Thambiappah Satchithanantham v National Australia Bank Ltd [2011] NSWSC 402

Supreme Court New South Wales

Medium Neutral Citation: Thambiappah Satchithanantham v National Australia Bank Ltd [2011] NSWSC 402 Hearing dates: 28 March 2011 Decision date: 28 March 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Application to extend operation of caveat refused. Leave to lodge further caveat refused. Catchwords: REAL PROPERTY - Caveats - application to extend caveat - where caveat already lodged and removed from register -application refused. REAL PROPERTY - Caveats - leave to lodge further caveat - where Trustee in Bankruptcy transferred applicant's interest in property - applicant asserts Trustee in disentitled from transferring interest - mortgage obtained by bank over property subsequent to transfer - applicant cannot sustain caveatable interest. Legislation Cited: (NSW) Contracts Review Act 1980 Cases Cited: National Australia Bank v Satchithanantham [2009] NSWSC 21 Satichithanantham v National Australia Bank [2009] NSWCA 268 Satchithanantham v National Australia Bank [2009] NSWCA 395 Category: Principal judgment Parties: Thambiappah Satchithanantham (plaintiff) National Australia Bank Ltd (first defendant) Representation: Counsel: Thambiappah Satchithanantham (plaintiff in person) Ms J Pike (first defendant) Solicitors: Dibbs Barker Gosling (first defendant) File Number(s): 2011/13708

Judgment ( ex tempore ) 1HIS HONOUR: This is an application, brought by notice of motion filed on 25 March 2011, seeking an order extending the operation of caveat, AF886700, which is in respect of property located at Westmead. 2Even on the plaintiff's best case, today is the last day before which the caveat would lapse, the lapsing notice having been served on him on 7 March. However, the Court was informed - and the evidence establishes - that the caveat has already lapsed, it having been removed from the register by the Land and Property Management Authority, pursuant to a statutory declaration proving that the lapsing notice was served by registered mail on 25 February and annexing a customer receipt confirming that the document was lodged for service by registered mail on 25 February. Although that does not establish the date on which it was received, the caveat has nonetheless lapsed. 3In those circumstances, it might be open to the Court to grant leave to lodge a further caveat, so I shall, to some extent, address the merits of the application. 4The caveat claims an interest described as follows: (1) Caveator holds 50 per cent of the legal ownership and one third equity ownership of the property. (2) Mortgage xxxxxxx transfer xxxxxxx registered on the property are challenged in the Court. 5As it seems to me, the position is as follows. Prior to 2003 the plaintiff and his wife were the registered proprietors of the Westmead property. In 2003, the plaintiff was an undischarged bankrupt. By a transfer - a copy of which is in evidence, is undated but was registered on 20 June 2003 - the plaintiff's trustee in bankruptcy transferred the plaintiff's former share of the property to his wife. By mortgage dated 10 January 2003 and registered also on 20 June 2003 - immediately after the registration of the transfer - the plaintiff's wife mortgaged the property to the National Australia Bank to secure advances. 6In proceedings in the Common Law Division of this Court decided by McCallum J on 6 February 2009 [ National Australia Bank v Satchithanantham [2009] NSWSC 21], her Honour granted the present plaintiff's wife relief under the (NSW) Contracts Review Act 1980, to the extent that the parties to the mortgage were deemed to have entered into a deed varying the underlying loan agreement so as to reduce the amount advanced from some $630,000 to some $408,000. Her Honour indicated that the bank was entitled to judgment for the unpaid balance calculated on that basis, and possession of the Westmead property. Relief was granted to the plaintiff's wife essentially on the basis that she had given the mortgage as a result of undue influence or unconscionable conduct by her husband, the present plaintiff. 7The judgment records that the present plaintiff made numerous applications to be joined as a party to those proceedings, each of which was refused: see the decisions of Sully J of 11 September 2006, leave to appeal refused by Beazley and Tobias JJA 23 May 2007; Malpass AsJ of 24 September 2007; James J of 12 December 2007, refusing an appeal from Malpass As J; Mason and Handley JJA in the Court of Appeal of 14 May 2008 refusing leave to appeal from the decision of James J; and further decisions of McCallum J of 7 April, 22 July and 5 September 2008. 8Mrs Satchithanantham appealed to the Court of Appeal from McCallum J's judgment. That appeal was dismissed with costs on 2 September 2009: Satichithanantham v National Australia Bank [2009] NSWCA 268. However, leave to issue a writ of possession was postponed until 1 November 2009. On 4 December 2009, the Court of Appeal dismissed an application to review a decision of Young JA refusing to stay the issue of the writ of possession: Satchithanantham v National Australia Bank [2009] NSWCA 395. 9I am informed, although I have not yet located it, that Mrs Satchithanantham's application for special leave to appeal to the High Court of Australia from the Court of Appeal's decision was unsuccessful. I have located the outcome of an application for special leave to appeal to the High Court, but it appears to have been an application for special leave to appeal from an order of the Federal Court in bankruptcy proceedings. 10As I understand the case which the plaintiff wishes to make, it is that somehow his trustee in bankruptcy was not entitled to transfer his former interest in the property to his wife, and that the mortgage to the National Australia Bank is invalidated by the circumstance that he was a joint owner of the property. 11The documentary record clearly shows that, at least as far as the register is concerned, the plaintiff was not a proprietor of the property when the mortgage was given to the bank. There is nothing to indicate that the bank was in any way on notice of any relevant claim by him to an interest. Indeed, there is a strong inference to the contrary, since at the time he was an undischarged bankrupt and it was for that very reason that the property was transferred to his wife, so as to facilitate the raising of moneys from the bank. In those circumstances, it is almost unthinkable that the bank would have been told that the bankrupt claimed to retain some interest in the property. 12In those circumstances, the register was, so far as the bank was concerned, conclusive, and the bank took a mortgage from the registered proprietor unaffected by notice of any other claim. 13The plaintiff points out that an earlier title search demonstrated that both he and his wife were registered proprietors of the property. That is, of course, quite right; but what the plaintiff fails to recognise is that his interest vested in his trustee in bankruptcy when he became a bankrupt, and the trustee thereafter transferred his interest to his wife for valuable consideration. 14Moreover, to permit the plaintiff now to maintain this caveat in the light of the course that the associated proceedings referred to above have taken to this point would run very much counter to the outcome of those proceedings, in which the bank has been held entitled to possession and sale of the property. It is true that the plaintiff was not joined as a party to those proceedings, and I have not at this stage seen the reasons for the decisions that he should not be, but it would seem very likely that it was on the basis that he had no legitimate or arguable claim to an interest in the property, in the events and having regard to the transactions that I have already mentioned. In those circumstances, I do not think that the plaintiff can conceivably sustain the caveatable interest that he claims. 15I refuse to grant the relief claimed in paragraph 1 of the notice of motion of 16 May 2011. I order that the plaintiff pay the defendant's costs of today.