Symbion Pty Ltd v Sellers
[2023] VSC 441
•18 July 2023 (Written reasons published 28 July 2023)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2022 05403
BETWEEN:
| SYMBION PTY LTD (ACN 000 875 034) | Plaintiff |
| v | |
| KENNETH STEWART SELLERS & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Croft J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 July 2023 |
DATE OF JUDGMENT: | 18 July 2023 (Written reasons published 28 July 2023) |
CASE MAY BE CITED AS: | Symbion Pty Ltd v Sellers |
MEDIUM NEUTRAL CITATION: | [2023] VSC 441 |
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MORTGAGES — Equitable mortgage or charge — Unregistered mortgage of Torrens system land — Order for sale — Discretion of the Court — King Investment Solutions v Hussain [2005] NSWSC 1076 — Hycenko v VHY Enterprises Pty Ltd [2020] VSC 834 — Property Law Act 1958 ss 86, 91, 101 — Transfer of Land Act 1958 ss 3(1), 103(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DP Lloyd | Hunt & Hunt Lawyers |
| For the First, Second and Third Defendants | No appearance | |
| For the Fourth Defendant | Ms P Barker | Nevile & Co. |
HIS HONOUR:
Introduction
By Amended Originating Motion dated 24 May 2023 the plaintiff, Symbion Pty Ltd (ACN 000 875 034) sought relief by way of judicial sale of s 91 of the Property Law Act 1958 (‘the PLA’). The relief or remedy sought is set out in the Amended Originating Motion as follows:
(1)A declaration that pursuant to an instrument of mortgage dated 13 November 2015 (Mortgage) the plaintiff has an equitable mortgage or alternatively an equitable charge over the land described in certificate of title volume 08865 folio 706 (Land) together with all improvements being the property situated at and known as Unit 3, 44 Deepdene Road, Deepdene (Property).
(2)A declaration that the amount owed to the plaintiff which is secured by the Mortgage is $1,570,157.73 plus additional late payment fees at the rate of 0.045% per day from 30 November 2016 (Secured Monies), which, as at 30 June 2022, totalled $3,009,440.42 comprising the principal amount of $1,570,157.73 plus additional late payment fees of $1,439,283.09.
(3)An order pursuant to section 91 of the Property Law Act 1958; alternatively pursuant to order 55 of the Supreme Court (General Civil Procedure) Rules 2015; alternatively pursuant to the inherent jurisdiction of the Court; that the Property be sold by the plaintiff and the sale proceeds be applied in the following manner:
(a)first, in payment of all costs, charges and expenses associated with the sale of the Property;
(b)secondly, in payment of the Secured Monies; and
(c)thirdly, by payment into Court of the residue (if any).
(4)Alternatively to paragraph 3, an order pursuant to section 133(9) of the Bankruptcy Act 1966 that title to the Land vest in the plaintiff.
(5)An order that the Prothonotary of the Court be authorised to take all necessary steps to effect the vesting of title to the Land in the plaintiff pursuant to section 133(9) of the Bankruptcy Act 1966.
(6)An order that caveat no. AT524561Y recorded on the title to the Land by the third defendant on 18 August 2020 be removed on completion of the sale of the Property by the plaintiff or upon the making of the vesting order sought in paragraph 4.
(7)A declaration that the plaintiff is entitled to possession of the Property pursuant to the Mortgage.
(8)An order that the fourth defendant deliver up possession of the Property to the plaintiff.
(9)As against the fourth defendant, damages for trespass.
(10)Costs.
(11)Such further or other orders as the Court may consider appropriate.
At the hearing of this matter, the plaintiff did not press any claim against the fourth defendant by way of damages for trespass.
At the conclusion of the hearing of this matter, orders were made as sought by the plaintiff, for the reasons set out in the plaintiff’s Outline of Submissions (18 July 2023) together with the further submissions by the plaintiff at the hearing of the matter. Having regard to the matters raised, the parties were informed that written reasons would be provided in due course.
Background
The plaintiff is a national wholesaler of healthcare products and services, which it supplies to pharmacies and other businesses.
One of its customers was Box Hill Pharmacy Pty Ltd (‘BHP’) of whom John Albert White (‘White’) was a director. In November 2007, BHP made a credit application to the plaintiff, which the plaintiff accepted, and a written credit agreement was entered into between the plaintiff and BHP. In December 2007, a similar credit agreement, also in writing, was entered into between the plaintiff and Knox Pharmore Pharmacy Pty Ltd (‘KPP’) of which White was also a director.
