FEDERAL COURT OF AUSTRALIA

Haslam v Money for Living (Aust) Pty Ltd (No 2) [2008] FCA 1832

MARY ANN HASLAM, BERNARD DICKENS, PHYLLIS LESLIE DICKENS, DELIA LEMON, ESTELL SYLVIA SMITH, THE ESTATE OF ELAINE GAINSFORD, EDWARD JAMES GAINSFORD, ATHOL EASTERBROOK and YVONNE GRAY v MONEY FOR LIVING (AUST) PTY LTD (ADMINISTRATORS APPOINTED) (ACN 107 611 218), MFL PROPERTY HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 111 105 125), STEPHEN O'NEILL, GARY DENNIS O'NEILL, JOLANTA SIMONE OLSZEWSKI, PERMANENT MORTGAGES PTY LTD (ACN 097 176 362), PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007), LATROBE INVESTMENT SERVICES AUSTRALIA PTY LIMITED (ACN 007 416 211), CASH FLOW KING PTY LTD (ACN 108 343 853), PATRICK O'DONNELL, BILL KAFALTIS, JASON TALEB, KERRILI PTY LTD (ACN 097 980 222) (TRADING AS DIAKOU FAIGEN (A FIRM)), REGISTRAR OF TITLES, MKM CAPITAL PTY LTD (ACN 111 776 464), RECORDER OF TITLES, THE COMMISSIONER OF STATE REVENUE OF VICTORIA, THE COMMISSIONER OF STATE REVENUE OF TASMANIA and STABLE TECHNOLOGIES PTY LTD (ACN 062 528 545)

VID 1468 of 2005

MIDDLETON J

2 DECEMBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  It is declared that the land situate and known as 32 Saywell Street, Geelong North in the Sate of Victoria being the land more particularly described in Certificate of Title Volume 7027 Folio 383 (‘the Smith land’) is subject to the interest of the fifth applicant, Estell Sylvia Smith, as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for the life of Estell Sylvia Smith or until Estell Sylvia Smith vacates the Smith land for a period longer than six months.

2.                  It is declared that the land situate and known as 83 Little John Road, Warranwood in the State of Victoria being the land more particularly described in Certificate of Title Volume 10153 Folio 254 (‘the Gainsford land’) is subject to the interest of the seventh applicant, Edward James Gainsford, as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for the life of Edward James Gainsford or until Edward James Gainsford vacates the Gainsford land for a period longer than six months.

3.                  It is declared that the land situate and known as 17 Harley Parade, Prospect Vale in the State of Tasmania being the land more particularly described in Certificate of Title Volume 33675 Folio 75 (‘the Easterbrook land’) is subject to the interest of the eighth applicant, Athol Easterbrook, and the ninth applicant, Yvonne Gray, as tenants under s 40(3)(d) of the Land Titles Act 1980 (Tas), namely a lease until their demise. 

4.                  It is declared that Estell Sylvia Smith has an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under the contract of sale for the Smith land between Estell Sylvia Smith and the second respondent dated 9 December 2004.

5.                  It is declared that the sixth applicant, the estate of Elaine Mavis Gainsford, and Edward James Gainsford have an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under the contract of sale for the Gainsford land between Elaine Mavis Gainsford and Edward James Gainsford and the second respondent dated 18 November 2004.

6.                  It is declared that Yvonne Gray and Athol Easterbrook have an equitable vendor’s lien to the extent of the unpaid balance of the purchase price in respect of the unpaid balance of the purchase price (together with any interest thereon) under the undated Agreement for Sale of Real Estate for the Easterbrook land between Yvonne Gray and Athol Easterbrook and the second respondent.

7.                  Costs be reserved for determination after judgment has been handed down concerning the entitlement of the group members represented by the fifth to ninth applicants, namely William Burton and Annette Burton, Albert Walter Dally and Lorraine Joy Dally, Shirlee Davey, Raymond John Debenham, Anna Rose Kocsis and Leslie Luspia Kocsis and Joyce Doris Orchard (‘the Affected Group Members’) to obtain declarations regarding their proprietary interests in their relevant properties.

