Stirling v Russo - [2011] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STIRLING & ORS v RUSSO
[2011] SASC 58
Reasons of Judge Lunn a Master of the Supreme Court
15 April 2011
REAL PROPERTY
Action under Part 17 Real Property Act 1886 by second mortgagee for order for possession - possession order made on 16 June 2006 - undertaking by plaintiffs not to enforce it - applications by defendant to set it aside and by plaintiffs to be released from their undertaking - uncertainty whether any valid s 55A Law of Property Act 1936 notice given to defendant before action commenced and proper amount for it dependent on result of an account still being taken in other proceedings - defendant now bankrupt - locus standi as occupant but not determined whether he could have order set aside - held reasonably arguable grounds to set aside the order - held s 55A(1) notice served by plaintiffs after action commenced could not satisfy the requirements of s 55A - dispensation under s 55A(2)(a) refused - plaintiffs released from undertaking - possession order stayed - application to set aside Order adjourned to await joinder of trustees in bankruptcy of defendant.

STIRLING & ORS v RUSSO
[2011] SASC 58
JUDGE LUNN:
Reasons on the plaintiffs’ application to be released from an undertaking and the defendant’s application to set aside a possession order (FDN50)

The defendant[1] is the registered proprietor of the property known as 189 The Esplanade, Aldinga Beach (“the property”).
[1] This term is used in these reasons to describe Angelo Peter Russo, but it should be noted that in the related action SCCIV-04-1125 he is the plaintiff.
Background
On 16 March 2001 the defendant mortgaged the property to the plaintiffs.[2] The mortgage[3] was to secure an advance of $80,000 for a term of six months (“the first loan”). On about 6 June 2002 the plaintiffs purported to make a second loan secured by the mortgage over the property for $70,000 repayable in three months (“the second loan”).
[2] In these reasons “the plaintiffs” refer to the original plaintiffs Eric and Elizabeth Buck, but they are now both deceased and their executors are the current plaintiffs.
[3] It was a second mortgage to a first mortgage previously given to the Hong Kong Bank of Australia Ltd, now known as HSBC Bank Australia Ltd (“HSBC”).
On 16 March 2004 the solicitors for the plaintiffs served a Notice of Demand (“the Demand”) on the defendant requiring repayment of $159,704.18 within seven days of its service. On 11 June 2004 the plaintiffs instituted this action[4] against the defendant under Part 17 of the Real Property Act 1886 seeking an order for possession of the property. The summons was supported by an affidavit of Annette Conn sworn on 11 June 2004. She was a finance broker acting for the plaintiffs. On 12 July 2004 the defendant filed an affidavit denying his liability for both the first and the second loans.
[4] There had been an earlier action, SCCIV-03-857 between the…

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.

Continue reading Stirling v Russo

Details

AGLC: Stirling v Russo [2011] SASC 58
Case: [2011] SASC 58
Decision Date: 15 April 2011

CaseChat Overview and Summary

Stirling v Russo concerns a dispute between Angelo Peter Russo, the registered proprietor of a property at 189 The Esplanade, Aldinga Beach, and the plaintiffs, Eric and Elizabeth Buck, and their executors. The dispute revolves around a mortgage over the property, which was used to secure two loans: an initial $80,000 loan made on 16 March 2001, and a subsequent $70,000 loan made on 6 June 2002. The plaintiffs sought possession of the property under Part 17 of the Real Property Act 1886, arguing that Russo was liable for repayment of the loans. Russo denied liability for both loans and contested the plaintiffs’ claim for possession. The case was heard by the court after a contested hearing and the court was required to determine whether there were triable issues that precluded a summary possession order. Additionally, the court had to consider whether the issues raised in a related action, SCCIV-04-1125, had been resolved against Russo.

The court considered the evidence and submissions from both parties and determined that there were indeed triable issues that precluded a summary possession order. The court found that the issues in the related action, SCCIV-04-1125, had not been conclusively resolved against Russo and that the matters were still pending. The court held that the plaintiffs’ application for a summary possession order should be refused, and the matter should be put on the Delay List. The court also reserved the question of costs and directed that this action be referred to the trial Judge in SCCIV-04-1125. The court found that the defendant's denial of liability for both loans was a triable issue, and that the plaintiffs' claim for possession was premature.

