Westpac Banking Corporation v Chamberlain
[2016] SASC 3
•21 January 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTPAC BANKING CORPORATION v CHAMBERLAIN & ANOR
[2016] SASC 3
Reasons of Judge Dart a Master of the Supreme Court
21 January 2016
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - GENERALLY
Plaintiff registered mortgagee - defendants in default - whether defendants have made out arguable defence - defendants claim superior Native Title - Native Title extinguished - no defence made out.
Law of Property Act 1936 (SA); Real Property Act 1886 (SA) s 192; Native Title Act 1993 (Cth) s 23B; Native Title (South Australia) Act 1994 s 36F, referred to.
Corporation of the Town of Moonta v Rodgers and Rodgers 26 SASR 143; Westpac Banking Corporation v Chadah [2012] SASC 223, applied.
WESTPAC BANKING CORPORATION v CHAMBERLAIN & ANOR
[2016] SASC 3JUDGE DART:
The plaintiff is the registered mortgagee of land owned by the defendants. The plaintiff commenced these proceedings seeking an order pursuant to s 192 of the Real Property Act 1886 for the possession of the mortgaged land. It was entitled to such an order and an order to that effect was made on 20 January 2016. These reasons explain why the order was made.
Possession proceedings are usually dealt with in a summary way. If a defendant can establish an arguable defence, then the parties will be directed to file pleadings and the matter will proceed in the usual way for a civil action.[1]
[1] Corporation of the Town of Moonta v Rodgers and Rodgers (1981) 26 SASR 143.
The normal approach to these matters was considered by Peek J in Westpac Banking Corporation v Chadah where he said: [2]
In summary, provided that the applicant for an order for possession has met the requirements specified in Part XVII, Real Property Act 1886, the applicant is prima facie entitled to that order. However, if the Court is satisfied that the defendant has raised an arguable case supported by some evidence which, if accepted, could give rise to a particular defence, the matter may be referred to the ordinary civil trial list for determination.
[2] [2012] SASC 223 at [35].
Background
The defendants made an application to the plaintiff for a loan in early 2009. The plaintiff agreed to provide a loan to the defendants. The terms of the loan were contained in a written loan agreement dated, and apparently executed by the defendants, on 27 March 2009.
On the same day that the written loan agreement was executed, the defendants also executed a memorandum of mortgage by which they secured their obligations under the written loan agreement.
The defendants fell into arrears in respect of their obligations pursuant to the written loan agreement. No payments have been made to the plaintiff since 2012. The amount of the debt due to the plaintiff is now said to exceed the value of the mortgaged property. The requisite default notices were served and these proceedings commenced in January 2015.
The proceedings were initially delayed by reason of the defendants having made a complaint to the Financial Ombudsman Service. That complaint has been disposed of.
Is there an arguable defence?
To avoid the Court making a summary order for possession in favour of the plaintiff, it was necessary for the defendants to establish that they had an arguable defence.
No documents have been filed at Court by the defendants. However, a number of documents have been forwarded to the Court. They had not been filed because they were not in an appropriate form to be filed.
This matter was called on for hearing on 9 December 2015. The defendants did not appear. They did, however, send an email to the Court which said in part:
Movants will not be attending the scheduled hearing of 9th Dec 2015. Attending The Court’s scheduled hearing would grant illegal and unlawful jurisdiction to The Court. Movants have no wish or desire to violate any law germane to native rights.
Attached to the email were two documents which had been previously provided to the Court. The first document appeared to be in the nature of submissions.
The second document is headed:
IN THE SUPREME COURT OF THE WAWARRUNGGA RAVEN TRIBE OF AUSTRALIA IN ASSOCIATION WITH THE NATIVE AMERICAN LAW AND JUSTICE CENTER, OHIO, UNITED STATES OF AMERICA.
The second document was said to be a civil complaint instituted by the second defendant as “an enrolled tribal member”. The material contained in both documents is largely unintelligible. For present purposes I ignored the second document.
