Tey v Optima Financial Group Pty Ltd
[2013] WASC 384
TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2013] WASC 384
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 384 | |
| Case No: | CIV:2534/2013 | 11 OCTOBER 2013 | |
| Coram: | HALL J | 11/10/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY OPTIMA FINANCIAL GROUP PTY LTD |
Catchwords: | Injunction Suspension order under Civil Judgments Enforcement Act 2004 (WA) Property seizure and sale order Whether order provided authority to sell land owned by the plaintiff Injunction to prevent transfer of land already sold Whether serious question to be tried Suspension order in respect of judgment Only available from court that gave the judgment or an appeal court |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 5, s 71, s 80 |
Case References: | Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent
Catchwords:
Injunction - Suspension order under Civil Judgments Enforcement Act 2004 (WA) - Property seizure and sale order - Whether order provided authority to sell land owned by the plaintiff - Injunction to prevent transfer of land already sold - Whether serious question to be tried - Suspension order in respect of judgment - Only available from court that gave the judgment or an appeal court
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 5, s 71, s 80
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Respondent : Mr S V Forbes
Solicitors:
Plaintiff : In person
Respondent : De Vita & Dixon Lawyers
Case(s) referred to in judgment(s):
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
- HALL J:
(These reasons were delivered orally and have been edited from the transcript.)
Introduction
1 This is an application for an injunction.
2 On 9 October 2013 Ms Tey appeared, seeking an urgent injunction. She supported her application with an affidavit. After listening to Ms Tey for some time it remained unclear why she wanted an injunction, who it was to be directed to and what form it was to take.
3 Things were not assisted by the fact that the respondent had not been served with papers or put on notice of the application. No good reason for failing to do this was given.
4 Ms Tey said she had consulted a lawyer and wanted another opportunity to speak to him. I adjourned proceedings to today, ordered that the respondent and the Registrar of Titles be served with papers, and gave leave to Ms Tey to bring the matter back on urgently in the interim, but only on notice to the respondent and the Registrar of Titles.
5 The position today is that Ms Tey has again appeared unrepresented. Mr Forbes has appeared for the respondent, however, he says that the respondent was not served. He saw the matter on the list and attended to find out what was occurring. Ms Tey disputes this and says that she served the respondent after 4.30 pm yesterday. In any event the respondent says to me, through Mr Forbes, that the position is that the property in question has been sold and the money owing to the respondent has been paid.
6 The Registrar of Titles has written to the court indicating that she has been made aware of the proceedings and will abide by the orders of the court, other than any order made against her in respect of costs.
Background
7 The documents and submissions of Ms Tey remain confused and confusing. I will do my best to summarise her contentions.
8 Ms Tey has been a party to a number of actions in the Magistrates Court and on appeal to this court. She has been unsuccessful and costs orders have been made against her.
9 On 10 October 2012, orders were made on an appeal to the Court of Appeal in CACV 7 of 2012. Ms Tey was the appellant and Optima Finance, the present respondent, was the respondent on the appeal. The appeal was dismissed and an order was made that the appellant pay the respondent's costs to be taxed. The costs were to be taxed with the costs in two other appeals as one bill.
10 The costs were taxed at $23,048.14. They were not paid and an application was made by the respondent for a property seizure and sale order. An order issued on 21 May 2013. It referred to a property of the applicant in Barclay Road, Kardinya.
11 There were also other property seizure orders that were issued in respect of unrelated proceedings. One such property seizure order, issued on 6 June 2012, related to another debt in the sum of approximately $12,000. That order refers to another property owned by Ms Tey in Thornlie. That property seizure order is said by Ms Tey to be defective because it misspelt the name of the other party to the proceedings. In any event, Ms Tey offered to pay the amount of the judgment debt in that case, together with another judgment debt, and says that in fact payment was made. For this reason she says that the sheriff had no authority to sell the Thornlie land.
12 The Thornlie land was sold at auction by the Sheriff. Ms Tey declined to provide the duplicate certificate of title because she maintained that the land had not been lawfully sold.
