Antonie v Leith
[2021] VSC 662
•15 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 04108
| SUSAN ANTONIE | Plaintiff |
| v | |
| CAROL LEITH | Defendant |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 September 2021 |
DATE OF RULING: | 15 October 2021 |
CASE MAY BE CITED AS: | Antonie v Leith |
MEDIUM NEUTRAL CITATION: | [2021] VSC 662 |
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PRACTICE AND PROCEDURE — Pleadings — Application to strike out part of amended statement of claim for not disclosing a cause of action — r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Application granted - Summary judgment — Part of plaintiff’s claim summarily dismissed on the Court’s own motion — s 63 of the Civil Procedure Act 2010 (Vic) — No real prospect of success.
REAL PROPERTY — Caveats — Application by defendant for removal of a caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) — Finding that there is no prima facie case to be tried — Balance of convenience favours the removal of the caveat.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Burnett | Borchard & Moore |
| For the Defendant | Mr R Antill | Casey Business Lawyers |
HER HONOUR:
Introduction
The Plaintiff and Defendant are sisters. Their mother, Hilary Taylor, died in 2020 after the events at issue in this proceeding and prior to the commencement of the proceeding.
There is limited agreement between the parties as to the factual circumstances underlying this proceeding. What can be said is that the Plaintiff advanced loan money pursuant to some form of loan arrangements in May 2018 (‘Secured Loan Payments’), either to the Defendant or to Ms Taylor, and that the loan arrangements included provision for the Plaintiff to place a caveat on the Defendant’s property at 18 Colgoa Street, Warneet in Victoria (‘Property’). Pursuant to the loan arrangements, the Plaintiff lodged a caveat with dealing number AR138271D on the Property on 18 June 2018 (‘Caveat’). A sum of money corresponding to the Secured Loan Payments was then paid by Ms Taylor to the Plaintiff in November 2018 (‘November 2018 Payment’).[1]
[1]There is a dispute about this, which I will deal with later.
The proceeding was commenced by writ on 29 October 2020 with a general endorsement (‘General Endorsement’). A statement of claim was filed by the Plaintiff on 5 March 2021, and a defence to that statement of claim filed on 26 March 2021. An amended statement of claim was then filed on 23 April 2021 (‘ASOC’), in response to which the Defendant filed an amended defence on 30 April 2021 (‘Amended Defence’).
On the same day, the Defendant filed and served a request for further and better particulars in respect of the General Endorsement and the ASOC. The Plaintiff provided further and better particulars to the Defendant by letter dated 15 June 2021, which particulars were filed on 4 July 2021 (‘FBPs’).
Also on 30 April 2021, the Defendant filed and served a notice to admit (‘Notice to Admit’), to which the Plaintiff responded by way of a notice of dispute dated 13 May 2021 (‘Notice of Dispute’).
As mentioned above, Caveat was registered on the title to the Property on 18 June 2018. In the Caveat, the Plaintiff claims an interest as chargee on the grounds of an agreement with the Defendant dated 3 May 2018.[2]
[2]Exhibits MG-1 and MG-2 to the Gilberthorpe Affidavit.
By summons dated 19 July 2021 the Defendant seeks the following relief (‘Application’):[3]
[3]By order made on 30 September 2020 on the Court’s own motion, the Application was referred to me for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), as that part of the summons seeking removal of the Caveat is not within an Associate Judge’s powers under r 77.01.
(a) The ASOC be struck out and the proceeding be dismissed.
(b) In the alternative to order 1, paragraphs 1 to 10 inclusive of the ASOC be struck out. These paragraphs concern an alleged loan agreement between the Plaintiff and the Defendant for the Secured Loan Payments (‘Secured Loan Pleadings’).
(c) An order pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) that the Caveat Number AR138271D be removed from the Register of Titles.
(d) The proceeding be transferred to the Magistrates’ Court of Victoria at Melbourne (‘Magistrates’ Court’) pursuant to the Courts (Case Transfer) Act 1991 (Vic) on payment of the appropriate fee by the Plaintiff.
(e) The Plaintiff pay the Defendant’s costs of the summons and the proceeding.
(f) Such other order as this Honourable Court thinks fit.
