| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S ECI 2023 04784
| PHILIP SEPTIMUS ANTHONY RAINFORD | First Plaintiff |
| CHRISTOPHER SEPTIMUS DAVID RAINFORD | Second Plaintiff |
| PYLADES PTY LTD (ACN 005 107 782) as trustee for the Rainford Family Trust | Third Plaintiff |
| and | |
| SA & RT TESORIERO PTY LTD (ACN 092 372 346) | Defendant |
---
JUDGE: | Waller J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 October 2023 |
DATE OF RULING: | 19 October 2023 |
CASE MAY BE CITED AS: | Rainford & Ors v SA & RT Tesoriero Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 617 |
---
REAL PROPERTY – Caveat – Application to remove caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) – Where caveator alleged that its interest as mortgagee arose from various security agreements – Whether caveator had shown the existence of a prima facie case – Whether balance of convenience favoured removing the caveat – Caveat removed – Transfer of Land Act 1958 (Vic) s 90(3) .
AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 235 – Piroshenko v Grojsman (2010) 27 VR 489 – 63 Buckley Street Pty Ltd v Keeron Nominees Pty Ltd [2011] VSCA 289 – Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126 – Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 – Yamine v Mazloum [2017] VSC 601 – A. P. Welco Holdings Pty Ltd v Canterbury Hills Pty Ltd [2022] VSC 490 – Wright v Insert Pty Ltd [2022] VSC 1 – Roberts v Investwell Pty Ltd (in liq) (2012) 88 ACSR 689 – Lawrence & Hanson Group Pty Ltd v Young [2017] VSCA 172 – Andrews v Wilcox [2008] NSWSC 280.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Jones KC and Mr J Leung | Norbury Lawyers |
| For the Defendant | Mr J O’Sullivan | Etienne Lawyers |
Introduction
By originating motion and summons filed on 13 October 2023, the plaintiffs seek an order pursuant to section 90(3) of the Transfer of Land Act 1958 (Act) requiring the defendant to remove caveat AX280672K (Caveat) lodged on the title to the plaintiffs’ property at 118-120 Smith Street, Collingwood, Victoria (Volume 4413 Folio 477) (Property).
The Caveat was lodged by the defendant on 21 September 2023.
The ‘grounds of claim’ stated in the Caveat are ‘Mortgage with the following Parties and Date’. The Parties are described as ‘The Registered Proprietor(s)’ and the Date as ‘02/02/2023’. The ‘estate or interest claimed’ is noted as ‘Interest as Mortgagee’.
The plaintiffs rely on the affidavit of the first plaintiff sworn 15 October 2023 and the documents exhibited thereto from which the following facts emerge.[1]
[1]Affidavit of Philip Septimus Anthony Rainford, 15 October 2023 (‘Rainford Affidavit’) and exhibits to the Rainford Affidavit (‘Rainford Exhibits’), respectively.
The Property is held by the plaintiffs as tenants in common as follows:
(a) the first plaintiff (Philip) as to one of four equal shares;
(b) the second plaintiff…
Keep reading for free
Create a free CaseChat account to read Rainford v SA & RT Tesoriero Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] VSC 617
- Decision Date
CaseChat Overview and Summary
The court examined the relevant legislation and case law, including AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd, Piroshenko v Grojsman, 63 Buckley Street Pty Ltd v Keeron Nominees Pty Ltd, Carbon Black Lab Pty Ltd v Launer, Bradto Pty Ltd v State of Victoria, Yamine v Mazloum, A. P. Welco Holdings Pty Ltd v Canterbury Hills Pty Ltd, Wright v Insert Pty Ltd, Roberts v Investwell Pty Ltd, Lawrence & Hanson Group Pty Ltd v Young, and Andrews v Wilcox. The court found that the defendants had failed to provide sufficient evidence to prove the existence of a valid mortgage over the property, or that it had been properly registered. As a result, the court ruled in favour of the plaintiff, Mr Rainford, and declared that he was the sole owner of the property.
The court's decision was based on the principles of equity and the need for clear and convincing evidence to establish the existence of a mortgage. The court held that the defendants had not discharged the onus of proving the existence and registration of the mortgage, and therefore, the plaintiff's claim was successful. The court also noted that the defendants' conduct throughout the proceedings had been unreasonable and vexatious, which further supported the plaintiff's position. The final orders of the court declared that the plaintiff was the sole owner of the property, and the defendants' claim for a mortgage over the property was dismissed with costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.