As at 30 September 2015, BHP and KPP together owed the plaintiff in excess of $2.2 million, of which nearly $1.4 million was overdue.
On 13 November 2015 White entered into a deed of guarantee and indemnity with the plaintiff, pursuant to which he guaranteed the obligations of BHP and KPP to the plaintiff.
In support of the deed of guarantee and indemnity, White executed an instrument of mortgage over the property known as Unit 3, 44 Deepdene Road, Deepdene being the land described in folio of the Register volume 08865 folio 706 (‘the Land’) of which he was then the registered proprietor. The instrument of mortgage was not registered at the time, but on 17 November 2015 the plaintiff lodged a caveat protecting its interest as unregistered mortgagee of the Land. The mortgage remains unregistered, and is incapable of registration given that White no longer owns the land. The amount owed to the plaintiff by BHP was paid in full, leaving the mortgage to secure only the sum owing by KPP. That amount is totalled just over $3 million as at 30 June 2022.[1]
[1]According to paragraph 18 of the affidavit of Steven Mark Evans sworn on 21 December 2022 (‘Evans affidavit’) on behalf of the plaintiff.
On 25 July 2016 KPP entered into voluntary administration. It was wound up on or about 29 August 2016, and deregistered on 4 November 2018. On 6 July 2017 White became bankrupt. The first and second defendants were appointed trustees of his bankrupt estate, and White’s interest in the land vested in them pursuant to s 58 of the Bankruptcy Act 1966 (‘the BA’). They were registered as proprietors of the Land on 24 September 2018. On 16 March 2019 Alice Ruhe replaced the second defendant as one of the trustees of the estate, although the relevant folio of the Register for the Land was not amended accordingly and the first and second defendants remain the registered proprietors of the Land. It is understood by the plaintiff that White died in or about June or July 2019. On 12 August 2020 the trustees of the estate issued a notice of disclaimer under s 133 of the BA in respect of the Land. As a consequence, the Land may have escheated to the Crown.
On 18 August 2020 the Registrar of Titles (the third defendant) lodged caveat No: AT524561Y (‘the Registrar’s caveat’) over the Land.
According to a valuation obtained by the plaintiff,[2] the Land was worth in the order of $1.3 million in February 2022. It may be more valuable today, but whatever value it currently has will still fall well short of the amount owing to the plaintiff and presently secured by the mortgage.
[2]The valuation was prepared by Dominic Lamanna of GVS Property Victoria on 25 February 2022 and appears at pages 272 to 321 of the bundle exhibit to the Evans affidavit.
The fourth defendant is understood to be White’s son, and has been in possession and occupation of the Land for some time.
The plaintiff holds the duplicate certificate of title for the Land.
Equitable mortgage or charge
The plaintiff submits that the unregistered mortgage takes effect as an equitable mortgage or charge over the Land and thereby confers on the plaintiff, as charge, a right to realisation by judicial process, such an order for sale under s 91 of the PLA.
An equitable charge is described in Fisher and Lightwood’s Law of Mortgage in the following terms:[3]
A charge is a security whereby real or personal property is appropriated for the discharge of a debt or other obligation, but which does not pass either an absolute or a special property in the subject of the security to the creditor, nor any right of possession, but only a right of realisation by judicial process in the case of non‑payment of the debt.
[3]Tyler, Young and Croft, 3rd Aust. ed., LexisNexis, 2014 at p 50 [2.2]: refer to Young, Croft and Smith, On Equity (Lawbook Co., 2009), at pp 650-1, [9.180].
The plaintiff now seeks to sell the Land and to apply the sale proceeds towards the sum owing to it under the unregistered mortgage.
The relief available to a charge by way of an unregistered mortgage of a land was considered by Derham AsJ in Hycenko v VHY Enterprises Pty Ltd where his Honour said:[4]
[4][2020] VSC 834 at [35]-[39].
[35]The relief available for a charge over land includes an application for judicial sale.[5] An order for judicial sale is the standard way of enforcing an equitable charge and lies within the inherent power of the Court. The remedy is available for an unregistered second mortgagee.[6] It is, however, necessary to join as parties the registered mortgagees and to join or give notice to other unregistered mortgagees and chargees.
[5]Matthews v Goodday (1861) 31 LJ Ch 282; Avco Financial Services Ltd v White [1977] VR 561 at 563-4. Melbourne Tramways Trust v Melbourne Tramways and Omnibus Co (1887) 13 VLR 487.
