Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

NAB Ltd v Goldiway Pty Ltd

 

[2013] QSC 42

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

NAB Ltd v Goldiway Pty Ltd [2013] QSC 42

PARTIES:

NAB LIMITED
ABN 12 004 044 937
(applicant)
v
GOLDIWAY PTY LTD
ACN 075 755 074
(respondent)

FILE NO/S:

11426 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

8 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2013

JUDGE:

Atkinson J

ORDER:

1.The Court declares that the applicant is entitled to vacant possession of the property described as Lot 83, on Building Unit Plan 10415 in the County of Stanley, Parish of South Brisbane, Title Reference 18064168 being the property situated at 83/55 Darragh Street (also known as Unit 83, Moreton Tower, 55 Darragh Street and also known as Unit 83, Moreton View Towers, 55 Darragh Street, and also known as Unit 83, Moreton View Towers, 42 Ferry Street) Kangaroo Point in the State of Queensland.

2.The order of the Court is that:

(a)Pursuant to s 78(2)(c) of the Land Title Act 1994 (Qld) the applicant recover from the respondent vacant possession of the property described as Lot 83 on Building Unit Plan 10415 in the County of Stanley, Parish of South Brisbane, Title Reference 18064168, being the property situated at 83/55 Darragh Street (also known as Unit 83, Moreton Tower, 55 Darragh Street and also known as Unit 83 Moreton View Towers, 55 Darragh Street and also known as Unit 83, Moreton View Towers, 42 Ferry Street) Kangaroo Point in the State of Queensland; and

(b)The respondent pay the applicant's costs of and incidental to the application on an indemnity basis.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS –where the applicant sought a declaration that as between the applicant first registered mortgagee and the respondent third registered mortgagee, the applicant was entitled to vacant possession of a property at Kangaroo Point – where the sole director of the respondent had been making assurances about a sale proceeding for more than 12 months – where there was no capacity to settle that contract of sale because a release could not be given by the second registered mortgagee – where the second registered mortgagee was a deregistered company – where the director of the third registered mortgagee was also the director of the second registered mortgagee – where the applicant is entitled to vacant possession – whether the declaration sought should be made

MORTGAGES – MORTGAGEE’S REMEDIES – POSSESSION – where the applicant sought an order that pursuant to s 78(2)(c) of the Land Title Act 1994 (Qld) the applicant recover from the respondent vacant possession of the property at Kangaroo Point – whether the order sought should be made

Land Title Act 1994 (Qld), s 78(2)(c), s 178, s 184
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 317
Uniform Civil Procedure Rules (Qld), r 11

COUNSEL:

J W Peden for the applicant
Leave given for W Kellas-Sharpe (director) to appear on behalf of the respondent

SOLICITORS:

Gadens Lawyers for the applicant
Leave given for W Kellas-Sharpe (director) to appear on behalf of the respondent

 

 

HER HONOUR:  The applicant has applied to the Court for various orders.  They are found in the originating application filed on 28 November 2012.  That application sought the following orders:

 

1.A declaration that as between the applicant and the respondent, the applicant is entitled to vacant possession of the property described as Lot 83 on Building Unit Plan 10415 in the County of Stanley, Parish of South Brisbane, Title Reference 18064168, being the property situated at 83/55 Darragh Street (also known as Unit 83, Moreton Tower, 55 Darragh Street and also known as Unit 83, Moreton View Towers, 55 Darragh Street, and also known as Unit 83, Moreton View Towers, 42 Ferry Street) Kangaroo Point in the State of Queensland (the property);

 

2.That pursuant to Section 78(2)(c) of the Land Title Act 1994 (Qld) the applicant recover from the respondent vacant possession of the property;

 

3.The respondent pay the applicant's costs of and incidental to the application on an indemnity basis; and

 

4.Such further or other orders as this Honourable Court may deem appropriate.

 

The applicant has handed to the Court draft orders to give effect to the orders sought.  The respondent has not filed any application, but has nevertheless handed up positive orders that she seeks.

