Millard v The Registrar of Titles
[2025] VSC 38
•14 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2024 02732
| DARYL MILLARD (as administrator of the estate of Kerry Graeme Birchall deceased) | Plaintiff |
| v | |
| THE REGISTRAR OF TITLES | First Defendant |
| ROSEMARIE CALLAGHAN (as executor of the estate of Bozidar Rehak) | Second Defendant |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2025 |
DATE OF JUDGMENT: | 14 February 2025 |
CASE MAY BE CITED AS: | Millard v The Registrar of Titles |
MEDIUM NEUTRAL CITATION: | [2025] VSC 38 |
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REAL PROPERTY — Mortgage —Failure to lodge discharge of mortgage from register —Application to remove mortgage from register — Mortgagees deceased — Section 84 and s 103(1) of the Transfer of Land Act 1958 (Vic) — Section 20 and s 5(7) of the Limitations of Actions Act 1958 (Vic) — Action on loan secured by mortgage statute barred — Extensive inquiries made by plaintiff’s solicitors to attempt to have agreement to discharge — Declarations made as to action being statute barred — Registrar of Titles ordered to remove mortgage from register.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Dawlings | Engel & Partners |
| For the Defendants | No appearance |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The Facts.............................................................................................................................................. 2
The circumstances of the Mortgage............................................................................................ 2
Attempts to have the Mortgage discharged.............................................................................. 2
Relevant law........................................................................................................................................ 5
The Registrar’s Position.................................................................................................................... 8
Consideration...................................................................................................................................... 8
Repayment of the Loan................................................................................................................ 8
Application of ss 5(7) and 20 of the LAA................................................................................ 10
HER HONOUR:
Introduction
Mr Kerry Birchall was the owner of land in Yando, Victoria (the Property). He died in December 2015. His interest in the Property is recorded on the Register of land kept under s 27 of the Transfer of Land Act 1958 (Vic).[1] In this proceeding, the plaintiff Mr Millard, who was Mr Birchall’s domestic partner and is the administrator of his estate, seeks orders to enable the removal of a mortgage registered on the title.
[1]His estate in fee simple is recorded on Folio 718, Volume 01939.
The Mortgage was granted over the Property by Mr Birchall on 11 June 1991, as security for a $20,000 Loan from Bozidar Rehak and Jacqueline Rehak (the Mortgagees). The Loan was due to be repaid in full in 1994, but the Mortgage is still recorded on the relevant folio of the Register. Mr and Ms Rehak are also now deceased.
Despite extensive searches by the plaintiff, it is unclear whether the Loan was repaid. He seeks the following relief.
(a) A declaration that ss 5(7) and 20 of the Limitation of Actions Act 1958 (Vic) (LAA) applies to the Mortgage, so that any action to enforce the Mortgage would be out of time. The Registrar of Titles has advised that such a declaration would facilitate the exercise of her power under s 84(2) of the Transfer of Land Act to remove the Mortgage from the relevant folio of the Register.[2]
(b) Alternatively, an order pursuant to s 103(1) of the Transfer of Land Act that the Registrar is to remove the Mortgage from the relevant folio of the Register.
[2]Affidavit of Iris Fisher affirmed on 13 August 2024, Exhibit IF-1, 4 (Letter from the Registrar of Titles to Engel & Partners dated 12 August 2024). In the letter dated 12 August 2024,the Registrar also informed the plaintiff that she did not intend to appear in the proceeding.
In summary, I will make those orders because, even if the Loan has not been repaid, any action to recover the Loan and interest on it would be barred by ss 5(7) and 20 of the LAA and the Mortgage is no longer enforceable.
