Satchithanantham v National Australia Bank - [2010] NSWSC 1338

CITATION: Satchithanantham v National Australia Bank [2010] NSWSC 1338

HEARING DATE(S): 15 November 2010

JUDGMENT DATE :
15 November 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 15 November 2010

DECISION: Order that the notice of motion be dismissed. Exhibits may be returned after 28 days.

CATCHWORDS: REAL PROPERTY – application to extend caveat – application made on day of expiry of caveat – where registered mortgagee exercised power of sale – where caveator undischarged bankrupt – interest of registered mortgagee prevails over caveator’s interest – application to restrain completion of sale by mortgagee – no standing or basis to restrain completion – abuse of process – repeated application for interlocutory relief where no material change in circumstances or fresh evidence

CATEGORY: Procedural and other rulings

CASES CITED: Satchithanantham v NAB [2008] NSWSC 1097
Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86
Malouf v Donohue [2001] NSWSC 335

TEXTS CITED: ELG Tyler, PW Young, C Croft, Fisher and Lightwood’s Law of Mortgage, 2nd Aust ed (2005) LexisNexis Butterworths

PARTIES: Plaintiff: Thambiappah Satchithanantham
Defendant: National Australia Bank

FILE NUMBER(S): SC 2007/258225

COUNSEL: Plaintiff: in person
Defendant: ex parte

SOLICITORS: Plaintiff: n/a
Defendant: Makinson & d'Apice Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE’S LIST

WHITE J

Monday, 15 November 2010

2007/258225 Thambiappah Satchithanantham v National Australia Bank

JUDGMENT

1 HIS HONOUR: Late this afternoon, Mr Thambiappah Satchithanantham has filed a notice of motion in which he has named as first applicant, Bramooth Satchithanantham, whom I understand to be his son, and as second applicant, Hemalathasothyranjini Satchithanantham, his wife. The respondents to the notice of motion are the National Australia Bank and a Ms Jane Hodgeman named as solicitor. Mr Satchithanantham appears for himself and he also seeks to appear for his wife and son.

2 I have refused that leave having regard to orders made in other proceedings and in the Court of Appeal in which Mr Satchithanantham has been restrained from filing and serving any notice of motion, or from making any oral application, on his own behalf or on behalf of his wife or son without the leave of a judge.

3 The relief sought includes an order extending the operation of two caveats which, I am told, were due to lapse today, and an order restraining completion of a sale which it appears is due to be completed shortly. This is a sale entered into by the National Australia Bank as registered mortgagee of the property on about 25 September 2010. On 24 September 2010 Rein J was asked to restrain the National Australia Bank from entering into any contract for sale of the subject property. His Honour refused that application. His Honour noted that the application before him was brought in proceedings number 2007/258225 (which his Honour called the 2007 proceedings, as will I). His Honour recorded that in a judgment (Satchithanantham v NAB [2008] NSWSC 1097) I rejected an appeal…

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: [2010] NSWSC 1338
Decision Date: 15 November 2010

CaseChat Overview and Summary

The case of Satchithanantham v National Australia Bank involved a dispute over a property, where the caveator sought an extension of a caveat which had lapsed. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether the application for an extension of the caveat, which was made on the day it expired, should be granted. A secondary issue was whether the court should restrain the registered mortgagee from completing the sale of the property. The caveator, Satchithanantham, argued that the bank’s power of sale was invalid as he remained the beneficial owner of the property. The bank contended that as the registered mortgagee, its interest in the property prevailed over that of the caveator, particularly given that the caveator was an undischarged bankrupt.

The court found that the bank's power of sale was valid and enforceable, as the bank’s interest as the registered mortgagee took precedence over the caveator’s interest. The court also held that the application to extend the caveat was an abuse of process, as it was made on the very day the caveat was set to expire and there had been no material change in circumstances or new evidence presented. The court further ruled that the caveator had no standing to seek an order to restrain the sale, as the bank’s interest as the registered mortgagee was superior. The repeated applications for interlocutory relief were seen as an abuse of the court process, with no valid basis or new evidence to warrant such relief.

The court dismissed the application for an extension of the caveat and the application to restrain the sale. The bank was permitted to proceed with the sale of the property, as it was the rightful owner under the registered mortgage. The court warned the caveator against making further applications for interlocutory relief without a material change in circumstances or new evidence, to avoid further abuse of the court process.

Orders