Calderone v Perpetual Trustees Victoria Ltd - [2007] VSC 155

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5886 of 2007

ANTIONETTA CALDERONE	Plaintiff
v
PERPETUAL TRUSTEES VICTORIA LTD ABN 47 004 027 258	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2007
DATE OF JUDGMENT:	18 May 2007
CASE MAY BE CITED AS:	Calderone v Perpetual Trustees
MEDIUM NEUTRAL CITATION:	[2007] VSC 155

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PRACTICE AND PROCEDURE – Application for interlocutory order restraining mortgagee from taking possession of property pursuant to judgment for possession – Claimed priority of interest as tenant in possession under s 42(2)(e) Transfer of Land Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Trichardt	Nanscawen Lawyers
For the Defendant	Mr S Marantelli	Hall & Wilcox

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HER HONOUR:

The application

The plaintiff (“Mrs Calderone”) has commenced a proceeding by writ filed on 27 April 2007 seeking relief recognising her interest as a tenant in possession of the property at 63 Euston Road, Hughesdale, Victoria (“the property”) under s 42(2)(e) of the Transfer of Land Act 1958 (“the Act’). Australvic Property Management Pty Ltd (“Australvic”) is registered as the proprietor of the property. The defendant (“Perpetual”) is a registered mortgagee. Perpetual has obtained an order for possession of the property against Australvic and has instructed the Sheriff to execute a warrant for possession of the property. On 26 April 2007, the Sheriff’s Office gave Mrs Calderone a Final Notice to vacate the property.

By a summons issued on 27 April 2007, Mrs Calderone seeks an injunction restraining Perpetual from taking possession of the property before the adjudication of her claim. She has been granted an interim injunction in the terms of the interlocutory order sought, pending the Court’s determination in relation to her application.

The Act

Section 42 of the Act was in the following terms at all relevant times :

42. Estate of registered proprietor paramount
(1)Notwithstanding the existence in any other person of any estate or interest … which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except—
(a)the estate or interest of a proprietor claiming the same land under a prior folio of the Register;
(b)as regards any portion of the land that by wrong description of parcels or boundaries is included in the folio of the Register or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.

(2)Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to— …
(e)the interest (but excluding any option to purchase) of a tenant in possession of the land;

Material

Mrs Calderone has sworn affidavits in support of her application on 27 April and…

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: [2007] VSC 155
Decision Date: 18 May 2007

CaseChat Overview and Summary

In the matter of Calderone versus Perpetual Trustees Victoria Limited, the respondent sought an interlocutory order to prevent the mortgagee from taking possession of a property following a judgment for possession. The applicant, Calderone, argued that they held a priority interest as a tenant in possession under section 42(2)(e) of the Transfer of Land Act 1958. The court was tasked with determining whether the applicant had established a valid claim to priority of interest and whether an interlocutory order should be granted to restrain the mortgagee from executing the judgment for possession.

The legal issues before the court included whether the applicant had a valid claim to priority of interest as a tenant in possession, as per section 42(2)(e) of the Transfer of Land Act 1958. Additionally, the court had to consider whether an interlocutory order should be granted to restrain the mortgagee from taking possession of the property in light of the applicant's claimed priority interest. The court had to balance the applicant's rights as a tenant in possession against the rights of the mortgagee to enforce the judgment for possession.

In rendering its decision, the court found that the applicant had not demonstrated a valid claim to priority of interest as a tenant in possession under section 42(2)(e) of the Transfer of Land Act 1958. Consequently, the court declined to grant the interlocutory order that would have restrained the mortgagee from taking possession of the property. The court emphasised the importance of the applicant providing clear evidence to support their claim to priority of interest, which was not forthcoming in this instance. As a result, the court dismissed the application and the mortgagee was free to proceed with the execution of the judgment for possession.

Orders