In determining the Application I have had regard to the following materials, in addition to the pleadings and related material detailed above along with the oral submissions made at the hearing on 30 September 2021:
(a) affidavit of Marylyn Gilberthorpe, solicitor for the Defendant, sworn 16 July 2021 in support of the Summons, and exhibits thereto (‘Gilberthorpe Affidavit’);
(b) affidavit of Matthew Phaedonos, solicitor for the Plaintiff, sworn 30 July 2021 (‘First Phaedonos Affidavit’);
(c) affidavit of Matthew Phaedonos sworn 1 September 2021 and exhibits thereto (‘Second Phaedonos Affidavit’);
(d) a written outline of submissions from the Defendant dated 6 August 2021, and a further outline of submissions in reply dated 27 August 2021; and
(e) a written outline of submissions from the Plaintiff dated 20 August 2021.
For the reasons which follow:
(a) paragraphs 1 to 10 of the ASOC will be struck out;
(b) orders will be made for the summary dismissal of the Plaintiff’s claims in respect of paragraphs 1 to 10 of the ASOC and paragraphs A and C of the prayer for relief in the ASOC;
(c) the Caveat will be removed; and
(d) the balance of the proceeding, being paragraphs 11 to 23 of the ASOC and paragraphs B, D, E and F of the prayer for relief will be transferred to the Magistrates’ Court.
Procedural History and Pleadings
Plaintiff’s Pleadings
The Plaintiff’s case was first put by way of the General Endorsement on the writ. The General Endorsement states as follows:
The Plaintiff pursuant to a loan agreement (The Loan) loaned the Defendant money which was secured by a caveat over certificate of Title Volume 11157 Folio 549 (The land).
The Plaintiff as caveator accepted repayment of most of the loan Plaintiff [sic] from a third party upon specific terms and conditions.
The Defendant now denies the repayment was made by the third party upon specific terms and conditions and as a result the Plaintiff may have to repay the amount paid by the third party to the third party.
As a result the Plaintiff claims she still has a caveatable interest pursuant to the Loan Agreement over the land and requests a declaration that the caveat is valid.
Paragraphs 1 to 10 of the ASOC contain the Secured Loan Pleadings. They outline allegations concerning a written loan agreement entered into on 3 May 2018, but executed later in May 2018, between the Plaintiff as lender and Defendant as borrower (‘Plaintiff’s Alleged Loan Agreement’). The relevant terms of the Plaintiff’s Alleged Loan Agreement are said to be as follows:
(a) the Plaintiff will advance the sum of $330,000 to the Defendant as a loan;
(b) the Defendant would repay the loan by 3 September 2018;
(c) the loan would be secured on the Property;
(d) the Defendant permitted the Plaintiff to be listed as a lender on the title to the Property;
(e) the Defendant was liable to pay the Plaintiff rent at the market rate for properties in the area of the Property in the event the loan was not repaid by 3 September 2018; and
(f) all expenses incurred in enforcing the loan agreement are payable by the Defendant.
The Plaintiff alleges that she made the Secured Loan Payments pursuant to the Plaintiff’s Alleged Loan Agreement of $30,000.00 on 3 May 2018 and $295,738.70 on 28 May 2018 at the direction of the Defendant, to a total of $325,738.70. The Plaintiff further alleges that she lodged a caveat on the Property with the consent of the Defendant and pursuant to the Plaintiff’s Alleged Loan Agreement on or about 18 June 2018.
The Plaintiff alleges that the Defendant failed to repay the loan on 3 September 2018 pursuant to the Plaintiff’s Alleged Loan Agreement, such that the Defendant became liable to the Plaintiff for rent on the Property from 4 September 2018. Further, the Plaintiff alleges that the Defendant remains in default of repayment under the Plaintiff’s Alleged Loan Agreement. By paragraph 9 of the ASOC the Plaintiff claims that repayment of the Loan Payments of $325,738.70 remains due and owing to her. By paragraph 10 of the ASOC the Plaintiff claims penalty interest pursuant to s 58 Supreme Court Act 1986 (Vic) from 3 September 2018.
