Category: Injunction

Blog 95.          Caveator makes unsuccessful application to restrain mortgagee’s sale.

This Blog does not normally cover injunctions but for completeness I cover Trotter v RNC Nominees Pty Ltd [2025] VSC 224, Gray J. which succeeds the caveat case RNC Nominees Pty Ltd v Trotter [2025] VSC 207 the subject of the previous Blog.

The facts were –

  • The first plaintiff (Gary) established a farming business, Beverly Farming Pty Ltd (Beverly Farming), with his wife Lorna. He and their son Andrew were its directors.
  • In around January 2023 Beverly Farming agreed to purchase a property (Marnoo Property). It sought finance.  On 24 May 2023 a loan facility agreement (Facility Agreement) was made by which the first defendant (RNC) agreed to advance up to $6.8 million to Beverly Farming including: $4.1m. for this purchase (the ‘Marnoo Acquisition Limit’); and a $1.5m. ‘Crop Lending Limit’ in three tranches of $500,000 payable respectively by 31 May, 30 June and 30 September 2023.   Clause 10.5(b) in substance required the Borrower to ensure that the interest cover ratio (ICR) remained above 2.00x (the ICR Undertaking).  The ICR was calculated by dividing the ‘Annualised EBIT’ (Beverly Farming’s EBIT for the previous three months multiplied by four) by the ‘Annualised Interest Amount’ (being, in respect of a particular month, the interest amount payable that month multiplied by 12).  Clause 4.2(a)(iii) required RNC to make the Marnoo Acquisition Limit available provided the Borrower was not in breach, or would be rendered in breach by the proposed Advance, of each financial covenant in clause 10.5.
  • Beverly Farming’s guarantors were members of the Trotter family and an associated company. The advances were to be secured by registered mortgages over the Marnoo property and nine other properties, including ‘Hemphills’, ‘South East’ and ‘Woods’ (the three properties), variously owned by members of the Trotter family, and by a general security agreement (collectively, the Securities).
  • Eight of these properties were already encumbered by first registered mortgages to other lenders, seven securing a debt of approximately $4.75m to the National Australia Bank (NAB) as quantified in March 2025.  Accordingly RNC would only be the first mortgagee of the Marnoo Property and another property.
  • On 7 June 2023, the Marnoo Acquisition Limit was advanced. The first and second tranches of the Crop Lending Limit were also advanced.  However, the Marnoo Acquisition Limit did not cover $400,000 in stamp duty, interest and costs.  Accordingly Beverly Farming used approximately $400,000 of this second tranche on the costs of acquisition of the Marnoo Property.  Andrew became its registered proprietor.
  • Beverly Farming failed to pay interest for June 2023.
  • On 15 September 2023, RNC advised Beverly Farming that it was in breach of the ICR Undertaking.  Beverly Farming requested drawdown of the third tranche of the Crop Lending Limit with some $80,000 of it being applied to the interest due under the Facility Agreement on 29 September.  On 21 September 2023 RNC refused this drawdown on the basis that the Facility was in default and of non-satisfaction of conditions in a reservation of rights letter (Draw Down Dispute).
  • On 9 October 2023, RNC served a default notice, relying on the failure to pay the interest due on 29 September and the breach of the ICR clause, and calling in the whole loan.
  • In February 2024 RNC issued another default notice.
  • On 4 April 2024 the parties to the Facility Agreement entered into a Deed of Forbearance (the Deed).  This recited that the secured debt exceeded $7 m. with other amounts accruing. Clause 5.1 required the Obligors to repay the Secured Money by 19 April 2024.  RNC agreed to forbear from exercising its rights and remedies arising out of the “Existing Defaults” (defined as including but not being limited to failures to pay interest and fees due in five specified months and failure to comply with cl. 10.5(b) as at 30 September 2023) for the “Forbearance Period” (defined as the period ending on the earlier of a breach of the Deed or a future default under the Facility Agreement or Securities).  By cl. 8.1 the Borrower and the Guarantors released the Lender from any Claims which they now had or but for the execution of this Deed may have had in relation to the Facility Agreement, the Securities, the Draw Down Dispute and/or anything else under the Deed.
  • On 1 May 2024 RNC issued a third default notice, under the Transfer of Land Act (TLA) s. 76 relying on a series of defaults, including breach of cl 10.5(b) as at 30 September 2023.
  • On 6 May 2024 it took possession of the mortgaged properties, appointing the second defendant and another person its agents, and as receivers and managers of Beverly Farming.
  • On 21 February 2025 RNC entered into contracts of sale of the three properties, due for settlement on 7 April 2025.
  • Lorna caveated over these properties. RNC applied under the TLA s. 90(3) for removal of the caveats and on 16 April 2025 his Honour declined to remove the caveats, on the balance of convenience (Blog 94).  He also expressed the preliminary view of adjourning this application for two months provided Lorna undertook to commence within that period any proceeding asserting her equitable interest in the properties and alleging breach of the TLA s. 77 in the sales, with liberty to apply.  He also stated that the parties would be heard on the precise terms of the orders to be made.
  • RNC sought an urgent listing of the s. 90(3) application to obtain final orders.  It also extended the settlement dates of the contracts of sale to 30 April 2025 but stated to the Court that a further extension was likely to be impossible.
  • Before the relisted date, 22 April, the parties filed fresh material.  RNC still sought removal of the caveats.  His Honour determined that the s. 90(3) application would be reconsidered afresh on 24 April, and that Lorna could file material responding to RNC’s new material.
  • The plaintiffs then commenced this proceeding seeking an injunction, listed for mention on 24 April. The Writ claimed that:
    • it was unconscionable, including under ss. 12CB or 12CA of Australian Securities and Investments Commission Act 2001 (Cth), for RNC to rely on Beverly Farming’s breach of the ICR Undertaking. The loss claimed was that in reliance on this breach RNC had not advanced the final tranche of money, whereby Beverly Farming could not pay the September 2023 interest, and, that RNC had relied on breach of the ICR Undertaking and this non-payment to enforce the Securities, and RNC had charged default interest;
    • in entering into the three contracts RNC had failed to act in good faith and with regard to the plaintiffs’ interests, contrary to s. 77(1) and the duty it otherwise owed to Gary (breach of duty claim), and if RNC was not restrained from completing the sales the plaintiffs would suffer harm for which damages would be an inadequate remedy. It alleged that RNC should have sold properties over which it was first mortgagee because the sales of properties over which it held second mortgages would not reduce Beverly Farms’ net indebtedness to it.  It also complained about the conduct of the sales.
  • In the Writ and Summons the plaintiffs inter alia sought: injunctions restraining completion of the sales and any steps to sell any property, and; production of unredacted copies of the three contracts of sale.
  • On 24 April his Honour determined to hear the application as one for an interim interlocutory injunction to restrain both completion of the existing contracts of sale, and other sales, based on the material currently filed (pending the plaintiffs supplementing their evidence concerning applicability of the Deed and were ready for a full hearing of their Summons supported by this evidence) before further hearing the s. 90(3) proceeding. This was on the understanding that Lorna’s position was that if this interim injunction application failed the caveats would be removed.
  • On 24 April his Honour also heard the application for production of documents.
  • Evidence filed in the s. 90(3) proceeding was not treated as evidence in this proceeding.
  • Andrew deposed that the sales were defectively conducted attaining an undervalue.
  • Counsel for the plaintiffs argued that RNC had acted unconscionably because it knew before advancing any funds that: Beverly Farming’s income was mostly made in early summer; the first advance of funds occurred when Beverly Farming had forecast no or no significant income until January 2024 and accordingly it intended to use the Crop Lending Limit for working capital, including payment of interest, and; accordingly, Beverly Farming would breach the ICR Undertaking immediately.  Counsel also submitted that RNC was not required to advance the purchase monies for the Marnoo Property if that would cause Beverly Farming to breach cl. 10.5(b), and so RNC had acted unconscionably in later relying on that breach, ie it should never have advanced funds in the first place.

