New South Wales Supreme Court CITATION : Bolitho v Permanent Custodians Ltd & Anor [2009] NSWSC 734 HEARING DATE(S) : 26, 27 & 29 June 2009 JUDGMENT DATE : 30 June 2009 JURISDICTION : Equity JUDGMENT OF : Slattery J at 1 EX TEMPORE JUDGMENT DATE : 30 June 2009 Orders: (1) That the plaintiff withdraw the caveat number AE 758610 lodged with the New South Wales Department of Lands by her over the land comprising folio identifier A/415058 by 4pm 1 July. DECISION : (2) That Ms Bolitho be restrained from lodging further caveats over the land in folio identifier A/415058. (3) Both orders stayed until 1pm tomorrow to give the plaintiff the opportunity of lodging an appeal with the Court of Appeal if she is so minded. (4) That the plaintiff, who is the respondent on the application, to pay the first defendant's costs of this application. CATCHWORDS : Application for adjournment to allow for the issue of subpoenas - No proper basis for issue of subpoenas - Withdrawal of caveat - Restraint on lodging further caveats over subject property LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 Real Property Act 1900 CATEGORY : Principal judgment CASES CITED : Port of Melbourne Authority v Anshun Pty Limited (2) (1981) 147 CLR 589 Kim Maree Bolitho (Plaintiff) Permanent Custodians Limited (First Defendant) Bluestone Mortgages (Second Defendant) PARTIES : Mark Griffin of Professionals Real Estate, Avalon (Third Defendant) The Professionals Real Estate's Auctioneer (Fourth Defendant) Properties on Line (Fifth Defendant) Bluestone's Valuer (Sixth Defendant) FILE NUMBER(S) : SC 1634/09 COUNSEL : Kim Bolitho (Self Represented Plaintiff) A Casselden (First Defendant) SOLICITORS : Kim Bolitho (Self Represented Plaintiff) Gadens Lawyers (First Defendant) - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST SLATTERY J TUESDAY 30 JUNE 2009 1634/09 Kim Maree Bolitho v Permanent Custodians Ltd & Anor JUDGMENT 1 HIS HONOUR: This is an application by the first defendant, Permanent Custodians Limited, for orders pursuant to s 74MA(1) and (2) of the Real Property Act 1900 that the plaintiff withdraw caveat, number AE 758610, lodged by her with the New South Wales Department of Lands over the land in folio identifier A/415058 ("the subject property"); and for an order that pursuant to s 74MA2B of the Real Property Act that the plaintiff be restrained from lodging any further caveats over the subject property. 2 The application for that relief is made by the first defendant on the basis of an affidavit of Joshua Vaughan Williams sworn 26 June 2009 which sets out the history of the matter and attaches the prior judgments of this court in the proceedings. In particular it attaches the judgment of Gzell J sitting as duty judge on 19 June 2009 and the Court of Appeal on the same date. 3 The caveat the subject of the relief sought, Caveat AE 758610, is attached as annexure E to the affidavit of Mr Williams. That caveat claims in schedule 1 an estate or interest in the following terms: "The property is being disputed in the Supreme Court, the mortgagor Bluestone/Permanent Custodians, colluded with real estate agent, The Professionals, in a fraudulent ad campaign and auctioned at a $1.06 million under value". 4 The estate or interest claimed in this caveat is the subject of a statutory declaration, by Kim Maree Bolitho, the plaintiff in these proceedings. 5 When the matter was called on I indicated that by reason of the exigencies of the duty list that I was not able to deal with it yesterday. I was told by Mr Casselden, who appears for the first defendant, that there is a conveyancing settlement in respect of the sale of the subject property proposed in this matter on Friday of this week. I adjourned the matter to today so it could be heard. By reason of the press of other business in this list today I am now giving judgment at shortly before 6pm. 6 The plaintiff appears in person and has sought, in response to this application, for there to be an adjournment for a period of some weeks so that subpoenas of the kind that she seeks can be issued and made returnable before the court, so that whatever evidence emerges from those subpoenas can be used to support her caveat and to oppose the settlement of the sale of the subject property. 7 I am dealing with, in effect, two issues: one, the application for an adjournment; and two, the relief sought on the notice of motion. They can both be considered together in these reasons. 8 The brief history of the matter appears sufficiently from the judgments of Gzell J and the Court of Appeal. In summary that history is that the first defendant is the first registered mortgagee of the subject property in Avalon in New South Wales. The plaintiff is the registered proprietor. The first defendant asserts the plaintiff defaulted in her mortgage obligations to the first defendant. The plaintiff claims that her default was minor. Nevertheless, the first defendant obtained judgment for possession of the property. The first defendant entered into possession. The plaintiff has advanced evidence and made submissions in these proceedings about her dissatisfaction with the conduct of the mortgagee in relation to the taking of possession. Those matters have not been resolved either by the previous proceedings or by this application before me which is limited to the relief which I have identified above. 