Peter James Spencer v Wayne Dennis Bamber & Ors

Supreme Court of NSW|2011-10-26|Before: Pembroke J

Introduction 1The plaintiff is a well known litigant who spent many days in 2010 living and sleeping on top of a pole in protest against certain actions by the federal government. His dispute with the federal government is unrelated to the issues in this case but the pole is situated on land which he mortgaged to the first and second defendants. These proceedings represent an attempt by him to prevent those mortgagees from having the benefit of a foreclosure order which they obtained from the Registrar-General on 16 July 2010. 2At the outset, there are problems with the orders sought by the plaintiff. By his amended summons, he seeks an order that an order for foreclosure, said to have been made by the Registrar-General on 11 June 2010, be set aside. He also seeks a declaration that an order for service of a notice of intention to apply for the foreclosure order, which was purportedly made by the Registrar in Equity on 11 June 2010, is void and of no effect. That order was made pursuant to Section 170(1)(d) of the Conveyancing Act 1919 which permits service of a notice "in such manner as the Court may direct". In fact, the plaintiff should have sought, and I have granted leave to enable him to do so, an order that the order for foreclosure made by the Registrar-General on 16 July 2010 be set aside. The confusion as to the date of the foreclosure order did not assist the presentation of the plaintiff's case. In any event, I am amply satisfied that his claims for relief should be refused.

Claim for Relief 9In addition to the misapprehension as to the date of the foreclosure order, there are other misconceptions inherent in the plaintiff's claim about which I should make some preliminary observations: (a) Insofar as the plaintiff complains about the order for service made by Registrar Walton, the orthodox course was for him to seek to have the order set aside or varied pursuant to Uniform Civil Procedure Rules 2005 Rule 36.16(2)(d). Alternatively he could have sought a review of the Registrar's order under Rule 49.19. (b) Insofar as the plaintiff is dissatisfied with the order for foreclosure made by the Registrar-General on 16 July, 2010 he could and should have sought orders pursuant to Sections 121 and 122 of the Real Property Act . Section 121 provides that a person who is dissatisfied with a decision of the Registrar-General to, among other things, order the foreclosure of land, may apply to the Registrar-General for a copy of the reasons for the decision. Section 122 provides that a person who is dissatisfied with a decision referred to in Section 121(1) may apply to the Supreme Court for a review of the decision. 10The plaintiff has not followed any of those courses but has instead sought the orders set out in the amended summons. In addition, the evidence suggests that he was determined to cause delay and obfuscation. Among other things, the first defendant deposed that in late 2006 the plaintiff said to him during a conversation about the possibility of legal action, words to the effect that "You can get fucked and I will fuck you around for two to two and a half years". In the context, I regard that evidence of the first defendant, which was not challenged, as entirely plausible.

