Bank of Queensland v De Oliveria

[2014] VSC 124

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 1167 of 2014

BANK OF QUEENSLAND	Plaintiff
v
MANUEL JOSE DIAS DE OLIVERIA	First Defendant
MARIA ZELIA RODRIGUES DE OLIVERIA	Second Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 MARCH 2014
DATE OF JUDGMENT:	20 MARCH 2014 (ex tempore reasons, revised 26 March 2014)
CASE MAY BE CITED AS:	BANK OF QUEENSLAND v DE OLIVERIA & ANOR
MEDIUM NEUTRAL CITATION:	[2014] VSC 124

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CAVEAT – application for summary removal – application by registered mortgagee in possession who has exercised its power of sale – service of application – address for service nominated in caveat as that of caveator’s solicitors, who no longer act – ss 89(4), 90(3) Transfer of Land Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms KM Pattison, HWL Ebsworth Lawyers

HIS HONOUR:

1. In this proceeding, the plaintiff, who is the first registered mortgagee of land known as 175 Berwick Cranbourne Road, Cranbourne East, being the land contained in Certificate of Title volume 09813 folio 352, applies to the court, pursuant to s 90(3) of the Transfer of Land Act 1958, for the removal of a caveat.

1. The plaintiff previously obtained orders from this court that the registered proprietors pay certain funds to the plaintiff and that the plaintiff recover possession of the property. 

1. The caveators, the defendants in this proceeding, lodged a caveat claiming an estate in fee simple over the property on the basis of an agreement dated 30 August 2010. The caveators claim to be ‘a beneficiary under implied agreement between Shaminda Sudharshanan Udayaratna and Sanduniranithra Udayaratna, the registered proprietors, and Maria Zelia Oliveria and Manuel Jose Oliveria, the caveators, arising from indirect financial contributions by the caveators to the acquisition of the land.’

1. The affidavit of Kristy Marie Pattison, sworn 14 March 2014 and filed in support of the application, discloses that the plaintiff exercised its powers under the Transfer of Land Act and took possession of the mortgaged property following default by the mortgagors. The property has been auctioned and the contract of sale entered into at that auction is about to settle.

1. There will be a shortfall suffered by the plaintiff on settlement. No funds will be available from the settlement to be disputed between the registered proprietor and the caveators as is foreshadowed by the caveat.

1. There was neither an appearance filed for the defendants nor did the defendants appear when the matter was called on at court. In relation to service of the proceedings, the caveat records that the address for service as "Cliffords Lawyers, level 1, 295B Springvale Road, Springvale, 3171". Contact was made by the plaintiff's solicitors with the office of Cliffords Lawyers in Springvale and the plaintiff's solicitors learned that Cliffords would accept service of the originating motion, the summons and the affidavit of Kristy Marie Pattison by email. The plaintiff's solicitors were provided, by Cliffords, with an email address for that purpose.

1. On 14 March 2014, the documents to be served were emailed to the address for service as agreed. Further, in a telephone conversation on 17 March 2014, Ms Pattison spoke with the solicitor having the carriage of the matter at Cliffords who confirmed receipt of the documents. However, the lawyer stated that she had been unable to make contact with the defendants. She provided the last known address of the caveators to Ms Pattison.

1. Ms Pattison has drawn my attention to Zampichelli vZampichelli[1] in which Kaye J stated:

Mr W Rimmer, who appears on behalf of the plaintiff, has drawn to my attention s 89(4) of the Transfer of Land Act and to the decision of Batt J in National Australia Bank Ltd v Dyer & Anor.[2] In that case his Honour, after giving the matter careful consideration, held that s 89(4) is an exception to rule 6.02(1) of Chapter 1 of the Rules, and thus it entitles a plaintiff, in an application such as that before me, to serve proceedings by post on the address nominated by caveator in the caveat.

His Honour’s decision has been followed by Ashley J in National Australia Bank Ltd v McFarlane[3], and has been accepted as being correct by Young CJ in equity in the Supreme Court of New South Wales in Makucha v Nothingtoohard Pty Ltd.[4]

In my respectful view, Batt J was correct in the National Australia Bank case and I shall accordingly follow that decision.

It therefore follows that the service on the first defendant has been properly made pursuant to s 89(4) of the Transfer of Land Act. I am comforted in that view by the fact that the plaintiff’s solicitor has spoken to the first defendant’s solicitor, who has advised him that the papers were received by him and they had been forwarded by the first defendant’s solicitor to the first defendant at his last known address.[5]

I agree, with respect, with Kaye J that service may properly be effected at the address nominated by the caveator in the caveat. As to the use of email, see 8(2)(b) of the Electronic Transactions (Victoria) Act 2000.

[1][2009] VSC 489, at [10]-[13].

[2](Unreported, Supreme Court of Victoria, 14 August 1996) BC9604041.

[3][2003] VSC 226, especially at paragraphs [9]-[12].

[4](2004) NSWSC 1038.

1. I am satisfied that proper service has been effected.  The defendants in this proceeding have neither filed an appearance nor appeared today. I should add that the plaintiffs have incurred further expense attempting without any success to serve the caveators at other addresses that came to their attention and affidavits of those attempts at service have been filed.

1. The onus lies on the caveators to prove that they have at least an arguable case for the interest claimed in the subject property. No material has been put before me to establish such an interest. Moreover, the material that has been placed before me by the plaintiff satisfies me that the plaintiff has acted properly in accordance with its registered interest in the property.

1. Finally, I would add that the caveat was lodged on 11 March 2011 and it would seem that the caveators have had ample opportunity in which to issue court proceedings to vindicate the grounds of claim that are specified in the caveat. However, that has not occurred and the plaintiff has been required to apply at the last moment for the summary removal of the caveat in order to enable settlement of a contract of sale to be completed. I am not satisfied that there is any serious question to be tried in the proceeding. The balance of convenience favours the removal of the caveat.

1. In the circumstances, I am satisfied that it is appropriate that the Registrar of Titles be ordered, pursuant to s 90(3) of the Transfer of Land Act 1958, to forthwith remove caveat number AH837040N lodged on behalf of the defendants on 11 March 2011 from the land in folio of the register volume 09813 folio 352.

1. I will also make ancillary orders in the usual form dispensing with the requirements of rules 5.03(1) and 8.02 and authorise the plaintiff to commence the proceeding by originating motion in Form C and I will order that the defendants pay the plaintiff's costs.

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