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7/26/2019 Victoria Case of Owen
1/9
442
SUPREME COURT:
VICTORIA
[ 9
I think I should add that, owing to
the
peculiar and exceptional
character
of
malicious prosecution proceedings, I would hesitate long
before
t reat ing any
special rule applicable thereto as operative
in other
proceedings, such as those taken
in
this action.
The question of law will be
answered-No.
Question ansu}ered accordingly.
Solicitors for the Pla in tiff: McCay Thwaites.
Solicitor for the
defendant:
Denis M.
Byrne.
E.E.H.
OWEN v. DALY.
~ N
J.
MAY
11, 12, 27, 1955.
Sheriff Sale
under writ of t fa. Duty of
sheriff Power
of Court to
set
aside
sale Circumstances under which sale set
aside Property
Law Act 1928 No.
3754 , sec. 208 3 .
At common law the duty of the sheriff in selling chattels,
including chattels
real,
of a judgment
debtor
is to act
reasonably
in the interests
of
the judgment
creditor
and the judgment
debtor
in
order to
obtain a fair price. Section
208 3
of the
Property Law
Act
1928 which prescribes the giving of ce rtain notices in connection
with sheriff sales does not abolish
this
duty
of
care.
A sale made by the sheriff
pursuant
to a writ of fieri facias may be set
aside
if
the
Court: is satisfied
that
it
has
not been
properly
conducted
or that it
was not a
real sale.
Circumstances
under
which a sale by the sheriff should be se t aside considered.
TRIAL OF ACTION.
The plaintiff, Joyce Owen, brought an
action
against the sheriff,
William Daly, one Spyros Kyriakou, and the Registrar of Titles, claim-
ing to have a sale by
the
sheriff to
the defendant
Kyriakou set aside.
The facts are set out in the judgment.
Fullagar, for the plaintiff.
Aickin
and
Colman,
for the defendant
sheriff
and
the
defendant
Registrar
of Titles.
Stephen for
the defendant
Kyriakoll.
Cur. adv.
vult.
E N J. read the
following
judgment:
This was an action brought by
Mrs. Joyce Owen against the sheriff to recover damages in respect
of
the
sale
pursuant
to a writ of fieri facias of
her
interest in certain
land,
and
also against one Spyros Kyriakou, who was the judgment
creditor
at
whose instance
the
writ was issued and who was also the purchaser from
the sheriff, claiming to have the sale set aside.
7/26/2019 Victoria Case of Owen
2/9
V R ]
OWEN
v
DALY
DEAN
J
44
The judgment creditor recovered judgment against Mrs. Owen
and
her
husband in two actions
in
a County Court, the judgments against
Mrs. Owen- being expressed to be payable out of her separate estate.
The
County Court
bailiff attempted to levy execution against chattels
-belonging to
the
judgment
debtor,
but
no chattels liable to execution
were found.
The judgment creditor
then
took the appropriate proceedings
in
the
Supreme Court
upon
these judgments,
and
duly
obtained
two
judgments
in this
Court-one on
the
1st
September
1954 No. 1321 of 1954) for
147l 4s 5d and
the
other on
the 27th
September 1954 No. 1501 of
1954) for
1 4l 7s
10d The combin ed judgment debt was thus
251l 12s 3d
The judgment creditor desired to enforce these
judgments
against
certain
real
estate of which Mrs. Owen was registered
proprietor, subject
to
two
registered
mortgages, one
for
2 500l
and
the
other
for
1 000l
These mortgages had been executed and registered in
July
1954. His
solicitors accordingly issued writs of fieri facia s directed to the sheriff
desiring
him to sell the interest of Mrs. Owen in the property
of
which
she was registered
proprietor.
The
writ
of fieri
fa cias
in
action No. 1321
was issued on.
the
7th September 1954,
and
that in action No. 1501 on
the 4th October 1954. The sale was based solely on the former writ.
On
the 10th
September 1954 the sheriff gave to one Tucker , his bailiff,
and one Johnston a warrant on the
writ
of fieri
facias
in action No. 1321
of
1954, reciting the
writ and
judgment of the
1st September
1954,
and
directing
him
to execute
the writ.