Facts Prior to Foreclosure Order 11I should return to the factual steps which occurred prior to the order for foreclosure that was made on 16 July 2010. By 20 October 2009, the plaintiff had not paid the balance of the judgment debt required by the consent orders made on 20 July 2009 in the possession proceedings. After negotiations failed to achieve an alternative resolution, the plaintiff revived the Federal Court proceedings to which I have earlier referred. Then on 9 November 2009, the Federal Court application was dismissed and an order for indemnity costs made in favour of the first and second defendants. Eventually, later in November 2009, the first and second defendants obtained their writ of possession. On 12 February 2010, the plaintiff vacated the property. 12On 22 April 2010, the solicitor for the first and second defendants wrote to Mr McKell, the plaintiff's solicitor, asking for a notice under the GST legislation which was necessary for the auction sale. Shortly afterwards she received the requested notice from Mr McKell signed by him as the plaintiff's attorney. On 7 May 2010, Mr McKell wrote to the defendants' solicitor saying that the plaintiff was then overseas but that he would obtain instructions in relation to foreclosure as soon as possible. The solicitors for the first and second defendants did not hear back from Mr McKell following his letter dated 7 May 2010 and proceeded to prepare an application, for what was effectively, substituted service of the notice of intention to apply for a foreclosure order required by Section 61(2)(d) of the Real Property Act . 13On 18 May 2010, the solicitor for the first and second defendants requested from Mr McKell a copy of the power of attorney held by him. On 24 May 2010, she received a copy of the power of attorney given to Mr McKell by the plaintiff. On 31 May 2010, she then sent a letter to Mr McKell enclosing by way of service a notice of intention to apply for a foreclosure order. This was done as an alternative to an order under Section 170(1)(d) of the Conveyancing Act which permitted service of a notice "in such manner as the court may direct" . It was based upon the fact that Mr McKell was the the holder of a power of attorney from the plaintiff. 14There is nothing about the form or construction of the power of attorney that appears to have prevented it from operating in accordance with its intended purpose. By itself, the letter dated 31 May 2010 was probably sufficient service on the plaintiff of the notice of intention to apply for a foreclosure order. I am satisfied that it is likely that, even by that date, the intention of the first and second defendants to apply for a foreclosure order had come to the plaintiff's attention. 15Notwithstanding that he held a general power of attorney from the plaintiff, and had received the letter dated 31 May, Mr McKell wrote on 3 June 2010 saying he did not have instructions to act in relation to the proposed foreclosure. Nonetheless he added that if the solicitor for the first and second defendants wanted him to seek instructions from the plaintiff then they should so advise. 16For more abundant caution, the first and second defendants then chose to proceed with their application for an order for service pursuant to Section 170(1)(d) of the Conveyancing Act . The application was supported by an affidavit of their solicitor sworn on 21 May 2010. She deposed to the following material facts: 8 I have been informed by Spencer's solicitor, Peter McKell, that Spencer is overseas and has been overseas since March 2010. Mr McKell was the solicitor on the record for Spencer in the substantive proceedings and has continued to represent Mr Spencer in relation to this matter until the present day. 9 On 5 May 2010 I wrote to Mr McKell asking him to seek instructions as to whether he could accept service of the Notice on behalf of Spencer. On 7 May 2010 Mr McKell responded by way of email stating "We refer to your recent communication and advise Mr Spencer is overseas and not in contact at present. We will obtain instructions as soon as possible". Annexed hereto and marked "A" is a copy of my letter to Mr McKell dated 5 May 2010. Annexed hereto and marked "B" is a copy of Mr McKell's emailed response dated 7 May 2010. I have not received any further communication from Mr McKell. 10 The Plaintiffs have no knowledge of the whereabouts of Spencer overseas. 17On 11 June 2010, the Registrar in Equity made an order pursuant to Section 170(1)(d) permitting service on the plaintiff's solicitor. On 16 June 2010, the solicitor for the first and second defendants signed and dated another notice of intention to apply for a foreclosure order. On 17 June she delivered to Mr McKell, by way of service, the orders of the Registrar made on 11 June 2010 and the notice of intention to apply for a foreclosure order dated 16 June 2010. On 18 June 2010, Mr McKell sent those documents by email to the plaintiff and to his then counsel who had represented him in the High Court of Australia 2 days before. 18The proceedings in the High Court of Australia are unrelated to the issues in this litigation other than that they demonstrate that on 16 June 2010 the plaintiff was present in Canberra with his solicitor, Mr McKell, and his counsel, Mr King. I have no doubt that on 18 June, following the email from Mr McKell, the plaintiff received and became aware of the orders of the Registrar made on 11 June 2010 and the notice of intention to apply for a foreclosure order dated 16 June 2010. The email address of the plaintiff to which the documents were sent is the email address which at all times relevant to the issues in these proceedings has been the plaintiff's only email address. In addition of course, Mr McKell continued to be the plaintiff's attorney. As I mentioned in paragraphs [13] and [14], the plaintiff had probably become aware of the intention of the first and second defendants to apply for a foreclosure order on or shortly after 31 May 2010. 19Not only were the documents sent to the plaintiff on 18 June 2010 by email but on 21 June, Mr McKell sent another email to the plaintiff and to his accountant attaching a further copy of the documents that had been delivered to him on 17 June. 20On 23 June 2010, Mr McKell sent yet another email to the plaintiff relating to the proposed foreclosure application. It is clear from the content of that email that Mr McKell and the plaintiff were in consultation about the application for a foreclosure order by the first and second defendants and the strategies which they should adopt in relation to it. It is also clear that Mr King of counsel was involved in some of those discussions. 21On 30 June 2010, Mr McKell sent copies of the Registrar's order made on 11 June and the notice of intention to apply for a foreclosure order dated 17 June, to another solicitor, Mr Kramer, who from that date commenced to act on behalf of the plaintiff. I should add that the evidence revealed that in 2010, Mr McKell acted for Mr Spencer in relation to eight separate court proceedings.

