Ghosh v Registrar of Titles
[2024] VSCA 295
•2 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0096 |
| NEELANJAN GHOSH | Applicant |
| v | |
| REGISTRAR OF TITLES | First Respondent |
| AUSTRALIA AND NEW ZEALAND BANKING CORPORATION | Second Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 November 2024 |
| DATE OF JUDGMENT: | 2 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 295 |
| JUDGMENT APPEALED FROM: | Ghosh v Registrar of Titles (Unreported, Supreme Court of Victoria, Gorton J, 26 July 2024) |
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INJUNCTIONS – Appeal – Application for leave to appeal against refusal of interlocutory injunction – No evidentiary foundation for granting of interlocutory injunction – Applicant failing to establish serious question to be tried as to entitlement to relief – No error in primary judge refusing to grant interlocutory injunction – Proposed appeal not having a real prospect of success – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | In person | ||
| Respondents: | No appearance | ||
Solicitors | |||
| Applicant: | |||
| Respondents: | |||
BEACH JA:
Until his death on 14 February 2012, Biswanath Ghosh and his wife, Aroti Ghosh, were registered as joint proprietors of a residential property in Glen Waverley (‘the Property’). Upon Biswanath Ghosh’s death, Aroti Ghosh effectively became the sole proprietor of that Property. Aroti Ghosh died on 9 June 2022. Following her death, her sons, Neelanjan Ghosh (‘the applicant’) and Anaban Ghosh, came into dispute about a range of matters, including the disposition and ownership of the property. The background, circumstances and development of that dispute can be found in this Court’s decision of Ghosh v Ghosh[1] published earlier today.[2]
[1][2024] VSCA 294 (‘Probate Appeal Reasons’).
[2]As to further background in respect of the dispute between the applicant and his brother, see the judgments identified in n1 of the Probate Appeal Reasons.
In 2005, the Property was mortgaged to secure a loan from the Australian and New Zealand Banking Group Ltd (‘ANZ’). That mortgage was registered on 28 June 2005.
On 5 July 2024, the Registrar of Titles (‘the Registrar’) sent a letter to the applicant, advising that a Discharge of Mortgage had been lodged by ANZ. The Registrar said that unless she was served with an urgent injunction or orders preventing her from doing so within seven days, she intended to process the Discharge of Mortgage.
On 26 July 2024, after commencing a proceeding on 25 July 2024 against the Registrar and ANZ,[3] the applicant applied, on summons, for ‘an immediate injunction’ to prevent the Registrar from processing the Discharge of Mortgage. The application was supported by an affidavit affirmed by the applicant on 24 July 2024 (‘the affidavit’). The affidavit consisted of seven paragraphs as follows:
1.Registrar Of Titles has advised in their letter dated 5th July 2024 of intention to process the Discharge of Mortgage AY149892V lodged by Australia and New Zealand Banking Corporation (ANZ) on 28th July 2024 on volume/folio 08643/730, property at 18 Hallows St., Glen Waverley Vic 3150.
2.I advised the Registrar of Titles of the ongoing litigation (now at Court of Appeal S EAPCI 2024 0062) on the folio, as well as other issues and the Registrar of Titles advised in their letter dated 9th July 2024 which was emailed to me at 4.30 pm on 10th July 2024 that the Notice of Action will remain on the folio due to the extant appeal and also advised that the Discharge of Mortgage AY149892V will still be processed unless an injunction of court order was procured.
3.I submitted to the Registrar of Titles that the Notice of Action along with other issues that required resolution additionally prevented the Discharge of Mortgage AY149892V to be processed and therefore the Discharge of Mortgage AY149892V should not be processed.
4.I submit that I have paid as an owner for rates, mortgage payments, maintenance etc over the years and freely lived, used and enjoyed the property as my principal place of residence since Aug 1990 to this day and intend to continue living at the property as my principal place of residence.
5.I submit that a purchase money resulting trust ensues in my favour beneficially on the property, a presumption of advancement exists, reexecuted unlodged land transfer documents are in my possession along with the title, declaration of trust had been executed over the property in my favour and I have raised issues with the transfer out of my interest in the property in sep 2002 which transfer requires further investigation and all of this requires that status quo be maintained on the folio and Discharge of Mortgage AY149892V not be processed.
6.I submit that the rights of Mortgagee have been subrogated to me and those rights by subrogation would be affected if the Discharge of Mortgage were processed and it is up to me to lodge the Discharge of Mortgage and not up to Australia and New Zealand Banking Corporation (ANZ).
