Phillips v Southage Pty Ltd

[2014] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0001
S APCI 2014 0004
S APCI 2013 0152
 S APCI 2013 0160

STEVE PHILLIPS
	Applicant
v
SOUTHAGE PTY LTD (ACN 050 240 965)	Respondent

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JUDGES:

WHELAN and SANTAMARIA JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

7 February 2014

DATE OF JUDGMENT:

20 February 2014

MEDIUM NEUTRAL CITATION:

JUDGMENT APPEALED FROM:

[2014] VSCA 17

Orders made 17 September 2013 (Vickery J), 10 October 2013 (Judd J) and 29 November, 3 December, 13 December and 18 December 2013 (Ginnane J)

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PRACTICE AND PROCEDURE – Application for a stay pending application for special leave – Principles applicable – Application refused.

APPLICATION FOR LEAVE TO APPEAL – Application for extension of time – Interlocutory orders – Relevant issues previously determined – Application dismissed.

APPEALS – Refusal and granting of injunctions - Decisions of trial judges clearly correct – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondent	Mr B Velos (solicitor)	Velos Lawyers

WHELAN JA:

Overview

1. Mr Steve Phillips and his brother, Mr Phillip Phillipou, were the joint executors of the estate of their mother, Angeliki Phillipou.  Amongst the assets of her estate when she died in 1994 were adjoining terrace houses at 27 and 29 Brunswick Street, Fitzroy.  Provision was made in her will leaving 27 Brunswick Street to Mr Phillipou for his life or until his son turned 25, and then to his son;  and leaving 29 Brunswick Street to Mr Phillips for his life or until his son turned 25, and then to his son.

1. Notwithstanding the provisions of the will, on 16 December 1996 Mr Phillips and Mr Phillipou as executors signed a transfer transferring 29 Brunswick Street, Fitzroy (‘the property’) to a company named Beijing Garden Resort Pty Ltd (‘Beijing Garden’).  Mr Phillips also signed the transfer on behalf of Beijing Garden as its sole director.  The transfer expressed the consideration for the transfer to be $250,000.

1. Beijing Garden is the trustee of a discretionary trust established by Mr Phillips in 1996, named the Stavrous Phillipou Family Trust (‘the family trust’).  Mr Phillips and his children are beneficiaries.  The deed names Mr Phillips as ‘Guardian’ and ‘Appointor’.

1. In 2006 Beijing Garden mortgaged the property in favour of Permanent Trustee Co Ltd, and in 2010 it granted a second mortgage in favour of the respondent, Southage Pty Ltd (‘Southage’).  After default, Southage took proceedings in 2011 to obtain possession of the property.

1. Mr Phillips then embarked upon, what may fairly be described as, a campaign to prevent the mortgagee from taking possession of, and selling, the property.  He has brought proceedings in the trial division of this Court and in the Victorian Civil and Administrative Tribunal, he has lodged caveats and other dealings with the Registrar of Titles, and he has defended proceedings concerning the removal of caveats, and proceedings seeking to enjoin him from activity outside the courts.

1. Southage obtained judgment for possession, and then obtained a warrant of possession, in…