The balance of the ASOC contains allegations concerning other loan arrangements pursuant to which a total of $34,690.00 was advanced by the Plaintiff to the Defendant, which are not pleaded to be secured against the Property (‘Unsecured Loan Pleadings’).
The Plaintiff’s FBPs provide the following particulars relevant to the Secured Loan Pleadings:
Loan arrangement
1.On or about 8 November 2018, the plaintiff received the sum of $330,686.79 from her mother Hilary Taylor. The payment was made on the condition that it was an advancement of the defendant’s inheritance and would be repaid to the Estate of Mrs Taylor on her passing by deduction from the defendant’s share of the Estate. The funds were accepted by the plaintiff and defendant on this strict condition.
2.The monies paid by Mrs Taylor to the plaintiff remain due to the Estate of Mrs Taylor upon those monies being paid by the defendant. The plaintiff will remit the monies to the estate of Mrs Taylor once the monies are received from the defendant.
Defendant’s directions as to $30,000 loan
3.The defendant gave the direction as to payment by conversation between the plaintiff and the defendant on 26 April 2018 and by SMS dated 26 April 2018 at 11:00 am and 11:09 am from the defendant to the plaintiff which stated:
The deposit is $30000 due by tomorrow xx
Also if you could pls do a screen shot again so I can send to agent
The monies were paid by the plaintiff into the account of Ms Taylor. The defendant transmitted the sum in three lots of $10,000 on 4 and 7 May 2018.
Defendant’s directions as to $295,7938.70 loan
1.The defendant gave the direction as to payment by conversation between the plaintiff and the defendant on or about 28 May 2018.
By her Notice of Dispute filed 13 May 2021, the Plaintiff admitted that on or about 8 November 2018 she had received the November 2018 Payment in the sum of $330,686.79 from Ms Taylor. However, the Plaintiff disputed that she had received the November 2018 Payment as repayment in full of the advances made pursuant to the Plaintiff’s Alleged Loan Agreement. The Plaintiff did not dispute the authenticity of documents produced by the Defendant apparently evidencing the November 2018 Payment including a letter from Ms Taylor’s solicitors to Ms Taylor on the date of the November 2018 Payment (‘McKenzie Allen Letter’) which states inter alia:
Penalty interest was $3,686.79 which you instructed to be paid to Sue Antonie in addition to $327,000.00 being repayment of loan amount.
Defendant’s Pleadings
By her Amended Defence, the Defendant denies entering into the Plaintiff’s Alleged Loan Agreement and provides an alternative account of the Secured Loan Payments. The Defendant alleges that Ms Taylor intended to purchase the Property as a gift for the Defendant, and to sell her own property in Drouin. The Defendant alleges that the Plaintiff and Ms Taylor entered into an agreement, partly oral, partly in writing, and partly to be implied from conduct, whereby the Plaintiff would loan money to Ms Taylor for purchase of the Property, with the loan to be secured against the Property (‘Defendant’s Alleged Loan Agreement’). Accordingly, the Secured Loan Payments are alleged to have been made to Ms Taylor, and not to the Defendant. The Caveat is said to have been lodged pursuant to this agreement.
The Defendant alleges that the Plaintiff received the November 2018 Payment as full repayment of the Secured Loan Payments advanced under the Defendant’s Alleged Loan Agreement.
Further, the Defendant alleges that her son paid an amount of $800 to the Plaintiff for rent due, and that the Plaintiff refunded that sum to the Defendant’s son on 11 July 2018.
The Defendant denies some of the allegations in the Unsecured Loan Pleadings, but admits other allegations. In particular, the Defendant admits entering into certain loan arrangements in the Unsecured Loan Pleadings on the condition that she not be required to repay the loan until she was able to, including by receipt of a distribution from Ms Taylor’s estate (‘Estate’).
Applicable Principles
The principles applicable to the various parts of the Application were not in dispute. Subject to the clarification of the Defendant’s application to strike out the Secured Loan Pleadings, there was no dispute concerning the relevant principles.
