A and S Boesley Pty Ltd v Stoney
[2014] VSC 323
•7 July 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2014 00649
| A & S BOESLEY PTY LTD ACN 122 610 511 | Plaintiff |
| v | |
| ROBERT JOHN BIGO STONEY | First Defendant |
| REGISTRAR OF TITLES | Second Defendant |
and
S CI 2014 02657
| A & S BOESLEY PTY LTD ACN 122 610 511 | Plaintiff |
| v | |
| ROBERT JOHN BIGO STONEY | First Defendant |
| PETER BRUCE FULLER | Second Defendant |
| JUSTIN PAUL WHITFORD | Third Defendant |
| SAMANTHA STONEY | Fourth Defendant |
| REGISTRAR OF TITLES | Fifth Defendant |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 June 2014, 2 July 2014 |
DATE OF JUDGMENT: | 7 July 2014 |
CASE MAY BE CITED AS: | A & S Boesley Pty Ltd v Stoney & Anor |
MEDIUM NEUTRAL CITATION: | [2014] VSC 323 |
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REMOVAL OF CAVEAT — s 90(3) Transfer of Land Act1958 — Caveats protecting interest of purchaser/s under contract for sale of land — Whether contract of sale validly terminated by vendor — Whether serious question to be tried — Whether new contract of sale entered into — Application for summary judgment on claim and on counterclaim — ss 61, 62 and 63 Civil Procedure Act 2010 — r 23 Supreme Court (General Civil Procedure) Rules2005 — Whether proposed formulations of amended defence and counterclaim sufficient to justify maintenance of caveats — No real prospect of success on claim or counterclaim — Applications granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Greenberger | Engel & Partners |
| For the First Defendant in proceeding S CI 2014 00649 and for the First and Fourth Defendants in proceeding S CI 2014 02657 | Mr M Stirling | James D Mapleston |
HIS HONOUR:
Introduction
These reasons for judgment concern two proceedings. In each, A & S Boesley Pty Ltd (Boesley) is the plaintiff. One proceeding (2014/00649) was commenced by writ (the writ proceeding). Robert Stoney is the first defendant and the Registrar of Titles the second defendant. In the writ proceeding, Boesley sought declarations that a contract of sale of land made in 2010 (2010 contract of sale), in which it was the vendor and Mr Stoney was the purchaser, was terminated in September or October 2013. If that was so, Boesley sought the removal of a caveat lodged by Mr Stoney in 2010 (2010 caveat) while he was the purchaser but which is no longer maintainable due to the termination of the contract. In addition, it claimed damages for trespass and for loss upon a later resale of the land.
The second proceeding (2014/02657) was commenced by originating motion (the OM proceeding). By the OM proceeding, Boesley sought the removal of a second caveat lodged in May 2014 by Mr Stoney and three others (2014 caveat) which, again, asserted an interest derived from the 2010 contract of sale. Two of those caveators (the second and third defendants in the OM proceeding) have consented to the caveat’s removal. Only Mr and Mrs Stoney, first and fourth defendants in the OM proceeding, contest its removal.
In each proceeding, Boesley made application by summons for interlocutory relief. In the writ proceeding, it sought the removal of the 2010 caveat, and summary judgment on all parts of its claim other than its claim for damages. It also sought summary judgment on a counterclaim filed by Mr Stoney. In the OM proceeding, Boesley sought the removal of the 2014 caveat.
After hearing argument in the Practice Court on 2 July 2014, I made orders as sought by Boesley in each proceeding. These are my reasons for doing so.
Background
Boesley is the registered proprietor of five parcels of rural land named Holstons Station at 1119 Buchan–Ensay Road, Reedy Flat in Victoria, 992 Buchan–Ensay Road, Reedy Flat and 478 Hammonds Road, Reedy Flat (the land). The land was sold by a contract of sale made 1 July 2010 between Boesley and Mr Stoney for a price of $1 450 000 (ie the 2010 contract of sale). It was a terms contract under which Mr Stoney was entitled to possession of the land upon payment of a particular instalment of the price which he paid, albeit late, by 4 March 2011. He went into possession of the land on that date.