 

The matter has had what might be considered as a most unusual history.  I have been assisted by comprehensive submissions by the applicant's counsel, Mr Peden, but before relying on them, I adjourned to ensure that all the statements made in those submissions were accurate as indeed they were, and I thank him for his assistance with those matters.

 

A lot of material was read on this application and there is no need for me to recite everything in that material.  In addition, I received an affidavit sworn by a Wendy Kellas-Sharpe, who is the sole director of the respondent Goldiway Pty Ltd ACN 075-755-074 (Goldiway).

 

In addition, in the course of her submissions, she handed to the Court and I made an exhibit, a copy of an email which appears on its face to have been sent from a reinstatements officer at the Australian Securities and Investments Commission on 24 January 2013 providing information to Romans & Romans Lawyers, who apparently act for Ms Kellas-Sharpe and the company in conveyancing matters concerning the property, about how reinstatement of the company which holds a second registered mortgage over the property should happen and the fees and penalties that were required to be paid in order to do that reinstatement.

 

I have also been provided with, and I made an exhibit of, the history of the company about which the request for information about reinstatement was made.  That company is called Wendles Investments Pty Ltd (Wendles Investments).  A company search which was conducted yesterday, 7 February 2013, shows that that company is de-registered.  The relevance of that, to the extent that it is relevant, will be referred to in the course of these reasons.

 

The application has been brought, as Mr Peden submits, as an originating application under Rule 11 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) on the basis that the only issue is potentially a question of law and there is no disputed question of fact.

 

The application has been before this Court on two earlier occasions, on both occasions being adjourned.  No factual issue has been raised on the earlier occasions.

 

Ms Kellas-Sharpe, who was given leave to appear on behalf of the respondent, Goldiway, again applied for an adjournment.  However the grounds appeared to me to be spurious and no adjournment was granted.  Of course, had there been reason shown during argument for the adjournment to be granted, I would have granted it.  As it transpired, my initial reluctance to grant an adjournment was well supported by the material on the hearing of the application.

 

As Mr Peden submits, the matter before me is simply a question of the applicant’s needing a Court order to assert its rights against a third mortgagee which entered into possession of the property, a residential unit at Kangaroo Point, and refuses to deliver up vacant possession to the applicant, the first registered mortgagee.

 

The opposition to the relief sought by the applicant appears to be on the basis of a contract for sale of the mortgaged property.  As is submitted, that is no reason to deny the applicant its relief.  However, there is good reason to be somewhat sceptical about that being a basis in any event to the opposition for relief.

 

As can be seen from the material, Ms Kellas-Sharpe, on behalf of the respondent Goldiway, has been making assurances about a sale proceeding for more than 12 months.  While the applicant was initially prepared to allow the respondent to seek to sell the property, it quite properly took the view, in February 2012, that the respondent was simply endeavouring to delay matters.

 

There is purported to be a contract of sale of the property at present.  However, extensions of time have been given on that for the settlement of that sale, and the purported purchaser apparently now seeks a further 60 days, until the end of March.  In any event, as the second registered mortgagee, a company of which the sole director was Ms Kellas-Sharpe, remains de-registered, there is no capacity to settle that contract of sale because a release cannot be given by the second registered mortgagee.

 

The background facts are set out in those affidavits filed by the applicant.  They show that a loan agreement was entered into on 13 September 2007, whereby the applicant bank agreed to advance to Pamela Buckley the sum of $744,000, secured over a residential unit at 83/55 Darragh Street, Kangaroo Point, the property which is the subject of the application.

 

Those funds were advanced and a bill of mortgage duly executed by Ms Buckley in favour of the applicant and registered over the property. That is the first registered mortgage.

 

Ms Buckley defaulted in making payment due under the facility, leading to a default notice being issued against her on 16  September 2011.  A further default notice was sent on 14 November 2011.  She was in default for not having paid an amount which was owing and due for payment.  The first registered mortgagee then had the right to take possession of the property. 