Gray J. dismissed the application for interim injunctions and did not determine the application for production, holding –

  1. The Court had a broad discretionary power to grant injunctions where just and convenient pursuant to the Supreme Court Act 1986 s. 37 (also the Supreme Court (General Civil Procedure) Rules 2015 r. 38.01) and as an incident of its inherent jurisdiction to preserve the subject matter of litigation and ensure the effective exercise of its properly invoked jurisdiction. [47]
  1. The general organising principles for applications for interlocutory injunctions were:
    1. The applicant must show a prima facie case for obtaining the relevant relief, ie not that the relief was more probable than not but rather a sufficient likelihood of success to justify the preservation of the status quo pending either trial or, if applicable, expiry of the interim injunction. The required strength of probability depended upon the nature of the rights asserted and the likely consequences of the order sought.  A prima facie case existed where, if the evidence remained as it was, there was a probability that the applicant would obtain relief at trial [48]-[49], [57];
    2. And the balance of convenience favoured an injunction being granted. The Court inquired whether the inconvenience or injury likely to an applicant on refusal of the injunction outweighed injury to the respondent if the injunction were granted.  The Court took the course apparently having the lower risk of injustice if it should turn out to have been “wrong”, in the sense of granting an injunction to a party who failed, or in failing to grant an injunction to a party who succeeded, at trial.  A weaker prima facie case generally required a stronger case on the balance of convenience.  Because the duration of restraint sought by an interim injunction was shorter, the balance of convenience, all other things being equal, was in this case more likely than otherwise to favour relief; [48], [51], [52], [57], [60]
    3. The Court would consider, whether as part of the balance of convenience inquiry or as a separate principle, whether the applicant had demonstrated irreparable injury for which damages would be inadequate compensation, this being presumed where an interest in land was in question; [53], [57]
    4. The Court would generally require the applicant to give the usual undertaking as to damages, moulded to fit the circumstances of the case, and if the undertaking offered was not worthwhile or meaningful this may weigh against granting the injunction. These circumstances may include the likelihood of the applicant’s insolvency, so requiring security to support the undertaking; [54]-[55], [57]
    5. Delay in seeking the injunction was a discretionary factor possibly weighing against granting it. [56], [57]