Mr Stoney defaulted in paying the balance of purchase price when it fell due on 7 July 2013.
Although it was in issue in the applications, Boesley claimed to have served upon Mr Stoney two default notices — one dated 23 August 2013 and the other dated 16 September 2013 — after which Mr Stoney failed to remedy the default so that the contract of sale was terminated.
Boesley has since resold the land to Xclusive Projects Pty Ltd by contract of sale dated 17 January 2014 for a price of $1 225 000 (Xclusive contract of sale). Settlement of that contract was due to take place on 30 June 2014.
Mr Stoney had lodged a caveat on the land on 2 September 2010 notifying his interest in the land as purchaser under the 2010 contract of sale. That caveat (ie the 2010 caveat) remains on title. Further, on 21 March 2014, Mr Stoney, Mr Fuller, Mr Whitford and Mrs Samantha Stoney lodged a further caveat (ie the 2014 caveat) on the land claiming an estate in fee simple on the grounds of being ‘nominated purchasers under contract of sale of land dated 24 June 2010 [presumably, the 2010 contract of sale] between Robert John Bigo Stoney and A & S Boesley Pty Ltd’. Accordingly, there are presently two caveats on title. Boesley is obliged under its contract of sale with Xclusive to provide clear title to the land, free of any caveats. The present caveats are preventing settlement of the Xclusive contract of sale.
The first critical issue in respect of applications for removal of caveat is whether or not the 2010 contract of sale, made with Mr Stoney, has been validly terminated. If it has been, then it is clear that neither Mr Stoney (in respect of the 2010 caveat) nor Mr and Mrs Stoney (with respect to the 2014 caveat) have any interest in the land as claimed in those caveats.
But, in addition to denying the termination of the 2010 contract of sale, Mr Stoney (by defence and counterclaim in the writ proceeding) made certain positive allegations. First, he says that he was not in breach of the contract of sale in failing to pay the balance of purchase price on 7 July 2013 because he—
… has on different occasions booked in settlement with the Plaintiff’s solicitors at which time he intended to pay the Plaintiff the sum claimed by it under the contract but on each occasion the Plaintiff failed to settle. (Paragraph 5 of the Defence)
Alternatively, he says that even if the default notices were served on him, they were ‘void and of no effect’ because—
The Plaintiff’s solicitor agreed to waive the time requirements under the default notices and to settle the purchase of the property as detailed in paragraph 5 hereof. On both occasions when settlement was booked in to occur, the Plaintiff’s solicitor would not act reasonably and failed to settle and in the circumstances acted unconscionably. It would be inequitable for the court to grant the Plaintiff the remedy that it seeks. (Paragraph 7 of the Defence)
Accordingly, Mr Stoney denied that the contract had come to an end and claimed to be ready and able to make payment of the money due under it to settle the purchase.
By counterclaim, Mr Stoney repeated the pleadings in his defence, reiterated his denial that the 2010 contract of sale was validly rescinded and claimed specific performance of the contract and an injunction restraining Boesley from proceeding with any sale of the land to any other party, in particular to Xclusive.
Mr Stirling, who appeared for Mr and Mrs Stoney, conceded that the onus was upon the defendants, as caveators, to establish a prima facie case for the existence of the claimed caveatable interest and that the balance of convenience favoured the maintenance of the caveat before trial.[1]
[1]Piroshenko v Grojsman (2010) 27 VR 489.
Boesley sought summary judgment on its claim in the writ proceeding pursuant to rr 22.02(1) and 23.01(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and, or in the alternative, pursuant to ss 61 and 63 of the Civil Procedure Act 2010. It also sought summary dismissal of Mr Stoney’s counterclaim and judgment thereon pursuant to rr 23.01(1) and 23.03, and s 62 of the Civil Procedure Act.
Accordingly, there were, in substance, two groups of issues to decide:
(a)in relation to the removal of caveat applications, whether the caveators had established a serious question to be tried in respect of their alleged caveatable interests; and
(b)in relation to the summary judgment applications, whether the defendant’s defence to the plaintiff’s claim, and the defendant’s counterclaim against the plaintiff, had no real prospect of success.
