Demasi v Demasi
[2013] VSC 27
•6 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 00382 of 2013
| CARMELA DEMASI (by her Appointed Administrator Vincenzo Demasi) | Plaintiff |
| v | |
| COSIMO ANTHONY DEMASI | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
---
JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2013 | |
DATE OF JUDGMENT: | 6 February 2013 | |
DATE OF REASONS: | 8 February 2013 | |
CASE MAY BE CITED AS: | Demasi v Demasi & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 27 | |
---
CAVEAT – Admission as to non-existence of interest asserted in caveat – Order for removal of caveat – Adjournment refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Barr | Cinque Oakley Senior |
| For the First Defendant | Appeared in person | |
| For the Second Defendant | No appearance |
HER HONOUR:
On 6 February 2013, I refused the application by the first defendant, Mr Cosimo Demasi, for an adjournment of this application for the removal of his caveat, dated 1 November 2012 (“the caveat”) in relation to the property at 1 Cowra Avenue, Mildura, Victoria which is described in Certificate of Title Volume 9687 Folio 973 (“the property”). I also ordered that the caveat be removed. These are my reasons.
The plaintiff (“Mrs Demasi”) and her late husband Mr Francesco Demasi (“Mr Demasi”) were joint registered proprietors of the property until Mr Demasi’s death on 23 May 2003. The property was their matrimonial home. Mrs Demasi continued to live at the property after her husband’s death until she was admitted to nursing home care in 2011. She is 89 years old and suffers from dementia. She now resides in a nursing home at Ballarat. Like her late husband, Mrs Demasi had little formal education and speaks little English. She was educated to the equivalent of grade two level in Italy and left school at the age of seven. Her son, Mr Vincenzo Demasi, is the sole administrator of her estate under an order made by the Victorian Civil and Administrative Tribunal (“VCAT”) on 3 November 2011.
Mrs Demasi needs what Mr Vincenzo Demasi describes as “tens of thousands of dollars” for a bond to secure a permanent place at the Ballarat nursing home. As a permanent resident, she would avoid paying the much higher “casual” fees payable by those who are not permanent residents. Essentially, she has one asset, the property. Otherwise, she receives a Government pension.
On 18 September 2012, VCAT authorised Mr Vincenzo Demasi to sell the property to obtain the money required by his mother for the bond. He entered into a contract for the sale of the property for $235,000. The contract was signed by the purchasers on 9 December 2012 and it provides for settlement on 21 January 2013. Settlement has not taken place because of the caveat. The solicitors acting for Mr Vincenzo Demasi and his mother in the sale transaction (and in this application) have reason to believe that the contract will be rescinded if the caveat is not removed. That likelihood is not disputed by Mr Cosimo Demasi.
Background
Mrs Demasi’s family were concerned about her state of health and her dementia from early in 2010. On 28 July 2010, Mr Vincenzo Demasi and his brothers, Mr Cosimo Demasi and Mr Ilario Demasi, were appointed joint administrators of her estate by VCAT.
Mr Cosimo Demasi moved back to live with his mother in 2011. Mr Vincenzo Demasi raised concerns at VCAT about monies which Mr Cosimo Demasi appeared unable to account for. It was at that stage that Mr Vincenzo Demasi was appointed sole administrator of their mother’s estate. I make it clear that I make no finding about the allegations in question and draw no inference in this matter as a result of them.
It appears from the material filed in relation to the application that there is an unfortunate background history of family conflict. Indeed, Mr Cosimo Demasi gives two reasons for lodging the caveat in his affidavit sworn on 4 February 2013. His first is to the effect that, in April 2012, an altercation took place when Mr Vincenzo Demasi came to the property to inform him that he would be the sole administrator. According to Mr Cosimo Demasi, police were called by Mr Vincenzo Demasi, who claimed that Mr Cosimo Demasi had threatened him. Mr Cosimo Demasi’s second reason for lodging the caveat is that, in October 2012, he discovered that a Bendigo Bank mortgage over the property had been discharged by that bank, without him being notified. He had “placed a Caveat over the house to find out what had gone on behind [his] back”.[1]
[1]Affidavit of Cosimo Demasi sworn on 4 February 2013 [40].