The Facts
The circumstances of the Mortgage
Mr Birchall became the registered proprietor of the Property in 1982.[3] He granted the Mortgage as security for the Loan on 11 June 1991.[4] The Mortgage document lodged at the Titles Office shows that the Mortgage was to be repaid in monthly instalments of $610.01 commencing 15 June 1991, and that the due date for repayment of the Loan was 15 November 1994.[5] There is no available record of whether the Mortgage had been repaid in part or in full, but as at the date of this application in May 2024, Mr Millard was not aware of Mr Birchall having received any request for repayment and had not received any request for repayment in the past 20 years. Mr Millard believed that there were no repayments outstanding on the Loan. [6]
[3]Affidavit of Daryl Millard affirmed on 21 May 2024, Exhibit DM-1, 9 (Register Search Statement, Volume 01939 Folio 718).
[4]Affidavit of Daryl Millard, Exhibit DM-1, 10 (Mortgage dated 11 June 1991).
[5]Affidavit of Daryl Millard, Exhibit DM-1, 10 (Mortgage dated 11 June 1991). The plaintiff notes that the original printed Mortgage document provided for the first instalment to be paid on 15 May 1991, but was amended to provide 15 June 1991, so that given there was no amendment to the monthly instalment amounts, the repayment date may have been intended to be extended to 15 December 1994. It is also possible that an additional instalment was paid in one of the months. Given the minimal time difference it is unnecessary to make any finding on this point.
[6]Affidavit of Daryl Millard, [15].
On 14 June 2009, Bozidar Rehak died,[7] and on 16 September 2009, the Supreme Court of Tasmania granted probate of Mr Rehak’s will to Ms Rosemarie Callaghan.[8]
[7]Affidavit of Daryl Millard, Exhibit DM-1, 18 (Order for Probate dated 16 September 2009, Supreme Court of Tasmania).
[8]Affidavit of Daryl Millard, Exhibit DM-1, 18 (Order for Probate dated 16 September 2009, Supreme Court of Tasmania).
Attempts to have the Mortgage discharged
As outlined below, the plaintiff’s solicitors have made extensive efforts to contact the representatives of the Mortgagees with a view to having the Mortgage discharged. The evidence filed on behalf of the plaintiff establishes the following.
On 30 March 1992, Berrigan Doube Lawyers, who had apparently acted for the Mortgagees in relation to the Loan, provided the certificate of title for the Property to another firm, Finlay Watchorn, who then commenced to act for the Mortgagees.[9]
[9]Affidavit of Daryl Millard, Exhibit DM-1, 13 (Email from Berrigan Doube Lawyers to Engel & Partners dated on 6 June 2016).
In the period after Mr Birchall died on 27 December 2015,[10] the plaintiff’s solicitors made inquiries about the status of the mortgage.
(a) On 10 June 2016, the plaintiff’s solicitor made a file note which stated, among other things ‘10/6 C/W Darryl [Millard]…Bodizar [sic] Rehak – mortgagee – Kerry [Birchall] was unable to locate them. K’s sister Carolyn Lawrence lives in Inglewood – told me this a couple of weeks ago. She said K had made unsuccessful attempts several years ago’.[11]
(b) In response to a letter from the plaintiff’s solicitor on 7 June 2016, Mr Rehak’s solicitors – Finlay Watchorn - stated by email that they still held the certificate of title for the Property and the original documentation of the Mortgage. They stated that ‘[i]t appears from other records that the last dealings that we had with Mr Rehak were in February 2000’, and that they held no current instructions from him.[12] Finlay Watchorn also advised that a search of land and telephone records did not disclose any current address for Mr Rehak in Tasmania.
[10]Affidavit of Daryl Millard, Exhibit DM-1, 17 (Orders for Letters of Administration dated 25 August 2023, Supreme Court of Victoria).
[11]Affidavit of Daryl Millard, Exhibit DM-1, 15 (File note of conference between Mr Millard and Engel & Partners on 10 June 2016).
[12]Affidavit of Daryl Millard, Exhibit DM-1, 14 (Email from Finlay Watchorn to Engel & Partners dated 7 June 2016).