8.                  In accordance with s 33ZB(a) of the Federal Court of Australia Act 1976 (Cth), I declare that the judgment given in this proceeding affects the Affected Group Members.

9.                  Pursuant to s 33Z(1)(g) and s 33Q(1) of the Federal Court of Australia Act 1976 (Cth), I make the following directions in relation to the manner in which an Affected Group Member may establish his, her or their entitlement to declarations that:

a.         the land of which he, she or they were registered proprietors and which was subsequently sold by him, her or them to the second respondent and mortgaged by the second respondent to the seventh respondent is subject to his, her or their interest as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for his, her or their life or until he, she or they vacate the said land for a period longer than six months;

b.         he, she or they have an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under his, her or their contract of sale of the said land to the second respondent:-

(i)         Each of the Affected Group Members file and serve an affidavit in support of his, her or their alleged entitlement to the declarations on or before 4:00 pm on 22 January 2009.

(ii)        The seventh respondent file and serve any affidavits in opposition to the declarations being made on or before 4:00 pm on 22 February 2009.

(iii)       The solicitors for the Affected Group Members and the seventh respondent file and serve by way of exchange any written submissions by 4:00 pm on 14 March 2009.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     I have considered the submissions of the parties concerning the orders to be made, and have come to the following view.

2                     I will make the declarations sought as to the existence of a vendor’s lien in respect of the unpaid balance of the purchase price.

3                     I agree with Perpetual that the retirees’ attempts to obtain the protection of the Transfer of Land Act 1958 (Vic) (‘the TLA’) and the Land Titles Act 1980 (Tas) (‘the LTA’) for any such liens failed: see Haslam v Money for Living (Aust) Pty Ltd (2008) FCA 1536 at [106].  The Court did not actually determine that any retiree possessed a vendor’s lien, although that such a lien existed was implicit in the way the proceeding was conducted, and apparent from the evidence before the Court.  MFL Property Holdings Pty Ltd (Administrators Appointed) (‘MFLPH’) does not oppose the declarations being made in respect of the vendor’s lien, and Perpetual never positively contended that the vendor’s lien did not exist, only that it would not support the claim to protection under the TLA and LTA.

4                     There is ample evidence to support the existence of a vendor’s lien, which is still subsisting, and remains as security.  I cannot see how Perpetual can be adversely affected by the issue being dealt with in the way sought by the applicants.  On the basis of the evidence, I am prepared to, and do, find that the vendor’s lien in each case remain as a security over each property.  I will make declarations accordingly.

5                     I do not consider that I should make declarations which may introduce the terms or conditions of the tenancy, other than those sought by the applicants which go to the nature of the duration of the tenancies.  This was the only matter fully considered by the Court.  The terms of the declarations sought by the applicants are consistent with the way the case was argued and with my findings and reasons for judgment.  I decline to go further in framing declaratory relief to be pronounced by the Court.

6                     The applicants seek the costs of Perpetual’s application for an adjournment and the mention on 14 November 2008.  I do not propose at this time to enter into any debate about the utility or otherwise of the adjournment, or the attempt to resolve the group member’s claims.  I propose to reserve all questions of costs.

7                     As to the default relief against the directors of MFL, I am prepared to make orders to enable the seventh to ninth applicants, and any appropriate group member, to file material in support of similar orders which were made against the third to fifth respondents on 27 November 2007.  If such orders can be agreed, then such can be made by consent in my chambers.

8                     Otherwise, the differences between the parties as indicated in their submissions seem to me to be of little consequence, and go to timetabling of the Affected Group Member’s applications for declarations.  I am prepared to delay the process in respect of the Affected Group Member’s applications by a period of four weeks as requested by the applicants. 

9                     Once the extent of opposition to the remaining claims is apparent at the end of February 2009, we will be in a position to estimate the hearing time required and the matter can be mentioned so a hearing date can be appointed.