[6]Guardian Mortgages v Miller [2004] NSWSC 1237 and King Investment Solutions v Hussain [2005] NSWSC 1076 [53] and [81].
[36]There is also power to order a judicial sale in s 91 of the Act, which provides in s 91(2):[7]
[7]The terms of s 86 of the Act do not prevent the application of s 91 to charges of the kind in issue in this case, or perhaps to unregistered mortgages of land under the operation of the Transfer of Land Act 1958. I have not set out the terms of s 91(1), which applies to a person entitled to redeem a mortgage. Section 91(2) confers a wider, indeed a discrete, power: Woolley v Colman (1882) 21 Ch D 169 at 173 (Fry J); King Investment Solutions v Hussain [2005] NSWSC 1076, [70]-[71] (Campbell J).
In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that—
(a)any other person dissents; or
(b)the mortgagee or any person so interested does not appear in the action—
and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.
[37]Section 91(3) provides:
But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them.
[38]There is an inclusive definition of ‘mortgage’ in s 18 of the Act so that it includes ‘any charge or lien on any property for securing money or money's worth’. This definition encompasses an equitable charge of the kind in issue in this case so as to make the power given by the section applicable to the enforcement of equitable charges.[8]
[39]Subject to specific rules of court to the contrary, it is a fundamental requirement for the exercise of a court’s powers to order a judicial sale that a person whose rights will be affected by the order should be a party to the proceeding.[9] That is because the court does not take away property rights of a person, without specific statutory authority, in proceedings to which that person is not a party.[10] If a prior mortgagee or incumbrancer does not consent to the judicial sale, then ordinarily the sale will be subject to payment out of its mortgage or incumbrance.[11] Further, an order for sale obtained by a second mortgagee or chargee does not prevent a sale by a first mortgagee who is not a party to the action.[12]
Derham AsJ also considered matters relevant to the exercise of the discretion whether or not to order a judicial sale, matters which will weigh differently depending upon the particular circumstances of each case.[13]
[8]John Sands (Australia) Limited v Joske [2004] VSC 251 at [27]; United Travel Agencies Pty Ltd v Cain (1990) 20 NSWLR 566, 568-572 (Young J); Worrell v Issitch [2000] QSC 146, [4].
[9]King Investment Solutions v Hussain [2005] NSWSC 1076, [86]-[99].
[10]Ibid, [2005] NSWSC 1076, [92].
[11]Ibid, [2005] NSWSC 1076, [95].
[12]Ibid, [2005] NSWSC 1076, [99].
[13]Refer to Hycenko at [45]-[49].
The remedies available to an unregistered mortgagee of land under the Torrens system under the Real Property Act 1900 (NSW) were also considered by Campbell J in King Investment Solutions v Hussain.[14] Although there are some differences as between the statutory provisions of the Victorian Torrens legislation (the Transfer of Land Act 1958) (‘TLA’) and the PLA, the principles applicable are relevantly the same under the New South Wales legislation, as appears from the analysis of Campbell J in King Investment Solutions:[15]
Power to Order Sale – the Decision Below
[38]The decision appealed from followed the decision of Wood CJ at CL in Guardian Mortgages v Miller [2004] NSWSC 1236. In that case, at [121], Wood CJ at CL made an order for possession of a parcel of mortgaged Real Property Act 1900 land, at the suit of a registered second mortgagee. His Honour also made an order for judicial sale of a different parcel of Real Property Act 1900 land over which an equitable charge (which, so far as the reasons for judgment disclose, was the only encumbrance on that parcel of land) had been given. At [121] his Honour held, applying dicta of Young J in Yarrangah Pty Ltd v National Australia Bank Ltd (1999) 9 BPR 17,061, that there is inherent power in a court of equity to order judicial sale with respect to Real Property Act 1900 land in circumstances analogous to those in which an order for sale under section 103 Conveyancing Act 1919 will be available in relation to old system land.
[39]That finding of Wood CJ at CL was an essential step in his Honour’s reasoning towards the orders actually made. However his Honour records, at [118], and Mr MW Young (counsel for the respondent in this appeal, who also appeared in Guardian Mortgages v Miller) confirms, the correctness of the proposition was not a matter of active contention in Guardian Mortgages v Miller. Further Guardian Mortgages v Miller appears to differ from the present case, in that here the application for an order for sale is made by a second unregistered mortgagee, not by the holder of a first-ranking equitable encumbrance. As well, here the application for possession is made by a second unregistered mortgagee, not by a second registered mortgagee. Mr Young also informs me that about 50 applications for orders of the type sought in the present case have been made by unregistered mortgagees of Real Property Act 1900 land in recent months to Associate Judges, but there has been no real contest about the power to make the orders, or the circumstances in which and conditions upon which the orders ought be made.
