Lee Nyong Pty Ltd v Di Blasi (Costs Ruling)
[2018] VSC 5
•15 January 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 03692
| LEE NYONG PTY LTD (ACN 109 498 884) | First Plaintiff |
| and | |
| PAGLIARO SUPERFUND PTY LTD (ACN 109 493 558) | Second Plaintiff |
| v | |
| NINA DI BLASI | First Defendant |
| and | |
| THE REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September; 9 October 2017 (Written submissions as to costs filed 23 October 2017, 26 October 2017) |
DATE OF JUDGMENT: | 15 January 2018 |
CASE MAY BE CITED AS: | Lee Nyong Pty Ltd & Anor v Di Blasi & Anor (Costs Ruling) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 5 |
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COSTS – Caveat removal – Alleged fraudulent removal of caveat – Notice of Action by Registrar of Titles – Section 106(1)(f) of the Transfer of Land Act 1958 (Vic) – Priority of interests – Priority of second mortgagee over caveator – Costs – Indemnity costs – Liability of the Registrar for costs - Section 24(1) of the Supreme Court Act 1986 (Vic) – Section 65C(1) of the Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G L Rice | S V Winter & Co |
| For the First Defendant | Mr M Goldblatt | Erhardt & Associates, and an appearance on 13 November 2017 by Mr R D Silverstein |
| For the Second Defendant | Mr J Collopy | Land Use Victoria Legal |
HIS HONOUR:
Introduction
The question of costs is the remaining issue to be resolved in this proceeding. The Plaintiffs - Lee Nyong Pty Ltd and Pagliaro Superfund Pty Ltd (the second mortgagees) - were successful in having the caveat over the title of a property at Leongatha and lodged by the first Defendant, Nina Di Blasi, removed.
Complicating the application was a Notice of Action placed on the relevant title in 2013 by the second Defendant, the Registrar of Titles (‘the Registrar’).
The two issues which remain to be determined are:
1.Should Ms Di Blasi pay the Plaintiffs’ costs, and if so, should it be on a standard or on an indemnity basis?
2.Is the Registrar liable to pay any part or all of the Plaintiffs’ costs?
Background
John Victor Mabilia and Patricia Ann Mabilia were the registered proprietors of a property located at 45 Wintles Road, Leongatha South, Victoria, 3953 (Certificate of Title Volume 10008 Folio 424) (‘the property’).
A caveat was originally lodged over the title to the property by Ms Di Blasi on 24 May 2013 (‘the first caveat’). This it seems, was based upon a charge over the property contained in a loan agreement between Ms Di Blasi and Mr and Mrs Mabilia.
On or about 16 July 2013, the first caveat was withdrawn following lodgement of a Notice of Withdrawal of Caveat, purportedly on behalf of Ms Di Blasi.
Ms Di Blasi asserts (it appears with some substance) that this withdrawal of the first caveat was fraudulent and perpetrated by a forgery of her signature.
On 16 August 2013, the Plaintiffs’ mortgage was lodged and subsequently registered over the property (‘the second mortgage’). This secured the Plaintiffs’ loan of an amount of $185,000 to the registered proprietors.
Subsequent to the registration of the second mortgage, Ms Di Blasi became aware of the alleged forged withdrawal of the first caveat. She lodged a further caveat on 5 September 2013 (‘the second caveat’).
On 5 September 2013 the Registrar lodged on the title a ‘Notice of Action’ under s 106(1)(f) of the Transfer of Land Act (‘TLA’). This related to the allegation that the written withdrawal of the first caveat was forged.
The property was also subject to a first mortgage by the Commonwealth Bank of Australia) (‘CBA’) (‘the first mortgage’). The outstanding balance due under the first mortgage was approximately $380,000.
In April 2016 the County Court gave judgment for the Plaintiffs, against the registered proprietors, who took possession of the property and placed it on the market.