In turn, each of those issues focused on two questions of fact:
(a)whether the 2010 contract of sale was validly terminated by either of the default notices allegedly served by Boesley on Mr Stoney; and
(b)whether by virtue of correspondence and conduct which occurred after the alleged service of those default notices — that is, between October 2013 and 20 January 2014 — Boesley agreed to waive the time requirements under the default notices and Mr Stoney was ready, willing and able to complete at some relevantly agreed time for completion.
Application for further adjournment refused.
In the writ proceeding, Mr Stoney’s defence was filed on 17 April 2014 and his counterclaim on 26 May 2014. The plaintiff’s applications in each proceeding were issued on 29 May 2014 and served on the defendants, via their solicitor, on or about 3 June 2014. The applications first came before me in the Practice Court on 26 June 2014. Mr Stirling applied for and obtained an adjournment on behalf of his clients to allow affidavit material to be filed on their behalf. Directions were made, affidavits were filed accordingly and the matter returned for argument before me on 2 July 2014.
At the resumed hearing before me on 2 July 2014, Mr Stirling announced at the beginning of his submissions for the defendants that:
(a)the defendants no longer took issue with the content of the default notices but would simply contend that the plaintiff had not properly proved that they had been served; and
(b)he would not be relying upon the argument that the period for compliance in the default notices had been waived, as pleaded in the defence and counterclaim, but rather would be addressing the defendants’ prospects of success for defending the proceeding based upon three new grounds of counterclaim.
The three new grounds of defence and counterclaim were set out in a document headed ‘proposed amended defence and counterclaim’ handed to the Court on the afternoon of 2 July 2014. In substance, those three new grounds were (1) that the parties entered a new contract of sale between October 2013 and 17 January 2014 which Boesley has since repudiated, (2) that, alternatively, Boesley should be estopped from denying the existence of the new contract of sale and refusing to settle with Mr Stoney under it, and (3) that Boesley engaged in misleading and deceptive conduct by making certain representations to Mr Stoney and not disclosing that it had executed the resale contract with Xclusive.
I will come to those matters in due course. But at the end of Mr Stirling’s submissions, and after discussion with the Court about the proposed new claims, Mr Stirling submitted that Mr Stoney should be granted a further adjournment to allow him to reformulate the proposed grounds in a better or more effective way. I refused any further adjournment.
No application was pressed to amend the counterclaim in the form of the document handed to me. In any event, had an application been made to amend the pleading in the form of the proposed amended defence and counterclaim as it stood, I would have refused it. I would have refused it on the grounds that it did not disclose a cause of action or, insofar as a cause of action was discernible, it was not sustainable on the facts as presented to date. Furthermore, at least two of the proposed new grounds of defence in the counterclaim were premised upon the continued existence of the Xclusive contract of sale and simply claimed damages by virtue of it. For that reason, neither of those claims gave rise to any caveatable interest in the land.
The estoppel claim as foreshadowed in the document handed to the court at least asserted the present existence of an alleged ‘new contract of sale’ that could, hypothetically, support the existence of a caveatable interest in the land. But even so, neither of the two caveats on title purport to claim an interest under that alleged ‘new contract of sale’. So they would be removed if that were the only claim pressed. But it was not pressed. The estoppel claim, as with the other two claims in the proposed amended defence and counterclaim, was ultimately put forward only to offer some promise of a matter that, if more felicitously pleaded, might constitute a tenable defence or counterclaim.
Accordingly, I dealt with the caveat removal application and the summary dismissal application only on the grounds presently pleaded. But I had regard to whether the foreshadowed amended defence and counterclaim warranted a conclusion that any defect in the existing defence and counterclaim could be cured by amendment.
Was the 2010 contract terminated?
I turn to the issue of the termination of the 2010 contract of sale. In substance, this entirely turns upon whether one or both of the default notices was validly served. I am satisfied that both of the default notices were validly served.