The hearing on 9 December 2015 was adjourned to 16 December 2015. That hearing was adjourned by consent to 20 January 2016 to permit the defendants to obtain legal advice. The defendants did not appear on 20 January 2016. Prior to the hearing a further email was sent to the Court by the defendants. The email said, inter alia, that:
1.We have retained overseas Counsel, a member of the International Bar Assocation (IBA). Judge Navin C Naidu …
2.Chief Judge Silver Cloud Musafir (Judge Naidu) works exclusively for Canadian, American and Australian Tribal governments.
…
5.Before Westpac can determine foreclosing on the property they have to evidence title that is superior to Native Title as Native Title predates the Australian Constitution.
…
8.We would also ask that 90 days is needed to get Native Title to you as the Tribe is on walkabout divining what constitutes a legal claim to Native Title.
To the extent that the email received on 20 January 2016 is an application for an adjournment, I declined to grant such an adjournment. There was no utility in a further adjournment of this matter. The issues raised by the defendants did not amount to an arguable defence for the reasons that follow.
What was tolerably clear from the defendants’ documents is that they allege that they have a superior title to the plaintiff’s and that the provisions of the Law of Property Act 1936 (SA) and the Real Property Act 1886 (SA) are to be read as taking into account Native Title. It was not clear from the material why it is that the defendants were entitled to the benefit of any Native Title rights that may exist. I proceeded on the basis that they may have such an entitlement.
The practical difficulty for the defendants was that Native Title is extinguished in a number of circumstances, one of which is where there has been a grant of a freehold estate.
The Native Title Act 1993 (Cth) provides as follows:
23BPrevious exclusive possession act
(1)This section defines previous exclusive possession act.
Grant of freehold estates or certain leases etc. on or before 23.12.1996
(2)An act is a previous exclusive possession act if:
(a)it is valid (including because of Division 2 or 2A of Part 2); and
Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(b)it took place on or before 23 December 1996; and
(c)it consists of the grant or vesting of any of the following:
(i)a Scheduled interest (see section 249C);
(ii)a freehold estate;
(iii)a commercial lease that is neither an agricultural lease nor a pastoral lease;
(iv)an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);
(v)a residential lease;
(vi)a community purposes lease (see section 249A);
(vii)what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;
(viii)any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
Vesting of certain land or waters to be covered by paragraph (2)(c)
The grant of a previous exclusive possession act on or before 23 December 1996 has a consequence which is found in the Native Title (South Australia) Act 1994, which provides as follows:
36F—Effect of previous exclusive possession acts attributable to the State (other than public works)
(1)A previous exclusive possession act (apart from an excepted act) attributable to the State extinguishes native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned.1
(2)The extinguishment is taken to have happened when the act was done.2
The Native Title (South Australia) Act 1994 incorporates into its definitions the definition of previous exclusive possession acts found in the Commonwealth legislation. The grant of a freehold estate in land extinguishes Native Title in relation to the land. The South Australian Act in s 36F goes on to provide a number of exceptions. None of the exceptions were relevant for present purposes.
The title originally exhibited to the affidavits filed by the plaintiff was Certificate of title Register Book Volume 5577 Folio 883.[3] It is an electronic title issued in the 1990s. In fact it was issued on 21 September 1998. The title refers to a parent title which is an older manual title. The old title is Certificate of Title Register Book Volume 3847 Folio 130. A copy of that was exhibited to an affidavit.[4] It is apparent that the parent title issued on 26 June 1972 was as the result of a subdivision of land at Christie Downs. It is clear from a consideration of the parent title that any claim for Native Title which the defendants may have had was extinguished at least from 1972 onwards, but most likely before that time, as it is apparent that they were earlier titles.
[3] Affidavit of Domenic Cannalonga sworn 16 January 2015, Exhibit 3 (FDN3).
[4] Affidavit of Lauren Rowan sworn 19 January 2016, Exhibit 2 (FDN14).
There was no arguable defence put forward by the defendants in any of the material before the Court. Accordingly, the plaintiff was entitled to the order sought and I so ordered.
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