On 23 June 2017, the property was sold by the Plaintiffs, as mortgagees in possession, at auction for $635,000 with settlement originally due on 22 August 2017.
Prior to settlement, the title had the following encumbrances (in addition to the two registered mortgages):
a.The second caveat;
b.The Notice of Action.
As a result of the presence of the caveat (and perhaps the Notice of Action) settlement did not occur. The settlement date was extended until 22 September 2017.
In a letter (‘the Registrar’s letter’) dated 21 August 2017 to the Plaintiffs’ solicitors (in response to a letter asking the Registrar to withdraw the Notice of Action) the Registrar stated that he would not remove the Notice of Action unless either:
i.The caveator or her solicitor consents to removal of the Notice of Action and provides a withdrawal of Caveat AK572285D; or
ii.The caveator fails within 30 days to obtain an injunction preventing [the Registrar] from registering a transfer from [the Plaintiffs], after [the Registrar] provides her with notice that any such document is lodged.[1]
[1]Letter from Land Victoria to the Plaintiffs’ solicitors dated 21 August 2017.
I pause here to note that the Registrar appears to have accepted (or, at least, accepts that he is open to the possibility) that removal of the first caveat was obtained by fraud.
It is not suggested that the CBA or the Plaintiffs had any knowledge of the fraud in relation to removal of the first caveat. Nor is there any allegation that either mortgagee was involved in any fraudulent actions in relation to their respective mortgages or to any caveat.
On 22 August 2017, the Plaintiffs’ solicitors wrote to Ms Di Blasi’s solicitor seeking removal of the second caveat (‘the Plaintiffs’ letter’).
On 18 September 2017, the Plaintiffs issued this proceeding seeking, inter alia, the following:
· A declaration that the Plaintiffs’ mortgage registered in 16 August 2013 has priority over Ms Di Blasi’s caveat lodged on 5 September 2013;
· An order that the Registrar remove Ms Di Blasi’s caveat;
· An order that the Registrar withdraw the Notice of Action from the relevant folio;
· Orders for indemnity costs against Ms Di Blasi and the Registrar;
· Alternatively, orders that Ms Di Blasi and the Registrar pay the Plaintiffs’ costs of the proceeding.
On 21 September 2017, after an application in Court by the Plaintiffs, it was agreed that Ms Di Blasi would remove the caveat and that the settlement would proceed with the CBA and the agent expenses being paid out. The Registrar subsequently removed the Notice of Action.
The Plaintiffs’ lawyers undertook to retain the net proceeds of the sale after payment pending further orders of the Court.
On 9 October 2017, I made orders in respect of the monies held by the Plaintiffs’ lawyers, to the following effect:
· The Plaintiffs be paid out from the monies in the Plaintiffs’ solicitor’s trust account;
· The balance of monies remaining be paid into the Court.
I requested the parties to file submissions as to costs.
Should Ms Di Blasi pay the Plaintiffs’ costs, and if so, on what basis?
Section 24(1) of the Supreme Court Act 1986 provides for the question of costs to be determined ‘in the discretion of the Court’, with the Court having ‘full power to determine by whom and to what extent the costs are to be paid’.
In dealing with party costs in a proceeding, rule 63.30.1 of the Supreme Court (General Civil Procedure) Rules 2015 provides that costs may be awarded on an indemnity basis.
Section 65C(1) of the Civil Procedure Act 2010 (‘CPA’) provides that: ‘In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.’[2] Section 7(1) of the CPA defines the ‘overarching purpose’ as ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’, which may be achieved by, inter alia, ‘(a) the determination of the proceeding by the court; (b) agreement between the parties; (c) any appropriate dispute resolution process’.[3]
[2]A non-exhaustive list of such orders includes the following: … (b) order that parties bear costs as specified proportions of costs; (c) award a party costs in a specified sum or amount; …: Civil Procedure Act 2010, s 65C(2).
[3]Civil Procedure Act 2010 (Vic) s 7(2).
