Trust Co. Fiduciary Services Ltd v Hassarati (No. 3) [2012] NSWSC 979

Supreme Court New South Wales

Medium Neutral Citation: Trust Co. Fiduciary Services Ltd v Hassarati (No. 3) [2012] NSWSC 979 Hearing dates: 31 May 2012 Decision date: 24 October 2012 Jurisdiction: Common Law Before: Davies J Decision: On the Plaintiffs' application to amend: (1) Leave to the Plaintiffs to file a Fourth Amended Statement of Claim in the form annexed to the Affidavit of Eliza Joan Birkett with any formal amendments necessary by reason of the filing by the First Defendant of a Fifth Amended First Cross-Claim. The amendment joining Konstan Lawyers will take effect from the date of their joinder; (2) The Fourth Amended Statement of Claim is to filed within 14 days; (3) Any defences to the Fourth Amended Statement of Claim are to be filed within 14 days of service of that Claim; (4) Except as between the Plaintiffs and Konstan Lawyers the Plaintiffs should pay the costs of the remaining parties thrown away by reason of the amendment. (5) As between the Plaintiffs and Konstan Lawyers there should be no order as to costs with the intent that each party should bear its own costs of the application. On the application by George and Jospehine Hassarati: (6) The Motion by the Applicants filed 2 May 2012 is dismissed. (7) The Applicants are to pay the Plaintiffs' costs. (8) As between the Applicants and the other parties there should be no order as to costs to the intent that each party should pay its own costs. Catchwords: PROCEDURE - amendment - leave to amend Statement of Claim to add parties - delay - lack of explanation for delay - whether fatal - proposed defendants already cross-defendants - effect of joinder on limitation period. PROCEDURE - possession proceedings - application by occupiers to be joined - life tenant and remaindermen not registered on title - whether interests prevail over registered mortgagee - effect on limitation period of joinder on potential cross-defendants - s 74 Limitation Act. REAL PROPERTY - Torrens system - indefeasibility - Administrator mortgages estate property -rights of life tenant and remaindermen - rights in personam - constructive notice of interests -unconscionability. LIMITATION OF ACTIONS - when action accrues - loan of funds - claim by lender -whether no-transaction case - nature of interest infringed. PROFESSIONS AND TRADES - lawyers - solicitors - non-contentious business- whether solicitor owes duty of care to other party - representations by solicitor. CONTRACTS - unjust contracts - rights of third parties - third parties not having benefit of contract. Legislation Cited: ACT Supreme Court Rules 2006 Australian Securities And Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 Contracts Review Act 1980 Fair Trading Act 1987 Limitation Act 1969 Real Property Act 1900 Uniform Civil Procedure Rules Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Argy v Blunts and Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 Australia and New Zealand Banking Group Ltd v P A Wright & Sons Pty Ltd (unreported, Supreme Court of NSW, Giles CJ Comm D - 3 July 1997; BC 9702853) Bahr v Nicolay (No 2) [1988] HCA 16; 164 CLR 604 Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319 Bebonis v Angelos [2003] NSWCA 13; 56 NSWLR 127 Brueckner v The Satellite Group (Ultimo) Pty Ltd & Ors [2002] NSWSC 378 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd [1971] HCA 9; 124 CLR 73 Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 Eade v Vogiazopoulos [1999] 3 VR 889 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 81 ALJR 1107 Gibbs v Messer [1891] AC 248 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 Hill v Van Erp (1988) 188 CLR 159 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 53; 217 CLR 640 Kenny & Good Pty Ltd v MGICA [1999] HCA 25; 199 CLR 413 Liff v Peasley [1980] 1 WLR 781 Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 482 McGrath v Campbell [2006] NSWCA 180; 68 NSWLR 229 Mercantile Mutual Life Insurance Co Ltd v Gosper (1991) 25 NSWLR 32 Mizzi v Reliance Financial Services Pty Ltd [2007] NSWSC 37 Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) [1999] FCA 1820; 169 ALR 419 Murphy v Overton Investments Pty Ltd [2001] FCA 1725 National Australia Bank Limited v Leon Nikolaidis [2011] NSWSC 506 Nelson v Wyong Shire Council (1989) 68 LGRA 164 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367 Ross v Cook [2009] NSWSC 671 Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326; (2008) 13 BPR 25,435 Sullivan v Moody (2001) 207 CLR 562 Trust Co. Fiduciary Services Ltd v Hassarati [2011] NSWSC 577 Winnote Pty Ltd v Page [[2006] NSWCA 287; 68 NSWLR 531 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 Wardley Australia Ltd v Western Australia (1992) 172 CLR 514 Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45; 233 CLR 528 Texts Cited: Woodman & Nettle, The Torrens System in New South Wales (LBC, 2003) Category: Procedural and other rulings Parties: Trust Company Fiduciary Services Ltd (formerly known as Permanent Trustee Company Ltd) (First Plaintiff) Australia and New Zealand Banking Group Ltd (Second Plaintiff) Alvera Hassarati (First Defendant) Lily Hassarati (Second Defendant) Royal Guardian Mortgage Corporation Pty Ltd (Third Defendant) Anthony Tomazin (Fourth Defendant) CKM (Mortgages) Ltd (Fifth Defendant) John Maait (Cross-Defendant) Joseph Capogreco (Cross-Defendant) Joseph Kotowicz (Cross-Defendant) Simon Konstantinidis (Cross-Defendant) National Australia Bank Ltd (Cross-Defendant) George and Josephine Hassarati (Applicants) Representation: A A Henskens SC & T Fishburn (Plaintiffs) P Cutler (Alvera Hassarati) In person (Lily Hassarati) G Fletcher (Royal Guardian Mortgage Corporation Pty Ltd and Anthony Tomazin) P Barham (CKM (Mortgages) Ltd) P Braham SC & A Munro (Joseph Kotowicz and Simon Konstantinidis) B Connery (Joseph Capogreco) I Griscti (John Maait) P Reynolds (National Australia Bank) B Zipser (George and Josephine Hassarati) Gadens Lawyers (Plaintiffs) Garry Pickering (Alvera Hassarati) In person (Lily Hassarati) Bransgroves Lawyers (Royal Guardian Mortgage Corporation Pty Ltd and Anthony Tomazin) Gibson Howlin Lawyers (CKM (Mortgages) Ltd) HML Ebsworth Lawyers (Joseph Kotowicz and Simon Konstantinidis) Connery Partners (Joseph Capogreco) Middletons (John Maait) Tricia Andres (National Australia Bank) Pericaud Zraika (George and Josephine Hassarati) File Number(s): 2009/295712