Plaintiff ' s Complaint 22The plaintiff's complaint in these proceedings is based upon a contention that in some way he has not received adequate notice of the intention of the first and second defendants to apply for a foreclosure order and has been denied natural justice. It will be clear from the facts that I have recited that there is really no factual basis for this contention. Mr McKell gave evidence and was cross-examined. He confirmed there was no other email address used by the plaintiff other than the one to which the emails to which I have referred were sent. He also confirmed that he communicated during 2010 with the plaintiff by mobile telephone and by email. He suggested in evidence, which I have to say was vague and unsatisfactory, that there was a period of time when he was unable to communicate with the plaintiff during May or June. But the evidence of the communications to which I referred in paragraphs [17] - [21] above, indicate that there were a number of relevant communications in June in the period of approximately two weeks following the making of the order by the Registrar on 11 June. There was also an earlier email communication on 22 April between Mr McKell and the plaintiff. 23The reality is that after the order by the Registrar in Equity was made on 11 June 2010 and before the order for foreclosure was made by the Registrar-General on 16 July 2010, there were ample opportunities for the plaintiff to seek to redress any injustice which he thought might have occurred. As I said, there were avenues open to him pursuant to the rules by which he could have sought to vary or overturn the decision of the Registrar. There were also avenues available to him pursuant to Sections 121 and 122 of the Real Property Act by which he could have sought to overturn the decision of the Registrar-General when that was made on 16 July. 24For those reasons I am satisfied there was no practical injustice and certainly no breach of the rules of natural justice, even if they could possibly be taken to apply in the particular circumstances of this case, which I doubt. On the evidence, I am satisfied that the first and second defendants' notice of intention to apply for a foreclosure order actually came to the attention of the plaintiff. That first occurred on 31 May 2010. It certainly occurred on 18 June 2010 and again on several subsequent occasions. In the circumstances, there was, in my view, sufficient service of that notice for the purposes of Section 61(2)(d) of the Real Property Act . 25It should not be overlooked that the service with which Section 61 is concerned is not service of a writ or other originating process. The requirements for effective service of such a document have a long history and a different legal justification: Ainsworth v Redd (1990) 19 NSWLR 78 at 84 (Kirby A-CJ). A notice by a mortgagee of its intention to apply to the Registrar-General for a foreclosure order is not an originating process. While it has particular implications for the person whose property is to be foreclosed, it is of a quite different character to a document that founds the jurisdiction of the court. It is a step in the administrative process by which the Registrar-General may or may not exercise the powers given to him pursuant to Section 62 of the Real Property Act. Those powers are only exercisable when, among other things, there has been six months' default and the land has been offered for sale at a public auction. Additionally, the exercise of those powers is reviewable by the court pursuant to Section 122. There is every reason in principle why service of such a notice should be considered pragmatically. 26Where, in relation to such a document, the method of service is not prescribed, then in my view any reasonable method should suffice if its effect is to fairly and directly bring the existence, nature and content of the document to the attention of the party required to be served. I see no basis for an implicit requirement for personal service - as if the notice were equivalent to a writ or originating process. A reasonable method of service includes, in my view, delivery to the party's attorney as well as service by email, including an email to the party from his own solicitor forwarding documents sent to him. The question in such a situation, as distinct from that which applies in relation to service of an originating process, is one of substance not form.

