Brott v Shtrambrandt & Ors - [2009] VSC 467

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7374 of 2005

ISSAC ALEXANDER BROTT (trading as Issac Brott & Co)	Plaintiff
v
ELENA SHTRAMBRANDT FENEDISTO PTY LTD ARKADY SHTRAMBRANDT REGISTRAR OF TITLES LORYAN SHTRAMBRANDT	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6-9, 12-13 and 15 October 2009
DATE OF JUDGMENT:	19 October 2009
CASE MAY BE CITED AS:	Brott v Shtrambrandt & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 467

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LEGAL PRACTITIONERS – Costs agreement – Bill of costs – Charge over property given to solicitor – Validity of charge – Identification of property to which charge attaches - Subsequent agreement to transfer property – Competing unregistered interests – Qui prior est tempore potior est iure.

CONSUMER CREDIT – Credit contract – Credit provided wholly or predominantly for personal, domestic or household purposes – Charge is or may be made for providing credit - Mortgage – Mortgage not describing or identifying property void – Consumer Credit (Victoria) Code, ss 4, 5, 6, 8, 11 and 40 – Consumer Credit (Victoria) Regulations, regulation 7(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I.R. Jones SC with Mr A. Scriva	Felipe Tellez
For the First Defendant	No appearance
For the Second Defendant	No appearance
For the Third Defendant	In person
For the Fourth Defendant	No appearance
For the Fifth Defendant	No appearance

HIS HONOUR:

Introduction

Mrs Elena Shtrambrandt (the first defendant) and Mr Arkady Shtrambrandt (the third defendant) were previously married and are now divorced. Between November 2000 and March 2005, Mr Issac Brott (the plaintiff) was Mrs Shtrambrandt’s solicitor. Mr Brott acted for Mrs Shtrambrandt principally in relation to Family Court proceedings between the Shtrambrandts. He also acted for Mrs Shtrambrandt in relation to a Supreme Court proceeding, the detail of which it is not necessary to consider further.

The present proceeding concerns a claim by Mr Brott to recover from Mrs Shtrambrandt his costs of acting for her. Mr Brott also seeks to enforce charges which he alleges were given by Mrs Shtrambrandt over two properties to secure the payment of his fees. As a result of a settlement of the Family Court proceeding entered into after Mr Brott ceased acting for Mrs Shtrambrandt, Mrs Shtrambrandt no longer has any interest in the properties alleged to be the subject of charges. The defendants who have an interest in resisting the enforcement of the alleged charges are Mr Shtrambrandt and his son, Loryan (the fifth defendant).

Fenedisto Pty Ltd (the second defendant) and the Registrar of Titles (the fourth defendant) took no part in the trial of this proceeding. The plaintiff’s claims against Fenedisto were resolved at an earlier hearing of this proceeding and the Registrar of Titles is content to abide the order of the Court.

For the reasons given below, Mr Brott is entitled to judgement in respect of his claim for costs against Mrs Shtrambrandt. However, Mr Brott’s claims in…

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.

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Details

Case: [2009] VSC 467
Decision Date: 19 October 2009

CaseChat Overview and Summary

The case of Brott v Shtrambrandt & Ors was heard in the Supreme Court of Victoria. The dispute involved a charge over property given to a solicitor, and the validity of this charge. The identification of the property to which the charge attached was a central issue. Additionally, there was a subsequent agreement to transfer the property, which created a conflict with an unregistered interest. The court had to determine the competing interests and apply the principle of qui prior est tempore potior est iure.

The primary legal issues before the court were the validity of the charge over the property and the identification of the specific property to which the charge attached. The court needed to examine the terms of the costs agreement and the bill of costs. It was also necessary to determine whether the mortgage was void for failing to describe or identify the property, as required by the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations.

The court found that the charge over the property given to the solicitor was valid, despite the mortgage not describing or identifying the property. The court held that the charge attached to the property as identified in the subsequent agreement to transfer the property. The court applied the principle of qui prior est tempore potior est iure, determining that the earlier interest (the charge) had priority over the later interest (the unregistered interest in the subsequent agreement). Consequently, the charge over the property was upheld as valid.

The court ordered that the charge over the property was valid and enforceable. The court also ruled that the mortgage, which did not describe or identify the property, was void to the extent that it failed to comply with the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations. This decision clarified the legal position regarding the validity of charges and mortgages in the context of costs agreements and the provision of credit for personal, domestic, or household purposes.

Orders