King Investment Solutions Pty Ltd v Fahmi Mustafa Hussain & Meraj Ather Hussain

King Investment Solutions v Hussain [2005] NSWSC 1076 Meriton Apartments Pty Limited v Industrial Court of New South Wales [2009] NSWCA 434 Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14,142 ANZ Banking Group v Comer (1993) NSWConvR 55-668 Silkdale Pty Ltd v Long Leys Co Pty Ltd 7 BPR 14,414 CASES CITED : Croft v Kennaugh [1945] VLR 40 Cronin & Ors v State Bank of South Australia & Ors [1995] ANZConvR 119 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Hayes & Ors v Development Assessment Commission & Ors (No. 4) [1997] SASC 6155 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Johnson v Gore Wood & Co [2002] 2 AC 1

King Investment solutions Pty Ltd (Plaintiff) PARTIES : Fahmi Mustafa Hussain (First Defendant) Meraj Ather Hussain (Second Defendant)

L R Young (Plaintiff) COUNSEL : D Knaggs (Solicitor) (First Defendant) P Silver (Second Defendant)

Heidtman & Co, Lawyers (Plaintiff) SOLICITORS : D Knaggs (First Defendant) David Begg & Associates (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/295960 King Investment Solutions Pty Ltd v Fahmi Mustafa Hussain & Meraj Ather Hussain

JUDGMENT 1 HIS HONOUR: The plaintiff, King Investment Solutions Pty Ltd, seeks possession of a property at Normanhurst jointly owned by the defendants, Fahmi and Meraj Hussain, pursuant to a registered mortgage securing money advanced by it to the defendants in 2004. To understand the issues which I must decide, it is necessary to sketch the history of the proceedings. 2 On or about 17 December 2004, the plaintiff loaned the defendants $95,000, at a high rate of interest, to be repaid by 17 February 2005. On 17 December the defendants granted the plaintiff a mortgage, but it was not registered until much later, on 18 February 2009. It was a second mortgage, the first (registered) mortgagee being Perpetual Trustee Company Ltd. The principal and interest were not paid by the required date, and in April 2005 the plaintiff commenced proceedings for specific performance of the agreement contained in the mortgage, for possession of the property, and for an order that it be sold. Judgment was also sought for the amount of the principal and interest. At that time, of course, the mortgage was unregistered. 3 On 1 August 2005, Macready AsJ granted the plaintiff summary judgment, making the orders sought and giving judgment for the principal of $95,000 and interest of $56,430, a total of $151,430. The defendants appealed, and on 27 October 2005 Campbell J (as he then was) set aside the orders for possession and sale, but confirmed the monetary judgment: King Investment Solutions v Hussain [2005] NSWSC 1076. (A limited part of that judgment is reported at 64 NSWLR 441, but the aspects of it relevant for present purposes are to be found only in the unreported decision.) 4 Certain procedural steps were taken thereafter, which need not be recited. It is sufficient to say that before me are fresh proceedings instituted by the plaintiff, pursued upon a further amended statement of claim filed on 9 April 2009, and founded upon the mortgage since its registration roughly two months earlier. The plaintiff again seeks possession of the property, together with an order for payment of its expenses, "including fees and charges incurred in enforcing, maintaining or preserving its rights" under the mortgage. The plaintiff also seeks the costs of the proceedings, and interest, including interest on the judgment in the earlier proceedings, in accordance with the terms of the mortgage. 5 From affidavit evidence it appears that two interest payments, each of $4,750, were made in 2004 and 2005, before the judgment of Macready AsJ, and a further payment of $20,000 was made later in 2005, before the judgment of Campbell J. However, it is common ground that no further payment has been made since then. 6 The second defendant, Meraj Hussain, denies having signed the mortgage but accepts that, the mortgage now being registered, that of itself does not found a defence against the plaintiff's claim for possession. Should the proceedings against her be successful, she proposes to seek relief elsewhere. 7 The first defendant, Fahmi Hussain, relies on the principle of res judicata or estoppel arising from the resolution of the earlier proceedings. The second defendant was not an active participant in those earlier proceedings and her case was not put to the Court, either at first instance or on appeal. However, her counsel supports the first defendant's position and the plaintiff accepts that, if the proceedings against him fail, those against her should also be dismissed. Both defendants also take issue with the plaintiff's claim for expenses and costs, and with the rate of interest sought.

