BRIGGS -v- LUNT [No 4] [2011] WASCA 145 (1 July 2011)

BRIGGS -v- LUNT [No 4] [2011] WASCA 145 (1 July 2011) - WASCA 2011 case summary — Zoe

[33]

On 1 July 2010, the Honourable Justice Heenan set aside the orders made 30 September 2009.
On 8 July 2010, after a hearing at which William Trevor Lunt's solicitor opposed the granting of a further suspension order, the Honourable Justice Pullin of the Court of Appeal made the following orders in CACV 60 of 2009:
1. Subject to order 2, the respondent will not be entitled to proceed to enforce the judgments in CIV 1501 of 2001 or CIV 1974 of 2001 until the judgement in appeal CACV 60 of 2009 has been handed down.
2. In the event that an appellant in CACV 60 of 2009 does not proceed with the appeal within the time limits set down in the rules or by the court, the respondent will be entitled to a discharge of the suspension order.
3. Either party have liberty to apply to discharge the suspension order after reasons for decision are published by Heenan J for his decision on 1 July 2010 lifting the suspension order in the primary proceedings.
4. Time be extended in relation to all past steps the parties to the appeal were required to take under the rules until the date that those steps were taken.
5. The costs of the application be reserved.
On 9 July 2010 in CIV 1501 of 2001 a PSSO issued to William Trevor Lunt.
By letter dated 12 July 2010 William Trevor Lunt notified the First Appellant's wife that her home would be sold if the First Appellant should default '... in settlement of Judgment'. The letter enclosed a copy of the PSSO.
By letters dated 12 July 2010 William Trevor Lunt notified the First Appellant's daughters that they would be liable to pay any shortfall in the judgment if the First Appellant did not satisfy the judgment and the proceeds from the sale of his home were insufficient to cover the judgment. The letter enclosed a copy of the PSSO.
On 13 July 2010 William Trevor Lunt lodged the PSSO against the interest of the First Appellant in Certificate of Title Volume 1881 Folio 326 ('5 Ocean Court').
At all relevant times St George Bank was the first registered mortgagee over 5 Ocean Court.
By letter dated 2 August 2010 William Trevor Lunt wrote to the First Appellant's wife informing her that he had registered the PSSO against 5 Ocean Court, that the Perth Sheriff is in receipt of all documents for execution in due course, that he had appointed an auctioneer to conduct the sale of 5 Ocean Court, that he had made arrangements for the signs to be placed on or near 5 Ocean Court advising of the proposed auction by the Sheriff.

[51]

McGOWAN, MR: May it please the court, I appear on behalf of the applicant.

PULLIN JA: All right, thank you. Mr Duckham?

DUCKHAM, MR: Your Honour, I appear by direction of the court but I'm not instructed by the respondent. I can elaborate on that at a later time.

PULLIN JA: When you say 'by direction of the court,' what do you mean?

DUCKHAM, MR: Your Honour, the prerequisite for these proceedings are two, as I understand; first of all, the service of the order and, second, personal service of the application. To my knowledge, neither of these have been complied with and I have written to the court on two occasions and said, without - - -

PULLIN JA: Well, I would be considering that, but let me understand your position. Are you wanting to withdraw now? I'm trying to understand why you say there was direction of the court.

DUCKHAM, MR: No, I'm really in your hands as to ruling. In the absence of complying with order 55 rule 5 subrule (2) I believe there is no proceedings before the court.

PULLIN JA: Well, let me just understand. When you say you are appearing 'by direction of the court,' who gave the direction?

DUCKHAM, MR: Well, I wrote to the court yesterday and said I did not intend to appear and they said, 'You must appear.'

PULLIN JA: Who is 'they?'

DUCKHAM, MR: I haven't got the letter with me but it was from the central office, I believe.

PULLIN JA: Well, the central office isn't the court. So you make your own decision. Do you want to appear or - - -

DUCKHAM, MR: I came here at - I didn't want to be in breach of any professional or ethical requirement so I came here as directed by a communication I received from this court.

PULLIN JA: All right. Anyway, it's not - - -

DUCKHAM, MR: I haven't brought it with me.

PULLIN JA: Well, for present purposes I am the court, Mr Duckham, so what do you want to do? Do you want to make submissions or do you want to withdraw?

DUCKHAM, MR: Well, I will make a submission that there is no present proceedings before the court.

PULLIN JA: All right.

DUCKHAM, MR: But even then it's without instructions.

PULLIN JA: Yes, all right. Well, do you want to stay to hear what happens or do you want to withdraw?

DUCKHAM, MR: I'm happy to withdraw if you are so minded but it may be appropriate before that to make a ruling under order 55 rule 5 in the other matter I want to refer to.

PULLIN JA: All right.

DUCKHAM, MR: I think professionally I would be better protected if I withdrew.

PULLIN JA: All right. Well, it's up to you, Mr Duckham.

DUCKHAM, MR: I withdraw, sir, but not with any disrespect to the court, I hasten to add.

PULLIN JA: No, no, I understand that.

DUCKHAM, MR: Thank you, sir.

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BRIGGS -v- LUNT [No 4] [2011] WASCA 145 (1 July 2011)

Legislation Cited (4)

Cases Cited (8)