Mr Stoney’s first argument was that the evidence of service from Boesley’s solicitor, Peter Tovey of Engel & Partners, in his affidavit sworn 29 May 2014, ought not be permitted because it was evidence on information and belief only that, in the circumstances of this case, was insufficient. Rule 22.03(4) permits, in an affidavit in support of an application for summary judgment, a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the court considers that the statement ought to be permitted. Mr Tovey deposes that he was informed by his secretary, Judy Searl, and believed, that in each case she posted or faxed documents to various addresses or facsimile numbers to effect service of the notices.
He gave evidence that the first default notice, dated 23 August 2013, was served by the following means:
·to James D Mapleston at 2/222 Latrobe Street, Melbourne by prepaid post and also by fax to facsimile number 96632616;
·to Robert Stoney by prepaid post to 445 King Street, Melbourne; and
·to Robert Stoney by prepaid post at 1119 Buchan–Ensay Road, Reedy Flat.
445 King Street, Melbourne, is the address of Mr Stoney as set out on the 2010 contract of sale. 222 Latrobe Street is the address of Mr Stoney’s legal practitioner, James D Mapleston, as set out on the 2010 contract of sale. The address at Buchan–Ensay Road, Reedy Flat is the address of the land which Mr Stoney had occupied since March 2011.
Mr Tovey deposed that although the address of Mr Mapleston on the 2010 contract of sale was 222 Latrobe Street, in fact Mr Mapleston’s letterhead on letters received from him showed his address to be 2/222 Latrobe Street, Melbourne. When preparing his affidavit for this application, Mr Tovey noticed that in July 2013 he had received a letter from Mr Mapleston specifying his address as Level 11, 1 Queens Road, Melbourne, with a facsimile number of 86102121. He had overlooked that when sending the first default notice on 23 August 2013. Nevertheless, he deposed, he was informed by Judy Searl that the facsimile was successfully transmitted and there was no return to his office of undelivered post.
On 2 September 2013, Mr Stoney emailed Mr Tovey advising him that James D Mapleston was no longer acting on his behalf and requested correspondence to be sent to Mr Stoney at PO Box 167, North Melbourne, 3051. On 4 September, Mr Tovey received an email from Mr Stoney advising that Kathy Gamble of Madgwicks now acted on his behalf, and on 5 September she contacted Mr Tovey by telephone to confirm that was so.
The default specified in the first default notice was not remedied.
On 10 September 2013, Mr Tovey wrote to Mr Stoney noting that he had failed to remedy the default described in the first default notice, asserting that the contract was therefore at an end and that Boesley was entitled to possession of the properties. That letter was sent to the following addresses:
·by prepaid post to Mr Stoney at 445 King Street, Melbourne;
·by prepaid post to Mr Stoney at PO Box 167, North Melbourne;
·by prepaid post to Mr Stoney at 119 Buchan–Ensay Road, Reedy Flat;
·by prepaid post to James D Mapleston at 2/222 Latrobe Street, Melbourne; and
·by prepaid post to Kathy Gamble of Madgwicks.
In correspondence between the parties thereafter about the default, neither Mr Stoney, Mr Mapleston nor Ms Gamble took issue with the service of the first default notice. On 11 September 2013, Ms Gamble emailed Engel & Partners (Boesley’s solicitors) confirming she acted for Mr Stoney and that she had received the letter of 10 September 2013. She asked that she be provided with a copy of the first default notice ‘as our client does not have ready access to this document’. A copy was duly sent to her.
On 17 September 2013, Mr Tovey deposed that he had served the second default notice dated 16 September 2013 in the following manner:
·to Robert Stoney by prepaid post at 445 King Street, Melbourne;
·to Robert Stoney by prepaid post to PO Box 167, North Melbourne;
·to James D Mapleston by prepaid post to 2/222 Latrobe Street, Melbourne; and
·by email to Kathy Gamble at Madgwicks.
The default specified in the second default notice was not remedied.