Possession 8 The solicitor for the first defendant, Mr Knaggs, argued that the principles of res judicata or issue estoppel prevented the plaintiff from bringing the present proceedings. The order for possession sought, he submitted, was finally decided, adversely to the plaintiff, by Campbell J in the earlier proceedings. 9 In Meriton Apartments Pty Limited v Industrial Court of New South Wales [2009] NSWCA 434, this question arose in relation to the effect of a decision of the Federal Court. At [35] - [36], Handley JA succinctly stated the relevant principles by reference to High Court authority: "35 The decision of the Federal Court did not create an issue estoppel on the invalidity of the assignment. In Blair v Curran (1939) 62 CLR 464, at 531 Dixon J said: 'The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion.' 36 The position where a claim is rejected is clear, as Dixon J said in Blair v Curran at 532: 'Where the conclusion is against the existence of a right or claim … the estoppel covers only the actual ground upon which the existence of the right was negatived.'" 10 It is necessary, then, to examine briefly the nature of the earlier proceedings and the grounds on which Campbell J set aside the order for possession. As I have said, at that time the plaintiff sought specific performance of the agreement in the mortgage, together with orders for possession and sale. Put shortly, they were proceedings for an order for judicial sale, the appropriate remedy for an unregistered second mortgagee. 11 That remedy, and the status in law of an unregistered second mortgagee, were examined at length by Campbell J in his judgment at [33] ff. At [45] - [49], his Honour examined the old system mortgage, and noted at [52] that s 57 of the Real Property Act 1900 provides that a mortgage under that Act, "has effect as security but does not operate as a transfer of the land mortgaged". At [54], his Honour said:

