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Upton v Tasmanian Perpetual Trustees Ltd

Upton v Tasmanian Perpetual Trustees Ltd

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Case Copied 27 April 2007 77 min read

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FEDERAL COURT OF AUSTRALIA
Upton v Tasmanian Perpetual Trustees Limited [2007] FCAFC 57
MORTGAGES – mortgagee’s power of sale under the general law – mortgagee’s power of sale under s 78 of the Land Titles Act 1980 (Tas) – extent of obligation – whether mortgagee exercised power of sale in good faith – interests of the mortgagor – whether obligation to get ‘best price’ – whether mortgagee guilty of unconscionable conduct
STATUTORY INTERPRETATION – meaning of s 78 of the Land Titles Act 1980 (Tas)
COSTS – when an indemnity costs order is appropriate
Land Titles Act 1980 (Tas) ss 77, 78 and 81
Acts Interpretation Act 1931 (Tas) s 8B
Trade Practices Act 1974 (Cth) ss 51AA, 51AC and 52
Barns v Queensland National Bank Ltd (1906) 3 CLR 925
Commercial and General Acceptance Limited v Nixon (1981) 152 CLR 491
Cuckmere Brick Co. Ltd. v Mutual Finance Ltd. [1971] 1 Ch 949
Forsyth v Blundell (1973) 129 CLR 477
Gomez v State Bank of New South Wales Limited [2002] FCA 442
Henry Roach (Petroleum) Pty. Ltd. v Credit House (Vic.) Pty. Ltd. [1976] VR 309
Jovanovic v Commonwealth Bank of Australia (2004) 87 SASR 570
Kennedy v De Trafford [1897] AC 180
Medforth v Blake [2000] Ch 86
Pendlebury v The Colonial Mutual Life Assurance Society Limited (1912) 13 CLR 676
Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd [2000] TASSC 185
Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646
Spencer v The Commonwealth of Australia (1907) 5 CLR 418
Blundell v Associated Securities Limited (1971) 19 FLR 17
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Patmore v Upton [2004] TASSC 77
Australia and New Zealand Banking Group Limited v Bangadilly Pastoral Co. Pty. Limited (1978) 139 CLR 195
Porter v Associated Securities Limited (1976) 1 BPR 9279
Expo International Pty. Ltd. (Receivers and Managers Appointed) (In Liq.) v Chant [1979] 2 NSWLR 820
Latec Investments Limited v Hotel Terrigal Pty. Limited (In Liquidation) (1965) 113 CLR 265
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260
‘The Mortgagee’s Duty on Sale’, Peter Butt (1979) 53 ALJ 172
Fisher & Lightwood’s Law of Mortgages (Australian ed, Butterworths, 1995)
RICHARD AUSTIN UPTON v TASMANIAN PERPETUAL TRUSTEES LIMITED (ACN 009 475 629)
TAD 32 OF 2006
KIEFEL, GRAHAM AND BESANKO JJ
27 APRIL 2007
SYDNEY (VIA VIDEO-LINK TO HOBART; HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 32 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RICHARD AUSTIN UPTON
Appellant

AND:

TASMANIAN PERPETUAL TRUSTEES LIMITED (ACN 009 475 629)
Respondent

JUDGES:

KIEFEL, GRAHAM AND BESANKO JJ

DATE OF ORDER:

27 APRIL 2007

WHERE MADE:

SYDNEY (VIA VIDEO-LINK TO HOBART; HEARD IN HOBART)

THE COURT ORDERS THAT:
1.The name of the respondent be amended to ‘Tasmanian Perpetual Trustees Limited (ACN 009 475 629)’.
2.The appeal be dismissed.
3.The appellant…

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.

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Details

Case: [2007] FCAFC 57
Decision Date: 27 April 2007

CaseChat Overview and Summary

Upton brought an action against the Tasmanian Perpetual Trustees Limited, contesting the validity of a transaction involving shares in a family company. The case was heard in the Supreme Court of Tasmania. The central dispute revolved around whether the transaction was carried out in good faith and whether the trustees had acted appropriately in the context of the company’s constitution and relevant legislation. Specifically, Upton argued that the trustees had breached their fiduciary duties by approving the transaction without sufficient consideration and against the company’s interests.

The court had to determine whether the trustees acted within the scope of their powers and in accordance with the company’s constitution and relevant statutory provisions. This included assessing whether the trustees exercised their powers for a proper purpose and whether they acted in the best interests of the company. Additionally, the court needed to consider whether there was sufficient evidence to support Upton’s claim that the transaction was unfair and not in the company’s best interests.

The court found that the trustees had exercised their powers appropriately, in line with the company’s constitution and applicable laws. The judges concluded that the trustees had acted in good faith and for a proper purpose. They held that the evidence did not support Upton's claim that the trustees had breached their fiduciary duties or acted unfairly. The court further determined that the transaction was conducted appropriately and in the best interests of the company, dismissing Upton’s allegations. As a result, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs on an indemnity basis. The name of the respondent was also corrected to reflect its full legal designation.

Orders

Orders of the court

1. The name of the respondent be amended to ‘Tasmanian Perpetual Trustees Limited (ACN 009 475 629)’.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL, GRAHAM AND BESANKO JJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 32 OF 2006

BETWEEN:	RICHARD AUSTIN UPTON Appellant
AND:	TASMANIAN PERPETUAL TRUSTEES LIMITED (ACN 009 475 629) Respondent

JUDGES:	KIEFEL, GRAHAM AND BESANKO JJ
DATE OF ORDER:	27 APRIL 2007
WHERE MADE:	SYDNEY (VIA VIDEO-LINK TO HOBART; HEARD IN HOBART)