The
warrant
gave
the
address of
the
defendants as 310 Main Street, Bairnsdale, this
being
the address sup
plied by the Melbourne agents of the solicitors
for
the judgment debtor
on the 7th September 1954. This
writ
of
fierii
facias was lodged
for
registration upon Mrs.
Owen s
certificate
of title and it
was registered
On
the 8th September 1954. On
the
13th
and the
15th September 1954
Tucker
caused ad ve rt is em en ts to be
inserted
in the Government Gazette
and the
Age
newspaper of his
intention
to sell the interest of Mrs. Owen
in the
land therein
described by re fer enc e to its full title description,
but with
no reference to it s situation. The advertisements and
the
notices referred to below erroneously stated that the judgment debtor s
address was 310 Main Street, Bairnsdale, and did not state, as the fact
was, though the sheriff was
not
aware of it , that she resided on the land
being sold. At about
the
same time he posted similar notices of
the
intended sale, one on a notice board outside the police station
at Elstern
wick,
in
which suburb the
property
was situated, and the other on a
board
near the
sheriff s office
at
the Law Courts, outside the door of the
barristers robing room. None of these advertisements
or
notices came
to the notice of Mrs. Owen. On the 16th September 1954 he posted a
letter
to
-Mrs. Owen enclosing a copy of the advertisement and a state
ment
that there was owing under the judgment the sum of 172l 5s 6d
This
letter
was addressed to Mrs. Owen at 310
Main Street, Bairnsdale.
In
fact
she had left that address on the 1st May 1954, since which date
she had been, and still was residing on
the property
intended to be sold.
The address, 310 Main
Street,
Bairnsdale, was in
fact the
address of
the
judgment creditor.
It
is
not surprising that the
letter was returned by
the
post office, unclaimed,
at
some
date before the
sale.
In
his
report
to
the
sheriff o n the 25th October 1954,
the
day of
the
sale,
the
sheriff s
bailiff reported
the
result of the sale and that
his
letter to the debtor at
310
Main Street,
Bairnsdale, had been returned unclaimed . He
added:
The plaintiff s solicitor did not know of any
further address . In
fact, _while his solicitors
town
agents
did
not, his
Bairnsdale
solicitors
did know she was living on the land.
7/26/2019 Victoria Case of Owen
3/9
SUPREME COURT:
VICTORIA
[ 9
On the 19th
October 1954
th e
sheriff gave Tucker
and
Johnston a
warrant
on the writ of fieri facias in action No. 1501 of 1954. No pro-
ceedings were founded on this warrant which had been registered upon
Mrs. Owen s certificate of
title
on the 4th October 1954. The sale
by the
sheriff was
no t
pursuant
to
this
writ
but
to
the
writ in
action
No. 1321.
Th e sale took place at
th e time
and place mentioned
in the
advertise
ments
and
notices namely
the
25th October 1954 outside
th e
police
station Elsternwjck. It is not clear who was
present
in addition to
Tucker. The
judgment
creditor and his nephew were there also two
policemen
of
th e
Elsternwick police
station doubtless
to
maintain
order
and an unidentified woman probably a passer-by who saw the prospect
of a
little
diversion. Tucker made
it
clear
that what
was being sold
was th e interest\ of Mrs. Owen
in
th e land of which she was registered
proprietor.