9 On 20 February this year the plaintiff approached the Equity Division and obtained an injunction from Young CJ in Eq preventing the then proposed auction of the property the following day. The matter next came before the court in early March before Bergin J (as she then was). Her Honour is now the Chief Judge in Equity. Bergin J extended the injunction granted by Young CJ in Eq up to and including 5pm on 9 April 2009 and listed the matter before herself. From her reasons for judgment, it is clear that Bergin J was mindful of the matters of personal concern to Ms Bolitho related to Ms Bolitho's attachment to the subject property and Ms Bolitho's desire to prevent the sale on the grounds that are the subject of her complaint. 10 The material before Bergin J indicated that the mortgagee was contemplating a sale of the property at a sum in the order of $700,000. On that day, 9 April, Ms Bolitho was represented and orders for mediation were made and the matter was listed for directions on 21 May. The court noted on that occasion that the first defendant was entitled to market the property from 1 April. The first defendant undertook not to enter into any contracts for sale until 14 May but the injunction, as altered by Bergin J on 12 March, was not further extended. The matter proceeded to mediation but was not resolved at mediation. 11 The plaintiff has said before me that the mediation was unsuccessful for reasons associated with the conduct of the first defendant. That is not an allegation which I am trying today, nor does the material before me show that the first defendant has breached any obligation under s 27 of the Civil Procedure Act as to the conduct of mediations in good faith. It is unnecessary for me to resolve that issue now as it was equally unnecessary for Gzell J or the Court of Appeal to resolve it. 12 The property was listed for auction on 16 May. Ms Bolitho has made several complaints about the inadequacy of that auction in her submissions to me today. The issue of the adequacy of that auction is a matter which appears to have been litigated on 19 June before Gzell J and the Court of Appeal for the purpose of considering whether or not an injunction restraining settlement of the conveyance resulting from the auction should be granted by Gzell J. It is to that application that I now turn. 13 On Friday 19 June Gzell J heard an application by the plaintiff by notice of motion against the first and second defendants seeking "An urgent injunction to be granted to the department of land and titles office to stop the transfer of the title". The agreement for sale and purchase was due to settle at 11am on Monday 22 June. The plaintiff also sought, in addition to that injunction, a declaration that the sale was invalid and void and an order setting it aside. 14 In support of that relief in those proceedings the plaintiff advanced criticisms of the sale and, in particular, she criticised the fact that the sale was not properly advertised and that statements in the advertising were untrue. She advanced allegations that the defendants colluded to damage the subject property so that it could be sold at an under value. 15 The plaintiff further alleged in the proceedings before Gzell J that by the date of the mortgagee's auction that she and her partner had raised at least $700,000. She alleged in those proceedings that she was prevented from being able to bid at the auction. Gzell J found that there was no evidence that any of her matters of complaint about the auction were within the knowledge of the successful bidder at the auction and he declined to grant an injunction restraining the completion of the sale. 16 Gzell J considered the principles that applied to the granting of interlocutory injunctions to restrain sales in circumstances such as the present case and said as to the available remedies, at [17]: "In my view damages are an adequate remedy and as a matter of discretion the balance of convenience favours allowing the settlement of the sale to take place on Monday, there being nothing to suggest that the successful bidder or bidders at the auction were other than bona fide purchasers for value without notice of any of the matters complained by the plaintiff to be fraudulent". 17 In a hearing that same evening the Court of Appeal upheld the decision of Gzell J, but set aside the order of the primary judge dismissing the summons. The Court of Appeal did this not to interfere with his Honour's refusal of an injunction to restrain the completion of the sale, but because the Court reasoned there may conceivably be an argument that if the summons were wholly dismissed that the principles of Port of Melbourne Authority v Anshun Pty Limited (2) (1981) 147 CLR 589, would prevent the plaintiff litigating in the personal action to vindicate the wrongs committed by first defendant as mortgagee by way of an action for damages. 18 Both Gzell J and the Court of Appeal have now made clear that the appropriate way for Ms Bolitho to vindicate her rights to complain about the conduct of the first defendant in taking possession and in relation to the auction is to pursue an action for damages. 19 The application today is not only for an adjournment but for the issue of subpoenas. Ms Bolitho reads her affidavit of 29 June 2009 in support of this application. She also reads her affidavit of 18 June 2009 and her affidavit of 10 March 2009. She has taken me to the particular parts of the affidavit of 29 June 2009 that she says demonstrate the basis for the issue of subpoenas in this case. 20 There are difficulties with the issuing of the subpoenas as Mrs Bolitho requests. As the need to issue subpoenas is the basis upon which she seeks the adjournment of the hearing of these proceedings, if I am against her in relation to the issue of subpoenas, that also would adversely effect her application for an adjournment. 