White v Arambasic

Supreme Court of NSW|2020-10-01|Before: Campbell J

Solicitors: Austen Brown Boog (Defendant) File Number(s): 2019/47932

Judgment

I am dealing with three Notice of Motions filed in these proceedings in the Possession List. The first motion filed by the plaintiff on 26 February 2020 seeks "an urgent order to extend the operation" of a caveat on the title of the subject property located at XXXXXXXXXX, New South Wales. The second motion in time also filed by the plaintiff, on 9 March 2020, seeks default judgment for possession of the land. The third motion filed by the defendant on 17 July 2020, but supplanted by an Amended Notice of Motion I permitted to be filed in court on 1 October 2020 without objection, essentially seeks a stay of the proceeding pursuant to s 67 of the Civil Procedure Act 2005 (NSW) until the determination of a threshold issue or preliminary question in proceedings commenced by the defendant against the plaintiff in the Federal Circuit Court of Australia. Those proceedings seek a determination of the property rights of the parties and a property settlement arising out of what the defendant says, and the plaintiff denies, was a former de facto relationship between them. The threshold issue relates to the question of "whether or not the parties lived in a de facto relationship", this is treated by the parties as a question going to the jurisdiction of the Federal Circuit Court to entertain the defendant's application for relief.

The evidence and the nature of the case

The plaintiff read her affidavits sworn on 18 February 2020 and 9 March 2020, without objection. Ms Power read the affidavits of her instructing solicitor, Mr Dutschke of 30 July 2020 and 28 September 2020, also without objection.
The plaintiff's claim for possession is based upon a Loan Agreement of 12 December 2012 and an unregistered Deed of Mortgage dated 20 December 2012. She claims that the defendant has been in breach of the terms of the Loan Agreement since at least 30 August 2016 when the plaintiff purported to serve a default notice on him. The plaintiff also relies on the terms of an Apprehended Violence Order made for her protection in the Local Court which she says entitled her to reside at the premises, however, I am doubtful that this provides any basis for judgment for possession against the registered proprietor of the estate in fee simple, as the defendant is. For the purpose of the present judgment, I will consider the matter on the basis of the plaintiff's assertion that she is an unregistered first mortgagee of the property.
The defendant has not filed a defence to the proceedings. The plaintiff's motions were listed for hearing before Cavanagh J on 17 April 2020. On that occasion his Honour was satisfied that the defendant had not been properly served, his Honour vacated the hearing of the plaintiff's motions and listed the matter before the Registrar on 24 April 2020. He also directed that the defendant's representative who appeared before the Registrar on that day was to be in a position to inform the Registrar of the general nature of the defence which the defendant wished to file.
At the directions hearing the Registrar ordered the defendant to file a defence by 22 May 2020 and listed the matter for further directions on 29 May 2020. The order for filing of a defence was not complied with and there was no appearance before the Registrar on 29 May.
The matter next came before the Registrar on 26 June 2020, while noting the defendant's default she directed that he file and serve his defence by 17 July and relisted the matter on 31 July 2020.
As Ms Power explained at the hearing before me, no defence was filed as she took the view that the proper course was to file the motion for a stay pending the resolution of the Federal Circuit Court proceedings. She had formed the view that that was the more appropriate jurisdiction (2.40 - .45T). That motion was filed on the last day allowed by the Registrar for the filing of the defence, viz 17 July 2020.
When the matter came before the Registrar again on 31 July 2020 she listed each of the three motions for hearing on 1 October 2020 and made directions for the exchange of evidence and written submissions. She did not make any further order for the filing of a defence pending the resolution of the applications.

Decision

For the reasons which follow I have decided: 1. not to grant default judgment. Basically because I am satisfied that the defendant may have a fairly arguable defence to proceedings for possession in the circumstances explained below, in particular arising out of the decision of Sackville AJA, sitting as a judge of the Common Law Division, in Arambasic v Veza (No 4) [2014] NSWSC 1109; 17 BPR 33,101. However, I propose to direct that he file his defence by Friday 16 October 2020. In default, the plaintiff may revive her motion filed on 9 March 2020. To facilitate this I will simply adjourn it; 2. I will grant leave to the plaintiff under s 74O Real Property Act 1900 (NSW) to lodge a further caveat to protect her claimed interest in the land as an unregistered first mortgagee until further order of the Court; 3. Subject to compliance with the order for the filing of a defence, I will grant the defendant's interim stay pending the determination of the separate question in the Federal Circuit Court of Australia.

