Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd (No 2)

[2017] VSC 695

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S CI 2017 04444

ANDREWS FAMILY HOLDINGS PTY LTD (ACN 147 560 692) in its capacity as Trustee for the SHADOW GLEN HOLDING UNIT TRUST	Plaintiff
v
YELLOW TRACTOR PTY LTD (ACN 151 340 519)	First Defendant
PAUL DAVID ANNESLEY	Second Defendant
THE REGISTRAR OF TITLES	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2017
DATE OF JUDGMENT:	14 November 2017 (Revised)
CASE MAY BE CITED AS:	Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 695

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REAL PROPERTY — Caveat — Previous caveat removed by Court order — Order that no caveat be lodged without leave — Titles Office knowledge of orders — Titles Office accepting lodgement of further caveat subject to proof that leave granted — No leave granted — Titles Office practice — Appropriateness of rejecting further caveat — Appropriate orders — Indemnity costs — Transfer of Land Act 1958 s 90, 103, 104.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Ruddle	Whyte, Just & Moore
For the First and Second Defendants	No appearance
For the Third Defendant	Mr J Collopy

HIS HONOUR:

1. This matter was before the Practice Court last Wednesday, 8 November 2017, when I made orders for the removal of a caveat lodged by Mr Paul Annesley on Certificate of Title Volume 10927 Folio 860 (‘the Property’) on behalf of Yellow Tractor Pty Ltd, a company of which he was a director prior to its de-registration. I gave reasons for that decision.[1] Mr Annesley appeared at, and participated in, that hearing. Mr Savvas Kanakaridis, an acquaintance of Mr Annesley, was also present and assisted Mr Annesley. I also granted an injunction restraining Mr Annesley, whether by himself, his servants, or agents or howsoever otherwise, from lodging any caveats or causing any person or entity to lodge any caveats in respect of the Property in the relevant certificate of title without the prior leave of the court.

   [1]Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd [2017] VSC 682.

1. The following day, Thursday 9 November, the plaintiff’s affidavit establishes that Mr Annesley attended the Land Titles Office (‘the Titles Office’) and lodged a caveat in his own name over the property.  It expressed his interest as a ‘purchasers’ lien to secure repayment of money paid under a contract of sale with the following parties and date’ . No leave had been given to lodge that caveat.  The Titles Office had a copy of the Court’s order of 8 November 2017 and therefore knew that Mr Annesley could not lodge the caveat without leave.  Despite this, the Titles Office accepted the caveat but, as I understand it, issued a requisition requiring that within 14 days Mr Annesley establish that he had the leave of the Court to lodge the caveat.[2]

   [2]Section 104 of the Transfer of Land Act 1958 provides for the Registrar to make requisitions relating to land.

1. Mr Annesley had no such leave and the Registrar could have found that out by having a staff member contact the Court.  That might not be a usual step for the Titles Office to take, but this was not a usual case as Mr Annesley had lodged two caveats on the Title, directly or through his company, which had been removed or had lapsed.  The Titles Office had a copy of the Court order forbidding him from lodging any further caveat without leave of the Court.

1. The plaintiff’s solicitor’s affidavit describes what occurred last Thursday, 9 November 2017:

I was informed by Mr Trethowan that settlement which was to occur on 9 November 2017 was postponed until 10 November 2017 to allow the LTO [Land Titles Office] time to process the application to remove the caveat. Settlement was to take place at 12pm on 10 November 2017.

On the morning of 10 November 2017 Mr Trethowan searched the title of the Property and discovered two further caveats on title. The first caveat was a purchaser’s caveat lodged electronically and the second caveat, caveat AQ427470U, was lodged in person. Both caveats were lodged on 9 November 2017… Settlement was then put off to 2.30 whilst the matter was resolved.

That morning I called the LTO and spoke with the warrants officer, Annie, who informed me that according to her records Mr Annesley lodged the second caveat and that in light of the Orders the matter was to be referred to the LTO legal department. Unfortunately the lawyer handling the matter was in a meeting until midday but Annie provided me her details to call and leave a message to call back.

At or around 12.30pm, I spoke with Andrea, a lawyer from the LTO, who informed me that having regard to the Orders it is the position of the LTO that Mr Annesley may lodge a caveat on the Property provided he has prior leave of the Court. Andrea also informed me that the LTO has written to Mr Annesley and sought evidence of leave of the Court to be provided to the LTO within 14 days.