21 The application to issue the subpoenas has, in my view, two difficulties which then flow through to the application for an adjournment. The first difficulty is that the application for the issue of subpoenas is not based on any material that suggests that the subpoenas if issued are likely to serve any useful purpose. 22 The subpoenas which annexure E to the affidavit of Ms Bolitho of 29 June seek to have issued are two subpoenas as follows: "(a) births deaths and marriages: Search of birth and marriage records of John Gerard Cochrane, Denise Lorraine McGregor and Joanne Cochrane showing mother, father, grandparents, children and grandchildren, and; (b) Mark Griffin, The Professionals Real Estate Avalon, and his auctioneer: All records obtained in relation to the sale and concerning the lead up to the sale including all documents, file notes, computer records, all correspondence between any parties and the real estate agent and the auctioneer". 23 To ground her application for the issue of these subpoenas Ms Bolitho has attached as annexure B to her affidavit of 29 June 2009, the first page of the contract for sale of the subject property which has resulted from the auction. The purchasers recorded on the first page of that sale agreement are described as "John Gerard Cochrane and Denise Lorraine McGregor". 24 In order to make out a possible connection between these purchasers and the first defendant the plaintiff has undertaken searches on the internet, and other inquiries. Her searches have revealed, and she has attached this as annexure F to her affidavit of 29 June, that Australian Executor Trustees Limited employ one Joanne Cochrane, who is described on its webpage as a "relationship manager, corporate trust", and who, prior to serving in that role, is described as having spent "Four years working in the property custody area at Guardian Trust and JP Morgan Trust Australia Limited". 25 It can be assumed that someone described as a "relationship manager corporate trust" is in a position of reasonable seniority within that organisation. Ms Bolitho points to the surname of Joanne Cochrane and the fact that it is the same surname as that of the first purchaser. She says to the court she wishes to explore any relationship between the purchaser and the first defendant. When it was put to Ms Bolitho that in order for her to justify the issue of a subpoena it would be necessary to show more, and at the very least a possible connection between Australian Executor Trustees Limited and the defendant, she took the court to annexure G to her affidavit, which is the record of a further search of the internet taken from the web site of a company called Sunpack Finance. She has downloaded an application form to Sunpack Finance which includes in the schedule of that application form (being page 2 of 2 in annexure G) a list of potential lenders. The mortgage loan application documents being offered on the internet by Sunpack Finance are documents that might facilitate a mortgage broker obtaining instructions for providing an applicant's personal details for submission on to a number of potential lenders so that the mortgage broker, such as Sunpack Finance acts in conformity with applicable legislation, including the Privacy and Personal Information Protection Act 1998. 26 In the list of Sunpack Finance lenders are a number of companies who include the first defendant, the second defendant, and Australian Executor Trustees Limited, the company for which Joanne Cochrane works. On the evidence presented, all this shows that Sunpack Finance is prepared to forward the details of potential applicants to a range of potential lenders who include the first and second defendants and a number of other companies. It is not a document that shows a connection between Australian Executor Trustees Limited and the first or second defendant. Nor is it a document that gives further substance to the idea that because Joanne Cochrane is recorded in the Corporate Australian Executive Trustees web site as working for JP Morgan Trust Australia, as well as Australian Executor Trustees Limited, that she, or either of those companies, is associated with either the first or second defendant. 27 Even if there were no other obstacles to this application the material advanced thus does not, in my view, give substance to even a prima facie connection between either Joanne Cochrane and the first and second defendants, or even further afield, the first purchaser, John Gerard Cochrane and any of these companies. Ms Bolitho seeks in part to overcome this lack of connection by seeking the issue of a subpoena to the registrar of births, deaths and marriages which would presumably seek any connection between Joanne Cochrane and John Gerard Cochrane, the first purchaser. 28 Whilst not a particularly common surname, Cochrane is not an uncommon surname and is not so rare that an inference could readily be drawn that persons with the same name are related to each other, particularly in a metropolis as large as Sydney. 29 Accordingly, I see nothing in the material advanced that would show any proper basis other than mere speculation for the issuing of a subpoena for production of this material for the purpose for which it is sought. 