In furtherance of the ‘overarching purpose’, a Court may have regard to ‘the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding’;[4] such obligations being contained in ss 16 to 26 of the CPA.[5] In this proceeding, the parties as participants are all subject to the application of the overarching obligations.[6] Further, the Court may also have regard to ‘the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute’.[7]
[4]Civil Procedure Act 2010 (Vic) s 9(2)(e).
[5]Civil Procedure Act 2010 (Vic) s 3.
[6]Civil Procedure Act 2010 (Vic) s 10.
[7]Civil Procedure Act 2010 (Vic) s 9(2)(b).
In the first instance, those to whom the ‘overarching obligations’ apply ‘[have] a paramount duty to the court to further the administration of justice in relation to a civil proceeding in which that person is involved’.[8] Other obligations relevant to the current proceeding and particularly the appropriate orders for costs against Ms Di Blasi include the following:
· Overarching obligation to only take steps to resolve or determine dispute. For the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.[9]
· Overarching obligation to use reasonable endeavours to resolve dispute. A person to whom the overarching obligations apply must use reasonable endeavours to resolve a dispute by agreement between the persons in dispute, including, if appropriate, by appropriate dispute resolution, unless— … (b) the dispute is of such a nature that only judicial determination is appropriate.[10]
[8]Civil Procedure Act 2010 (Vic) s 16.
[9]Civil Procedure Act 2010 (Vic) s 19.
[10]Civil Procedure Act 2010 (Vic) s 22.
Returning to the facts of this case, the charge under the loan agreement between the registered proprietors and Ms Di Blasi (and sought to be protected by the two caveats) could never have trumped the rights of the holders of the first and second registered mortgagees.
The Plaintiffs correctly submitted that their mortgage must have priority over the second caveat lodged by Ms Di Blasi, as their mortgage was registered prior to the caveat, and is thus captured by sections 91(2A) and (2B) of the TLA.[11]
[11]Further Submissions of Plaintiffs re Costs dated 23 October 2017 [11], [13], [14].
It is also clear that even if the first caveat had remained extant, and had priority over the second mortgage, it would lose this priority ‘upon registration of a bona fide purchaser for value of’ the second mortgage, and ‘any interest in the land as claimed in [the first caveat] would be lost upon registration of a bona fide purchaser for value of the fee simple estate’, pursuant to sections 42 and 43 of the TLA.[12]
[12]Outline of Submissions on behalf of the Second Defendant dated 9 October 2017 [10].
It is no doubt unfortunate that the alleged fraud has impacted Ms Di Blasi’s ability to rely upon the caveat to protect the charge associated with the loan agreement; however, the principles regarding indefeasibility, priority, and bona fide purchasers are clear, and it is patent that the Plaintiffs have the stronger claim. If the first caveat was removed in fraudulent circumstances, then the appropriate action for Ms Di Blasi was to notify the police,[13] and to lodge a claim for compensation against the Assurance Fund—not to maintain a position that had no chance of success vis a vis the mortgagees.
[13]An option of which Ms De Blasi was both aware and had pursued—‘Ehardt & Associates further advised that the matter had been brought to the attention of the Melbourne Fraud squad soon after it was discovered’: Outline of Submissions on behalf of the Second Defendant dated 9 October 2017 [4].
I accept the proposition advanced by the Plaintiffs in their further submissions as to costs:
There was no possibility on the evidence before the Court on this case that the first defendant would have been found to have any rights or interests having priority over the Plaintiffs’ mortgage. The practical effect of the caveat lodged by the first Defendant and the Notice of Action lodged by the Second Defendant prevented the mortgagee from dealing with the property in accordance with a mortgagee’s normal proprietary rights under the Transfer of Land Act.[14]
[14]Further Submissions of Plaintiffs re Costs dated 23 October 2017 [19].
The Plaintiffs’ letter made it clear that the caveat was impeding the settlement and asked for its withdrawal to be given ‘urgent attention’.
