Melbourne Coach Terminal Pty Ltd v Talbot
[2002] VSC 434
•30 September 2002
SUPREME COURT OF VICTORIA
PRACTICE COURT
No. 6110 of 2002
| MELBOURNE COACH TERMINAL PTY LTD | Plaintiff |
| v. | |
| SCOTT OLIVER TALBOT | Defendant |
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JUDGE: | BONGIORNO, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 September 2002 | |
DATE OF JUDGMENT: | 30 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 434 | |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Berglund QC and Mr R. Heath | Lewis Allen Janover |
| For the Defendant | Miss J.E. Richards | Madgwicks Lawyers |
| For Mr S. Horne, trustee in bankruptcy for Mr P.Wyss | Mr K. Howden | Cornwall Stodart |
| For Mr John Lambie | Mr S. Minahan | Septimus Jones & Lee |
| For 5 non-parties | Mr P. Collinson | Goldhirsch Shnider |
HIS HONOUR:
By an originating motion issued on 23 June of this year, Melbourne Coach Terminal Pty Ltd sought orders under the Transfer of Land Act and other interlocutory equitable relief in respect of a caveat lodged over a large number of lots on a sub-division of a building in the city, being a car-park and offices.
The essential basis of the plaintiff's claim was that the mortgage said to support the caveat was a forgery and that fact was deposed to by the plaintiff's Director, Mr Baross in his original affidavit.
Various interlocutory steps occurred, leading up to orders being made on 27 June of this year by Gillard, J, who ordered that a trust account be set up in the names of Baker and McKenzie and Gerard and Stuk, being the firms of solicitors who previously acted for the defendant and the plaintiff in this action, into which would be paid a sum of money which, at the moment, amounts, according to Mr Berglund, to the sum of $1,757,470.97.
On 19 August, 21 August and 28 August, Balmford J, ordered that other money in the trust account and office account of a Mr P. Wyss, who is now a bankrupt, be added to the money in the trust account which orders were presumably complied with, some of which money now comprises some of the sum to which I have referred.
By a summons recently issued, the plaintiff seeks the payment out of the money in that trust account, save for such amounts as can reasonably be established to be the amount the plaintiff owes the defendant.
Mr Berglund, QC for the plaintiff, says that his client is entitled to this money is unanswerable and he says that there are two essential arguments which support that proposition.
The first argument is that the mortgage which is said to support the caveat was stamped only such that it would secure a sum of $1.4 million, thereby leaving some $357,000 odd over and above the amount for which the document was stamped.
Miss Richards for the defendant answers that point by making the point that by appropriate up-stamping and perhaps the payment of penalties, the document could support a larger amount.
Of greater significance is Mr Berglund's second point and that is to the effect that the Statute of Frauds has not been complied with in respect of the guarantee to which the mortgage is alleged to be collateral.
Mr Berglund points to s.126 of the Instruments Act (1958) as being the source of this statutory problem, from the alleged mortgagee's point of view.
Miss Richards says that the s.126 can be overcome by proof of appropriate part-performance on the part of the mortgagor, which would enable the security to be enforced, notwithstanding non-compliance with the section. She says that there is presently before the court, documents out of which part-performance and/or compliance with the section could be construed.
All of this occurs against the background of the plaintiff having sought from the defendant in a number of different ways since the issues of these proceedings, details of what it said were the debts outstanding to which the security notified by the caveat relates.
Ultimately, on Friday of last week, and some time after affidavits were due to be filed, the defendant filed an affidavit which sets out the basis for his being owed money by one of the plaintiff's Directors. I think it is unnecessary for me in the course of this short statement of reasons for judgment, to make any comment on the defendant's affidavit. It is sufficient to say that it is interesting. It relates events which involve the handing over of a large amount of money in cash in plastic bags.
That affidavit, as I say, was first produced on Friday of last week notwithstanding that the plaintiff had filed an affidavit by an associate of his in June, in which certain answers were made to the plaintiff's claim, but no details of these debts were given although, of course, those details could have been included in that affidavit.
However interesting and however one might view all of that, the issue before me is whether there is still a serious issue to be tried in this case and whether, if so, the balance of convenience favours the maintenance of the status quo.
Of considerable significance is the fact that this case has been expedited to the extent that the trial is now fixed for 25 October, a date only a little over three weeks away.
It seems to me that there is still a serious issue to be tried, notwithstanding the strength of Mr Berglund's argument. It is not beyond argument that the Statute of Frauds can be overcome by the defendant although there may well be some difficulties in his doing so.
In the end, the question must revolve around, I think, the balance of convenience.
Having regard to the closeness of the trial, it would seem to me to be inappropriate that I should disturb the status quo at this stage. The complexity of the factual matters which will need to be investigated at the trial and the fact that although the plaintiff initially asserted baldly that the mortgage was a forgery but seems in subsequent documents to have somewhat resiled from that position raise difficult issues of fact. The fund should remain intact until those issues are resolved.
Having regard to all of those matters, I do not propose to accede to the plaintiff's application. The summons of the plaintiff seeking the payment out or disbursement of the trust account originally ordered to be set up by Gillard, J will be dismissed.
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