Anderson v Liddell

Anderson v Liddell - [1968] HCA 12 - HCA 1968 case summary — Zoe

[24]

The next attack on the sale is that the sheriff, being under an obligation to get a fair price, failed to do so. In my opinion, there is no substance in this submission. There was no evidence in this case upon which it could be concluded that the price obtained was other than a fair price for what was sold in the circumstances in which it was sold. The price at which the respondents earlier offered to treat did not itself indicate, in my opinion, that the price obtained at the sheriff's sale was unfair. It was said that the sheriff ought to have obtained a valuation by an expert as to the value - presumably the market value - of the land. No doubt the sheriff should know what he is selling to the point that he can decide whether or not a bid at the auction is illusory or unfair: but, in my opinion, he is not required to obtain a valuation of the market value of the land. Clearly he is not required to refuse to accept a bid which is less than the market value of the land. Provided the sale conforms to the statutory requirements, generally speaking the amount bid by members or a member of the public will indicate what the property will bring in the circumstances of such a sale. It seems to me that the sheriff is entitled to accept at the auction any bid which is genuinely made and which bears a fair relationship to what is being sold. It is in this connexion that the sheriff must know what he is selling for it is rightly said, in my opinion, that he must obtain a reasonable price for what he sells: see Keightley v. Birch [1] . It is to be reasonable having regard to what is offered, namely, a debtor's right title and interest, if any, and the circumstances of the sale. If there is no such bid, the sheriff is justified in returning, and he should return, a want of buyers. But in this case I can see no reason connected with the amount of the respondents' bid in relation to the property offered for sale which would have warranted the sheriff in refusing to accept it.

[25]

The appellant then made what appears to me to be his main submission. He said that the writ of fieri facias does not authorize the sheriff to sell land which has a value - by which I take it the appellant means is likely to realize in the sheriff's public auction a sum - greater than the amount of the levy to be raised under the writ. So soon as the sheriff appreciates that the land is of such a value, it is said that he should return to the writ the fact that the land has been taken but that there are no buyers, thus giving the judgment creditor the opportunity to obtain the further writ of venditioni exponas. This submission, in my opinion, is misconceived. Land is "liable to be taken" under a writ of fieri facias in Queensland and, in my opinion, may be sold under the writ as any other item of property may be sold thereunder. In the case of chattels, the sheriff must not sell any further items of property once he has realized the levy under the writ. But, not having reached that sum, the sheriff may properly sell a further chattel though the amount which might reasonably be expected to be realized from that sale is greater than the unrealized balance of the levy: see Wooddye v. Coles Baily of Southw. [2] ; Stead v. Gascoigne [3] . It seems to me the same principles apply in relation to the sale of land by the sheriff. The sheriff is entitled to sell a parcel of land no matter what sum its sale might reasonably be expected to bring. His duty to the judgment creditor requires so much. The judgment debtor may nominate the order of the sale of his assets and thus require chattels first to be sold; or other land of lesser value first to be sold. But, in default of such action on the judgment debtor's part, the sheriff is entitled, indeed, in my opinion, bound to sell the debtor's interest in the land, whatever sum it may bring so long as at the time of the sale he has not raised by other means the full amount of the levy. He is not required, in my opinion, to sell parcels of land in any order.

[38]

None of the grounds relied upon in support of the appeal seems to me to have substance. One was that the sheriff should have taken all the steps which at the present time in Queensland are ordinarily taken by auctioneers conducting public auctions of land. Like Lucas J., I am not prepared to hold, without further consideration, that the sale had to be by auction. The mode of sale under a fieri facias is in the discretion of the sheriff except in so far as it is controlled by special provisions made by or under a statute: Edwards, Law of Execution (1888), p. 124, see Phillips v. Canterbury (Viscount) [1] . In England a public auction is required in certain cases by a provision which was enacted in s. 74 of the Bankruptcy Act of 1861 and, though not repeated in the Act of 1869, was restored in s. 145 of the Act of 1883 and appears to be still in force. No similar provision exists in Queensland except in s. 61 of The Common Law Process Act of 1867 which applies only to sales of equities of redemption and other equitable interests. The appellant's interest was a legal interest subject to a charge and therefore was not, in a strict sense, an equity of redemption or any other form of equitable interest: see Greig v. Watson [2] ; Perry v. Rolfe [3] ; Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd. (In Liquidation) [4] . It may be, however, that that is not the sense in which the expression is used in The Common Law Process Act: see Coleman v. De Lissa [5] , and cf. Re Forrest Trust [6] . Lucas J. suggested that public auction may be impliedly prescribed by O. 48, r. 6, of the Rules of Court; but that rule seems to be directed to the making of an order that a sale under an execution "shall" be made otherwise than by public auction, and even if "shall" had been "may" I venture to doubt whether a positive requirement that sales shall be by auction unless otherwise ordered is implied rather than erroneously assumed to exist by force of some other rule or enactment. Even if the sale in the present case was required to be by public auction, however, I see no ground for imputing a requirement that any particular procedure shall be followed. The sale was in public; the persons present were given reasonable opportunity to bid; and none of them was subjected to any unfairness. The disclosure of the reserve was a departure from the course which is usually considered to be best calculated to extract the highest possible bids, but I see no ground for saying that the sale ceased to be a public auction sale when the sheriff announced that he would not accept bids below the stated amount. In any case, as Lucas J. pointed out, the disclosure did no harm in the present case, for the respondents' bid exceeded the announced reserve, and in fact was the highest they were financially able to make.

[40]

Another complaint on the part of the appellant was that the price accepted by the sheriff was grossly below the value of the land, and that the sheriff before accepting the bid should have satisfied himself, by obtaining a competent valuation, what the true value was. If it was apparent to the sheriff that in fact or in all probability the bid was so far below the value that he would be acting unreasonably by accepting it, his proper course was to make a return that the property remained unsold for want of a buyer, and to refrain from selling at such a price unless commanded by a venditioni exponas to sell for what he could get: Keightley v. Birch [1] . For selling in that situation without waiting for a venditioni exponas he would be liable to an action for damages at the suit of the appellant, but whether the sale could be set aside in the absence of collusion between the sheriff and the purchaser is by no means clear. In the case of chattels I am not aware of any jurisdiction that the Court possesses, on the ground of a breach by the sheriff of any duty he may be under in relation to the sale, to set aside the sale and restore to the debtor the ownership which the sheriff has passed to the purchaser by virtue of the special property vested in him by his seizure under the writ. The jurisdiction seems to have been assumed in Ireland in respect of chattel interests in land, in the case of Edge v. Kavanagh [2] ; but in the case of land to which s. 35 of The Real Property Act of 1877 Q applies I do not see, as at present advised, any ground upon which a purchaser from the sheriff can be denied his right to have a transfer registered in accordance with that section unless the jurisdiction of a court of equity to act in personam be attracted by proof of collusion between him and the sheriff: cf. Perkins v. Willcock [1] , and Palmer v. Bourke [2] . No collusion was suggested in the present case. It was not proved that the sheriff had any reason to think that a bid of $16,500 was so far below the value of the land that he could properly make a return to the effect that in reality he had no buyer, or even that in fairness to the appellant he ought to obtain the advice of a valuer. In my opinion Lucas J. was right in rejecting this ground of attack on the sale.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties