Ezy Global Ltd v Miller Crescent P/L - [2019] VSC 815

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 05128

Between:

EZY GLOBAL LIMITED	Plaintiff
-and-
MILLER CRESCENT PTY LTD (ACN 615 853 202)	First Defendant
-and-
MEDPRO FINANCE CORPORATION PTY LTD (ACN 630 454 992)	Second Defendant
-and-
REGISTRAR OF TITLES	Third Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2019
DATE OF JUDGMENT:	11 December 2019
CASE MAY BE CITED AS:	EZY Global Ltd v Miller Crescent P/L & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 815

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REAL PROPERTY — Caveat — Application by plaintiff to restrain Registrar of Titles from registering mortgage lodged by second defendant on title of land owned by first defendant — Plaintiff loaned money to first defendant “solely for the purpose of the development of [the land]” — No charging clause in loan agreement and none intended — Whether prima facie case giving rise to serious question to be tried that plaintiff has caveatable interest in land — Whether balance of convenience requires order sought — No caveatable interest — Application refused — Transfer of Land Act 1958 (Vic), s 90(2).

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Appearances:	Counsel	Solicitors
For the Plaintiff	Mr L P Wirth	Ascot Solicitors
For the First Defendant	Mr C Truong QC with Mr C Hender	Dentons Australia Limited
For the Second Defendant	No appearance
For the Third Defendant	Submitting appearance

HIS HONOUR:

Overview

This is an application by EZY Global Limited (“EZY Global”) for an order, pursuant to s 90(2) of the Transfer of Land Act 1958 (Vic) (“the TLA”), restraining the Registrar of Titles from registering a mortgage lodged by Medpro Finance Corporation Pty Ltd (“Medpro”) on the title of land in Mount Waverley (“Miller Crescent”) the registered proprietor of which is Miller Crescent Pty Ltd (“Miller”).

In the alternative, EZY Global applies for an order permitting the registration of the mortgage subject to funds advanced by Medpro being paid to EZY Global, or into Court, to the extent necessary to discharge Miller’s indebtedness to EZY Global in respect of the latter’s alleged interest in Miller Crescent.

EZY Global ultimately lodged a caveat on Miller Crescent, claiming it had an interest in the property. When notified by the Registrar that Medpro was seeking to register a mortgage on the same title, EZY Global brought the current application.

The application cannot succeed unless I am persuaded of two things. First, EZY Global must establish that there is a prima facie case giving rise to a serious question to be tried as to whether it has a caveatable interest in Miller Crescent. Secondly, EZY Global must show that the balance of convenience favours the maintenance of the caveat on the Register and the prevention of Medpro’s mortgage being registered (or that there should be an order of the type sought in the alternative).[1]
[1]See, for example, Piroshenko v Grojsman (2010) 27 VR 489 at 492[12]-495[23] (per Warren CJ).

On the evidence before me, I am not persuaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 815
Decision Date: 11 December 2019

CaseChat Overview and Summary

Ezy Global Ltd initiated proceedings against Miller Crescent P/L and another defendant, seeking to prevent the Registrar of Titles from registering a mortgage over land owned by Miller Crescent P/L. The land in question was subject to a loan agreement between Ezy Global Ltd and Miller Crescent P/L, whereby Ezy Global Ltd provided funds to Miller Crescent P/L for the development of the land. However, the loan agreement did not include a charging clause, and no such clause was intended by either party. The primary issue before the court was whether Ezy Global Ltd had a caveatable interest in the land, which would entitle it to restrain the registration of the mortgage. The court also had to consider whether the balance of convenience favoured granting the order sought by Ezy Global Ltd.

The court examined the nature of the loan agreement and the intentions of the parties, finding that there was no express or implied agreement that would give rise to a caveatable interest in the land. The court held that the funds provided by Ezy Global Ltd were intended solely for the development of the land, and not for securing a charge over the property. As such, Ezy Global Ltd did not have a prima facie case that would give rise to a serious question to be tried. The court also found that the balance of convenience did not favour Ezy Global Ltd, as the registration of the mortgage would not cause significant hardship to Miller Crescent P/L, while denying the registration would prevent it from obtaining necessary financing for the development of the land.

The court ultimately refused Ezy Global Ltd’s application to restrain the registration of the mortgage, finding that it did not have a caveatable interest in the land. The court relied on the provisions of the Transfer of Land Act 1958 (Vic), which set out the criteria for the registration of caveats and the circumstances in which they may be removed. The court held that Ezy Global Ltd’s application did not meet the requirements for a caveat, and that the balance of convenience did not favour granting the order sought. The court’s decision was based on a careful analysis of the loan agreement and the intentions of the parties, as well as a consideration of the relevant statutory provisions.

The final orders of the court were that Ezy Global Ltd’s application be refused, and that the Registrar of Titles be permitted to register the mortgage over the land owned by Miller Crescent P/L. The court also made no order as to costs. This decision provides guidance to lenders and borrowers in relation to the requirements for a caveatable interest in land, and the factors that the court will consider when deciding whether to grant an order to restrain the registration of a mortgage.

Orders