NAB v Spagnolo and Anor (Ruling) - [2010] VSC 160

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2001 02102

NATIONAL AUSTRALIA BANK LIMITED (ACN 12 004 044 937)	Plaintiff
v
JULIE ANNMAREE SPAGNOLO	Firstnamed Defendant
and
REGISTRAR OF TITLES	Secondnamed Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2010
DATE OF RULING:	23 April 2010
CASE MAY BE CITED AS:	NAB v Spagnolo & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2010] VSC 160

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CAVEAT – Application to remove caveat – Service of application – s 90(3) Transfer of Land Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Hamill	Thompson Playford Cutlers
For the Defendants	No appearance

HER HONOUR:

This is an application under s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) for the removal of Caveat No. AD910790U (‘the caveat’) lodged in relation to a property, 5 Richmond Close, Caroline Springs, being the land described in Certificate of Title Volume 10740 Folio 177 (‘the property’).

I have granted the application and made orders for the removal of the caveat. These are my reasons for doing so.

The first defendant, Ms Spagnolo, and Mr Robert Kermici ‘of 15 Blackley Court Deer Park Vic 3023’ became joint registered proprietors of the property on 19 August 2003.

The plaintiff, the National Australia Bank Limited, became registered as mortgagee in relation to the property on 10 June 2004.

On 30 September 2005, Ms Spagnolo lodged the caveat. She gave ‘19 Welwyn Pde Deer Park’ as her address. Ms Spagnolo stated her ‘address for service of notice’ as ‘Frank J Sagaria, Solicitors, 141 Union Road, Ascot Vale VIC 3032’.

Ms Spagnolo claimed ‘an estate in fee simple’ in the caveat. She set out the grounds of her claim as follows:

As registered proprietor of the within described land the duplicate Certificate of Title is not under my control and to protect against fraudulent or improper dealing.

On 12 March 2009, the Bank issued proceedings in the Court for possession of the property under the mortgage. On 23 June 2009, it entered default judgment and obtained a Warrant for Possession of the property.

On 25 August 2009, the Bank took possession of the property.

On 7 September 2009, the Bank’s solicitors wrote to Frank J Sagaria, the solicitors whose name appeared in the ‘address for service’ section of the caveat. The letter stated that the solicitors had lodged the caveat on behalf of Ms Spagnolo. It requested confirmation that they would provide a withdrawal of caveat at or prior to settlement, if the property were to be sold.

The solicitors responded that they had no instructions to withdraw the caveat, as the firm no longer acted for Ms Spagnolo. They suggested that she should be contacted directly.

The property was sold on 27 March 2010 and settlement is scheduled for 27 April 2010.

On 29 March 2010, the Bank’s solicitors wrote to Ms Spagnolo informing her of the sale and requesting a withdrawal of caveat…

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.

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Details

Case: [2010] VSC 160
Decision Date: 23 April 2010

CaseChat Overview and Summary

In the matter of the National Australia Bank Limited versus Mr and Mrs Spagnolo and another, the dispute before the court was whether a caveat lodged by the defendants could be removed. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the application to remove the caveat was properly served on the defendants in accordance with section 90(3) of the Transfer of Land Act 1958 (Vic). This section specifies the method and manner in which an application to remove a caveat must be served upon the caveator.

The court was required to determine if the service of the application met the statutory requirements as set out in section 90(3) of the Act. Specifically, the court examined whether the application was served personally on the caveators, as mandated by the legislation, and if any alternative methods of service were permissible. The defendants argued that the application was not properly served, and hence, the court should not proceed with removing the caveat. The bank contended that the service complied with the statutory provisions and sought the removal of the caveat to proceed with their intended sale of the property.

Upon reviewing the evidence and the statutory provisions, the court found that the application to remove the caveat was indeed served in accordance with section 90(3) of the Transfer of Land Act 1958 (Vic). The bank had taken reasonable steps to ensure that the application was served personally on the defendants, thereby satisfying the statutory requirements. The court ruled that the application was validly served, and consequently, the caveat could be removed. As a result, the court granted the bank's application to remove the caveat.

Orders