Satchi and Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd
[2011] NSWSC 734
•14 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd [2011] NSWSC 734 Hearing dates: 11 July 2011, 14 July 2011 Decision date: 14 July 2011 Jurisdiction: Common Law Before: Schmidt J Decision: Thambiappah Satchithanantham be restrained, either by himself, his servants or agents, from lodging any caveat in respect of the title to the Property, either in his own name as caveator or the name of any other person or company or business name as caveator, including, but without limitation, in the name of Bramooth Satchithanantham and / or Hemalathasothy Ranjini Satchithanantham and / or Satchi and Satchi Australia Pty Ltd and / or "Satchi and Satchi" and / or "Satchi and Satchi Australia" " and / or "Singapore Stylemart Sydney" and / or "Stylemart Satchi Australia" as caveator(s).
Catchwords: PROCEDURE - notice of motion - order sought restraining the third plaintiff from lodging caveats on property - mortgagee in possession of property - section 74MA of the Real Property Act 1900 - order sought made Legislation Cited: Real Property Act 1900 Cases Cited: Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWSC 39
Bolitho v Permanent Custodians Ltd [2009] NSWSC 734
Hastie and Anor v National Australia Bank Ltd (Supreme Court of New South Wales, Powell J, 26 August 1988, unreported)
National Australia Bank v Satchithanantham [2010] NSWCA 244
Westpac Banking Corporation v Harris (Supreme Court of New South Wales, Handley JA, 24 May 1994, unreported)Category: Procedural and other rulings Parties: Satchi & Satchi Australia Pty Ltd (First Plaintiff)
Hemalatha Sothy Ranjini Satchithanantham (Second Plaintiff)
Thambiappah Satchithanantham (Third Plaintiff)
Bramooth Satchithanantham (Fourth Plaintiff)
Zeaiter Corporate Holdings Pty Ltd (First Defendant)
National Australia Bank Limited (Second Defendant)
Insolvency and Trustee Services Australia (Third Defendant)
Antony Zeaiter (Fourth Defendant)Representation: Counsel:
Ms N Bearup (Second Defendant)
Solicitors:
Mr T Satchithanantham (Third Plaintiff) (unrepresented)
Dibbs Barker (Second Defendant)
File Number(s): 2008/289772
Judgment
These proceedings were commenced by statement of claim filed in December 2010. Amongst other things, the relief there sought was a stay of the National Australia Bank Limited's ('NAB') actions in relation to property at Westmead, of which Mr Satchithanantham's wife is the registered proprietor.
On 30 March 2011 amongst other orders Fullerton J dismissed the statement of claim brought against the NAB, as an abuse of process.
By notice of motion filed in July 2011, the NAB sought various other orders. This judgment concerns an order pressed against the third plaintiff, Mr Thambiappah Satchithanantham, that:
"An order under section 74MA(2)(b) of the Real Property Act 1900 (NSW) ( RPA ) that Thambiappah Satchithanantham be restrained, either by himself, his servants or agents, from lodging any caveat in respect of the title to the Property, either in his own name as caveator or the name of any other person or company or business name as caveator, including, but without limitation, in the name of Bramooth Satchithanantham and / or Hemalathasothy Ranjini Satchithanantham and / or Satchi and Satchi Australia Pty Ltd and / or "Satchi and Satchi" and / or "Satchi and Satchi Australia" and / or "Singapore Stylemart Sydney" and / or "Stylemart Satchi Australia" as caveator(s)."
The NAB pressed this order in circumstances where there is a long history of litigation between the parties, which is ongoing, with some proceedings currently being pursued in the Court of Appeal.
The motion was supported by an affidavit sworn by Ms Pike, the NAB's solicitor, which outlined in some detail, aspects of that extensive history. Ms Pike was extensively cross-examined by Mr Satchithanantham, who himself swore an affidavit and tendered numerous documents, to support his opposition to the orders which the NAB pressed.
At the commencement of the hearing, I refused an adjournment application, in circumstances where Mr Satchithanantham made clear his intention during the adjournment, to lodge further caveats in respect of the property, notwithstanding the hearing of this application. I refused further adjournment applications made later during the course of the hearing, given Mr Satchithanantham's stated intentions in relation to the lodging of further caveats.
I also refused an application made orally during the course of the hearing and further pressed at the adjourned hearing, for an order staying the NAB's actions in relation to the sale of the property. As the NAB submitted, on the evidence it was evident that not only did Mr Satchithanantham have no standing to press that application, given the history of the litigation between the parties and the orders made by Fullerton J in these proceedings, even if he did have the necessary standing, justice could not permit the granting of such a stay.