Nothing was done and this proceeding was issued. I repeat that it could not be suggested that the Plaintiffs, as second mortgagee, were not entitled to take possession of the property, then sell it and use the proceeds of the sale to pay out the monies after payment out of the monies due to the mortgagees and the costs of the sale.
A responsible and reasonable response to the Plaintiffs’ letter would have been to remove the caveat immediately, provided the balance of any settlement monies were quarantined pending any litigation between the registered proprietors and Ms Di Blasi. But this was not done.
I reject the proposition advanced in Ms Di Blasi’s submissions that this was always her position. If it had been, it should have been set out in a prompt response to the Plaintiffs’ letter. Ms Di Blasi’s actions were inconsistent with the provisions of the Civil Procedure Act and her acquiescence to remove the caveat on the day of the hearing one month later was a step which should have been taken at the outset.
Ms Di Blasi did not consent to withdraw the caveat until the point at which orders were made on 21 September 2017, having had notice of the request—and its accompanying urgency—since receiving the letter from the Plaintiffs’ solicitor dated 22 August 2017. The urgency is underscored by the fact that the purchasers of the property wrote to the plaintiffs’ solicitors, in a letter dated 7 September 2017, and threatened to withdraw from the contract because of the delay regarding settlement.[15]
[15]Affidavit of Theodorus Hendrikus Antonius Griepink sworn 14 September 2017 [17]. See also, Outline of Submissions of Plaintiff dated 20 September 2017 [6].
The Plaintiffs are entitled to their costs – the only question is on what basis.
A number of features can characterise a situation worthy of indemnity costs, as noted by Dal Pont in Law of Costs,[16] in relation to when a court might make a ‘special order’ (i.e. depart from the standard basis upon which to order costs):
As the party and party basis represents the usual basis of quantifying costs ordered in contentious civil litigation, it has been judicially remarked that a court will make a special order only if the case exhibits ‘some special or unusual feature’ or ‘special circumstances’, or that is in some sense ‘rare and exceptional’, ‘extremely unusual’ or ‘a strong one’, so as to set it apart from the normal case.
[16]Gino Dal Pont, Law of Costs (LexisNexis Butterworths, 3rd ed, 2013) 541 (citations included).
Dal Pont comments further:
It has been judicially observed, to this end, that ‘[i]ndemnity costs are not available merely for the asking’ and that ‘[t]he threshold for departing from the ordinary rule in relation to costs is high’. This in turn dictates that courts who propose to make a special costs order must give clear reasons for it.
Dal Pont cautions that:
although the discretion to depart from the usual party and party basis is not confined to the situation of an ethically and morally delinquent party, courts usually require some evidence of unreasonable conduct in the course of the litigation by the person liable for costs.
Luther v Milner[17] was a case in which a liquidator refused to withdraw a caveat lodged in relation to a winding up application, Ross J stated that:[18]
The power to award costs on an indemnity basis is in the discretion of the court, although it must be exercised judicially and not unreasonably. Generally speaking such an order is exceptional and reserved for cases where the losing party has engaged in unmeritorious or other improper conduct such as to warrant the court showing its disapproval and preventing the unsuccessful party being left out of pocket. In the context of this case the observations of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd are apposite:
I believe that it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
[17][2009] VSC 595.
[18]Luther v Milner [2009] VSC 595, [28] (emphasis added).
In Love v Kempton,[19] I said as follows in relation to a caveat lodged without any basis:
[19][2010] VSC 254.
Fifth, any person involved in dealing in property should be aware of the statements of this Court on a number of occasions that a caveat is not a bargaining chip as Dodds-Streeton J, and more recently the Chief Justice noted. I have no doubt this was the intention behind Mr Kempton’s lodging of the caveat. Such a practice as Dodds-Stretton J noted undermines “the operation of an essential feature of the Torrens system”.
