Campana v Censori (No 2) - [2023] VSC 557

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 03564

TONY CAMPANA	Plaintiff
v
ELENIA CENSORI	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2023
DATE OF JUDGMENT:	15 September 2023
CASE MAY BE CITED AS:	Campana v Censori (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 557

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TRUSTS – Declaration that defendant holds property on trust for plaintiff – Loan account in favour of defendant secured by registered mortgage over trust property – Whether defendant should be ordered to take all necessary steps to discharge mortgage – Order requiring defendant to take all necessary steps to discharge mortgage appropriate to give effect to declaration that defendant holds property on trust for plaintiff – Transfer of Land Act 1958 s 77.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G Parncutt	Kiatos & Co
For the Defendant	B Carew	Velos Lawyers

HIS HONOUR:

On 25 August 2023 the Court delivered judgment upholding the plaintiff’s claim for a declaration that the defendant holds 160 Union Street, Brunswick (‘160 Union Street’) on trust for his benefit. The Court also held that the defendant is liable to account to the plaintiff for rental income received from 160 Union Street. The defendant’s counterclaim was dismissed. The parties were directed to file written submissions on the costs of the proceeding and the form of order to give effect to the Court’s judgment. On 14 September 2023 the Court heard oral submissions from the parties directed to these issues.

The parties are in agreement as to the form of declaration to give effect to the Court’s finding that the defendant holds 160 Union Street on trust for the benefit of the plaintiff. The parties are also in agreement that the defendant should pay the plaintiff’s costs of the claim and counterclaim on a standard basis to be taxed in default of agreement. The parties also agree that the defendant is liable to pay the plaintiff the sum of $153,370.24 together with interest of $28,726.80 in respect of rental income received by the defendant.

The principal issue in dispute is whether, as contended by the plaintiff, the defendant should be ordered to take all steps necessary to discharge a mortgage over 160 Union Street in favour of the Commonwealth Bank of Australia (‘CBA Mortgage’). The CBA Mortgage secured the defendant’s Investment Home Loan Account. The Court has concluded that the plaintiff cleared the debit balance of this account on 6 March 2014.[1] As at 14 June 2023 the account had a debit balance of $180,958.75.[2] The plaintiff seeks an order which would require the defendant to clear this debit balance.
[1]Campana v Censori [2023] VSC 502, [141], [148].
[2]CB2106, Investment Home Loan Account Balance.

The defendant’s written submissions resist any order requiring her to clear the debit balance of the Investment Home Loan Account and to discharge the CBA Mortgage. The defendant opposes this order on the following basis.…

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: [2023] VSC 557
Decision Date: 15 September 2023

CaseChat Overview and Summary

The case of Campana v Censori (No 2) involved a dispute between the parties over the ownership of a property. The plaintiff sought a declaration that the defendant held the property on trust for them, along with an order that the defendant take all necessary steps to discharge a mortgage secured over the property. The defendant, who was in possession of the property, argued that the plaintiff was not entitled to the relief sought. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the defendant should be ordered to take all necessary steps to discharge the mortgage, given that the court had already declared that the defendant held the property on trust for the plaintiff.

The court considered the appropriate remedy in light of the declaration of trust. The court held that it was necessary to order the defendant to take all necessary steps to discharge the mortgage to give effect to the declaration that they held the property on trust for the plaintiff. The court noted that the Transfer of Land Act 1958, section 77, provided the statutory basis for the court to make such an order. The court found that the order was necessary to ensure that the trust over the property was properly implemented and to protect the plaintiff's interest in the property. The court held that the order was appropriate and should be made.

In conclusion, the court granted the plaintiff's request for a declaration that the defendant held the property on trust for them and ordered the defendant to take all necessary steps to discharge the mortgage secured over the property. The court's decision provided clarity on the appropriate remedy in cases where a declaration of trust is made, and a mortgage secured over the property needs to be discharged to give effect to the trust. The final orders of the court reflected the court's reasoning and provided a clear path forward for the parties to resolve the dispute over the property.

Orders