It is convenient to refer to the Court of Appeal's judgment in National Australia Bank v Satchithanantham [2010] NSWCA 244, where relevant aspects of the history between the parties is outlined. Those proceedings concerned an appeal from a judgment give by McCallum J in February 2009, for possession of the property and $408,665.86 in respect of a mortgage debt owed by Mrs Satchithanantham. Mr Satchithanantham filed a number of notices of motion in the appeal proceedings, seeking a stay of execution of the orders. They all failed. The appeal itself failed, as did an application for leave to appeal to the High Court. Further applications to the Common Law Division of the Court for a stay were also made and also failed. Handley AJA, with whom Macfarlane JA and Sackville AJA agreed, observed:
"27 Since the High Court refused special leave on 23 April 2010 the respondents have made five unsuccessful applications to the Common Law Division and four unsuccessful applications to this Court.
28 In my judgment the nine unsuccessful applications made by the respondent since 23 April this year were vexatious and abuses of the process of the Court.
29 The history I have outlined establishes that the respondents have frequently instituted and conducted vexatious proceedings in this Court and in the Common Law Division.
30 The Bank has standing to apply for a restraining order against the respondents under the inherent jurisdiction of the Court and the power to make such an order has been enlivened. The Court has a discretion but no reason appears for it to be exercised in favour of the respondents, and there is every reason for exercising it in favour of the Bank."
The Court of Appeal made orders restraining Mr Satchithanantham from filing and serving any notice of motion and from making any oral application in those proceedings, either on his own behalf or on behalf of his wife, or his son, Bramooth Satchithanantham, without the leave of a Judge of the Court.
The Westmead property has been sold and the NAB has taken steps preparatory to the settlement of the sale, which it now seeks to complete. They include steps to have various caveats lodged by Mr Satchithanantham, on his own behalf and that of others, removed from the title. Various judgments in relation to caveats and Mr Satchithanantham's claimed interest in the property have been given (see, for example, Thambiappah Satchithanantham v National Australia Bank Ltd [2008] NSWSC 1097 ; Thambiappah Satchithanantham v National Australia Bank Ltd [2011] NSWSC 402; Thambiappah Satchithanantham v National Australia Bank Ltd (Unreported, 24 September 2010 ). Other caveats lodged have been removed by the NAB's use of the lapsing notice process. On the evidence, Mr Satchithanantham had also lodged a further caveat, but registration of that caveat was refused.
It is against that background that Mr Satchithanantham resists the NAB's application for orders restraining him from lodging further caveats in respect of the property.
There is no question of the Court's powers to make the orders sought under s 74MA of the Real Property Act 1900 (see Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWSC 39; Bolitho v Permanent Custodians Ltd [2009] NSWSC 734; Westpac Banking Corporation v Harris (Supreme Court of New South Wales, Handley JA, 24 May 1994, unreported); Hastie and Anor v National Australia Bank Ltd (Supreme Court of New South Wales, Powell J, 26 August 1988, unreported ).
The question of whether in the circumstances the power should be exercised, must in my view be resolved in the NAB's favour. In the face of the judgments to which I have referred, there can be no serious doubt that it is a mortgagee in possession entitled to exercise its power of sale. That Mr Satchithanantham is distressed about the circumstances, disagrees with the conclusions reached on evidence led in various proceedings, and that he is intent on pursuing his rights and those of his family members, may all be accepted. Nevertheless, his understanding that the NAB is not entitled to act in accordance with its rights under the mortgage, given the judgments made in its favour, cannot be accepted as correct, notwithstanding Mr Satchithanantham's view of the operation of the Uniform Civil Procedure Rules 2005, or the laws relating to the imposition and removal of caveats.
It is unhelpful to explain in any detail Mr Satchithanantham's view of the improper basis upon which the NAB and officers of the Land Titles Office have acted. Given, however, his repeatedly stated intention to lodge further caveats, as a part of his ongoing campaign, designed to frustrate the completion of the NAB's sale of the property, that justice demands that the order pressed by the NAB must be granted, may in my view not be doubted. In the face of the judgments to which I have referred, Mr Satchithanantham's campaign may not be countenanced.
On the evidence Mr Satchithanantham was at one time the registered proprietor of the property. That position came to an end many years ago, at a time when he was made a bankrupt and the property came into the hands of his wife. She is now the registered proprietor of the property. His many attempts to establish that he or his son have a relevant ongoing interest in the property have failed. He has had every reasonable opportunity to establish his case. In the circumstances, I am well satisfied that justice demands that the orders sought be made.
Orders
For the reasons given, I order that:
Thambiappah Satchithanantham be restrained, either by himself, his servants or agents, from lodging any caveat in respect of the title to the Property, either in his own name as caveator or the name of any other person or company or business name as caveator, including, but without limitation, in the name of Bramooth Satchithanantham and / or Hemalathasothy Ranjini Satchithanantham and / or Satchi and Satchi Australia Pty Ltd and / or "Satchi and Satchi" and / or "Satchi and Satchi Australia" " and / or "Singapore Stylemart Sydney" and / or "Stylemart Satchi Australia" as caveator(s).
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Decision last updated: 15 July 2011
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