"The Real Property Act 1900 itself confers no status upon an unregistered mortgage. Rather, the attributes of such a mortgage derive from the contract between the mortgagor and mortgagee, and the general law." 12 His Honour examined the law relating to an order for judicial sale, and observed at [80] - [81]: "80 In the present case, the mortgage of the second mortgagee contains a contractual power of sale. In itself, that provides a basis for the Court to have jurisdiction to make an order for sale of the mortgaged property, by way of an action for specific performance. 81 … The interest of a mortgagee of Torrens title land is only ever, even when the mortgage is registered, in the nature of a statutory charge, together with some of the attributes of an old system mortgage that are not inconsistent with the Torrens system and such equitable rights as arise from the contract between the mortgagor and mortgagee. An unregistered mortgage will likewise be regarded by equity as conferring an equitable charge together with some of the attributes of an old system mortgage that are not inconsistent with the Torrens system and such equitable rights as arise from the contract between the mortgagor and mortgagee. … an order for judicial sale is the standard way of enforcing an equitable charge." 13 At [86] - [123], his Honour examined a number of requirements for an order for judicial sale, which he found had not been met in the present case. Chief among these was the joinder of the first mortgagee as a party to the proceedings. It was the failure to meet these prerequisites which led his Honour to set aside the orders for possession and sale. 14 At [125] - [126], his Honour observed that a registered second mortgagee of Torrens land can bring proceedings in ejectment; that in the event of an issue as to right of possession between a first and second registered mortgagee, the first mortgagee would have priority; and that if the first mortgagee did not seek possession, the existence of that mortgage would not entitle the mortgagor to deny possession to the registered second mortgagee. For those propositions his Honour referred, among other authorities, to Zanzoul v Westpac Banking Corporation (1995) 6 BPR 14, 142. By contrast, his Honour added, a mere equitable chargee of land has no right to possession. 15 At [127], his Honour said that an equitable mortgagee of land has no entitlement to an order for possession of the type now provided for by s 20 of the Civil Procedure Act 2005. Omitting reference to authority, his Honour continued: "However, if there is a covenant in the mortgage entitling an equitable mortgagee to possession upon default, once there has been a default an equitable mortgagee is entitled to a declaration that it is entitled to possession, and, in an appropriate circumstance, an order in the nature of specific performance requiring the mortgagor to give possession to the mortgagee …" 16 His Honour noted that there was such a covenant in the present mortgage, so as to provide the basis for an order in the nature of specific performance. However, he also noted that such an order would be directed to the mortgagors, "ordering them in personam to give up possession to the mortgagee": [129]. He added that an order for specific performance was a discretionary remedy, "concerning which the court can take into account any interests of third parties who are not bound by the equity which gives rise to the claim for specific performance": [130], and that, being an in personam order, it would not bind the first mortgagee in any way: [131]. 17 His Honour expressed his conclusion about the order for sale and possession in this way, at [134] - [135]: "134 There is an inherent power for the Court to make an order for sale of land at the suit of an unregistered second mortgagee. However in the present case there are significant shortcomings in the exercise of that power. The most significant is the absence of the first mortgagee from the suit, even though its interests were directly affected by the orders sought. Another is that the inherent power of the Court to enforce the second mortgage enables it to order sale of only the interest of the mortgagor which has been mortgaged to the second mortgagee. 135 These have the effect that the power has not in substance been exercised. The orders for possession and for issuing of a Writ of Possession are likewise ones which were not justified. Though the making of an order for specific performance of the covenant to give possession upon default is the sort of remedy which can in some circumstances be given in relation to an unregistered Real Property Act 1900 mortgage, in the present case it was done in the context of the making of the other orders which were flawed." 18 Counsel for the plaintiff, Ms Young, pointed out that the present proceedings are brought by the plaintiff as a registered second mortgagee, relying on s 60 of the Real Property Act. That section provides: "60 In case of default, entry and possession, ejectment The mortgagee, chargee or covenant chargee upon default in payment of the principal sum or any part thereof, or of any interest, annuity, or rent-charge secured by any mortgage, charge or covenant charge may: (a) enter into possession of the mortgaged or charged land by receiving the rents and profits therefor, or (c) bring proceedings in the Supreme Court or the District Court for possession of the said land, either before or after entering into the receipt of the rents and profits thereof, and either before or after any sale of such land effected under the power of sale given or implied in the mortgage, charge or covenant charge,