On 25 August 2023, the Supreme Court of Victoria granted to the plaintiff letters of administration of the estate of Mr Birchall.[13] Following the grant of probate, the plaintiff’s solicitor again attempted to contact the Mortgagees and have the Mortgage discharged. The plaintiff’s solicitor, after research efforts to locate the Mortgagees, ascertained that Mr Rehak had died, and obtained a copy of the Grant of Probate for the will of Mr Rehak to Ms Callaghan, which recorded that he had died on 14 June 2009, and that probate had been granted on 16 September 2009.
[13]Affidavit of Daryl Millard, Exhibit DM-1, 17 (Orders for Letters of Administration dated 25 August 2023, Supreme Court of Victoria).
The plaintiff’s solicitors contacted Finlay Watchorn by email on 12 September 2023, and provided them with a copy of the Grant of Probate for Mr Rehak’s will. The email requested that Finlay Watchorn follow up with their clients as to the release of the certificate of title to the Property and discharge of the Mortgage.[14]
[14]Affidavit of Daryl Millard, Exhibit DM-1, 19 (Email from Engel Partners to Finlay Watchorn dated 12 September 2023).
The plaintiff’s solicitor also requested in October 2023 that Dobson Mitchell Allport, the solicitor for Ms Callaghan (the executor of Mr Rehak’s estate), provide instructions to Mr Rehak’s solicitor to release the mortgage and title to the plaintiff.[15]
[15]Affidavit of Daryl Millard, Exhibit DM-1, 20 (Email from Engel & Partners to Dobson Mitchell Allport dated 9 October 2023).
On 14 December 2023, Dobson Mitchell Allport confirmed that they no longer acted for Ms Callaghan and did not have instructions to provide contact details to Mr Rehak’s former solicitor.[16] They also advised that Jacqueline Rehak, who they described as ‘Mr Rehak’s ex-wife’, was deceased.[17] On the same day, Finlay Watchorn confirmed they were unable to contact Ms Callaghan.[18] The plaintiff’s solicitors were also unable to find any record of a Grant of Probate being issued in the estate of Ms Rehak.[19]
[16]Dobson Mitchell Allport confirmed by email dated 30 August 2024 that Ms Callaghan had told that firm that they were not instructed in the matter, and did not have instructions to accept service or provide information. Affidavit of Geraldine O’Connell affirmed on 5 September 2024 (Second O’Connell Affidavit), [13], Exhibit GMTO-1, p 14 (Email from Dobson Mitchell Allport to Engle & Partners dated 30 August 2024).
[17]Affidavit of Daryl Millard, Exhibit DM-1, 22 (Email from Dobson Mitchell Allport to Finlay Watchorn dated 14 December 2023).
[18]Affidavit of Daryl Millard, Exhibit DM-1, 21-22 (Email from Finlay Watchorn to Engel & Partners dated 14 December 2023).
[19]Affidavit of Daryl Millard, [14].
After issuing this proceeding, the plaintiff then tried to serve Ms Callaghan (as executor of Mr Rehak’s estate).
(a) On 19 July 2024, the plaintiff’s solicitors attempted unsuccessfully to telephone Ms Callaghan on telephone numbers they drew from an ‘InfoTrack Person Locator Search’.[20]
[20]Second O’Connell Affidavit, [6].
(b) On 3 August 2024, a process server unsuccessfully attempted to serve Ms Callaghan at the address referred to in the order which granted her probate of the estate of Mr Rehak. The current resident at the address told the process server that Ms Callaghan had moved and provided her mobile number.[21]
(c) On 7 August 2024, the plaintiff’s solicitors telephoned the telephone number provided by the resident. The call was answered by a woman who refused to give her name. When told they were trying to reach Ms Callaghan, the woman said ‘someone else has got my number then’ and ended the call.[22]
(d) By emails to Dobson Mitchell Allport on 21 and 30 August 2024, the plaintiff’s solicitors sought to put Ms Callaghan on notice of this proceeding and obtain her contact details. Dobson Mitchell Allport informed the plaintiff’s solicitors that they would forward the emails onto Ms Callaghan, and that they did not have instructions to act for Ms Callaghan or provide her contact details.[23]
[21]Affidavit of Leigh Taylor sworn on 9 August 2024.