There are allegations and counter-allegations in the materials. Mr Vincenzo Demasi deposes that the Bendigo Bank mortgage to which Mr Cosimo Demasi refers was entered into on 13 February 2003 as security for a loan to Mr Cosimo Demasi, his parents and his then wife. Mr Vincenzo Demasi commenced proceedings in the County Court in 2002[2] seeking to have the Bendigo Bank mortgage in relation to the property set aside. He claimed that it would be unconscionable for the bank to rely upon the mortgage for reasons which included the undue influence of Mr Cosimo Demasi over his parents and the allegation that the loan and subsequent advances secured by the mortgage had been for the benefit of Mr Cosimo Demasi and his wife. It was alleged that they had benefited from the purchase of a property in New South Wales using some of the borrowed funds and from a business overdraft provided by the bank. The proceeding was settled and the mortgage discharged.
[2]County Court proceeding No CI 1202703 between Carmela Demasi by her appointed administrator Vincenzo Demasi as plaintiff and Bendigo & Adelaide Bank Ltd (CAN 068 049 178) as defendant.
There are other contentious issues, including the fact that Mrs Demasi now lives in Ballarat, where Mr Vincenzo Demasi resides, and Mr Cosimo Demasi is aggrieved about that. In particular, there is a dispute as to who has done what for Mr and Mrs Demasi over the years. Mr Cosimo Demasi also alleges that he and his mother have made “more losses” by reason of the sale of the property for $235,000. He claims to have “organised” a sale of the property for $280,000 at some time before VCAT authorised Mr Vincenzo Demasi to sell the property on 18 September 2012.
Mr Cosimo Demasi also raises an ongoing dispute with his cousin Mr Frank Demasi, about property and other financial matters. He deposes that a firm of New South Wales solicitors are involved in “sorting out” the matter and nominates the person handling it for him at that firm.
The application
Mrs Demasi applied for the removal of the caveat under s 90(3) of the Transfer of Land Act 1958. In determining such an application, the Court applies the same tests as those applicable to an application for an interlocutory injunction.[3]
[3]Eng Mee Yong v Letchumanan [1980] A C 331; Piroshenko v Grojsman & ors [2010] VSC 240, [7] (Warren CJ).
Accordingly, Mr Cosimo Demasi was obliged to establish that his claim to an interest in the land gave rise to a serious question to be tried and that the balance of convenience favoured the retention of the status quo, permitting the caveat to remain in place until the issue of competing interests in the land is resolved at a trial. The claimed interest was that described in the caveat.
Claimed interest in the caveat
In the caveat, Mr Cosimo Demasi claims “an interest as chargee”. He states the grounds for his claimed interest as follows:
Pursuant to a loan agreement between the caveator and the registered proprietor, Carmela Demasi, dated 13-02-2003.
As I have said, in his affidavit in opposition to the removal of the caveat, Mr Cosimo Demasi gives two different reasons for lodging it. Neither would give rise to an interest in the property of the type described in the caveat.
It is the interest identified and claimed in the caveat which must be supported by evidence. Mr Cosimo Demasi frankly conceded to the Court that the alleged 2003 loan agreement under which he claimed an interest in the property as chargee in the caveat, did not exist. That meant that he could not satisfy the Court that his claim gave rise to a serious question to be tried as to the alleged interest or its effects. That is why his application for an adjournment failed and the order for the removal of the caveat was made.
What Mr Cosimo Demasi does say in his affidavit in opposition to the application is that, in the presence of his brother, “Joe”, a Mr Steven Smith and Mr and Mrs Keleser, the vendors of the property, he paid the sum of $10,000 as a holding deposit in relation to the purchase of the property on 19 December 1996.[4] He states that his brother, Mr Joseph Demasi, agrees with him “regarding the money [he] put into buying the house”.[5]
[4]Affidavit of Cosimo Demasi sworn on 4 February 2013 [19].
[5]Ibid [44].