7.The Registrar of Titles in the letter dated 15th July 2024 while addressing other issues I had raised, stated ‘As you are a non-represented party, I agree to grant an extension until 26 July 2024 for you to obtain an urgent injunction or orders preventing me from processing Discharge of Mortgage AY149892V. No further requests for an extension will be granted based on my obligations under the TLA’.
[3]For completeness I note that the second defendant was named in the proceeding as ‘Australia and New Zealand Banking Corporation’.
The applicant’s affidavit for ‘an immediate injunction’ against the Registrar was heard by Gorton J on 26 July 2024. The applicant appeared for himself on the application. No other party appeared on the substantive application. At the conclusion of argument, the judge dismissed the application.[4]
[4]Ghosh v Registrar of Titles (Unreported, Supreme Court of Victoria, Gorton J, 26 July 2024) (‘Reasons’).
The applicant now seeks leave to appeal from the dismissal of his application. In his application for leave to appeal, he advances 24 proposed grounds of appeal.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the applicant’s application for leave to appeal for hearing and determination by a single Judge of Appeal.[5] Following an oral hearing on 25 November 2024, this is the determination of the applicant’s application for leave to appeal. For the reasons which follow, the application for leave to appeal will be refused.
[5]As to the power of a single judge to hear and determine an application for leave to appeal, see Ghosh v Ghosh [2023] VSCA 77 (J Forrest AJA).
The injunction application
As I have already said, the applicant appeared for himself on the injunction application. At the commencement of the application, he told the judge that he had given notice of the application and the time at which it was due to be heard to the parties; as well as to the lawyers who had represented his brother, Anaban, in the proceedings the subject of the appeals dealt with in the Probate Appeal Reasons. While the Registrar was represented for the purpose of dealing with any issue as to costs, she did not participate in the substantive application. ANZ and the applicant’s brother (who was not, in any event, a party to the proceeding the applicant had commenced) did not appear.
As appears from the very limited material in the affidavit, the applicant put his claim for an injunction on two bases:
(1)first, on the basis that the Registrar could not (or should not) process the Discharge of Mortgage while a Notice of Action remained ‘on the folio’; and
(2)secondly, on the basis that there was a resulting trust over the property in the applicant’s favour; causing the rights of the mortgagee (ANZ) to be subrogated to the applicant; and those rights of subrogation would be adversely affected if the Discharge of Mortgage was processed by the Registrar.
The background to the first basis for the claimed injunction can be found in the Registrar’s letter of 9 July 2024 referred to in paragraph 2 of the affidavit. That letter relevantly provided:
Notice of Action AV891151A
Based on the Court documents received for the Court of Appeal Proceedings, Notice of Action AV891151A will remain over the affected folio of the Register.
I confirm that a notice of action is a notation on a folio created by the Registrar under section 106(1)(f) of the Transfer of Land Act 1958 (TLA). It allows me to monitor instruments affecting the subject land. It also provides notice to anyone searching the Register that proceedings may be on foot affecting the land.
You should note that Notice of Action AV891151A does not prevent the lodgment or registration of any instruments and is removed at a time I consider appropriate. Generally, this is at the conclusion of litigation relating to the affected folio, or upon the lodgment of instruments contemplated by the conclusion of the dispute.
I am not obliged to and do not actively manage proceedings relating to the above affected folio. I rely on parties to a proceeding to provide substantive updates in matters giving rise to a notice of action, including when litigation has concluded.
Please advise me as soon as possible as to the result of the hearing.
Discharge of Mortgage AY149892V
I refer to my comments above and confirm the comments in my previous letter dated 5 July 2024 regarding Discharge of Mortgage AY149892V.
Unless I am served with an urgent injunction or orders preventing me from doing so within 7 days of my letter dated 5 July 2024, I intend to process Discharge of Mortgage AY149892V.
In oral argument, in addition to making submissions on the two bases identified in the affidavit for the granting of an injunction, the applicant expanded on what he said about the events of 2002 in paragraph 5 of the affidavit. Specifically, the applicant submitted that ‘the events of 2002’, by which his name ceased to be on the title of the Property, had given rise to him obtaining an equitable interest in the Property.
Finally (so far as the application for the injunction is concerned), for completeness, I note that at no stage during the hearing of the application did the applicant proffer any undertaking as to damages.
