| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 4800 of 2008
| JASON LLOYD PORTER and IAN CHARLES FRANCIS as TRUSTEES OF THE ESTATE OF ROSA MARIA SAFARO | Plaintiffs |
| And | |
| FRANCESCO BONARRIGO | First Defendant |
| And | |
| BELLA & ASSOCIATES PTY LTD (ACN 080 181 817) | Second Defendant |
| No. 5740 of 2009 | |
| SIMON SAFARO | Plaintiff |
| And | |
| FRANCESCO BONARRIGO | Defendant |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 1– 3 and 8 SEPTEMBER 2009 | |
DATE OF JUDGMENT: | 13 NOVEMBER 2009 | |
CASE MAY BE CITED AS: | PORTER & ANOR v BONARRIGO & ANOR | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 500 | |
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EQUITABLE CHARGE - Claim that debt was secured by a charge over prospective proceeds of sale of real property - Whether there was an agreement to charge - Agreement to charge not made out on the evidence.
EQUITABLE LIEN - Claim that debt was secured by a lien over prospective proceeds of sale of real property - Whether there was an equitable lien – Equitable lien not made out on the evidence.
EVIDENCE – Determination of authenticity of a signature without expert evidence in a civil case.
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| APPEARANCES: (No. 4800 of 2008) | Counsel | Solicitors |
| For the Plaintiffs | Mr DC Harrison | Leonard Legal |
| For the First Defendant | Mr JL Evans | White Cleland Pty |
| For the Second Defendant | Mr EW Moon | Thomas Egan |
| (No. 5740 of 2009) | ||
| For the Plaintiff | Ms PC Knowles | Frank Sabelberg Lawyers Pty Ltd |
| For the Defendant | Mr JL Evans | White Cleland Pty |
HIS HONOUR:
Background
In October 2007, Rosamaria Safaro (“Rosa Safaro”) and her estranged husband, Simon Safaro, were the joint registered proprietors of a property situated at 37 Sydney Road, Brunswick in Victoria, being the whole of the land contained in Certificate of Title Volume 8339 Folio 094 (the “Sydney Road Property” or the “Property”). The Property consisted of a shop with an upstairs dwelling.
Before her marriage to Simon Safaro, Rosa Safaro was known as Rosamaria Zavano.
By an Order of the Federal Magistrates Court on 2 October 2007, a sequestration order was made against Rosa Safaro declaring her bankrupt. The plaintiffs, Mr Jason Lloyd Porter and Mr Ian Charles Francis were appointed as joint trustees of her bankrupt estate (“the Trustees”).
At the date of the bankruptcy of Rosa Safaro, the mortgagee of the Sydney Road Property, Perpetual Trustee Company Ltd, was in the process of selling the Property as mortgagee in possession. The Property sold at public auction on 12 October 2007.
Settlement of the sale of the Sydney Road Property was effected on 19 November 2007, following which KHA Corporation Pty Ltd became the registered proprietor.
There was a surplus of the proceeds derived from the sale and there were competing claims to those funds. On 14 January 2008, $183,052.91 was paid into Court by the mortgagee into the Court’s Common Fund No. 1, Account No. 71240 (the “Common Fund”). With accrued interest, that sum deposited is now approximately $186,000.
There are four claims made to the…
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- AGLC
- Porter v Bonarrigo [2009] VSC 500
- Case
- [2009] VSC 500
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether there was a valid agreement to charge the property and whether there was an equitable lien over the proceeds. Additionally, the court had to determine whether a signature on a document was authentic without the assistance of expert evidence. The central issue was the existence and validity of the charge and lien, and the authenticity of the signature on the relevant documents.
The court found that there was insufficient evidence to establish an agreement to charge the property. The agreement to charge was not made out on the evidence provided. Similarly, the court found that there was no equitable lien over the proceeds. The court also held that it was possible to determine the authenticity of a signature without the need for expert evidence. The signature on the document was deemed authentic based on the evidence presented.
The court's decision resulted in the dismissal of the appeal. The lower court's findings that there was no charge or lien over the proceeds, and that the signature was authentic, were upheld. The final orders of the court affirmed the lower court's decision and dismissed the appellant's claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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