Paula Jensen v Bank of Queensland Limited [2011] NSWCA 37 (24 February 2011)

Last Updated: 30 March 2011

Court of Appeal New South Wales

Case Title:	Paula Jensen v Bank of Queensland Limited
Medium Neutral Citation:	[2011] NSWCA 37
Hearing Date(s):	24 February 2011
Decision Date:	24 February 2011
Jurisdiction:
Before:	Beazley JA
Decision:	On the summons for the leave to appeal: (1) Grant leave to appeal limited to the order made by Gzell J under section 74MA(2)(b) of the Real Property Act. (2) Make no order for the costs of the summons for leave to appeal. (3) The court notes that the respondent Bank of Queensland will not take any steps to enforce the costs order made by Gzell J as against Ms Jensen pending the outcome of the appeal. (4) The hearing of the appeal is expedited. (5) Direct the bank to approach the registrar for the making of orders for the preparation of appeal books, the filing of submissions, and for the hearing of the appeal. (6) I note that the legal representatives for the Bank of Queensland are to notify the Registrar-General of these orders and will indicate to the Registrar-General the Court's wish to have assistance from the Registrar-General in respect of the validity of the order, which is the subject of the appeal. (7) The order made by Gzell J under s 74MA(2)(b) is stayed pending the determination of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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Category:	Interlocutory applications
Parties:	Paula Jensen (Applicant) Bank of Queensland Limited (Respondent)
Representation
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File number(s):	2011/44879
Decision Under Appeal
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Judgment

1. BEAZLEY JA: The court has come to a decision as to what ought to happen on the summons for leave to appeal against the orders of Gzell J.
   
2. We consider that the order that his Honour made, which reflected paragraph 5(c) of the summons, namely, an order pursuant to the Real Property Act s 74MA (2) (a), that the first defendant, Karl Hoerman, withdraw the caveat before 5pm on 22 February 2011, was properly made.
   
3. The caveat claimed a commercial lease over part of the land and sought to prohibit the recording in the register of any dealing other than a plan affecting the estate or interests claimed by the caveator and set out in schedule 1. I am not sure what that schedule was, but more particularly, and perhaps more relevantly, the caveat specifically sought to prohibit the recording in the register of a transfer of the property pursuant to the Bank of Queensland's (the Bank) power of sale.
   
4. There is nothing in the caveat which would indicate, as against the Bank, as mortgagee in possession, that Mr Hoerman has any valid leasehold interest: see s 106 of the Conveyancing Act 1919, Perpetual Finance Corp Limited v Blain , Giles J, number 50124/96, and; Parkinson v Brahm (1962) SRNSW 663. We also note the operation of s 74H(5)(g) of the Real Property Act .
   
5. Accordingly, we consider that there is no arguable ground of appeal in respect of that order.
   
6. We are not so convinced in respect of the order that his Honour made reflecting clause 5(d) of the amended summons, in which his Honour made an order, or direction, pursuant to section 74MA2(b). We would grant leave to appeal in respect of that order.
   
7. We do not grant leave to appeal in respect of the applicant's argument, or contention, that his Honour Gzell J was biased against her. We have read the transcript and his Honour's judgment, and although there was a prior occasion when his Honour Gzell J ruled against Ms Jensen and/or her interests in other litigation, it is not apparent that his Honour was either actually biased or gave the appearance of bias, as the test in respect of apparent bias is properly applied.
   
8. We do note that there was an issue at some stage, which arose in the course of proceedings, between Ms Jensen and his Honour, but even so, when one has regard to his Honour's judgment, we think that the contention that his Honour was biased on either basis was not reasonably open.
   
9. As I have said however, we are concerned with the validity of the order that his Honour made under section 74MA2(b) and it is for that reason we will grant leave to appeal limited to that order.
   
10. This does place the Bank in some difficulty. We are conscious that the contract for sale was entered into over six months. There are the interests of the Bank and the purchaser under that contract that need to be considered .
    

DISCUSSION WITH PARTIES RE EXPEDITED HEARING, COSTS AND STAY APPLICATION

11. The Court makes the following orders.
    

On the summons for the leave to appeal:

(1) Grant leave to appeal limited to the order made by Gzell J under section 74MA subsection 2 para (b) of the Real Property Act.

(2) Make no order for the costs of the summons for leave to appeal.

(3) The court notes that the respondent Bank of Queensland will not take any steps to enforce the costs order made by Gzell J as against Ms Jensen pending the outcome of the appeal.

(4) The hearing of the appeal is expedited.

(5) Direct the bank to approach the registrar for the making of orders for the preparation of appeal books, the filing of submissions, and for the hearing of the appeal.

(6) I note that the legal representatives for the Bank of Queensland are to notify the Registrar-General of these orders and will indicate to the Registrar-General the Court's wish to have assistance from the Registrar-General in respect of the validity of the order, which is the subject of the appeal.

ARGUMENT AS TO STAY OF ORDER

12. The Court hears your submissions in respect of the balance of convenience, but in circumstances where we have formed the view that there is a very real issue as to the power of the court to have made such an order we consider the order made by Gzell J under section 74MA2(b) ought to be stayed and that is the order we make pending the determination of the appeal.
    

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