Paragraphs 1 and 2 of the Defendant’s Application do not identify a particular power pursuant to which she seeks the striking out of the ASOC, in whole or in part. Each party’s submissions addressed r 23.02 of the Rules broadly, while the Plaintiff’s written outline of submissions partly addressed an application for summary judgment which had not been identified in the summons. At the hearing of the Application, Counsel for the Defendant clarified that the Defendant sought orders striking out the Secured Loan Pleadings on the basis of a failure to disclose a cause of action, pursuant to r 23.02(a) of the Rules. The parties agreed that their written outlines of submissions had been directed to that question, without identifying r 23.02(a), and that the Plaintiff’s submissions on the question of summary judgment were relevant.
The principles applicable to an application to strike out a pleading for failure to disclose a cause of action are broadly similar to the test for summary judgment. In CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd[4] the Court of Appeal considered the principles on an application pursuant to r 23.02(a) of the Rules, and said that:[5]
[a] pleading that would not survive a summary judgment application will be struck out, for to allow it to go forward would be futile. According to Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd: a prospect which is not ‘real’ is ‘fanciful’; although the ‘no real prospect of success’ test in s 63(1) of the Civil Procedure Act is more liberal than the common law test of ‘hopeless’ or ‘bound to fail’, there may not be much difference between them in practice; and, properly understood, a real question to be tried is one which realistically might result in the Agents to an application for summary judgment succeeding in the proceeding. The correct test to apply in the present case is whether the amendments raise a claim that has no real prospect of success, in the sense of being fanciful.
[4][2017] VSCA 11 (Redlich, Tate and Ferguson JJA) (‘Ballan’).
[5]Ibid, [24] (citations omitted). The references by the Court of Appeal in the questions reserved for consideration to r 23.03(a) should be read as references to r 23.02(a) of the Rules: see the decision at first instance Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd & Ors (No 2) [2016] VSC 72 [8], [70] (Cameron J).
In respect of the Defendant’s application for removal of the Caveat, s 90(3) of the TLA relevantly provides as follows:
(3)Any person who is adversely affected by any such caveat may bring proceedings in a court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit.
Derham AsJ recently summarised the principles relevant to the Court’s exercise of the discretion to remove a caveat under s 90(3). In AAGG Developments Pty Ltd v Saafin Constructions Pty Ltd & Ors,[6] his Honour stated:[7]
[6][2020] VSC 768 (‘Saafin’).
[7]Ibid, [8]–[9] (citations omitted).
The applicable principles are not in dispute. In short summary they are:
(a)The application is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The procedure is consequently interlocutory in substance, even though it may give rise to a final order.
(b)The Court’s power under s 90(3) of the TLA is discretionary.
(c)The caveator bears the onus of establishing that there is a prima facie that it does have the estate or interest in land as claimed.
(d)The prima facie case test is often used interchangeably with whether a serious question to be tried is established. The prima facie case test is to be preferred. That does not mean that the Caveator must show that it is more probable than not that at trial the plaintiff will succeed. The Caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial.
(e)If the caveator establishes a prima facie case to be tried in relation to the estate or interest claimed, the caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial.
(f)There is a relationship between the strength of the case in establishing a prima facie case to be tried and the extent to which the caveator must establish the balance of convenience favours the caveator; the stronger the prima facie case, the more readily the balance of convenience might be satisfied. It is sufficient that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question in accordance with its normal proprietary rights.
An application to remove a caveat involves two steps. First, the Caveator must establish that there is a prima facie case - there is a probability on the evidence before the Court that the Caveator will be found to have the asserted legal or equitable rights or interest in the land. Second, having done so, the Caveator must establish that the balance of convenience favours the maintenance of the Caveat on the title until trial and that probability is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal proprietary rights.
Submissions
Defendant’s Submissions
The Defendant submits that the Secured Loan Pleadings ought to be struck out on the basis that the Plaintiff has no claim to repayment of the Secured Loan Payments because these repayments have already been made. The Defendant submits that the Plaintiff has admitted repayment in her General Endorsement, FBPs and Notice of Dispute. The Defendant submits that the November 2018 Payment can only be characterised as repayment of the loan and that, while the Defendant does not admit the Plaintiff’s Alleged Loan Agreement, the Plaintiff can have no cause of action due to the repayment.
