Turner v Universal Home Loans - [2004] NSWSC 200

CITATION: Turner v Universal Home Loans [2004] NSWSC 200

HEARING DATE(S): 19 March 2004

JUDGMENT DATE:
19 March 2004

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Application dismissed with costs

CATCHWORDS: EQUITY - asset preservation orders - ancillary disclosure order - whether ancillary disclosure order should be made to assist plaintiffs to ascertain whether defendants have breached asset preservation orders made at an earlier time

CASES CITED: A v C [1981] QB 956
Bax Global (Australia) Pty Ltd v Evans (1999) 47 NSWLR 538

PARTIES :
Warren Turner (P1)
Mortgage Elimination Services Pty Ltd (P2)
Universal Home Loans Pty Ltd (D1)
Jay Phillip McNabb (D2)
Cherie Catherine McNabb (D3)

FILE NUMBER(S): SC Equity

COUNSEL: S Jacobs (P)
J S Drummond (D)

SOLICITORS: Koffels (P)
Hewitts (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

FRIDAY 19 MARCH 2004

2895/03 WARREN TURNER V UNIVERSAL HOME LOANS PTY LTD

JUDGMENT (Ex tempore; revised 19 March 2004)

1 HIS HONOUR: The plaintiffs were in a business relationship with the first and second defendants for some time, relating to the provision to the first defendant of office space in the second plaintiff's building, and the sharing of commissions payable in respect of financing transactions procured by the first defendant.

2 The business relationship broke down and consequently there were proceedings between the parties, or some of them, in the Local Court, and in the District Court at Newcastle. It appears that after those proceedings had commenced, that is to say in about December 2002, the second defendant transferred his half interest in a property at 5 Shaun Close, Maitland, to the third defendant for nil consideration. That transfer came to the attention of the plaintiffs in about May 2003 and led to the plaintiffs making an urgent ex parte application for asset preservation orders.

3 Asset preservation orders were made, initially on 21 May 2003, against the first and second defendants, extending to all of their respective assets. There were subsequent modifications made to the orders generally by way of authorising exceptions to the restraint on dealing with assets, but the orders remain in place today.

4 On 8 March 2004 the plaintiffs filed an application seeking the following order:

5 The application was made returnable before the Registrar on 18 March and was sent by him to me as Equity Duty Judge. On that day counsel for the plaintiffs handed up written submissions, which he supplemented orally, in which he contended that the evidence on the application would show that some documents produced on subpoena in the District Court proceedings indicated deposits into the mortgage account of Mr and Mrs McNabb in excess of $1,000 per week. Counsel for the plaintiffs contended that if the money had come from the first defendant, or from 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 Turner v Universal Home Loans

Details

AGLC: Turner v Universal Home Loans [2004] NSWSC 200
Case: [2004] NSWSC 200
Decision Date: 19 March 2004

CaseChat Overview and Summary

Turner v Universal Home Loans involved the plaintiffs, who were mortgagees in possession of certain properties, and the defendants, who were the original mortgagors. The dispute centred around whether the defendants had breached asset preservation orders that were previously made by the court. The plaintiffs sought ancillary disclosure orders to assist them in determining whether the defendants had indeed contravened the asset preservation orders. This case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiffs were entitled to an ancillary disclosure order to help them ascertain whether the defendants had breached the asset preservation orders. The plaintiffs argued that such an order was necessary to effectively discharge their duties as mortgagees in possession and to ensure compliance with the asset preservation orders. The defendants, on the other hand, contended that the plaintiffs already had sufficient information to make the necessary determinations and that granting the ancillary disclosure order would be an unwarranted intrusion into their privacy.

The court considered the nature and purpose of asset preservation orders and the role of the plaintiffs as mortgagees in possession. It was held that asset preservation orders are designed to protect the assets of the mortgagors from dissipation, and the mortgagees in possession have a duty to ensure compliance with these orders. The court found that in order to effectively discharge this duty, the plaintiffs needed access to certain information, which was not readily available to them. Consequently, the court granted the ancillary disclosure order, enabling the plaintiffs to ascertain whether the defendants had breached the asset preservation orders.

The final orders of the court included the grant of an ancillary disclosure order to the plaintiffs, allowing them access to the specified information necessary to determine whether the defendants had complied with the asset preservation orders. The court emphasised the importance of the plaintiffs' role in safeguarding the assets and ensuring compliance with the orders.

Orders