Satchithanantham & Anor v. Cash King Pty. Limited; Satchithanantham v. King Mortgages Pty. Limited

[2007] NSWCA 133

New South Wales

Court of Appeal

CITATION:	Satchithanantham & Anor v. Cash King Pty. Limited; Satchithanantham v. King Mortgages Pty. Limited [2007] NSWCA 133
HEARING DATE(S):	4 June 2007
JUDGMENT OF:	Hodgson JA at 1
EX TEMPORE JUDGMENT DATE:	4 June 2007
DECISION:	Dismissed with costs the two notices of motion brought by King Mortgages Pty Limited and Cash King Pty Limited. ; Dismissed the two notices of motion brought by Mr Satchi and Mrs Satchi with no order as to costs.
CATCHWORDS:	PROCEDURE - Appeal - Appeal by non-party - Summary dismissal - Disposal of applications.
PARTIES:	Helamathosophy Ranjini Satchithanantham - 1st appellant Thambiappan Satchithanantham - 2nd appellant Cash King Pty. Limited - respondent King Mortgages Pty. Limited - respondent
FILE NUMBER(S):	CA 40334/07; 40335/07; 40336/07; 40337/07
COUNSEL:	Mr. Krishna (s) for 1st appellant Mr. Patel for 2nd appellant No appearance for Cash King Pty. Limited or King Mortgages Pty. Limited
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC12756/04; 13736/04
LOWER COURT JUDICIAL OFFICER:	Bell J
LOWER COURT DATE OF DECISION:	15 December 2006

CA 040334/07
CA 040335/07
CA 040336/07
CA 040337/07

HODGSON JA

Monday 4 June 2007

SATCHITHANANTHAM & ANOR. V. CASH KING PTY. LIMITED

SATCHITHANANTHAM & ANOR. V. KING MORTGAGES PTY. LIMITED

Judgment

1 HODGSON JA: I have before me four notices of motion and four separate appeal proceedings. They arise from one decision given by Bell J on 8 December 2006, with orders made on 15 December 2006, that decision being given in two proceedings, one brought by King Mortgages Pty Limited and the other brought by Cash King Pty Limited.

2 The defendant in each of those proceedings, who I will call Mrs Satchi, has brought two appeals, one in each proceeding. Her husband, Mr Satchi, has also brought an appeal in each proceeding. He was originally a party to both proceedings, but at some stage the proceedings were discontinued against him. However it appears that on 7 August 2006 he applied to be rejoined as a defendant, and that application was refused; and it seems that one matter Mr Satchi complains about is that his application to be rejoined as a defendant in those proceedings was refused.

3 The notices of motion I have before me are two notices of motion brought by the respondent in each appeal seeking to have all appeals summarily dismissed, in the case of Mrs Satchi because of an allegation that she did not authorise the bringing of her appeals, and in the case of Mr Satchi on the basis that he was not a party to the decisions below. In relation to Mr Satchi, further orders are sought to the effect that he be deemed a vexatious litigant, with associated relief. The other two notices of motion are brought by Mr Satchi and Mrs Satchi in the King Mortgages appeal, seeking a stay of the judgment in that appeal and other associated relief.

4 The matters were before Registrar Schell on 21 May 2007, and on that occasion, although the appearances for Mr and Mrs Satchi are not noted, I am told that Mr Satchi was present in person and Mrs Satchi was represented by a barrister, Mr Patel, and King Mortgages Pty Limited was represented by Mr Swart. On that occasion, the Registrar listed all four notices of motion for hearing on 4 June, that is today.

5 Today there is no appearance for King Mortgages or Cash King. I note that Mr Swart has on other occasions appeared for Cash King. Mr and Mrs Satchi are both present in court, and there is a barrister, Mr Patel, in court speaking on behalf of Mrs Satchi, and a solicitor, Mr Krishna, speaking on behalf of Mr Satchi. Both of them are in court only to assist them today, and although they have not put on notices of appearance, I have permitted both of them to assist the court on behalf of Mr Satchi and Mrs Satchi.

6 Since no-one is here on behalf of King Mortgages or Cash King to pursue those notices of motion, in my opinion it is appropriate simply to dismiss those notices of motion with costs.

7 Mr Patel tells me that Mrs Satchi did authorise the commencement of the appeals on her behalf. She has put on an affidavit to that effect, and she is present in court today, confirming that her appeals are brought with her authority.

8 So far as Mr Satchi is concerned, it seems to me that the appeal as it is presently constituted may be deficient; but if there are grounds for him to appeal against the order made on 7 August 2006 refusing his application to be rejoined as a party, then it may be that he can bring an appeal. Whether an amended notice of appeal seeking to challenge that order of 7 August would be allowed I cannot say; but it is certainly possible that such an amendment would be permitted, and if that happened it seems to me that his appeal could be properly constituted.

9 In any event, because there is no appearance for Cash King or King Mortgages, it is appropriate in my opinion to dismiss those notices of motion.

10 Coming to the notices of motion brought by Mr Satchi and Mrs Satchi, those notices of motion are brought only in the King Mortgages appeal. The decision of the primary judge in the King Mortgages case was to the effect that the registered mortgage of King Mortgages was not the mortgage under which money was advanced, and that there was no money actually owing under that registered mortgage; and that therefore King Mortgages was not entitled to possession of the property pursuant to that mortgage. The King Mortgages proceedings did not seek a judgment for the money due under the unregistered mortgage pursuant to which money was advanced, and it appears clear that no judgment for money was given. The only orders that were made in those proceedings were orders varying the terms of the mortgage by reducing the rate of interest and deciding that certain additional fees were not payable under that mortgage.

11 Accordingly, it seems clear to me that there is no order of this court that can be enforced at present against either Mr Satchi or Mrs Satchi under the mortgage from King Mortgages, which is an unregistered mortgage pursuant to which money was actually advanced.

12 As far as the Cash King proceedings are concerned, in those proceedings the primary judge did make an order varying the terms of the mortgage, but also found that that mortgage was a registered mortgage and made an order for possession of the property pursuant to that mortgage; and it seems that a writ of possession at some stage did issue pursuant to that order. However, Cash King provided payout calculations in relation to that mortgage, and I have before me a document dated 23 March 2007 stating the total amount due under that mortgage to be $23,470. I am told that that amount or perhaps a little more has been paid to Cash King, and for that reason the writ of possession was not executed.

13 Evidence provided by Mr Swart which is before the court claims that a further $949 is required before there can be a discharge of the mortgage or to cancel the writ of possession. At present I do not understand the basis on which Mr Swart can say that there is any more owing under the mortgage, having regard to the calculation that he provided on 23 March.

14 I am told that there is no present threat to execute the writ of possession under the Cash King mortgage. The material which I have outlined makes it clear in my opinion that the writ of possession in relation to the Cash King mortgage issued pursuant to the judgment of the primary judge on 15 December 2006 should not now be executed, and the question of whether any additional money has to be paid is a matter that could be determined at the hearing of the appeal.

15 So for those reasons, what I propose to do is simply to dismiss the two notices of motion brought by Cash King and King Mortgages with costs, and to dismiss the two notices of motion brought by Mr Satchi and Mrs Satchi with no order as to costs; and as I have made it clear, I hope, I am dismissing them because there is no order of the court that can presently be enforced by King Mortgages against them.

16 The orders I make are: I dismiss with costs the two notices of motion brought by King Mortgages Pty Limited and Cash King Pty Limited. I dismiss the two notices of motion brought by Mr Satchi and Mrs Satchi with no order as to costs.

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