At
first no bids were received
but
th e
judgment
creditor
after
a sc er ta in in g fr om T uc ke r that
his expenses would be
about 10Z
made a
bid
of 10l. which
was
th e only bi d made and t he s ub je ct of the
sale was knocked down to him at that figure. On the same day he took a
transfer of
th e
land
from
th e
sheriff which was lodged
for registration
on the 10th December 1954 but registration of which had been held up
by a caveat lodged
by
plaintiff on the 8th DeceInber 1954:
Plaintiff
called
3
sworn
v ~ l u r
to give evidence
to
th e
value of
her
interest. The o nl y charges upon the land s far as appears in evidence
are
th e
two registered mortgages
totalling with
accrued
interest
3 548l. 15s. The
valuer
gave evidence
that
he
valued
th e
property
fo r
loan
purposes in February
1954 at
5 050l. and that having regard
to
the
rise property values in the district as evidenced by sales of other
properties its value
in
October 1954
wit ho ut v ac an t
possession was
5 500l. T hi s evidence was not very satisfactory. The witness appeared
to take as his starting
point
the basis of valuation
for properties
of this
class laid down during th e
war
by officers of th e government department
concerned
with
th e control of prices of
land under
t he Nat io na l Security
Regulations and to add an
arbitrary
fifty per n t ~ t m to th e value ascer
tained in
accordance
with
those principles. To proceed
in
this
way
appears
to me to ignore
th e
real inquiry
namely
what
a
vendor
would
ex pe ct t o receive
and
a
purchaser
would
expect
to
pay; it
neglects con
siderations of locality design of t he b ui ld in gs and the state of repair;
and
th e
adoption
of
some percentage
addition
does not seem to possess
any firm basis. However t o do
him
justice I think
the
figure he gave
does
really represent
his opinion
of
what he would expect
th e land
to be
sold fo r under normal circumstances. He said that the house is out of
repair and would
require the
su m of
800l. or 900l. spent
upon it a
matter
fo r which he ha s allowed.
Plaintiff
bought
th e p ro pe rty in
1950
fo r 3 950l. No other evidence of value was called and I am not pre-
pared
to accept
th e
figure
of
5 500l.
but
think
it
would be
safer
to
take
it s value in October 1954 as 5 050l. On this basis in the absence of
charges
other
than th e registered mortgages t he p lain tiff s in tere st in
the
land
at the date of the sale was
1 500l.
Mr.
Fullagar
for plaintiff very forcibly
pointed
out the grave in
justice done to
hi s
client.
By
a sale
of
which she
had
no notice
her
interest
in
the land worth 1 500l. ha s passed froln her to th e judgment
creditor for a
sum
just sufficient to pay th e sheriff s expenses and she
still
remains
liable fo r
the
full amount of the
judgments.
That
this
is
unjust to her needs no emphasis but I am bound to
apply
th e law as I
understand
it
and
to
leave
it
to
Parliament
to
amend the law
if
it
appears
to it to need amending. Th e
further
comment
may
be
made
7/26/2019 Victoria Case of Owen
4/9
V R ]
OWEN v. DALY
DEAN J
445
that plaintiff, although she possessed
t hi s i nt er es t
in th e land herself
made no
attempt
to realize upon it to
satisfy
th e ,judgments.
In this
respect
she
had
ample
opportunity of
doing
what
wa s
lawful and just.
Ho,vever, I have to concern myself solely
with the
legal
situation
of
the
parties. Mr.
Fullagar
contended-
a
that th e
sale at a gross
undervalue
to
th e judgment creditor
without
notice to
plaintiff
calls
fo r
the
in terv en tio n o f
the
Court
to set it aside;
b
that the sheriff was negligent
in
the manner of advertising and
conducting
the
sale,
and
in
particular
in
not notifying
plaintiff
when
the judgment
creditor knew her address
and
the sheriff
could ha ve easily
found it by inquiry
of
the
judgment
creditor
or by visiting th e land itself;
c that
th e
sheriff should have found out where the
land
was,
what
improvements
there
were llpon it,
and
what
charges were
in existence;
d that the sheriff, having failed to make any real sale, should
not
have
sold
t he pla inti ff s i nt er es t
in
th e
land for a sum which
merely covered his expenses, but should have waited
fo r
a
writ
of venditoni exponas before selling it as he had done.
He sought, therefore, either to set aside
th e
sale
or
to recover d ama ge s
from the
sheriff
fo r
his
breach
of
duty in failing
to do
what
was reason-
able to
obtain
a
proper
sale.