[22]Second O’Connell Affidavit, [9]-[10].
[23]Second O’Connell Affidavit, [12]-[13] and Exhibit GMTO-1, 11-19.
On 17 September 2024, Judicial Registrar Lorenz made orders for substituted service on Ms Callaghan. The plaintiff’s solicitors effected substituted service on Ms Callaghan on 25 September 2024.[24]
[24]Affidavit of Geraldine O’Connell affirmed on 30 September 2024.
As at 13 February 2025, neither Ms Callaghan (as executor of the estate of Mr Rehak) nor any executor or administrator of the estate of Ms Rehak had entered an appearance in this proceeding, nor did Ms Callaghan appear at the hearing including after the proceeding was called out of Court by my associate at the hearing.
Relevant law
Section 84 of the Transfer of Land Act empowers the Registrar to remove the recording of a mortgage from the relevant folio of the Register:
84 Discharge of mortgages and annuities
(1)Upon submission of an instrument in an appropriate approved form signed by the mortgagee or annuitant discharging the land or part thereof from the whole or part of the moneys or annuity secured, the Registrar must remove the recording of the mortgage, charge or annuity from the relevant folio of the Register and that land or portion of land ceases to be subject to the mortgage, charge or annuity.
(2)The Registrar may amend the Register to remove the recording of a mortgage on a folio or folios of the Register if it is proved to the Registrar's satisfaction that—
(a) either—
(i)all principal and interest due in respect of the mortgage have been paid to the person entitled to receive them; or
(ii)section 20 of the Limitation of Actions Act 1958 applies; and
(b)a discharge of mortgage instrument cannot be obtained because the mortgagee is—
(i)a natural person who is deceased and has no legal personal representative who can act on the deceased's behalf, or whose signature cannot for any reason be obtained within a reasonable time; or
(ii)a body corporate and the authorised agent of the body corporate cannot be located or the agent's signature cannot be obtained within a reasonable time.
In cases where it cannot be established that principal and interest in respect of a mortgage has been repaid, for the purposes of s 84(2)(a)(i), it is relevant to consider the application of s 20 of the LAA, and whether any action on the Loan would be statute barred. Section 20(1) of the LAA provides:
20 Actions to recover money secured by a mortgage or charge
(1)No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, whether real or personal, after the expiration of fifteen years from the date when the right to receive the money accrued, notwithstanding that the money is by any Act or instrument expressed to be a charge until paid.
Section 5(7) of the LAA, in s 5 headed ‘Contracts and torts’, provides:
(7)Save as otherwise expressly provided an action shall not be brought to recover any arrears of interest in respect of any sum of money whether payable in respect of a specialty, judgment, legacy, mortgage or otherwise, or any damages in respect of such arrears, after the expiration of six years after they became due.
Generally, a cause of action has ‘accrued’, for the purpose of limitations legislation, when all the facts that a plaintiff has to prove in order to establish the right to the remedy are in existence.[25] In the case of an action on a loan secured by a mortgage, this would involve establishing the contract of loan and a breach of it by failing to make a repayment of the principal or interest in accordance with the loan terms. As discussed below, it is unclear whether any such breach occurred.
[25]De Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 245 (Wilson J).
In Kam-Sui Ing v Australian Securities and Investments Commission & Anor, Ierodiaconou AsJ observed that s 84(2) does not address the Court’s power to direct the Registrar. Rather, the source of that power is s 103(1) of the Transfer of Land Act,[26] which provides:
[26][2023] VSC 632, [28].
103 General provision as to correction of errors etc.
(1)In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.
Her Honour observed that it was arguable that the Court may direct the Registrar pursuant to s 84(2) of the Transfer of Land Act, but ultimately did not need to decide this point.[27]
[27]Kam-Sui Ing, [29].
