Carnovale v Nardella (No 1)
[2018] VCC 2232
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-02302
| MARIA CARNOVALE | Plaintiff |
| V | |
| MICHAEL NARDELLA AND GIUSEPPINA NARDELLA AND REGISTRAR OF TITLES | First Defendant Second Defendant Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2018 | |
DATE OF RULING: | 6 July 2018 | |
CASE MAY BE CITED AS: | Carnovale v Nardella & Ors (No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2232 | |
RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Levine of Counsel | Maciel Pizzorno & Co |
| For the Defendant | Mr L. Randles, Solicitor | Randles Cooper Lawyers |
HIS HONOUR:
1 In this proceeding, commenced by Originating Motion, Ms Carnovale seeks orders for the summary removal of caveats over two pieces of real property, the registered proprietor of which is the first defendant, Mr Michael Nardella.
2 Mr Nardella has written a letter, which has been placed before me, indicating his knowledge of the proceeding and his desire not to have any active participation therein. He has, in the letter, asserted that the second defendant, Mrs Nardella, his estranged wife, does not have any present existing interest in the relevant pieces of real estate.
3 The plaintiff has lodged caveats relative to an interest which she says she has as chargee under loan arrangements which she entered into with Mr Nardella.
4 Mrs Nardella, the second defendant, has commenced proceedings in the Federal Circuit Court seeking a property settlement as against Mr Nardella. I am told that the final hearing of the application for a property settlement is fixed in the Federal Circuit Court for a date in October of this year.
5 Meanwhile, Mrs Nardella, the second defendant, has lodged caveats ranking in time prior to Ms Carnovale’s caveat or caveats, claiming an interest as beneficiary of an implied resulting or constructive trust. Ms Carnovale seeks orders for the removal of those caveats.
6 Mr Randles, who represents Mrs Nardella, has sought an adjournment of the proceeding. He says that his client requires at least a further 28 days, or four weeks, to examine the issues involved. In a short affidavit in opposition to the present application, Mrs Nardella says that it is her belief that the arrangements between Ms Carnovale and Mr Nardella are collusive and the recovery of a judgment in this Court in favour of Ms Carnovale was likewise likely to delay Mrs Nardella’s achievement of a just property settlement with her estranged husband.
7 One further element in the narrative is to note that, under the loan arrangements relied on by Ms Carnovale (she recovered a default judgment — that is, a judgment in default of appearance — against Mr Nardella) by order of Judge Aileen Ryan, she obtained a declaration that she enjoys an interest as chargee in the relevant properties.
8 Mr Levine, appearing on behalf of the plaintiff, opposes the grant of any adjournment. He submits, first, that the summons and supporting material has been in the possession of the second defendant, Mrs Nardella, for over a month and, in those circumstances, she has had ample opportunity to prepare a response. In addition, he says that the solicitors acting for her at the time of lodgement of the caveats under attack should have acquainted themselves with the factual basis upon which it was asserted that their client was beneficiary of an implied resulting or constructive trust. Therefore, there can be no good reason why an adjournment ought be granted. He took me to the application for property settlement which had been filed in the Federal Circuit Court and noted that it was an application for a property settlement simpliciter; that is, it entailed no allegation and sought no finding of the pre-existence of an implied resulting or constructive trust.
9 Mr Levine said that he would, if the adjournment were not granted, take me to authority from the Supreme Court to the effect that the prospect of obtaining a property settlement order from a court in the matrimonial jurisdiction was an expectancy and did not, before the Court made its order, establish any pre-existing property claim. Therefore, said Mr Levine, judged by the nature of the proceeding which Mrs Nardella has commenced, there is no reason to think that she has, or will have, any basis for alleging the existence of any of the forms of trust referred to in her caveat. He noted that the affidavit which she has put on alleges no facts which might be thought to be supportive of the existence of any such trust. Mr Levine conceded that there was no particular crunch point as far as his client was concerned. This was not a situation where as chargee, as found by an order of the Court, there was a fixed judicial sale about to take place which would be frustrated by the existence of the second defendant’s caveats. However, he said, grant of this adjournment, unjustified as it was because of the already ample time that the second defendant has had to prepare, would postpone the plaintiff’s ability to recover the monies owed to her and, insofar as there was a threat that she might become in some way embroiled in the proceedings in the Federal Circuit Court, could also be regarded as unfair and oppressive to her.
10 Mr Levine said that the default judgment entered following the orders and findings of Judge Aileen Ryan were judgments of the Court which could be impeached generally only by proof of fraud in their being obtained, which was a very high hurdle to ov’erleap, and therefore I should give, as I understood his submission, little or no credence to Mrs Nardella’s suspicions about collusion between the plaintiff and her estranged husband.
11 The question of whether an adjournment ought be granted in these circumstances is therefore quite a difficult one. Generally, one might have said that where a party asserts the need further to investigate his or her case, and seeks a relatively short adjournment in circumstances where there is no particular event threatening as far as the other party is concerned, one finds a scenario where an adjournment would generally be granted. The reason why I am doubtful about seeing this proceeding in that light is that there was not a ghost of any basis for any of the alleged trusts to be found in the affidavit which Mrs Nardella has filed, and her counsel, Mr Randles, indicated a willingness to investigate the possibility that facts which might be supportive of a trust could be investigated, but seems to have little enthusiasm for the task.
12 Mrs Nardella’s claim seems to be little more, or indeed no more, than an application for a prospective property adjustment in her favour, which, as I understand the legal principles, would not be supportive of the existence of any property rights in her favour in the relevant property as of now.
13 With some hesitation, however, I am inclined to give the adjournment. Despite the unpromising situation that I have described, there remains the possibility that the second defendant, Mrs Nardella, may have a basis for asserting one of the three alleged trusts which those advising her have not really turned their minds to. It is a possible interpretation of the way matters have been presented to me that Mrs Nardella and her advisers have, if you will, fixated upon the prospective property settlement scenario which the Federal Circuit Court certainly can bring into existence and not really investigated at all any matters which might have been supportive of some pre-existing rights. A short adjournment can subject that hypothesis to the acid test and, as far as I can see, unless something supportive of a present existing trust or trusts is offered on the adjourned date, this application for removal of caveats has very good prospects of success.
14 Accordingly, with great hesitation, I grant the adjournment which Mr Randles sought.
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