During the hearing, Mr Cosimo Demasi also referred to the sum of $14,000 as an amount sought in relation to the payment of the deposit. I note that that was consistent with his solicitors’ 17 January 2013 response to Mr Vincenzo Demasi’s solicitors’ challenge to the caveat and their request for a copy of the loan agreement to which it refers. Prestige Solicitors & Associates (whose address is given as Mr Cosimo Demasi’s address for service in the caveat) wrote as follows to Mr Vincenzo Demasi’s solicitors on that day:
We are instructed to respond as follows:
1.Your clients conduct leading up to the sale of our clients mothers property was done without the consent of the family members and although he is the administrator he has created a family dispute by his actions nevertheless he is fully aware of our clients interests in the property (sic);
2.Your client is aware that our client paid the initial deposit in the purchase of this property;
3.Your client is aware that payments were made into the mortgage of the property;
4. Our client does not agree to withdraw the caveat;
5. Our client proposes the following:
(a)Our office will attend to settlement to collect a cheque in the amount of $30,000, being the amount payable to our client, this amount is the initial $14,000 deposit and the balance is the repayment of the mortgage and interest;
(b)At settlement our client will hand to your settlement agent a duly executed withdrawal of caveat.
Mr Vincenzo Demasi’s solicitors disputed the allegations in their letter of 18 January 2013. Nevertheless, they proposed settlement of the dispute on the basis that they would retain $30,000 in trust from the sale proceeds, pending resolution of the disputed claim. Otherwise, they stated, proceedings would be instituted to remove the caveat and costs would be sought.
On 18 January 2013, Mr Cosimo Demasi handed to Mr Vincenzo Demasi an invoice dated 19 December 1996 and a letter dated 22 December 2012 from an estate agent, Stephen Park Smith, who claimed to have witnessed the payment. The invoice referred to payment of a holding deposit of $10,000 by Mr Cosimo Demasi to the vendor of the property. Copies of this invoice and the letter, are exhibited to both Mr Vincenzo Demasi’s affidavit and that of Mr Cosimo Demasi.
The settlement offer was rejected and, on 21 January 2013, Mr Cosimo Demasi’s solicitors wrote advising that the caveat would only be removed if $30,000 were paid to Mr Cosimo Demasi at the settlement of the sale of the property.
At the hearing of the applications, Mr Vincenzo Demasi undertook to the Court to deposit $14,000 from the proceeds of the sale of the property into his solicitors’ trust account, pending resolution of the dispute about that amount. Mr Cosimo Demasi demanded payment of the sum of $30,000. He sought repayment of the amount contributed as a holding deposit in relation to the property on 19 December 1996, an amount representing “growth on his investment” and compensation for his purchases of a shed erected at the property and some tiles used there.
Mr Cosimo Demasi also expressed the wish to adduce evidence from his brother, Mr Joseph Demasi, apparently in relation to his contribution to the purchase. His brother had been unable to appear at the hearing on relatively short notice, as he lives in Mildura.
Whether or not any contribution to the purchase price of the property, or any other payments or assistance given to his parents by Mr Cosimo Demasi might have given rise to an interest or interests in the property, he accepted that there was no loan agreement dated 13 February 2003 under which he had the claimed interest in the property as a chargee. Further, there was no evidence before the Court, nor any foreshadowed (from Mr Joseph Demasi or anyone else), to indicate the existence of such an agreement or interest.
As a result, Mr Cosimo Demasi had failed to establish that there was a serious question to be tried in relation to his claimed interest as a chargee under the alleged loan agreement to which the caveat refers.
Mr Cosimo Demasi had also failed to satisfy me that there were any grounds for an adjournment. He had already had the benefit of a short adjournment to prepare, with the assistance of his solicitors, a detailed affidavit in response to the evidence adduced on behalf of his mother. Settlement of the necessary and authorised sale of the property was overdue and rescission appeared imminent to the vendor’s solicitors. The solicitors for Mr Vincenzo Demasi and Mrs Demasi had undertaken to hold $14,000 in trust, pending resolution of the dispute between the parties. There was objective evidence only of payment of $10,000 as a contribution to the purchase price. Most significantly, Mr Cosimo Demasi had conceded that the interest to which the caveat refers did not exist.
Mr Cosimo Demasi asserted that he was completely without funds to meet any orders for costs and it would seem to follow that he would not be able to meet any liability resulting from an unjustifiable loss of the sale of the property.
In all the circumstances, the adjournment application was refused and I ordered the removal of the caveat. I note that the second defendant, the Registrar of Titles, did not appear and had agreed to be bound by the outcome of the application.
0