Westpac v Gibbons (No 4) - [2012] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTPAC v GIBBONS (No 4)
[2012] SASC 80
Reasons of Judge Lunn a Master of the Supreme Court
21 May 2012
PROCEDURE
Money paid into Court under s 47 Trustee Act as surplus on mortgagee's sale - money paid into Court in action in which mortgagee had previously obtained a possession order for the property against the mortgagor - two non-party claimants to the money allowed to intervene under 6R 89 - contest between them as to their respective entitlements - previously held claim of one intervener succeeded and order for payment out to him - cross-application on costs - nature of intervention under 6R 89 - held general rule that no costs should be ordered to or against interveners not applicable in circumstances of the case - costs to be dealt with under general discretion of the Court on costs - held costs should follow the event of the contest between the two interveners - application for costs on solicitor and client scale refused.

WESTPAC v GIBBONS (No 4)
[2012] SASC 80
JUDGE LUNN:
Reasons on applications for costs

This action was commenced by the plaintiff as the mortgagee of the subject property against the defendant as the mortgagor of that property seeking an order for possession under Part 17 of the Real Property Act 1886 (“Part 17”) which was preliminary to the mortgagee exercising its power of sale under the mortgage. On 28 October 2009 I made an order for possession. This disposed of the principal relief sought by the plaintiff in the action.
The plaintiff exercised its power of sale and on 23 February 2011 paid a surplus on that sale of $128,114.35 into this Court pursuant to s 47 of the Trustee Act. Under that section it was authorised to pay that money into Court, as it was uncertain who was beneficially entitled to it. In accordance with the general practice of the Court the notice of payment in was filed in this action.
By an interlocutory application of 4 March 2011 (FDN15) Dorian Pozzan applied for an order that the monies in Court be paid out to him. By a further application of 29 March 2011 (FDN17) Mr Pozzan applied for leave to intervene in the action. On 1 April 2011 another Master gave permission to Mr Pozzan to intervene. This was in accordance with a general practice of the Court to give applicants for the payment out of monies paid into Court as the surplus on mortgagees’ sales the status of interveners in actions which had been previously commenced by the mortgagees under Part 17. Permission was also given to another claimant to the monies in Court, Findon Developments Pty Ltd, to intervene, but its claim was subsequently dismissed and it is not relevant to what I now have to decide.
On 29 September 2011 Suzan Gibbons issued an interlocutory application (FDN33) seeking permission to intervene and for payment out to her of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Westpac v Gibbons (No 4)

Details

AGLC: Westpac v Gibbons (No 4) [2012] SASC 80
Case: [2012] SASC 80
Decision Date: 21 May 2012

CaseChat Overview and Summary

In Westpac v Gibbons (No 4), the dispute arose from the sale of a property under a mortgage. Westpac, as the mortgagee, sold the property and paid a surplus of $128,114.35 into court as it was uncertain who was entitled to it. Two non-party claimants, Dorian Pozzan and Suzan Gibbons, intervened to assert their rights to the surplus. The court had to determine the legal issues concerning the nature of the intervention under Rule 89 and the costs associated with the dispute between the interveners.

The court first addressed the nature of the intervention under Rule 89, noting that interveners do not have a defined status and their roles vary depending on the circumstances. It rejected the general rule that costs should not be awarded to or against interveners in this case, as the interveners actively participated in the contest over the surplus. The court opted to handle the costs based on its general discretion under the Supreme Court Act 1935 and the relevant rules, rather than adhering to the cited authorities about interveners.

The court ruled that the costs should follow the event of the contest, meaning that the unsuccessful party should bear the costs of the successful party. It rejected the application for costs on a solicitor and client scale, as the claims were not deemed hopeless and the interveners' participation was substantial. The court found that the costs incurred from the directions hearing onwards should be borne by Suzan Gibbons, while the other costs were to be borne by the respective parties.

The final orders required Suzan Gibbons to pay Dorian Pozzan's costs from the directions hearing, with no other orders for costs of the initial applications. The application for costs on a solicitor and client scale was also refused.

Orders