Substituted Service 27Additionally, insofar as it is necessary to consider whether an order pursuant to Section 170(1)(d) of the Conveyancing Act is an appropriate method by which service pursuant to Section 61(2)(d) of the Real Property Act may be effected, I am satisfied that it is for the following reasons: (a) Section 61(1) of the Real Property Act provides that in the circumstances specified a registered mortgagee may make an application in the approved form to the Registrar-General for an order for foreclosure. (b) Section 61(2) provides that an application for foreclosure shall state certain matters. One of those matters is as follows: (d) that notice in writing of the intention of the mortgagee to make the application has been served on the mortgagor." (c) The application for a foreclosure order that was made by the first and second defendants to the Registrar-General was in the approved form. It made a statement that notice in writing of the intention of the mortgagee to make the application had been served on the mortgagor. (d) The Act does not require expressly that service of notice be effected. What it requires is that the application for a foreclosure order state that notice of the application has been served. The statutory requirement is for a "statement". Nonetheless its substantive purpose is that notice in writing of the application for a foreclosure order be served on the mortgagor. (e) As I have explained, "service" is a well understood concept under the general law. In many cases it is supplemented by statute. Section 170 of the Conveyancing Act deals with the service of notices in general. Among other things, it says that any notice required or authorised by this Act to be served shall be sufficiently served if delivered personally or "in such manner as the court may direct". (f) Section 170 (2A) says that the provisions of this section extend to notices required to be served by any instrument affecting property (including any dealing under the Real Property Act 1900 ) executed, made or coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 unless a contrary intention appears in the instrument or in the Real Property Act 1900 . (g) An instrument is defined to include an act of parliament. There is no contrary intention in Section 61 of the Real Property Act. It is clear that Section 61 in its current form was introduced in 1987 pursuant to the Real Property (Further Amendment) Act 1987 . (h) Section 61 therefore satisfies the requirement of s 170(2A) that extends the beneficial effect of the provisions of Section 170 to notices affecting property required to be served by an instrument executed, made or coming into operation after the commencement of the Conveyancing (Amendment) Act 1930 . (i) No submission to the contrary was put on behalf of the plaintiff. All that was said was that when Section 61 is compared with Section 57, one ought to infer that Section 61 should be applied strictly because Section 57 makes express reference to Section 170 of the Conveyancing Act and Section 61 does not. (j) However, the mere fact that Section 61 does not refer expressly to Section 170 of the Conveyancing Act is, I think, a thin reed on which to base a conclusion that the broadly based and beneficial effect of Section 170 of the Conveyancing Act should not be made available in relation to the service of notices contemplated by Section 61 of the Real Property Act . 28I am not willing to do so. No sound reason of practice and no sensible policy argument were put forward as a basis for such a limited reading of Section 170 of the Conveyancing Act . On its face, Section 170 applies to the notice requirement in Section 61(2)(d) of the Real Property Act. To limit its application, and to read Section 61, as if the notice requirement of the latter provision were not entitled to the beneficial effect of Section 170, would produce a result that is inconvenient. It is also, I think, unlikely. It may well be regarded as "irrational, extraordinary or obscure". In those circumstances, a more sensible construction should be preferred: Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ). See also Turner v George Weston Foods Ltd [2007] NSWCA 67 at [58] - [60] per Campbell JA.

The Registrar ' s Powers 29By way of post-script I should note that the parties and the Registrar in Equity assumed that she had the power to make an order pursuant to Section 170(1)(d) of the Conveyancing Act . I am not convinced this is the case but if it is so, it is not fatal and may be cured. 30The powers of a Registrar are conferred by Section 121 of the Supreme Court Act 1970 and by Sections 12 and 13 of the Civil Procedure Act 2005 . Section 121 provides: 121 Powers (1) In this section "officer" means a registrar, taxing officer, or other officer of the Court. (2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer. (3) A judgment given or an order made by an officer may be set aside or varied by the Court. (4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer. (5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2). 31Conveniently, sub-section (4) provides that an order made by an officer has effect as an order of the court whether or not the order is within the powers given to the officer by Section 121. 32Subsection (2) states that an officer may exercise such powers as are conferred on the officer "by or under this or any other Act". As I have mentioned, the Civil Procedure Act is "any other" Act that gives powers to a registrar or other officer. In fact, it may be, I think, the only other Act that does so. 33Sections 12 and 13 of the Civil Procedure Act 2005 provide: 12 Officers of the court may exercise functions conferred by uniform rules Without limiting any other functions he or she may exercise, a registrar or other officer of any court may exercise any function conferred on such an officer by the uniform rules. 13 Officers of the court may be authorised to exercise court's functions (1) The senior judicial officer of any court may, by instrument in writing: (a) direct that any function of the court under this Act or the uniform rules may be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument, and (b) vary or revoke any such instrument. ...... 34It should be noted that Section 13(1)(a) of the Civil Procedure Act is limited in its reach. The contemplated instrument in writing by the senior judicial officer may only direct that any function of the court "under this Act or the uniform rules" be exercised by a registrar or other officer specified in the instrument. It does not extend to other statutes such as the Conveyancing Act . 35The current instrument of delegation is entitled Delegation to Registrars under section 13 of the Civil Procedure Act 2005 . It is dated 9 April 2009. The delegation lists all powers under the Civil Procedure Act and the Uniform Civil Procedure Rules that a Registrar is able to exercise. It goes on to list myriad powers under many other Acts that a registrar may also exercise. 36But there are two problems with this. First, the source of the power to delegate in Section 13 only permits delegation of certain functions of the court "under this Act or the uniform rules". Thus, as I have mentioned, it does not include functions of the court under the Conveyancing Act or for that matter, the Corporations Act and many other statutes. Second, insofar as the delegation includes functions under the Conveyancing Act 1919 , a registrar's powers are confined to orders under section 66G. They do not include an order under Section 170(1)(d). 37In a practical sense, these issues do not affect the outcome of the proceedings. That is because, as I have observed, the effect of Section 121(4) of the Supreme Court Act is to preserve the effectiveness of an order or direction of an officer of the court, whether or not the order or direction is within the power of the officer. The problem may be a hiatus in Section 13(1)(a) of the Civil Procedure Act. It could have included the words "any other Act" when specifying the functions of the court which the senior judicial officer may delegate by instrument in writing. Thus, Section 13(1)(a) would have a wider effect if it provided that the senior judicial officer may be instrument in writing: (a) direct that any function of the court under this Act, any other Act or the Uniform rules may be exercised by such registrars or other officers of the court ... as are specified in the instrument.

Nunc Pro Tunc Orders 38However, for more abundant caution, and because I am satisfied that there could be no practical injustice, I will make an order nunc pro tunc pursuant to Section 170(1)(d) of the Conveyancing Act. The court may, in the exercise of its inherent jurisdiction, make an order nunc pro tunc where such an order relates to a procedural irregularity that does not affect the jurisdiction of the Court or the substantive rights of parties: Emanuele v Australian Securities Commission (1997) 188 CLR 114; Turagadamudamu v PMP Limited [2009] NSWCA 120; Re Testro Bros. Consolidated Ltd. [1965] VR 18. An order made nunc pro tunc is an order that a court makes "if satisfied..that it is only doing now what it would have done then": Donne v Lewis (1805) 11 Ves Jun 601 at 601; 32 ER 1221 at 1222 cited in Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 132 (Dawson J). 39In my view, the requirement in Section 61(2)(d) of the Real Property Act relating to service of notice of intention to apply for a foreclosure order, is procedural. By itself, it does not affect substantive rights. As I have already observed, it is a step in an administrative process not a court process. It has nothing to do with the jurisdiction of the court. The Registrar-General may or may not exercise the powers given to him pursuant to Section 62 of the Real Property Act . If he does, his decision is reviewable pursuant to Section 122. What is required by Section 61 is not service as such, but a statement that notice has been served. Such a statement was given and verified. If the Registrar-General is not satisfied that effective notice has been given to the mortgagor, he may presumably require the process to be repeated. All of these factors indicate to my mind the procedural nature of an order pursuant to Section 170(1)(d).

Conclusion 40I am not satisfied that there is any factual or legal basis for setting aside the order for foreclosure made by the Registrar-General on 16 July 2010. I am satisfied that there was, in fact, actual service of a notice of intention to apply for a foreclosure order sufficient for the purposes of Section 61(2)(d). That occurred as early as 31 May and certainly by 18 June 2010. It is not necessary to rely on the order for service made by the Registrar in Equity on 11 June 2010 pursuant to Section 170 of the Conveyancing Act . But in any event, it remains valid and takes effect as an order or direction of the court unless and until set aside: Section 121(3) and (4) of the Supreme Court Act. However, to the extent necessary, I will make an order myself pursuant to Section 170(1)(d) of the Conveyancing Act validating the method of service which was the subject of the Registrar's order.

Orders 41I therefore dismiss the amended summons with costs. The orders I make are as follows: (1) I direct, pursuant to Section 170(1)(d) of the Conveyancing Act, that service of notice by the first and second defendants of their intention to apply for a foreclosure order should be taken to have been validly effected by delivery to the plaintiff's then solicitor, Mr McKell on or about 17 June 2010. (2)I dismiss the amended summons, (3)I order the plaintiff to pay the costs of the first and second defendants. (4)I reserve liberty to the first and second defendants to apply on three day's notice to make any application for a further order for costs if so advised. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2011

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