Martiniello v Scheele
[2021] ACTSC 96
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Martiniello v Scheele |
Citation: | [2021] ACTSC 96 |
Hearing Date: | 20 May 2021 |
DecisionDate: | 20 May 2021 |
Before: | Mossop J |
Decision: | See [14] and [16] |
Catchwords: | REAL PROPERTY – CAVEATS – Application to extend lapsed caveat – where plaintiff alleged the existence of an unsecured loan – no arguable case for a caveatable interest in land established – application dismissed |
Legislation Cited: | Land Titles Act 1925 (ACT), s 104 |
Cases Cited: | Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120 Nguyen v Kaha [2008] NSWSC 794 |
Parties: | Pietro Martiniello (Plaintiff) Peter Scheele (First Defendant) Stella Scheele (Second Defendant) |
Representation: | Counsel R Markham (Plaintiff) K Musgrove (Defendants) |
| Solicitors Adero Law (Plaintiff) Campbell & Co Lawyers (Defendants) | |
File Number: | SC 164 of 2021 |
MOSSOP J:
The plaintiff, Pietro Martiniello, has applied by Originating Application filed 30 April 2021 for the extension of the operation of caveat number 3070175. The caveat in question related to residential land in Torrens owned by the plaintiff’s daughter, Stella Scheele and her husband, Peter Scheele. The nature of the interest in land is described in the caveat in the following terms:
I loaned Mr Peter Sheele [sic] an amount of $100,000 in two instalments of $50,000 to complete the renovation of 46 Brookman Street Torrens.
The affidavit in support of the application describes the basis for the application in the following terms:
I am the person who lent Peter Scheel [sic] $100,000 to complete renovations at 46 Brookman St, Torrens. The loan was in two instalments of $50,000.
The affidavit does not describe the factual basis upon which it is said that any advancement of money was by way of a loan. The affidavit also indicates that the plaintiff needs the caveat extended to ensure that the money is repaid. It identified that the plaintiff is not seeking interest on the money. He says that he wrote to his daughter and son-in-law on 2 February 2021 seeking that the monies be repaid and that no response was received.
The first and second defendants rely upon four affidavits. The first is of Stella Scheele who describes the circumstances in which two cheques of $50,000 each were given to her. She deposes to facts which are consistent with the money being paid as gifts and inconsistent with the money being advanced as a loan.
The affidavit of Peter Scheele is to similar effect. He says, inter alia, that the word “loan” was not mentioned at any relevant time or in any written documentation about the money.
The affidavit of Rose Rodriguez who assisted her mother, Elena Messina, with bookkeeping for the plaintiff and Ms Messina’s business deposes to facts not supportive of the payment being a loan as opposed to a gift.
Finally, there is the affidavit of the plaintiff’s ex-wife, Elena Messina, who deposes to facts which are consistent with the advancement of money being as a gift and inconsistent with the money being advanced as a loan.
The caveat in question was registered on 12 April 2021. A lapsing notice dated 21 April 2021 was sent to the plaintiff. The plaintiff’s Originating Application was filed on 30 April 2021. The Originating Application does not name the Registrar-General as a defendant.
Section 104 of the Land Titles Act 1925 (ACT) permits, relevantly, “a person claiming an interest in the land” to lodge a caveat.
As I pointed out in Adrija Pty Ltd v Mohamed, Ahmed and Registrar General ACT Land Titles Office [2013] ACTSC 120:
20. Section 107 of the Land Titles Act allows a registered proprietor of an interest in land subject to a caveat to apply to the Registrar-General to have a caveat removed. The Registrar-General then gives notice to the caveator and, not less than fourteen days later, must remove the caveat from the register unless the Court otherwise orders.
21. In order to justify an order preventing the removal of the caveat, the caveator’s claim to an interest in the land must raise a serious question to be tried and the balance of convenience must favour of the extension of the caveat as opposed to other options: GR8 Constructions Pty Ltd v O’Donnell [2011] ACTSC 92 at [24]- [27]; John Lampard Pfeiffer v Colin James Cummins (unreported, ACT Supreme Court, Gallop J, 2 July 1986). The onus of establishing that there is a serious question rests with the caveator.
In the present case, no order should be made preventing the Registrar-General from removing the caveat because the caveat does not disclose an arguable case that the plaintiff has any interest in the property that would support its existence. What is alleged in the caveat is an unsecured loan. The existence of an unsecured loan to a person who is an owner of land does not give rise to an interest in that land. That is an obvious proposition and the premise upon which decisions such as Nguyen v Kaha [2008] NSWSC 794 were decided.
I do not accept the plaintiff’s submission that the reference to the purpose of the loan being for completion of renovations at the Torrens property is sufficient to arguably create an equitable interest in the property. There is no arguable basis for the contention that this would be enough to create an equitable charge.
Because no caveatable interest has been identified it is not necessary to address the merits of the defendants’ contention that the payments were not made as loans but instead were made as gifts.
Orders
The orders of the Court are:
1.Order 2 made by Elkaim J on 3 May 2021 is discharged.
2. The Originating Application dated 30 April 2021 is dismissed.
3. The Registrar is directed to notify the Registrar-General of the orders made today.
[The plaintiff sought a gross sum costs order. The parties made further submissions].
In my view, costs of the application should follow the event. That was a proposition accepted by counsel for the plaintiff. The plaintiff sought a gross sum costs order in the sum of $8630 inclusive of GST based upon certain items in an itemised billing schedule from the defendants’ solicitor. I do not consider it appropriate to make a gross sum costs order. Whilst it has the benefits of efficiency in some respects, I do not consider the evidence in the present case to be sufficient to provide a secure foundation for the making of such an order. Clearly, there is the risk that if such an order is not made then costs will be increased, however, so long as solicitors on both sides act with a degree of professional responsibility those costs should not be that great, and if that is case, the quantum of the costs order that I have made will not be unduly increased.
As a consequence, the additional order I will make is:
4. The plaintiff is to pay the defendants’ costs of the proceeding.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 June 2021 |
0
2
0