FEDERAL COURT OF AUSTRALIA
Van Der Velde v Ng [2011] FCA 594
Citation: Van Der Velde v Ng [2011] FCA 594 Parties: TERRY VAN DER VELDE AND DAVID STIMPSON and RIBY PTY LTD (ACN 081 153 219) IN LIQUIDATION AS TRUSTEE FOR THE JADE TRUST v KYM HON YOKE NG, THE OFFICIAL TRUSTEE AS TRUSTEE OF THE PROPERTY OF ROSS HASTINGS (A BANKRUPT) and RAMS MORTGAGE CORPORATION LIMITED
ABN 48 065 912 932File number(s): QUD 405 of 2007 Judge: GREENWOOD J Date of judgment: 1 June 2011, as to the second separate question awaiting the decision of the Full Court in Ng v Van Der Velde [2011] FCAFC 35 published on 15 March 2011 arising out of judgment on the first separate question delivered on 22 December 2009 Catchwords: PRACTICE AND PROCEDURE – consideration of a separate question of the basis upon which an order for costs might be made on the application of the third respondent – consideration of whether the costs of the proceedings incurred by the third respondent fall within the notion of “enforcement expenses” for the purposes of clause 20 of the mortgage entered into between the first respondent and the third respondent – consideration of the principles to be applied in determining the basis upon which a mortgagee ought to have its costs as against the mortgagor of the proceedings having regard to the terms of the mortgage itself Cases cited: Van Der Velde v Ng (No. 3) [2009] FCA 1563
Ng v Van Der Velde [2011] FCAFC 35
Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81
Australian Deposit and Mortgage Bank v Lord (1876) 2 VLR (L) 31
In Re Burton; Ex parte The Union Bank of Australia Ltd (1901) 27 VLR 437
Hall v Hubbard [1931] VLR 197
McDonald v Gardiner [1933] VLR 129
Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423
English, Scottish and Australia Bank Ltd v Phillips (1937) 57 CLR 302
Elders Trustee & Executor Company Ltd v EG Reeves Pty Ltd (1988) 20 FCR 164
Barker v Perpetual Trustees Australia Ltd & Anor (No. 2) [2003] SASC 275
Perpetual Trustees Australia Ltd & Ors v Barker [2004] SASC 58
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Liberty Funding Pty Ltd v Steele‑Smith [2004] NSWSC 1100
ANZ Banking Group (NZ) Ltd v Gibson [1981] 2 NZLR 513
ANZ Banking Group (NZ) v Gibson (Court of Appeal) [1986] 1 NZLR 556
Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45
Citibank Savings Ltd v Nicholson & Ors; Citibank Savings Ltd v Pirrotta & Ors [1998] ANZ ConvR 442
Commonwealth Bank of Australia v Aspenview Productions [2001] VSC 499
Gomba Holdings (UK) Ltd v Monories Finance Ltd (No. 2) [1993] Ch 171
In re Shanahan (1941) 58 WN (NSW) 132
In re Adelphi Hotel (Brighton) Ltd [1953] 1 WLR 955
Reading Entertainment Australia Pty Ltd v Burstone Victoria Pty Ltd [2005] VSC 137Date of hearing: 14 December 2009 as to…
Continue reading Van Der Velde v Ng
Sign in free to access the full text
- AGLC
- Van Der Velde v Ng [2011] FCA 594
- Case
- [2011] FCA 594
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the interpretation of the term "enforcement expenses" in the context of the mortgage agreement. The court had to apply established principles of contractual interpretation to ascertain whether the third respondent's costs were properly classified as enforcement expenses. This involved a careful examination of the mortgage agreement's terms, the nature of the proceedings in which the costs were incurred, and the principles governing the enforcement of mortgage securities.
