Von Risefer v Permanent Trustee Company

[2000] QCA 242

[2000] QCA 242

COURT OF APPEAL

PINCUS JA

Appeal No 5162 of 2000

EUSTACE VON RISEFER AND
ELIZABETH VON RISEFER  Applicants

and

PERMANENT TRUSTEE COMPANY  Respondent

BRISBANE

..DATE 16/06/2000

JUDGMENT

HIS HONOUR:  On 9 June 2000 in this Court, judgment was given by Justice Byrne in an action by a registered mortgagee for possession of certain land.  Today, the judgment is the subject of an application for a stay pending appeal, which has been argued by Mrs Elizabeth Von Risefer.

The claim in question culminated in a trial which took place in September, November and December 1999 and also in May 2000.  The length of the case seems to have been 19 days.

The judgment of his Honour Justice Byrne commences by explaining the character of the mortgage; he describes it as registered mortgage number 701836320.  The document in question was tendered at the trial; I have a registered copy certified by the appropriate authority and its terms disclose that it is intended to secure, to put it simply, a sum of $360,000.

In the judgment of Justice Byrne, his Honour explains that there were a number of defaults complained of by the mortgagee.  One was an allegation of an interest instalment of not less than $2,100.  A second was failure to pay instalments from April 1999 and the third was failure to pay a sum of principal and other monies mentioned in a notice of exercise of power of sale of March 1998.

His Honour then goes on to explain that under the terms of the mortgage, the mortgagors, who were Mr and Mrs Von Risefer, Mrs Von Risefer being the advocate for her husband today, were to pay interest on the secured monies, that was the $360,000, at the times and calculated in the manner specified in any "related agreement".

The plaintiff's case, Justice Byrne explained, was that a related agreement was constituted by a loan offer made on
17 October 1996 and acceptance of that offer on 21 October 1996.  The mortgage in question does not make any specific reference to those documents and it was therefore necessary for the mortgagee to establish that the related agreement was constituted by the two documents, to bring into operation the clause which I explained earlier.

His Honour then goes on to discuss the question of whether or not the two documents constituted a related agreement; that depended substantially upon contested evidence.  He reached a conclusion favourable to the plaintiff, who is the respondent to this application.

His Honour explains in paragraph 13 of his reasons that the loan was not drawn down until 24 February 1997;  the mortgage having been executed finally on 18 February 1997.  His Honour says that part of the $360,000 was applied to discharge an existing bank debt and other parts were applied in other ways.  It does not appear to be in dispute however that the $360,000 was advanced.

Then his Honour discusses various alleged defaults and in paragraph 18, his Honour says, "The defendants have not paid anything under the mortgage since April 1999.  These continuing, unremedied omissions to pay interest due on the 20th day of each month are relied on as a second class of defaults," and it does not seem to be in dispute that that is correct.

So the essential question which his Honour had to determine, as it appears to me, is the connection between the documents which are mentioned at paragraph 4 of the reasons, and the mortgage; on that aspect of the matter, his Honour was satisfied with the case of the mortgagee, the present respondent.

Mrs Von Risefer has addressed the Court today in an eloquent way, explaining at my invitation the principal points which she wishes to raise in the appeal against Justice Byrne's judgment, which was instituted by a notice of appeal filed on 15 June.  That document contains many grounds and I invited Mrs Von Risefer to explain to me what were the principal grounds upon which she relied.  It was not desired that she argue them fully, but merely outline what were the bases of the appeal; Mrs Von Risefer accepted that invitation and made many points.

The principal points which Mrs Von Risefer made appear to me to be the following.  She said:

That the appellants are not in default;

That the respondent had disobeyed orders made by the Supreme Court by Justices White and Moynihan;

That the respondent is not the mortgagee under the mortgage;

That the respondent has been involved in money laundering;

That it lent money to many borrowers, thousands of them, in circumstances which were in some way reprehensible;

That it did not comply with subpoenas at the trial; That certain notice was not given adequately;

That Justice Byrne erred in allowing late amendments; That the mortgage is not owned by anyone;

That if the warrant issued in consequence of Justice Byrne's judgment is executed, the goods in the house are to be removed to this Court and;

That to put it generally, the respondent has been involved in a great deal of illegal and reprehensible activity.

I should mention that the allegations of illegal activity against the respondent do not seem to have played any part in the case, so far as one can tell from the reasons for judgment, and do not seem to have anything to do with the matter.  I do not propose to treat them as proved or supported by any evidence, none having been referred to.

The essential points of the stay application, looking at it from the legal point of view, appear to me to be two.  One of them is that the identity of the mortgagee, so Mrs Von Risefer asserts, is not the respondent but some other party.  And the second but perhaps more cogent point is that it would be very inconvenient for Mrs Von Risefer to move her family from the house at short notice and that it would be more convenient to leave the situation as it is, that is, with Mr and Mrs Von Risefer in possession pending the determination of the appeal on the matters which I have mentioned.

As to the first point, that is the identity of the mortgagee, there is nothing, so far as I can see, to throw any doubt upon the proposition that the document certified on 8 September 1999 is indeed a copy of the mortgage on the property and the respondent is the mortgagee.

I have been somewhat troubled by the submission that it would be convenient to leave matters in statu quo pending the appeal.  It is always an emotional matter for people to be removed from their house on the ground that the mortgage has not been paid and I can understand Mrs Von Risefer and her husband being upset about that.

On the other hand, there are policy considerations against allowing a stay in circumstances of this sort, unless there is some substantial ground to doubt the correctness of the judgment under appeal.  One such consideration is that it is commonly regarded as important that persons who lend money do so on security which the Courts will enforce, unless there is some good legal reason for failing to do so.  If the Courts adopted the practice of not enforcing securities for sentimental or other improper reasons, then that would be destructive of the confidence which business people and the community generally have in the legal system.

Having listened carefully, I hope, to Mrs Von Risefer's eloquent and well delivered address, I have formed the conclusion that this is not an appropriate case in which to order a stay and therefore I propose to dismiss the application.

...

PINCUS JA:  The Court orders that the application be dismissed with costs and the Court will now adjourn.

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