Sixth, the lodging of caveat is a serious business. It has the potential to affect commercial transactions and the lives and financial interests of others. Dodds-Streeton J in Goldstraw v Goldstraw said as follows:
In my opinion, the only proper purposes for lodging a caveat against a registered proprietor's title under s 89(1) of the Act are to protect the estate or interest claimed by the operation of the statutory injunction against the registration of subsequent dealings and to provide notice of the existence of the estate or interest to those who consult the Register. A caveat has a significant potential to obstruct the rights, and to damage the interests, of the registered proprietor and other parties.
Of particular relevance in the present case is the potential deterrence of purchasers. Given the potential for damage to a variety of parties, in my opinion the lodgment of a caveat for an ulterior or collateral purpose constitutes a serious misuse of the relevant statutory provisions. (Emphasis added)
A party who lodges a caveat without proper grounds should, I think, be brought to book if others are forced to resort to court proceedings to remove a caveat which has no proper basis. The costs associated with the exercise are heavy and the differential between party/party costs and indemnity costs is, as Winneke P noted in Spencer, considerable. In this case to require an innocent vendor to pay the differential between party/party costs and indemnity costs, occasioned by the delinquent conduct of the caveator cannot be permitted.[20]
[20]Ibid [28]–[30].
It must have been known to both Ms Di Blasi and her lawyers that not only had the Plaintiffs lawfully taken possession of the property but had exercised their rights as second mortgagee to sell the property. No matter what her grievances may have been about the removal of the first caveat, the interest protected by either the first or second caveats could not have trumped the lawful rights of each of the mortgagees in relation to the sale of the property and the distribution of the proceeds.
The simple fact is that this should have been apparent to Ms Di Blasi (and for that matter, her lawyers) when she was asked in August 2017 to withdraw the caveat.
By refusing to withdraw the caveat, Ms Di Blasi effectively forced the Plaintiffs to lodge this application, despite, as I have noted, there being no chance of her successfully advancing her position at a hearing. For this reason, I consider an order for costs made against Ms Di Blasi on an indemnity basis to be the appropriate outcome.
Should the Registrar pay any part of the Plaintiffs’ costs?
A Notice of Action has no statutory force. It is not a creature of statute and simply indicates that the Registrar has concerns about a particular transaction.
The Notice of Action placed on the relevant folio by the Registrar is purportedly an exercise of his power under section 106(1)(f) of the TLA, which states that: ‘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’.
In the Registrar’s letter, he described a Notice of Action as an ‘administrative dealing’ that ‘allows [him] to monitor dealings affecting land to ensure that only those dealings which are appropriate are registered’. Further, he stated that such a notice ‘does not prevent the lodgement or registration of any dealings and is removed at a time I consider appropriate’.
Section 106(1)(f) was inserted by the Land Legislation Amendment Act 2009 (Vic) s 59(1)(d). On this insertion, the explanatory memorandum to the Bill states that this section ‘provides the Registrar with a discretionary power to do anything necessary, including making a notation on a folio, to protect the operation, effectiveness and integrity of the Registrar’.[21] The memorandum contains no further comment regarding this insertion.[22]
[21]Explanatory Memorandum, Land Legislation Amendment Bill 2009 (Vic) 12.
[22]The second reading speech contains no reference to this section.
In Fenedisto Pty Ltd v Brott,[23] a property sale and settlement was being impeded by a caveat and a ‘Notice of Action’; the latter of which was described as ‘an internal dealing lodged by the Registrar’.[24] The Court noted that:
As this notice is endorsed on the title, it has the capacity to make prospective purchasers shy away from committing to purchase a property affected by such notice. This may be so notwithstanding the removal of caveats lodged in respect of the claims made in the action which is the subject of the notation.[25]
An order that the Registrar remove the notice of action was amongst the orders made in this proceeding.
[23]Fenedisto Pty Ltd v Brott [2005] VSC 459.
[24]Fenedisto Pty Ltd v Brott [2005] VSC 459 [17].