Most such applications were heard on affidavit material untested in any way, with the Court being unable to resolve disputed questions of fact and often having difficulty resolving conflicts and difficult questions of law. [50]

  1. There was no prima facie case, and on current evidence no prospect, that completion of the contracts would be restrained at trial, for two reasons. The first was that the Deed’s releases covered the unconscionable conduct claim, including the argument that RNC need not have advanced money at all. [2], [66], [67], [76], [77], [78]
  2. The second reason was no prima facie case that RNC had exercised its power of sale in breach of its duty of good faith and of s. 77.  Under general law, a mortgagee had a duty to exercise the power of sale in good faith and for the purpose for which it was conferred, ie it could not recklessly or wilfully sacrifice the mortgagor’s interest. Section 77 widened this duty to require the mortgagee to exercise this power in good faith and having regard to the interests of the mortgagor.  However, a mortgagee had the right to exercise it for its own benefit – it was obliged to obtain the best price consistent with its entitlement to realise its security.  But even where a specific duty of care to achieve market value applied (not claimed here), a controller acting under the Corporations Act 2001 (Cth) or mortgagee, acting in good faith, was not obliged to improve the property’s value, nor to secure market value or a better price by the method or timing of sale.  In such cases, the Court focused on the process of sale, not on whether market value was achieved. [2], [81], [82], [85], [90]
  3. In particular, the following did not give rise to a prima facie case of breach of duty –
    1. the fact that the properties sold were subject to second mortgages; [86]
    2. choice of the selling agent, ie RNC had not disregarded relevant factors and acted with lack of care; [87]-[88]
    3. the timing of the sales; [89]-[91]
    4. the description of the properties being sold; [92]-[94]
    5. the fact that the sales were private. A mortgagee could make a reasonable attempt to obtain market value by auction, private treaty, or public tender; [95]-[96]
    6. there was inadequate evidence of undervalue, even having regard to the non-disclosure of the prices by RNC. A sale at a very significant undervalue could be relevant to assessment of breach of duty, but mere non achievement of market value estimates was not in itself evidence capable of establishing breach. Even if the non‑disclosure founded an arguable claim of breach of duty under s. 77 this was insufficient to justify an interim injunction restraining settlement. [97]-[108]
  1. The balance of convenience was also against restraining completion of the contracts of sale, because –
    1. the evidence fell well short of establishing that if the status quo was preserved there was a good prospect of repayment of RNC’s and NAB’s debts; [114]-[116]
    2. it was uncertain that RNC could further extend the contractual settlement dates. The contracts were open to the interpretation that the extension power could be used only once; [117]-[118]
    3. the fact that RNC would not be paid in full from the sales was of no real significance; [119]
    4. although the Trotters had long farmed the land they had not established that damages would be an inadequate remedy for sales at an undervalue in breach of duty. The debt was so great, and the evidence of refinancing so inadequate, that sale of at least some properties seemed inevitable; [120]-[125]
    5. the plaintiffs had not established that their undertaking as to damages would be meaningful; [128]
    6. if the three sales were not settled on 30 April 2025 RNC faced risks in the other sales campaigns and of increased loss; [129], [131]
    7. the plaintiffs had delayed commencing this proceeding for a lengthy, mostly unexplained, period. [132]

[2], [110], [112], [130], [133]

  1. The plaintiffs also failed to show a prima facie case for restraining sale of any of the farming properties. Their possible arguments for this injunction would have substantially overlapped those on the application for an injunction to restrain the sales. [44], [45]
  2. The injunction applications having failed, it was unnecessary and inappropriate to decide the application for discovery of unredacted contracts as part of an urgent Practice Court matter. It was unusual for an application for discovery to be determined in the Practice Court.  It could be renewed under ordinary case management processes. [3], [138]-[140]

Philip H. Barton

Owen Dixon Chambers West

Tuesday, July 22, 2025

 

Blog 93. Two reprise cases.

