Ermanno Giurina v Sheriff for the State of Victoria
[2024] VSCA 112
•29 May 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0031 |
| ERMANNO GIURINA | Applicant |
| v | |
| SHERIFF FOR THE STATE OF VICTORIA | Respondent |
| S EAPCI 2024 0039 | |
| ERMANNO GIURINA | Applicant |
| v | |
| REGISTRAR OF TITLES | Respondent |
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| JUDGES: | WALKER and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May 2024 |
| DATE OF JUDGMENT: | 29 May 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 112 |
| JUDGMENT APPEALED FROM: | Transcript of Proceedings, Giurina v Sheriff (Vic) (Supreme Court of Victoria, S ECI 2024 00204, 26 February 2024, Forbes J) |
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PRACTICE AND PROCEDURE – Interlocutory injunction – Where applicant is executor of estate – Where applicant is subject to costs orders in capacity as executor of estate – Where party in whose favour costs orders were made has sought to have property part of the estate sold – Applicant unsuccessfully sought injunction preventing sale – Whether applicant had made out prima facie case that property is no longer property of estate – Whether balance of convenience favoured grant of injunction – No error in judge’s decision – Application for leave to appeal refused.
PROPERTY – Caveats – Where Court had ordered that applicant must seek leave to lodge caveats – No error in judge’s decision to refuse leave – Consideration of test to be applied in determining whether to grant leave to file caveat – Application for extension of time in which to apply for leave to appeal refused.
Administration and Probate Act 1958 s 13(1); Sheriff Act 2009 s 24; Transfer of Land Act 1958 ss 89A, 90(3); Land Title Act 1994 (Qld) s 129(2).
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Easterbrook v Young (1977) 136 CLR 308; Dharmalingham v Registrar of Titles [2005] VSC 417; Layrill Pty Ltd v Furlap Constructions Pty Ltd [2002] VSC 51; Piroshenko v Grojsman (2010) 27 VR 489; Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd (2023) 13 QR 465; Oversea-Chinese Banking Corporation Ltd v Becker [2004] 1 Qd R 409, discussed; Mansour v Mansour (2009) 24 VR 498; Pagels v MacDonald (1936) 54 CLR 519; Baker v Williams [2007] QSC 226; Attenborough v Solomon [1913] AC 76; Re McPhail [1971] VR 534; In Re King’s Will Trusts [1964] 1 Ch 542, distinguished.
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| Counsel | ||
| Applicant: | In person | |
| Respondent in S EAPCI 2024 0031: | Mr R H Ajzensztat | |
| Respondent in S EAPCI 2024 0039: | No appearance | |
Solicitors | ||
| Applicant: | -- | |
| Respondent in S EAPCI 2024 0031: | Victorian Government Solicitor | |
| Respondent in S EAPCI 2024 0039: | -- | |
TABLE OF CONTENTS
Introduction and summary
Key facts and procedural history
The application for leave to appeal in the injunction proceeding
The judge’s ruling on the injunction application
The proposed grounds of appeal in the injunction appeal
Consideration of the injunction appeal
A prima facie case?
The balance of convenience
The application for leave to appeal in the caveat proceeding
The judge’s ruling on the caveat application
Mr Giurina’s proposed grounds of appeal on the caveat application
Consideration of the caveat appeal
Conclusion
WALKER JA
ORR JA:
Introduction and summary
The applicant in these two applications for leave to appeal, Mr Giurina, is the executor of the estate of his late great-aunt, Ms Carolina Nacinovich. Ms Nacinovich was, and has remained since her death, recorded as the registered proprietor of a property in Geelong West. Mr Giurina is the executor of the estate under the will. He is also the beneficiary of the property under Ms Nacinovich’s will.
Mr Giurina has been engaged in a long-running dispute with Geelong City Council in relation to the property. Following two proceedings, two costs orders were made against Mr Giurina in his capacity as executor of the estate.[1] The Council has sought to have the property sold in order to recover the costs due to it pursuant to the costs orders. Two warrants were issued authorising the sale of the property by the Sheriff for the State of Victoria. Mr Giurina sought to prevent that sale by seeking an interlocutory injunction to prevent it from taking place. We shall refer to that proceeding as the injunction proceeding. The Sheriff is the respondent to that proceeding.
[1]These were the costs order made in proceeding S ECI 2021 02603 in the sum of $46,915.00 and the costs order made in proceeding S EAPCI 2021 0044 in the sum of $40,000.
By way of a separate application, Mr Giurina also sought leave to lodge two caveats on the property, such leave being necessary because of an earlier order that restrained him from lodging any caveat over the property without leave or further order of the Court. We shall refer to that proceeding as the caveat proceeding. The Registrar of Titles is the respondent to that proceeding.
These two applications were heard before Forbes J in the Practice Court on 23 February 2024. On 26 February 2024, the day before the sale was due to occur, her Honour refused each application.[2] Mr Giurina now seeks leave to appeal from her Honour’s decision. In the caveat proceeding he also seeks an extension of time in which to file his notice of application for leave to appeal.
[2]Transcript of Proceedings, Giurina v Sheriff (Vic) (Supreme Court of Victoria, S ECI 2024 00204, 26 February 2024, Forbes J) (‘Reasons’).
For the reasons that follow, we would refuse leave to appeal in the injunction proceeding and refuse the application for an extension of time in the caveat proceeding. In short:
(a)Mr Giurina’s underlying claim in the injunction proceeding has no prospects of success, and the balance of convenience weighs against the grant of an interlocutory injunction. Thus the judge was correct to refuse to grant an interlocutory injunction to restrain the sale of the property.
(b)Mr Giurina’s application for leave to lodge the two caveats is founded on the same underlying claim as is made in the injunction proceeding which, as we have said above, has no prospects of success. In those circumstances, and bearing in mind the history of this proceeding, the judge was correct to refuse the application for leave to lodge the caveats.
Key facts and procedural history
It is appropriate to commence with a more specific identification of the property that is at the heart of the dispute. That property is described as having a particular address. But, more importantly, the property is comprised of two separate titles:
(a)one title is identified by certificate of title volume 06451 folio 142;
(b)the other title is identified by certificate of title volume 06835 folio 810.
Mr Giurina commenced proceeding S ECI 2024 00204 (the ‘underlying proceeding’) by originating motion. The relief he seeks in the underlying proceeding is, relevantly, as follows:
(1)A declaration that the Property at 120 Elizabeth Street Geelong West Victoria 3218 being land contained in certificates of title volume 06451 folio 142 and volume 06835 folio 810 (‘the Property’) is not affected by the costs orders made in the following proceedings:
(a)S ECI 2021 02603 in the sum of $46,915;
(b)S EAPCI 2021 044 in the sum of $40,000.
(2)A declaration that for the purposes of section 52(2) of the Transfer of Land Act 1958 (Vic) the Property is not affected by Warrants numbered W23014506959 and W23014506960 (‘the Warrants’).
(3)An injunction issued against the Sheriff for the State of Victoria preventing the seizure and sale of the Property pursuant to the Warrants.
(4)An order that the Sheriff for the State of Victoria return the Warrants to the Court for the purpose of their cancellation or alternatively an order that the Warrants are set aside.
It is necessary to set out in some detail the facts and procedural history of Mr Giurina’s engagement with the Council, the Sheriff and the Registrar.
As noted above, Mr Giurina has been in a long-running dispute with the Council concerning the property. In August 2019 the Council had made an emergency order under s 102 of the Building Act 1993 against Ms Nacinovich’s estate. The Council made a second emergency order against the estate in September 2019. Mr Giurina engaged in unsuccessful litigation against the Council concerning those emergency orders. He instituted and conducted that litigation in his capacity as executor of the estate. This resulted in the two costs orders being made against him in his capacity as executor of the estate.