The court's reasoning focused on the specific language of the mortgage clause and the broader context in which the mortgage was executed. It held that the term "enforcement expenses" should be interpreted in a manner consistent with its ordinary meaning and the terms of the mortgage agreement. The court determined that the third respondent's costs were indeed "enforcement expenses" as they were directly related to the enforcement of the mortgage. The court emphasised the importance of the mortgagor's obligations under the mortgage agreement and the necessity for the mortgagee to incur expenses in enforcing those obligations.
Consequently, the court ordered that the first respondent was to pay the third respondent's costs of the proceedings on a solicitor and own client basis. Additionally, the court declared that these costs qualified as enforcement expenses under clause 20 of the mortgage agreement.
Orders
Orders of the court
1. The first respondent is to pay the costs of the third respondent of and incidental to the proceedings on a solicitor and own client basis.
THE COURT DECLARES THAT:
2. The costs the subject of Order 1 are enforcement expenses for the purposes of clause 20 of a mortgage entered into between the first respondent and the third respondent which bears Dealing No. 709600530 assigned to it upon registration in the Queensland Land Registry over land described as Lot 188 on RP 826135 in the County of Stanley, Parish of Yeerongpilly bearing a Title Reference 50176037.
Note:
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
On 29 October 2005, Ms Ng completed a loan application form in which she answered the questions on that form and thus provided information to Rams relevant to its consideration of her application. In that form Ms Ng answered the following three questions “No”: J Applicant’s Declaration●Have you or your spouse ever been declared bankrupt or insolvent, or had your estate assigned for the benefit of creditors?●Have you or your spouse ever been a shareholder or the officer of a company of which a manager, receiver, and/or liquidator has been appointed?●Is there any unsatisfied judgment entered in any court against you, your spouse, or any company with which you or your spouse are or were a shareholder or officer? As to those matters, Ms Ng had presented a debtor’s petition on 15 July 1997. The bankruptcy commenced on that day and ended on 16 July 2000. The answer to the first question was untrue. As to the second question, Ms Ng was a director and secretary of a company called Shancom Pty Ltd (“Shancom”) from 20 January 1984 to 4 November 1997 and a shareholder of Shancom. Her spouse was a director of Shancom from 3 February 1992 to 4 February 1997. An Australian Securities and Investments Commission (“ASIC”) search of the historical records relating to Shancom reveals that the company was de‑registered on 4 November 1997 having undergone a period of external administration. Shancom was wound up by Court order made in or about October 1994. Ms Ng’s answer to the second question was also untrue. As to the third question, on 13 January 2006, Drake Australia Pty Ltd (“Drake”) obtained a judgment against Riby in the Magistrates Court of Queensland on a claim filed on 28 November 2005 for $48,609.26. Riby was wound up by order of the Supreme Court of Queensland on 26 April 2006 grounded on the debt to Drake. Ms Ng’s spouse was the sole shareholder and sole director of Riby. The loan application form was originally completed by Ms Ng (incorporating the declaration as to the truth of all statements made in it) on 29 October 2005 in support of an application to Rams for a loan of $549,000.00. On 12 January 2006, Ms Ng sent replacement pages for the application to Rams by facsimile so as to amend the application to seek a loan of $256,000.00. The amended application as signed bears the date (and declaration) of 11 January 2006. At either 29 October 2005 or 11 January 2006, the judgment in favour of Drake had not been entered although the debt to Drake subsisted. Rams relied upon the loan application form in accepting the application and making the loan of $256,000.00. On 31 March 2006, Ms Ng entered into a “Rams Low Doc Home Loan Agreement” (the “Loan Agreement”) made up of a “Details” document setting out a “Financial Information” table and a table of “Other Information” under eight sub‑headings, together with a separate document incorporated by reference called “Home Loan Agreement General Terms” dated 1 March 2005. The obligations in the Loan Agreement (and related documents) were to be secured by a “1st priority registered mortgage” over the property. On 1 April 2006, Ms Ng executed the Rams Mortgage Memorandum by which that security was provided by her.