Aneljoe Nominees Pty Ltd v Richards

[2001] VSC 421

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4562 of 2001

ANELJOE NOMINEES PTY LTD

Plaintiff

v.

MICHAEL RICHARDS AND

REGISTRAR OF TITLES

Defendants

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JUDGE:	McDONALD, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2001
DATE OF JUDGMENT:	24 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 421

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Property law;  caveat, caveator, no estate or interest in land – Order that caveat registered on title be removed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Austin	Baker & McKenzie
For the Defendants	No appearance

HIS HONOUR:

1. The proceedings before the Court this morning are those in which Aneljoe Nominees Pty. Ltd. is Plaintiff and Michael Richards and the Registrar of Titles are Defendants.

1. The background to these proceedings and the nature of the proceedings are that the proceedings by the plaintiff are by way of application to have removed caveat No.W710096W lodged by the first named defendant in respect of property being that contained in Certificate of Title Volume 10441 Folio 224.  These proceedings were commenced by way of Originating Motion on 21 February 2001.

1. The defendant Richards was unable to be located and an Order was made by Master Wheeler on 5 March 2001 providing for substituted service of the proceedings on him.  I have read the affidavits of service on the file and I am satisfied that the first defendant was served in accordance with the Order of Master Wheeler.

1. I am satisfied further that the second named defendant was served with the proceedings.  The second named defendant, the Registrar of Titles, has not taken part in the proceedings but has indicated that he will abide the decision of the Court.

1. On 23 April 1999 a contract of sale was entered into whereby the plaintiff agreed to sell the aforesaid property to Richards as purchaser.  It was on 6 April 2000 that Richards lodged the caveat that I have referred to.  On 25 April 2000, Richards purported to nominate a company, Flinders Investments Holdings Pty. Ltd. (Flinders), as his nominee purchaser under the contract. 

1. Proceedings were initiated, in this action, by Flinders to be joined as a defendant to the proceeding.  The initial application was heard by Master Wheeler on 26 March 2001 and the application was dismissed.  The decision of Master Wheeler was appealed against and was heard by Byrne, J.  On 10 April 2001 he dismissed the appeal. 

1. On 10 April 2001, Flinders commenced a separate proceeding, (No.5328 of 2001) by writ in this Court against the plaintiff Aneljoe and Richards seeking specific performance of the contract, contending that it had standing and right to seek such performance.  On 11 April 2001, it was ordered by Byrne, J. that both proceedings, that being the one presently before the Court and that commenced by Flinders, be heard together at a trial on this day.  I am satisfied that on 22 April 2001 Flinders and Aneljoe compromised those proceedings.  I have been furnished with the file in those proceedings which demonstrate that an order has been made giving effect to that compromise. 

1. I have read the affidavits of Cornelius McMahon sworn on 2 March 2001,

   
   

   Jeffrey Sallenger sworn on 1 March 2001, and Anthony Brearley sworn on 27 February 2001.  I have also read the affidavit of Phillipa Moorfield sworn on 2 March 2001 and the exhibits to that affidavit, including the notice of intention to rescind the contract of sale which bore the date 31 January 2001.  I am satisfied that that notice was served on the solicitors then acting for Richards and also on others.  I am satisfied that although an initial deposit was paid and a further deposit was paid by Richards, the balance of the purchase money was not paid on the settlement date which had been fixed, as 29 January 2001.  It was on that day that the balance of the purchase money, namely $169,500 minus or plus adjustments, was due to be paid. The balance of the purchase price was not paid by the purchaser, Richards, on that day.  Being satisfied that the notice of intention to rescind, dated 31 January 2001, was served on the solicitors for and the agents of Richards at that time and being satisfied that there was no payment made nor was rectification made by the purchaser of the breach during that time, the effect of that notice was to rescind the contract of sale as of 14 February 2001. 

1. In such circumstances there then remained no basis that Richards could be said to have an estate or interest in the land the subject of the sale and being that in respect of which the caveat was lodged.

1. I am satisfied that the contract was rescinded; that Richards does not have an estate or interest in the land or entitlement to support the caveat over the subject land.  Accordingly, I propose to make an Order with the effect that the second defendant be ordered to remove the caveat No.W710096W registered on the Certificate of Title Volume 10441 Folio 224.

(Discussion ensued re form of Order.)

1. Having reached the conclusions which I have referred to in my judgment, I am prepared to make the Orders and do make the orders as set out in the minutes which I will regard as Minutes of Orders.  I have initialled and dated the Minutes of Orders and make  Orders in those terms.  I will put that those Minutes on the file and the Orders will be authenticated.

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