[25]Fenedisto Pty Ltd v Brott [2005] VSC 459 [17].
In Deutsch v Rodkin, pursuant to orders made by Bell J, the Registrar of Titles refused to register a caveat, but nevertheless recorded the caveat as affecting the property under a ‘notice of action’. The notice of action then became an ‘impediment to settlement of any sale’, and the Registrar was subsequently ordered to remove it—at which point, sale of the property could proceed.[26]
[26]Deutsch v Rodkin [2012] VSC 450 [11] (Hargrave J).
In the recent case of Tawafi v Weil,[27] orders were sought for the Registrar to remove a Notice of Action, so that the Plaintiff could register a Transfer of Land. The effect of the notice was that no further dealings could be registered in relation to the property, until the notice had been withdrawn or a further order was made.[28] Following an application for, inter alia, removal of the notice, the Registrar was ordered to remove it, in order to enable lodgement of all dealings on the title, including the Plaintiff’s Transfer of Land.
[27]Tawafi v Weil [2017] VSC 643.
[28]Tawafi v Weil [2017] VSC 643 [9].
These cases reflect the circumstances in which removal proceedings surrounding the use of such notices arise, and demonstrate that in some cases, a court order is required to effect their removal – notwithstanding that there has not been an attempt to register a transfer.
In the Registrar’s letter, he indicated that if the Plaintiffs lodged a transfer, he would treat Ms Di Blasi as a prior caveator and, accordingly, the Plaintiffs as a subsequent mortgagee. Specifically, the Registrar stated that:
I intend to provide the caveator with notice of any transfer lodged by a subsequent mortgagee, despite sections 91(2A) and (2B) of [the] Transfer of Land Act 1958. This is the position the caveator would be in if caveat AK364948Q had not been withdrawn.
He stated that this would occur ‘despite sections 91(2A) and (2B)’ of the TLA.
In precis, the Plaintiffs contend that the Registrar, in refusing to remove the Notice of Action acted beyond power; alternatively if he had the power, it miscarried significantly. The substance of the contention is that if the Registrar had regard to the provisions of ss 42, 43 and 91 he would have appreciated that the Notice of Action and any threatened steps to defer registration were wrong. Whilst there was a suggestion of fraud, a basic investigation would have demonstrated that none was alleged against the two mortgagees. Therefore the mortgages had the benefit of indefeasibility under s 42. The Registrar was bound by sections 91(2A) and (2B), which provide the Plaintiffs with a statutory entitlement to clear title.[29] Further, that it was ‘completely unreasonable’ for the Registrar to signal his intention ‘to confer rights on the first Defendant which rights did not exist because of the express provisions’ of the TLA.[30]
[29]Further Submissions of Plaintiffs re Costs dated 23 October 2017 [13].
[30]Further Submissions of Plaintiffs re Costs dated 23 October 2017 [24].
The Registrar argues that ‘[t]he Registrar has a discretion to refuse to register dealings in circumstances where the registration may cause detriment to the public, or may result in a claim for indemnity under s 110(1) of the Act to be made against the Consolidated Fund’.[31]
[31](1912) 14 CLR 286 (on the Registrar’s public duty/obligation at [12]), [13]).
The Registrar contends that the approach reflected in the Registrar’s letter ‘represented a reasonable and appropriate position’.[32] The reasoning underlying this submission is reflected in the following justification of such a position:
It would allow [the first Defendant] the opportunity to apply for an injunction and the Court the opportunity to grant such as injunction. If the [the second Defendant] was to allow the registration of a transfer from the Plaintiffs, then because of the indefeasibility provisions of the Act, such a course would irretrievably frustrate those opportunities. Given the allegations of fraud made by [the first Defendant], it was appropriate that the [second Defendant] adopt a position of deference to any potential Court action.