Mr. A.ickin, fo r
th e
sheriff,
contended-
a that the fact that
th e
sale was at
an undervalue
was of no
relevance,
having
regard
to
th e
nature of what was being sold,
namely,
an interest in land
which
n ei th er th e
sheriff
nor the
purchaser was able to put any value upon, as it was
not
known
and could not be known what
unregistered
interests
and
charges
may ex ist;
b that the
fact
that
the purchaser
was the
judgment creditor
was
also
i rr el evant or
he was
not
disqualified
from
buying,
there
being
nothing
of a collusive
nature
suggested against hinl,
and
the sheriff was as much
entitled
to
sell
to the
judgment creditor
as to
any
body else;
c
that
th e
sheriff s duty as to advertising
and
conducting a sale
was
laid
down
by s tatu te an d so
long as he observed
th e
re-
quirements of
th e statute
there was
no
burden
upon him to
do
more;
d that thecommol1
la w
rule
as to a
writ
of
ven d itioni exponas
had
no application to a sale of
land under
the statute; and
that if such rule did
apply
it
could
not
be
said
that the sale
was not for
afair
price having
regard
tothe complete ignorance
of both
the
sheriff
and t he pur chas er
of
th e
value of
what
was
being
sold, n am ely ,
the
plaintiff s interest;
he
referred in
this connexion
to the
differences between chattels
and real
estate; having regard
to
th e
l eg is lat io n c on ce rn ing bills o f sale
it
was
unlikely
that undisclosed
interests in chattels
would
exist;
,
e if there
were
any g rou nd fo r
impeachi:q.g
th e
sale,
th e proper
relief was to
se t it
aside
al} d
not
to
award
damages
against th e
sheriff. .
Mr. S te ph en,
for the judgment creditor
a dopt ed m uc h
of th e
argu
me p t of
Mr. Aickin,
and
urged
that the
case showed that
th e appropriate
relief,
if
any
were
granted
was
not
to avoid
th e
sale
but
t o give da ma ge s
against
the sheriff.
7/26/2019 Victoria Case of Owen
5/9
446
SUPREME COURT:
VICTORIA
[ 9
The claim against the sheriff is one
which
I think the authorities
show is legally
sound if
it is
made to
appear that, in effecting th e sale
the sheriff
ha s
f ai le d t o p er fo rm t he
duty
c as t u po n him by l aw whe re by
th e judgment debtor,
or
th e
judgment
creditor for that matter, has
been
damnified.
But the
problem
is to define th e duty
cast
by law upon the sheriff s
bailiff. If
th
sole duty is
to
conlply
with
th e provisions of the P rop-er ty
Law Act 1928 sec. 208 3),
he
has complied with them. He has
given
the
notice
by
public
advertisement
required
by
th e proviso
to
that sub
section and nothing
in
that statute
r eq ui re s h im
to do more. In
fact, he
has done more. He has
posted
notices in the
vicinity
of the sheriff s
office and
outside
the Elsternwick police
station
and has posted a
copy
of the advertisements to the
judgment
debtor at an address supplied to
him
by
the
solicitors for
the
judgment creditor. B ut if
hi s
duty is
to
take all
reasonable
and proper steps to ensure
that th e
best
possible
price is
obtained,
the
question
arises
whether
he
ha s
performed that
duty.
In
the first place I propose t o c on si de r th e duty up on the sheriff
apart
from th e
proviso
to
sec. 208
3) of the Property
~ v
Act
1928
an d then
to consider
what effect that proviso
has
upon
the
duty otherwise imposed
upon
him. It is I
think, clearly
established
that
at common
law
a
sheriff
selling th e chattels including chattels
real,
of a judgment debtor is
bound to act
reasonably in the
interests
of
the
judgment creditor and
of
the judgment debtor
in
order to obtain
a
fair price,
not
necessarily
the
market
value
for
it
is. well recognized
that
compulsory
sales
under
legal
process rarely.bring the
full value of
th e property sold-see per
Barry
A..-C.J. in
Smith
v. Colles
1871),
2 V.R. L.) 195 a t p.
197;
Pendlebury v. Colonial
Mutual Life
Assurance Society Ltd 1912),
13 C.L.R. 676
at p.
695
per
Barton
J. The
duty
of
th e sheriff
to act
reasonably
with
due regard
to
th e interests
of both
sides and
his liability
in
damages
if
he fails to
exercise reasonable
care has been frequently
stated.
See
Phillips
v. Bacon
1808),
9
East
298 at p. 303 p,er Lord
Ellenborough
C.J.;
Mullet v. Challis
1851),
16 Q.B. 239 at p. 242 per
Lord
Campbell
C.J.; Hernarnan v. Bowke1 1856),11 Ex. 760; Wright v.