This Blog covers two relatively short cases which are related to previous Blogs.  Saad v Saad [2025] VSCA 29 (Whelan JA and Watson AJA) was an unsuccessful application for a stay of execution of the judgment of Gobbo AsJ in Saad v Saad [2025] VSC 15 ordering removal of a caveat, the subject of Blog 92, and alternatively for an injunction restraining dealing with the property pending determination of the caveators’ application for leave to appeal to the Court of Appeal.   Perpetual Ltd v Doyle [2025] VSC 70 (Irving AsJ) arose out of facts related to Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664, the subject of Blog 82.

In Saad v Saad [2025] VSCA 29 the Court of Appeal dismissed the application (pursuant to Rule 66.16 of the Supreme Court (General Civil Procedure) Rules) for a stay, and the injunction application, noting:

  1. The decision at first instance was a discretionary judgment. The ultimate appeal could only succeed if an error of the kind described in House v The King (1936) 55 CLR 49 were established.  This would be very difficult. [42](a), (e).
  2. Being interlocutory, the existing decision, and the refusal of a stay, did not determine any issue against the applicants. There was no issue estoppel or res judicata. [42](b).
  3. The applicants’ claims were mutually inconsistent, and part of their case was, at the least, vague and uncertain. [42](d), (e), (f).
  4. Any uniqueness in the property attributable to it being a family compound was most probably already lost. [42](g))
  5. The balance of convenience strongly favoured refusal of a stay both because the caveat was preventing the elderly registered proprietor dealing with the land and because, even if the applicants’ claims were eventually established, monetary compensation was likely to be the adequate remedy. [42](c, (f), (h).
  6. The application for an injunction was refused for the same reasons. [43]

The court also reiterated two basic points related to applications under the Transfer of Land Act s. 90(3) for removal of caveats.

First, that although it had been observed that there was, as to the caveator’s claim to an interest in the land, no real difference between a serious question to be tried test and the prima facie case test, the latter was now preferred. [35]

Second, that although the courts had adopted the analogy of an interlocutory injunction and the consequent two stage test (ie had the caveator established: first, a prima facie case or serious question to be tried of having the claimed interest in the land, and; second, that the balance of convenience favoured maintenance of the caveat), s. 90(3) was broadly drafted, and accordingly the two stage test should only inform whether the court should exercise the discretion, not subsume or restrict the power conferred by s. 90(3). [36]

 

Perpetual Ltd v Doyle [2025] VSC 70 (Irving AsJ)

As background to this case it assists briefly to summarise parts of Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664 (Downey), the subject of Blog 82.  In Downey –

  • On 16 October 2007 the defendant (Doyle), who was the registered proprietor of land in Ardcloney Drive, Sunbury (the Land), transferred it to Robert Bourne who became its registered proprietor.
  • It appeared that between 16 October 2007 and 10 July 2014 Doyle occupied the Land under an informal licence granted by Bourne. On 7 March 2014 she caveated over it claiming that the “registered proprietor holds his interest as trustee for the Caveator pursuant to a constructive trust and/or a declaration of trust from the registered proprietor made on 16 October 2007”.
  • On 10 July 2014 a sequestration order was made over Bourne’s bankrupt estate and the plaintiff was appointed as his trustee.
  • In 2016 a sequestration order was made over the Doyle’s bankrupt estate and the Official Trustee in Bankruptcy was appointed as her trustee.
  • On 28 March 2023 the plaintiff terminated any informal licence held by Doyle.
  • On 3 May 2023 the plaintiff became the registered proprietor of the Land and was informed that the Official Trustee agreed to permit Doyle’s caveat to lapse.
  • The plaintiff issued a proceeding for recovery of possession and under s. 90(3) of the Transfer of Land Act (TLA) for removal of the caveat. Doyle claimed or deposed inter alia that: in 2006 she purchased the Land on trust for her children; in 2007 she purchased another property but agreed with Bourne that he would act as bare trustee for both properties and would after approximately two years reconvey the Land to her as co-trustee for her children; Bourne paid no consideration for the transfer to him; she never transferred her children’s beneficial interest in the Land to Bourne; although she had no personal interest in the Land the caveat had to be lodged in her name personally (rather than in her name as trustee for her children).

Irving AsJ. refused the application for possession but granted the application for removal of the caveat, holding in brief summary (the full holding is in Blog 82) –

  1. The Land was vested in the plaintiff as Bourne’s trustee in bankruptcy.
  2. To the extent that Doyle had any interest in the Land as trustee, that interest had vested in her trustee in bankruptcy.
  3. Doyle accordingly had no prima facie case of the interest claimed in the caveat.

