PANGAS v PANGAS (ALSO KNOWN AS ROBYNNE LANETTE LORD) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL POWELL JA, COLE JA and BROWNIE AJA 27 March 1997 [1997] NSWCA 242 Brownie AJA. This is an appeal from a judgment of Bryson J delivered on 22 November 1995. His Honour was concerned with a dispute as to competing priorities between the two instruments. The appellant, Peter Pangas, owns some land in Hunter Street, Sydney. He has, it is said, given a mortgage to his brother, the appellant Winston Pangas, dated 1991. That mortgage was lodged for registration on 23 May 1995. It was not then accompanied by the certificate of title, so that the Registrar General issued a requisition dated the same day in which the Registrar General said that unless the certificate of title was produced within two months of that date, the dealing would be rejected. It seems that the certificate of title was not produced within that time limit. However, before the application for registration was rejected by force of that requisition and the non-compliance with it, a second instrument was lodged with the Registrar General on 14 July 1995. That was anapplication by the respondent, Robynne Pangas, to record a writ of execution which she had caused to be issued to enforce a judgment of the Supreme Court. The Registrar General did record that writ on the Register. The dispute before Bryson J was whether the writ had priority over the mortgage. His Honour made a declaration that the writ had priority. The appellants now complain, first, that his Honour should have adjourned the proceedings when they came before him upon the ground that the appellant, Winston Pangas, was ill and in hospital. His Honour recorded that Mrs Cominos, who then appeared for the respondents at least on the second day of the hearing before his Honour, had been unable to point out to him any matter relating to the facts in issue on which Mr Winston Pangas might be able to give evidence. His Honour also referred to the history of the matter and refused an adjournment. In my view, he was plainly correct in refusing the adjournment upon the material before him. There was no explanation given as to why Mr Winston Pangas had done nothing until the afternoon of the first day of the hearing. The evidence as to his state of health was slight and provided no explanation as to why he had been unable to instruct solicitors, collect evidence or generally put his case before the Court. All that was really established was that he was in hospital on the second day of the hearing and that he had,for some little time, been ill, although the medical evidence put before his Honour does not suggest to me that his illness incapacitated him from preparing the litigation for trial in the usual way. The appellants seek to adduce fresh evidence now. The evidence is unsatisfactory in form and one may doubt whether, at the end of the day, it will be convincing. However it does emerge from the proposed fresh evidence that the appellants have something of a case which ought to be heard and which has not so far been heard. 2 UNREPORTED JUDGMENTS The appellants seek to raise four issues, either on the appeal or the new trial. The first is that the Registrar General ought not to have recorded the writ because there was not attached to the application to record the writ an office copy of the writ as required by s 1OS5A(2)(b) of the Real Property Act. The evidence that there was no office copy attached is only hearsay evidence as against the respondent, Robynne Pangas. Speaking for myself, I doubt that on the final hearing, the appellants will be able to succeed on that issue, but there is enough shown to make it seem to me that the appellants ought to have the opportunity to ventilate that issue, notwithstanding all the events that have happened in the past. The second point which the appellants wish to take is that the Registrar General should not have recorded the writ because the application to record it contained a wrong date. There are two dates on the application and it seems to me to be perfectly clear which date is correct. In any event, the Registrar General had a discretion under s 39(2) of the Real Property Act. I do not think there is any substance at all on the second point now taken. The third point raised by the appellants is that Mr Winston Pangas was given some bad advice by an officer in the Land Titles Office in consequence of which he, Mr Winston Pangas, altered the mortgage which his brother, Peter, had granted to him, Winston, so as to record on the face of the mortgage that the mortgagee took his interest subject to the prior encumbrance of the writ. The appellants want to say, as I understand them, that in consequence of that bad advice they might have had some right to make an application to the Registrar General under s 121 of the Real Property Act and if that failed, to the Court. No such application has so far been made. The evidence supporting that supposed point is, so far as concerns Mrs Robynne Pangas, entirely hearsay. Again speaking for myself, I do not think the point has any substance at all. The fourth point raised concerns events which occurred after Bryson J's judgment. It seems that the respondent, Robynne Pangas, then applied to the Registrar General for the cancellation of the recording of the writ. Whether or not the recording was cancelled or cancelled effectively is not clear. Earlier I was attracted to the view that perhapsthis Court today should make a declaration varying the declaration made by Bryson J. On reflection, I do not think we should do that. Subject perhaps to an argument about the drafting of the declaration, what his Honour said was plainly correct at the time. In the end, I think that what should be done in the interests of justice, notwithstanding the history of the matter, is that we should set aside the declaration made by Bryson J and remit the matter to the Equity Division for a further hearing, limited to the first of the points I have mentioned, that is to say limited to the issue whether the Registrar General should have declined to record the writ upon the ground that there was not annexed to the application to record the writ an office copy of the writ as required by s 105A of the Real Property Act. Otherwise I propose that the appeal be dismissed and propose that the appellants pay the costs of the appeal in any event. Powell JA. Although I am inclined to the view that if I were to be the trial judge on a final hearing of the application which had been made by Mrs Pangas and if the evidence remained in the state that is before us at the moment, I would not accept that evidence. That, as it seems to me, is not the question for this Court to decide today. URBPANGAS v PANGAS (ALSO KNOWN AS ROBYNNE LANETTE LORD) (Powell JA) 3 It seems to me that there is now before this Court some evidence explaining, albeit in a very ineffective way, the reason why Mr Winston Pangas did not instruct Mrs Cominosprior to the afternoon of the first day of the hearing and there is now evidence before us which, if accepted by a trial judge, might well provide an answer to the application which had been made by Mrs Robynne Pangas. That being so, there is a very real possibility that although his Honour was, as Brownie AJA said, perfectly justified on the material before him in declining the adjournment, his declining the adjournment may have caused an injustice. I agree with the orders proposed by Brownie AJA. Cole JA. I agree with the orders proposed by Brownie AJA with the reasons therefore which his Honour indicated. It seems to me that the decision of the High Court in the State of Queensland and Anor v Jayelle(?) Holdings Pty Limited, unreported, 14 January 1997, requires that the matter be remitted to the Equity Division. Powell JA. The orders of the Court will be those proposed by Brownie AJA together with an order that the matter as remitted should stand in the Duty Judge's List in the Equity Division on Monday 14 April 1997. Orders accordingly. Counsel for the appellants: CCominos (Solicitor) Solicitors for the appellants: Bouris Cominos Counsel for the respondents: GJohnston Solicitors for the respondents: Miller Goddard