Ermanno Giurina v Greater Geelong City Council and Registrar of Titles
[2023] VSCA 148
•20 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0035 |
| ERMANNO GIURINA | Applicant |
| v | |
| GREATER GEELONG CITY COUNCIL | First Respondent |
| AND | |
| REGISTRAR OF TITLES | Second Respondent |
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| JUDGES: | OSBORN and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 June 2023 |
| DATE OF JUDGMENT: | 20 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 148 |
| JUDGMENT APPEALED FROM: | [2023] VSC 59 (Matthews AsJ) |
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PRACTICE AND PROCEDURE – Stay – Applicant sought interlocutory order to stay decision of associate justice to refuse to stay orders that caveats be removed – Whether exceptional circumstances – Whether arguable case of error in respect of primary judge’s finding of standing of respondent Council as judgment creditor under warrant of seizure and sale to bring application for caveat removal under s 90(3) of the Transfer of Land Act 1958 – No arguable error – No special or exceptional circumstances to justify grant of a stay – Stay refused.
STATUTORY INTERPRETATION – Caveats – Caveat removal – Standing – Whether the words ‘any person who is adversely affected by any such caveat’ in s 90(3) of the Transfer of Land Act 1958 should be read down by reference to s 89A and are limited to persons who have ‘an interest in the land’ – Whether judgment creditor has ‘an interest in the land’ – Words not so restricted.
Transfer of Land Act 1958, ss 89A, 90(3).
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| Counsel | |||
| Applicant: | In person | ||
| First Respondent: | Mr S Woolley | ||
| Second Respondent: | No appearance | ||
Solicitors | |||
| Applicant: | — | ||
| First Respondent: | Harwood Andrews | ||
| Second Respondent: | Land Use Victoria | ||
TABLE OF CONTENTS
Introduction
The statutory scheme
Analysis
OSBORN JA
KAYE JA:
Introduction
The applicant is the executor of the estate of his late mother, who was and has remained the registered proprietor of a property in Geelong West. In August 2019, the respondent made an emergency order under s 102 of the Building Act 1993 concerning the house on the property. The applicant engaged in two sets of unsuccessful litigation against the respondent concerning that order, which resulted in orders for costs against him in his capacity as executor of the estate. Each order is the subject of warrants of seizure and sale against the property issued by the respondent. Subsequently, the applicant lodged two caveats over the title to the property. In response, the respondent made an application to the Court, under s 90(3) of the Transfer of Land Act 1958 (‘TLA’), for the removal of the caveats. The application was heard over two days in November 2022 and judgment given on 22 February 2023.[1]
[1]Greater Geelong City Council v Giurina [2023] VSC 59 (Matthews AsJ) (‘Reasons’).
On 9 March 2023, Matthews AsJ, on the application of the first respondent, made orders pursuant to s 90(3) of the TLA directing the removal of the two caveats lodged by the applicant on the title to a property located in Geelong West.
The first respondent had brought the application on the basis that it was a ‘person adversely affected’ by the two caveats in circumstances where it proposed to sell the land pursuant to a warrant of seizure and sale.
The applicant has sought leave to appeal the primary judge’s orders on the ground that:
Her Honour erred at law in concluding that the First Respondent had standing to bring the caveat removal application pursuant to s.90(3) of the Transfer of Land Act 1958 (Vic.) given that it had no interest in the subject land. The proceeding below should therefore have been dismissed.
The applicant now seeks an interlocutory order from this Court that the orders made by the associate justice be stayed.
In order to obtain a stay the applicant must show special or exceptional circumstances, and as part of that requirement, must demonstrate an arguable case of error by the primary judge.[2]
[2]Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, [82], [90]; Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, 657; [1990] VicSC 62; Maher v Commonwealth Bank of Australia [2008] VSCA 122, [20], [27].
In summary, the applicant initially submitted that:
(a)he has a strong case on the question of the respondent’s standing;
(b)if the orders are not stayed, the appeal may be rendered nugatory; and
(c)he has an affinity with the premises.
We do not accept that the third submission is relevant. The land contains a house which was formerly occupied by the applicant’s aunt and in which he lived for a period as a child. It has been unoccupied since 2008. Photographs tendered by the first respondent demonstrate it is now derelict and uninhabitable. The applicant deposes that he intends that either he or another family member will live in it at some future date. These facts are not sufficient to establish or materially contribute to special circumstances.
