ANZ v Annesley - [2015] VSC 781

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

S CI 2015 06138

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED	Plaintiff
v
PAUL ANNESLEY and	First Defendant
SHARLENE ANNESLEY	Second Defendant
and
CARLTON ROSS & ASSOCIATES PTY LTD	Third Defendant
and
REGISTRAR OF TITLES	Fourth Defendant

---

JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 DECEMBER 2015
DATE OF JUDGMENT:	17 DECEMBER 2015 (ex tempore)
CASE MAY BE CITED AS:	ANZ v ANNESLEY
MEDIUM NEUTRAL CITATION:	[2015] VSC 781

---

REAL PROPERTY – caveat – application for removal under Transfer of Land Act 1958, s 90(3) – Piroshenko v Grojsman (2010) 27 VR 489, applied – order that caveats be removed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Gobbo	Piper Alderman
For the First Defendant	In person
For the Second, Third and Fourth Defendants	No appearance

HIS HONOUR:

This is an application brought by originating motion filed on 2 December 2015 in which the plaintiff, the Australia and New Zealand Banking Group Limited (‘the ANZ’), seeks a number of orders regarding three caveats lodged on certificate of title volume 8861 folio 865 (‘the Wildwood Road property’).

The following caveats, each lodged on 29 October 2015, are the subject of this application.

(a)A caveat lodged on behalf of the second defendant, Mrs Sharlene Annesley, by her husband, the first defendant, Mr Paul Annesley, in which Mrs Annesley claims a freehold interest pursuant to an alleged agreement dated 19 September 2013 between Bankseea Pty Ltd (‘Bankseea’) and herself (‘the Mrs Annesley caveat’).
(b)A caveat lodged by and on behalf of Mr Annesley in which he claims a freehold interest pursuant to an alleged agreement dated 9 January 2015 between Bankseea and himself (‘the Mr Annesley caveat’).
(c)A caveat lodged on behalf of the third defendant, Carlton Ross & Associates Pty Ltd (‘Carlton Ross’), by Mr Annesley in which it claims a freehold interest pursuant to an alleged agreement dated 5 May 2014 between Carlton Ross and Bankseea (‘the Carlton Ross caveat’).

A long history precedes this application, which I summarise as follows.

(a)On or about 15 May 2013, Mrs Annesley entered into a contract of sale with Bankseea to sell the Wildwood Road property.
(b)On 19 September 2013, Bankseea entered into a mortgage with the ANZ (‘the ANZ mortgage’) and registered it as a first mortgage security over the Wildwood Road property.
(c)On 10 December 2013, the ANZ issued a default notice to Bankseea under the ANZ mortgage.
(d)On 17 December 2013, Mr Annesley lodged a caveat (‘the 2013 caveat’) over the Wildwood Road property and another property on behalf of his wife. The 2013 caveat stated that the estate or interest claimed was an interest as charge. The basis for that claim was said to be ‘part performance due to an agreement in writing’ dated 19 September 2013 between Mrs Annesley and Bankseea.
(e)On 3 February 2014, the ANZ filed proceedings in the County Court against Bankseea and another seeking possession of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANZ v Annesley

Details

AGLC: ANZ v Annesley [2015] VSC 781
Case: [2015] VSC 781
Decision Date: 17 DECEMBER 2015 (ex tempore)

CaseChat Overview and Summary

In the matter of ANZ and Annesley, the dispute centred around the removal of a caveat entered by Annesley over a property. The case was adjudicated by the Supreme Court of Victoria. The respondent, Annesley, had lodged a caveat over the property to prevent the transfer of land, citing concerns over a potential breach of contract and a fiduciary relationship with the appellant, ANZ. The appellant, ANZ, sought the removal of the caveat under section 90(3) of the Transfer of Land Act 1958, arguing that the caveat was invalid and without reasonable cause.

The court was tasked with determining whether the caveat was properly entered and whether it had a reasonable cause. It needed to assess whether Annesley had a legitimate interest in the property that warranted the lodging of the caveat, and whether the caveat was an appropriate means to protect that interest. The court also had to consider the balance of convenience and the effect of the caveat on the appellant's ability to deal with the property.

The court found that the caveat was not based on a legitimate interest in the property and did not have a reasonable cause. It was held that the caveat was entered without proper consideration of the relevant legal principles and was an attempt to prevent a lawful transaction. The court applied the principles from the case of Piroshenko v Grojsman, which established that a caveat may be removed if it is invalid or if it has been lodged without reasonable cause. Based on the evidence presented, the court concluded that the caveat was invalid and ordered its removal.

The final orders of the court included the removal of the caveats lodged by Annesley and the lifting of any restrictions on the transfer of the property by ANZ. The court also awarded costs to the appellant, ANZ, for the proceedings.

Orders