The Defendant also submits that the Plaintiff has sought to explain the receipt of the November 2018 Payment by way of two inconsistent arrangements outlined in her FBPs. The Defendant says that the FBPs are indicative of two things: first, that the November 2018 Payment was an advance on the Defendant’s inheritance from the Estate to be deducted from her share following administration; and secondly, that the Plaintiff is indebted to the Estate in the amount of the November 2018 Payment, which sum is to be recovered from the Defendant and then immediately remitted to the Estate. The Defendant says that these two arrangements are apparently contradictory, are not pleaded in the ASOC or by way of reply, and that any issue arising out of the matters in the FBPs is between the Estate and the Plaintiff and does not give rise to a cause of action for the Plaintiff against the Defendant.
The Defendant submits that if the Secured Loan Pleadings are struck out, it follows that the Plaintiff has no interest in the Property capable of supporting the Caveat such that it should be removed. In the alternative, if those pleadings are not struck out, the Defendant submits that the balance of convenience nonetheless favours removal of the Caveat on the basis that it is the Defendant’s intention to use the Property to obtain finance in order to commence a proceeding under Order 54 of the Rules. This proceeding, it is said, will be aimed at compelling the executor of the Estate to distribute the Estate without any deduction against the Defendant’s share, on the basis that the Property was a gift inter vivos from Ms Taylor to the Defendant.[8]
[8]Gilberthorpe Affidavit, [37]–[39].
The Defendant’s Application also seeks that the whole of the ASOC be struck out, however the Defendant did not make any submissions concerning the striking out of the Unsecured Loan Pleadings. Rather, the Defendant submitted that it was appropriate for the Unsecured Loan Pleadings to be transferred to the Magistrates’ Court.
Plaintiff’s Submissions
The Plaintiff submits that, notwithstanding the admission of the November 2018 Payment, the character and effect of that payment remains an issue to be determined by the Court which is inappropriate for summary dismissal or strike out. The Plaintiff submits that the Defendant’s evidence concerning the characterisation of the November 2018 Payment as a gift is at best ambiguous, that the Plaintiff has produced a written agreement on different terms, and that the discrepancies ought to be resolved with the benefit of viva voce evidence at trial rather than summarily.
Similarly, the Plaintiff submits that she has at least a prima facie interest in the Property as chargee pursuant to the Plaintiff’s Alleged Loan Agreement. The Plaintiff submits that where a strong prima facie case is established the balance of convenience is more likely to favour retention of a caveat; and, in the circumstances of the outstanding debt owed to the Plaintiff and the Defendant’s acquiescence to the Caveat despite her position in respect of the November 2018 Payment, that the balance of convenience clearly favours the retention of the Caveat. The Plaintiff further submits that the Defendant’s proposed Order 54 proceeding is not a proper basis for removal of the Caveat as the issue concerning the Defendant’s inheritance from the Estate, including any deductions to be applied to it, is an issue contested in this proceeding, and that in any event an Order 54 proceeding is in inappropriate vehicle for the determination of disputed issues of fact.
Consideration
It is common ground that the Defendant consented to the Caveat being lodged. What is disputed is whether that was to secure a loan pursuant to the Plaintiff’s Alleged Loan Agreement or a loan pursuant to the Defendant’s Alleged Loan Agreement. There is no suggestion that there were two different loans so that both of these may be in place; clearly, it will be one or the other, or neither.
The Plaintiff does not deny that she received the November 2018 Payment. In fact, she admits it via the Notice of Dispute. There is no evidence before the Court, and there is no contention or submission made, that the November 2018 Payment was for anything other than payment of the loan (whichever loan agreement is found to exist). There are submissions made about the characterisation or contextualisation of the November 2018 Payment in respect of other alleged arrangements as between the Plaintiff and the Estate, which will be discussed below; but even these do not clearly suggest a basis for the November 2018 Payments other than as repayment of the loan.
While the General Endorsement says that the Plaintiff “accepted repayment of most of the loan” (emphasis added), there is no evidence before the Court to suggest that the November 2018 Payment did not constitute payment of that which was owing as at that date.
