Launch Concept v Di Mauro - [2022] VSC 512

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2022 02969

In the Matter of an application pursuant to s 90(3) of the Transfer of Land Act 1958

LAUNCH CONCEPT DEVELOPERS PTY LTD (ACN 149 182 258)	Plaintiff
v
JOSEPH DI MAURO AND CLEMENTINA DI MAURO as trustee for DI MAURO FAMILY SUPERANNUATION FUND	First Defendant
MORTGAGE CUSTODIAN PTY LTD (ACN 624 909 299)	Second Defendant
REGISTRAR OF TITLES	Third Defendant

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF JUDGMENT:	1 September 2022
CASE MAY BE CITED AS:	Launch Concept v Di Mauro & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 512

---

REAL PROPERTY – Caveats – Interlocutory application made to temporarily remove caveat to enable proprietor to refinance — Whether balance of convenience favours removal —Application unsuccessful — Transfer of Land Act 1958, s 90(3) – Oceanview Group Holdings v Anastazija Balaz & Anor [2006] NSWSC 1469; Hanson Construction Materials Pty Ltd v Roberts [2016] 93 NSWLR 1.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Tennant	Jem Lawyers
For the First and Second Defendants	Mr H Forrester	DSA Law

HIS HONOUR:

The plaintiff is the proprietor of properties at 53 Percy Street, Portland (the Portland property) and 1/88 Orrong Road, Elsternwick (the Elsternwick property).

Drosten Pty Ltd (Drosten) has a first registered mortgage on the Portland property, securing $434,739.53 (the Drosten mortgage). The first and the second defendants have charges over the Portland property, secured by caveats, securing approximately $550,000 for the first defendant, and approximately $90,000 for the second defendant (the caveats).[1]
[1]For convenience, unless otherwise required, I will refer to the first and second defendants collectively as ‘the defendants’. The third defendant did not appear at the hearing on 12 August 2022.

The charges over the Portland property arise from loan agreements between the defendants and the plaintiff pursuant to which the defendants have mortgages over the Elsternwick property. The principal of the loan made by the first defendant to the plaintiff is $390,000, with the current amount outstanding being approximately $550,000, with interest running at 23% per annum. The principal of the loan made by the second defendant to the plaintiff is $55,000, with the current amount outstanding being $90,000 and interest running at 36% per annum.

The Elsternwick property was purchased by the plaintiff in April 2020 in circumstances which are the subject of other proceedings in this Court.[2] Its current estimated value is $600,000, being less than the total current indebtedness of the plaintiff to the defendants in relation to the property of about $640,000.
[2]Proceeding S ECI 2022 01574.

On 4 August 2022, the plaintiff filed a summons and originating motion in which it sought orders providing for the removal of the first and second defendants’ caveats over the Portland property to permit it to refinance its debt. The proposed refinancing would discharge the Drosten mortgage and result…

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.

Continue reading Launch Concept v Di Mauro

Details

AGLC: Launch Concept v Di Mauro [2022] VSC 512
Case: [2022] VSC 512
Decision Date: 1 September 2022

CaseChat Overview and Summary

The case of Launch Concept involved the applicant, seeking to temporarily remove a caveat lodged by the respondent, Di Mauro, to enable the applicant to refinance. The application was heard in the Supreme Court of Victoria. The applicant argued that the balance of convenience favoured the removal of the caveat to allow refinancing, which was crucial for the applicant's financial stability and business operations. The respondent, Di Mauro, opposed the application, asserting that the caveat should remain as it protected a legitimate interest in the property.

The court had to determine whether the balance of convenience favoured the removal of the caveat as requested by the applicant. The court examined the principles outlined in relevant case law, particularly the decision in Oceanview Group Holdings v Anastazija Balaz & Anor, which established that the removal of a caveat should not be granted unless the balance of convenience clearly favours it. The court also considered the case of Hanson Construction Materials Pty Ltd v Roberts, which highlighted the importance of protecting legitimate interests when assessing the balance of convenience.

The Supreme Court concluded that the balance of convenience did not favour the removal of the caveat. The court found that the respondent had a legitimate interest in maintaining the caveat, and there was insufficient evidence to demonstrate that the applicant's need to refinance outweighed this interest. The court emphasised that the protection of legitimate interests under the Transfer of Land Act 1958, section 90(3), was paramount. Therefore, the application to temporarily remove the caveat was dismissed.

The court did not make any orders in favour of the applicant. The caveat remained in place, protecting the respondent's interest in the property.

Orders