Arambasic v Veza (No 4)

As I have stated in the immediately preceding paragraph, the land the subject of the present proceedings provided the subject matter of the dispute in the proceedings determined by Sackville AJA on 18 August 2014 in Arambasic v Veza (No 4). In those proceedings the plaintiff and the defendant were co-plaintiffs seeking, inter alia possession of the land from Ms Veza and her partner who claimed to be entitled under an instalment contract for the purchase of the land. Her cross-claim was somewhat more complicated, but that description suffices for present purposes.
I note in passing without comment that both the plaintiff and the defendant denied in those proceedings that they were in a de facto relationship, a question which Sackville AJA found it unnecessary to decide (Arambasic at [65]).
Although, as I have said, the present parties made common cause in the previous proceedings, his Honour formed the view that their interests were not identical (Arambasic at [8]) and for that reason despite their agreement that the plaintiff would speak for each of them, his Honour permitted the defendant the opportunity to question witnesses and to make additional submissions.
In the circumstances, there is a real question whether the findings made by Sackville AJA as to the respective interests of the plaintiff and the defendant create an issue estoppel by which both are bound for the purpose of these proceedings. In the absence of a defence, any reply by the plaintiff, and full argument on the matter, it is inappropriate for me to express any view about such a question one way or the other.
However, as his Honour's findings may affect the rights and liabilities of the parties in the present proceedings, including the question of whether the defendant has an underlying fairly arguable defence, I will refer to those of them which seem relevant to the present dispute in summary form.
In late 2005, Ms Veza, a former employee of the plaintiff, wished to purchase a home, but was unable to obtain finance. To assist her and her partner in that regard, the plaintiff purchased the land, the subject property, in her own name and entered into a "Credit Contract" with Ms Veza on 16 January 2006 which was effectively, or part of, a contract for the sale of the land by instalments (Arambasic at [66] - [67], [133]).
As a result of an exchange of emails and conversations which took place in early May 2011, the plaintiff and Ms Veza varied the Credit Contract by entering into a Sale Agreement whereby the land would be marketed at an agreed price through a real estate agent on terms, broadly, that upon completion the plaintiff would recoup her entitlements under the Credit Contract and the surplus would be payable to Ms Veza.
Notwithstanding a good offer from a willing, but not over-anxious purchaser, the plaintiff prevaricated and the opportunity to secure that sale was lost. In the meantime the plaintiff had purported to give Ms Veza a notice of termination of the Credit Contract demanding that she vacate the property and withdraw the caveat she had lodged to protect her interest.
It was in this context that the plaintiff entered into an arrangement whereby the legal title in fee simple was transferred to the defendant. The plaintiff's case both before Sackville AJA, and as I have said, in the present proceedings, is that the sale to the defendant was by way of a mortgage-back arrangement in the sum of $70,000. No money changed hands but the Loan Agreement and Deed of Mortgage provided for the payment of instalments by the defendant in the sum of $235 per month over a period of 25 years.
Sackville AJA did not accept that version of the facts, but rather made the following relevant findings: 1. "It is an inevitable conclusion from [the plaintiff's] evidence that [the defendant] could not be expected to understand the legal significance of the Loan Agreement and Mortgage Deed, which [the plaintiff] had drafted and signed without the benefit of any independent advice" (Arambasic at [58]); 2. That when the transfer was executed by which the defendant became the registered proprietor of the land "there was "no agreement between [them] for the sale of the Property to him. Nor had [the defendant] paid a deposit in respect of any purchase of the Property by him. [The plaintiff's] intention