On 17 October 2013, Engel & Partners wrote to Mr Stoney alleging that the second default notice had been served and the default not remedied and that, therefore, the contract was at an end. Mr Stoney was asked to vacate the properties forthwith. That letter was sent to the following addresses:
·by prepaid post to Mr Stoney at 119 Buchan–Ensay Road;
·by prepaid post to Mr Stoney at 445 King Street, Melbourne;
·by prepaid post to Mr Stoney at PO Box 167, North Melbourne; and
·by prepaid post to James D Mapleston at 2/222 Latrobe Street, Melbourne, Victoria (because, by that stage he appeared to have resumed acting for Mr Stoney in place of Kathy Gamble of Madgwicks).
Mr Stoney deposed in an affidavit sworn 26 June 2014 that he did not receive either of the two default notices, by post or otherwise. He pointed out that his solicitor did not trade from Level 2, 222 Latrobe Street in late July and August 2013, but from Suite 1137, 1 Queens Road, Melbourne. He said that he only engaged Madgwicks for a short period of time and could not recall receiving a copy of the first default notice from them. Mr Mapleston deposed that the various letters and notices were sent to him at an address that he no longer occupied, namely 2/222 Latrobe Street, Melbourne. He went on to say:
Postage and fax material that was sent to my old address in Latrobe Street was held by that office for me and I would drop in every few days to collect it. From my file, it appears that all of the material sent by Tovey’s to me at my old office in Latrobe Street was collected by me and passed on by me to Mr Robert Stoney via email.
I note that Mr Mapleston — perhaps cautiously — did not say, in terms, that he did not receive the default notices faxed and posted to his former Latrobe Street office.
Indeed, on 2 October 2013, Mr Mapleston wrote to Engel & Partners referring to their letter of 10 September 2013. Mr Mapleston did not explain how he received a copy of that letter. The letter of 10 September 2013, of course, referred to the service of the first default notice. In any event, he said that his client denied the contract was at an end, stating:
The default notice that your client relies on has serious factual inaccuracies amounting to a misdescription of the money alleged to be owing rendering the notice void and of no effect.
Mr Mapleston, again, did not explain how he came into possession of the first default notice nor, in that letter, did he assert that the notice had not been validly served on his client.
On 30 October 2013, Mr Mapleston again wrote to Engel & Partners. By that time the second default notice had been sent, as had the letter of 17 October 2013 noting that Mr Stoney had failed to remedy the default. Mr Mapleston wrote:
My client again denies that the contract is at an end … The default notice that your client relies on has serious factual inaccuracies in it.
Again, there was no assertion that the default notice had not been validly served, nor was there any explanation how Mr Mapleston came into possession of it.
Even if I were not to permit the evidence of service given by Mr Tovey on information and belief, I would be comfortably satisfied by the implied admissions contained in the correspondence of Mr Mapleston (and to be inferred from the email of Ms Gamble) that the default notices were served upon Mr Stoney. However, I see no reason not to permit the admission of Mr Tovey’s evidence in an application of this nature. I agree with Mr Greenberger’s submission that the conduct the subject of the evidence is of routine, administrative nature and that it is appropriate to allow its reception.
For that reason, I am satisfied that the contract of sale dated 1 July 2010 was validly terminated 14 days after service of the first default notice, namely on 10 September 2013.
Events after termination of the 2010 contract of sale
The second issue was whether, by reason of the parties’ conduct from October 2013 through to 20 January 2014, either: (1) the 2010 contract of sale was somehow brought back to life by the operation of a waiver; or (2) there was some other arguable ground (not yet formally pleaded) which supported the maintenance of the caveat, or had such prospects of success that I should decline to grant summary judgment in favour of Boesley on the claim and counterclaim.
The facts and circumstances said to establish the waiver (pleaded in the current defence and counterclaim), and the ‘new contract’, estoppel and the misleading and deceptive conduct (foreshadowed in the proposed amended defence and counterclaim), are entirely contained in the correspondence exhibited in PT‑11 to the affidavit of Mr Tovey, sworn 29 May 2014. In that exhibit, there is a chain of correspondence between James P Mapleston, for Mr Stoney, and Engel & Partners, for Boesley, between 2 October 2013 and 21 January 2014.
