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Lanciana v Alderuccio

Lanciana v Alderuccio

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Case Copied 28 March 2019 54 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 01384

PASQUALE LANCIANA	Plaintiff
-and-
JOHN ALDERUCCIO	First Defendant
- and -
BRUNO ALDERUCCIO	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2018
DATE OF JUDGMENT:	28 March 2019
CASE MAY BE CITED AS:	Lanciana v Alderuccio
MEDIUM NEUTRAL CITATION:	[2019] VSC 198

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REAL PROPERTY — Caveats — No reasonable cause — Compensation — solicitor lodging the caveat — whether liability under s 118 of the Transfer of Land Act 1958 extends to solicitors lodging a caveat with the Registrar without reasonable cause on behalf of a client — Whether solicitor “a person” lodging a caveat — Solicitor not “a person” lodging a caveat — Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281 — Windlock Pty Ltd v Davidovic [2014] NSWSC 269 — Arkbay Investments Pty Limited (In Liquidation) (Receivers and Managers appointed) v Echelon Property Management Pty Ltd (No 2) [2014] NSWSC 572.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A K Panna QC with Mr J D Mattin	Basilone Legal
For the Defendants	Mr C M Caleo QC with Mr N. P De Young	Minter Ellison

HIS HONOUR:

Introduction

The defendants are legal practitioners who have practised together in partnership. In March 2005, they lodged with the Land Titles Office caveats on behalf of a client, Bloomingdale Holdings Pty Ltd (Bloomingdale), on the registered title of two properties. The plaintiff is the unit holder of two trusts, the trustees of which are the registered proprietors of those properties.

The plaintiff has brought a claim under s 118 of the Transfer of Land Act 1958 (the Act) against the defendants themselves – as distinct from their client Bloomingdale – for compensation (and alternatively damages) for loss alleged to have been sustained as a result of the lodgement of these caveats.

Section 118 of the Act provides as follows:

Compensation for lodging caveat without reasonable cause
Any person lodging with the Registrar without reasonable cause any caveat under this Act shall be liable to make to any person who sustains damage thereby such compensation as the Court deems just and orders.

On the application of the defendants, orders have been made that the following question be determined as a preliminary question pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015:

Whether, assuming that the allegations contained in the further amended statement of claim are true, the defendants are ‘a person’ lodging a caveat with the Registrar for the purposes of s 118 of the Transfer of Land Act 1958 (Vic), or whether the plaintiff is confined to seeking compensation from the party identified as the caveator in the relevant caveats.

For the reasons explained below, the answer to this question is as follows:

The defendants are not ‘a person’ lodging a caveat with the Registrar for the purposes of s 118 of the Act. It…

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 198
Decision Date: 28 March 2019

CaseChat Overview and Summary

The case of Lanciana v Alderuccio involved the plaintiff, Lanciana, seeking compensation from the defendant, Alderuccio, under section 118 of the Transfer of Land Act 1958. The dispute arose from a caveat lodged by Alderuccio’s solicitor, which Lanciana claimed was without reasonable cause, resulting in damages. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the statutory liability for compensation under section 118 of the Transfer of Land Act 1958 extends to solicitors who lodge a caveat without reasonable cause on behalf of their clients. The court was required to determine if a solicitor can be considered "a person" lodging a caveat for the purposes of the Act. The case drew on precedents such as Gordon v Treadwell Stacey Smith, Windlock Pty Ltd v Davidovic, and Arkbay Investments Pty Limited (In Liquidation) (Receivers and Managers appointed) v Echelon Property Management Pty Ltd (No 2).

The Supreme Court of Victoria found that a solicitor is not "a person" lodging a caveat for the purposes of the Transfer of Land Act 1958. The court relied on the reasoning in Gordon v Treadwell Stacey Smith, which held that a caveat is lodged by the client, with the solicitor acting merely as an agent. The court further held that the statutory compensation regime under section 118 does not extend to the solicitor’s actions. Therefore, the court dismissed Lanciana’s claim against Alderuccio for compensation.

As a result of the court’s decision, Lanciana’s claim for compensation against Alderuccio was dismissed. The court did not impose any costs order against Lanciana.

Orders