at the time was accurately recorded in the transfer itself, namely to transfer the fee simple estate to [the defendant] for a nominal consideration of $1.00" (Arambasic at [157]). The defendant "was a volunteer for present purposes" (Arambasic at [163]), but notwithstanding his voluntary status he took his title "free from prior unregistered equities: Bogdanovic v Koteff (1988) 12 NSWLR 472" (Arambasic at [164]); 3. His Honour made the following important findings at [159] - [161]: "[159] I have found that the Loan Agreement and Mortgage Deed executed by [the plaintiff] and [the defendant] were created by her after the transfer to [the defendant] was executed and registered. She took this course because she perceived an advantage in having documentation that recorded a sale of the Property for $70,000.00, rather than a mere transfer for a nominal consideration. At the time she created these documents and at the time the transfer was executed and registered, Dr White well appreciated that the Property had previously attracted at least one genuine offer of $160,000.00. [160] [The defendant] did not understand the documents he signed or witnessed. He believed when he signed the transfer that the Defendants' interest in the Property, whatever it was, had been terminated because [the plaintiff] told him so. He also believed that as a result of the transfer he would acquire title to the Property and have a place to live. [161] At the time the transfer was executed, [the defendant] had not agreed to pay $70,000.00 or any other amount to [the plaintiff] as the consideration for the transfer. [The defendant] came to believe that he was purchasing the Property for $70,000.00 when he later executed the loan documentation. He formed that belief because of what [the plaintiff] told him at the time." Given the way the case was presented by the co-plaintiffs before Sackville AJA his Honour did not have occasion to consider whether the voluntary transfer to the defendant for a nominal consideration gave rise to a resulting trust for the benefit of the plaintiff. It may be the finding made as to the plaintiff's actual intention in making the transfer by necessary implication deals with any latent question in that regard, but I make no finding about that.
The matter came back before the Court in December 2018. The defendant, relying upon the judgment for possession he had obtained against Ms Veza and her partner in the former proceedings (2013/312662), and without commencing separate, fresh proceedings against the plaintiff, obtained a writ of possession for the eviction of the plaintiff from the property in 2018. The writ was to be executed on 18 December 2018 and on 14 December 2018, the plaintiff made application to Rothman J, as duty judge, for a stay of the writ. On the evidence before his Honour, the plaintiff had gone into possession in or about December 2016. The plaintiff's application for a stay was based upon her status as an unregistered mortgagee. In that interlocutory application it was unnecessary for his Honour to make any decision about the validity of the Loan Agreement and Deed of Mortgage. And his Honour proceeded on the basis that Sackville AJA's judgment did not deal with their "validity". His Honour refused to stay the writ as he was not satisfied that the defendant was in default of the loan agreement and he considered it "frankly inappropriate that a person would be denied the possession and occupancy of property that they own on the basis of a debt", which on the evidence before him, he found was in the sum of $705 when the plaintiff issued the notice of default. The writ was executed on the due date and the plaintiff was duly evicted.
It may be said that the present proceedings are an attempt by the plaintiff to regain possession of the property relying upon her asserted status as an unregistered mortgagee. Naturally, a registered or unregistered mortgagee of land governed by the Real Property Act does not have a right to possession per se for the purpose of occupying it as a resident. The right to possession of a mortgagee where it arises due to the mortgagors default is for the sole purpose of exercising a power of sale in enforcement of the mortgage security to recoup the debt.
I turn now to my reasons for my decision in respect of each of the motions.