At the outset, I repeat that Mr Stirling did not attempt to support the waiver argument which is presently pleaded in the defence and counterclaim. In my view, his concession was properly made. The argument seemed to be misconceived. When the default set out in the default notice was not remedied in the time stipulated, the contract was terminated. It is difficult to conceive how any later representation or conduct could retrospectively ‘waive’ the stipulation in the contract that time was of the essence so as to prevent its termination or to reinstate it after it had been terminated.
That conclusion alone is enough to justify the summary judgment, unless I was persuaded that the defence or counterclaim could be saved by an amendment. For reasons I will come to in brief shortly, I was not persuaded that any of the three proposed formulations of amended defence and counterclaim gave rise to a tenable defence or new claim — or, at least, one that would justify the maintenance of either of the two existing caveats.
Mr Stirling was anxious that I not finally rule on the question whether some other formulation of claim by Mr Stoney against Boesley might succeed. Rather, he submitted that I should treat the proposed amended defence and counterclaim as demonstrating sufficient reason for me to permit an adjournment of the application so that a further pleading could be submitted. I have already mentioned that I refused a further adjournment. Alternatively, he submitted that I should decline to give summary judgment on the claim and the counterclaim because of the prospect, revealed by the proposed amended pleading and some facts he asserted from the bar table as instructions, that a tenable claim might be advanced.
So, what I am about to say is directed to the prospects of success inherent in the proposed amended defence and counterclaim, as it was formulated in the document before me, as a basis for resisting summary judgment as sought. Whether or not Mr Stoney could plead yet another cause of action, or even one of the foreshadowed causes of action in a different manner, might await another proceeding. But, in all the circumstances, given the delays to date and the opportunities that Mr Stoney has already had, I do not consider he should be given any more latitude in this proceeding to seek to perfect his defence or counterclaim.
The critical letter in the chain of correspondence, in my view, is a letter from Engel & Partners to James D Mapleston of 2 December 2013. The letter is expressed to be without prejudice as is almost every communication in the chain. Prior to that date, there had been a number of letters between the two firms in which Mr Mapleston, for Mr Stoney, asserted that the contract was not at an end whereas Mr Tovey maintained, for Boesley, that the contract was at an end. Nevertheless, Mr Mapleston continued to press an offer that his client pay Boesley the balance of purchase price, with penalty interest and costs, and that the transfer of land be effected.
In the letter of 2 December 2013, Engel & Partners wrote as follows:
We confirm that the contract of sale of real estate of these properties was originally due to settle on 7 July 2013. Settlement did not take place and ultimately a default notice was served on your client and the contract of sale of real estate is now at an end.
Without prejudice to our client’s rights under the default notice and its rights pursuant to the general conditions of the now rescinded contract of sale of real estate, our client would be prepared to hand over the following certificates of title: [certificates described] … together with an executed Transfer of Land on Monday 9 December 2013 provided that clear funds are deposited to our trust account, which will appear in our trust account at 9.00 am on that day, in the sum of $1,016,701.14.
…
We further confirm that we will hold all the funds as stakeholder until the certificates of title, as referred to above, are handed over at which time we will hold the funds solely for the benefit of our client, A & S Boesley Pty Ltd.
In short, the money was never paid. Further attempts were made by Mr Mapleston to extend the period of time for his client to make the payment. The money was not paid under any of those new proposed dates.
In the new year, on 9 January 2014, Mr Mapleston wrote saying, again, his client was in a position to settle the property and alleged that he had been able to do since 20 December 2013. In further emails, again on a without prejudice basis, Mr Tovey provided several further opportunities for Mr Mapleston to confirm that he held funds in accordance with his earlier proposal. Opportunities were made available to Mr Stoney to comply with conditions that would have enabled the transfers to be provided under the arrangement proposed by Engel & Partners in December, but still Mr Stoney did not comply with them.