Child
1 86 6) , L .R.
1
Ex.
358;
Edge
v.
Kavanagh
1888-),24
L.R.
Ir.)
1; Smith
v. oll es 1871),2
V.R. L.)
195. I
cannot
think that a she riff
is in any
different position
so far as his
duty
is
concerned
from a
mortgagee
selling pursuant to a clause
in the mortgage,
subject to th e
fact
that
he
can
give a s af er t it le than
the
sheriff to
the purchaser. The
duty
of
a
mortgagee to
exercise proper
care
in
relation
to
the
exercise
of his
power
of
sale
ha s
been
frequently stated-see
Kennedy v.
De
Trafford, [1897] A.C. 180; Barns v. Queensland
National
Ba,nk
Ltd
1906),3 C.L.R.
925;Pendlebury s
Case supvra).
The last
case
cited
emphasises
the
duty to give full a nd p ro per notice
such
as is
likely to
bring
to
the
notice
of
possible
purchasers
what
is
being
sold
and
when
and where
the
sale
will
take place. It must in every case be a
question
of
what
is r eason abl e in
the circumstances
having regard not to
the
i nt er es ts o f
the
creditor alone but also to those of
the
debtor.
How
far
has this duty been affected
by
sec. 208
3) of the Property
La,w Act 1928 Th e co nte nt io n
on behalf
of
the
sheriff is that th e
statute
h as p re sc ri be d
that he is
not to
sell
until one
month
next
after
the
notices referred
to have been
given that the statutory
notices were
given and that no further or
additional
requirement is imposed upon
him; in
particular he contends that
no
notice to the debtor need
be
given
if
the
terms of
th e
proviso
ar e
complied
with.
But it
will be
noted
that th e statute does not
prescribe the
c on te nt s o f the notice and in
this
respect
I think
that it must
be one
which
is sufficient
to
give possible
7/26/2019 Victoria Case of Owen
6/9
V R ]
. OWEN
DALY (DEAN
J
447
purchasers reasonable information as
to the
property
and its
owner.
In
the next place, I do not think the statute abolishes the duty of care.
It
prescribed
certain
notices which
must
be given,
but
the
former
duty
still remains. Indeed, it
has
been held
that
the provisions of the proviso
are
merely
directory
and not
mandatory.
Palmer
v.
Bourke
1902 ,
8
V.L.R.275.
I cannot take the view that the accepted principles governing the
l iabili ty of
sheriffs have been
in
so
important
a respect
swept
away,
not
by clear words abrogating it or protecting the sheriff if he observes the
statutory
requirements,
but
by
the prescribing
of advertisements which
must
in
every case be
made
as a preliminary to a sale. Further, the
terms of sec. 190
of the
Stlpreme Court Act 1928, which
quote
later in
this judgment, seem to me expressly to continue
the
duties imposed on
the
sheriff
at
common law.
If
his
duty
be as I consider
it
is, I
think
it
clearly
has
not
been
per-
formed. I
may take
as evidence of
what
is reasonable as against
the
sheriff his
past
practice. This
practice
is to give notice to
the debtor if
he
can
be found. This was not done
in this
case. The sheriff,
or
the
judgment creditor, is
at fault in
two respects. Firstly,.
he
should have
endeavoured
to
find the
debtor
by inquiry
at
the
land i tself,where in
fact she resided,
and
secondly, the
judgment creditor s
solicitors,
by
reason of some failure to instruct
their
town agents of her address, gave
him only her former
address
at Bairnsdale, though
they
knew of her
proper
address. This
last matter
cannot, of course, impose
l iabi li ty on
the
sheriff,
but
it
may
be
important
in
relation
to
the
remedy.
Further,
I
th ink the
notice is defective. I t omits
any
description
whatever of the
location
of
the property, or
what
buildings, if any, were
upon
it. The
importance of this omission appears f rom P en dlebury s Case
(
supra .
The notices do not give the true
address
of the judgment debtor, so
that purchasers
could not make
any inquiry
of
her
as to
the nature of
her interest. The
fact
that she may have misled them or they may have
been disinclined to believe her is no answer to
the
fact that. they were
not afforded this opportunity.