The Reasons
After referring to relevant background, including the background to the proceedings which were the subject of the Probate Appeal Reasons, the judge said that, in order to obtain interlocutory relief, the applicant was obliged to establish that there was a serious issue to be tried and that the balance of convenience favoured the maintenance of the status quo until trial.[6]
[6]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19] (Gleeson CJ and Crennan J), 81–84 [65]–[71] (Gummow and Hayne JJ) (‘O’Neill’).
In respect of the applicant’s argument based on the Notice of Action, and the applicant’s claim that he obtained an equitable interest in the Property in 2002, the judge said:
In a letter to Mr Ghosh dated 9 July 2024, the Registrar said to Mr Ghosh that a Notice of Action is a notation created under s106(1)(f) of the Transfer of Land Act 1958 that allows her to ‘monitor instruments affecting the land’ and ‘provides notice to anyone searching the register that proceedings may be on foot affecting the land’, but ‘does not prevent the lodgement or registration of any instruments’.
Section 106(1)(f) of the Transfer of Land Act provides as follows:
The Registrar ... may take any other step necessary to protect the operation, effectiveness and integrity of the Register, including, but not limited to, the making of a notation on a folio of the Register.
Mr Ghosh has not put forward any good reason for which the presence of a notice of action operates to preclude the Registrar from processing the discharge of mortgage. The two passages he set out from Fenedisto Pty Ltd v Brott [2005] VSC 459 and Tawafi v Weil [2017] VSC 643 did not establish a legal principle that the presence of the notice of action prevented the Registrar from processing an instrument, nor does the fact that the ANZ might be added, he said, to the appeal from Justice O’Meara’s decision mean that the Registrar is unable to process the discharge.
Mr Ghosh referred orally in submissions before me this morning to the events of 2002, by which his name ceased to be on the title, and, he said he obtained an equitable interest. He led no evidence of these matters, but, more fundamentally, he did not draw a nexus between those events and the need or power to prevent the Registrar from processing a discharge or mortgage.
Under the heading ‘Standing’, the judge said:
Mr Ghosh has not put forward any good reason for which the Registrar is not able to process a discharge of mortgage provided to her by a mortgagee. He did not identify and I have not identified anything in the Transfer of Land Act 1958 that so restricts her powers or that would disentitle a mortgagee from lodging an instrument for registration.
The judge then turned to the applicant’s submission that ANZ’s rights as mortgagee had been subrogated to him; that those rights would be affected if the Discharge of Mortgage was to be processed; and that it was up to the applicant, not ANZ, to lodge any Discharge of Mortgage. The judge said:
I accept that generally speaking if a surety discharges another’s debt the surety may be entitled to the benefit of the security that the lender had against the principal debtor. Mr Ghosh, however, simply did not lay a proper evidentiary foundation for any argument that he as surety discharged a debt owed by his mother to ANZ or that he otherwise provided money that was used to discharge a home loan owed by his mother on a house, in which I note he was living, to ANZ in circumstances that generates in his favour an equity satisfied only by requiring ANZ to pursue legal rights against his mother for his benefit and at his direction or otherwise giving him a right of subrogation in respect of that mortgage that would give him the right to stand in the shoes of the ANZ and to the benefit of its mortgage. I refer to Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, 5th Edition, paragraph 9-015.
There is a tension, of course, between Mr Ghosh’s assertion that his contribution to mortgage payments gives rise to a constructive trust where he is in equity an owner of the property and his assertion that his contribution to mortgage payments means that he is a creditor of the owner and should be able to enforce the security.
After referring to authority, the judge then said:
On the evidence before me, it could not be said that equity might entitle Mr Ghosh to enforce the security given to ANZ against his mother’s estate to recover as a debt from the estate monies that were applied by him towards repaying the loan for the home in which he was living.
Aged Care Services Pty Ltd v Kanning Services Pty Ltd[7] concerned a dispute arising in a joint venture. It emphasised that the matter comes down to whether an ‘equity arises from the conduct of the parties’, but indicates that the payment of a mortgage gives rise to a presumption that the mortgage shall be kept alive for the benefit of the payer as if it had been transferred from the lender to the payer (see generally paragraphs 48 to 59). The focus is on the legal relationships between the payer and the debtor and on the conscience of the debtor, here Mr Ghosh’s mother. This case does not establish that there would be a presumption in the domestic circumstances under consideration here and, as noted, there is in fact no evidence before me of facts that would give rise to any such presumption. Even if there were evidence to the effect that Mr Ghosh, while living in the house and claiming an equitable interest in it, contributed to the payment of a mortgage in a way that gave rise to a debt to him on the part of his mother, that would not, in my view, give rise to an equity of the type that would allow him to be subrogated to ANZ’s mortgage as security for that debt.