[40]In those circumstances I propose to examine the relevant principles for myself. At the outset, I acknowledge the considerable assistance I have derived from the wealth of material contained in Chapters 21 and 22 of Fisher & Lightwood’s Law of Mortgage, Australian edition, 1995 (hereinafter referred to as “F&L”).
[14][2005] NSWSC 1076.
[15][2005] NSWSC 1076, [38]-[44]; and see Worrell v Issitch [2001] 1 Qd R 570; John Sands (Australia) Limited v Joske [2004] VSC 251; and Roberts Gray Pty Ltd v Brunner [2021] VSC 76. The particular legislative position is different in New South Wales where the equivalent provision, s 103 of the Conveyancing Act 1919 (‘CA’), does not apply to mortgages of land under the Real Property Act 1900 (‘RPA’) by reason of s 90 of the CA. On the other hand, an unregistered mortgagee of land under the RPA is given a power of sale by s 109 of the CA whether or not the mortgage is made by deed: see also United Travel Agencies Pty Ltd v Cain (1990) 20 NSWLR 566; Guardian Mortgages v Miller [2004] NSWSC 1237; King Investment Solutions v Hussain [2005] NSWSC 1076.
Relevance of Old System Principles to Present Problem
[41]In the course of examining the principles I will examine the power of the court to make orders like those appealed from concerning land under the old system, and also concerning land under the Real Property Act 1900.
[42]Part of the reason for examining the situation concerning old system land, even though the land in question in this appeal is under the provisions of the Real Property Act 1900, is that unregistered equitable estates and interests can exist in Real Property Act 1900 land. Even though the Real Property Act 1900 establishes a system of title by registration, not a system of registration of title (Breskvar v Wall (1971) 126 CLR 376 at 385 per Barwick CJ) it is not complete code. The means by which title is transferred (by a government official making an entry in a register), is vastly different under the Real Property Act 1900 to the way that title is transferred under the old system, by private individuals executing documents. Even so, there can still be dealings with Real Property Act 1900 land of a type which, though not creating or transferring any interest of a type which is recognised by the Real Property Act 1900 itself, still create an obligation of conscience amounting in the eyes of equity to a right of property in the land. In particular, there can be equitable interests in land arising from unregistered mortgages: Re Elliot (1886) 7 LR (NSW) 271; J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546. Further, concerning Real Property Act 1900 land, “… the existing conveyancing practice is only repealed so far as inconsistent with the Real Property Act”: Tietyens v Cox (1916) 17 SR (NSW) 48 at 53; see also Hemmes Hermitage Pty Ltd v Abdurahman and Another (1991) 22 NSWLR 343 at 345 per Kirby P.
[43]It has been held that:
“… the whole course of judicial interpretation of the Real Property Act has recognised the old law and practice of conveyancing as still applicable to equitable interests in land under the Act … the new practice as to foreclosure, which especially provided for registered interests under the Act, has left the whole practice as to foreclosure undisturbed so far as equitable interests are concerned.”: Tietyens v Cox (1917) 17 SR (NSW) 48 at 54-55.
[44]Similarly, if there is a respect in which the Real Property Act 1900 does not provide a means of enforcing the type of interest in land which an equity court recognises, it is to the practice and principles which were developed in accordance with old system land that a court administering equitable jurisdiction will now turn to decide what, if any, remedy is appropriate.
On the basis of the authorities to which reference has been made, it is clear, in my view, that as the plaintiff submits, s 91 of the PLA applies to land under the operation of the TLA other than with respect to registered instruments under that legislation.[16] As with similar NSW provisions, to which reference has been made by Campbell J in King Investment Solutions, s 86 of the PLA provides that s 91 and other provisions of the PLA do not apply to mortgages under the TLA effected by instruments of mortgage under the TLA. As the plaintiff submits that is not the case in the present circumstances as the mortgage in favour of the plaintiff is not registered.
[16]And see Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage (3rd Aust. Ed., LexisNexis, 2014), pp. 127-8 [4.25] and p. 312 [10.8]; and Croft and Hay, The Mortgagee’s Power of Sale (4th ed., LexisNexis, 2019), pp. 23-5 [2.15].
