Satchithanantham v National Australia Bank [2010] NSWSC 1338 | Case summary

2007/258225 Thambiappah Satchithanantham v National Australia Bank JUDGMENT 1 HIS HONOUR: Late this afternoon, Mr Thambiappah Satchithanantham has filed a notice of motion in which he has named as first applicant, Bramooth Satchithanantham, whom I understand to be his son, and as second applicant, Hemalathasothyranjini Satchithanantham, his wife. The respondents to the notice of motion are the National Australia Bank and a Ms Jane Hodgeman named as solicitor. Mr Satchithanantham appears for himself and he also seeks to appear for his wife and son. 2 I have refused that leave having regard to orders made in other proceedings and in the Court of Appeal in which Mr Satchithanantham has been restrained from filing and serving any notice of motion, or from making any oral application, on his own behalf or on behalf of his wife or son without the leave of a judge. 3 The relief sought includes an order extending the operation of two caveats which, I am told, were due to lapse today, and an order restraining completion of a sale which it appears is due to be completed shortly. This is a sale entered into by the National Australia Bank as registered mortgagee of the property on about 25 September 2010. On 24 September 2010 Rein J was asked to restrain the National Australia Bank from entering into any contract for sale of the subject property. His Honour refused that application. His Honour noted that the application before him was brought in proceedings number 2007/258225 (which his Honour called the 2007 proceedings, as will I). His Honour recorded that in a judgment (Satchithanantham v NAB [2008] NSWSC 1097) I rejected an appeal from orders of Macready AsJ striking out the statement of claim and those proceedings were then dismissed. 4 According to Rein J, Mr Satchithanantham sought to appeal from my decision to the Court of Appeal. He was advised by the Registrar of the Court of Appeal that it would be necessary for him to seek leave as the decision was interlocutory and no further action was taken by the plaintiffs in relation to that matter. Accordingly, as his Honour said, the 2007 proceedings in which the present notice of motion has been filed were dismissed a long time ago. 5 Mr Satchithanantham says that because the decision in question dismissing the statement of claim was interlocutory, it was open to him to make this present application by notice of motion in those proceedings. I will assume for the moment that that is so, or that otherwise the present applicants could institute fresh proceedings. 6 The first of the caveats for which an order of extension is sought appears to have been lodged in about January 2007. In it, Mr Satchithanantham claims an interest described as follows: " 2/3 of Equity share in the said property & Deposit payment of $295,000 and other payments to other parties on behalf of the Registered proprietor. " 7 The caveat states that that interest is claimed by virtue of the caveator and his disabled son holding "2/3 of Equity Share in the said property" which was in a deed of agreement dated 8 May 1992, and further payment of $295,000 as per a receipt dated 18 August 2005. 8 Rein J observed in his judgment of 24 September 2010 that Mr Satchithanantham is a bankrupt and was still a bankrupt as at that date. Mr Satchithanantham advised me that he was made bankrupt on 11 March 2009 and confirms that he is still a bankrupt. Accordingly, if he had any equitable interest in the property, as claimed in the caveat, it vests in his trustee in bankruptcy. That is the position even if, as Mr Satchithanantham contends, he would be entitled to have the bankruptcy discharged on the payment of a relatively small sum of money and that he has the wherewithal to do that. In any event, the interest claimed in the caveat could not prevail against the bank as a registered mortgagee. 9 I might add that this application to extend the caveat was brought at the very last moment. I am told that the caveat expires today. The application was made after 4pm. I was told that the bank's solicitor was advised of the application at about 3.45p.m. A caveat will not be extended on an ex parte application when the caveator has left bringing the application until the last minute (see Wonderland Business Park Pty Ltd v Hartford Lane Pty Ltd [2001] NSWSC 86; Malouf v Donohue [2001] NSWSC 335). 10 The second caveat was lodged, it appears, on or about 11 May 2010. It is verified by statutory declaration dated 30 April 2010. The caveator is named as Bramooth Satchithanantham trading as Satchi & Satchi Australia (sole trader). He claims an interest as lessee under a residential tenancy agreement dated 1 January 2010. The interest claimed in the caveat is an interest under a residential tenancy agreement and the caveator seeks to "prevent disturbance and eviction of the tenants during the tenancy period from 1/1/10 till 31/12/12". That interest also could not prevail against the registered mortgagee. In any event, Mr Satchithanantham who appears before me today does not have leave to represent Mr Bramooth Satchithanantham. 11 The third application sought in the notice of motion is to restrain the completion of the contract for sale of the property by National Australia Bank as mortgagee. The principal ground of that claim, as I understand it, is that Mr Satchithanantham contends that the bank refuses to provide a payout figure for the mortgage, but that the registered proprietor, his wife, is prepared and offers to redeem the mortgage for the amount properly due pursuant to judgments of this court. Mr Satchithanantham himself has no standing to bring that claim and I have refused leave to him to represent his wife on that application. However, quite apart from that, there would be no basis to restrain completion of the sale on the ground raised. Whilst a mortgagor is entitled to restrain a mortgagee from exercising the power of sale if the mortgagor tenders payment of the moneys due under the mortgage, or in case of dispute, pays the money claimed into court, that is so only if tender or payment is made before there is an effective contract of sale. Once the mortgagee has exercised its power of sale and entered into a contract, the equity of redemption ceases to be exercisable unless the contract goes off (see ELG Tyler, PW Young, C Croft, Fisher and Lightwood's Law of Mortgage, 2nd Aust ed (2005) LexisNexis Butterworths at [20.36]). Were it otherwise a mortgagee would be faced with a claim for damages by a purchaser from the mortgagee for breach of contract in failing to complete the sale. 12 Rein J considered an application brought by Mr Satchithanantham, his wife and his son to restrain the bank from entering into a contract of sale of the property. His Honour refused that application. Other grounds were advanced in the notice of motion to support the relief claimed. They are without substance. They include a contention that the bank was required to act in accordance with rr 39.21 to 39.28 of the Uniform Civil Procedure Rules 2005. That contention mistakes the position of a judgment creditor and a registered mortgagee. Other grounds raised in the notice of motion, if they had substance, would have been available to be raised before Rein J. There has been no material change of circumstances between the date of his Honour's judgment and today. It is an abuse of process to make repeated applications for interlocutory relief where there has been no material change of circumstances and where there is no fresh evidence available at the second hearing which could not, with reasonable diligence, have been available at the first. 13 For these reasons, I order that paragraphs 1-3 of the notice of motion be dismissed. 14 The question remains, what is to be done with the balance of the notice of motion. I have entertained the application because, so far as I am aware, there is no extant order that would restrain the applicants from instituting fresh proceedings for the relief sought in the notice of motion. However, the notice of motion is not properly brought in proceedings 2007/258225, because those proceedings have been dismissed. In those circumstances, it is appropriate to dismiss the entirety of the notice of motion. If there is other relief which the applicants are entitled to seek in a properly constituted new proceeding, then they can do so. 15 For these reasons, I order that the notice of motion be dismissed. The exhibits may be returned after 28 days.

Satchithanantham v National Australia Bank

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