The case the subject of this Blog, Perpetual Ltd v Doyle [2025] VSC 70, concerns land at Powlett Street Sunbury (the Property), being the “other property” referred to the previous case.  In this case Doyle alleged or the uncontested facts were –

  • When Bourne purchased the Property she entered an agreement with him that he would borrow funds for the purchase and be the registered proprietor holding it on trust for her, she holding her interest therein on trust for her daughters. Although the loan was to be taken out in his name she and/or her daughters would remain responsible for the mortgage repayments and outgoings.
  • In December 2007 Bourne mortgaged the Property to the plaintiff (Perpetual) to secure a loan of $347,700.00. The mortgage was registered.
  • More than 6 years later Doyle caveated claiming an implied, resulting or constructive trust on the ground of a constructive trust.
  • Bourne became bankrupt. His trustee in bankruptcy, Downey, became registered proprietor of the Property.
  • In 2023 Perpetual issued a default notice to Bourne, who did not rectify the default, and it now sought to sell the Property as mortgagee in possession.
  • In 2024 the Supreme Court dismissed an application by Doyle for an injunction to prevent the sale.
  • Perpetual applied under the Transfer of Land Act s. 90(3) for removal of the caveat. The second defendant was Doyle’s trustee in bankruptcy, who argued that any interest of Doyle in the property had vested in it.
  • An exhibit to an affidavit filed by Perpetual included a table of repayments of the Perpetual loan with numerous entries from at least 10 January 2011 to 5 January 2018 recording payments by either ‘Ms Maureen Doyle’ or ‘M Doyle’.

Irving AsJ. dismissed Doyle’s application that he recuse himself from hearing the application.

Irving AsJ. ordered removal of the caveat, holding –

  1. An order for possession was not a precondition of Perpetual (or any applicant) having standing to apply for relief under s. 90(3). Perpetual had standing to bring the application. [61], [66]
  2. As to her standing to oppose Perpetual’s application, Doyle did not assert that she had standing because of her asserted status as trustee for her daughters – she relied on her alleged trustee status to argue that the Property was not an asset in which her trustee in bankruptcy could claim an interest. However, it was appropriate to hear her on Perpetual’s application because she was the named caveator, Perpetual did not argue that she should not be heard, and the question whether any interest she had in the Property had vested in her trustee was unresolved. [63]
  3. There was no credible evidence that Doyle’s trustee had agreed to annul her bankruptcy. [64]
  4. Doyle’s claim to being the beneficiary of a constructive trust was grounded on her alleged agreement with Bourne referred to above. If left to her evidence alone, absent documentary evidence, there would not be a serious question to be tried that this trust existed.  However, one possible inference from the table of loan repayments was that she had been responsible for at least some loan repayments, leading to the further inference of a trust.  In order to accept that inference the court must be satisfied that it was more likely than other possible inferences.  She had so satisfied the court.  The combination of her evidence and Perpetual’s evidence of loan repayments raised real questions about Doyle’s interest in the Property, and so raised a serious question to be tried. [67]-[69]
  5. However the balance of convenience did not favour maintenance of the caveat because: Perpetual’s interest in the Property had priority over any interest of Doyle’s; her caveat was lodged long after registration of its mortgage; it had no notice of existence of a trust when it took its mortgage; Doyle’s trustee in bankruptcy asserted that any proprietary interest she had vested in it;  any surplus sale proceeds remaining after discharge of the mortgage would be dealt with under s. 77 of the Transfer of Land Act; Doyle’s application for an injunction prohibiting the sale had been dismissed; although Doyle asserted that the Property was required for a family home she did not depose by whom; she had not produced any tenancy agreement to support her assertion that the Property was tenanted; she had not explained the legal basis for her asserted right to let or occupy the Property; and her submissions about the Property’s poor condition were unsupported, apparently at odds with photographic evidence, and any suggested repair works were unfunded. [71]-[75]

Philip H. Barton

Owen Dixon Chambers West

Tuesday, May 20, 2025

Blog 82.  Two short cases.

The cases in this Blog do not each merit a separate Blog.  They are –

Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664, Irving AsJ.  This case concerned an application under s. 90(3) by a trustee in bankruptcy to remove caveats lodged by a person, herself subsequently bankrupt, claiming that the bankrupt registered proprietor had held the land on trust for her (to hold as trustee for her children).   The trustee in bankruptcy succeeded against the bankrupt caveator.

Casey v Giderson (Costs Ruling) [2023] VSC 472, Gray J.  Gray J. ordered that the administrator of the estate of a caveator, who had failed to commence proceedings within the time stipulated in a notice under s. 89A, but who nonetheless obtained an interim injunction ordering the Registrar to delay registration of any dealing with the property, to pay the costs of the registered proprietors.  His Honour confirmed that neither a caveat nor the time stipulated in the notice could be extended.

Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle.  The facts were –

  • On 16 October 2007 the defendant, who was the registered proprietor of land (the Land), transferred it to Robert Bourne who became its registered proprietor.
  • It appeared that between 16 October 2007 and 10 July 2014 the defendant occupied the Land under an informal licence granted by Bourne. On 7 March 2014 she caveated over it claiming that the “registered proprietor holds his interest as trustee for the Caveator pursuant to a constructive trust and/or a declaration of trust from the registered proprietor made on 16 October 2007”.
  • On 10 July 2014 a sequestration order was made over Bourne’s bankrupt estate The plaintiff was appointed his trustee. The plaintiff neither extended the informal licence granted by Bourne nor granted a new licence.  In response to a request by the plaintiff for details of her claims she stated that Bourne held the Land and another piece of land on trust for her and her children, but did not respond to the plaintiff’s subsequent request for documents supporting this.
  • In 2016 a sequestration order was made over the defendant’s bankrupt estate and the Official Trustee in Bankruptcy was appointed as her trustee.
  • On 28 March 2023 the plaintiff, through his solicitor, wrote to the defendant terminating any informal licence held by her over the Land.
  • On 3 May 2023 the plaintiff became the registered proprietor of the Land and was informed that the Official Trustee agreed to permit the defendant’s caveat to lapse.
  • The plaintiff issued a proceeding for recovery of possession and under s. 90(3) of the Transfer of Land Act (TLA) for removal of the caveat. The defendant claimed or deposed inter alia that: in 2006 she purchased the Land on trust for her children; in 2007 she purchased another property but agreed with Bourne that he would act as bare trustee for both properties and would after approximately two years reconvey the Land to her as co-trustee for her children; Bourne paid no consideration for the transfer to him; she never transferred her children’s beneficial interest in the Land to Bourne; although she had no personal interest in the Land the caveat had to be lodged in her name personally (rather than in her name as trustee for her children); she never entered into an informal licence agreement with Bourne; following a 12 month residential tenancy agreement with Bourne in 2007 she in 2012 entered into a further tenancy agreement which had automatic rolling 5 year extensions for an unlimited period; there were “hundreds of pages of evidence, including in VCAT proceedings, whereby Bourne confirmed he was not the beneficial owner of the Properties.”; she was not a tenant and had not paid rent to the plaintiff (this was disputed).

Irving AsJ. refused the application for possession but granted the application for removal of the caveat, holding –

  1. Section 116(2)(a) of the Bankruptcy Act 1966 (Cth) rendered property held by a bankrupt in trust for another person not divisible among the creditors of the bankrupt. It did not preclude the vesting of the land in the trustee in bankruptcy. [55]
  2. The Land was vested in the plaintiff trustee in bankruptcy notwithstanding that it had not been disclosed in the bankrupt’s statement of affairs.  As registered proprietor the plaintiff by virtue of the TLA s. 42 had an indefeasible title giving sufficient standing to apply for removal of the caveat. [59], [60]
  3. To the extent the first defendant had any interest in the Land as trustee, that interest had vested in her trustee in bankruptcy notwithstanding her non-filing of a statement of affairs and her stated intention to seek the annulment of her bankruptcy. [61]
  4. The plaintiff accordingly had no prima facie case of the interest claimed in the caveat. [62]

 

Casey v Giderson (Costs Ruling).