The plaintiff's application for summary judgment

Although filed second in time I will deal with the motion for default judgment first. Looking at the substance of the matter through the analysis of the previous proceedings between the parties as I have summarised, it seems to me that the defendant has a fairly arguable defence to the plaintiff's claim for possession. Cavanagh J was inclined to accept that the Statement of Claim had not been duly served when the matter came before him in April this year. That circumstance, of course, provides an adequate explanation for the delay up until that time. Indeed, it raises other questions which need not be answered because the defendant through his legal representatives submitted to an order for service of the pleadings and Notices of Motion in accordance with the orders made by Cavanagh J and may be taken to have waived any other right that may have arisen due to non-service.
The explanation for the delay since April, a period of about six months, is not entirely satisfactory. However, it does seem that the time fixed by the Registrar for the filing of a defence has been extended by consent up until 17 July 2020 and by implication since then on the basis of the filing of the defendant's motion for a stay of proceedings.
Whereas I am inclined to grant an interim stay, given the effluxion of time and in the light of Ms Power's statement that the defendant has a defence (3.30 - .33T), I am of the view he should be directed to file his defence so the issue may be identified, and notwithstanding the stay of the proceedings, the plaintiff's motion for default judgment should be maintainable lest there be default in that order.

The plaintiff's motion to extend the caveat

There is no doubt, on the evidence before me that the caveat the plaintiff lodged to protect her asserted interest has lapsed by force of s 74J Real Property Act in default of the plaintiff obtaining from this Court an order extending the operation of the caveat.
The caveat lapsed because the plaintiff failed to obtain an extension of it after service of a lapsing notice under cover of a letter of the defendant's solicitor of 22 November 2018 (Affidavit, Jasmine White, 18 February 2020, Exhibit JW3).
I am also satisfied that in response to service of the lapsing notice the plaintiff attempted to file a Notice of Motion seeking an order for the necessary extension, but her documents were rejected for non-payment of the prescribed fee. She re-lodged her documents on 3 December 2019 together with the requisite payment (Affidavit, Jasmine White, 18 February 2020, Exhibit JW1 and JW2). Inappropriately, the motion sought that the matter be dealt with in the absence of the parties. However, the copy in evidence is endorsed with a listing date of 17 December 2019 at 9 am. In her affidavit of 18 February 2020, the plaintiff swears that she did not receive "anything from the Supreme Court Registry in any way or form until 30 December 2019" when she received the return of her documents for service. She was not cross-examined on this evidence.
It is apparent, however, that the Notice of Motion to extend the caveat was filed in the companion proceedings rather than in the instant proceedings. The matter was listed before the Registrar on 17 December 2019. On the record of proceedings the Registrar recorded that there was no appearance by the plaintiff. Indeed, she endorsed the record of proceedings, "? Appearance re. [Notice of Motion]". From my consideration of the whole file I am satisfied that the plaintiff seems to be a person who does appear at court when required. This to some extent then supports the plaintiff's version of these events.
By s 74O(2) Real Property Act the re-lodgement of a lapsed caveat has: …no effect unless: 1. the Supreme Court has made an order giving leave for the lodgement of the further caveat and the order or an office copy of the order accompanies the further caveat when it is lodged with the Registrar-General, or 2. the further caveat is endorsed with the consent of … the registered proprietor of, the estate or interest affected by the further caveat.
In the course of the hearing before me, to preserve the status quo, and in support of the defendant's application for a stay, Ms Power indicated that the defendant would be willing to provide an undertaking not to deal with the property. The proffering of this undertaking was confirmed by email of Ms Power's instructing solicitor received in my chambers on Friday 2 October 2020 6:13 pm and is expressed in the following terms: Steve Arambasic undertakes to the Court not to sell, mortgage, lease or otherwise deal with the subject Property (Folio Identifier 7/21/758612) until either the conclusion of these proceedings or further order of this Court, whichever occurs first.
Notwithstanding my reservations about the strength of the plaintiff's case, having regard to the findings made by Sackville AJA in the 2013 proceedings, I am satisfied that the plaintiff's claim to be entitled to an interest in the land as an unregistered mortgagee under the Loan Agreement of 12 December 2012 and the Deed of Mortgage of 20 December 2012 "is of substance". That is to say, I am satisfied that there is an arguable case that at the final hearing of these proceedings, the plaintiff may succeed in convincing the Court that she has that interest. I am not of the view that that question can be determined in a summary fashion without receiving admissible evidence subject to the question of any issue estoppel arising out of Sackville AJA's decision. I am also satisfied that she has an explanation for failing to appear to advance her application for an extension of the caveat under s 74K on 17 December 2019. In these circumstances, I would be prepared to make an order giving the plaintiff leave to lodge a further caveat claiming that interest. The only question is whether in the exercise of my discretion I should refuse leave having regard to the undertaking proffered by the defendant.
I have given this matter anxious consideration. Without in any way casting any aspersion on the defendant's probity, I am not satisfied that an undertaking to the Court notwithstanding its force as an order binding the defendant personally, is appropriate. I say this because the Real Property Act establishes a system of title by registration. The Register is a public record to which all persons may have regard for legitimate purposes to ascertain a person's title to or interest in land and the encumbrances to which it may be subject. These considerations, it seems to me, establishing the primacy of the Register must, in the public interest, hold sway. It is not enough for the Court to bind the defendant's conscience only. The legislation itself creates the means by which reasonable protection is given to persons claiming an estate or interest in land under an unregistered dealing. It behoves the Court, in my opinion, in the exercise of its discretion under s 74O to defer to those means. Accordingly, I propose to make an order granting leave under s 74O. It will be for the plaintiff to make sure that she properly complies with the requirements of law for the lodgement of a valid caveat, including obtaining "an office copy" of my order to accompany the further caveat when it is lodged with the Registrar-General.

