Ferella v Key Nominees Pty Limited

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

ex tempore Judgment

1. LEEMING JA: This is an application for leave to appeal from the summary dismissal by the primary judge (Darke J) of proceedings commenced on 1 May 2015 by summons. The basis of that decision was that his Honour formed the view that the proceedings had been commenced contrary to an order made in earlier proceedings by Young AJ, which was in the following terms: "No fresh proceedings are to be commenced by the plaintiff on the same cause of action without the leave of the Court. That leave to be obtained prior to commencement of any fresh proceedings."
2. It was common ground that leave had not been sought or obtained. The primary judge was of the view that the order applied to the 2015 proceedings.
3. The primary judge summarised what he described as a "lengthy history of disputation between the parties" culminating in the litigation in which Young AJ made the order as follows (neither party suggested that any aspect was inaccurate): "It appears that the defendant lent $4.3m to the first and second plaintiffs in 2004 secured by a mortgage over a property at Point Piper. There was a default under the mortgage in August 2005, and in November 2005 the defendant commenced possession proceedings. It obtained orders for possession in January 2006 and ultimately, following a marketing campaign, sold the property as mortgagee for $7.95m. Certain proceedings were commenced by the third plaintiff against the defendant in 2009. Those proceedings were ultimately due to be heard in May 2011. However, Windeyer AJ made an order that those proceedings be dismissed. This occurred in circumstances where it was apparent that the proceedings were not ready to be prosecuted. A notice of intention to appeal was filed in relation to that dismissal but no appeal was ever filed. In 2012, the plaintiffs together with another party, Augusta Pty Limited, commenced further proceedings in the Court. Following an order that the proceedings proceed on pleadings, a Statement of Claim was filed in September 2013. The Statement of Claim described the relief claimed as the relief set out in the Amended Summons. The Amended Summons in those proceedings sought various orders in relation to the manner in which the defendant conducted the mortgagee sale and accounted for its proceeds, including in prayer 4 an order for the taking of all due accounts and inquiries between the mortgagee and the mortgagor including in respect of whether the mortgagee should have paid a certain amount of goods and services tax to the Commissioner of Taxation. That amount of goods and services tax, which was described as 'the GST amount', was the amount of $722,727.27. The Statement of Claim included, in paragraph 27, a plea that the mortgagee owed various duties including duties and obligations of a mortgagee in possession to a mortgagor including to account, to hold surplus moneys on trust (subject to certain alleged equitable interests of the plaintiffs) and to pay the moneys in accordance with the trust."