Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh

[2013] NSWSC 1343

Supreme Court

New South Wales

Medium Neutral Citation:

Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur v Singh [2013] NSWSC 1343

Hearing dates:

17 September 2013

Decision date:

17 September 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) The Defence of the First Defendant filed 13 August 2013 is struck out and dismissed.

(2) An order pursuant to section 15 of the Real Property Act 1900 that the Defendants be required to produce the Certificate of Titles for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

(3) If the Defendants fail to produce the Certificate of Titles for the properties referred to in order 1 above, an order pursuant to section 138 of the Real Property Act 1900 that the Registrar-General issue a new Certificate of Title for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

(4) The Defendants are to pay the Plaintiff's costs of these proceedings.

Catchwords:

JUDGMENTS - res judicata - issue estoppel - extended estoppel - claim by trustee in bankruptcy for certificates of title - defence raising matters determined in bankruptcy proceedings and other proceedings involving the same and different parties - issues decided adversely to defendant - defence struck out - orders made

Legislation Cited:

Real Property Act 1900
Uniform Civil Procedure Rules

Cases Cited:

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rippon v Chilcotin Pty Limited [2001] NSWCA 142; (2001) 53 NSWLR 198
Singh v Owners of Strata Plan 11723 [2013] FCCA 506
Singh v Owners, Strata Plan 11723 & Ors [2013] NSWSC 872

Category:

Interlocutory applications

Parties:

Terry Grant Van Der Velde as Trustee of the Bankrupt Estate of Jagjit Singh and Trustee of the Bankrupt Estate of Sarbjit Kaur (Plaintiff)
Jagjit Singh (First Defendant)
Sarbjit Kaur (Second Defendant)

Representation:

Counsel:
S Quang (Plaintiff)
No appearances (Defendants)
Solicitors:
Grace Lawyers Pty Ltd (Plaintiff)
No appearances (Defendants)

File Number(s):

2013/179289

Judgment

1. On 5 April 2012 a sequestration order was made against the Defendants Jagjit Singh and Sarbjit Kaur in the Federal Magistrate's Court, as the Court was then known, and Terry Grant Van Der Velde was appointed as a joint and several trustee of the bankrupt estates of the Defendants. The trustee has attempted on a number of occasions, directly and through his solicitors, to obtain copies of the certificates of title of two properties owned by the Defendants, being unit 7/33 Bowden Street Harris Park and 148 Aberglassyn Road Rutherford.

1. These attempts have been entirely unsuccessful, with the Defendants largely refusing to cooperate.

1. That led, on 12 June 2013, to the Plaintiff filing a Statement of Claim in this Court seeking an order pursuant to section 15 of the Real Property Act 1900 that the Defendants be required to produce the certificates of title for the two properties. A second order was sought that if the Defendants failed to produce those certificates of title, an order pursuant to section 138 Real Property Act should be made that the Registrar General issue a new certificate of title for each of the properties.

1. The Statement of Claim was personally served on the First Defendant on 10 July 2013 and on the Second Defendant on 1 July 2013.

1. The Second Defendant has not defended the proceedings. The First Defendant filed a Defence dated 13 August 2013, although the date of filing is not evidenced on the document.

1. The Defence raises a large number of complaints in relation to the making of the sequestration order by the petitioning creditor, as well as matters concerned with the proof of debt of the petitioning creditor's debt and other matters.

1. It may be said at the outset that the form of the Defence does not comply with proper principles of pleading. The Plaintiff, by Notice of Motion filed 6 September 2013, seeks orders that the Defence be struck out, alternatively be dismissed.

1. It is that Motion which has come before me for hearing today. There was no appearance for the Defendants when the matter was before the Registrar, nor when the matter was called before me.

1. The principal basis upon which the Plaintiff seeks to strike out the Defence is that the issues raised in that Defence have been determined adversely to the First Defendant in other courts and other proceedings. In that regard, it is necessary to provide a little detail about what has occurred since the sequestration of the estates of the Defendants.

1. On 18 March 2013, the First Defendant filed a Notice of Motion seeking to set aside the default judgment of 12 February 2013. In support of that Motion he filed an affidavit which, to some extent, raised matters which now appear on the Defence.

1. On 3 April 2013, after hearing the First Defendant's Notice of Motion Registrar Bradford dismissed the Notice of Motion and refused to order a stay on the writ of possession.

1. On 5 April the Defendants served a Notice of Motion seeking that the default judgment again be set aside, or stayed, and that the possession and sale of the Defendants' land be stopped.

