IIB Global NV & Anor v Scott Darren Pascoe & Ors

Judgment 1By Notice of Motion filed on 5 October 2011, Mr Pascoe (as trustee of the bankrupt estate of Mr Arthur Dyason) seeks orders that paragraphs 2-6 of the relief sought in the Summons and the associated pleadings and particulars be struck out or dismissed. Mr Pascoe also seeks orders that the Registrar General register certain unregistered dealings and be ordered to reject and cancel two other dealings under s 138 of the Real Property Act 1900 (NSW). The Registrar General has filed a submitting appearance except in respect of costs in the proceedings. 2The application made by Mr Pascoe gives rise to some complexities and any order striking out the proceedings may, for reasons I indicate below, give rise to practical difficulties. I have therefore determined that the preferable course is to indicate the conclusions which I have reached as to the matters which were argued before me but allow the parties an opportunity to make further written submissions, within 14 days, as to the further orders or directions which should be made in the proceedings consequential upon this judgment. The relevant principles 3The Court's power to dismiss a Summons generally or claims made in it arises under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) which relevantly provides that: If in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: ... (b) no reasonable cause of action is disclosed ... the court may order that the proceedings be dismissed generally or in relation to that claim. The Court's power to dismiss proceedings under this rule is exercised with caution but may be exercised where a plaintiff's case is so weak that it would be futile to permit the proceedings to go to trial: see Ritchie's Uniform Civil Procedure NSW at [13.4.15]. 4The relevant principles have been identified in the case law. In Burton v The President of the Shire of Bairnsdale (1908) 7 CLR 76 at 98-100, Higgins J observed that the power to strike out a claim: ... has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument: Hubbuck v Wilkinson . The pleading must be "obviously frivolous or vexatious, or obviously unsustainable," if it is to be struck out (per Lindley LJ in Attorney General of the Duchy of Lancaster v London and North Western Railway Co ). The pleading must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court": Young v Holloway . 5In Cox v Journeaux (No 2) (1935) 52 CLR 713, the High Court exercised the power to summarily dispose of proceedings. However, the exceptional character of the jurisdiction to do so was emphasised by Sir Owen Dixon who observed that: It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. But the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact. 6Similarly, in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944, Cross J observed that "the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases" and that "fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion". In Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607, after undertaking a comprehensive review of the case law, Rothman J observed that the Court has an inherent jurisdiction, described in the rule, to strike out a plaintiffs' case because it is so weak and/or because it depends upon facts, which, on the plaintiffs' case, cannot be proven, but observed that the Court would take that course "only in exceptional circumstances and only where it came to the view that to proceed further would be futile." The relevant pleadings 7By way of background, I should note that, on 21 September 2011, I delivered an earlier judgment in these proceedings by which I ordered that the Summons be dismissed in respect of the First Plaintiff ("IIB Global"), that IIB Global be dismissed from the proceedings and that paragraph 1 of the Summons be dismissed in respect of the Second Plaintiff, Mr Linden Dyason ("Mr Dyason"). The result of those orders was that Mr Dyason, in his personal capacity, remained as Plaintiff in the proceedings in respect of the orders sought in paragraphs 2-6 of the Summons. 8Paragraph 2 of the Summons seeks an order that the application be adjourned until the "applicant" obtains permission to represent Ms Lindsey Jane Dyason as one of the registered proprietors. Ms Lindsey Dyason is the third named Second Defendant in the proceedings and is one of the registered proprietors of the property in issue in the proceedings. The Summons uses the term "applicant" to refer to Mr Pascoe (who is one of the third named First Defendants and also the Second Defendant) or possibly to Mr Pascoe and Ms Occleshaw (who are the third named First Defendants). 9I do not consider that there is any reasonable prospect that the Court would make the order sought in paragraph 2 of the Summons. Mr Pascoe and Ms Occleshaw have been joined by the Plaintiffs as Defendants in the proceedings and are entitled to defend the proceedings. Ms Lindsey Dyason has also been joined as a Defendant in the proceedings although she has not taken any active part in them. I can see no basis on which Mr Pascoe's and Ms Occleshaw's ability to defend the proceedings against them should be made conditional on their obtaining permission to represent another defendant in the proceedings. There is also no evidence before the Court that Ms Lindsey Dyason has consented or would consent to being represented in that manner and such an order would require an adjournment for an indefinite period if Ms Lindsey Dyason delays in consenting to that arrangement or does not consent to that arrangement. I consider that paragraph 2 of the Summons should be dismissed. 10Paragraph 3 of the Summons seeks a declaration that the handwritten words "including transfer of the mortgage" in Schedule 2, clause 1 of a caveat lodged by Mr Pascoe over the relevant property are of no force and effect. Mr Dyason has not put submissions to support this relief and I am aware of no principle which prevents a handwritten amendment being made to a caveat before it is lodged. I have granted orders extending the operation of that caveat, on an interlocutory basis, in my judgment delivered on 14 October 2011 in these proceedings. I can see no basis on which the Plaintiffs could succeed in obtaining the relief sought under this paragraph. I consider that paragraph 3 of the Summons should be dismissed. 11Paragraph 4 of the Summons seeks: "A Declaration that there is no legal impediment to the Registrar of Lands and Property Management Authority ("LPMA") giving effect to the registration of the Transfer of Mortgage AC [omitted] from The Trust Company to IIB Global NV, the First Plaintiff (presently pending with LPMA)." 12There appears to be no contest before me as to several relevant facts, which I summarised in my earlier judgment delivered in these proceedings on 21 September 2011. By letter dated 28 April 2008, solicitors acting for (inter alia) Mr Arthur Dyason advised solicitors for The Trust Company (PTAL) Limited ("PTAL") that an amount had been transferred to PTAL in payment of the amounts due under the mortgage and requested those solicitors to forward the certificate of title and a discharge of the mortgage. PTAL executed a discharge of the mortgage on 9 May 2008 that was lodged, together with the certificate of title, with the Land Titles Office by IIB Global's solicitors by letter dated 17 August 2009. By letter dated 28 March 2011, solicitors for PTAL advised that the relevant mortgage had been transferred to IIB Global. An undated transfer of mortgage was signed on behalf of PTAL. 13It appears that PTAL received the relevant payment on the basis of its agreement that it would discharge the mortgage once that payment was received. If that is the factual position, then it is difficult to see any basis on which PTAL could have enforced its mortgage against Mr Arthur Dyason (or Mr Pascoe as his trustee in bankruptcy) after it had agreed to discharge it, had received payment of the amount due on that basis and a discharge of mortgage had been executed and lodged for registration. However, the fact that a claim may be unlikely to succeed at a final hearing will not generally be sufficient to warrant an order that it be struck out having regard to the principles set out above. 14There is, in my view, a second difficulty with the declaration presently sought by Mr Dyason in paragraph 4 of the Summons, as to which I sought and received additional submissions from the parties. The relief sought in that paragraph seeks to establish, in effect, that IIB Global is entitled to registration of a transfer of a mortgage to it. IIB Global is not now party to the proceedings and Mr Dyason is also not, for the reasons I set out in my judgment dated 21 September 2001, an officer of IIB Global. The evidence which I reviewed in that judgment indicates that: