Plaintiff v Defendant

Plaintiff v Defendant - [2012] VSC 275 - VSC 2012 case summary — Zoe

[40]

Permanent Custodians Limited v Gayle Nichole Breasley and Richard Webster Mark Wolfe

Security property: 19 Main Street, Pascoe Vale

Supreme Court proceeding: No. 596 of 2009.

We act on behalf of AMS Mortgage Services Pty Ltd, mortgage manager for Permanent Custodians Limited. We refer to a facsimile received from your client Mr Wolfe on 27 November 2009.

By way of background we confirm that on 12 May 2008 our client served a Default Notice upon your client and Ms Breasley as account number 1057716 was in arrears. As the Default Notice expired unremedied the balance of your client and Ms Breasley's Account became due and payable. Accordingly, our client commenced Supreme Court proceedings against your client and Ms Breasley seeking a judgment for the debt owing and possession of the Property situated at 19 Main Street, Pascoe Vale. On 30 May 2009 your client was personally served with the Writ and Ms Breasley was personally served on 15 June 2009. On 10 August 2009 our client Judgment [sic] for debt owing and for possession of the Property . On 1 October 2009 our client obtained a Warrant for Possession which was sent to the Sheriff's Office and an eviction date has now been set for the first available date from 4 December 2009.

That said, we understand that your client wishes to settle this matter amicably and to that effect wishes to clear the arrears and legal costs in full, make 12 months' payment in advance and then maintain all future repayments as and when they fall due.

Our client will agree to stay the eviction conditional upon a bank cheque payable to GEL Custodians being received at our office by close of business Thursday 3 December 2009 in the amount of $46,134.82 (being comprised of arrears of $40,186.00, agents fees of $214.50, outstanding legal costs of $1,178.32 and two months' payments in advance of $4,556.00). We are instructed that due to our client's system, they can only accept two months payment in advance, however your client has an active direct debit so he should ensure that sufficient funds are in this Account so that all future repayments are maintained. The next repayment due will be on 26 February 2010 in the amount of $2,277.99.

Please note that all payments made will be accepted by our client without prejudice to its rights to rely on the existing Judgment and Warrant for Possession. Accordingly, if the payment of $46,134.82 is not received by the close of business Thursday 3 December 2009 or your client defaults on any repayments from February 2010, then our client reserves its right to proceed with further legal action, including obtaining a fresh eviction date for the Security Property, without further notice. ... [13] (emphasis added)

[89]

We refer to previous correspondence and to our letter dated 2 March 2010 wherein we advise that neither your client nor Ms Breasley made the payment due in February and accordingly we were instructed to immediately proceed to arrange a fresh eviction date to obtain vacant possession of the Property and proceed with a mortgagee sale.

We have since been contacted by your client advising that he (to his knowledge) has a direct debit in place and that he had sufficient funds in the nominated account to cover the payment due in February and he queried why the payment was not taken. No evidence of these allegations was provided.

We note that our letter dated 1 December 2009 referred to mortgage payments being due on the 26th of each month. This was in fact a typographical error and they are due on the 6th of each month but presumably your client and Ms Breasley were aware of it. In any case, our client has advised that there is no direct debit active nor has there been one in place since January 2008. Surely your client would have realised that his nominated account had not been debited if in fact funds were available as alleged?

In any case, even if our client was willing to give your client the benefit of the doubt that he had tried to set up a new direct debit and there were sufficient funds in the nominated account to cover the February instalment, your client and Ms Breasley are in default of a loan agreement and Ms Breasley is in default of a mortgage which secures a loan. This default is as a result of being in default of their Loan Account number 41321 which is secured by a mortgage provided over 17 Main Street, Pascoe Vale. We have been instructed that a garage and fence have been constructed to the Property on the adjoining property without obtaining our client's written consent. Ms Breasley has acknowledged the default and is providing a Notice of Surrender of the Property.

In light of the above, we have been instructed to proceed with legal action to obtain vacant possession of the Property to proceed to a mortgagee sale. Kindly ensure that the Property is vacant prior to the eviction date which the Sheriff's Office has advised us is to occur from the first available date from 9 April 2010.[30]

[200]

In BP itself and in other cases such as Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd, Codelfa Construction Pty Ltd v State Rail Authority of NSW and Adelaide Corp v Jennings Industries Ltd, the question was whether a term should be implied in a formal written contract which was complete upon its face.

That is not the present case. We have referred to the exiguous nature of the evidence as to the form taken by, and the express terms of, the contract of employment between the respondent and the appellants. There are two consequences.

First, this species of implication is concerned with the circumstances of the particular case. The primary judge and Black CJ and Gray J in the Full Court referred to the need to prove facts leading to the implication of a term of this nature. Gray J said:

[T]his Full Court does not know what all of the express terms of the contracts were. It does not know whether they were adequate to make the contracts of employment efficacious or whether any of them would contradict the proposed implied term. An examination of the facts surrounding the creation of each contract of employment might lead to a different result for one appellant from the other.

Secondly, where the contract is not in writing and is oral or partly oral or it appears that the parties themselves did not reduce their agreement to a complete written form, caution is required against an automatic or rigid application of the cumulative criteria identified in BP. We should proceed on the footing that the present case is to be approached in this way.

In such situations, the first task is to consider the evidence and find the relevant express terms. Some terms may be inferred from the evidence of a course of dealing between the parties. It may be apparent that the parties have not spelled out all the terms of their contract, but have left some or most of them to be inferred or implied. Some terms may be implied by established custom or usage, as described above. Other terms may satisfy the criterion of being so obvious that they go without saying, in the sense that if the subject had been raised the parties to the contract would have replied "of course". If the contract has not been reduced to complete written form, the question is whether the implication of the particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case; only where this can be seen to be true will the term be implied. (footnotes omitted)

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