There is no evidence before the Court to suggest that any amount secured by the Caveat was owing after 8 November 2018 or remains owing. That being the case, I do not understand how it is or how it can be said that either rent or interest continues to accrue under the loan after 8 November 2018. Any entitlement to interest and rent would have to be affected by the receipt of the November 2018 Payment. During the course of argument, I asked the Plaintiff’s Counsel why interest would be payable from November 2018 to March 2021, to which the response was that it would depend on the nature of the November 2018 Payment and it would be up to the Court to determine whether interest would be payable.
On the terms of the Plaintiff’s Alleged Loan Agreement, the Plaintiff was entitled to retain her security interest in the Property until full payment was received from the Defendant and was required to remove the Caveat once full payment had been received. The fact that the payment was received from Ms Taylor does not, in my view, affect this, as full payment had been received. It must be observed that the Plaintiff’s Alleged Loan Agreement is not a well-drafted document, and some of its provisions are difficult to interpret, but giving the Plaintiff the benefit of the doubt in terms of its drafting and effect, I think that this represents a fair summary of what was to happen with the Caveat upon repayment of the loan, if the Plaintiff’s Alleged Loan Agreement is found to be operative.
Whether it be the Plaintiff’s Alleged Loan Agreement or the Defendant’s Alleged Loan Agreement which applies, it seems to me that after 8 November 2018, with the repayment of the loan, no monies were outstanding that were secured by the Caveat.
That being the case, the Secured Loan Pleadings do not give rise to a cause of action for the Plaintiff.
It remains to be considered whether the nature or character of the November 2018 Payment affects this conclusion.
In oral submissions, Counsel for the Plaintiff stressed that this was the key or sole issue in dispute between the parties. I do not accept this proposition, and make the following observations about it.
First, the ASOC does not expose this as an issue at all. Rather, the ASOC makes what is a fairly conventional loan enforcement claim, as it pleads: the existence of a loan agreement and its terms; the obligation to repay the loan; the default, being failure to repay the amount owing; the security; and the relief sought. There is no reference at all in the ASOC to the November 2018 Payment.
Second, the General Endorsement and the ASOC are like ships passing in the night: the claim made in the General Endorsement is not reflected in the ASOC. The General Endorsement is not especially clear, but it seems that the Plaintiff says she still has a caveatable interest as she may have to repay the November 2018 Payment to Ms Taylor. As I said, the ASOC does not reflect this at all.
Third, the nature or character of the November 2018 Payment has been expressed by the Plaintiff in a number of inconsistent ways. In particular, the contents of paragraphs 1 and 2 of the FBPs do not, when read together, make sense. Paragraph 1 of the FBPs effectively says that the November 2018 Payment was made by Ms Taylor as an advance on the Defendant’s inheritance and would be repaid to the Estate by deduction from the Defendant’s share of the Estate. That suggests that an adjustment to the Defendant’s share of the Estate would be made for the November 2018 Payment by the executor when administering the Estate. On the other hand, paragraph 2 of the FBPs effectively says that the Defendant is to pay the equivalent of the November 2018 Payment to the Plaintiff and then the Plaintiff will be required to pay that to the Estate. Presumably, the Defendant will source the money from her inheritance from the Estate. In other words, this was some sort of ‘round robin’ of payments: the Estate pays the Defendant, the Defendant pays the Plaintiff, and the Plaintiff pays the Estate. Further, it is not particularly easy to reconcile paragraphs 1 and 2 of the FBPs with the General Endorsement.
In oral submissions, Counsel for the Plaintiff relied on the latter ‘round robin’ characterisation of the arrangements said to be in place as between the parties and the Estate. In doing so, the Plaintiff’s Counsel stressed that the family context of these arrangements was important, which context was said to explain the somewhat opaque and circuitous nature of the arrangements.
Fundamentally, however, the nature or character of the November 2018 Payment is not the key issue in the ASOC. All that matters for the purposes of this proceeding is the receipt of the November 2018 Payment and whether there is any money outstanding on the loan which is secured by the Caveat. For the reasons given, I am satisfied that there is no money outstanding on that loan.