Gandel Metals Pty Ltd v Centennial Mining (No 2)[8] was another case where there was a dispute between commercial entities. Middleton J quoted an observation that subrogation applies where one person advances money on the understanding that he, and he uses that pronoun, is to have certain security for the money he has advanced but does not receive the promised security, and I refer to paragraph 49, or where it would be unconscientious for a debtor to ‘recover back’ security while the debtor is obliged to indemnify a surety (that is paragraph 51). A presumption may arise if a lender makes an unsecured loan which pays out a secured creditor. I do not consider that the presumption is invoked on the evidence or indeed on the assertions here. Mr Ghosh did not establish or even assert that he made a loan to his mother that was used by her to pay out the ANZ. No facts are before me that established a basis to conclude, absent evidence to the contrary, that the registration of the discharge would unconscientiously advantage Mr Ghosh’s mother at his expense (as to which see Gandel Metals Pty Ltd v Centennial Mining (No 2) at para 58). Where I refer in this context to Mr Ghosh's mother, I am referring, of course, including to her estate.
[7](2013) 86 NSWLR 174 (Meagher, Gleeson and Leeming JJA) (‘Aged Care Services’).
[8][2020] FCA 633 (Middleton J) (‘Gandel Metals’).
Finally, the judge turned to the balance of convenience, saying that the applicant had not demonstrated that, even if he had an arguable case that he had a right to prevent the Discharge of Mortgage being registered, the balance of convenience required that the discharge not be registered pending the determination of his claims.
The judge concluded the Reasons by saying that he was not satisfied on the material before him that the applicant had an arguable case or that the balance of convenience favoured the grant of an interlocutory injunction. Accordingly, his Honour dismissed the application.
Proposed grounds of appeal
As I have already said, the applicant advances 24 proposed grounds of appeal. Ground 1 appears to be an umbrella ground, intended to capture a wide array of alleged errors. It provides:
1.His Honour’s reasons for ruling/judgment and orders erred in taking into account irrelevant consideration (sic), did not take into account relevant considerations, was against the weight of the evidence and made errors of law on the face of the record.
The majority of the proposed grounds of appeal allege that the judge erred in not considering a particular matter.[9] Two proposed grounds alleged that the judge erred in not requiring ANZ and the Registrar to make particular submissions.[10] Other proposed grounds made complaint of a specific error, examples of which include: citing and relying on the judgment of O’Meara J in Ghosh v Ghosh,[11] when it was the subject of challenge in an appeal yet to be heard and determined;[12] and erring by making a particular statement and/or considering particular matters.[13]
[9]See proposed grounds 4 to 15 and 21 to 23.
[10]See proposed grounds 3 and 16.
[11][2024] VSC 259.
[12]See proposed ground 2.
[13]See proposed grounds 17 to 20.
Finally, the proposed grounds of appeal concluded with the following:
24.The orders and judgement were rendered erroneous because it was based on the Registrar of Titles letter’s dated 5th July 3024 stating that the lodging party was ANZ and my email to Shiff & Co on 12th July 2024 remained unanswered but Anaban Ghosh’s (Respondent) affidavit in S EAPCI 2024 0062 states that Anaban Ghosh was the directing party for the Notice of Discharge of Mortgage AY149892V and yet Anaban Ghosh/Shiff & Co did not seek to be heard in the proceedings and make submissions despite having being notified of the proceedings on 25.7.2024 as well as again on 26th July 2024 morning and His Honour would have taken into consideration that balance of convenience would have required to injunct the Notice of Discharge of Mortgage AY149892V because it was being effected by the Respondent in S EAPCI 2024 0062 to render the appeal S EAPCI 2024 0062 nugatory.
The applicant’s evidence on the injunction application
Before considering the merits of the applicant’s proposed appeal, it is necessary to describe in greater detail the evidence the applicant relied upon in support of his injunction application before the primary judge.
The evidence consisted of the affidavit, the material paragraphs of which I have set out at paragraph [4] above, together with 134 pages of material which was exhibited to the affidavit as follows:
(1)The first 14 pages consisted of correspondence between the applicant and the Registrar.