Eventually, after warning Mr Stoney repeatedly that it would enter a contract with another purchaser if he did not confirm he had the necessary money, Boesley went ahead and entered a contract with Xclusive. Xclusive exchanged its executed part of the contract of sale by sending it to Engel & Partners, who received it on the morning of Monday 20 January 2014. At that point, the exchange of contracts was complete and the contract effected.
Before the weekend of 18–19 January, Mr Stoney had, once again, claimed he would be in a position to provide the moneys on Monday 20 January. Again, he failed to have the money available. On his behalf, Mr Mapleston emailed Mr Tovey on the morning of 20 January to say that Mr Stoney had been ‘battling fires in or around the farm since last Friday’ and was therefore not in a position to settle ‘but expects to be able to do so shortly’. In reply, Mr Tovey advised Mr Mapleston that Boesley had entered into an unconditional contract of sale of the property to a third party (ie Xclusive), that parts of contract had been signed and exchanged and the deposit paid.
That brought to an end a long, drawn‑out process of without prejudice negotiations between the parties. In those negotiations, Mr Mapleston continually attempted to extend the time for payment of the balance of purchase price contending that the contract of sale remained on foot. Mr Tovey, while consistently maintaining that the 2010 contract had been rescinded, stated his client’s willingness to transfer the titles, at a number of stipulated points it time, subject to the condition precedent that Mr Stoney provided clear funds into Engel & Partners’ trust account on or before those times.
Pursuant to those negotiations, Boesley was under no obligation to transfer title to Mr Stoney unless and until Mr Stoney deposited the money. The fact is, despite repeated claims he could do so, Mr Stoney never did. As it was entitled to do unless and until it received the money from Mr Stoney, Boesley entered a contract with a third party and negotiations between Boesley and Mr Stoney came to an end.
Two of Mr Stoney’s proposed amended claims (the estoppel claim and the misleading and deceptive conduct claim) relied upon allegations, or at least the implication, of colourable conduct on the part of Boesley.
As I understood the argument, the person who told Mr Stoney there were fires in and around the district near the land was a man called Barry Woods, an acquaintance of Alan Boesley and Mr Tovey. So it was Mr Woods’ information that (allegedly) caused Mr Stoney to be unable to get the money together, over the weekend immediately preceding Monday 20 January, to deposit with Engel & Partners for the transfer of titles from Boesley. It was further asserted, from the bar table, that there might be evidence to suggest that Mr Woods was associated with Xclusive. Thus, to complete the so‑called chain of reasoning, it was then said that Mr Woods told Mr Stoney about the fires (possibly with the knowledge or agreement of Boesley) in order to get Stoney out of the way for the weekend and to prevent him from being able to come up with the money on the Monday morning. By that means, Xclusive would be able to complete the exchange of contracts with Boesley before Mr Stoney could get his money to Engel & Partners. And, because Boesley knew that Mr Stoney would be diverted to fighting fires rather than getting his money together, it would be unconscionable on its behalf to deny Mr Stoney some further time to put Engel & Partners in funds.
Several of the links in this reasoning were unsupported by any evidence, were speculative and bordered on the fanciful. Further, it was difficult to see how they could, in combination, establish any legal or equitable ground for defending the claim or advancing a claim for a remedy on the part of Mr Stoney. In short, I was not satisfied they provided any reasonable foundation for concluding that Mr Stoney had any real prospect of success in defending the claim or establishing his counterclaim.
The power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried.[2] As, in effect, conceded by Mr Stirling, there is no real question to be tried in relation to the currently pleaded defence and counterclaim of waiver. For the reasons given, on the current formulation of any proposed amended defence and counterclaim, I still consider there is no real question to be tried. Regardless of whether Mr Stoney might later come up with an alternative formulation of claim, he has not satisfied me at this stage that his lack of any real prospect of defending the claim, or advancing a counterclaim, could be cured by amendment or the substitution of a different claim.
[2]Lysaght Building Solutions Pty Ltd v Blenalko Pty Ltd [2013] VSCA 158 [35].