(a)The first costs order was made in proceeding S ECI 2019 04286, in which Mr Giurina sought judicial review of a decision of the Building Appeals Board to refuse to cancel the first emergency order and an order declaring that the second emergency order was null and void (the ‘judicial review proceeding’). The Council was a defendant to that proceeding. Mr Giurina was unsuccessful[3] and Whelan JA ordered that he pay the Council’s (and the Board’s) costs of the proceeding.[4]
(b)The second costs order was made in proceeding S EAPCI 2021 0044, which was Mr Giurina’s application for leave to appeal from Whelan JA’s decision. He was again unsuccessful[5] and the second costs order, in the fixed sum of $40,000, was made against him in relation to his application for leave to appeal.
[3]Giurina v Greater Geelong City Council [2021] VSC 103 (Whelan JA).
[4]The amount of the first costs order was taxed in the sum of $46,915.00 by an order dated 17 November 2021 made by Costs Registrar Walton.
[5][2021] VSCA 318 (Kennedy, Walker JJA and Macaulay AJA).
Mr Giurina did not pay the amounts payable under the costs orders.
On 30 March 2022 two warrants of seizure (the ‘original warrants’) were issued at the request of the Council to satisfy the costs orders. Those warrants identified the property by reference only to certificate of title volume 06451 folio 142.
Mr Giurina applied to have the original warrants cancelled or withdrawn (we shall refer to this proceeding as the ‘warrants proceeding’). On 24 May 2022 Matthews AsJ dismissed that application and made declarations that:
(a)Mr Giurina is the proprietor of the property identified by certificate of title volume 06451 folio 142;
(b)the property, as defined, is affected by the costs orders; and
(c)for the purposes of s 52(2) of the Transfer of Land Act 1958, the property is affected by the (original) warrants.
We interpolate to observe that the first declaration Mr Giurina seeks in the underlying proceeding is inconsistent with the second declaration made by Matthews AsJ in so far as it concerns the property identified by certificate of title volume 06451 folio 142. Mr Giurina never sought to appeal or otherwise set aside that declaration. To that extent, the relief Mr Giurina seeks in the underlying proceeding would be the subject of a defence of res judicata. However, this does not provide a complete answer to Mr Giurina’s application, because there is no res judicata in relation to the property identified by certificate of title volume 06835 folio 810. Mr Giurina submitted that the property cannot be sold without the sale of both titles and the Sheriff made no submission to the contrary. We have thus put to one side the fact that one of the orders Mr Giurina seeks is, to some extent, in direct conflict with an order that Matthews AsJ made.
In June 2022 Mr Giurina issued another proceeding against the Council in which he claimed damages and various other orders and declarations in relation to the Council’s entry onto the property (the ‘damages proceeding’). In that proceeding Mr Giurina applied for an urgent interlocutory injunction to prevent the sale of the property. That application was dismissed by John Dixon J.[6] The damages proceeding remains on foot between Mr Giurina and the Council. Neither the Sheriff nor the Registrar is a party to that proceeding.
[6]Giurina v Greater Geelong City Council [2022] VSC 396.
On 27 July 2022 and 5 August 2022 the applicant, in his personal capacity, lodged two caveats over the property:
(a)The first caveat was lodged over the property on 27 July 2022 by Mr Giurina in his personal capacity and registered on the title on 29 July 2022. The caveator was named as Ermanno Giurina, the estate or interest claimed was ‘freehold estate’, the grounds of claim were ‘estoppel’ and the prohibition was listed as ‘absolutely’.
(b)The second caveat was lodged over the property on 5 August 2022 by Mr Giurina in his personal capacity and registered on the title on 16 August 2022. The caveator was named as Ermanno Giurina, the estate or interest claimed was ‘freehold estate’, the prohibition was listed as ‘absolutely’, and the grounds of claim were stated as follows:
BENEFICIARY/IES UNDER THE WILL OF THE FOLLOWING DECEASED PARTY, WHERE PROBATE HAS BEEN GRANTED AND ALL DEBTS IN THE ESTATE HAVE BEEN PAID.
Parties
LINA NACINOVICHThe Council sought the removal of the caveats and in March 2023 Matthews AsJ made orders directing the removal of the caveats. Matthews AsJ also made an order restraining Mr Giurina from lodging, or being involved in lodging, any further caveats on the property without leave or further order of the Court.[7] This Court refused an application by Mr Giurina to stay those orders pending the outcome of his application for leave to appeal.[8] This Court later refused leave to appeal.[9]
[7]The orders were made following the publication of reasons: Greater Geelong City Council v Giurina [2023] VSC 59 (Matthews AsJ).
[8][2023] VSCA 148 (Osborn and Kaye JJA).
[9]Giurina v Greater Geelong City Council [2023] VSCA 299 (Beach and McLeish JJA) (the ‘2023 appeal’).
It transpired that the original warrants were defective.[10] They were returned to the Court and cancelled. In their place, two new warrants were issued on 8 August 2023 (the ‘current warrants’).[11] The current warrants, like the original warrants, were issued in the judicial review proceeding, which Mr Giurina had commenced in his capacity as executor of the estate. The current warrants have not been the subject of any previous judicial consideration or determination prior to the decision of the trial judge in this proceeding. Mr Giurina informed the Court that he had not been served with a copy of the current warrants. They were not put before the Court.[12]
[10]Forbes J was informed from the Bar table that the reason for the re-issue of the warrants was ‘most likely an error in the formal identification of the lots comprising the property’. Her Honour observed that no issue was taken before her with any distinction between the form of the warrants.
[11]Being warrants numbered W23014506959 and W23014506960.
[12]The Sheriff stated that she did not seek leave to adduce the current warrants as new evidence. Nor did Mr Giurina make an application to rely on the current warrants as new evidence.
In October 2023, Mr Giurina sought leave to file a further caveat on the property. The proposed caveat identified the grounds of claim as ‘implied, resulting or constructive trust’, the interest claimed as ‘freehold estate’ and the prohibition as ‘absolutely’. Before Barrett AsJ, Mr Giurina submitted that he holds the freehold estate to the property absolutely and the beneficial estate absolutely, and that he holds the property on trust for himself pursuant to a constructive, resulting or implied trust. It was that trust relationship that he relied on to support his caveatable interest.[13] Barrett AsJ refused that application, observing that Mr Giurina had ‘provided no arguable basis for a claim to a constructive, resulting or implied trust, particularly having regard to the fact that he is both trustee and beneficiary of the purported trust’. His Honour went on to observe that the lodging of any further caveat would be an abuse of the caveat process.[14]
[13]Giurina v Registrar of Titles [2023] VSC 784, [22] (Barrett AsJ) (the ‘first caveat leave proceeding’).
[14][2023] VSC 784, [28].
On 18 January 2024 Mr Giurina filed the originating motion in the underlying proceeding in his personal capacity against the Sheriff for the State of Victoria. The originating motion sought the relief set out above.
On 6 February 2024 Mr Giurina was personally served by a person acting on behalf of the Sheriff with a copy of an advertisement for an online auction to occur on 27 February 2024 at 11:00 am, indicating that all the estate and interest of Mr Giurina in the property, ‘as executor of the estate’, would be sold by auction at that time.
On 20 February 2024 Mr Giurina filed a summons seeking an interlocutory injunction to prevent the sale by the Sheriff of the property on 27 February 2024 until final determination of the originating motion in the underlying proceeding. The hearing of the summons was treated as urgent and was heard by the judge in the Practice Court on 23 February 2024.