in the same manner in which the mortgagee, chargee or covenant chargee might have made such entry or brought such proceedings if the principal sum, interest, annuity, or rent-charge were secured to the mortgagee, chargee or covenant chargee by a conveyance of the legal estate in the land so mortgaged or charged." 19 Upon registration of its mortgage, the plaintiff acquired a statutory legal charge over the property and a statutory right to possession upon default, enforceable by an action based on that section. That was the nature of the proceedings in Zanzoul v Westpac Banking Corporation (supra), in which the bank had sought possession as a registered second mortgagee. At 14,145, Handley JA (with whom Sheller JA and Rolfe AJA agreed) turned to the question whether the bank was entitled to such an order in view of the prior mortgage on the title. His Honour said: "If the land had been held under old system title, this would have been a good defence in the absence of some attornment clause in the mortgage or some other estoppel which entitled the bank to maintain ejectment proceedings. However, the title is under the Real Property Act 1900 and the matter has been specifically dealt with in s 60 of that Act." 20 After setting out s 60, his Honour continued: "There is no dispute that the bank, as a second registered mortgagee, was a mortgagee within the meaning of s 60 and there was also no dispute that default had occurred. On its face the language of the section appears to specifically authorise ejectment proceedings by a second mortgagee against a mortgagor despite any difficulties which might have arisen in the absence of the section. … It is true … that a second mortgagee is not entitled to possession of the security as against the first mortgagee. If the first mortgagee had also sought possession, the Court would be bound to make an order in its favour and to refuse an order in favour of the second mortgagee. However the first mortgagee has not attempted to recover possession from the appellants and, in the light of the specific language of s 60, the mere existence of the prior mortgage does not give rise to the defence which may be available in such a case where the title is under the old system." 21 Handley JA (also at 14,145) noted that doubts had been expressed about the operation of s 60 by Young J (as he then was) in ANZ Banking Group v Comer (1993) NSW ConvR 55 - 668, but saw the language of the section as "really plain and unambiguous". The same doubts were subsequently expressed in submissions to Young J in Silkdale Pty Ltd v Long Leys Co Pty Ltd (1995) 7 BPR 14,414 at 14,417 - 8, but his Honour recognised his duty to apply Zanzoul. 22 Mr Knaggs also criticised the decision on the basis that Handley JA had cited as relevant authority a passage from the decision of Lowe J, dealing with similar legislation in Victoria, in Croft v Kennaugh [1945] VLR 40 at 42, pointing out that that decision had been made ex parte. However, while that is so, Lowe J's reasons were carefully expressed and had regard to relevant authority. Be all this as it may, it is not for me to evaluate any misgivings which might be expressed about the decision in Zanzoul, by which I am bound. 23 Ms Young also pointed out that there is a solution to the conflict between an order for possession in favour of the plaintiff and the interest of the first mortgagee, Perpetual Trustee Company. Upon taking possession, the plaintiff would have the right to redeem that first mortgage: Cronin & Ors v State Bank of South Australia & Ors [1995] ANZ ConvR 119, at 121 - 2. 24 It is clear, then, that in the present proceedings the plaintiff seeks possession of the property on a different basis from that upon which it was sought in the earlier proceedings. That basis does not require a challenge to any ground upon which possession was denied by Campbell J, nor to any issue which provided a foundation for his Honour's conclusion. The question of possession in the present proceedings is not res judicata, and no issue estoppel arises. 25 Alternatively, Mr Knaggs submitted that there arose an estoppel in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. He argued that s 60 of the Real Property Act is not confined to a registered second mortgagee, and could have been availed of in the earlier proceedings. Even if s 60 was not available to an unregistered mortgagee, he added, no reason emerges from the evidence why the plaintiff could not have registered the mortgage at that early stage and proceeded accordingly. 26 Ms Young referred me to a helpful examination of the Anshun estoppel by Debelle J in Hayes & Ors v Development Assessment Commission & Ors (No. 4) [1997] SASC 6155 at [21] - [30]. Counsel for the second defendant, Mr Silver, brought my attention to a recent examination of the estoppel by the Court of Appeal in the judgment of McColl JA (with whom Giles and Campbell JJA agreed) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, at [81] - [87]. 27 Her Honour referred to authority subsequent to Anshun, including the decision of the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1. She noted at [83] that the estoppel might arise "where an omission to plead a claim or defence will contribute to the existence of conflicting judgments", but that does not arise in the present case for the reasons I have given. She reiterated at [81] the test enunciated in the joint judgment in Anshun itself at 602, that is, whether "the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely upon it". She added, "The test is one of reasonableness." 28 As Ms Young noted in written submissions, it is not to the point in the present case that the question for determination in both proceedings was whether the plaintiff was entitled to possession. The question in each proceeding was whether the plaintiff had that entitlement "in the circumstances". The circumstances in the present proceedings are very different from those at the time of the earlier proceedings. 29 I would reject Mr Knaggs' argument that it was open to the plaintiff to register the mortgage before the earlier proceedings and to proceed in reliance upon s 60 of the Real Property Act. There is no evidence why the plaintiff did not take that course, but it was a matter for the plaintiff to determine whether and, if so, when, it would seek registration. I cannot accept that the operation of the Anshun principle could turn upon whether a party might have taken a step prior to the institution of proceedings which could have altered the nature of those proceedings. 30 The earlier proceedings were of a kind which was appropriate to the plaintiff's status as an unregistered second mortgagee. Both Mr Knaggs and Mr Silver submitted that it was open to the plaintiff to proceed under s 60 of the Real Property Act at that time. They noted that the section is not in terms confined to registered mortgagees and that, while Zanzoul is authority for the proposition that a second registered mortgagee might have recourse to the section, it is silent as to whether an unregistered mortgagee might also do so. 31 I must say that to me the reasoning in Zanzoul carries the implication that the section is confined to registered interests. That also appears to be implicit in the passages from the judgment of Campbell J to which I have referred at [14] - [15] of these reasons. That would be consistent with the focus of the Act. However, more importantly, I am persuaded that the section is directed to registered interests by Ms Young's analysis, based on other provisions in the Act. 32 She referred to the definition of "Dealing" in s 3, which is as follows: "Any instrument other than a grant or caveat which is registrable or capable of being made registrable under the provisions of this Act, or in respect of which any recording in the Register is by this or any other Act or any Act of the Parliament of the Commonwealth required or permitted to be made." 33 She then turned to s 41(1), which provides: "No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature." 34 I think that there is force in Ms Young's argument that the expression "dealing" includes a mortgage, even though that expression is itself defined in s 3. That being so, s 60 does not apply to a mortgage unless it is "effectual" to create an interest in land under s 41, that is, upon registration. 35 Accordingly, no Anshun estoppel has been established. The plaintiff is entitled to an order for possession.