For those reasons, I was satisfied it was appropriate to grant the relief sought by the plaintiff. The orders made on 2 July were as follows:
In the writ proceeding:
1.The Court declares that the Contract of Sale of Real Estate made on 1 July 2010 between the plaintiff as vendor and the first defendant, using the name Robert Stoney, as purchaser, referred to in paragraph 4 of the Statement of Claim, was rescinded by the plaintiff on 10 September 2013.
2.The Court declares that the plaintiff is entitled to possession of, and became, entitled to possession of, the land situated at and known as -
(a)1119 Buchan-Ensay Road, Reedy Flat in Victoria, being the whole of the land more particularly described in Certificate of Title Volume 10626 Folio 504, Certificate of Title Volume 10626 Folio 505, and Certificate of Title Volume 10626 Folio 507, and one part of the land in Certificate of Title Volume 10626 Folio 503;
(b)992 Buchan-Ensay Road, Reedy Flat in Victoria, being the remaining part of the land more particularly described in Certificate of Title Volume10626 Folio 503; and
(c)470 Hammonds Road, Reedy Flat in Victoria, being the whole of the land more particularly described in Certificate of Title Volume 8202 Folio 223 -
being the land referred to in paragraph 3 of the Statement of Claim (collectively referred to as “the land”) on 10 September 2013.
3.The first defendant by himself, his servants or agents, or howsoever otherwise is required to vacate the land and to deliver up possession of the land to the plaintiff, and to refrain from again entering upon the land while the plaintiff remains the registered proprietor of the land, or from grazing cattle thereon, with a stay of 30 days on the operation of this order to permit the removal of cattle, household effects and plant & equipment belonging to the plaintiff.
4.The caveat dated 2 September 2010 lodged at the Land Registry by the first defendant, using the name Robert John Bigo Stoney, and recorded by the second defendant in dealing number AH484908J on 9 September 2010 (“the caveat”), and the memorandum thereof entered on Certificates of Title Volume 10626 Folio 503, Volume 10626 Folio 504, Volume 10626 Folio 505, Volume 10626 Folio 507, and Volume 8202 Folio 223 (“the certificates of title”) be removed by the Registrar of Titles, and the Registrar of Titles is directed to amend the Register accordingly so as to give effect to this Order.
5.The first defendant be restrained, until 1 October 2014 or further order of the court, whether by himself, his servants or agents, or howsoever otherwise, from lodging any further caveat on any of the certificates of title, in respect of the same interest as specified in the caveat.
6.The counterclaim by the first defendant be dismissed, and the plaintiff have judgment on the counterclaim by the first defendant.
7.The first defendant pay the costs of the plaintiff of the proceeding to date in respect of the claim and the counterclaim, and including the costs of the plaintiff’s summons.
8.The plaintiff’s claims for damages be dealt with at the Directions Hearing fixed for 21 July 2014 at 9.30am in the Associate Judges’ Court 4, Ground Floor, 436 Lonsdale Street, Melbourne.
9.Liberty to apply is reserved.
In the originating motion proceeding:
1.The caveat dated 21 March 2014 lodged by the first, second, third and fourth defendants in the Land Titles Office and recorded in dealing number AK987232M (“the caveat”), and the memoranda thereof entered on Certificates of Title Volume 10626 Folio 503, Volume 10626 Folio 504, Volume 10626 Folio 505, Volume 10626 Folio 507 and Volume 8202 Folio 223 (“the certificates of title”), be removed, and the Registrar of Titles is directed to remove the caveat and to amend the Register accordingly so as to give effect to this Order.
2.The first, second, third and fourth defendants are restrained, until 1 October 2014 or further order of the court, by themselves, their servants or agents, or howsoever otherwise, from lodging any further caveat on any of the certificates of title in respect of the same interest as specified in the caveat.
3.The first and fourth defendants pay the plaintiff’s costs of the proceeding to date, including the costs of the plaintiff’s summons filed on 29 May 2014.
4.The further hearing of the plaintiff’s summons dealing with its claim for compensation against the first and fourth defendants is adjourned to 21 July 2014 at 9.30am in the Associate Judges’ Court 4, Ground Floor, 436 Lonsdale Street, Melbourne.
5. Liberty to apply is reserved.
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