Both Mr Giurina and the Sheriff filed submissions and Mr Giurina filed an affidavit in support dated 16 February 2024. Exhibited to that affidavit was a handwritten note that Mr Giurina claimed to have made on 11 October 2003, which stated that Mr Giurina assented to dispose of the property to himself as beneficiary under the will. The note was signed twice by Mr Giurina — once in his capacity as executor and once in his capacity as beneficiary. The Sheriff did not file any evidence for the purposes of that hearing.
The parties’ Agreed Summary for the Court of Appeal stated that Mr Giurina had argued below that there were two principal reasons why the Sheriff could not sell the Property.
(a)First, he submitted that the cost orders were not made against the estate.
(b)Secondly, he submitted that the part of the estate consisting of the property had already been distributed to Mr Giurina as absolute specific beneficiary of the property under the will, subsequent to completion of the administration of the estate consisting of the property on 11 October 2003. Consequently the property no longer formed part of the estate, but rather was Mr Giurina’s personal property. Consequently Mr Giurina no longer has any estate and interest in the property as executor of the estate, which meant that the property could not be sold by the Sheriff.
The basis for Mr Giurina’s argument that the property no longer formed part of the estate was that the estate had been fully administered on or about 11 October 2003. This was the date of the ‘note’ referred to above. Mr Giurina provided evidence that he had paid various outgoings in relation to the property in his personal capacity, which he said was evidence that the estate had been administered in so far as the property was concerned. He also referred to the Council’s acceptance of the payment of rates in relation to the property by him in his personal capacity, and to a proceeding brought against him personally by the Council in relation to some graffiti at the property (the ‘graffiti litigation’). In oral argument before the judge he submitted as follows:
The assent, together with the completion of the property, would perfect my title as absolute specific devisee. The completion of the property — the completion of the administration of the property would mean that I am trustee, I no longer am executor, and … being trustee and beneficiary, one and the same persons, I hold the property now as an absolute beneficiary, absolute beneficial owner, so all that would indicate that I do have a meritorious case which would require final resolution at trial.
The Agreed Summary stated that the Sheriff had argued that Mr Giurina had no arguable case because matters which he was seeking to litigate had previously been considered in past litigation between Mr Giurina and the Council and therefore there was no serious question or prima facie case to be considered, and the balance of convenience favoured the Sheriff.
Mr Giurina’s application for leave to file two caveats was also considered at the hearing on 23 February 2024. That application was based on Mr Giurina’s asserted personal interest in the property, said to be derived from either his status as the beneficiary under the will or on the basis of a declaration of trust. That proceeding had no contradictor, because the respondent to it (the Registrar of Titles) informed the Court that she did not object to the orders sought in that proceeding and did not intend to appear (and she did not in fact appear).
On 26 February 2024, Forbes J refused to grant the interlocutory injunction and dismissed Mr Giurina’s application for leave to file the two caveats. However, her Honour granted a stay of the execution of the warrants by sale of the property until 12 March 2024.
The application for leave to appeal in the injunction proceeding
It is convenient to deal first with the application for leave to appeal in relation to the judge’s refusal of an interlocutory injunction to prevent the sale of the property.
The judge’s ruling on the injunction application
The judge set out Mr Giurina’s submissions on the injunction application as follows:
In the [injunction] proceeding, Mr Giurina seeks as final relief declarations that the property is not affected by the two costs orders, which I will describe shortly and, for the purpose of s 52(2) of the Transfer of Land Act 1958 (Vic), not affected by the warrants. On this basis, he seeks final injunctive relief preventing the seizure and sale of the property pursuant to the warrants and an order that the warrants are cancelled or set aside.
The basis upon which he submits he is entitled to the final relief sought, in summary, is that the property is no longer an asset of the estate, it having been distributed to him as beneficiary in 2003, such that the estate has been finally administered, at least insofar as the specific bequest of the property in the will is concerned. He has put before the court evidence that since that time, he has paid expenses associated with the property in his personal capacity and not as executor, consistent with a distribution to him.
He submits that the property, although remaining registered in the name of his great aunt, is held by him not as executor but either in his own right as beneficiary or as trustee of the estate for the benefit of himself as beneficiary. He submits that the final administration of the estate occurred in October 2003. He says that it follows, therefore, that the property does not remain in the estate and cannot be returned to the estate to satisfy the costs orders upon which the warrants are based.
For the purpose of the summons for interlocutory relief, he identifies the question of whether the asset has been distributed and no longer forms part of the estate available to satisfy estate debts as being the serious question to be tried.[15]
[15]Reasons, 72–3.
The judge observed that there was no dispute concerning the principles to be applied in relation to the grant of an interlocutory injunction: the plaintiff must show that there is a prima facie case that there is a serious question to be tried, and that the balance of convenience favours the relief.
The judge set out the evidence upon which Mr Giurina relied, in particular the note recording his assent as executor said to have been made in 2003 and various receipts and invoices said to demonstrate his payment of expenses in relation to the property in his personal capacity. Her Honour then set out the history of the matter, as explained in our reasons above.
Mr Giurina submitted that he had had no control over the fact that the Council had issued the emergency orders against him as executor and that, as a consequence, he had to commence the judicial review proceeding in that same capacity. He pointed out that Whelan JA had said this in his Honour’s judgment in the judicial review proceeding:
The property itself is, to all intents and purposes, Mr Giurina’s property. It was left to him in the relevant will. He is the sole executor. When asked why the estate was still being administered after almost 20 years he gave an explanation I found difficult to understand. He took considerable pains at the outset of the hearing to differentiate himself from the estate, even to the extent of referring to an agreement as to costs which he said he had made with himself in his capacity as executor.[16]
[16]Giurina v Greater Geelong City Council [2021] VSC 103, [148].
Mr Giurina submitted that this passage demonstrated that he had always made it clear that he had a personal interest in the property. The judge rejected that submission. Her Honour relied upon the fact that this Court had made it clear, in its judgment refusing leave to appeal from Whelan JA’s decision, that the discussion distinguishing Mr Giurina’s personal capacity from that as executor was not in the context of identifying a personal interest in the property but in support of an application for leave to represent the estate of Carolina Nacinovich as its legal representative. Her Honour said this:
Nowhere was it identified that the plaintiff, in seeking leave to represent the estate, also sought to advance an interest other than in his capacity as executor. It is misleading to suggest that the question of representation made to Whelan JA in any way advanced an interest other than that of the estate.[17]
[17]Reasons, 80.
The judge then turned to whether there was a serious question to be tried, and said as follows:
There are many hurdles, both legal and factual, facing Mr Giurina in establishing this limb of his entitlement. As I have said, his arguments are based upon the fundamental proposition that the property has been finally distributed and is no longer in the estate. This is a question of fact. The basis of the argument is primarily that distribution of the asset was achieved by his assent as executor to distribute the property to himself as beneficiary.
Alternatively, it is based upon the fact that … he has been appointed a trustee under the will at the time of the assent and the property has become trust property with him as trustee on behalf of himself. He submits that, as trust property, it is no longer estate property. It is unclear on what basis or when he says that a trust arises beyond it arising from the fact of the assent. As best I could follow, it was an alternative argument put because the will also designated him trustee.
Legally, the testator remains the registered proprietor of the property. Formal transfer of title to Mr Giurina in his capacity as executor has never occurred. While this may not impede him generally in carrying out his executorial duties, he has not complied with s49(1) of the Transfer of Land Act. This is relevant to his submission that the property has been fully administered by the assent given on 11 October 2003. Whilst it may be arguable that the document, on its face, complies with s 41 of the Administration and Probate Act 1958 (Vic) in that it is in writing and signed by Mr Giurina in both capacities, and while the assent may operate to cause property to vest in a beneficiary, it is not the instrument of vesting (see Bryen v Reus [1961] SR (NSW) 396).