The defendant's application for a stay of the proceedings

By reference to the affidavit of Mr Dutschke of 17 July 2020, I am satisfied that by Initiating Application (Family Law) filed on 21 October 2019 in the Registry of the Federal Circuit Court of Australia sitting at Dubbo, the defendant has commenced proceedings naming the plaintiff as respondent, seeking a property settlement following the breakdown of their de facto relationship (Annexure B). Part of the specific relief sought includes a declaration that the defendant is the sole and beneficial owner of the subject property, presumably free from the encumbrance of the unregistered mortgage if otherwise valid.
I repeat that in the 2013 proceedings before Sackville AJA, both the plaintiff and defendant apparently read affidavits denying that they were, or had been, in a de facto relationship and, rather, stating that they shared a platonic and business relationship. As I have recited above, Sackville AJA did not find it necessary to resolve that question and made no finding in that regard. Obviously it remains open to the Federal Circuit Court to decide the question for itself on the basis of so much of the evidence lead before it as it accepts. However, it is also obvious that the matter is and remains very much in dispute so far as the plaintiff is concerned. As I have said, that question has been set down for separate determination going to the Federal Circuit Court's jurisdiction on 15 March 2021.
Ms Power invokes this Court's power under s 67 Civil Procedure Act to stay the proceedings. She point to the Federal Circuit Court's broad powers under the Family Law Act 1975 (Cth) to declare and adjust the rights to property of parties to a de facto relationship. She argues that absent a stay there is a risk of inconsistent judgments in this court in the present proceedings and in the Federal Circuit Court. She submits that the Court's power to determine the present claim and the remedies available to it "is markedly more limited" than the powers of the Federal Circuit Court in the property proceedings. For these reasons she submits the proceedings should be stayed.
The plaintiff opposes the stay of proceedings. She relies upon her strenuous denial of the existence of a de facto relationship at any time, and points out that these proceedings were commenced by Statement of Claim filed as long ago as 13 February 2019. She submits that I should draw the inference that the defendant has been adopting delaying tactics and that I should require this matter to come on for hearing at the first available opportunity.
I do not accept that the powers of the Federal Circuit Court are more extensive than the powers of this Court. The powers conferred by the Property (Relationships) Act 1984 (NSW) on this Court are as broad as the powers conferred on the Federal Circuit Court by the Family Law Act: ss 8 and 14 Property (Relationships) Act. The same relief sought in the Federal Circuit Court could have been sought in this Court by way of cross-claim in the instant proceedings under the State legislation.
However, it cannot be said that the Federal Circuit Court is a clearly inappropriate forum, or that this Court is necessarily a more appropriate forum for the resolution of these questions. I observe that the proceedings in the Federal Circuit Court are somewhat well developed given that evidence has been exchanged and a hearing date has been fixed at least for the determination of the preliminary question.
Moreover, it seems to me that the provisions of s 22 Property (Relationships) Act are not irrelevant. That section permits an adjournment of proceedings brought under the Act to facilitate the determination of proceedings in relation to the property of the parties or either of them commenced in the Family Court of Australia. Section 22 is in the following terms: (1) Without limiting the power of a court to grant an adjournment in relation to any proceedings before it, where, at any time before the court has made a final order under this Part to adjust interests with respect to the property of parties to a domestic relationship or either of them, proceedings in relation to the property of the parties or either of them are commenced in the Family Court of Australia, the court may adjourn the hearing of the application for the order. (2) Where the hearing of an application for an order has been adjourned under subsection (1), the applicant for the order may, where the proceedings referred to in that subsection are delayed by neglect or by the unreasonable conduct of a party to those proceedings or by collusion between the parties to those proceedings, apply to the court for the hearing of the application to proceed.
While s 22 is not engaged by the circumstances of the present case, it may be taken as indicative of a legislative policy permitting this Court to facilitate the resolution of property disputes between former de facto partners in the federal jurisdiction. I stress there are no proceedings under the Property (Relationships) Act pending, nor are the defendant's proceedings under the Family Law Act pending in the Family Court of Australia. Nonetheless, the legislative policy and the statutory purpose of that provision are, to my mind, relevant considerations informing the exercise of the power invoked by the defendant.
As the Federal Circuit Court is an appropriate forum for the determination of the application brought by the defendant, there is a risk of inconsistent judgments and, the plaintiff's rights, if any, under the Loan Agreement and Deed of Mortgage can be determined, taken into account and adjusted by that Court, I am of the view that it is appropriate to grant an interim stay of the present proceedings to allow the proceedings in the Federal Circuit Court to take their course. Given that neither party has invoked the State legislation and the only matter this court is seised of is the plaintiff's claim for possession there is a significant risk that bringing these proceedings to fruition will involve a significant waste of time and costs. A successful outcome for the plaintiff here would not deprive the Federal Circuit Court of its jurisdiction to adjust the property rights of the parties to a de facto relationship if it is satisfied that a relationship of that nature subsisted between the parties. That question is not in issue in this Court and therefore will not be resolved by the outcome of the proceedings.
Naturally, to adapt the language of s 22 Property (Relationships) Act, if the Federal Circuit Court proceedings are delayed by the neglect or unreasonable conduct of the defendant, the plaintiff will have liberty to apply for the dissolution of the stay on appropriate notice being given.

