Decola and Decola (No 2)
[2021] FamCA 208
FAMILY COURT OF AUSTRALIA
| DECOLA & DECOLA (NO. 2) | [2021] FamCA 208 |
| FAMILY LAW – CAVEAT REMOVAL – under s 90(3) of the Transfer of Land Act – review of applicable authorities – order made for caveats to be removed. |
| Bankruptcy Act 1966 (Cth), s 153A Transfer of Land Act 1958 (Vic), ss 4, 90(3) |
| BCA Asset Management Group Pty Ltd v Sand Solutions (Vic) Pty Ltd & Ors [2021] VSC 177 Bell v Graham [2000] VSC 142 Bing & Bing (No 2) [2009] FamCA 709 Decola & Decola [2020] FamCA 884 Goldstraw v Goldstraw [2002] VSC 491 Hacker Nominees (NT) Pty Ltd v Sperrer (2010) 245 FLR 28 Hermiz v Yousif [2019] VSC 160 Jacem Pty Ltd v RMBL Investments Ltd [2010] SADC 97 Jerambak Holdings Pty Ltd v Austral-Asean Pty Ltd (2005) 147 NTR 1 Kuipers v Harrington (No 2) [2019] VSC 190 LI v Wang [2020] SADC 97 Pander v Popa [2013] FCCA 2177 Phillips v Southage Pty Ltd [2014] VSCA 17 Re Sabri; ex parte Brien (1997) FLC 82-732 Royal Melbourne Institute of Technology v Galloway [2020] VSC 575 Sledge & Pinder [2017] FCCA 3051 Tailor & Tailor [2019] FamCA 383 Talacko v Talacko [2009] VSC 349 Toffler & Eggers [2014] FCCA 764 Young v Young [2011] VSC 188 |
| APPLICANT: | Mr Decola |
| RESPONDENT: | Ms Decola |
| FIRST INTERVENOR: | Mr A (as liquidator of CCV Australia Pty Ltd (ACN …) (in liquidation)) |
| SECOND INTERVENOR: | B Pty Ltd (ACN …) (in liquidation) |
| THIRD INTERVENOR (TRUSTEE-IN-BANKRUPTCY): | Mr C as Trustee of Bankrupt Estate of Mr Decola |
| FOURTH INTERVENOR: | Mr P (as liquidator of BB Pty Ltd) ACN … |
| FIFTH INTERVENOR: | BB Pty Ltd (in liquidation) ACN … |
| FILE NUMBER: | MLC | 8877 | of | 2018 |
| DATE DELIVERED: | 15 April 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 12 & 14 April 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Mr J. Werner (14 April 2021) |
| SOLICITOR FOR THE RESPONDENT: | KHQ Lawyers |
| COUNSEL FOR THE FIRST INTERVENOR: | Not applicable |
| SOLICITOR FOR THE FIRST INTERVENOR: | Mills Oakley Lawyers |
| COUNSEL FOR THE SECOND INTERVENOR: | Not applicable |
| SOLICITOR FOR THE SECOND INTERVENOR: | Mills Oakley Lawyers |
| COUNSEL FOR THE THIRD INTERVENOR (TRUSTEE-IN-BANKRUPTCY): | Not applicable |
| SOLICITOR FOR THE THIRD INTERVENOR (TRUSTEE-IN-BANKRUPTCY): | Coulter Roache Lawyers |
| COUNSEL FOR THE FOURTH INTERVENOR: | Not applicable |
| SOLICITOR FOR THE FOURTH INTERVENOR: | Force Legal |
| COUNSEL FOR THE FIFTH INTERVENOR: | Not applicable |
| SOLICITOR FOR THE FIFTH INTERVENOR: | Force Legal |
Orders
Pursuant to s 90(3) of the Transfer of Land Act the Registrar of Titles is hereby directed to forthwith remove caveat … dated 23 July 2018 from certificate of title volume … folio … in relation to the land known and described as EE Street, Suburb V in the State of Victoria.