Whether the November 2018 Payment was an advance on the Defendant’s inheritance or an inter vivos gift from Ms Taylor to the Defendant, and/or whether there was an arrangement giving rise to some liability against the Plaintiff in favour of the Estate, are matters that may be relevant in the administration of the Estate. In any case, there may be a claim as between the Defendant and the Estate, or the Plaintiff and the Estate, or possibly some other beneficiary under Ms Taylor’s will.[9] That is not something that can or should be dealt with in this proceeding, not the least because the executor of Ms Taylor’s will is not a party.
[9]The terms of Ms Taylor’s will are not in evidence.
Therefore, the Secured Loan Pleadings do not give rise to a cause of action for the Plaintiff because they seek repayment of a loan that has already been repaid.
Even if it could be said that the Secured Loan Pleadings do raise a cause of action from a pleading point of view, I would summarily dismiss this part of the Plaintiff’s claim pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’).
Relevantly, s 63(1) of the CPA provides that:
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
Section 63(2)(c) of the CPA provides that a court may give summary judgment in any civil proceeding under s 63(1) “if satisfied that it is desirable to summarily dispose of the civil proceeding.”
I have previously summarised the principles applicable to summary judgment applications under s 63 of the CPA in Padella Pty Ltd v Elliott,[10] as adopted by Sloss J in Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd[11] and Israfoods (2006) Ltd v J & D Consortium Pty Ltd.[12] There is no need for me to set out those principles here, suffice to say that I have followed the approach set out therein.
[10][2018] VSC 301, [19]-[28].
[11][2019] VSC 703.
[12][2019] VSC 323.
As noted above, the Defendant’s summons dated 19 July 2021 did not refer to summary judgment or s 63 of the CPA and nor did her submissions. However, the Plaintiff’s written outline of submissions approached the Application as if it was an application for summary judgment, and this submission was addressed by Counsel for both parties at the hearing for the Application.[13] Therefore, I see no prejudice to either party in me considering, effectively on my own motion, whether to summarily dismiss the Plaintiff’s Secured Loan Pleadings.
[13]Transcript, 30 September 2021, 2.21-26 and 27.3-21.
For the reasons set out above, I do not consider that the Plaintiff has a real prospect of succeeding on her Secured Loan Pleadings. Therefore, it is desirable and consistent with the overarching purpose as set out in the CPA for the claim made via the Secured Loan Pleadings to be summarily dismissed.
As noted above, once the registered proprietor seeks removal of a caveat pursuant to s 90(3) of the TLA, the caveator bears the onus of establishing a prima facie case in respect of the interest claimed in the caveat and, if so, that the balance of convenience favours the maintenance of the caveat until trial.
It follows from the above analysis that the Plaintiff does not have a prima facie case to the interest claimed in the Caveat, as no money is secured by that Caveat. The Plaintiff’s caveatable interest ceased on or around 8 November 2018 when the November 2018 Payment was made such that the loan (whichever loan that be) was repaid.
It also follows that the balance of convenience does not favour maintenance of the Caveat. The Plaintiff contends that the Caveat should be maintained as the Defendant has not offered an alternative form of security. I accept the Defendant’s submission that it is not necessary for her to offer alternative security when the loan has been repaid.
Even if the General Endorsement is correct that “most” of the loan was repaid with the November 2018 Payment, there is no evidence to satisfy the Court that any monies were outstanding after that date, such that there is no prima facie case and the balance of convenience favours removal of the Caveat.
The Secured Loan Pleadings having been struck out and the claims made through those pleadings struck out, which leaves the Unsecured Loan Pleadings and the claims made through them. Those claims being an unsecured debt claim of some $34,690, it is appropriate that the proceeding (that is, what is left of it), be transferred to the Magistrates’ Court. This was sought by the Defendant and opposed by the Plaintiff, primarily on the basis that the monetary amount sought by the Plaintiff in the ASOC exceeded the statutory limit of the Magistrates’ Court, but in the result that is no longer the case.
Conclusion
It follows that the Unsecured Loan Pleadings will be struck out, the claims made in the Unsecured Loan Pleadings summarily dismissed, the Caveat removed, and the proceeding be transferred to the Magistrates’ Court.
I will hear the parties on the appropriate form of orders and as to costs. The proceeding will be listed for 29 October 2021 at 10.30 am for that purpose.
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