Relevantly, s 41(10) of the Administration and Probate Act requires that assent in the case of land under the Transfer of Land Act be given by a personal representative who is him or herself registered as proprietor by a transfer in the form prescribed under the Transfer of Land Act. There is nothing to suggest that this has occurred. Both of these factors present difficulties for Mr Giurina’s argument.
Many of the events occurring after the assent was signed also present factual difficulties for a case founded upon that assent. First, Mr Giurina has conducted litigation specifically concerning the property in his capacity as executor and has made representations disavowing any personal interest as beneficiary or otherwise in the property subsequent to 2003. This includes in the following litigation: (1), the judicial review proceeding and its appeal, in which the plaintiff was Mr Giurina only in his capacity as executor; and (2), in May 2022, commencing proceedings as executor seeking damages and other orders, including declarations.
Mr Giurina informed me that this proceeding remains on foot and that circumscribed some of his answer, and I accept that that was proper. The application for an interlocutory injunction to prevent the sale in that proceeding was refused in July 2022.
I note also that on 27 July and 5 August 2022, Mr Giurina lodged caveats in his own name as beneficiary and based upon an estoppel in his capacity other than as executor. An application to remove these two caveats was commenced by the Geelong Council, and Mr Giurina brought an application to set aside the warrants and for other relief. Those applications were heard by Matthews AsJ.
Those original warrants were issued in the name of Mr Giurina as registered proprietor, and he took issue with this. He submitted that as either executor or beneficiary, he had no interest in the property. He contended he only had a right as beneficiary to have the estate administered, and he addressed s 49 of the Administration and Probate Act, submitting he was not obliged to make any such application, as there was no stipulation as to a time by which the estate had to be fully administered. Those arguments present difficulties in his present application.[18]
[18]Reasons, 81–3.
Her Honour then went on to explain that, in that earlier proceeding to remove the caveats Mr Giurina had lodged, Matthews AsJ had made the declarations referred to above, relevantly including that Mr Giurina is the proprietor of the property and that the property is affected by the costs orders. An appeal from those orders had been rejected by this Court, and in its reasons the Court of Appeal held there was no error in Matthews AsJ’s conclusion that Mr Giurina failed to make out a prima facie case that the property was no longer an asset in the estate and that estate debts incurred subsequently were able to be paid from the proceeds of the property if there were no other assets of the estate sufficient to pay them.
In so far as Mr Giurina based an earlier caveat on his interest as a beneficiary under a will, the judge set out the following passage from this Court’s reasons:
One of a number of difficulties Mr Giurina has with this proposed ground of appeal is that … Mr Giurina has taken no steps to commence a proceeding or articulate a claim which could be heard and determined at the trial which he says should now occur. One might ask rhetorically, ‘what trial? seeking what relief? and on what basis?’.[19]
[19]Giurina v Greater Geelong City Council [2023] VSCA 299, [51] (Beach and McLeish JJA).
The judge then observed that the present proceeding, commenced in January 2024, addressed this criticism. However, her Honour said that while it was true that the question whether the estate has been fully administered has not been specifically determined, the question whether the property remains property of the estate and available to meet the costs order had been squarely addressed by Matthews AsJ and by this Court. She went on to observe that the argument that Mr Giurina wishes now to raise ‘is based upon facts arising from assent and the differences between himself in his three capacities of executor, trustee and beneficiary’. These, her Honour said, were to a large extent ‘dependent upon his own internal dialogue, measured against his actions’. But, she observed, his actions and representations were ‘at times inconsistent with that internal conversation’:
There is evidence that Mr Giurina has taken personal responsibility for the property and payment of outgoings, and there have been occasions when the Geelong Council have taken action against him in his personal capacity. The Geelong Council has agreed to an instalment plan for the payment of rates and expenses by Mr Giurina personally, and the graffiti litigation was proceedings which Mr Giurina says were in relation to him in his personal capacity, but I do not accept the submission that the order for the payment of rates at least, made in his personal capacity, is evidence that the Magistrates’ Court concluded that he was the owner in his personal capacity.
Whatever the evidentiary value of these matters, they are also consistent with his agreement in 2003 that he be personally responsible for such expenses. Were the property transferred to him absolutely at that time, I can see no basis for why the estate would require any such assurance from a beneficiary.[20]
[20]Reasons, 84–5.
The judge then distinguished Baker v Williams,[21] on which Mr Giurina had relied, on the basis that it had been argued on the basis that the estate in question had been fully administered. The judge went on:
The identification of a serious question to be tried is not simply the identification of an available legal argument, devoid of qualitative value. It is necessary to show on some available evidence that there is a probability that the plaintiff will be entitled to the relief sought.
In the [injunction] proceeding, final relief is directed at reversing the present position by declaration and injunction. It is not seeking to preserve the status quo in the sense usually understood but to overcome past declarations and decisions by presenting further argument.[22]
[21][2007] QSC 226.
[22]Reasons, 86.
The judge then turned to the balance of convenience, saying this:
If, in the various arguments that have been advanced, there is to be found a serious question to be tried as to Mr Giurina’s interest in the property, it would be necessary to consider the weight of those arguments in assessing where the balance of convenience lies. Although Mr Giurina has not resided in or drawn income from the property now for well over a decade, his payment of outgoings and the litigation history speak of a strong desire to continue to hold the property. However, in the face of doubt as to the further question to be tried that would address the ability of the sheriff to execute the warrants, it stands against any steps to regularise and address the matters raised by the emergency orders as to the state of the property.
I am not persuaded that the balance of convenience warrants interlocutory relief in the [injunction] proceeding at this eleventh hour … .[23]
[23]Reasons, 88.
Finally, the judge observed that, whilst she had considered prior declarations that had been made (in relation to the property being in the estate) when determining whether there was a serious question to be tried, she had dealt with the arguable interest on its merit rather than on the basis of any estoppel that might be argued were the matter to proceed to trial.
Following the judge’s ruling, Mr Giurina sought a stay of execution of the warrants for the sale of the property pending the filing of an application for leave to appeal and the judge granted a stay for a period of 14 days.
The proposed grounds of appeal in the injunction appeal
Mr Giurina’s proposed grounds of appeal[24] in relation to the refusal of the interlocutory injunction were as follows:
(1)The decision appealed from works a substantial injustice to the Applicant to the extent that this Court of Appeal must intervene.
(2)The judge erred in her conclusion that at the judicial review proceeding before Whelan JA the Applicant did not seek to advance an interest other than in his capacity as Executor of the relevant Property.
(3)The judge erred in principle and misunderstood the submissions of the Applicant when she stated at T81.13–81.19 of her ruling that it was unclear on what basis or when the Applicant says a trust arose beyond it arising from the fact of the assent and that it was an alternative argument put by the Applicant because the relevant Will also designated him trustee.
(4)The judge erred in law to indicate at T81.20–82.11 of her ruling that the relevant Property cannot be regarded as fully administered because the (deceased) testator remains the registered proprietor and a transfer has not occurred under s41(10) of the Transfer of Land Act 1958 (Vic).
(5)The judge was wrong at law to infer at T84.23 to 84.30 of her ruling that a serious question may not have arisen because of past litigation principally before Matthews AsJ and this Court of Appeal.
[24]We shall refer to the proposed grounds of appeal as grounds of appeal, for convenience.
At the hearing of the appeal Mr Giurina accepted that, even if he were able to show error by the judge, he would need to persuade this Court to grant the interlocutory injunction that he seeks.
