Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2) - [2013] VSC 210

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

No. SCI 2013 01103

IN THE MATTER OF an application pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic)

ESSENDON APARTMENT DEVELOPMENTS PTY LTD (in liquidation) (ACN 145 718 485)	Plaintiff
v
ROBERT LONG & ORS	Defendants

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2013
DATE OF JUDGMENT:	2 May 2013
CASE MAY BE CITED AS:	Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 210

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PROPERTY – Removal of caveats – Relevant principles – Balance of convenience favourable to the removal of caveats.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.A.J. McKillop	Partners Legal
For the First Defendant	Mr W.F. Rimmer	Eales & Mackenzie
For the Second Defendant	No appearance
For the Third Defendant	No appearance
For the Fourth, Fifth, and Tenth Defendants	Mr E.W. Alstegren SC with Mr A.A. Segal	D.E. Phillips
For the Sixth Defendant	No appearance
For the Seventh Defendant	No appearance
For the Eighth Defendant	No appearance
For the Ninth Defendant	No appearance
For Bellmar Holdings Pty Ltd	Mr P. Bingham	Cornwall Stoddart

TABLE OF CONTENTS

Introduction............................................................................................................................... 2
Summary of submissions of caveators......................................................................................... 3
Essendon Apartment Developments Pty Ltd............................................................................. 5
Involvement of Mr Iskaff and Ms McGuire with Essendon Apartment..................................... 6
The sale to Mr Iskaff................................................................................................................... 8
Directions as to sale.................................................................................................................... 8
The caveats................................................................................................................................. 9
The liquidator’s submissions..................................................................................................... 10
Legal principles......................................................................................................................... 11
Discussion................................................................................................................................ 14
Costs......................................................................................................................................... 17

HIS HONOUR:

Introduction

On 4 April 2013, I ordered, under s 90(3) of the Transfer of Land Act 1958, that the caveats on the property at 1048-1060 Mt Alexander Road, Essendon (the land) referred to in the originating proceeding be removed and that:

(a)the first to eighth defendants be restrained from lodging any further caveat on the land; and
(b)the ninth defendant (the Registrar of Titles) refuse to make a recording in the register of any further caveat which is lodged by the first and/or second defendant in respect of the land.

(The order in para (a) was subsequently extended to the Tenth Defendants, together with further consequential mechanical orders, by signed minutes of consent dated 16 April 2013.)

I reserved my reasons. I now deliver my reasons for the orders I made.

The plaintiff (Essendon Apartment) has entered into a contract of sale with Antonio Iskaff and/or nominee to sell the land for $4,600,000. It is a term of the agreement that the caveats lodged over the title be removed. Essendon Apartment is in liquidation; Mr Rohrt is the liquidator.

The caveators of five caveats lodged over the titles to the land have not sought to uphold their caveats. These are the second, third, sixth, seventh, and eight defendants respectively. I ordered the removal of their caveats. The seventh defendant (Mr Charbel Kanati) will withdraw his caveat at settlement of the contract of sale but also opposed the settlement of the contract of…

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: [2013] VSC 210
Decision Date: 2 May 2013

CaseChat Overview and Summary

In the matter of Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2), the primary focus was on the removal of caveats lodged on a property, with the liquidator of the company acting as the applicant and the registered proprietors of the property, being the respondents. The dispute centred around the validity and continued existence of the caveats lodged against the property title, and whether they should be removed. The case was heard in the Supreme Court of Victoria.

The legal issues before the court involved determining the applicability of certain principles that govern the removal of caveats. These principles include whether the caveator had a real and substantial interest in the property, whether the caveat was necessary to protect that interest, and whether the balance of convenience favoured the removal of the caveats. The court also had to consider the equitable jurisdiction to remove caveats that were no longer necessary or valid.

The court found that the principles governing the removal of caveats were applicable and that the balance of convenience favoured the removal of the caveats in question. The court determined that the caveats were no longer necessary as the interests they were meant to protect had either been extinguished or were otherwise not valid. Consequently, the court exercised its equitable jurisdiction to remove the caveats from the property title. The decision was made on the basis that the continued existence of the caveats was causing unnecessary prejudice to the registered proprietors.

The court's decision was definitive, and the caveats were ordered to be removed from the property title. The liquidator was directed to take necessary steps to ensure the removal of the caveats. The court's order provided that the removal of the caveats would not prejudice the rights of the caveators, should they choose to pursue any further legal action to protect their interests.

Orders