Austwide Property & Developments Pty Ltd v Vukasinec

[2004] VSC 333

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 7666 of 2004

AUSTWIDE PROPERTY & DEVELOPMENTS PTY LTD	Plaintiff
v
IVAN VUKASINEC AND THE REGISTRAR OF TITLES	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 AUGUST 2004
DATE OF RULING:	25 AUGUST 2004
CASE MAY BE CITED AS:	AUSTWIDE PROPERTY v VUKASINEC
MEDIUM NEUTRAL CITATION:	[2004] VSC 333

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Application for removal of caveat pursuant to s.90(3) of Transfer of Land Act 1958 – Caveat lodged in breach of s.90(4) of Transfer of Land Act 1958 - Subsequent caveat claimed same interest – No credible evidence of fraud.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Stark	Dean H Lovig
For the Defendants	Mr I. Vukasinec (in person)

HIS HONOUR: 

1. In this matter the plaintiff seeks the removal of a caveat lodged by the first defendant in the office of the second defendant.  The plaintiff purchased the land pursuant to a contract executed by the first defendant's former wife and by a Deputy Registrar of the Family Court of Australia pursuant to an order of Judicial Registrar Nikakis made on 3 July 2001 pursuant to the provisions of the Family Law Act 1975.

1. A transfer of land was lodged at the Land Titles Office on 11 December 2002.  At that time the first defendant had lodged in that office a caveat dated 28 August 2002 on grounds which were stated as follows:  "to prevent fraudulent and improper dealings on 28 August 2002.” 

1. The estate or interest claimed by the first defendant was "an interest as proprietor estate in fee simple." On or about 3 January 2003 a notice pursuant to s.90(1) of the Transfer of Land Act was forwarded to the first defendant regarding this first caveat.  Thereafter it appears no action was taken to substantiate it.

1. On 12 February 2003 the Registrar of Titles registered the transfer of the property to the plaintiff and also registered a mortgage to the Commonwealth Bank of Australia.  The first caveat is noted as lapsing.  The plaintiff thus became the registered proprietor of the land on and from 12 February 2003.

1. On 30 September 2003 the first defendant lodged a second caveat with the Registrar of Titles in relation to the land.  The estate or interest claimed in the second caveat was "an interest as an former proprietor estate in fee simple."  The grounds of claim were stated as “Land Transfer Act 1952 s.62, ‘except in case of fraud’, s.63 ‘as against the person registered as proprietor of the land through fraud’, s.123 ‘a person deprived of any land by fraud as against a person registered as proprietor through fraud’, plus other sections of the Act as Family Court pricidings (sic) are not finalised."

1. The plaintiff now wishes to refinance its mortgage over the land with the National Australia Bank Ltd and settlement of the refinancing was scheduled for 20 August 2004.  The refinancing cannot proceed while the caveat remains upon the title. 

1. The application before me is made pursuant to s.90(3) of the Transfer of Land Act 1958 which provides:

"Any person who is adversely affected by any such caveat may bring proceedings in the court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit."

1. It is well established by authority that in proceedings of the kind before me the onus lies on the caveator to maintain and justify the caveat.[1]

   [1]Lewenberg and Pryles v Direct Acceptance Corporation Limited [1981] VR 344.

1. In the current case it is contended the caveat is bad for two reasons: firstly, it is said the caveat does not disclose a caveatable interest in land. Secondly, it is said that it has been lodged in breach of s.90(4) of the Transfer of Land Act.  This provides:  "A caveat shall not be renewed by or on behalf of the same person in respect of the same interest."

1. Although it is strongly arguable that the caveat does not disclose a caveatable interest, I would have some reluctance to dispose of it on this basis if I were persuaded that what was really in issue was a matter of English expression by a litigant in person whose first language I infer is not English. It is strictly unnecessary, however, for me to determine this question because I have reached the view that there is no credible evidence that the grounds of the interest claimed could be sustained and that the caveat was lodged in breach of s.90(4) of the Transfer of Land Act.