Consideration of the injunction appeal
The short answer to Mr Giurina’s injunction appeal is that, even if we were to conclude that the judge made a specific error in the course of her reasoning, so that it was appropriate for this Court now to make the orders that her Honour ought to have made, we would make the same orders — that is, we would dismiss Mr Giurina’s application for an injunction. To put it another way, we consider that the judge was correct to make the orders she made.
As already noted, there was no dispute concerning the principles relevant to the grant of an interlocutory injunction. The remedy may be granted ‘if it is just and convenient to do so’,[25] but as Gummow and Hayne JJ said in Australian Broadcasting Corporation v O’Neill, quoting from Beecham Group Ltd v Bristol Laboratories Pty Ltd,[26] on such applications the court addresses itself to two main inquiries:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.[27]
[25]Supreme Court Act 1986 s 37(1).
[26](1968) 118 CLR 618; [1968] HCA 1.
[27](2006) 227 CLR 57, 82 [65]; [2006] HCA 46 (‘O’Neill’).
In O’Neill their Honours observed that the phrase ‘prima facie case’ does not require that the plaintiff ‘must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’.[28]
[28]O’Neill (2006) 227 CLR 57, 82 [65] (Gummow and Hayne JJ); [2006] HCA 46.
In the present case, we consider that Mr Giurina fails on both of these inquiries.
A prima facie case?
First, we agree with the judge that Mr Giurina has not made out a prima facie case in the sense that there is a probability that at the trial of the action he will be held to be entitled to relief. This is because the underlying basis for all Mr Giurina’s claims — that the estate has been fully administered, at least in relation to the property — is simply unarguable.
Mr Giurina says that he no longer has an interest in the property as executor of the estate, because the estate has been fully administered in relation to the property. Rather, he claims that he has a personal interest in the property (either as owner or pursuant to a trust), again because he says that the administration of the estate was completed in October 2003.[29] Thus, he says, the property is no longer property of the estate and cannot be sold pursuant to the current warrants. In our opinion, the proposition that the administration of the estate in relation to the property was completed in 2003, or at any time since then, has no prospect of success at trial.
[29]Before the trial judge Mr Giurina relied upon the assent together with the completion of the administration of the property, but in oral argument before this Court he eschewed any reliance on the assent as the basis for his argument that the administration of the estate had been completed.
It is undisputed that Ms Nacinovich remains the registered owner of the property. Her estate is thus the legal owner of the property. The effect of s 13(1) of the Administration and Probate Act 1958 is that the property vested in Mr Giurina as executor upon the grant of probate. Although under the will Mr Giurina is the beneficiary who stands to receive the property, formal transfer of the registered title to the property to Mr Giurina has not occurred. Mr Giurina submitted that an executor is not obliged to become the registered proprietor of property in the estate that they are administering. So much may be accepted. However, in our opinion the estate cannot be regarded as having been fully administered until the assets of the estate have been distributed in accordance with the will.[30] In so far as money or chattels are concerned, distribution may be informal.[31] But in so far as real property is concerned, attention must be paid to the registered title. Where real property is devised to a specific beneficiary, the administration of the estate cannot be regarded as complete for so long as the legal title to the property remains registered in the name of the deceased person and has not passed to the beneficiary. Thus the factual matters upon which Mr Giurina relied — in particular, the payment of rates and other outgoings by him in his personal capacity, as well as the nature of the Council’s dealings with him — do not require the conclusion that the estate has been fully administered. The property remains the property of the estate; it is vested in Mr Giurina as executor of the estate; and it is available to satisfy the debts of the estate, including the costs orders.
[30]See, eg, Easterbrook v Young (1977) 136 CLR 308, 316–17; [1977] HCA 16 (‘Easterbrook’), where Barwick CJ, Mason and Murphy JJ described the actual distribution of the estate as ‘its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary’.
[31]Attenborough v Solomon [1913] AC 76, 83 (Viscount Haldane LC, Lord Atkinson agreeing at 86, Lord Shaw agreeing at 86) (‘Attenborough’), referred to with approval in Easterbrook (1977) 136 CLR 308, 320 (Barwick CJ, Mason and Murphy JJ); [1977] HCA 16.
In that regard, we note the remarks of this Court in the 2023 appeal:
No error has been identified in the associate judge’s conclusion that Mr Giurina had not made out a prima facie case that the property was no longer an asset in the estate. In these circumstances, even if there was a time in the past when the estate (while still not fully administered) had no debts, debts of the estate incurred subsequently were able to be paid from the proceeds of sale of the property if there were no other assets in the estate sufficient to pay them.[32]
[32]Giurina v Greater Geelong City Council [2023] VSCA 299, [48] (Beach and McLeish JJA) (citations omitted).
The above analysis also provides a reason why Mr Giurina’s contention that he was a trustee of the property, holding it on trust for himself as beneficiary, lacks any prospect of success as a basis for obtaining the relief he seeks. This argument, as articulated before this Court, was based on the proposition that the administration of the estate had been completed. But that submission cannot succeed, for the reasons given above.[33]
[33]We have not found it necessary to consider the matters discussed by Barrett AsJ in the first caveat leave proceeding concerning a further difficulty confronting an argument that a person holds property on trust for themselves: see [2023] VSC 784, [23]–[28].
Mr Giurina relied on several cases in support of his argument, however in our opinion those cases do not assist him.
The first case was Mansour v Mansour. Mr Giurina relied upon the following statement by Hansen J:
The administration of the estate has long since been completed in terms of performance of the parties’ executorial functions. Accordingly the parties now stand as trustees of the trusts in the will.[34]
[34](2009) 24 VR 498, 501 [8]; [2009] VSC 177 (citations omitted) (‘Mansour’).
Thus, as is apparent, there was no dispute in that case about whether the administration of the estate had been completed — but that is the very question that arises in the present case. We also note that in that case the residue of the estate included real property, title to which continued to be held by the estate. But that was because the residue had been left on trust for the testator’s wife for her life and on her death to their sons.[35] Thus it would not have been appropriate for legal title to the real property to have been transferred to the beneficiaries under the will; rather, once the various executorial functions were completed, the real property appropriately remained in the hands of the executors to administer the testamentary trust. Hansen J thus ordered that ‘the assets of the estate vest in the plaintiffs [two of the executors] as continuing trustees thereof’.[36] We do not regard Mansour as inconsistent with what we have said above.
[35]Mansour (2009) 24 VR 498, 499–500 [5]; [2009] VSC 177.
[36]Mansour (2009) 24 VR 498, 499 [2]; [2009] VSC 177.
The next case to which Mr Giurina referred was Pagels v MacDonald, which concerned the question whether an executor had a power of sale over real estate, which had been devised to the testator’s wife for her life and thereafter to their children. In that case Latham CJ said this:
[B]eneficiaries do not in the case of personal property (or in Victoria in the case of real property) acquire in a strict sense any legal interest in the property of the testator in the absence of assent or conveyance by the executor. Sec 36 of the Administration and Probate Act 1928 relating to the effect of assent or conveyance by a personal representative clearly recognizes this position. …
When the executor has performed all his executorial functions he may become a trustee in various ways … he may become a trustee by merely continuing to hold property after his functions as executor have been performed … . When the executor becomes a trustee of ascertained property, the beneficiaries then become owners of equitable interests in that property. Thus a beneficiary under a will does not, by reason of the will alone, obtain any title, legal or equitable, to any asset forming part of the testator’s estate. When he does obtain such a title, he obtains it as a result of the administration of the estate of the testator according to law and in accordance with the dispositions of the will.[37]
[37](1936) 54 CLR 519, 526; [1936] HCA 15.