Orders

My orders are: 1. Direct the defendant file his defence in these proceedings by Friday 16 October 2020; 2. Adjourn the plaintiff's motion for default judgment filed on 9 March 2020 for further directions on 29 March 2021 with liberty to apply on 14 days' notice to the defendant and the Court if the defendant defaults in compliance with Order 1; 3. On her motion filed on 26 February 2020 under r 36.1 Uniform Civil Procedure Rules 2005 (NSW), grant the plaintiff leave under s 74O(2) Real Property Act 1990 (NSW) to lodge a further caveat claiming an interest as a unregistered first mortgagee under the Loan Agreement dated 12 December 2012 and a Deed of Mortgage dated 20 December 2012 in respect of the land contained in Folio Identifier 7/21/758615, being the property known as XXXXXXXXXXX New South Wales XXXX until further order of the Court; 4. Subject to strict compliance with Order 1, under s 67 Civil Procedure Act 2005 (NSW) stay the proceedings until further order to the intent that proceedings between the parties in the Federal Circuit Court of Australia in matter numbered (P) DUC 403/2019 should be determined first and prior to these proceedings; 5. Adjourn prayers 2 and 3 of the defendant's amended Notice of Motion filed in Court on 1 October 2020 for directions before the Registrar at 9 a.m. on 29 March 2021; 6. Order 4 notwithstanding, list the proceedings for directions before the Registrar at 9 a.m. on 29 March 2021; 7. The costs of each party in respect of each motion are the parties' costs in the cause; 8. Reserve to each party liberty to apply on 14 days prior notice to the opposing party and to the Court.

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: 09 October 2020

Real Property Act 1990(NSW)

Real Property Act 1900(NSW)ss 74K, 74O, 74J

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