Australia and New Zealand Banking Group Ltd v P.A. Contracting Group Pty Ltd
[2015] VCC 812
•19 June 2015 (revised 22 June 2015)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL DIVISION
EXPEDITED CASES LIST
Case No. CI-15-02928
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD | Plaintiff |
| v. | |
| P.A. CONTRACTING GROUP PTY LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2015 | |
DATE OF JUDGMENT: | 19 June 2015 (revised 22 June 2015) | |
CASE MAY BE CITED AS: | Australia and New Zealand Banking Group Ltd v. P.A. Contracting Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 812 | |
REASONS FOR JUDGMENT
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Catchwords: Caveat – Sale by mortgagee in possession – Refusal by caveator to remove caveat – Sale price less than amount owing to mortgagee – Caveat removed to allow settlement sale – s. 90(3) Transfer of Land Act 1958 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C. J. Dawes | HWL Ebsworth |
| For the Defendant | Ms C. De Harcourt | Bolton & Swan Lawyers |
HIS HONOUR:
1 The plaintiff seeks the removal of a caveat. The plaintiff sold the property at 16 Schubert St, Cobram, as the mortgagee in possession, by contract of sale dated 21 May 2015 for the sale price of $700,000.
2 The registered proprietor of the proprety was indebted to the plaintiff for a greater sum than the purchase price both directly and through its liability as a guarantor for advances to related companies. The registered proprietor and two related companies are now in liquidation.
3 The sale of the property is due to settle next Monday, 22 June 2015. On 1 June 2015, the plaintiff’s solicitors sought the removal of the caveat by letter addressed to the caveator’s solicitors at the address for service on the caveat. At the same time, a demand was served on the same solicitors for the payment of $901,423.59 owing by the registered proprietor to the plaintiff. Further interest has accrued since that date. The solicitors responded stating that they no longer acted. On 10 June 2015, the request to remove the caveat was sent to the registered office of the first defendant and, by email, to Ms Michelle Vaughan, a director of the first defendant.
4 At the hearing today Ms De Harcourt appeared for the caveator. She sought an adjournment of the plaintiff’s application for 14 days on the basis that the court documents had only been served on her client at about 2pm yesterday. She said that she had been unable to obtain adequate instructions from her client. In fact, Ms Vaughan, the director of the first defendant was at Court with Ms De Harcourt, although this was not apparent as Ms Vaughan was not physically in the court room.
5 I stood the matter down to permit Ms De Harcourt to obtain instructions as to the basis upon which the first defendant sought to delay settlement of the sale by seeking to maintain the caveat. Ms De Harcourt informed the Court the her client disputed that at least the sum of $1.1 million was owing to the plaintiff. She referred to the proceeds of an insurance claim of $460,000, a second insurance claim and the sum of $160,000 paid to the plaintiff from the Senior Master’s fund in the Supreme Court.
6 I consider that the application should proceed and an order should be made for the removal of the caveat. The first defendant has had ample time since 1 June or, alternatively, 10 June, or even in the last 24 hours to properly instruct lawyers if there were any basis for asserting that the registered proprietor was not indebted to the plaintiff for a sum substantially greater than the sale price of $700,000.
7 In the circumstances, I consider that no useful purpose would be served by delaying the proceeding and the making of an order for the removal of the caveat.
8 I propose to make the orders sought by the plaintiff, a copy of which I have signed.
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Certificate
I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 19 June 2015 and revised on 22 June 2015.
Dated: 22 June 2015
Olivia Bramwell
Associate to His Honour Judge Anderson
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