Again, so much may be accepted. But again the question in this case is whether the executor has performed all his or her executorial functions. As we have explained above, in our view an executor cannot be said to have performed all his or her executorial functions if real property is devised to a specific beneficiary but legal title to the real property has not been conveyed to that beneficiary.
Furthermore, in the present case Mr Giurina disavowed any reliance on what he described as the ‘so-called assent’ as the basis for the claimed trust over the property. He relied only upon other steps he had taken in relation to the property.
Mr Giurina also referred to Baker v Williams.[38] That case concerned the question whether a testator’s family maintenance claim could be brought under s 41 of the Succession Act 1981 (Qld) after the estate had been fully administered. It was common ground in that case that the estate had been fully administered — thus, again, the case sheds no light on the issue raised in the present case, namely whether Ms Nacinovich’s estate has been fully administered. In any event, we do not consider that the passages to which Mr Giurina referred assist his case. In one of those passages, de Jersey CJ quoted from an earlier case, Re Donkin; Riechelmann v Donkin.[39] In that case Gibbs J relevantly said as follows:
the words ‘the estate of the testator’ … refer to all the property that belonged to the testator and has not yet passed to any other person absolutely and in his own right. Once the title of a beneficiary has become complete, so that he holds in his own right the property given to him by the will, that property ceases in any ordinary sense to be part of the estate of the testator, and becomes part of the estate of the beneficiary. The [Testator’s Family Maintenance Acts] give no power either to the Court to order that provision be made out of the estate of a beneficiary, or to the executors to recover former assets of the testator’s estate that have been distributed to the beneficiaries entitled to receive them.
…
If a will requires the executors to hand over the residuary estate to other persons to hold it as trustees, once the estate has been so handed over it ceases to be the estate of the testator and is beyond the power of the Court to effect by an order under The Testator’s Family Maintenance Acts. If however the executors are themselves the trustees, once the estate has assumed the character of a trust estate it equally ceases to be part of the testator’s estate; in equity it belongs to the beneficiaries and the Court is not empowered to divest what has been vested in them.[40]
[38][2007] QSC 226.
[39][1966] Qd R 96 (‘Re Donkin’).
[40]Re Donkin [1966] Qd R 96, 113, 117.
That passage contemplates that the property that makes up the estate must be distributed in order for the administration of the estate to be complete, unless the executors are the trustees for the beneficiaries (such as in the case of a life estate or other testamentary trust). That is consistent with the analysis we have set out above. There is no testamentary trust of that kind in the present case, and nor did Mr Giurina submit that there was such a trust. Rather, his case was based on the fact that he was the specific beneficiary in relation to the property; and the trust he asserted then arose simply by reason of the completed administration of the estate.
Mr Giurina also relied upon Attenborough, but that case concerned chattels and thus sheds no light on when the administration of an estate will be completed in relation to real property. He also relied upon Re McPhail,[41] which concerned the estate of a person who had died intestate, where letters of administration were granted to a trustee company which distributed the estate save for a one-third share which it retained on trust for the deceased’s infant son. The Court held that there had been a final distribution of the estate, so that there was no property of the estate remaining that could be the subject of a testator’s family maintenance claim by the deceased’s widow.[42] Furthermore, that case concerned ‘a statutory creation in the nature of a lease’,[43] not real property that is subject to the registration requirements under the Transfer of Land Act. Again, that case is quite different from the present and does not, in our opinion, support Mr Giurina’s claim that the administration of Ms Nacinovich’s estate has been completed.
[41][1971] VR 534.
[42]Re McPhail [1971] VR 534, 538–9 (Gowans J).
[43]Re McPhail [1971] VR 534, 540 (Gowans J).
Finally, in his written submissions Mr Giurina relied on Re King’s Will Trusts[44] for the proposition that a personal representative of a deceased person ‘may assent to the vesting in himself or herself in another capacity such as beneficiary’. However, as already noted, in oral argument Mr Giurina expressly disavowed any reliance on the purported ‘assent’ in his case. Thus Re King’s Will Trusts has no relevance to the issues before the Court.
The balance of convenience
[44][1964] Ch 542.
Secondly, we agree with the judge’s conclusion that the balance of convenience favours refusing an interlocutory injunction. Like the judge, we accept that the evidence supports the proposition that Mr Giurina has a strong desire to continue to hold the property. However, it is also relevant, in considering the balance of convenience, to consider the interests of the other party (the Sheriff) and, in this case, the judgment creditor whose interests are to be advanced by the sale of the property (the Council). Those interests are advanced by not restraining the sale of the property.
In that regard, we observe that Mr Giurina has taken multiple steps and instituted multiple proceedings to seek to prevent the sale of the property by the Sheriff. These steps and proceedings include lodging caveats that have subsequently been removed,[45] seeking leave to lodge a further caveat,[46] and seeking an interlocutory injunction in the damages proceeding.[47] At each stage he has advanced arguments that lack merit, and has failed in his attempts to obtain relief. But he has succeeded in delaying the sale of the property to satisfy the costs orders.
[45]Greater Geelong City Council v Giurina [2023] VSC 59.
[46]Giurina v Registrar of Titles [2023] VSC 784.
[47]Giurina v Greater Geelong City Council [2022] VSC 396.
In many of the proceedings, Mr Giurina advanced arguments that were directly inconsistent with the arguments he put to the judge in the present proceeding and to this Court.[48] So, for example, in the warrants proceeding before Matthews AsJ in 2022, Mr Giurina submitted that the administration of the estate had not been finalised, and he was therefore not a trustee or beneficiary of a trust.[49]
[48]See, for example, the 2023 appeal, in which the Court observed that, until 2022, ‘in all of the litigation between Mr Giurina and the Council, Mr Giurina conducted matters as the executor of the estate, on the basis that the property formed part of the estate. In the course of doing so, he asserted that the property was part of the estate and that he had no personal interest in it’: Giurina v Greater Geelong City Council [2023] VSCA 299, [16] (Beach and McLeish JJA).
[49]Matthews AsJ summarised Mr Giurina’s submissions in the warrant proceeding in her judgment in Greater Geelong City Council v Giurina [2023] VSC 59, [29]–[33]. Mr Giurina took us to [29]–[31] of those paragraphs, without suggesting that the judge’s summary was in any way inaccurate in the other paragraphs.
The point has been reached where it must be concluded that the balance of convenience favours refusing the interlocutory injunction, notwithstanding the effect on Mr Giurina’s interest in the property should it be sold, and notwithstanding the fact that the sale of the property would render nugatory his application for relief in the underlying proceeding.
Finally, in light of the above matters, we do not consider that it would be just and equitable to grant the interlocutory injunction Mr Giurina seeks. Nor do we accept that he will suffer a substantial injustice if the interlocutory injunction is not granted.
We add for completeness that we reject Mr Giurina’s submission that the Sheriff has no power to execute the warrants until a court has confirmed that the property identified in the warrants is the property of the estate. This argument commenced as an argument about the scope of s 24 of the Sheriff Act 2009, but transformed in the course of the hearing to an argument about the circumstances of this case. The argument was that, because Mr Giurina has asserted that the property is not the property of the estate, and because the question whether the administration of the estate is complete has not previously been resolved by a court, the Sheriff has no power to execute the warrants until that assertion has been resolved by a court. That contention cannot be accepted. The issue of the warrants by the Court is sufficient authority for the Sheriff to execute them. Indeed, the Sheriff has a statutory duty to execute warrants that have been issued.[50] That duty can, of course, be affected by the grant of an interlocutory injunction, which may occur if an affected person has demonstrated that there is a serious question to be tried. But where such an injunction is not granted, the fact that the affected person makes an assertion about the operation of the warrants that has not to date been the subject of judicial decision does not prevent the Sheriff from executing the warrant. Nor is the fact that such an assertion is made a sufficient basis for the grant of an interlocutory injunction, separately from the general approach to the grant of interlocutory relief of this kind.
