles; and
(d)without leave of a judge of this Court, commencing any claim concerning the subject matter of these proceedings and the orders of the Honourable Justice Tottle made 13 October 2022 (as amended on 7 August 2024), including their enforcement, in any Court other than the Supreme Court of Western Australia.
6.For the purposes of order 5 above, the Properties are:
(a)648 Arthur Road, Georgina, WA 6532 being:
(i)Lot 1756 on Deposited Plan 247785, being the whole of Certificate of Title Volume 1856 Folio 682 and known as 648 Arthur Road, Georgina;
(ii)Lot 1757 on Deposited Plan 246785, being the whole of Certificate of Title Volume 1856 Folio 684;
(iii)Lot 1391 on Deposited Plan 231869, being the whole of Certificate of Title Volume 1856 Folio 683; and
(iv)Lot 2133 on Deposited Plan 250913, being the whole of Certificate of Title Volume 1206 Folio 284;
(b)650 Arthur Road, Georgina, WA 6532 being:
(i)Lot 955 on Deposited Plan 246936, being the whole of Certificate of Title Volume 1863 Folio 494 and known as 650 Arthur Road, Georgina;
(ii)Lot 6476 on Deposited Plan 254718, being the whole of Certificate of Title Volume 1242 Folio 472;
(iii)Lot 1746 on Deposited Plan 246933, being the whole of Certificate of Title Volume 1702 Folio 360;
(iv)Lot 1859 on Deposited Plan 248681, being the whole of Certificate of Title Volume 1003 Folio 646; and
(v)Lot 1858 on Deposited Plan 248674, being the whole of Certificate of Title Volume 1003 Folio 645;
(c)681 Arthur Road, Georgina, WA 6532 being Lot 1009 on Deposited Plan 231869, being the whole of Certificate of Title Volume 1856 Folio 679;
(d)Lot 1015 on Deposited Plan 232622, being the whole of Certificate of Title Volume 1856 Folio 681;
(e)1241 McCartney Road, Georgina, WA 6532 being:
(i)Lot 1804 on Deposited Plan 246934, being the whole of Certificate of Title Volume 1206 Folio 283 and known as 1241 McCartney Road, Georgina;
(ii)Lot 934 on Deposited Plan 247687, being the whole of Certificate of Title Volume 1856 Folio 680;
(iii)Lot 6858 on Deposited Plan 248669, being part of Certificate of Title Volume 1071 Folio 175;
(iv)Lot 1944 on Deposited Plan 231869, being part of Certificate of Title Volume 1071 Folio 175; and
(v)Lot 2326 on Deposited Plan 247784, being part of Certificate of Title Volume 1071 Folio 175; and
(f)1986 Allanooka Springs Road, Allanooka, WA 6532, being Lots M464 and M465 on Plan 2946, being the whole of Certificate of Title Volume 90 Folio 163A, known as 1986 Allanooka Springs Road, Allanooka.
7.By 5.00 pm on 11 April 2025, David McCagh must notify FTI Consulting, the agents for the plaintiff as mortgagee in possession, an address where the livestock on the Properties are to be delivered.
8.David McCagh must accept delivery of the livestock on the Properties at the address notified in accordance with order 7 above at a time and date between 9.00 am and 5.00 pm Monday to Friday notified by FTI Consulting, the agents for the plaintiff as the mortgagee in possession. Delivery is to occur by 5.00 pm on 17 April 2025.
9.There be liberty to apply.
10.The plaintiff's costs be paid by David McCagh.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to the Honourable Justice Tottle
24 APRIL 2025