1. The first defendant explains the position as he sees it in an affidavit sworn 24 August 2004 and filed in this proceeding.  He states at paragraphs 15 and 16 as follows:  "I refer to transfer of land as it is dated and attested and executed on 29 November 2002 as such, and it is signed in my name by Registrar of the Family Court pursuant the order of the Family Court made on 3 July 2001.  Annexed and marked IB4 is the copy of the order made on 3 July 2001.  The order of 3 July 2001 is an product of fraudulent act by the solicitor, Ms Alda Bradford, for the wife, as she did mislead the Court as to the making of the order.  She was dishonest as at the time the relevant order was the order made on 9 June 2000, made as stated by consent."

1. In elaboration of his contentions that the execution of the transfer by the Registrar of the Family Court was procured by fraud, the first defendant submitted to me firstly that the order of July 2001 was inconsistent with the prior order of the Court of June 2000.  Secondly, that he has read the transcript of proceedings on 3 July 2001 before the Judicial Registrar, and the Judicial Registrar was not informed of the terms of the prior order.  And thirdly, that the first defendant was not served with a copy of the order of 3 July 2001.

1. The first defendant has tendered to me both the first order upon which he relies made in the Family Court on 9 June 2000 which provided for a sale by the husband and wife of the land, and the second order of which he complains, which was made on 3 July 2001 and provided for execution of necessary documents on behalf of the husband by the Deputy Registrar of the Family Court.  In my view there is no inconsistency between the second order and the first order.  The second order gives effect to the intent of the first order.

1. In so far as it is alleged that Judicial Registrar Nikakis was not fully informed of the terms of the prior order, the overwhelming probability is that he had before him on the file a copy of the prior order which as I have said is the logical precursor to the order in issue.  In so far as it is said that the order was not properly served, the order of the Judicial Registrar provided that upon the wife forwarding a sealed copy of these orders by pre-paid post to the husband at 27A Wells Road, Edithvale, service of the orders on the husband otherwise be dispensed with unconditionally.  There is no evidence before me that the wife failed to forward a sealed copy of the orders in accordance with the requirements of the Judicial Registrar and I need say no further about this point.

1. It follows in my view that there is no seriously arguable basis on which the facts for which Mr Vukasinec contends can be said to establish any fraud with respect to the order of the Judicial Registrar.  Further, however, it is apparent that it was subsequent to the order of the Judicial Registrar that the first caveat was lodged and in my view it is also apparent from its terms and from the terms of the subsequent caveat that they in substance claim the same interest in the land.[2]

   [2]cf. Layrill Pty LTd v Furlap Constructions Pty Ltd [2002] VSC 51.

1. It follows that the plaintiff is entitled to an order for removal of the caveat but before making that order, I should deal with some other matters.  Firstly, it is apparent that in any event, even if the order of the Family Court were tainted, the equities would favour the plaintiff.  There is no suggestion that the plaintiff was a party to any fraud and there is no suggestion on the evidence that the plaintiff did other than acquire the land bona fide and for good value.

1. The completion of the acquisition was effected as a result of the first defendant failing to take proceedings to support the first caveat.  The situation has thus resulted where the plaintiff has purchased the land, a mortgage has been registered and the defendant seeks now to interfere with a subsequent dealing.  The equities of this situation rest squarely with the plaintiff.  The first defendant has been guilty of laches, acquiescence and delay in seeking to assert his alleged interest.

1. Lastly, it was said by the first defendant that the current proceeding is incompetent because the Registrar has issued a notice pursuant to s.89A of the Transfer of Land Act 1958 and the 30 days specified in that notice have not expired. The short answer to this point is that such a notice does not preclude an application pursuant to s.90(3) by a person who is adversely affected by a caveat.

1. Accordingly, I propose to make the orders sought in the summons both against the first defendant and in the alternative against the second defendant to ensure that the caveat is removed.

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