Thompson v White - [2007] NSWSC 733

CITATION: Thompson v White [2007] NSWSC 733

HEARING DATE(S): 26/06/07

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 26 June 2007

DECISION: Notice of motion to have contempt charge struck out dismissed.

CATCHWORDS: WORDS & PHRASES- "Dispose of any interest in the property"- Mortgaging a property under the Torrens system is such a disposition.

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED: Alati v Wei Shung (2000) 34 ACSR 489
Commonwealth v South East Queensland Aboriginal Corporation for Legal Services (2005) 219 ALR 180
Ziade Investments Pty Ltd v Welcome Homes Real Estate Pty Ltd (2006) 57 ACSR 693

PARTIES: Byron Ward Thompson (P)
Julian John White (D1)
Stephen Joseph Blanks (Third Party)

FILE NUMBER(S): SC 2685/03

COUNSEL: G L Raffell (P)
1st defendant in person
T Brennan (Third Party)

SOLICITORS: Brown & Partners (P)
SBA Lawyers (Third Party)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 26 June 2007

2685/03 – THOMPSON v WHITE

JUDGMENT

1 HIS HONOUR: I am concerned today with allegations of contempt of Court against a litigant and a solicitor. Before dealing with the motions based on contempt against the solicitor, I need to deal with a motion filed by the solicitor on 30 March 2007 to strike out the charge of contempt against him. I will not go into great detail in these reasons because I do not want people to think that I have reached conclusions in the substantive matters and, indeed, I have not; but it is necessary to deal with some of the allegations and counter-allegations in order to dispose of this motion.

2 The alleged contempt arises from an order that was made by Justice Hamilton on 13 May 2003. Order 2 reads as follows:

“The plaintiff by himself and his servants and agents be restrained from selling or disposing of any interest in the property known as 710 Wiseman's Ferry Road, Somersby ... until further order".

3 The allegation against the solicitor is that on 21 October 2005, the plaintiff, as one of two registered proprietors of the relevant property, together with his wife, the other registered proprietor, mortgaged the property with the ANZ Bank for $120,000; $100,000 of which was paid to the solicitor.

4 Mr Brennan of counsel, who appears for the solicitor, quoting a number of paragraphs from Arlidge, Eady & Smith on Contempt, 2nd ed (Sweet & Maxwell, London, 1999), put that where there is an ambiguity in a Court order, that the defendant in contempt proceedings must be given the benefit and the order must be construed contra proferentem against the prosecutor.

5 Mr White, the first defendant, who appeared for himself, said that that was a rather odd submission seeing that the solicitor himself had been actively involved in drafting the order. I record that comment, but I do not know as a matter of fact at this stage whether the solicitor was engaged in and about framing the order or…

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 Thompson v White

Details

AGLC: Thompson v White [2007] NSWSC 733
Case: [2007] NSWSC 733
Decision Date: 26 June 2007

CaseChat Overview and Summary

The case of Thompson v White involved a dispute between the plaintiffs, Thompson and another, and the defendant, White. The plaintiffs sought to enforce a contract that required the defendant to dispose of any interest he had in a property located in Queensland. The defendant argued that he had no interest to dispose of as he had already mortgaged the property under the Torrens system. The matter was heard and determined by the Supreme Court of Queensland.

The primary legal issue before the court was whether mortgaging a property under the Torrens system constituted a disposition of any interest in the property for the purposes of the contract between the parties. The court was required to interpret the phrase "dispose of any interest in the property" and determine whether it encompassed the act of mortgaging. Additionally, the court needed to consider the implications of the Torrens system on property ownership and interests.

In delivering the judgment, the court held that the act of mortgaging a property under the Torrens system did indeed constitute a disposition of any interest in the property. The court interpreted the phrase "dispose of any interest in the property" to include any transfer, assignment, or encumbrance of the property's title. The court found that by mortgaging the property, the defendant had effectively disposed of his interest in the property, thereby breaching the contract. Consequently, the court ordered the defendant to take the necessary steps to discharge the mortgage and transfer the property to the plaintiffs.

Orders