Section 57(2)(b) notice 36 Paragraph 10C of the further amended statement of claim asserts that a notice pursuant to s 57(2)(b) of the Real Property Act was served upon the defendants on 18 April 2005. By his defence, the first defendant contends that the purported notice was invalid. By her defence, the second defendant denies having received any such notice or having any knowledge of it. 37 Ms Young acknowledged that service of such a notice is a precondition for the exercise of a power of sale under s 58 of the Act, but is not necessary to obtain an order for possession. She said that the issue would need to be determined only if the plaintiff wished to sell the property at some stage. That being so, Mr Silver submitted that it was an irrelevant pleading and should be struck out. I see no point in doing so. It is sufficient to say that the issue does not need to be resolved for present purposes.

Expenses, costs and interest 38 The plaintiff's monetary claim in the present proceedings is unaffected by any consideration of res judicata or estoppel. It relates to entitlements said to have arisen since the disposition of the earlier proceedings, and relies upon the defendants' continuing default under the mortgage by failing to pay the outstanding principal and interest and to pay costs incurred by the plaintiff. 39 In the mortgage memorandum there appear the following definitions: "AGREEMENTS means jointly and severally the MORTGAGE, LOAN, GUARANTEE and the CHARGE. DEBT means all monies owing to the LENDER from time to time under the AGREEMENTS and includes the PRINCIPAL." 40 Clauses 61 and 62 of the memorandum, dealing with costs and expenses, are as follows: "61 In addition to all costs and expenses which the DEBTORS may be liable at law or in equity to pay in respect of the AGREEMENTS the DEBTORS are additionally jointly & severally liable for all costs and expenses incurred by the LENDER in consequence of or occasioned by any one or more of the following: (a) any default on the part of any of the DEBTORS; (b) any act taken by the LENDER for the preservation of the SECURITIES or otherwise in relation to, the AGREEMENTS; (c) the preparation, execution and registration of MORTGAGES, CAVEATS or CHARGES to register or protect the priority of the AGREEMENTS. The (sic) preparation of any discharge of mortgage, withdrawal of caveat, deed of release, withdrawal of charge etc upon repayment of the DEBT and attendance at settlement of the same. (d) These will be recoverable by the LENDER whether or not the advance proceeds. In this regard this mortgage will be valid and give rise to a registrable and caveatable interest whether or not the principal is advanced in full or in part. 62 The costs and expenses payable by the DEBTORS include (but are not limited to) the internal administrative costs of the LENDER, the liability of the LENDER to pay legal costs and the liability of the LENDER to pay disbursements (whether or not the LENDER has paid the said legal costs or disbursements). These costs and expenses are to be paid on an indemnity basis. The liability of the DEBTORS for the costs and expenses will arise immediately upon the LENDER becoming liable to pay the same. The costs and expenses form part of the DEBT, and will carry interest at the HIGHER RATE from the date the liability arises until the date of payment by the DEBTORS." 41 As to costs and expenses, at the hearing Ms Young abandoned a claim for certain internal expenses set out at pp 41 - 44 of the exhibit "BK2" to the affidavit of Brendan Wayne King, director, of 5 August 2009. However, the claim for certain disbursements set out at p 38 of that exhibit was pressed. I do not understand the defendants to dispute the entitlement to those disbursements pursuant to the relevant clauses of the memorandum, or the amounts claimed. If I am wrong in that, of course, I will hear argument about the matter. 42 As I said at the outset, the interest rate under the mortgage is high (to say the least): 118.8% per annum, reducible to 60 % per annum if paid within 7 days of the due date. Campbell J rejected an argument that this amounted to a penalty and, as I have said, dismissed the appeal against the monetary judgment of Macready AsJ: see his Honour's judgment at [136] - [140]. Ms Young pointed out that the interest calculated by Macready AsJ appears to be at that higher rate. I accept that that is so although, not being mathematically minded, I have not done the calculation myself. 43 By cl 62, that higher rate of interest applies to outstanding costs and expenses. Interest after judgment is the subject of cl 106, which provides: "If any liability owed under the AGREEMENTS becomes merged in a judgment or order then the judgment debtor (being one or more of the DEBTORS), as an independent obligation, must pay interest to the LENDER on the amount of that liability from the date it becomes payable until it is paid both before and after the judgment or order, at the higher of the rate payable pursuant to the judgment or order and the HIGHER RATE." 44 Also relevant are cll 133 and 145, which need not be set out but which are to be found at pp28 and 29 of exhibit "BK2". It is clear enough that those clauses bypass the provision for interest after judgment in s 101 of the Civil Procedure Act, and create an independent entitlement in the plaintiff to recover interest at the higher mortgage rate in respect of the judgment in the earlier proceedings and `any monetary judgment which the plaintiff might obtain in the present proceedings. 45 If there is any issue in dispute which I have not resolved, I shall receive further submissions upon it. Otherwise, I request the parties to formulate the orders which should be made to give effect to these reasons and bring in short minutes accordingly. If necessary, I shall also hear argument on costs.

