Wilde & Anor v Morgan & Ors - [2013] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0103

BETWEEN:

MILTON WILDE	First Applicant
- and -
ART PACIFIC PTY LTD (ACN 089 489 270)	Second Applicant

BRENT LEIGH MORGAN and GEOFFREY NIELS HANDBERG	First and Second Respondents
- and -
BENDIGO & ADELAIDE BANK LIMITED ABN 11 068 049 178	Third Respondent

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JUDGES	HANSEN and TATE JJA
WHERE HELD	Melbourne
DATE OF HEARING	13 September 2013
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 250
JUDGMENT APPEALED FROM	Re Art Pacific Pty Ltd; Wilde v Morgan & Ors [2013] VSC 330 (Derham AsJ, 27 June 2013)

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Mortgage – Default notice – Service – Memorandum of Common Provisions – Construction – Effect of provision of a ‘new’ address – Whether in replacement of or additional to address of property in mortgage as a place at which notice may be left or given – Transfer of Land Act 1958 (Vic) s 113 – Leave refused to rely on doctrine of fair notice.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr B Carew with Ms A M Haban-Beer	ICA Lawyers
For the Respondents	Mr S R Horgan SC with Mr C Möller	Piper Alderman

HANSEN JA:

This is an application for leave to appeal from the dismissal by Derham AsJ[1] on 27 June 2013 of an originating process by which the applicants sought declarations under s 418A(2) of the Corporations Act 2001 (Cth), that:

(1)the appointment of the first and second respondents as agents for the third respondent by Deed of Appointment of Agents for Mortgagee in Possession dated 23 October 2012 (the Deed) under a mortgage of land between the second applicant and the third respondent was invalid;
(2)further or alternatively, the first and second respondents entry into possession or assumption of control of the land of the second applicant pursuant to the Deed was invalid.

The second applicant and mortgagor is Art Pacific Pty Ltd (Art), the sole director of which is the first applicant, Milton Wilde. The third respondent and mortgagee is Bendigo & Adelaide Bank Limited (Bendigo).

[1]Re Art Pacific Pty Ltd; Wilde v Morgan & ors [2013] VSC 330 (‘Reasons’).

The case concerned a Default Notice purportedly served on Art under the mortgage. If the notice was not validly served, the appointment by Bendigo of the first and second respondents as its agents was not valid.

Derham AsJ stated that the following two issues were raised:

(1)Was the Default Notice properly served in accordance with cl 13.01 of the Memorandum of Common Provisions AA662 (incorporated in the mortgage) by being left at the address of the mortgagor shown in the mortgage?
(2)If not, was there proper service of the Default Notice under s 113 of the Transfer of Land Act 1958 as applied by the Memorandum of Common Provisions or independently, by it being left at the address of the mortgagor shown in the mortgage?

Derham AsJ concluded that the Default Notice had been duly served as provided…

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.

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Details

Case: [2013] VSCA 250
Decision Date: 20 September 2013

CaseChat Overview and Summary

The plaintiffs, Wilde and another, sought to establish the validity of a default notice served in relation to a mortgage held over certain property. The defendants, Morgan and others, contested the notice's validity due to alleged non-compliance with the prescribed service procedures. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the service of a default notice was valid when the notice was provided to an address different from that stipulated in the mortgage's memorandum of common provisions. Specifically, the court had to determine if the new address was intended to replace or supplement the original address in the mortgage document.

The court examined the relevant provisions of the Transfer of Land Act 1958 (Vic) and the terms of the memorandum of common provisions. It held that the new address was not intended to replace the original address but rather to be an additional place where the notice could be served. Consequently, the court found that the notice was validly served, rejecting the argument that the doctrine of fair notice should apply to render the notice invalid. The court's reasoning was grounded in the clear language of the memorandum and the absence of any indication that the new address was meant to replace the original address.

The court refused the defendants leave to rely on the doctrine of fair notice, concluding that the plaintiffs had complied with the requirements for serving a default notice. The decision was based on the interpretation of the legal documents and the absence of any ambiguity in the service address provisions. The plaintiffs were thus successful in their claim, and the court dismissed the defendants' counterclaim.

Orders