 

However, unbeknownst to the applicant, Ms Buckley was declared bankrupt with effect from 5 October 2011. Furthermore, she had, after granting the bill of mortgage to the applicant, granted two subsequent mortgages to other entities, one being Winscourt Investments on 31 October 2007, later transferred to Wendles Investments on 18 June 2010.  That was a second bill of mortgage.  That company, Wendles Investments, is the company which is currently de-registered and of which the sole director was Ms Kellas-Sharpe.

 

A third bill of mortgage was then issued in favour of Goldiway, the respondent to this application.  As I have said, the sole director of that is Ms Kellas-Sharpe, who appears for the company today.  That third bill of mortgage was registered on 22 January 2010.

 

On 25 October 2011, Romans & Romans Lawyers, as solicitors for the second and third mortgagees, wrote to the applicant advising that those mortgagees proposed to take possession of the property on 28 October 2011.  That letter was sent after an earlier facsimile was apparently sent by those lawyers on 11 October 2011, addressed to the National Australia Bank Limited, without further reference, to a Melbourne facsimile number, in which Romans & Romans advised of Ms Buckley's default to their client and that Goldiway had not only commenced proceedings against Ms Buckley for recovery of possession under its third registered mortgage, but proceeded to the stage of obtaining an enforcement warrant against Ms Buckley on 6 October 2011.

 

The applicant's initial position in 2011 was that it sought possession of the property from Ms Kellas-Sharpe's companies, the second and third registered mortgagees.  However, on 12 December 2011 in conversation between Ms Kellas-Sharpe and a paralegal at the law firm representing the applicant, Ms Kellas-Sharpe said she had "organised an extensive marketing campaign for the property to begin in the second week of January 2012" and that she was "awaiting three agents' appraisals.”

 

The applicant appeared to stay its hand, requesting regular updates on the sale and reserving its rights.  I expect at that stage it had no reason to doubt the bona fides of what was occurring.

 

By January 2012, little progress appeared to have been made.  When contacted by the applicant's solicitors, Ms Kellas-Sharpe said that marketing would commence the following week.  The applicant arranged for a check on the occupancy of the unit and was told by those who conducted the check that in February 2012 Ms Kellas-Sharpe was herself living in the unit.  She confirmed, in a subsequent telephone call with the paralegal from the law firm, that it was convenient for her to live in the property when she was in Brisbane.

 

Unsurprisingly, the applicant by its solicitors then wrote to the solicitors acting for the second and third registered mortgagees on 15 February 2012, requesting that Ms Kellas-Sharpe vacate the property within seven days.  The response from those solicitors dated 23 February 2012 attached a contract of sale purportedly entered into between Goldiway and a company called Tacco Pty Ltd by its director, Paul Dowdle, for the sale price of $875,000, with a special condition that Goldiway execute a tenancy agreement with Tacco.

 

The applicant bank was, perhaps unsurprisingly, not satisfied with the terms of that contract of sale, and sought confirmation that the property was vacant.  Goldiway did not deliver up possession of the property and a follow-up letter was sent at the end of May 2012. 

 

On 5 July 2012, the applicant gave notice as mortgagee of the property to the occupant of the unit, to vacate the property in accordance with Section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 and pay all rent to the National Australia Bank as the first registered mortgagee.

 

On 19 July 2012, the applicant filed an application in the District Court for recovery of possession of the property.  Ms Kellas-Sharpe appeared for the two corporate respondents and made various statements, which are referred to in the evidence and in the submissions.

 

Judgment was handed down on 18 September 2012, where the Judge found that the applicant had not shown that the District Court had jurisdiction to determine the matter.  He therefore declined to accede to the application.

 

Since that time, the applicant has continued to seek vacant possession of the property and to ascertain who is in possession of the property and on what basis.  An investigator was sent to endeavour to determine that and he spoke to another gentleman, who said that Mr Dowdle was residing there as tenant, and he was living there by himself whilst running a Court case.  This other gentleman said he was visiting for a few days.

 

Subsequent correspondence from Ms Kellas-Sharpe appeared to indicate, as she appeared to indicate at the beginning of this application, a preparedness to cooperate with the applicant.  However, Mr Peden suggests, and I understand precisely why, that her responses to questions from the applicant had been less than forthright.  That was my impression of her in Court today.  She does not, however, dispute or challenge the applicant's first registered bill of mortgage.

