Bluescope Distribution Pty Ltd v Beerens

[2011] VCC 221

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL

GENERAL DIVISION

Case No. CI-10-01593

BLUESCOPE DISTRIBUTION PTY LTD	Plaintiff
(ACN 096 380 068)
v
THOMAS BEERENS	First Defendant
and
KIRSTEN FIONA BEERENS	Second Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2011 and 11 February 2011
DATE :	23 March 2011
CASE MAY BE CITED AS:	Bluescope Distribution Pty Ltd v Beerens
MEDIUM NEUTRAL CITATION:	[2011] VCC 221

REASONS FOR JUDGMENT

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Catchwords: GUARANTEE – charging clause over property – property charged with monies due under guarantee.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K J Naish	Turks Legal
For the Defendant	Mr M Wyles SC (on 27 January 2011)	Foster Nicholson Legal
and Ms R Kaye
HIS HONOUR:

1          The Court ordered by consent that the trial of this proceeding be listed with proceeding number CI-09-01729 (the first proceeding) between Bluescope Distribution Pty Ltd and Mr Thomas Beerens. That matter was heard last year and I delivered my judgment on 20 December 2010. At the commencement of the trial of the first proceeding, the parties agreed to adjourn this matter, it apparently being anticipated that the outcome of the first proceeding might determine its outcome.

2          Both matters were listed on 27 January 2011 when further argument was heard in the first proceeding concerning the calculation of the judgment sum and interest. On that occasion, Senior Counsel for the defendants requested time to consider what course was going to be followed in this proceeding.

3          When the first proceeding was again mentioned for further argument in respect of the calculation of interest on 11 February 2011, Counsel for the defendants in this proceeding stated that they did not consent to the relief sought by the plaintiff, but did not wish to lead any evidence and did not propose to put submissions in respect of that relief.

4          It was not suggested by the defendants in this proceeding that I should not apply the findings of fact and conclusions of law that I had reached in the first proceeding. Nor did the defendants seek a separate determination, or redetermination of those issues. In those circumstances, and in light of the directions given both prior to the trial of the first proceeding and subsequently, I apply the relevant findings and conclusions that I reached in the first proceeding.

5          This proceeding seeks a declaration that the interest of the first defendant, Mr Thomas Beerens, in land situate, and known as 26 Downes Avenue, Brighton, stands charged in favour of Bluescope, with payment of the monies secured by the Guarantee, being the monies described in paragraphs 13 and 15 of the Statement of Claim. In the context of the history of the first proceeding, I take it that that claim relates to the monies I have found due under the Guarantee and Indemnity. I act on that basis.

6          The cause of action relied on as entitling Bluescope to that relief is that the defendants, Thomas and Kirsten Beerens, were, at all material times, jointly registered as the proprietors of the property at 26 Downes Avenue, Brighton. The pleading then recites the allegations concerning the Guarantee and Indemnity the subject of the first proceeding and, in addition, alleges that:

“It was an express term of the Guarantee that, to secure payment of the Guaranteed Monies, the First Defendant charged with due payment of the Guaranteed Monies all of his present and future interests in real property and the First Defendant consented to the Plaintiff lodging a caveat or caveats to note such interests (‘the Charging Clause’).”

7          The pleading then recites the liability of Mr Thomas Beerens pursuant to the Guarantee and Indemnity, and then alleges that:

“By force and effect of the Charging Clause, the interest of the First Defendant in the Land stands charged in favour of the Plaintiff with payment of the Moneys secured by the Guarantee.

By Caveat lodged with the Registrar of Titles pursuant to section89 of the Transfer of Land Act 1958 (‘the Act’) and numbered AG080079J, the Plaintiff claims an equitable interest in the Land as chargee (‘the Caveat’).

The Registrar of Titles has given notice in writing dated 11 March 2010 to the Plaintiff pursuant to section 89A(e) of the Act that the Caveat will lapse on 20 April 2010 unless proceedings are commenced in a court of competent jurisdiction to substantiate the claim of the Plaintiff contained in the Caveat.”

8          On the basis of my findings in the first proceeding, I find that the first defendant, Mr Thomas Beerens, did execute the Guarantee containing the charging clause as pleaded.

9          On the basis of my findings in the first proceeding, I find that Mr Beerens is liable to pay to Bluescope, the judgment sums ordered to be paid in that proceeding pursuant to the Guarantee and Indemnity.

10        On the basis of that finding, I declare that the interest of Mr Thomas Beerens in 26 Downes Avenue Brighton stands charged in favour of Bluescope, with the payment of the judgment sums ordered to be paid in the first proceeding, the amount of which I will specify in the orders that I make.

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