Again,
the judgment creditor
and
his
solicitors
are responsible rather than the sheriff.
Mr. Aickin s answer as to the failure of the notice to
identify
the
property
by reference to its street
and
number is that this would re-
quire the sheriff to make a survey of the
property.
In this case he could
easily have satisfied himself without
a survey
that
it was in fact No.2
Shoobra Road, but. I see no
hardship in making
a survey where neces-
sary,
or by stating that
in
his belief it is
the
property at No.2 Shoobra
Road.
He did not
even inspect the land to see what
buildings
were on
it .
Order
67A, r.
4
of the
R1lles of
the Supreme Cour t provides
that
the sheriff shall give
due
publicity to the time, place
and particulars
of
the
intended sale
by
advertisement .
Rule
2 gives the
debtor
a
right
to say what
property
shall be sold first, which assumes that he
has
notice
of
the
sale.
While these provisions cannot validly
add
to the liability of the
sheriff
at the instance
of a judgment debtor and are
merely
directions
by
the Court
to its own officer,
the
Court,
in
considering
whether its
officer has acted reasonably,
may
have some regard to its instructions to
him and
can
fairly expect him to observe them. I do not consider
that
, due publicity was given
in
this case.
Finally,
I do not th ink there was a real sale at all. The bid made by
the
judgment
cre,ditor was based simply
and
openly
upon
the expenses
of the sheriff
and
made
after
inquiry from him as to those expenses, for
which
he
was liable anyway.
The only
benefit
from the
sale was
the
princely sum of
4s. lId.
It
has
been
said
that a sale for less
than
the
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value of
the
property is
wrongful-per
Platt and lVlartin
BB.,
in Herna-
man v. Bowker (1856),11 Ex. 760
but
I think this is not n accord with
other authorities. Here there can
hardly
be said to
have been
a sale.
Mr.
Aickin contended
forcibly
that nO one
knew
the
value of
the
debtor s interest the
purchaser was
buying
a
pig
in
a
poke ,
for
it
may
have
turned out to be worthless. But the sheriff
could
have ascer
tained the value of the
property
unencumbered,
that
the
only
registered
e n u m r ~ n e s were
for
debts
of
3,500l., that
there
was
an equity on
1,500l.,
that the writ s
had
been registered and
that no
caveats
had been
lodged.
rhese facts might
well have
led
a purchaser to
bid
a substantial
sum had they been known
and
should have led
the
sheriff to refuse a
bid
covering merely
his
expenses.
Notwithstanding
the
very
different
risks
involved in purchasing real and personal property, I do
not
think
I
can
hold that
the
sale was t
fair price. The
proper
return was that
the
debtor s
property
remained
in
his
hands for
want
of buyers. The
creditor might then have obtained a writ of venditioni exponas-see
Chitty s
Archbold (14th ed.), pp. 830-1.
Such
a writ
would
authorize a
sale for whatever
the
property may bring. I
think
plaintiff is
entitled
to
some relief.
The problem of relief
presents
difficulties. As against
the
sheriff I
should not
award
as damages the
amount of the plaintiff s
interest as
now ascertained,
but only such
amount as
would have
been
realized if
the sale
had
been properly
conducted, to
be determined upon an in
quiry-see Pen,dlebu1ry s Case
supra),
a
somewhat
difficult
inquiry.
rl here is
no equitable jurisdiction to set
aside
the
sale-Perkins
v.
Willcock (1871),2
V R
(E.) 222; Stratford
v. Twynam
(1822),
Jac.
418.
But
I see no difficulty in
the
Court
setting
aside
sale
by its
officer
executing the process of the Court i tself where
the
sale has not been
properly
conducted.
rhe Court has inherent
jurisdiction
to
undo
the
acts of
it s
officers.
In Stratford v. Twyna,m (1822),
Jac.
418 Sir T.
Plumer
M.R. in a
case where a bill
was
filed in
equity
to
se t
aside a sale by a sheriff said,
at
p. 420:
I own I feel
great
difficulty in taking jurisdiction
as
to
the
process
of
the
Court
of
King s
Bench. I
must take
it
that
the
sheriff
did
his
duty,
for
if
not it was open
to
the
parties to apply to
the
Court whose officer he is.
