IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40839/06
MASON P
HANDLEY AJA
Monday 2 April 2007
FIONA CAROLINE CRISTIAN v PERPETUAL LIMITED, FORMERLY KNOWN AS PERPETUAL TRUSTEE AUSTRALIA LIMITED, (ACN 000431827)
JUDGMENT
1 MASON P: We have heard fuller than usual argument in support of an application for leave to appeal. The argument has been presented in written form and through the oral submissions of Mr Cristian, who is the husband of the claimant and has spoken on her behalf.
2 The matter before the court today is whether to grant leave to appeal against the orders pronounced by Hidden J on 15 November 2006. His Honour ordered that the defendant give the plaintiff possession of certain land and that the plaintiff have leave to issue a writ of possession. He made an order for costs. He directed that the matter be listed for further directions before the Registrar for the outstanding matters that were to be addressed in the proceedings.
3 In his reasons Hidden J stated that,
“The simple fact is that a loan contract was entered into for a certain amount of principal at a certain interest rate. The mortgage was signed consistent with that loan contract and to secure repayment of the loan with interest. It is common ground that there has been default in that no payment has ever been made, and in those circumstances, the plaintiff is entitled to summary judgment for possession.”
4 It was clear to his Honour, as it is clear to me, that the claimant wants to agitate a wide ranging set of issues against the opponent and, it would appear, third parties, including the broker/agent who was involved in the transaction.
5 Mr Cristian has made allegations of fraud, unconscionable dealing and misrepresentation. Some of these appear to be foreshadowed in the document called, First Cross-Claim Cross-Summons, dated 30 October 2006 that was before Hidden J. Other matters were foreshadowed in affidavits that were read before his Honour and no doubt in the submissions put to his Honour.
6 It is not disputed that a mortgage was signed and registered. It is not disputed that various formalities under the Conveyancing Act 1919 concerning the exercise of the mortgagee’s rights were complied with. It is not disputed that the mortgagee paid money and arranged for the discharge of an existing mortgage over the subject property.
7 In Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 at 164-5, Walsh J gave a judgment which received the approval of the High Court on appeal (see 126 CLR at 168-9). His Honour said this:
“In my opinion, the authorities which I have been able to examine establish that for the purpose of the application of the general rule to which I have referred, nothing short of actual payment is regarded as sufficient to extinguish a mortgage debt. If the debt has not been actually paid, the Court will not, at any rate as a general rule, interfere to deprive the mortgagee of the benefit of his security, except upon terms that an equivalent safeguard is provided to him, by means of the plaintiff bringing in an amount sufficient to meet what is claimed by the mortgagee to be due.
The benefit of having a security for a debt would be greatly diminished if the fact that a debtor has raised claims for damages against the mortgagee were allowed to prevent any enforcement of the security until after the litigation of those claims had been completed.”
8 Mr Justice Walsh did not state an absolute rule and one cannot overlook that fact. Nevertheless, I see nothing on what has been put to us today or was put before Hidden J to take the case outside of the general principle.
9 Mr Cristian has indicated that various claims are intended to be brought, presumably in what remains of the present proceedings in the Common Law Division. The order and judgment of Hidden J does not prevent those matters being litigated in the Supreme Court.
10 In my view, his Honour would have been in error if he had not granted summary judgment for possession in the circumstances here prevailing.
11 The dispute that is foreshadowed as to the possible misunderstanding or possible misrepresentation - I stress possible - as to the full effect of the loan contract cannot remove the fact that the document was signed and registered and became the basis of the relationship between the parties.
12 If a claim based on misrepresentation or fraud or unconscientious dealing is to be litigated then so be it. But the law, as I understand it, is clear that a party that succeeds on such a claim will be required to give counter-restitution and to repay any benefit that was received in consequence of the transaction that he or she seeks to impugn. The rule stated by Walsh J is in one sense an aspect of that more fundamental principle.
13 Mr Cristian foreshadowed arguments based upon the nature of legal tender in this country. I do not consider those arguments have any merit. They certainly raise nothing relevant to the matter that is before this Court.
14 I propose that leave to appeal against the orders of Hidden J made on 15 November 2006 be refused and that the summons before this court be dismissed with costs.
15 HANDLEY AJA: I agree.
16 MASON P: That is the order of the court.
**********