Pursuant to s 90(3) of the Transfer of Land Act, the Registrar of Titles is hereby directed to forthwith remove caveat … dated 9 June 2020 from certificate of title volume … folio … in relation to the land known and described as Unit FF Street, Suburb H in the State of Victoria.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Decola & Decola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8877 of 2018
| Mr Decola |
Applicant
And
| Ms Decola |
Respondent
And
| Mr A (as liquidator of B Pty Ltd (ACN …) (in liquidation) |
First Intervenor
And
| B Pty Ltd (ACN …) (in liquidation)) |
Second Intervenor
And
| Mr C as Trustee of Bankrupt Estate of Mr Decola |
Third Intervenor (trustee-in-bankruptcy)
And
| Mr P (as liquidator of BB Pty Ltd) ACN … |
Fourth Intervenor
And
| BB Pty Ltd (in liquidation) ACN … |
Fifth Intervenor
EX TEMPORE REASONS FOR JUDGMENT
On 12 April 2021, on the return of directions in this proceeding, counsel then appearing informed me that an in-principle resolution of this entire litigation had been reached, subject to the consideration of the discrete issue of caveat removal.
On probing for details about the caveat issue counsel informed me that the applicant husband, an undischarged bankrupt, had lodged two caveats. The first, lodged in dealing number …, was registered against certificate of title volume … folio …. The second caveat, lodged in dealing number …, was registered against certificate of title volume … folio …. The relevant parcels of land affected by each caveat were the land known and described as EE Street, Suburb V and the land known as FF Street, Suburb H, respectively. In each caveat, the husband as caveator, claimed an interest generically described as “implied, resulting or constructive trust.”
On 12 April 2021 the husband was not separately represented. However, the trustee-in-bankruptcy of the applicant’s bankrupt estate was represented.
Very little insight could be offered by the legal representatives about the nature of the interest asserted by the applicant as supporting the two caveats. However, I was informed that settlements of conveyancing transactions were being held up by the two caveats remaining against the two certificates of title with the consequence that the resolution of this litigation was being held up. At my request, a joint letter was sent to the applicant on 12 April 2021. That letter was signed by the solicitors for the wife as first respondent, the first and second intervenors, the third intervenor and the fourth and fifth intervenors. Relevantly distilled, that letter contained the following passage –
In the event that we do not receive written confirmation from you that you will do all things necessary to remove the caveats by 4.00pm tomorrow Tuesday 13 April 2021, we put you on notice that we will be seeking orders of the Court at 9.00am on Wednesday 14 April 2021, as follows:
1.That pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic), the Registrar of Titles for Victoria be and is hereby directed to remove caveats numbered … and … from the title to the following real properties:
a.EE Street, Suburb V, Victoria, being the land more particularly described in Certificate of Title Volume … Folio …; and
b.FF Street, Suburb H, Victoria, being more particularly the land more particularly described in Certificate of Title Volume … Folio ….
We confirm that this is an open letter and will be produced to the Court in support of any such application.
The applicant took no steps to support his caveats, whether under the Transfer of Land Act or otherwise. Instead, a partner of an accountancy practice called Stannards sent the wife’s solicitor an email dated 12 April 2021 at 7:36pm. The relevant passage of that email was as follows –
I advise that Mr Decola does not consent to removal of caveats on the two properties referred to. Our client feels aggrieved by these proceedings and believes he is a victim of wrong doing. In fact he seeks relief from these proceedings.
Three things were significant from that communication. First, it was written by an accountant and not a legal practitioner. Second, no attempt was made to articulate the caveatable interest asserted. Third, no intimation was given to the effect that the caveator intended to commence any form of application to substantiate the caveatable interest asserted. Instead, the caveator’s accountant said that the caveator felt that he was a victim of wrong doing. That was a particularly curious contention having regard to the detailed excursus that was devoted to the financial intrigues in this case.[1]
[1]Decola & Decola [2020] FamCA 884.
The applicant’s trustee-in-bankruptcy affirmed an affidavit on 13 April 2021. In it Mr C stated that following the conduct of investigations into the husband’s examinable affairs, creditors of the husband’s bankrupt estate stood at $9,306,205 of which creditors in value to the extent of $5,156,587 have proved in the husband’s bankrupt estate. The total unsecured creditors in the statement of affairs aggregated a different amount. The trustee-in-bankruptcy also stated in his affidavit that the bankruptcy will not be annulled pursuant to s 153A of the Bankruptcy Act by reason of the fact that there are insufficient assets to pay creditors in full.