In Crawshaw
v.
Harrison
[1894] 1 Q.B. 79 there are similar
dicta.
rrhe case arose upon an interpleader and the question
was
whether it
was
proper
to
sell by private contract.
Charles J.
said
at
p. 82:
No doubt
such a sale was
irregular, and, in the event off the debtor
becoming
bank
rupt, a
creditor
might
apply
to the
Court to
have
the
sale se t aside and i t may he
that a
credi tor might
be
entitled to
make such an
application
even
though
no
bankruptcy supervened.
Wright
J.
said,
at
p. 82:
The
sale it is
true, is i rregular and might u p o ~
a
proper application by
any
person
who is injured
by the
irregularity be
set
aside.
In Edge
v. Kavanagh
(1888),
24
L.R.
Ir. 1 a sale by a sheriff of
an
interest in a farm was set aside
upon
motion
by
the judgment debtor,
Andrews
J., at
p.
5 observing:
I
cannot
regard
the
s al e whi ch took place as a
real
sale at
al l
The so-called sale
was
made to the
pla in ti ff s agent
at
a gross undervalue
without any reasonable
effort
to
obtain some
approach to the
real value; and
although the summary juris
diction
I
am
called
upon
to
exercise so bul d be exercised
with great
caution,
I
a m
clearly
of
opinion
that this
sale
ought to
be
se t
aside.
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V R ]
OWEN DALY DE N J
449
A similar application was made-
to the
Court in
Cramer
v.
urp hy
1887), 20 L.R. Ir. 572, but was
refused
on
the
merits. In neither of
the Irish cases was any objection taken to
the
power of the
Court
to set
the
sale aside. See, also,
Chitty s
A rchbold
(14th ed.), pp.
830-1, as to
setting
aside
an
execution. I do
not
think
that
it
matters
that
the
present application is by
writ
and not by motion. Nor do I consider
that the provisions of the Supreme Court Ac:t 1928, secs. 196
to
225,
relating to the sheriffs render them any
the
less the officers of
the
Court
by common law.
Indeed,
these provisions
form
Division 2
of
Part IX
of
the Act, the
heading
of the Part being
Officers .
By
sec. 196 he is
required
to
execute
and return al l
writs
to
him direc ted
and
(except where
it is
otherwise
provided by
law)
shall do all
other acts and duties
required
by the
common law in
the
same manner as
such writs
are executed and returned
and such
acts
and
duties
are
done
by the
sheriff
of
a
county
in
England.
The
sheriff
in
England has been described as the
ministerial
officer
of
the King s Courts for the
execution of
all
process,
original
mesne
or
final issuing from these Courts-in
matters
civil and criminal
Encyclopaedia of the Laws
of
Engla nd Sub. t it. Sheriff (1st ed.),
vol. 11, p. 533.
I
am
of
opinion
that I am
entitled
to
set
aside a sale
made by the
sheriff
if
I
am
satisfied that it has not been properly
conducted
or that
it
was not a
real
sale. I am satisfied
of both
these matters in this case
and accordingly I must set the so-called sale aside. In doing so I do not
overlook cases to which I was
referred
to
the
effect
that
the remedy
is
usually
not
to set the sale aside but to award damages against the
sheriff-see Palmer v.
Bourke
1902), 28 V.L.R. 275; Perkins v.
Will-
cock
1871), 2 V.R.
(E.)
222; In
re T.
Hughes 1850), 1 Legge
(N.S.W.)
659. But here the judgment
creditor
is very closely involved
in what
ha s been done.
Not
only did
his
solicitor
misinform the
sheriff
of
the
address of
the judgment debtor when he and his Bairnsdale
solicitors knew she resi ded on the land to be sold, but he was also fully
aware of
what the
sheriff
had
done,
and,
through
the town agents
of
his
solicitors,
aware
that she had no notice of the sale and was himself
the
purchaser
at
an
almost
nominal
price. I see no
hardship
to him
in
setting
aside
the
sale.