In my conversation with Andrea I relayed that the LTO should have regard to any leave prior to recording any dealings on the title of the Property and that the LTO’s position effectively allows Mr Annesley to frustrate settlement and circumvent the purpose of the Orders. When querying the timeframe of 14 days Andrea replied that this is less notice than we are obliged to give which is usually 30 days.

At around 1pm, when it became apparent that the caveat would not be removed, settlement was cancelled. Given the uncertainty, it was not rescheduled. At this stage, no rescission notice has been issued by the purchaser although they are within their rights to do so.

1. The notation that Mr Annesley’s further caveat had been lodged caused the plaintiff’s settlement of the sale of the property to be cancelled. The consequences of that cancellation are uncertain.

1. Mr J Collopy, the principal solicitor of Land Use Victoria Legal, appeared this morning on behalf of the Registrar and informed me of the reasons for the acceptance of the further caveat. The Titles Office explanation for this conduct was that it had given Mr Annesley ‘the benefit of the doubt’ in circumstances where the Registrar has a duty to accept a caveat for lodgement. I questioned the appropriateness of this practise.

1. Following further reflection I add the following. The Registrar’s apparent practice of giving caveators ‘the benefit of the doubt’ is inappropriate in the case of caveators, like Mr Annesley, whose previous caveats on the Title have been removed or lapsed and who are bound by a Court order restricting their ability to lodge further caveats. The Registrar’s statutory obligations include giving effect to directions of the Supreme Court.[3] The possible undesirable consequences of adoption of ‘benefit of the doubt’ approach are all too apparent in this case.

   [3]Transfer of Land Act 1958 s 103.

1. Returning to the plaintiff’s application made today, it seeks an order that the Registrar forthwith reject the further caveat. Mr Annesley has not attended court this morning. He has been served with the summons of 13 November 2017 and supporting affidavit at an email address given by him in an affidavit filed in connection with last Wednesday’s hearing. I am therefore satisfied that this summons came to his notice yesterday.[4] The summons gave him notice of the orders that would be sought today.

   [4]Supreme Court (General Civil Procedure) Rules 2015 r 6.11.

1. For two reasons I consider that the further caveat, which has not yet been rejected, should be forthwith rejected by the Registrar. They are first, Mr Annesley lodged the further caveat without leave of the Court and, secondly, I am not persuaded that any caveatable interest is disclosed by it.

1. The plaintiff needs to amend the originating motion to seek the relief that I will grant in the orders and should file and served an amended originating motion by 1.00 pm tomorrow, 15 November 2017.

1. The orders I make are that the Court dispenses with the requirements of personal service of the amended originating motion under Rule 6.02 of the Supreme Court (General Civil Procedure) Rules and any requirement of personal service of the summons filed 13 November 2017. I order that pursuant to s 90(3) of the Transfer of Land Act 1958, the third defendant, the Registrar of Titles forthwith reject caveat number AQ427470U from the Register of Titles Certificate lodged on the land contained in the Certificate of Title Volume 10927 Folio 860. I issue a permanent injunction restraining the second defendant, Mr Paul David Annesley, whether by himself, his servants or agents or howsoever otherwise from lodging any caveats or causing any person or entity to lodge any caveats in respect of the Property.

1. I also issue an injunction that the third defendant, the Registrar of Titles, whether by himself, his servants or agents or howsoever otherwise must forthwith reject any caveat lodged by or on behalf of Paul David Annesley in relation to the Property and must not record any such caveat in relation to the Property.

1. I consider that the second defendant should pay the plaintiff’s costs of and incidental to the hearing on 14 November 2017 and the summons filed 13 November 2017 on an indemnity basis. I do that because he has purported to lodge a further caveat in breach of my previous order as he did not obtain leave to do so.

1. I have considered whether the injunctions I have granted should be permanent or interlocutory. Ms Ruddle referred me to the decision in Wells v Rouse.[5] I consider in light of Mr Annesley’s conduct that permanent injunctions should be granted.

   [5][2015] VSC 553.

Conclusion

1. Mr Annesley is bound by orders of the Supreme Court of Victoria. Unless or until an appeal court sets them aside, they are binding. That is our rule of law which binds everyone. That is the rule of law that I have implemented by making these orders.