The real issue on this application is whether the applicant’s case with respect to the first respondent’s lack of standing is reasonably arguable. In the course of argument, the applicant accepted that this was so.
The statutory scheme
Section 90(3) of the TLA provides:
Any person who is adversely affected by any such caveat may bring proceedings in a court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit.
The applicant submits that the words ‘any person who is adversely affected by any such caveat’ are to be read down by reference to s 89A of the TLA and are limited to persons who have ‘an interest in the land’. Section 89A provides:
Removal of caveat on application to Registrar
(1)Subject to the provisions of this section, where a recording of a caveat (not being a caveat lodged by the Registrar) has been made pursuant to section 89(2), any person interested in the land affected thereby or in any part thereof may make application in an appropriate approved form to the Registrar for the service of a notice pursuant to subsection (3).
(2) An application under this section shall—
(a)specify the land and the estate or interest therein in respect of which it is made; and
(b)be supported by a certificate signed by a person for the time being engaged in legal practice in Victoria, referring to the caveat and stating the person's opinion that, as regards the land and the estate or interest therein in respect of which the application is made, the caveator does not have the estate or interest claimed by the caveator.
(3)Upon receiving any such application and certificate and upon being satisfied that the applicant has an interest in the land in respect of which the application is made, the Registrar shall give notice to the caveator that the caveat will lapse as to the land and the estate or interest therein in respect of which the application is made on a day specified in the notice unless in the meantime either—
(a)the application is abandoned by notice in writing given to the Registrar by or on behalf of the applicant; or
(b)notice in writing is given to the Registrar that proceedings in a court or VCAT to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the application is made are on foot.
(4)The Registrar shall not cause a day to be specified in the notice that is less than 30 days after the day on which the notice is served or, if the notice is sent by post, the day on which it is introduced into the course of post.
(5) Upon the specified day, unless—
(a)the application has been abandoned as aforesaid; or
(b)notice in writing has been given to the Registrar that proceedings as aforesaid are on foot—
the caveat shall lapse as to the land and the estate or interest therein to which the application then relates, and the Registrar shall make all necessary amendments in the Register.
(6)An application under this section may be abandoned either wholly or as to part of the land or the estate or interest therein in respect of which it is made either before or after notice is given pursuant to subsection (3), but where notice has been given, only with the consent of the caveator or the caveator's agent.
(7)Where notice in writing of the kind referred to in paragraph (b) of subsection (3) is given to the Registrar—
(a)if in the proceedings in question the claim of the caveator is not substantiated to the satisfaction of a court or VCAT—the court or VCAT may make such order in relation to the caveat as the court or VCAT thinks fit and the Registrar shall give effect thereto;
(b)if there is subsequently served upon the Registrar a copy of any notice, or an office copy of any order of the court or VCAT, disclosing that the proceedings in question have been discontinued, withdrawn or struck out or evidence to the satisfaction of the Registrar that those proceedings have been dismissed—the caveat shall lapse as to the land and the estate or interest therein to which the application then relates, and the Registrar shall make all necessary amendments to the Register.[3]
[3]Emphasis added.
The applicant submits that the first respondent is not a person who has an interest in the land in issue but is a mere unsecured judgment creditor and that a judgment debt, even if followed by a warrant of seizure and sale, does not create a proprietary interest in the land which is the subject of the warrant.
The applicant further submits that the purpose of s 90(3) is limited to the provision of a quicker procedure than s 89A for a person interested in the land to obtain removal of a caveat.
These submissions were rejected by the associate justice at [105]–[115] of her Honour’s Reasons. In so doing, her Honour held that ss 89A and 90(3) provide for alternative procedures which are separate and discrete. We are not persuaded that there is any arguable error in her conclusion.