30 In relation to request (b) for the issue of a subpoena to Mark Griffin, the Professionals Real Estate Avalon, that and material like it, relating to the quality of the sale is material that it was open to the plaintiff to subpoena before Gzell J and is still material which it is open to the plaintiff to subpoena in any damages action which she is minded to pursue as a result of the orders of Gzell J and the Court of Appeal. The Court of Appeal has already indicated in paragraph 22 of its reasons for decision that such a claim, involving as it does allegations of fraudulent collusion, would have to be pleaded in a statement of claim. That pleading has not yet been filed and thus the time for the issuing of subpoenas based upon the issues raised by such a statement of claim has not yet arrived. 31 The plaintiff says that that she only found out the names of the purchasers at the auction sale in the course of the hearings before Gzell J and the Court of Appeal. However, she did find out about those matters then as a result of reading an annexure to an affidavit by Mr Griffin. It was material before the court in those proceedings and any contention that she did not have an opportunity to issue subpoenas in those proceedings, had she chosen to do so at the time, must fail. She may not have done so in part because she was unrepresented, but her lack of representation does not negative the fact that she was aware of the document at the time and had an opportunity to request the issue of subpoenas at that time. 32 However, there is a second and more fundamental problem with this application, as I have sought to explain to Ms Bolitho in the course of argument. The decision of Gzell J and the decision of the Court of Appeal determined an application for an injunction to restrain the settlement of the sale which had occurred consequent upon the auction. As I explained to Ms Bolitho, the caveat which she has lodged, which is the subject of this removal proceeding is a caveat which, in substance, does no more than support that injunction application. She lodged the caveat on 17 June 2009 before bringing her application on 19 June and it is appropriately crafted to protect her position until that application was resolved. It is a form of statutory injunction which is no wider than the claim which has now been resolved in the Supreme Court by Gzell J and the Court of Appeal. 33 The decision of the Court of Appeal puts at an end the question of whether or not injunctive relief should be granted to restrain settlement of the sale resulting from this auction. 34 As the caveat the subject of this proceeding, does no more than support the relief sought in those proceedings before Gzell J, it should be removed now that those proceedings have been concluded adversely to Ms Bolitho. There is nothing in the text of schedule 1 of the Caveat which in any way suggests that the claim in the Caveat is different from that made before Gzell J or the Court of Appeal. 35 The absence of any basis, therefore, to justify the issuing of the subpoenas means that, as no other basis is advanced, and nor could it be advanced from what I see of the available material, that the application for adjournment also fails. 36 I am then left to deal with the application under s 74MA of the Real Property Act. A person who claims to be entitled to interest in the land may apply for an order to the Supreme Court that the caveat be withdrawn by the caveator. Section 74MA provides as follows: " 74MA Application to Court for withdrawal of caveat (1) Any person who is or claims to be entitled to an estate or interest in the land described in a caveat lodged under section 74B or 74F may apply to the Supreme Court for an order that the caveat be withdrawn by the caveator or another person who by virtue of section 74M is authorised to withdraw the caveat. (2) After being satisfied that a copy of the application has been served on the person who would be required to withdraw the caveat if the order sought were made or after having made an order dispensing with service, the Supreme Court may: (a) order the caveator or another person, who by virtue of section 74M is authorised to withdraw the caveat to which the proceedings relate, to withdraw the caveat within a specified time, and (b) make such other or further orders as it thinks fit. (3) If an order for the withdrawal of a caveat is made under subsection (2) and a withdrawal of the caveat is not, within the time limited by the order, lodged with the Registrar-General, the caveat lapses when an office copy of the order is lodged with the Registrar-General after that time expires." 37 I am satisfied that the application has been served on Ms Bolitho, who has appeared here today. I am of the view that this is an appropriate case to make orders under s 74MA. Specifically I do that because the subject of the claim by the caveator has now been entirely dealt with by the proceedings resolved before Gzell J and the Court of Appeal. There has been no offer by Ms Bolitho to withdraw the caveat and no agreement by her to do so despite her being notified of these proceedings. The appropriate course in my view is to make the orders requested under s 74MA(1) and (2) of the act. 38 The order will be that the plaintiff withdraw the caveat number AE 758610 lodged with the New South Wales Department of Lands by her over the land comprising folio identifier A/415058 by 4pm 1 July. Given the several proceedings that have already taken place, this appears to me to be an appropriate case where I should also restrain Ms Bolitho from lodging further caveats over the land in folio identifier A/415058. 39 I will stay the operation of both of those orders until 1pm tomorrow to give the plaintiff the opportunity of lodging an appeal with the Court of Appeal if she is so minded. 40 I order the plaintiff, who is the respondent on the application, to pay the first defendant's costs of this application. ********** 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.