Owen, R. v Carrington Confirmers Pty Ltd (In Liq) [1995] FCA 263

Federal Court of Australia

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CATCHWORDS MORTGAGEE - several mortgagees - tenants in common - money advanced by one mortgagee - whether demand must be made by all mortgagees APPLICATION FOR POSSESSION - whether there has been default entitling the mortgagee to possession Drake v Templeton (1913) 16 CLR 153 Refd Re Casalin Pty Ltd (unreported decision of Dowsett J, Supreme Court of Queensland, 22 December 1986) Refd Warr v Jones (1876) 24 WR 695 Refd Drake v Templeton(1913) 16 CLR 153 Refd Powell v Brodhurst [1901] 2 Ch 160 Cons Ex parte: Losa [1982] Qd R 381 Refd Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Refd Ronald Owen v Carrington Confirmers Pty Limited (In Liquidation) No QG148 of 1994 Kiefel J Brisbane 28 April 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG148 of 1994 BETWEEN: RONALD OWEN Applicant AND: CARRINGTON CONFIRMERS PTY LIMITED (IN LIQUIDATION) Respondent JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 28 April 1995 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The respondent's motion for possession be dismissed. 2. Custom Credit Corporation Limited (In Liquidation) be joined as a respondent to the action. 3. Custom Service Leasing Limited be joined as a respondent to the action. 4. The respondent pay the applicant's costs of and incidental to the hearing on 24 March 1995. 5. The applicant's costs otherwise on the motion be his costs in the cause. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG148 of 1994 BETWEEN: RONALD OWEN Applicant AND: CARRINGTON CONFIRMERS PTY LIMITED (IN LIQUIDATION) Respondent CORAM: Kiefel J. DATE: 28 April 1995 PLACE: Brisbane REASONS FOR JUDGMENT In this action the applicant seeks declarations and orders having the effect of setting aside securities held by the respondent, on a number of grounds. The statement of claim, which has been amended, will be the subject of a motion to strike it out as disclosing no reasonable cause or causes of action, which however is to be heard following the conclusion of this motion, in which the respondent, Carrington Confirmers Pty Limited (In Liquidation) ("Carrington Confirmers") seeks orders that the applicant deliver up possession of land at 5 Groves Road, Gympie, Queensland and described as Miners Homestead Lease Number 5776 Lot 6 on Plan Number MP 40089 County of March, Parish of Gympie and containing an area of 2.023 hectares. Clause 23 of the mortgage document relied upon, that dated 26 July 1993, provides that, subject to any statutory requirement of notice, upon default by the mortgagor under the mortgage, the mortgagee may, amongst other things, enter upon and take possession of the land without first giving notice. Clause 20 also provides for entry into possession upon default and contains no reference to the requirement of notice. Carrington Confirmers is one of three mortgagees named in the memorandum of mortgage. That memorandum refers to all three corporations as the "mortgagee" and states that the mortgage is held by them as tenants in common in equal shares. The other two corporations, Custom Credit Corporation Limited and Custom Service Leasing Limited were not parties to either the demand for payment of monies said to be due under the mortgage or to the demand for possession, which demands were issued by Carrington Confirmers and delivered by it to the applicant. The terms of the first mentioned demand by Carrington Confirmers conveyed a requirement of payment to it. The other two mortgagees are not presently parties to these proceedings although there is now an application to have them joined. Whatever the outcome of this motion it is clear that their interests under the securities sought to be avoided require them to be joined to these proceedings. The mortgage does not contain any authority which would permit one mortgagee to act without the other or to require payment of monies due and direct that it be paid only to that mortgagee. Clause 1, which contains the mortgagor's covenant to pay on demand, concludes:

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IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG148 of 1994 BETWEEN: RONALD OWEN Applicant AND: CARRINGTON CONFIRMERS PTY LIMITED (IN LIQUIDATION) Respondent JUDGE MAKING ORDER: Kiefel J. DATE OF ORDER: 28 April 1995 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The respondent's motion for possession be dismissed. 2. Custom Credit Corporation Limited (In Liquidation) be joined as a respondent to the action. 3. Custom Service Leasing Limited be joined as a respondent to the action. 4. The respondent pay the applicant's costs of and incidental to the hearing on 24 March 1995. 5. The applicant's costs otherwise on the motion be his costs in the cause. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG148 of 1994 BETWEEN: RONALD OWEN Applicant AND: CARRINGTON CONFIRMERS PTY LIMITED (IN LIQUIDATION) Respondent CORAM: Kiefel J. DATE: 28 April 1995 PLACE: Brisbane REASONS FOR JUDGMENT In this action the applicant seeks declarations and orders having the effect of setting aside securities held by the respondent, on a number of grounds. The statement of claim, which has been amended, will be the subject of a motion to strike it out as disclosing no reasonable cause or causes of action, which however is to be heard following the conclusion of this motion, in which the respondent, Carrington Confirmers Pty Limited (In Liquidation) ("Carrington Confirmers") seeks orders that the applicant deliver up possession of land at 5 Groves Road, Gympie, Queensland and described as Miners Homestead Lease Number 5776 Lot 6 on Plan Number MP 40089 County of March, Parish of Gympie and containing an area of 2.023 hectares. Clause 23 of the mortgage document relied upon, that dated 26 July 1993, provides that, subject to any statutory requirement of notice, upon default by the mortgagor under the mortgage, the mortgagee may, amongst other things, enter upon and take possession of the land without first giving notice. Clause 20 also provides for entry into possession upon default and contains no reference to the requirement of notice. Carrington Confirmers is one of three mortgagees named in the memorandum of mortgage. That memorandum refers to all three corporations as the "mortgagee" and states that the mortgage is held by them as tenants in common in equal shares. The other two corporations, Custom Credit Corporation Limited and Custom Service Leasing Limited were not parties to either the demand for payment of monies said to be due under the mortgage or to the demand for possession, which demands were issued by Carrington Confirmers and delivered by it to the applicant. The terms of the first mentioned demand by Carrington Confirmers conveyed a requirement of payment to it. The other two mortgagees are not presently parties to these proceedings although there is now an application to have them joined. Whatever the outcome of this motion it is clear that their interests under the securities sought to be avoided require them to be joined to these proceedings. The mortgage does not contain any authority which would permit one mortgagee to act without the other or to require payment of monies due and direct that it be paid only to that mortgagee. Clause 1, which contains the mortgagor's covenant to pay on demand, concludes:

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