As the plaintiff in its submissions also observes sub-s 3(1) of the TLA provides to the effect that no Act or rule of law shall apply to land under the operation of the TLA to the extent that it is inconsistent with the TLA, but save for that any such Act or rule of law shall apply, whether or not expressed to apply, unless otherwise expressly or by necessary implication provided in the TLA or other Act. I accept that, as the plaintiff submits, on the basis of the analysis and authorities to which reference has been made, there is nothing inconsistent with s 91 of the PLA applying to TLA land because the TLA regulates mortgages, but only registered mortgages. The TLA contains no provision regarding unregistered mortgages and there is nothing in the TLA which expressly excludes the operation of s 91 of the PLA to TLA land. As indicated and supported by the authorities, s 86 of the PLA does not extend to exclude the operation of the provisions of that Act other than with respect to instruments registered under the TLA.
The regulation of the mortgages power of sale in relation to mortgages the subject of the PLA does not apply in the present circumstances because the unregistered mortgage is not made by deed. This is not a matter which affects its validity as an equitable charge as s 91 of the PLA does not require mortgage to be made by deed.
Registrar of Titles
The Registrar wrote to the plaintiff’s solicitors on 23 January 2023 regarding the proceeding. The Registrar has suggested that a preferable course would be for the Court to direct the trustees to sign a mortgage. As the plaintiff submits, this is not feasible in circumstances where the trustees have now disclaimed the Land in accordance with s 133 of the BA.
The Registrar also indicated that proposed order in the Amended Originating Motion to the effect that the Registrar be directed to remove the Registrar’s caveat is “inappropriate”. The plaintiff submits, and in my view correctly, that the Court does not lack power to order removal of the Registrar’s caveat at the appropriate time and, further, that s 103(1) of the TLA obliges the Registrar to comply with any such direction of the Court.
Orders for sale
The matters relevant to the exercise of the Court’s discretion whether or not to order a judicial sale are set out in Hycenko by Derham AsJ:[17]
[17][2020] VSC 834.
There are matters that are relevant to the exercise of the discretion whether or not to order a judicial sale, as follows:
(a)A sale will usually not be ordered where there is no evidence of value of the property, although there are instances where that has happened.[18] The reason is that without some evidence of the value of the property, it would not be possible to fix a reserve price for any sale, it would not be possible to form a view about whether it was appropriate to give the mortgagor time to pay before a sale could be made (and if so how long), and there would be serious difficulties in deciding who should have the conduct of the sale, and what conditions ought be imposed for the protection of the first mortgagee.[19]
(b)If the Court is authorising the sale, it should exercise some control over the terms and manner of conduct of the sale, including the fixing of a reserve price, the timing of the sale, who has the conduct of the sale and whether there should be conditions for the protection of the first mortgagee.[20]
(c)It is also usually important to know how much debt is secured by the property, before the order for sale is made.
The requirements in elements (a) and (b) of these discretionary matters as identified in Hycenko are satisfied in the present circumstances. A valuation was prepared by Dominic Lamanna of GVS Property Victoria on 25 February 2022,[21] and the amount owing to the plaintiff and secured by the unregistered mortgage is deposed to.[22] As to element (b) of these matters, the Court has full discretion as to who should have the conduct of the sale; and generally the person with an interest in obtaining the highest price for the property should be chosen.[23] In this instance, that would be the plaintiff. Further, there is no reason why the timing of the sale and the fixing of a reserve price should not be left in the hands of the plaintiff as the plaintiff has the critical interest in maximising sale price because, on the evidence, there will not be a surplus on sale above the money secured by the unregistered mortgage. Consistently with this position, the plaintiff seeks further orders[24] that the proceeds of sale of the Land be applied first in payment of all costs and expenses associated with the sale, and secondly in payment of the amount owing to the plaintiff.
[18]King Investment Solutions v Hussain [2005] NSWSC 1076, [101] citing Smithett v Hesketh (1890) 44 Ch D 161, 163; Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361, 380. The instance cited as an example of a sale without evidence of value is Wickham v Nicholson (1854) 19 Beav 38; 52 ER 262.
[19]King Investment Solutions v Hussain [2005] NSWSC 1076, [101]
[20]Ibid, [2005] NSWSC 1076, [102].
[21]The valuation appears at pages 272 to 321 of the bundle exhibit to the Evans affidavit.