 

The current position appears to be that the respondent acknowledges that the applicant bank has a first ranking registered bill of mortgage and ranks in priority for payment.  The contract with Dowdle has been terminated.  The respondent asserts that it is in legal possession.  There are outstanding body corporate fees in excess of $20,000.  Goldiway has apparently entered into a new contract of sale of the property to a company called HQ Centre Investments Pty Ltd as trustee for the Buckley Investment Trust No 2 (HQ).

 

It will be remembered that it was Pamela Buckley who was the mortgagor of the property to the applicant and HQ is a company of which the sole director and only shareholder is apparently the ex-husband of Pamela Buckley, the mortgagor.

 

The contract with HQ was due to complete on 18 January 2013 and the applicant bank indicated its preparedness to release its bill of mortgage on the completion of the sale.  However, as previously mentioned, the respondent agreed to extend the settlement date to 24 January 2013 and then sought an adjournment of the application today on the basis that she might have a discussion with Mr Buckley this evening as to what might happen with the contract.

 

On 18 January 2013, the solicitors for the applicant asked Ms Kallas-Sharpe who had the keys to the property and who was in occupation of the property and on what basis.  There has been no proper response to that request.

 

Ms Kallas-Sharpe's explanations for why the first registered mortgagee should be kept out of possession of the property to which it is clearly entitled to possession lack any validity and rather suggest ulterior motives.

 

There is absolutely no purpose in the respondent remaining in possession of the property.  The applicant is entitled to possession; it is certainly entitled to vacant possession.  It is certainly entitled to that as against Goldiway, because it has priority as the registered holder of a bill of mortgage in priority to that of Goldiway pursuant to Sections 178 and 184 of the Land Title Act 1994.

 

I therefore am prepared to make the orders sought by the applicant in the draft order before me.

 

I will give the respondent the opportunity to be heard further on the applicant's application for costs on the indemnity basis before making the order as to costs. 

 

...

 

HER HONOUR:  I have listened to the reasons that Ms Kellas-Sharpe gives for saying that the respondent should not have to pay the applicant's costs of and incidental to the application on an indemnity basis.  However, in view of the history of this litigation and the complete non-cooperation by the respondent in giving to the applicant what was clearly its entitlement, I believe that the order sought for costs on an indemnity basis is appropriate.

 

I will therefore read out the orders that I am now making, because these orders now apply from this moment.

 

The Court declares that the applicant is entitled to vacant possession of the property described as Lot 83, on Building Unit Plan 10415 in the County of Stanley, Parish of South Brisbane, Title Reference 18064168 being the property situated at 83/55 Darragh Street (also known as Unit 83, Moreton Tower, 55 Darragh Street and also known as Unit 83, Moreton View Towers, 55 Darragh Street, and also known as Unit 83, Moreton View Towers, 42 Ferry Street) Kangaroo Point in the State of Queensland.

 

The order of the Court is that:

 

(a)Pursuant to s 78(2)(c) of the Land Title Act 1994 (Qld) the applicant recover from the respondent vacant possession of the property described as Lot 83 on Building Unit Plan 10415 in the County of Stanley, Parish of South Brisbane, Title Reference 18064168, being the property situated at 83/55 Darragh Street (also known as Unit 83, Moreton Tower, 55 Darragh Street and also known as Unit 83 Moreton View Towers, 55 Darragh Street and also known as Unit 83, Moreton View Towers, 42 Ferry Street) Kangaroo Point in the State of Queensland; and

 

(b)The respondent pay the applicant's costs of and incidental to the application on an indemnity basis.

 

I make the order as per draft, which I initial and place with the file.

 

Close

Editorial Notes

  • Published Case Name:

    NAB Ltd v Goldiway Pty Ltd

  • Shortened Case Name:

    NAB Ltd v Goldiway Pty Ltd

  • MNC:

    [2013] QSC 42

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    08 Feb 2013

Litigation History

No Litigation History

Appeal Status

No Status