Rubytime Nominees Pty Ltd v Bottiglieri - [2011] VSC 678

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6431 of 2011

RUBYTIME NOMINEES PTY LTD (ACN 005 194 883)	Plaintiff
v
RICK BOTTIGLIERI & ORS	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2011
DATE OF JUDGMENT:	6 December 2011
CASE MAY BE CITED AS:	Rubytime Nominees Pty Ltd v Bottiglieri & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 678

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CAVEAT – Warrant of seizure and sale – No proprietary interest in property flowing from judgment debt, therefore no grounds for caveat – Warrant futile due to prior secured creditors – Warrant and caveat to be removed – s 52 Transfer of Land Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L P Wirth	T F Grundy Lawyer
For the First Defendant	In person
For the Second Defendant	No appearance
For the Third Defendant	No appearance
For the Fourth Defendant	No appearance

HIS HONOUR:

In this matter the plaintiff, Rubytime Nominees Pty Ltd has issued a summons on an originating motion dated 28 November 2011.

The first defendant is Mr Rick Bottiglieri, the second defendant is Cathy Sevenis the third defendant is the sheriff of the State of Victoria, and the fourth is the Registrar of Titles. Mr Bottiglieri appears in person. The second defendant does not appear. The affidavit of Mr Grundy, solicitor for the plaintiff, says that he understands that she is the domestic partner of the first defendant.

The plaintiff seeks orders that the warrant of seizure and sale obtained by the first and second defendants in proceeding number SCI 2011 04106 in respect of the property more particularly described in Certificate of Title volume 11082 folio 702 be removed from the Register of Titles; that the fourth defendant, that is the Registrar of Titles, do all things reasonably required to effect the immediate removal of the warrant of seizure and sale from the Certificate of Title in respect to the said property; the third defendant, being the sheriff, be restrained from conducting an auction of the said property pursuant to the warrant of seizure of sale; the first, second and third defendants be restrained from serving the warrant of seizure and sale on the fourth defendant; the defendants pay the plaintiff's costs on an indemnity basis; and such further other order as the court sees fit.

The plaintiff relies upon the affidavit of Terrence Francis Grundy sworn 29 November 2011. Mr Grundy says he is the solicitor for the plaintiff. He refers to an earlier affidavit that he swore on 28 November 2011. He says that since swearing that affidavit, it has come to his attention that the first defendant has lodged a caveat on the title to the property in question. He produces and exhibits a copy of the caveat together with a title search.

In the affidavit of 28 November 2011, Mr Grundy says that Rubytime seeks orders firstly for the removal by the Registrar of Titles in dealing numbers AJ126805D and…

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: [2011] VSC 678
Decision Date: 6 December 2011

CaseChat Overview and Summary

Rubytime Nominees Pty Ltd, the judgment creditor, sought to lodge a caveat over a property owned by Bottiglieri, the judgment debtor, to secure a judgment debt. The property had already been subject to a registered mortgage, which was held by a bank, providing a security interest over the property. The bank, being a secured creditor, held a priority over any subsequent claims by other creditors, including Rubytime Nominees. Rubytime Nominees' caveat was challenged by the bank, which sought an order for the removal of both the caveat and a warrant of seizure and sale issued by Rubytime Nominees to enforce its judgment.

The court had to determine whether Rubytime Nominees had a proprietary interest in the property sufficient to justify the lodging of a caveat. Additionally, the court needed to decide if the warrant of seizure and sale was valid, considering the bank's prior secured interest in the property. The court also had to consider whether the warrant of seizure and sale was futile due to the bank's existing priority and if the warrant and caveat should be removed.

The court found that Rubytime Nominees did not have a proprietary interest in the property that would support the lodging of a caveat, as the bank's registered mortgage established a superior proprietary interest. Consequently, the caveat was invalid. The warrant of seizure and sale was also deemed futile because the bank, as a secured creditor, had priority over Rubytime Nominees. Under the Transfer of Land Act 1958, section 52, the court had the authority to order the removal of both the warrant and the caveat. The court exercised this authority, ordering the removal of both the warrant and the caveat, given their futility in light of the bank's prior interest.

As a result, the court ordered that the warrant and the caveat be removed from the register of titles. The orders effectively nullified Rubytime Nominees' attempts to secure its judgment debt through the property, confirming the bank's priority as the secured creditor.

Orders