Her Honour found that the relevant loans had been repaid in full, notwithstanding the unexplained failure to lodge the documents to discharge the mortgages.[28] That finding was based on the following evidence.[29]
[28]Kam-Sui Ing, [26].
[29]Kam-Sui Ing, [9]-[10], [11]-[22].
(a) One of mortgagees had written to the mortgagors in May 1993 confirming that a loan relating to the property had been repaid in full and inviting them to take steps to discharge the mortgage.
(b) There was no evidence that any payments were made or requested on the loans after May 1993.
(c) The mortgagors now possess the paper certificate of title for the property that was the subject of the mortgage.
(d) The mortgagors had taken exhaustive efforts to find a successor to the now defunct mortgagees.
Her Honour also found that:
It may be inferred that any action for recovery would be statute-barred per s 20 of the Limitation of Actions Act 1958 (Vic) given the following circumstances: the mortgages were registered in 1988 and 1989 respectively, there were no loan repayments made after mid-1993 and no demands for such were made.[30]
[30]Kam-Sui Ing, [30].
The Registrar’s Position
The Registrar informed the plaintiff of her views as to the appropriate form of relief, if the Court was minded to grant relief. The Registrar also advised that she did not intend to appear in the hearing of the application.
The Registrar stated that the orders could be in the form of a declaration that s 20 of the LAA applies, and then the plaintiff could submit that declaration in support of an application for the Registrar to exercise her powers under s 84(2) of the Transfer of Land Act. Alternatively, the Court could make an order under s 103(1) that the Registrar is to remove the Mortgage from the folio of the Register volume 01939 folio 718. The Registrar would then act on that order after the plaintiff lodges the form ‘Application – Amendment by Court/VCAT Order – section 103 of the Transfer of Land Act’.[31]
[31]Affidavit of Iris Fisher, Exhibit IF-1, 4 (Letter from the Registrar of Titles to Engel & Partners dated 12 August 2024).
Consideration
Repayment of the Loan
The plaintiff invites the Court to infer that the Mortgage has been repaid, based on the following circumstantial evidence.
(a) Mr Birchall attempted to contact the Mortgagees before he died.[32]
[32]Affidavit of Daryl Millard, Exhibit DM-1, 15 (File note of conference between Mr Millard and Engel & Partners on 10 June 2016).
(b) There is no evidence of any attempt to enforce the Mortgage for non-payment of the Loan by Mr Birchall.
(c) The plaintiff deposes that he has searched for, and cannot locate, any records relating to the Mortgage.[33]
(d) Plaintiff deposes that neither Mr Birchall nor he has received any request for repayment of the Loan in the last twenty years.[34]
[33]Affidavit of Daryl Millard, [16].
[34]Affidavit of Daryl Millard, [15].
However, as the plaintiff concedes, there is no positive evidence that Mr Birchall repaid the Loan.[35] Indeed, the fact that the Mortgagees’ former solicitors still held the certificate of title for the Property might suggest that the Loan was not repaid.[36] This stands in contrast to the facts in Kam-Sui Ing, where one of the mortgagors had confirmed in writing that one of the loans had been repaid and invited the mortgagees to take steps to discharge the mortgage, and the mortgagors possessed the certificate of title.
[35]Outline of Submissions of the Plaintiff, [13] and [35].
[36]Cf Kam-Sui Ing at [9(d)], where the fact that the mortgagee held the certificate of title supported a finding that the loans in question had been paid.
In my view, the plaintiff’s evidence is an inadequate basis on which to find that the Loan has been repaid.
This is no criticism of the plaintiff, as it is plain that extensive efforts have been made to contact the Mortgagees and their representatives and to locate documents which might establish whether repayments have been made, or moneys remain outstanding. The evidentiary deficiencies arise from the passage of time and the death of the Mortgagees. It is precisely these kinds of difficulties that limitations of actions statutes seek to address.[37]
[37]Andrew Zukerman et al, Zuckerman on Australian Civil Procedure (Lexis Nexis Butterworths, 2018) 994-996.