1. The affidavit filed by the First Defendant in support of that Motion sworn 3 April 2013 covered in much closer detail the matters that are contained in the present Defence.

1. On 9 April, Justice Adamson dismissed the First Defendant's Notice of Motion.

1. On 9 April 2013, a writ of possession of land was issued and forwarded to the Sheriff to take possession of the Harris Park property.

1. On 4 June 2013, the First Defendant filed an application in the Federal Circuit Court seeking that the bankruptcy be annulled and that the judgment debt leading to the making of the sequestration order be set aside under the Uniform Civil Procedure Rules enforced in this Court. Interim relief staying the writs was also sought.

1. The application on 4 June was supported by an affidavit of the same date which again, in even greater detail, recited the matters which now appear in the present Defence.

1. On 12 June 2013, Judge Driver in the Federal Circuit Court heard the application for interim relief and dismissed the application: Singh v Owners of Strata Plan 11723 [2013] FCCA 506. On 9 August 2013 he dismissed the remainder of the application filed on 4 June.

1. On 26 June 2013, the First Defendant filed a Summons and affidavit in the Equity Division of this Court seeking injunctive relief effectively to prevent the taking possession of both the Harris Park and the Rutherford properties. In support of that application, the First Defendant filed an affidavit sworn 26 June 2013 where he once again recited in some detail most or all of the matters that are contained in the present defence.

1. The Summons was heard by White J who gave judgment on 28 June 2013 in which he dismissed the proceedings: Singh v Owners, Strata Plan 11723 & Ors [2013] NSWSC 872.

1. The Plaintiff's solicitor has provided a copy of a document which has cross referenced paragraphs in the present Defence to paragraphs in the affidavits that the defendant filed in support of various applications to various courts to which I have made reference.

1. That document demonstrates without any doubt that the First Defendant is, in the present defence, attempting to raise as a defence to the present claim, identical matters, or matters that are so substantially similar as to be virtually identical, and that all of those matters have, as a result of the judgments given against him, been determined adversely to him.

1. In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, the joint judgment of Deane, Toohey and Gaudron JJ quoted a passage from the judgment of Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 which discussed res judicata and issue estoppel:

The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J. in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 in these terms: "in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." (at p597)

The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, at p 466. His Honour expressed the rule as to res judicata by saying: "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem cause.'" His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran (1939) 62 CLR, at p 531: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies." (at p597)

...

The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.

1. I am satisfied that the matters which the defendant has raised in his Defence of 13 August 2013 is res judicata between him and the present Plaintiff. At the very least there is an issue estoppel in relation to matters that appears in the present defence. In relation to the proceedings brought against the Owners of the Strata Plan the present defence is an abuse of process because the issues raised in it have been decided adversely to the First Defendant: Rippon v Chilcotin Pty Limited [2001] NSWCA 142; (2001) 53 NSWLR 198 at [28] and [31]-[32].

1. In those circumstances, the Defence cannot be allowed to stand.

1. Whilst ordinarily, where a litigant is unrepresented and a Defence is struck out or dismissed, I would give the defendant a further opportunity to plead a proper defence, I am satisfied by reason of the extensive history in this matter that it is not appropriate to give any further opportunity to the First Defendant to put a Defence on to the claim. It is clear that any defence he has is based upon the same matters already determined adversely to him.

1. The claim is a clear one. The trustee is entitled to obtain possession of the certificates of title by reason of his appointment as trustee of the estate. The proceedings in the Federal Court establish without any doubt that the sequestration order was properly made, and every attempt by the First Defendant to overturn that has been rejected.

1. In the circumstances, it is appropriate to give judgment on the Statement of Claim.

1. The orders that I make, therefore, are:

(1) The Defence of the First Defendant filed 13 August 2013 is struck out and dismissed.

(2) An order pursuant to section 15 of the Real Property Act 1900 that the Defendants be required to produce the Certificate of Titles for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

(3) If the Defendants fail to produce the Certificate of Titles for the properties referred to in order 1 above, an order pursuant to section 138 of the Real Property Act 1900 that the Registrar-General issue a new Certificate of Title for the following properties:

i. the land and premises known as Unit 7, 33 Bowden Street, Harris Park in the State of New South Wales, being the whole of the land comprised in Folio Identifier 7/SP11723; and

ii. the land and premises known as 148 Aberglassyn Road, Rutherford in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1822/1090379.

(4) The Defendants are to pay the Plaintiff's costs of these proceedings.

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Decision last updated: 19 September 2013