The facts were as follows –

  • The first and second defendants (the Gidersons) were registered proprietors of a property. On 25 September 2017 James Casey caveated over it claiming an interest as chargee on the grounds of an agreement dated 29 August 2017 with the registered proprietors.
  • In 2022 Casey died in the USA.
  • On 29 May 2023 there was communication between lawyers for the plaintiff (who subsequently obtained letters of administration of Casey’s estate) and the Gidersons the gist of which was: the Gidersons’ solicitor demanded withdrawal of the caveat on the ground that their signatures on the alleged loan agreement were forged by their son; the plaintiff’s lawyer requested documentary proof, eliciting copies of the Gidersons’ driver’s licences and passports, which it was said disclosed signatures different to those on the alleged loan agreement; the plaintiff’s lawyer requested evidence of the alleged forgery and an explanation of what action the Gidersons were taking about it, eliciting the response that their son had admitted forging their signatures and that they did not intend to take action against him.
  • On about 31 May the deceased estate received a notice under the Transfer of Land Act (TLA) s. 89A that the caveat would lapse on the ‘first moment of 6 July 2023’ unless before that date the s. 89A application was abandoned or the Registrar received notice that proceedings to substantiate the claim of the caveator were on foot.
  • On 1 June the Giddersons’ solicitors confirmed to the plaintiff’s lawyers that the s. 89A application had been lodged.
  • On 30 June the Giddersons’ solicitors confirmed that the s. 89A application would not be abandoned.
  • Also on 30 June Gray J. granted letters of administration ad litemof the estate to the plaintiff enabling the plaintiff to apply on behalf of the estate for relief pursuant to s. 90(2) of the TLA.   This grant was inutile because s. 90 was irrelevant.  On 4 July the plaintiff sought and obtained an amendment to the letters of administration including enabling the plaintiff to apply for an injunction.
  • On 5 July the plaintiff commenced this proceeding seeking an injunction directed to the Registrar of Titles to delay registering any dealing with the property and seeking an order extending the caveat. On that day the court declined to make any order purporting to extend the caveat on the basis that it had no such power but granted an interim injunction ordering the Registrar to delay registration of any dealing with the property until the earlier of further order or the expiry of 28 days from the date of the order.
  • Both parties sought costs. The defendants obtained costs of the proceeding commenced on 5 July.  An application that the defendants (not parties to that proceeding) should pay costs of the application for letters of administration was rejected.  The judge noted ([25]) that from 1 June 2023 there was clearly a controversy between the parties that could only be resolved by the plaintiff commencing a proceeding enforcing the alleged loan agreement (and another agreement).  It fell to the plaintiff to seek to avoid the statutory outcome of the caveat lapsing by meeting the requirements of s 89A(3)(b) — that is, by commencing the proceeding and not pinning their hopes on the Gidersons abandoning their s. 89A application ([26], [33], [62]).  The court could not extend the caveat ([40], [58]) nor purportedly suspend the operation of s. 89A ([53]).   The plaintiff’s decision to delay commencing a proceeding to establish the estate’s interest in the property until the end of the hearing on 5 July 2023 was therefore not reasonable and compounded previous delay ([53]).  The court had granted the interim injunction as an indulgence to a plaintiff whose actions were the main cause of making it necessary ([54], [57]).

Philip H. Barton

          Owen Dixon Chambers West

Wednesday, June 12, 2024

 

Blog 72. Caveat lapses under Section 89A(5) but caveator obtains injunction

Luna v V & A Luna Pty Ltd & Anor [2023] VSC 126 (22 March 2023), Derham AsJ.

This case is interesting for disparate reasons.  First it affirms that the time for a caveator to give notice under the Transfer of Land Act s. 89A(3)(b) to the Registrar of Titles that proceedings had commenced is strict.  Secondly it shows that the erstwhile caveator may still be able to obtain an injunction having similar effect to the caveat (albeit at the price of an undertaking as to damages).  Thirdly, evidence of the agreement or understanding underlying an alleged constructive trust being weak, his Honour reflected –

“At present, the agreement or understanding, or even assumption, upon which Pasquale provided this assistance is not fully spelled out in his evidence.  But I remind myself after long experience of Australians of Italian origin, that a patriarchal feature of their family arrangements often results in the father, and perhaps the mother as well, holding the family’s wealth either personally or through companies and trusts, with the intention of sharing that wealth either equally or according to the deserts of the members of the family who have contributed to it.”

The Transfer of Land Act s. 89A provides –

(1) … where a recording of a caveat … has been made … any person interested in the land affected thereby … may make application … to the Registrar for the service of a notice pursuant to subsection (3).
…
(3) Upon receiving any such application … the Registrar shall give notice to the caveator that the caveat will lapse … on a day specified in the notice unless in the meantime either—

…
(b) notice in writing is given to the Registrar that proceedings in a court or VCAT to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the application is made are on foot.

…
(5) Upon the specified day, unless—

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(b) notice in writing has been given to the Registrar that proceedings as aforesaid are on foot—

