Steve Phillips v Southage Pty Ltd

[2014] HCASL 62

STEVE PHILLIPS

v

SOUTHAGE PTY LTD

[2014] HCASL 62
M100/2013
M101/2013

1. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Victoria, refusing the applicant extensions of time for leave to appeal against orders made by the Supreme Court of Victoria in two separate proceedings:  the first about four caveats lodged over land described in Certificate of Title Vol 8215 Folio 206 ("the Property"), and the second about possession of the Property.

2. The applicant and his brother inherited the Property and, in 1996, sold it to Beijing Garden Resort Pty Ltd ("Beijing Garden").  Beijing Garden was the trustee of a family trust of which the applicant's children were specified beneficiaries.  The applicant was a general beneficiary under the trust.  He was also a director of Beijing Garden until June 2006.  On 28 August 2006, the applicant was declared bankrupt.

3. In September 2006, Beijing Garden granted a mortgage over the Property.  In May 2010, it granted a second mortgage in favour of the respondent to secure a loan of $150,000.  Beijing Garden defaulted on the loan.  On 30 May 2010, the Supreme Court (Mukhtar AsJ) made orders by consent that Beijing Garden pay the respondent $189,445.14 by 2 July 2012.  After Beijing Garden failed to pay, the respondent obtained a warrant for possession of the Property.  Following an unsuccessful application brought by the applicant in the Victorian Civil and Administrative Tribunal, the respondent entered into possession on 22 November 2012.

4. Between default by Beijing Garden and the date the respondent took possession, four caveats were lodged over the Property.  On 6 May 2013, Vickery J ordered the removal of the caveats, finding that none of the claims asserted supported a caveatable interest in the Property.  On 10 May 2013, Hargrave J made orders requiring the applicant and his agents to leave the Property, not to re-enter and not to otherwise interfere with the respondent's right to possession.  The Court of Appeal (Hansen and Tate JJA) refused the applicant extensions of time for leave to appeal against the orders made by Vickery and Hargrave JJ.

5. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

6. There is no reason to doubt the correctness of the Court of Appeal's refusal to allow the applicant extensions of time.  An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  There is no occasion to consider the applicant's application for a stay of the costs orders made in the Supreme Court.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
2 April 2014 S.M. Crennan