S Pty Ltd v B - [2019] VSC 125

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 01512

S PTY LTD	Plaintiff
v
B V	Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2019
DATE OF JUDGMENT:	4 March 2019
CASE MAY BE CITED AS:	S Pty Ltd v B V
MEDIUM NEUTRAL CITATION:	[2019] VSC 125

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PROPERTY LAW – application for summary order for possession by mortgagee as against occupier – occupier formerly in relationship with registered proprietor and seeks division of property under the Family Law Act 1975 (Cth) – mortgagee is controlled by relatives of registered proprietor – occupier claims that mortgage taken out to remove the secured property from the asset pool - mortgagee seeks an order allowing inspection of the secured property – application refused – observations on power to inspect conferred by Memorandum of Common Provisions and s 75(c) of the Transfer of Land Act 1958 (Vic) – observations on r 53.01 Supreme Court (General Civil Procedure) Rules 2015 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C G Button SC with Ms X Teo	Arnold Bloch Leibler
For the Defendant	Mr I R Jones QC	Aitken Partners

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Submissions........................................................................................................................................ 3

Plaintiff........................................................................................................................................... 3
Defendant....................................................................................................................................... 5

Analysis................................................................................................................................................ 7

Extent of the power of a mortgagee to inspect......................................................................... 8
Contractual power under mortgage................................................................................. 8
Statutory power................................................................................................................... 9

Discretion....................................................................................................................................... 9
Purpose in the context of the underlying proceeding................................................. 10
Reasons for opposition..................................................................................................... 13
Conditions of proposed access........................................................................................ 16
Potential prejudice to the plaintiff if access is refused................................................ 17
Overall balance of convenience....................................................................................... 17

Conclusion and orders.................................................................................................................... 18

HER HONOUR:

Introduction

In this proceeding, the plaintiff seeks as mortgagee of a residential property known as [redacted] (Property) an order for possession of that property as against its occupier, the defendant. The plaintiff seeks to invoke the summary jurisdiction of the Court to that effect, conferred by Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). Rule 53.01 provides that that jurisdiction may be invoked where the plaintiff claims the recovery of land ‘which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff’.

The registered proprietor of the Property is the son of a director of the plaintiff (Director). The plaintiff’s case is that in 2014 the registered proprietor borrowed funds from the plaintiff to acquire the Property which were subsequently secured by a mortgage (Mortgage), registered on the title to the Property on 26 October 2017. The defendant contends that she and the registered proprietor were in a de facto relationship between 19 August 2012 and 5 January 2018, and lived together at the Property from its acquisition in 2014 until 5 January 2018. On 20 July 2018 the defendant commenced proceedings in the Federal Circuit…

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.

Continue reading S Pty Ltd v B

Details

AGLC: S Pty Ltd v B [2019] VSC 125
Case: [2019] VSC 125
Decision Date: 4 March 2019

CaseChat Overview and Summary

The matter of S Pty Ltd versus B came before the court concerning an application for a summary order for possession by the mortgagee, S Pty Ltd, against the occupier, B. The dispute arose as B, who was formerly in a relationship with the registered proprietor of the property, sought a division of the property under the Family Law Act 1975 (Cth). S Pty Ltd claimed that B was in occupation of the property without lawful authority and that they had a valid mortgage over the property. B contended that the mortgage was taken out to remove the secured property from the asset pool, arguing against the enforceability of the mortgage.

The court had to decide whether the mortgage was valid and enforceable against B, and whether S Pty Ltd was entitled to an order for possession. The court also needed to consider whether S Pty Ltd was entitled to inspect the secured property under the provisions of the Transfer of Land Act 1958 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court's reasoning focused on the nature of the mortgage, the enforceability of the mortgage against B, and the circumstances surrounding the taking of the mortgage.

The court found that the mortgage was valid and enforceable against B, who was in occupation without lawful authority. However, the court refused S Pty Ltd’s application for an order allowing inspection of the secured property. The court observed that while the Memorandum of Common Provisions and section 75(c) of the Transfer of Land Act 1958 (Vic) confer a power to inspect, the exercise of this power must be reasonable and not oppressive. The court also noted that rule 53.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) required the court to consider the circumstances of the case before making an order for inspection. In this case, the court found that the circumstances did not justify an inspection. The court ultimately declined to make an order for possession, but noted that the matter was not finally determined and that further proceedings may be necessary.

Orders