the caveat shall lapse …

The facts were –

  • The first defendant (the company) was the registered proprietor of a 20 acre farm at Wollert.  In 2018 the plaintiff (Pasquale) caveated claiming a freehold estate in it based on an implied, resulting or constructive trust.
  • On about 12 December 2022 Pasquale received a notice under s. 89A(3) dated 8 December stating that the caveat would lapse on the first moment of 17 January 2023 unless before that date he gave notice satisfying the requirements of s. 89A(3).
  • The solicitor for Pasquale deposed that on 16 January she telephoned the Land Registry Services – Secure Electronic Registries Victoria (SERV) and was informed by Tiffany in the specialist registration team that, notwithstanding the clear terms of the notice, the final day to respond to it was 17 January.
  • On 17 January (after the first moment) the solicitor filed a generally indorsed Writ and the notice under s. 89A(3)(b) was given.  The basis of the claim as indorsed (observed by his Honour to “have only a slight conformity with the facts as later revealed”) was largely related to an alleged partnership between Pasquale and his late parents Arturo and Vincenza.  Pasquale’s brother, the second defendant (Antonio), was sued as executor of their estate.
  • On 18 January the solicitor was informed by an employee of SERV that the caveat had lapsed.
  • On 23 January 2023, Pasquale issued a Summons.  The Summons sought, first, a declaration that the notice under s. 89A(3)(b) filed on behalf of Pasquale was valid and substantiated his interest in the land and so remained in force, alternatively that 50% of the net proceeds of any sale be held for his benefit pending the determination of the proceeding.
  • On 24 January a judge granted an interlocutory injunction in substance enjoining the defendants from dealing with the land pending final hearing and made further directions.   After the hearing the solicitor for the defendants informed the plaintiff’s solicitors and the court by email that the land had been sold pursuant to a contract of sale some time ago, but that completion of the sale was 24 months hence.
  • Shortly before the hearing on 17 March (see below) the plaintiff’s solicitors learnt of transactions which they alleged were in breach of the injunction, in particular a mortgage and issue of a new electronic title with different title particulars.  The plaintiff filed a Summons seeking that the defendants be dealt with for contempt of the January Order.
  • At that hearing before Derham AsJ on 17 March counsel informed his Honour that the land had been sold by a contract dated December 2022 for about $15 m.  This apparently required a mortgage to be lodged with a countervailing Bank Guarantee to secure the sale.
  • Pasquale deposed in substance that:
    • he worked with his parents from the time of a partnership in a delicatessen in 1969 to build their wealth for the benefit of the whole family. His contributions over the years enabled his parents to acquire properties that ultimately fed the purchase price of the land.  In 1989 he arranged for a family trust to be established with the company as trustee, being a discretionary trust of which the primary beneficiaries were Arturo and Vincenza.  Thus, his efforts and work over a lengthy period contributed indirectly to the purchase price of the land in 1989 and those contributions were made either (not fully spelled out) with the agreement, or on the understanding, that he would share equally with the other members of the immediate family in the wealth accumulated.
    • he contributed directly both his labour and money in establishing a house on the land, and maintaining it, on the assumption that he would retain an equal share in the ultimate wealth created through his and his family’s efforts.
  • Antonio filed an affidavit substantially disputing Pasquale’s affidavit.  This included that Pasquale had been made bankrupt (in fact in 2003) and discharged in 2006.

Counsel for Pasquale submitted inter alia that: it was reasonable for Pasquale’s solicitors to rely upon the representations of Tiffany in lodging the material required by s. 89A(3) on 17 January 2023; the Registrar should be estopped from lapsing the caveat; the court had an inherent jurisdiction to make orders ‘voiding the lapsing of the caveat’.

Derham AsJ in substance continued the injunction (while altering its wording), holding –

  1. The caveat lapsed at the commencement of 17 January 2023 by reason of the operation of s. 89A(3) and (5). The court had no power to reverse this. [15], [49], [55], [56]
  2. The evidence in support of the plaintiff being the beneficiary of a constructive trust of the land was, at present, rather frail and somewhat sketchy: the prima facie case was not strong. It sufficed, however, that the plaintiff show a sufficient likelihood of success that in the circumstances justified the practical effect of the injunction on the defendants.  His Honour doubted as a matter of principle the defendants’ argument that the plaintiff could not take an interest pursuant to a constructive trust where he was also a beneficiary of the family trust: if it was unconscionable in the circumstances for the trustee of the family trust to deny that he had a proprietary interest in the land, why would his being a beneficiary of that trust, particularly one with no vested interest in its assets, be a barrier?   This argument required further elucidation. [26], [75], [77]
  3. With respect to the plaintiff’s bankruptcy and the possibility that his interest in the land had vested in his trustee in bankruptcy, it would be in the parties’ power to inform the trustee and give him an opportunity of being joined as a party. It was not, in his Honour’s preliminary view, satisfactory for the defendants to use this vesting as a defence without joining the trustee as a party. [76]
  4. On the balance of convenience, in the current circumstances where the plaintiff’s proof of his rights was not strong, an interlocutory injunction may be granted because to withhold it would do him irreparable harm while (the contract of sale having a 24 month settlement date) to grant it would not greatly injure the defendants. Maintenance of the status quo would not harm the defendants but to deny the injunction could injure the plaintiff by denying him protection against dissipation of the value of the land. [78]
  5. The further continuation of the interlocutory injunction would be subject to the plaintiff complying with the requirement to file further evidence in support of his claim. [79]

Philip H. Barton
Owen Dixon Chambers West
Thursday, April 20, 2023