[50]Sheriff Act s 13.
For the reasons given above, we would have refused to grant the interlocutory injunction even if we had concluded that the judge erred in one of the ways asserted by Mr Giurina. For this reason, we would refuse leave to appeal.
The application for leave to appeal in the caveat proceeding
The judge’s ruling on the caveat application
The judge noted that the underlying basis of Mr Giurina’s submissions on the caveat application was the same as for the injunction application:
[Mr Giurina] seeks leave to lodge caveats based either on his interest as a beneficiary or on the basis of a declaration of trust with the plaintiff stemming from 11 October 2003. That date is identified in Mr Giurina’s affidavit in support of his summons as the date upon which he, as executor, completed the distribution of the property to himself in his personal capacity or in his capacity as trustee.
He deposed that there was no need for any physical act to be done such as handing over the keys, as he was already in possession, but that this date marked the transfer of the interest by assent. He exhibits a handwritten note to himself of this mental exercise. The note records an assent as executor to disposition of the property ‘to myself as beneficiary’, and as beneficiary, an acceptance of the assent and agreement to pay outgoings and not claim against the estate, and that is page 83 of the exhibit bundle attached to his affidavit in support.
The alternative basis for relief is that on a full administration of the estate in respect of the property, Mr Giurina’s role as executor came to an end, and he became trustee of the property for the benefit of himself as beneficiary. He submits that when it becomes trust property held by him as trustee, it ceases to be estate property, relying on Baker v Williams [2007] QSC 226 and on CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 and an extract from Lewin on Trusts, 19th edition, for this proposition.[51]
[51]Reasons, 74.
Mr Giurina’s submission was that, if the material before the Court was sufficient to demonstrate that his claim was ‘not implausible’, leave to lodge the caveats should be granted.[52] He relied on Dharmalingham v Registrar of Titles[53] in support of this proposition.
[52]Reasons, 75–6.
[53][2005] VSC 417 (‘Dharmalingham’).
Her Honour observed that Dharmalingham concerned a different question, about when a caveat ceases to have force and effect by the operation of s 89A of the Transfer of Land Act. Under s 89A(3), upon receiving an application from a person interested in land affected by a caveat and being satisfied of certain matters, the Registrar is to give notice to the caveator that the caveat will lapse on a specified date unless the application is abandoned or notice is given to the Registrar that proceedings are on foot to substantiate the claim of the caveator.
Mr Giurina relied upon a passage in Dharmalingham where Hargrave J had extracted a letter from the Registrar. In that letter the Registrar explained that a particular caveat had not lapsed following service of a notice under s 89A(3), because the Registrar had subsequently received a notification that proceedings were on foot to substantiate the caveator’s claim, which was ‘not implausible’.[54]
[54]Dharmalingham [2005] VSC 417, [32].
In the judge’s view, this letter said little about the role of the Court in identifying a caveatable interest.[55] The judge said this:
In those circumstances, I am not persuaded that Mr Giurina has correctly expressed the test that I should apply. There is an important distinction between the role of the registrar — essentially an administrative role, but one on occasion requiring the exercise of judgment — and that of a court giving leave to a party to undertake certain acts.[56]
[55]Reasons, 77.
[56]Reasons, 77.
The judge likened an application for leave to lodge a caveat to an application to remove a caveat under s 90(3) of the Transfer of Land Act, where the onus is on the caveator to satisfy the court of the caveatable interest and the circumstances that would favour maintaining a caveat. Were leave to lodge a caveat to be granted where the putative caveator had not satisfied these matters, the caveat would be susceptible to removal. Therefore, her Honour said, ‘the test in relation to the caveatable interest is analogous to the test in the proceedings in the sheriff’s matter in relation to the interlocutory injunction’.[57]
[57]Reasons, 77.
The judge noted that Barrett AsJ had dealt with Mr Giurina’s previous application for leave to lodge a caveat over the property by considering whether the applicant had an arguable case.[58] The judge said that Barrett AsJ’s approach was ‘consistent’ with the test as she had expressed it.[59]
[58]Giurina v Registrar of Titles [2023] VSC 784.
[59]Reasons, 77–8.
As to whether Mr Giurina had demonstrated a caveatable interest, the judge first considered Mr Giurina’s asserted interest as beneficiary. An earlier caveat lodged by Mr Giurina on this basis had been ordered to be removed. An attempt to seek leave on the basis of the same interest had been refused by Barrett AsJ in December 2023. The interest was the same and it was only how the interest was said to arise that had changed with each application.[60]
[60]Reasons, 86–7.
The judge then considered Mr Giurina’s asserted interest based on a declaration of trust. There was no evidence of any such declaration. The substance of the applicant’s legal argument appeared:
to stem only from the words of the will, which empower Mr Giurina to act as trustee as well as executor. That does not, of itself, create a trust relationship in respect of any particular property of the estate.[61]
[61]Reasons, 87.
The judge said that, even if a trust in favour of oneself could be made, she would not be satisfied that there was a serious question to be tried that the applicant had a caveatable interest. And if there were a serious question to be tried, she would not be satisfied that the balance of convenience would warrant interlocutory relief; nor that any caveatable interest would withstand an application to remove a caveat under s 90(3) of the Transfer of Land Act.[62]
Mr Giurina’s proposed grounds of appeal on the caveat application
[62]Reasons, 87–8.
Mr Giurina advanced two proposed grounds of appeal in relation to the caveat application:
(1)The judge applied the wrong test when deciding whether to grant leave to the Applicant to lodge the relevant caveats in circumstances where the claims of the Applicant underlying the caveats met the test which the judge should have applied as stated in Layrill Pty Ltd v Furlap Constructions Pty Ltd [2002] VSC 51 at [12].
(2)The judge erred in her understanding as to how the Applicant had submitted that at law the trust arose which formed the basis of the second caveat sought to be lodged by the Applicant.
Ground 2 was developed in writing, and in oral argument, on the basis that it turned on the proposition that the estate had been fully administered.
Consideration of the caveat appeal
Ground 1 concerns the correct test to be applied by a court in determining whether to grant leave to lodge a caveat, in circumstances where an order has been made requiring such leave. This question does not appear to have been the subject of consideration by this Court. Given that the Registrar did not appear, we did not have the benefit of a contradictor on the question.
The short answer to Mr Giurina’s case in relation to the caveats is that, even if we were to conclude that the judge made a specific error in the course of her reasoning (whether that identified in ground 1 or ground 2), so that it was appropriate for this Court now to make the orders that her Honour ought to have made, we would make the same order. That is, we would refuse leave for Mr Giurina to lodge the caveats he seeks to lodge.
To put it another way, we consider that the judge was correct to make the order she made in the caveat proceeding. That is because the basis for Mr Giurina’s asserted interests that he seeks to protect by the lodgement of the caveats is the interest he claims has resulted from the completion of the administration of the estate, discussed above. However, for the reasons given above, we consider that this aspect of Mr Giurina’s argument has no prospect of success. To put it in the terms used in Layrill Pty Ltd v Furlap Constructions Pty Ltd,[63] it is unarguable. Thus, had we found it necessary to re-exercise the judge’s discretion, we would have refused leave to lodge the caveats.
[63](2002) V ConvR ¶54-659; [2002] VSC 51 (‘Layrill’).
