Sablebrook Pty Ltd v Credit Union Australia Ltd - [2008] QSC 242

SUPREME COURT OF QUEENSLAND

CITATION:

Sablebrook P/L v Credit Union Australia Ltd [2008] QSC 242

PARTIES:

SABLEBROOK PTY LTD as trustee for the HERVEY BAY UNIT TRUST (ACN 010 507 329)

(plaintiff)

v

CREDIT UNION AUSTRALIA LIMITED
(defendant)

FILE NO/S:

BS No 9912 of 2005

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8-10, 19 September 2008

JUDGE:

Applegarth J

ORDER:

Judgment for the plaintiff in the amount of $65,120

CATCHWORDS:

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – MODE OF EXERCISE OF POWER – PRICE – where defendant exercised power of sale as mortgagee over land owned by plaintiff – where s 85 of the Property Law Act 1974 requires a mortgagee to take reasonable care to ensure a property is sold at market value – where the land was sold without putting it to the market by advertising or listing with local agents – where current valuation was not obtained at time of sale taking account of market movements – whether defendant breached statutory duty

REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – COMPARABLE SALES – SALES OF COMPARABLE LAND – RISE AND FALL OF MARKET – expert opinion on market value – where valuation depended on sales evidence of comparable land – where defendant relied on a valuation obtained four and a half months prior to sale – where evidence indicated an increase in market value – where land value was discounted to take into account a dispute over access to a swimming pool and risk of litigation – whether the land was sold at market value – whether plaintiff suffered loss as a result of defendants breach of duty

Property Law Act 1974, s 85

Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575, applied
Commercial and General Acceptance Ltd v Nixon (1982) 152 CLR 491, considered
The Commonwealth of Australia v Arklay (1952) 87 CLR 159, considered
Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299, considered
Emerson v Custom Credit Corporation Ltd [1994] 1 Qd R 516, considered
Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309, considered
Nixon v Commercial & General Acceptance Ltd (Unreported, Supreme Court of Queensland, No 343 of 1970), applied
Nixon v Commercial & General Insurance Ltd [1980] Qd R 153, cited
Pendleburyv Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, cited
Sewell v Agriculture Bank of Western Australia (1930) 44 CLR 104, distinguished
Spencer v The Commonwealth (1907) 5 CLR 418, applied

Stockl v Rigura Pty Ltd [2004] NSWCA 73, considered

COUNSEL:

R J Anderson for the plaintiff
R I Cameron for the defendant

SOLICITORS:

Cleary Hoare Solicitors for the plaintiff
Bain Gasteen Lawyers for the defendant

the actionThe issues in

In April 2003 the defendant (“CUA”) exercised its…

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.

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Details

Case: [2008] QSC 242
Decision Date: 7 October 2008

CaseChat Overview and Summary

The case of Sablebrook Pty Ltd v Credit Union Australia Ltd involved a dispute over the sale of land under a mortgagee's power of sale. The plaintiff, Sablebrook Pty Ltd, was the owner of the land, and the defendant, Credit Union Australia Ltd, was the mortgagee. The issue before the court was whether the defendant breached its statutory duty under section 85 of the Property Law Act 1974 to take reasonable care to ensure the property was sold at market value. The defendant had exercised the power of sale without advertising the land or obtaining a current valuation that took into account recent market movements.

The court had to determine if the sale price of the property reflected its market value at the time of the sale. The defendant had relied on a valuation that was obtained four and a half months prior to the sale, despite evidence indicating an increase in market value. Additionally, the court considered whether the discount applied to the land's value to account for a dispute over access to a swimming pool and the risk of litigation was appropriate. The plaintiff argued that the sale did not reflect the true market value, and it suffered a loss as a result of the defendant's breach of duty.

In reaching its decision, the court found that the defendant did not take reasonable care to ensure the land was sold at market value. The court held that the sale price did not reflect the market value due to the outdated valuation and the failure to advertise the property. The court awarded damages to the plaintiff in the amount of $65,120, representing the loss suffered due to the defendant's breach of its statutory duty. This judgment underscores the importance of adhering to statutory requirements when exercising a mortgagee's power of sale.

Orders

Orders of the court

Judgment for the plaintiff in the amount of $65,120

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sablebrook P/L v Credit Union Australia Ltd [2008] QSC 242
PARTIES:	SABLEBROOK PTY LTD as trustee for the HERVEY BAY UNIT TRUST (ACN 010 507 329) (plaintiff) v CREDIT UNION AUSTRALIA LIMITED (defendant)
FILE NO/S:	BS No 9912 of 2005
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	7 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	8-10, 19 September 2008
JUDGE:	Applegarth J
ORDER:	Judgment for the plaintiff in the amount of $65,120
CATCHWORDS:	MORTGAGES – MORTGAGES AND CHARGES GENERALLY – REMEDIES OF THE MORTGAGEE – SALE UNDER POWER – MODE OF EXERCISE OF POWER – PRICE – where defendant exercised power of sale as mortgagee over land owned by plaintiff – where s 85 of the Property Law Act 1974 requires a mortgagee to take reasonable care to ensure a property is sold at market value – where the land was sold without putting it to the market by advertising or listing with local agents – where current valuation was not obtained at time of sale taking account of market movements – whether defendant breached statutory duty REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – COMPARABLE SALES – SALES OF COMPARABLE LAND – RISE AND FALL OF MARKET – expert opinion on market value – where valuation depended on sales evidence of comparable land – where defendant relied on a valuation obtained four and a half months prior to sale – where evidence indicated an increase in market value – where land value was discounted to take into account a dispute over access to a swimming pool and risk of litigation – whether the land was sold at market value – whether plaintiff suffered loss as a result of defendants breach of duty Property Law Act 1974, s 85 Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575, applied Commercial and General Acceptance Ltd v Nixon (1982) 152 CLR 491, considered The Commonwealth of Australia v Arklay (1952) 87 CLR 159, considered Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299, considered Emerson v Custom Credit Corporation Ltd [1994] 1 Qd R 516, considered Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VR 309, considered Nixon v Commercial & General Acceptance Ltd (Unreported, Supreme Court of Queensland, No 343 of 1970), applied Nixon v Commercial & General Insurance Ltd [1980] Qd R 153, cited Pendleburyv Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, cited Sewell v Agriculture Bank of Western Australia (1930) 44 CLR 104, distinguished Spencer v The Commonwealth (1907) 5 CLR 418, applied Stockl v Rigura Pty Ltd [2004] NSWCA 73, considered
COUNSEL:	R J Anderson for the plaintiff R I Cameron for the defendant
SOLICITORS:	Cleary Hoare Solicitors for the plaintiff Bain Gasteen Lawyers for the defendant