10                  Therefore, I propose to order that:

1.                  It is declared that the land situate and known as 32 Saywell Street, Geelong North in the Sate of Victoria being the land more particularly described in Certificate of Title Volume 7027 Folio 383 (‘the Smith land’) is subject to the interest of the fifth applicant, Estell Sylvia Smith, as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for the life of Estell Sylvia Smith or until Estell Sylvia Smith vacates the Smith land for a period longer than six months.

2.                  It is declared that the land situate and known as 83 Little John Road, Warranwood in the State of Victoria being the land more particularly described in Certificate of Title Volume 10153 Folio 254 (‘the Gainsford land’) is subject to the interest of the seventh applicant, Edward James Gainsford, as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for the life of Edward James Gainsford or until Edward James Gainsford vacates the Gainsford land for a period longer than six months.

3.                  It is declared that the land situate and known as 17 Harley Parade, Prospect Vale in the State of Tasmania being the land more particularly described in Certificate of Title Volume 33675 Folio 75 (‘the Easterbrook land’) is subject to the interest of the eighth applicant, Athol Easterbrook, and the ninth applicant, Yvonne Gray, as tenants under s 40(3)(d) of the Land Titles Act 1980 (Tas), namely a lease until their demise. 

4.                  It is declared that Estell Sylvia Smith has an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under the contract of sale for the Smith land between Estell Sylvia Smith and the second respondent dated 9 December 2004.

5.                  It is declared that the sixth applicant, the estate of Elaine Mavis Gainsford, and Edward James Gainsford have an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under the contract of sale for the Gainsford land between Elaine Mavis Gainsford and Edward James Gainsford and the second respondent dated 18 November 2004.

6.                  It is declared that Yvonne Gray and Athol Easterbrook have an equitable vendor’s lien to the extent of the unpaid balance of the purchase price in respect of the unpaid balance of the purchase price (together with any interest thereon) under the undated Agreement for Sale of Real Estate for the Easterbrook land between Yvonne Gray and Athol Easterbrook and the second respondent.

7.                  Costs be reserved for determination after judgment has been handed down concerning the entitlement of the group members represented by the fifth to ninth applicants, namely William Burton and Annette Burton, Albert Walter Dally and Lorraine Joy Dally, Shirlee Davey, Raymond John Debenham, Anna Rose Kocsis and Leslie Luspia Kocsis and Joyce Doris Orchard (‘the Affected Group Members’) to obtain declarations regarding their proprietary interests in their relevant properties.

8.                  In accordance with s 33ZB(a) of the Federal Court of Australia Act 1976 (Cth), I declare that the judgment given in this proceeding affects the Affected Group Members.

9.                  Pursuant to s 33Z(1)(g) and s 33Q(1) of the Federal Court of Australia Act 1976 (Cth), I make the following directions in relation to the manner in which an Affected Group Member may establish his, her or their entitlement to declarations that:

a.       the land of which he, she or they were registered proprietors and which was subsequently sold by him, her or them to the second respondent and mortgaged by the second respondent to the seventh respondent is subject to his, her or their interest as a tenant in possession pursuant to s 42(2)(e) of the Transfer of Land Act 1958 (Vic), namely a lease for his, her or their life or until he, she or they vacate the said land for a period longer than six months;

b.      he, she or they have an equitable vendor’s lien in respect of the unpaid balance of the purchase price (together with interest thereon) under his, her or their contract of sale of the said land to the second respondent:-

(i)     Each of the Affected Group Members file and serve an affidavit in support of his, her or their alleged entitlement to the declarations on or before 4:00 pm on 22 January 2009.

(ii)    The seventh respondent file and serve any affidavits in opposition to the declarations being made on or before 4:00 pm on 22 February 2009.

(iii)    The solicitors for the Affected Group Members and the seventh respondent file and serve by way of exchange any written submissions by 4:00 pm on 14 March 2009.

Associate:

Dated:         2 December 2008