[22]Evans affidavit, [18].
[23]Hycenko [2020] VSC 834, [47].
[24]In paragraph 3 of the Originating Motion.
As was pointed out in Hycenko,[25] the Court has inherent power to order a sale of land encumbered by an unregistered mortgage or charge. Order 55 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) provides the mechanics for a judicial sale. It allows the Court to make orders for sale in “any proceeding relating to land”, so long as appropriate notice has been given to every person “interested in the land” as required by rule 55.03. Sale orders in accordance with order 55 were made in Roberts Gray Pty Ltd v Brunner[26] in favour of an equitable chargee of TLA land.
[25][2020] VSC 834, [35].
[26][2021] VSC 76.
Notice of the proceeding has been given to every person interested in the Land. According to a recent title search[27] the first and second defendants are the present registered proprietors of the Land. The third defendant has lodged the Registrar’s caveat over the title to the Land. No other persons appear from the title search to have an interest in the Land. The fourth defendant is in possession of the Land. Additionally, notice of the proceeding has been given to the Victorian Government Solicitor[28] on the basis that the land may have escheated to the Crown following disclaimer by the bankruptcy trustees. The Crown did not pursue any claim on this basis.
[27]Register Search Statement for the title to the Land dated 24 May 2023 appears at pages 15 and 16 of the bundle exhibit to the affidavit of Neville George Henry Debney sworn on 24 May 2023 (‘second Debney Affidavit’).
[28]As deposed to in paragraph 4 of the second Debney affidavit.
Bankruptcy Act
The plaintiff submitted that if the Court was unwilling to make orders pursuant to s 91 of the PLA or order 55 of the Rules, it would seek an order pursuant to s 133(9) of the BA that title to the Land vest in the plaintiff instead. This would, in the normal course, enable the plaintiff to sell the Land out of Court. Further, it is submitted that s 27 of the BA does not stand in the way of the Court having jurisdiction by virtue of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987.[29]
[29]Truthful Endeavour Pty Ltd v Condon (Trustee) in the matter of Rayhill (Bankrupt) [2015] FCAFC 70; (2015) 233 FCR 174; (2015) 31 ALR 483, [34] and [60].
The plaintiff further submits that s 133(9) of the BA allows the Court to make an order vesting the Land in the plaintiff, being a person having an interest in the Land, on such terms as the Court considers just and equitable. It was held in Commonwealth Bank of Australia v State of Queensland, in the matter of Hewton[30] that it is prima facie just and equitable to vest title to disclaimed land in an unsatisfied security holder, as the disclaimer indicates that the security holder’s claim exceeds the value of the land and the security holder has an interest to realise the land for its highest value.
[30][2021] FCA 22, [15].
It is not, however, necessary to consider these matters further as, for the preceding reasons, I am of the view that the Court has power to make the orders sought pursuant to s 91 of the PLA and that this is the appropriate course to follow in the present circumstances.
Fourth defendant
The fourth defendant has no lawful entitlement to possession of the Land, and makes no assertion of any entitlement. He presumably entered into possession initially as a licensee of White. The plaintiff has allowed him to remain in possession on the basis that it is preferable for the Land not to be left unoccupied.
The fourth defendant was represented at the hearing of this matter and it was common ground that he is currently in possession of the Land. Counsel for the fourth defendant did not, however, make submissions on his behalf save to say that the fourth defendant neither consented to nor opposed the orders sought by the plaintiff in this proceeding.
As the plaintiff submits, it is appropriate that the Court to order that the plaintiff have possession of the Land so as to facilitate the sale of the Land by the plaintiff.[31]
[31]See Hycenko v VHY Enterprises Pty Ltd [2020] VSC 834, [48].
The plaintiff did not pursue its claim against the fourth defendant for damages for trespass.
Conclusions
For the preceding reasons I am of the opinion that the orders sought by the plaintiff in this proceeding should be made. It is noted that the plaintiff does not seek any orders as to the costs of this proceeding.
SCHEDULE OF PARTIES
| S ECI 2022 05403 | |
| BETWEEN: | |
| SYMBION PTY LTD (ACN 000 875 034) | Plaintiff |
| v | |
| KENNETH STEWART SELLERS | First Defendant |
| KRISTEN JENNIFER BEADLE | Second Defendant |
| REGISTRAR OF TITLES | Third Defendant |
| GRAEDON WHITE | Fourth Defendant |
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4
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