Application of ss 5(7) and 20 of the LAA
As noted above, s 20(1) of the LAA imposes a fifteen year limitation period on actions to recover money secured by a mortgage. Further, s 5(7) bars any action to recover arrears of interest in respect of any sum of money payable in respect of a mortgage after the expiration of six years after the arrears were due.
Here, the Loan is secured by a mortgage of real property. The complete documentation of the Loan is not in evidence. However, the mortgage form states that the ‘Due date’ for the Loan is 16 November 1994 and that the Loan was to be repaid in monthly instalments, with interest.[38] Section 20(1) of the LAA would bar any action to recover the principal of the Loan fifteen years after each instalment fell due. Section 5(7) would have had that effect six years after each instalment of interest was due. Given that the monthly repayments were due to be paid in full by November or December 1994, any action to recover any principal owing on the loan would have been barred from, at the latest, the end of 2009 and actions for interest would have expired at the end of 2000. Any action on the Loan is therefore well out of time.
[38]Affidavit of Daryl Millard, Exhibit DM-1, 10.
There is no evidence that the Mortgagees were under a disability that might alter the limitation period.[39] Further, the LAA does not provide for the discretionary extension of the limitation periods imposed by ss 5(7) and 20.
[39]LAA, s 23.
I conclude that limitation period for any action on the principal and interest due under the Loan has expired. Sections 5(7) and 20 will operate by their terms as a bar to any claim by the Mortgagees or their successors.[40]
[40]See for example the discussion of differently formulated limitation statutes in McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1, 42-44 (Brennan, Dawson, Toohey and McHugh JJ).
I also find, having regard to the requirements of s 84(2)(b) of the Transfer of Land Act, that a discharge of the Mortgage cannot be obtained, because:
(a) one Mortgagee, Mr Rehak, is deceased and the signature of his personal representative, Ms Callaghan, on a discharge of mortgage instrument has been sought but has not been able to be obtained within a reasonable time; and
(b) the other Mortgagee, Ms Rehak, is likely also to have died, and neither she nor any personal representative has been located despite searches. No signature will be able to be obtained from either of them in a reasonable time or otherwise.
In light of these findings, I will make a declaration that s 20 of the LAA applies to the Loan and s 5(7) of the LAA applies to any interest on the Loan, and that the discharge of the Mortgage instrument cannot be obtained because the Mortgagees are deceased, and no signature can be obtained by any personal representative within a reasonable time.
Consistent with the observations of Ierodiaconou AsJ in Kam-Sui Ing, it is appropriate to make those factual findings for the purposes of the requirements of s 84 of the Transfer of Land Act.[41] They will enable the Registrar readily to be satisfied of the requirements of s 84(2) of that Act, for the purposes of amending the Register. For the avoidance of doubt, and noting the Registrar’s advice as communicated to the plaintiff on that issue,[42] I will also make an order pursuant to s 103 of the Transfer of Land Act to direct the Registrar to make an amendment to the Register to remove the recording of the Mortgage from the folio of the Register that relates to the Property.
[41]Kam-Sui Ing, [29]-[31].
[42]Affidavit of Iris Fisher, Exhibit IF-1, 4 (Letter from the Registrar of Titles to Engel & Partners dated 12 August 2024).
I informed counsel for the plaintiff at the hearing, after hearing his submissions and having read the evidence, that I would make the declarations and order referred to above. Counsel submitted that he anticipated that this would be sufficient to have the certificate of title to the land delivered up by solicitors for Ms Callaghan, Finlay Watchorn. I also consider on the basis of the current evidence that the declarations, order and these reasons are an appropriate and sufficient basis on which Finlay Watchorn could deliver up the certificate of title, but will grant liberty to apply in the event that any further issue arises.
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