In light of that conclusion, it is not strictly necessary to determine whether the judge erred in the test her Honour applied in determining whether to grant Mr Giurina leave to file the caveats. However, it is appropriate to say something about Mr Giurina’s arguments on this issue.
As we have explained, the judge applied the test applicable to the removal of a caveat under s 90(3) of the Transfer of Land Act — namely that the onus is on the caveator to demonstrate an arguable caveatable interest which, on the balance of convenience, should remain pending trial. That test is analogous to the test for an interlocutory injunction, as set out above.[64]
[64]Piroshenko v Grojsman (2010) 27 VR 489, 491 [7] (Warren CJ); [2010] VSC 240 (‘Piroshenko’).
Mr Giurina contended that the appropriate test was whether his claim to have a caveatable interest was ‘not unarguable’. This would be a low bar. In support of this proposition, he relied on Layrill.[65]
[65](2002) V ConvR ¶54-659; [2002] VSC 51.
Layrill was an application under s 103(1) of the Transfer of Land Act for an order that the Registrar be directed to refuse to record certain caveats lodged in connection with a joint venture agreement to purchase and develop property. One of the joint venturers lodged a caveat claiming an equitable interest in fee simple in the property. An application to remove that caveat was successful. The caveator then lodged a subsequent caveat claiming an interest as an equitable mortgagee.
Mandie J declined to make an order directing the Registrar to refuse to record the subsequent caveats. His Honour observed:
It is at least arguable … that Clause 7.4 of the joint venture agreement does give rise to a right or interest in Furlap in the land as an equitable mortgagee. I have heard some argument on that point, and it may be that there will be further argument if there is subsequently an application to remove the caveat, but I am not satisfied that the contention is so hopeless that I could say that there are no grounds at all for making a claim of that kind. It is not unarguable, in my view, and unless it is unarguable, then the Court should not decide on an application such as this that there is no caveatable interest to be protected.[66]
[66](2002) V ConvR ¶54-659, 62,475–6 [12]; [2002] VSC 51 (emphasis added).
It is this passage that the applicant says expresses the ‘test’ that should have been applied by the judge in deciding whether to grant him leave to lodge the caveats. We disagree. Layrill does not support Mr Giurina’s position. His Honour was considering a different question, namely whether to exercise a statutory power of direction over the Registrar.
In our view, more assistance can be derived from authorities dealing with s 129(2) of the Land Title Act 1994 (Qld) (the ‘Qld Act’). That section provides as follows:
129 Further caveat
…
(2)A further caveat with the same caveator can never be lodged in relation to the interest on the same, or substantially the same, grounds as the grounds stated in the original caveat unless the leave of a court of competent jurisdiction to lodge the further caveat has been granted.
In Rocky Point Holdings Pty Ltd v TEB Enterprises Pty Ltd, Davis J described s 129(2) of the Qld Act as vesting a discretion in the Court to authorise the lodgement of a second caveat founded upon the same interest as that claimed in an earlier caveat. His Honour noted that, although nothing in s 129(2) limited the discretion or identified considerations relevant to its exercise, various authorities had identified the following matters as relevant to the exercise of the discretion:[67]
[67](2023) 13 QR 465, 474–5 [23]–[24]; [2023] QSC 20.
1. a caveatable interest must be identified;[68]
2.where the caveatable interest is in dispute, the party seeking to lodge the second caveat must show a serious question to be tried;[69]
3. any explanation for allowing the original caveat to lapse;[70]
4.any explanation for any delay in making the application for leave to lodge the second caveat;[71] and
5. the balance of convenience.[72]
[68]Oversea-Chinese Banking Corporation Ltd v Becker [2004] 1 Qd R 409, 412 [18] (Chesterman J); [2003] QSC 301 (‘Oversea-Chinese Banking’).
[69]Re McKean’s Caveat [1988] 1 Qd R 524; Landlush Pty Ltd v Rutherford [2003] 1 Qd R 236, 240 [18] (Wilson J); [2002] QSC 219 (‘Landlush’); Field v Gaborit [2002] QSC 466, 7 (Mullins J) (‘Field’).
[70]Landlush [2003] 1 Qd R 236, 240 [18] (Wilson J); [2002] QSC 219; Field [2002] QSC 466, 7 (Mullins J).
[71]Landlush [2003] 1 Qd R 236, 240 [18] (Wilson J); [2002] QSC 219; Field [2002] QSC 466, 7 (Mullins J).
[72]Oversea-Chinese Banking [2004] 1 Qd R 409, 412 [18] (Chesterman J); [2003] QSC 301; Landlush [2003] 1 Qd R 236, 240–1 [18]–[19] (Wilson J); [2002] QSC 219; Field [2002] QSC 466, 7 (Mullins J).
The authorities referred to by Davis J included Oversea-Chinese Banking. In that decision, Chesterman J explained the court’s approach in an application for leave to lodge a further caveat pursuant to s 129(2) of the Qld Act as follows:
There is clearly a broad general discretion to be exercised by reference to whatever considerations are relevant in the particular case.
In accordance with general principle the applicant for leave must show that the order is appropriate in all the circumstances. Obviously the applicant must demonstrate a caveatable interest in the land such as to justify the caveat. If the grounds for lodging the caveat are arguable rather than plain, questions of the balance of convenience between caveator and caveatee must be addressed as they are in applications to remove caveats.[73]
[73]Oversea-Chinese Banking [2004] 1 Qd R 409, 412 [17]–[18]; [2003] QSC 301.
In our view, where an order has been made requiring a person to obtain leave of the Court before lodging a caveat, the Court’s discretion to grant leave is similarly broad. In deciding whether to exercise that discretion, we consider that it is permissible to adopt the approach taken by the trial judge, namely to assess whether the applicant for leave can demonstrate an arguable caveatable interest which, on the balance of convenience, should remain pending trial.
As the judge recognised, such an approach also conforms with the established position on the Court’s discretion in applications for the removal of a caveat pursuant to s 90(3) of the Transfer of Land Act. In Piroshenko, Warren CJ endorsed the two-stage test used when deciding whether to grant interlocutory injunctive relief as applicable to decisions on applications under s 90(3), although noting that the test could not subsume or restrict the statutory power to make such orders as the Court ‘thinks fit’.[74]
[74](2010) 27 VR 489, 491–2 [11]; [2010] VSC 240, cited with approval on this point in Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, [35]–[36] (Santamaria, Ferguson and McLeish JJA), Lawrence & Hanson Group Pty Ltd v Young [2017] VSCA 172, [36]–[38] (Redlich, Kyrou JJA and Keogh AJA) and Lee v Yap [2021] VSCA 297, [85] (Kyrou, McLeish and Walker JJA).
As noted earlier, Mr Giurina requires an extension of time to file his notice of application for leave to appeal in the caveat proceeding. The factors that are relevant to the exercise of the Court’s discretion under r 64.08 of the Supreme Court (General Civil Procedure) Rules 2015 to grant an extension of time include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to a respondent.[75] In the present case we accept that the length of the delay is short, some reasons for it have been provided, and that there is no prejudice to the respondent, who has not appeared in opposition to the application. However, as explained above, the appeal has no prospects of success. In those circumstances, the grant of an extension of time would be futile.
[75]Gippsreal Ltd v Kenny [2016] VSCA 65, [21] (Kyrou JA).
We thus refuse Mr Giurina’s application for an extension of time to file his notice of application for leave to appeal in relation to the caveat proceeding.
Conclusion
For the reasons set out above, the judge was correct to make the orders she made. We will thus make orders:
(a)refusing leave to appeal in proceeding S EAPCI 2024 0031; and
(b)refusing the application for an extension of time in proceeding S EAPCI 2024 0039.
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