Rainford v SA & RT Tesoriero Pty Ltd - [2023] VSC 617

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

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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

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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.

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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…

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: [2023] VSC 617
Decision Date: 19 October 2023

CaseChat Overview and Summary

The case of Rainford v SA & RT Tesoriero Pty Ltd involved a dispute over the ownership of a property located in Melbourne, Victoria. The plaintiff, Mr Rainford, claimed that he was the sole owner of the property, while the defendants, SA & RT Tesoriero Pty Ltd, argued that they held a valid mortgage over the property. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the defendants held a valid mortgage over the property, and if so, whether it had been properly registered. The court had to consider the evidence provided by both parties, including documents, witness statements, and expert opinions, to determine the validity and registration of the mortgage.

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