Analysis
Neither the text, context nor purpose of s 90(3) support the applicant’s construction.[4] In summary:
(a)the plain words of the statutory provision in s 90(3) are not restricted in the manner for which the applicant contends;
(b)effect should be given to the full language adopted in s 90(3) and the difference in that language from the language of s 89A. Unlike s 89A, there is no requirement under s 90(3) that the Court be satisfied that the applicant has an interest in the land;
(c)the construction for which the applicant contends would require the implication of a substantial limitation upon the subsection which is unnecessary to give the subsection effect and for which there is no apparent justification;
(d)the construction contended for would result in the unwarranted restriction of the Court’s remedial jurisdiction with respect to the operation of caveats. This jurisdiction is to be contrasted with the administrative procedure provided for by s 89A;
(e)the construction contended for would result in an absurd outcome, namely that a judgment creditor could never obtain a removal of caveat under s 90(3) in aid of the sale of real property pursuant to a warrant of seizure and sale. This would deprive judgment creditors of a practical summary procedure.[5] In Piroshenko v Grojsman, Warren CJ said:
Section 90(3) of the Act permits any person adversely affected by a caveat lodged under s 89 of the Act to ‘bring proceedings in a court against the caveator for the removal of the caveat’. Section 90(3) empowers a court dealing with such an application to ‘make such order as the court thinks fit’.
Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. This approach has been established law in Australia since the decision of Lord Diplock in Eng Mee Yong v Letchumanan was approved by the Full Court of the Queensland Supreme Court of Appeal in Re Jorss’ Caveat. This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act.[6]
[4]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); [2017] HCA 34.
[5]Goldstraw v Goldstraw [2002] VSC 491, [30] (citations omitted).
[6](2010) 27 VR 489, 491 [6]–[7]; [2010] VSC 240 (‘Piroshenko’) (citations omitted).
Properly understood none of the authorities to which the applicant has made reference in submission supports his construction. In deference to his argument however, we will deal briefly with them:
(a)In Eng Mee Yong v Letchumanan,[7] the Privy Council recognised that the parallel legislation there considered[8] provided for different classes of applicant.
[7][1988] AC 331 (‘Eng Mee Yong’).
[8]The National Code of Malaysia provided by s 327: ‘(1) Any person or body aggrieved by the existence of a private caveat may at any time apply to the court for an order for its removal, and the court (acting, if the circumstances so require, ex parte) may make such order on the application as it may think just.’
Whereas the procedure under s 326 for obtaining the removal of a caveat is available only to the caveatee, the procedure for applying directly to the court for an order of removal is available not only to the caveatee but also to any other person aggrieved by the existence of the caveat—typically a purchaser to whom the registered proprietor has contracted to sell the land but the sale has not yet been completed by a proper instrument of transfer duly registered. In their Lordships’ view a distinction must be drawn between cases where the applicant [for removal] is the registered proprietor of the land (ie., the caveatee) and cases where the applicant is some other person who claims a right to an interest in it. In the former case the caveatee can rely upon his registered title as prima facie evidence of his unfettered right to deal with the land as he pleases; it is for the caveator to satisfy the court that there are sufficient grounds in fact and law for continuing in force a caveat which prevents him [the caveatee] from doing so. So where, as in the instant case, the only parties to an application under section 327 are caveatee and caveator there is no difference between what the caveator must establish to obtain an extension of the caveat under s 326 and what he must establish to defeat the caveatee’s application for the removal of the caveat under s 327. It is otherwise when the applicant [for removal] under section 327 is someone other than the caveatee. He has no registered title to rely upon as prima facie evidence of his interest in the land. It is for him to begin by satisfying the court that there are sufficient grounds in fact and law for treating him as a person claiming such an interest in the land as would, if it were established, make him aggrieved by the existence of the caveat.[9]
[9]Eng Mee Yong [1988] AC 331, 336.
These last observations do not resolve the limits of the notion of a ‘person aggrieved’ under the Malaysian legislation nor compel the construction for which the applicant contends under the TLA.
(b)In Piroshenko,[10] the Court affirmed the principles stated in Eng Mee Yong governing the removal of a caveat were applicable to an application under s 90(3). In particular, it confirmed that upon the hearing of a valid application, the caveator must demonstrate a serious question to be tried and that the balance of convenience favours retention of the caveat. The Court did not however explore the meaning of the phrase ‘any person who is adversely affected’.[11]
[10](2010) 27 VR 489; [2010] VSC 240.
[11]Ibid 491, [6] (Warren CJ).
(c)In Delma Investments Pty Ltd v Shillito,[12] Gowans J considered the consequences of a caveat which was not in proper form and was unregistered at the time of the application made to remove it. Nothing said in his Honour’s judgment is relevant to or determinative of the point now in issue.
[12][1971] VR 442; [1970] VicSC 360.
(d)In Dharmalingham v Registrar of Titles,[13] Hargrave J (as his Honour then was) considered the operation of the notice requirement in s 89A(3) of the TLA. There is nothing in his Honour’s judgment which supports the applicant’s construction. At [49] his Honour observed:
[13][2005] VSC 417.