13 The Registrar of Titles has now advertised an intention to transfer the land without a duplicate certificate of title. Reference was made to two property sale and seizure orders, including the one relating to the respondent. That advertisement is annexed to Ms Tey's affidavit as KYT19. It states:
Notice is hereby given that on the [sic] 9 October 2013 pursuant to section 133(10) of the Transfer of [Land] Act 1893 I intend to register a transfer to [purchaser's name and address], of the estate and interest of the registered proprietor Kok Yong Tey in the land described below, without requiring the production of the duplicate Certificate of Title.
The said Transfer was executed by the Deputy Sheriff in order to give effect to the sale of the said land pursuant to two Property (Seizure and Sale) Orders issued on 13 September 2012 (as extended on 6 March 2013), and 21 May 2013 in actions wherein Michael Francis Carpenter and Optima Financial Group Pty Ltd are the judgment creditors and Kok Yong Tey is the Judgment Debtor.
14 A land description is then given of the Thornlie land.
15 Ms Tey maintains that the property seizure order issued on the application of the respondent does not provide authority for the sale of the Thornlie land and that the other property seizure orders should have been discharged because she paid the amount of the judgment debts that those other orders related to. She seeks an injunction to prevent the transfer from occurring or a stay of the property seizure order obtained by the respondent.
Merits of the application
16 As regards an injunction, Ms Tey needs to satisfy the court that there is a serious question to be tried and that the balance of convenience favours the grant of an injunction. The principles are summarised in Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12]. It is sometimes suggested that there is a third question, that is whether damages would be a sufficient remedy, but it is only necessary to consider that question in the event that there is a serious question to be tried.
17 For the following reasons I am not satisfied that there is a serious question to be tried. Firstly, it is not apparent that Ms Tey has any cause of action against anyone. There is nothing before me to suggest that the property in Thornlie was not sold lawfully and in accord with the Civil Judgments Enforcement Act 2004 (WA) (CJEA). Having been sold at auction, the purchaser acquired good title and is entitled to have their interest registered pursuant to s 71 of the CJEA. The transfer is only needed to formalise a sale that has already occurred.
18 Secondly, Ms Tey's assumption that the property sale and seizure order issued on the application of the respondent did not authorise sale of the Thornlie property, is simply wrong. A property sale and seizure order applies to any saleable interest in land that the debtor has at the time the order is either registered or received by the sheriff. See s 80 of the CJEA.
19 Thirdly, the advertisement that I have referred to does not say that the Thornlie land was sold on the sole authority of the Optima property sale and seizure order. It refers also to another order. I have been told that the proceeds of the sale have already been applied to meet the judgment debts. All the advertisement does is notify that a transfer is to occur pursuant to the sale. There is nothing in the advertisement that would cause me to think that there was anything irregular about the sale.
20 It is unnecessary to consider the balance of convenience, but it would not favour Ms Tey. To prevent the transfer would achieve nothing. If Ms Tey remains the registered proprietor of the Thornlie property at the moment it is as a bare trustee. She has no remaining lawful interest in the land. On the other hand, the judgment debtor and the purchaser may be significantly prejudiced if the transfer was prevented.
21 As regards a stay, an order suspending the enforcement of a judgment can include an ancillary order as to the operation of a property sale and seizure order. See s 5(5)(c) of the CJEA. However, an application for a suspension order must be made to the court that gave the judgment or a court dealing with an appeal from that judgment. That means any application for a stay of the Optima property sale and seizure order can only be made to the Court of Appeal (or the High Court if that judgment has been appealed). I cannot grant a stay of that property sale and seizure order. I do not have the power to do so.
22 I might note that a stay would seem pointless anyway. The sale of the Thornlie property has occurred. Furthermore, a stay can only be ordered in special circumstances and it is difficult to see that any such circumstances exist here.
23 Finally, I should record that both an injunction and a suspension order are discretionary remedies. There are very good reasons not to exercise the discretion here. First, Ms Tey has brought these proceedings at the latest possible time. That is, the day on which the transfer was to occur. No adequate reason has been given for that delay. Secondly, I am far from satisfied that all relevant information has been provided by Ms Tey. To compound that problem, she has failed to make any reasonable effort to put the interested parties properly on notice of this application.
Conclusion
24 It is clear to me that Ms Tey simply refuses to accept an obligation to meet her lawful debts. In her determination to frustrate attempts to recover the money she has tried to exploit any possible argument. The arguments she has raised here are entirely without merit and the application is refused.
1
0