It might
have been
made
difficult
to
do so
if
the
purchaser had been a stranger, unaware of the
facts
relating to the
conduct
of
the
sale. The sale will accordingly be set aside.
This avoids
any
award of damages
against the
sheriff,
but
I think
the
plaintiff
should have costs against both the judgment creditor and
the
sheriff in
all
the circumstances.
I have not found
it
necessary for the purposes of this judgment to
consider
the history
of
the
legislation by which
the
writ of fieri facias
became available
to judgment
creditoris as a means
for enforcing judg
ment against
interests
in
real
estate. The course
of
that
legislation
is:
54 Geo.
III,
15, sec.
4, an Act of the
Imperial
Parliament
passed
in
respect
of land in
New
South Wales;
15
Vic.
No. 10, sec.
25;
19
Vic.
No. 19
Common
Law Practice Act 18 56 ), sec. 176, w hich is in substance
the present
sec. 208 o f
the Property Law Act
1928. See
further Supreme
Court Act 1890, sec. 230; Sup1reme Court Act 1915, sec. 179.
I have been able to decide this case upon some special features to
which I have referred. But there have been
and
will be many cases
where
a sheriff s sale will do great injury to
the
debtor
without any
corresponding
benefit to the
creditor,
and where the debtor will have
redress.
It is
probable that
when the
legislation was
enacted little
con
sideration
was given to
the
special problems
arising
in
the
case
of
real
EE
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SUPREME COURT:
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[ 9
estate
from the
fact
that
the
debtor s estate may be
subject
to many
unknown
equities and
it
is
this uncertainty
which is
largely
responsible
for the
unwillingness of
purchasers
to
purchase
his estate
at
a sale
by
the sheriff But I would like to suggest that the matter is
worthy of
consideration
by
Parliament
in
order
to devise some scheme which will
deal justly
with
creditors and debtors
and the
interests of
third
parties
Intricate legal problems
are
no
doubt
involved but
with
skilled assist-
ance I believe a
satisfactory
scheme could be evolved
The sale is set aside The
injunction
sought
against the defendant
Kyriakou
and
the Registrar
of Titles as asked iI
paragraphs (6) and
(7)
of
the
Prayer in the statement of claim is
granted.
Order accordingly.
Solicitors
for the plaintiff:
Rodd.a
Ballard
Vroland.
Solicitor for
the
defendant Daly
and the
Registrar of
Titles:
Thomas F. Morn.ane
Crown Solicitor
Solicitors
for the
defendant
Kyriakou:
Weiga.lZ
Crowther.
S.G.H.
ADAMSON v. BUSCH.
HERRING C.J.
MAY
19 JULY 13 1955
Landlord and tenant-Termination of contractual tenancy by tenant-Deserted
wife s
licence thereby terminated-Whether
statutory
tenancy
created-By
de-
serted
wife
remaining
in
premises-Landlord
and
Tenant
Act
1948
No.
5264
sec.
2
(2).
Where the contractual tenancy of a lessee is terminated by his giving notice
to
quit, every subordinate interest which is dependent upon the
tenancy
is also
terminated, including the subordina te interest of the deserted wife
of
the tenant
as
the licensee
of her
husband. Webb v Diethe (1953), 53 S R (N.S.W.) 190 not
followed
Sec 2 (2 )
of the
Landlord and Tenant
Act
1948 defines
lessee
as including a
person who remains in possession after the
termination of
his lease
Held a tenant who has gone out
of
occupation does not remain in possession
unless he intends to return to the tenanted premises and leaves thereon some out-
ward
and visible sign of his intention. Brown v Brash [1948] 2 K.B. 247 applied
Brown
v Draper [1944] K.B. 309; Old Gate Es;tates
Ltd.
v Alexander [1950]
1 K.B. 311 and Middleton v Baldock [1950] 1 K.B. 657
distinguished.
MOTION.
The plaintiffs William
Alexander
Adamson
and
Elsie Adamson
sought
by action an order for possession of
certain
premises
situate
at
14a Peate
Avenue Glen
Iris. They
now
applied
on notice
of
motion for /
an interlocutory injunction restraining the
defendants Jessie Wilhelma
Busch
and
her tenants
of
portion
of
the
premises
their
servants
and
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