Hargraves Secured Investments Limited v Michael Slaven as Trustee of Bankrupt Estate of Roslyn Edwina Waller [2013] NSWSC 673

Supreme Court New South Wales

Medium Neutral Citation: Hargraves Secured Investments Limited v Michael Slaven as Trustee of Bankrupt Estate of Roslyn Edwina Waller [2013] NSWSC 673 Hearing dates: 10 May 2013 Decision date: 30 May 2013 Jurisdiction: Common Law Before: Hall J Decision: (1) Leave to the plaintiff to apply to the Registrar for a hearing date of its Notice of Motion dated 17 January 2013 and for the purpose of determining any directions or other orders sought by the plaintiff. (2) Leave to the plaintiff to apply for the proceedings which I have determined to be re-listed before me, or the Duty Judge, in relation to any consequential or ancillary orders as may be considered necessary. Catchwords: MORTGAGES - mortgagee's remedies - loan secured by farm property - default by mortgagor - proceedings for recovery of possession by mortgagee - proceedings previously commenced in Supreme Court while mortgage regulated by Farm Debt Mediation Act 1994 - previous proceedings appealed in Court of Appeal - previous proceedings appealed in and determined by High Court - High Court determined enforcement action taken by mortgagee void by reason of plaintiff's failure to comply with a statutory precondition under the Farm Debt Mediation Act 1994 - mortgagor subsequently declared bankrupt - Farm Debt Mediation Act 1994 no longer applicable to mortgage by reason of s 5 of that Act - whether plaintiff precluded from relief sought by reason of s 91 Civil Procedure Act 2005 - whether issue in present proceedings has already been determined on the merits - whether cause of action estoppel at common law arises - judgment of High Court directed to issue of compliance with statutory precondition - only issue determined on the merits was whether enforcement proceedings were valid - remains open for mortgagee to enforce its rights where continuing default by mortgagor - whether mortgagor has standing as bankrupt - mortgagor holds bare legal interest only on behalf of Trustee in Bankruptcy - mortgagor had not established arguable defence - mortgagor had no standing in these proceedings Legislation Cited: Civil Procedure Act 2005 Contracts Review Act 1980 Conveyancing Act 1919 Farm Debt Mediation Act 1994 Real Property Act 1900 Supreme Court Act 1970 Supreme Court Rules Cases Cited: Bendigo Bank Limited v Demaria [2001] VSC 218 Bridie v Messina (1965) 66 SR (NSW) 446 National Australia Bank Limited v Strik [2009] NSWSC 184 Re-Engine Pty Ltd (in liq) v Fergusson [2007] VSC 57 Tawil v Public Trustee of NSW [2009] NSWSC 256 Waller v Hargraves Secured Investments Ltd [2012] HCA 4 Category: Interlocutory applications Parties: Hargraves Secured Investments Limited (Plaintiff) Michael Slaven as Trustee of Bankrupt Estate of Roslyn Edwina Waller (First Defendant) Roslyn Edwina Waller (Second Defendant) Representation: Counsel: R Mulquiney, solicitor (Plaintiff) P Macarounas (Second Defendant) Solicitors: Hargraves (Plaintiff) Karl Pattenden & Associates Pty Ltd t/as Pattenden Law (First Defendant) Northern Suburbs Lawyers (Second Defendant) File Number(s): 2012/332901