Westpac v Director of Public Prosecutions (Vic)
[2014] VCC 2334
•7 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-00014
| WESTPAC BANKING CORPORATION | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) and JOYCE CAROL PATIENCE | Respondents |
Case No. CI-11-00015
| WESTPAC BANKING CORPORATION | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) and PETER WILLIAM PATIENCE | Respondents |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2013 | |
DATE OF DECISION: | 7 April 2014 | |
CASE MAY BE CITED AS: | Westpac v Director of Public Prosecutions (Vic) and Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2334 | |
REASONS FOR DECISION
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant Westpac | Mr C Juebner | |
| For the Respondent DPP (Vic) | Mr S Fonseka | |
| For the Respondent Joyce Patience | Ms E McKinnon | |
| For the Respondent Peter Patience | Mr S Gillespie-Jones |
HIS HONOUR:
1 I heard submissions in these two matters on 21 May 2013. On that day Mr Juebner appeared as counsel representing Westpac Banking Corporation. Mr Fonseka appeared as solicitor for the Director of Public Prosecutions for Victoria. Mr Gillespie-Jones of counsel appeared for Peter Patience, and Ms McKinnon of counsel appeared for Joyce Patience. In both applications, an application was made by Mr Juebner on behalf of his client Westpac Banking Corporation for orders pursuant to s26 of the Confiscation Act 1997.
2 Mr Juebner sought orders which would allow Westpac as mortgagee in possession to be permitted to exercise its powers of sale with respect to a property in accordance with Part 7 of the Property Law Act 1974 (Qld). Mr Juebner had already provided written submissions with respect to his applications, and in addition made oral submissions and tendered a number of exhibits.
3 It was Mr Juebner’s submission that Westpac ought be allowed to vary the restraining orders made in respect of the property which was in Bushland Beach, Queensland. It was a vacant block of land in respect of which his client held a first registered mortgage under the Torrens system, and the mortgage was in default, no payments having been made on that mortgage facility for over two years. Mr Juebner submitted there are many cases where people make complaints about mortgagee sales, and there are appropriate venues in which those complaints can be ventilated, and that is normally done by a person making a claim for damages or seeking an injunction. It was his submission that to rely on a restraining order that was made on the basis of alleged offending so as to prevent a sale in circumstances where the mortgage has been in default for two years created an unjust result.
4 Mr Gillespie-Jones, submitted that whilst his client did not oppose the sale of the property, it was his client’s belief – a belief shared by Ms McKinnon’s client – that the property was being sold substantially under value, for two reasons: firstly, that it had not been appropriately advertised, and, secondly, that the fact that it was subject to a restraining order had an effect on the price which could be sought in the marketplace. Further, he submitted that to force the respondents to issue proceedings in the Practice Court for preliminary discovery as to what the bank had done by way of seeking valuations, and then issue proceedings in relation to that, was “hardly just”. Ms McKinnon adopted the submissions of Mr Gillespie-Jones on behalf of her client.
5 In reply, Mr Juebner relied on the case of DPP v Ing [2011] VSC 289. That case concerned an application by the DPP in a very similar application under s26 of the Confiscation Act where the DPP sought an order to allow a mortgagee, namely the Commonwealth Bank, to sell a property pursuant to a loan that had gone into default. The DPP sought to impose certain conditions on the sale as to the price and timing, which the Commonwealth Bank resisted on the basis that as a mortgagee their rights were set out under the Torrens system, and they had a right of sale which ought not to be confined in the way the DPP sought to do. The DPP brought the application to force the Commonwealth Bank to sell the property subject to conditions.
6 Mr Juebner submitted that because the mortgagee has both fiduciary and statutory duties to ensure that they achieve the best price, and because people have remedies available to them if that is not complied with, Her Honour was not prepared to accede to the DPP’s request for the conditions as to how the sale should happen and the timing within which it should happen and that the reserve price should be set. Her Honour held that those matters are for the mortgagee to determine, and, anyone aggrieved by the situation had their remedies against the mortgagee.
7 I agree with Mr Juebner that Her Honour’s reasons are apposite to the circumstances in this case, and guide me in the appropriate principles to apply.
8 On 23 May I made orders varying the restraining order, and granted the application in each case made by Westpac.
9 In discussions with counsel on 21 May, when I said I would announce my decision on Thursday 23rd, I said I would be unable then to provide written reasons, and asked whether the parties wanted reasons in writing. Mr Juebner replied, “I think it would be useful, only because this issue is going to arise again, I suspect.”
10 Mr Gillespie-Jones then reminded me of the matter of costs, and I said the arguments were to be provided in writing and that was done.
11 Unfortunately, for various reasons of an administrative kind, I have been delayed in providing this ruling.
12 The parties are in agreement that the matter of costs is governed by the interpretation of s133A of the Confiscation Act and the leading authority with respect to that Section is DPP v Le (No 2) [2007] VSCA 57. In broad compass, if s133A applies, then the General Costs Rules are ousted. A costs order can be made in favour of the applicant, but the order can only be made against the DPP (that is, the party who sought the restraining order) and if s133A does not apply, the General Costs Rules continue to apply.
13 The defence submissions note at paragraph 5:
“The difference in the two positions is that the respondents submit that there is no jurisdiction for the Court to exercise the General Costs power in an application to exclude the property from the restraining order because of s133A of the Confiscation Act 1997. The only power to award costs in this situation is against the Director of Public Prosecutions.”
Legislation: Section 133A
14 Section 133A(1) provides:
“Costs may only be awarded in accordance with this section.”
15 Section 133A(1) provides:
“Nothing in sub-s (1) affects the power of the court to award costs in any circumstances not referred to in this section.”
16 In turn, s133(2) sets out circumstances where a person who successfully resists the making of a restraining order or forfeiture order, or successfully has their property excluded from such an order, may recover costs against the unsuccessful applicant for the order.
17 Section 133A(2) only allows costs to be awarded against the party who sought the restraining or forfeiture order (that is, the Office of Public Prosecutions). Accordingly, the issue is whether the current circumstances fall within the class or proceedings governed by s133A(2).
Submissions
18 In the present case Westpac successfully made an application to vary the restraining orders to allow Westpac to exercise its contractual and statutory powers of sale. In this matter there is no doubt that: firstly, Westpac has been successful in the application; and secondly, Westpac is not involved in any in the commission of the relevant offence.
19 With respect to the application of s133A, the respondent submits the application to vary the restraining order to permit the sale satisfies the criteria in s133(2)(a)(ii) that the person appeared or brought proceedings: “to have property of the person excluded from … a restraining order”.
20 Westpac’s argument is that the application was for a variation of the restraining order as distinct from an application for exclusion from the restraining order.
21 The defence argument is that the particular application to vary is in substance an application for exclusion and should be treated as such for the purposes of s133A(2).
22 The application was made under s 26 for a variation and should be treated as such notwithstanding the submissions made to the contrary by Mr Gillespie-Jones.
23 I do have the power to award costs in this matter and I agree with the submission made by Mr C Juebner on behalf of his client that I should make an order of costs and that the order should be awarded to the applicant, the Westpac Banking Corporation, on an indemnity basis for the reasons he sets out in his submissions.
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