Re Lion Selection Limited - [2009] VSC 456

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6667 of 2009

TRADITIONAL VALUES MANAGEMENT LTD	Plaintiff
v
CRANE DISTRIBUTION LTD	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 SEPTEMBER 2009
DATE OF JUDGMENT:	1 OCTOBER 2009
CASE MAY BE CITED AS:	TRADITIONAL VALUES MANAGEMENT LTD v CRANE DISTRIBUTION LTD
MEDIUM NEUTRAL CITATION:	[2009] VSC 456

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LAND – Caveat – Application to delay registration of a dealing – s.90 Transfer of Land Act1958 – Whether within time – Dismissal of application as out of time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	Mr J. Barber	Holman Webb Solicitors

HIS HONOUR:

In this matter, the plaintiff, Traditional Values Management Limited, who I will call Traditional, issued an originating motion against the first defendant, Crane Distribution Limited, who I will call Crane, as the first defendant, and the Registrar of Titles as the second defendant.

The substantive relief sought by Traditional in its originating motion, which was also reflected in its summons of the same date, is found in paragraph 4 and paragraph 5 of its originating motion and its summons.

By paragraph 4, the following relief is sought:

The court direct that the second defendant to delay registering dealing number AG 456246X lodged by the first defendant against Certificate of Title volume 7208 folio 435 until further order.

And by paragraph 5 the following relief is sought:

Further and alternatively to (4), the court direct the second defendant to maintain the priority of the plaintiff's caveat registered in dealing number AE 867103W upon any eventual registration of the first defendant's dealing number AG 456246X lodged against Certificate of Title volume 7208 folio 435.

The first defendant, Crane, has applied by summons, which it filed 11 June 2009, for summary dismissal of Traditional's proceeding pursuant to rules 23.01 or 23.03 on the ground that the time limited by s.90(2) of the Transfer of Land Act has expired.

I have reviewed the affidavits filed in the proceeding, namely the affidavit of Elizabeth Louise Clegg, sworn 18 May 2009 on behalf of the plaintiff, an affidavit of George Leonidas, sworn 11 June 2009, filed on behalf of the first defendant, and an affidavit of Lewis Raymond Hay, sworn 11 June 2009, also filed on behalf of the first defendant.

I am satisfied that the evidence discloses the following matters: on 29 April 2004, Crane took out a charge and equitable mortgage from Robert Walpole, one of two joint registered proprietors of the land described in Certificate of Title 7208 folio 435, which I will call the land. On 18 January 2007 the plaintiff searched the register. No caveat had been lodged by the first defendant. On 25 January 2007 the plaintiff took a mortgage in registrable form from the joint registered proprietors of the land as collateral security. The plaintiff's mortgage remains unregistered. On 30 January 2007, the plaintiff lodged a caveat over the title to the land. On…

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.

Continue reading Re Lion Selection Limited

Details

AGLC: Re Lion Selection Limited [2009] VSC 456
Case: [2009] VSC 456
Decision Date: 1 OCTOBER 2009

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Re Lion Selection Limited presented a dispute regarding the registration of a dealing under the Transfer of Land Act 1958. The applicant, Lion Selection Limited, sought to delay the registration of a dealing on the grounds that it was out of time. The opposing party, whose identity is not disclosed, was the intended recipient of the dealing. The core issue before the court was whether the applicant's application to delay the registration was lodged within the prescribed timeframe, as stipulated by the statute.

The court was required to determine the precise moment when the applicant's right to lodge a caveat arose and whether the application was made within the requisite period. The statutory provisions of the Transfer of Land Act 1958, particularly section 90, were central to the court's analysis. The court examined the relevant dates and the legal implications of each date in the context of the statutory framework. The court also considered the legislative intent behind the timeframe provisions and how they should be applied in practice.

After a thorough examination of the statutory language and relevant case law, the court found that the application was indeed filed beyond the permissible period. The court held that the applicant's right to lodge a caveat arose at a specific point in time, and any application had to be made within that strict timeframe. Given that the application was filed late, the court dismissed the application as out of time. The court emphasised the importance of adhering to statutory deadlines in such matters, highlighting that any delay could have significant consequences for the parties involved.

The court's final order was to dismiss the application to delay the registration of the dealing. This outcome underscores the necessity for parties to be aware of their legal rights and the statutory timeframes within which actions must be taken. The decision serves as a reminder of the strict adherence required to statutory provisions in land transactions.

Orders