Before me on 14 April 2021 all parties supported the making of orders under s 90(3) for the removal of the two caveats.
In debate on 14 April 2021 I brought to the attention of counsel the leading authority on caveat removal orders pursuant to s 90(3) of the Transfer of Land Act. In Goldstraw v Goldstraw,[2] Dodds-Streeton J held that a caveator must discharge the onus of establishing a serious question to be tried as to the estate or interest claimed in the caveat. Her Honour also addressed the need for a caveator to have a proper purpose in lodging a caveat and that a collateral purpose in lodging a caveat so as to acquire a bargaining chip is to be discouraged. The observations of Dodds-Streeton J in Goldstraw v Goldstraw have been universally embraced, not only in jurisprudence in the Supreme Court of Victoria[3] but also in jurisprudence of other Australian states possessed of the Torrens system of land registration[4] as well as in decided cases in this court[5] and in the Federal Circuit Court of Australia.[6]
[2] [2002] VSC 491.
[3] Talacko v Talacko [2009] VSC 349, Young v Young [2011] VSC 188, Phillips v Southage Pty Ltd [2014] VSCA 17, Hermiz v Yousif [2019] VSC 160, Kuipers v Harrington (No 2) [2019] VSC 190, Royal Melbourne Institute of Technology v Galloway [2020] VSC 575 and BCA Asset Management Group Pty Ltd v Sand Solutions (Vic) Pty Ltd & Ors [2021] VSC 177 to name but a few.
[4] Jerambak Holdings Pty Ltd v Austral-Asean Pty Ltd (2005) 147 NTR 1, Hacker Nominees (NT) Pty Ltd v Sperrer (2010) 245 FLR 28, Jacem Pty Ltd v RMBL Investments Ltd [2010] SADC 97 and LI v Wang [2020] SADC 97.
[5]Bing & Bing (No 2) [2009] FamCA 709 and Tailor & Tailor [2019] FamCA 383.
[6] Pander v Popa [2013] FCCA 2177, Toffler & Eggers [2014] FCCA 764 and Sledge & Pinder [2017] FCCA 3051.
This court is a court of competent jurisdiction for the purposes of s 90(3) of the Transfer of Land Act as defined in s 4 of that Act.
Section 90(3) permits a party adversely affected by a caveat to apply to the court for an order against the caveator requiring the caveator to remove the caveat and the court may make such order as it considers appropriate.
In this case it was readily apparent to me that the caveator made no attempt whatsoever to support the caveats lodged. In Goldstraw v Goldstraw Dodds-Streeton J examined the nature of the trust that was there asserted as purporting to support the relevant caveat. However, her Honour pointed out that the mere fact that a party has brought a proceeding in the Family Court of Australia does not entitle that party to claim an interest in land (citing Re Sabri; ex parte Brien[7]). Her Honour also relied on the decision of Kellam J in Bell v Graham[8] to the effect that a relationship of marriage alone does not create a caveatable interest in land, relevantly there pursuant to a constructive trust being one of the alleged grounds said to support the caveats in this case.
[7] (1997) FLC 82-732.
[8] [2000] VSC 142.
In my view the caveator failed to discharge the burden that the authorities demonstrate fell to him to discharge in order to support his two caveats. Both caveats must be removed forthwith.
I make the following orders –
(1)pursuant to s 90(3) of the Transfer of Land Act the Registrar of Titles is hereby directed to forthwith remove caveat … dated 23 July 2018 from certificate of title volume … folio … in relation to the land known and described as EE Street, Suburb V in the State of Victoria; and
(2)pursuant to s 90(3) of the Transfer of Land Act, the Registrar of Titles is hereby directed to forthwith remove caveat … dated 9 June 2020 from certificate of title volume … folio … in relation to the land known and described as FF Street, Suburb H in the State of Victoria.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 15 April 2021.
Associate:
Date: 15 April 2021
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