Flagstaff Securities Ltd v Jackson

[2001] VSC 450

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8178 of 2001

FLAGSTAFF SECURITIES LIMITED	Plaintiff
v.
WENDY ELIZABETH JACKSON AND ANOTHER	Defendant

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 NOVEMBER 2001
DATE OF JUDGMENT:	19 NOVEMBER 2001
CASE MAY BE CITED AS:	FLAGSTAFF SECURITIES LTD. v. JACKSON & ANOR.
MEDIUM NEUTRAL CITATION:	[2001] VSC 450

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CATCHWORDS:      Removal of caveat – Legal interest of mortgagee – Sale by mortgagee – Priority of interests in land.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. T. Di Lallo	Russell Kennedy
For the Defendant	Mr. P. Finkelstein	F.L.A. Partners

HIS HONOUR:

1. Tyneworth Pty Ltd is the registered proprietor of the property at 5 Balcombe Road, Newtown, Geelong, being the land in Certificate of Title Vol. 9302 Folio 532.  Tyneworth is a company controlled by Stephen Paul Jackson.  His wife is Wendy Elizabeth Jackson. 

1. By a mortgage dated 15 November 1996 and registered in the Land Titles Office, Tyneworth mortgaged the land to the plaintiff, Flagstaff Securities Ltd, formerly R.K. & C. Nominees Pty Ltd.  By a second mortgage dated 23 December 1998, Tyneworth mortgaged the land to the Australia and New Zealand Banking Group.

1. It would appear that since about 1992 there have been matrimonial disputes between Mr and Mrs Jackson.  I say that because in 1992 Mr Jackson filed a proceeding, No. ML03208, in the Family Court of Australia.  His wife, Wendy Elizabeth Jackson, is the respondent to that proceeding.

1. On 15 May 2000 the Family Court made the following consent order in the proceeding:

"The husband do all such acts and things and sign all such documents as may be required to cause transfer to the wife of all of the right, title and interest of Tyneworth Pty Ltd as registered proprietor of the real property being the former matrimonial home situate and known as 5 Balcombe Road, Newtown, free of any encumbrances."

1. On 30 June 2000 Tyneworth and Mrs Jackson signed a transfer of land transferring the title of the property to Mrs Jackson.  The transfer has never been registered.

1. On 5 October 2000 Mrs Jackson caused a caveat to be registered on the title to the property.  The estate or interest claimed is an estate in fee simple.  The grounds of claim read:

"Pursuant to a transfer of land dated 30 June 2000 made in accordance with orders of the Family Court of Australia at Melbourne made on 12 May 2000 in action No. 03208 of 1992."

The extent of prohibition is expressed to be "absolutely".

1. By April 2001 Tyneworth was in default under its mortgage to the plaintiff.  On 6 April 2001 the plaintiff caused a notice of sale to be served on Tyneworth.  A further notice of sale was served on Tyneworth on 18 April 2001. 

1. On 22 September 2001 the plaintiff sold the property by public auction to Hugh Michael Odell Raymond for $900,000.  Settlement of the sale is scheduled for Wednesday next, 21 November.

1. On 2 November the plaintiff filed an originating motion in the court, incorrectly naming Tyneworth Pty Ltd as first defendant and the Registrar of Titles second defendant, whereby it seeks an order under s.90(3) of the Transfer of Land Act that the Registrar of Titles remove caveat No. X063076Y from Certificate of Title Vol. 9302 Folio 532..  The wrong joinder of Tyneworth as a defendant to the proceeding was rectified by order of Master Wheeler on 12 November 2001, when the Master gave the plaintiff leave to amend the proceeding by substituting Wendy Elizabeth Jackson for Tyneworth Pty Ltd.

1. By reason of the registration of its mortgage the plaintiff has a legal interest in the land.  At best, any interest of the first defendant, on the other hand, is an equitable interest.  Whatever interest the first defendant may have in the property, it cannot take priority to the interest of the plaintiff.  Pursuant to its interest the plaintiff is empowered to sell the property in the event of Tyneworth's default under the mortgage.  Tyneworth did make default and the plaintiff has exercised that power.

1. The presence, of course, of the defendant's caveat will, unless it is removed, prevent settlement of the sale occurring on Wednesday.

1. I can see no reason why settlement should not proceed, and accordingly I order that the second defendant remove caveat No. X063076Y from Certificate of Title Vol. 9302 Folio 532 in the register book.

1. I further order that the first defendant pay the plaintiff's costs of the proceeding, including any reserved costs.

1. I direct that this order be prepared by the solicitors for the plaintiff and brought to me for authentication.

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