The court's decision was based on its finding that there were triable issues that precluded a summary possession order. The court held that the matters were still pending in the related action, SCCIV-04-1125, and that the issues had not been conclusively resolved against Russo. The court also found that the plaintiffs' application for a summary possession order was premature, as the issues in the related action were still pending. The court's decision was based on a careful consideration of the evidence and submissions from both parties, and its finding that the plaintiffs' claim for possession was not supported by the evidence.

In conclusion, the court refused the plaintiffs' application for a summary possession order and put the matter on the Delay List. The court also directed that this action be referred to the trial Judge in SCCIV-04-1125, and reserved the question of costs. The court found that the defendant's denial of liability for both loans was a triable issue, and that the plaintiffs' claim for possession was premature. The decision of the court was based on a careful consideration of the evidence and submissions from both parties, and its finding that the plaintiffs' claim for possession was not supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

The defendant[1] is the registered proprietor of the property known as 189 The Esplanade, Aldinga Beach (“the property”).[1] This term is used in these reasons to describe Angelo Peter Russo, but it should be noted that in the related action SCCIV-04-1125 he is the plaintiff.Background On 16 March 2001 the defendant mortgaged the property to the plaintiffs.[2] The mortgage[3] was to secure an advance of $80,000 for a term of six months (“the first loan”). On about 6 June 2002 the plaintiffs purported to make a second loan secured by the mortgage over the property for $70,000 repayable in three months (“the second loan”).[2] In these reasons “the plaintiffs” refer to the original plaintiffs Eric and Elizabeth Buck, but they are now both deceased and their executors are the current plaintiffs. [3] It was a second mortgage to a first mortgage previously given to the Hong Kong Bank of Australia Ltd, now known as HSBC Bank Australia Ltd (“HSBC”). On 16 March 2004 the solicitors for the plaintiffs served a Notice of Demand (“the Demand”) on the defendant requiring repayment of $159,704.18 within seven days of its service. On 11 June 2004 the plaintiffs instituted this action[4] against the defendant under Part 17 of the Real Property Act 1886 seeking an order for possession of the property. The summons was supported by an affidavit of Annette Conn sworn on 11 June 2004. She was a finance broker acting for the plaintiffs. On 12 July 2004 the defendant filed an affidavit denying his liability for both the first and the second loans.[4] There had been an earlier action, SCCIV-03-857 between the parties for possession of the property, on which a possession order had been made on 8 October 2003, but that action had been settled by some arrangement between the parties and it is not relevant to the present applications. After a contested hearing on 12 August 2005, another Master delivered reasons, FDN10, on 22 August 2005 finding that there were triable issues and refusing the plaintiffs’ application for a summary possession order. He reserved the question of costs and put the matter into the Delay List. In the meantime, on 11 June 2004 the defendant had instituted action SCCIV-04-1125 in this Court against the plaintiffs and others, seeking to set aside the mortgage on the grounds that he was not liable to repay either the first or the second loans. It is not necessary here to go into the whole of the long and tortuous history of that action, which is still not finalised. On 10 November 2005 the plaintiffs took out an interlocutory application seeking orders that the defendant make payments under the mortgage pending the finalisation of action SCCIV-04-1125. That application was adjourned. At a hearing on 25 November 2005 the plaintiffs withdrew that application and I directed that this action be removed from the Delay List and be referred to the trial Judge in SCCIV-04-1125. For reasons which are not apparent from the Court file, this action was again before me on 16 June 2006.[5] The defendant, who was then acting in person, did not attend, although a friend of his informed the Court that he was ill. The plaintiffs orally applied for an order for possession in this action which I then made (“the possession Order”). On 7 June 2006 the Chief Justice had dismissed action SCCIV-04-1125 due to defaults of the defendant, although that order was later set aside on 10 August 2006. I presume I made the possession Order on the basis that the issues raised in SCCIV-04-1125 had been resolved against the defendant.[5] I suspect it occurred in conjunction with some interlocutory hearing in SCCIV-04-1125, as the practice was for the files in both actions to be before me on the many interlocutory hearings in SCCIV-04-1125.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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