(2)Pages 15 to 20 consisted of a historical search statement and a copy of the Certificate of Title. They showed that, on 28 June 2005, Mortgage AD710424M, in favour of ANZ, was registered on the title of the Property.
(3)Pages 21 to 28 consisted of a State Bank mortgage dated 2 July 1990, signed by the applicant and his parents. The Certificate of Title recorded that this mortgage was discharged on 25 September 1997.
(4)Pages 29 to 30 was a two-page document purporting to record a transfer of the Property from the applicant’s mother to the applicant and his mother, signed on 4 May 2012.
(5)Pages 31 to 38 consisted of a letter to the Prothonotary enclosing a subpoena for production of documents in the proceedings which are the subject of the Probate Appeal Reasons.
(6)Pages 39 to 89 consisted of letters from Sharrock Pitman Legal to the applicant’s parents enclosing draft powers of attorney and draft wills.
(7)Pages 90 to 111 consisted of a disclosure statement made by Sharrock Pitman Legal; a letter of demand from Sharrock Pitman Legal addressed to the applicant’s parents, requiring payment of an account in the sum of $2,724.64; a Magistrates’ Court complaint, a Notice of Order and terms of settlement between Sharrock Pitman Legal and the applicant’s parents.
(8)Pages 112 to 133 consisted of a copy of the application for leave to appeal from the orders of O’Meara J which were the subject of the Probate Appeal Reasons; and a copy of the application for a stay of those orders.
(9)Page 134 consisted of a copy Discharge of Mortgage, certified by a justice of the peace as being a true copy of the original having been sighted on 16 November 2012. The land was identified as the Property. The mortgage number was identified as AD710424M. The mortgagee was ANZ.
The applicant’s evidence did not include any copy of the ANZ mortgage, nor any detail of the terms of the ANZ mortgage, nor the identity of the borrowers, nor any details of the amounts borrowed or the amounts repaid.
Additionally, during oral argument, the applicant was unable to say whether the exhibited discharge of mortgage was in fact the discharge of mortgage which the Registrar intended to process — noting that, in her correspondence, the Registrar referred to processing a Discharge of Mortgage AY149892V.
Consideration
There is no substance in the applicant’s proposed appeal. There was no error in the judge concluding that he was not satisfied on the material before him that the applicant had made out an arguable case or that the balance of convenience favoured the granting of an interlocutory injunction.
The evidence before the judge that might have permitted interlocutory relief to be granted was scant to non-existent. Specifically, the absence of critical details concerning the ANZ mortgage (identity of borrower or borrowers; details of terms of the mortgage; details of amounts borrowed; and particulars of amounts paid) told against any finding that it might have been arguable that the applicant had, by some means, become subrogated to the security right of ANZ. The applicant’s mere submission that he had ‘paid as an owner for rates, mortgage payments, maintenance etc over the years’,[14] provided no evidentiary foundation for the rights of subrogation for which he contended before the judge.
[14]Paragraph [4] of the affidavit.
Moreover, as the judge rightly observed, nothing in Aged Care Services or Gandel Metals provided any support for the applicant’s assertions in this case. More fundamentally, however, as I have already said, the applicant’s claim before the judge was bound to fail for lack of any appropriate evidentiary foundation. Merely asserting that he had paid unspecified and unquantified mortgage payments, as whatever proportion those payments might have been of the total amount paid under the mortgage, without any supporting details or evidence (bank records or the like) of such payments, provided no basis for a finding that the applicant’s claimed right of subrogation was a serious question to be tried.
In short, nothing in the applicant’s material or submissions (either at first instance, or in this application) provided any basis upon which the Registrar could or should have been enjoined from processing the Discharge of Mortgage referred to in her letter of 5 July 2024.
The applicant having failed to establish that there was a serious question to be tried as to his entitlement to relief,[15] the judge was bound to refuse his application for an interlocutory injunction. It follows that the applicant’s proposed appeal from the orders of Gorton J does not have any real prospect of success.
[15]O’Neill (2006) 227 CLR 57, 68 [19], 83 [70].
Conclusion
Section 14C of the Supreme Court Act 1986 requires this Court to refuse an application for leave to appeal unless it is satisfied that the appeal has a real prospect of success. For the reasons given above, the appeal which the applicant seeks leave to commence against the orders made by Gorton J on 26 July 2024 has no real prospect of success. Accordingly, leave to appeal must be refused.
The applicant’s application for leave to appeal is refused.
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