Victoria Case of Owen

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.


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.


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


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.


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


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


7/9

448

SUPR COURT: VICTORIA

[ 9

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.


8/9

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


9/9

450

SUPREME COURT:

VICTORIA

[ 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

Documents

Victoria Case of Owen