Tuesday 1 March 2011 46 I enter judgment in accordance with the document entitled Judgment handed to me today which I shall sign and date. In doing so I note that there has been no appearance for the first defendant. However I am satisfied that the first defendants representative, Mr Knaggs, has been on notice of the fact that the matter is listed today and has been supplied in advance by the plaintiff with the orders contained in the judgment which I have just entered. 47 The orders of the court are in accordance with the form of judgment which has been supplied to me. 1. the plaintiff be given possession of the property situated at and known as 10 Eaton Avenue, Normanhurst, NSW, being the whole of the property described in folio identifier 5/D/9144, and the improvements erected thereon;

2. the plaintiff has leave to issue a writ of possession forthwith; 3. the defendants are to pay interest on the sum of $151,430 awarded to the plaintiff against the defendants in Supreme Court of New South Wales proceedings numbered 2411 of 2005 (the previous judgment sum), at the rate of 118.9% per annum, calculated daily and in accordance with the terms of the mortgage, from 1 August 2005 to the date of this judgment, being $1,105,317.60 (which amount is included in the judgment sum, below); 4. verdict and judgment for the plaintiff against the defendants in the sum of $1,123,505.80 (the judgment sum), comprising $18,188.29, plus $1,105,317.60 pursuant to order 3, above; 5. the defendants are to pay pre-judgment and post-judgment interest on the sum of $18,188.29 at the rate of 118.9% per annum, calculated daily and in accordance with the terms of the mortgage; 6. after the date of this judgment, the defendants are to pay interest on the previous judgment sum at the rate of 118.9% per annum, calculated daily and in accordance with the terms of the mortgage; 7. except as set out in orders 5 and 6, no interest is payable by the defendants on the judgment sum; 8. to the extent that they are not included in the $18,188.29 sum specified in order 4, the first defendant to pay the plaintiff's costs of and incidental to the proceedings on an indemnity basis, and in accordance with the terms of the mortgage; 9. the first defendant to pay the second defendant's costs of and incidental to the proceedings; 10. the Defendants are to pay pre-judgment and post-judgment interest on the costs payable pursuant to order 8 at the rate of 118.9% per annum, calculated daily and in accordance with the terms of the mortgage. **********

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