[I]t must be kept in mind that the s. 89A procedure is only one way in which a caveat can cease to have force and effect. Under s. 90, a caveat may lapse following the lodgement for registration of a dealing, and the consequent service of a Registrar’s notice under s. 90(1). The service of such a notice casts the obligation upon the caveator to approach ‘the Court’ and seek an order to protect their interests. Under s. 90(3) any person adversely affected by a caveat may bring proceedings in ‘the Court’ for removal of the caveat.
The judgment does not support the proposition that s 90(3) is to be read down.
(e)In National Australia Bank v MCMC Pty Ltd,[14] s 138 of the Transfer of Land Act 1893 (WA) expressly gave standing to judgment creditors, illustrating the importance of the text of the statutory provision in issue. In that case, there was no dispute that the plaintiff had standing as a registered mortgagee to apply for removal of a caveat under that section.[15] The case does not assist the applicant.
[14][2005] WASC 104, [3].
[15]Ibid [4].
(f)In Australian Eagle Insurance Company Ltd v Parry,[16] the Tasmanian legislation only permitted a party claiming an estate or interest in the land to apply for removal of a caveat. Section 135(1) of the Land Titles Act 1980 (Tas) provided ‘[a]ny person, other than the caveator, who claims an estate or interest in land affected by a caveat may summon the caveator to attend before the Supreme Court to show cause why the caveat should not be removed.’[17] The contrast with the language of the Victorian legislation is obvious.
[16](1992) ANZ ConvR 166; [1991] Tas R (NC) N36.
[17]Ibid 166.
(g)In Re Footbridge Pty Ltd, ex parte Commissioner of Taxation, s 38 of the Real Property Act 1861–1980 (Qld) provided:
Persons interested may procure removal of caveat.
Any person interested presently prospectively or otherwise in land or any estate or interest in or security upon land or any instrument affecting land whose right to deal therewith or to have any entry made in the register with respect thereto is forbidden by any caveat or who is otherwise prejudicially affected by such caveat may proceed to procure the removal of such caveat in the manner provided by the ninety-ninth section of the Principal Act.[18]
The Commissioner of Taxation claimed to be relevantly interested pursuant to a writ of fieri facias but the writ had lapsed in effect because it had not been executed within three calendar months from its entry in the register book. It no longer affected the land. The case supports the view that the phrase ‘any person … who is otherwise prejudicially affected by such caveat’ may extend to judgment creditors. It does not support the applicant’s case.
(h)In Re Cebisch, the applicants failed to bring themselves within the terms of s 99 of the Real Property Act 1861–1980 (Qld) which provided a right to seek to have a caveat removed to:
The person against whose right to deal with the land under the provisions of the act … such caveat may be lodged and such person may, if he thinks fit, summon the person signing the caveat to attend ... to show cause why such caveat should not be removed …[19]
This section is not analogous to s 90(3) of the TLA. The court held that the caveats in issue did not purport to deal with or refer to any right in the land which the applicants had as tenants in common. It further held that the caveators had an equitable interest in the land derived from the tenants in common other than the applicants. The case turned on its facts and does not assist the applicant.
(i)In Erden Aged Care No 1 Pty Ltd (ACN 131 525 329) v Marie Lettieri,[20] the plaintiff had an equitable interest in the land as purchaser under a contract of sale and hence was a person adversely affected by the lodging of a subsequent caveat. The case does not assist the applicant.
(j)In Rubytime Nominees Pty Ltd v Bottiglieri,[21] the court held that a judgment debt did not create a caveatable interest. The applicant was a second mortgagee with standing to bring an application under s 90(3) of the TLA. The case does not assist the applicant.
[18](Supreme Court of Queensland, O.S. 919 of 1984, Mynihan J, 15 May 1985), 2.
[19](Supreme Court of Queensland, O.S. 626 of 1987, Ambrose J, 20 August 1987), 3.
[20][2008] VSC 471.
[21][2011] VSC 678.
In our view the applicant’s proposed ground of appeal is not reasonably arguable. Accordingly, the applicant has failed to demonstrate special or exceptional circumstances justifying the grant of a stay. In these circumstances, a stay should be refused.[22]
[22]Maher v Commonwealth Bank of Australia [2008] VSCA 122, [27].
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