Further, the position adopted by the [second Defendant] might have enabled him, as nominal defendant in a claim for indemnity by [the first Defendant], to rely on s 110(3) of the Act to deny indemnity on the basis of ‘neglect’ if [the first Defendant] did not seek to obtain an injunction from the Court.[33]
[32]Outline of Submissions on behalf of the Second Defendant, dated 9 October 2017 [14].
[33]Outline of Submissions on behalf of the Second Defendant dated 9 October 2017, [14]–[15].
Whelan J said in the Bank of Cyprus Australia Ltd, relying upon the judgment of Isaccs J in Perpetual Executors & Trustees Association of Australia Ltd v Hosken that the Registrar:
must have a discretion in appropriate circumstances to take steps to guard against a possible claim upon the assurance fund. I also accept that there might well be cases where the Registrar would be correct to defer registration pending an appeal, or steps in an appeal, from an order to remove a caveat.[34]
[34]Bank of Cyprus Australia Limited v The Registrar of Titles [2008] VSC 327 [34]. See also [13].
In that case Whelan J held that it was inappropriate to defer registration (notwithstanding the lodging of the caveat), stating that ‘the risk of injustice to the bank by deferral of registration is so much greater than the risk of a successful claim for indemnity by Sydney Road 333 …’.[35]
[35]Bank of Cyprus Australia Limited v The Registrar of Titles [2008] VSC 327 [36].
There is, in my opinion, force in the Plaintiffs’ submission although for reasons I will now set out it will not result in an order for costs in their favour.
Noble as the Registrar’s position might seem, it is to an extent problematic that he permitted mere allegations, suggestive as they might be of wrongdoing, to trump the rights of bona fide mortgagees with no connection to the alleged fraudulent actions. The Registrar acknowledges that he had no basis for believing that the first caveat was removed through fraudulent means, other than allegations made by Ms Di Blasi.
On receipt of Ms Di Blasi’s communications in 2013, the Registrar acted reasonably in placing a Notice of Action upon the folio; however, the principles associated with priority, indefeasibility, and bona fide purchasers ultimately (by September 2017) should have prevailed. I have reservations as to whether proper consideration was given to the Plaintiffs’ request for the removal of the notice, some four years later, notwithstanding the conditions contained in the Registrar’s letter. Of course, once Ms Di Blasi’s consent to remove the caveat had been conveyed to the Registrar, he responded quickly and appropriately by removing the Notice of Action.[36]
[36]On 21 September 2017, immediately after receiving notification of the first Defendant’s consent to removal of the caveat, the second Defendant removed the notice of action: Outline of Submissions on behalf of the Second Defendant, dated 9 October 2017, [16].
All that said the reality is that the Registrar has a statutory obligation and he must, understandably, be cautious where tenable allegations of fraud are made. As Isaacs J observed in Perpetual Executors the Registrar has ‘a high and responsible public duty to discharge, and he has an obligation to see that the purpose of the Act is neither destroyed nor prejudicially affected. … He has also in certain cases a necessary discretion, though forms are complied with, to act so as not by undue haste or too facile compliance with any application to do what appears to him to be a wrong to another person, or bring a claim upon the assurance fund’.[37]
[37](1912) 14 CLR 286, 295.
In these circumstances I think one can understand why the Registrar took the actions that he did in 2013. As I just mentioned, his response to the Plaintiffs’ letter was, arguably, problematic but I also accept that he has limited resources at his disposal.
Whilst all this is very interesting, it is not necessary to pursue this issue further as the real point in relation to an order of costs is that the sole cause of the bringing of the application was not the Registrar’s Notice of Action but rather the failure of Ms Di Blasi to remove the second caveat when asked to do so by the Plaintiffs’ solicitors. If she had done so, as the Registrar’s letter makes clear, then the Notice of Action would have been removed – as it was once the second caveat was removed on the day of the hearing – and this whole debacle would have been avoided.
In those circumstances it is inappropriate to make an order that the Registrar pay any part of the Plaintiffs’ costs.
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