Skosples v Perpetual Trustees Victoria Ltd - [2004] VSC 336

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 7642 of 2004

JOSEPH SKOSPLES AND OTHERS	Plaintiffs
v
PERPETUAL TRUSTEES VICTORIA LTD AND OTHERS	Defendants

---

JUSTICE:	OSBORN, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 AUGUST 2004
DATE OF RULING:	25 AUGUST 2004
CASE MAY BE CITED AS:	SKOSPLES & ORS v PERPETUAL TRUSTEES VICTORIA LTD & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 336

---

Stay of a warrant for seizure and sale – Serious questions to be tried – s. 7 Sale of Land Act 1962 – s. 42 (2) (e) Transfer of Land Act 1988.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms L. Harrison	Robyn Calder
For the First Defendant	Ms S. Cipriano	Corrs Chambers Westgarth

HIS HONOUR:

The plaintiffs seek the stay of a warrant for seizure and sale. The affidavit material indicates that the effect of seizure and sale would be to eject the plaintiffs and their children from their family home.

The judgment which the first defendant has obtained was obtained in proceedings instituted after notice of the interest claimed by the plaintiffs as purchasers, was given to the first defendant.

Nevertheless, the terms in which such notice was given were such as to concede the priority of the first defendant's interest. The plaintiff's solicitor wrote to the first defendant by letter dated 13 April 2004 advising of the purchase by the plaintiffs of the property and after canvassing some aspects of the history of the matter, stated:

"We advise that we have now lodged a caveat against the title and the purpose of this letter is to advise you of our client's claim against the property. We have explained to our clients that their failure to protect their interest and lodge a caveat at the date of purchase, will result in your mortgage having a first claim on this property."

As I have stated, the current proceedings take issue with the priority of the first defendant's interest and indeed with its very existence.

Before saying something more about them, I should record that it is agreed by counsel that the matter raises issues of disputed fact and law, which cannot be finally resolved in the Practice Court and that the matter should be referred to the Listing Master.

It is contended by the first defendant, however, that any stay of the warrant, pending determination of the summons, should be conditioned upon the plaintiffs paying the amount recoverable under the mortgage into court. This amount is $151,556.

The plaintiff's case has two substantive bases, both of which, in my view, raise serious questions to be tried. It is first contended that the mortgage is void by reason of s.7 of the Sale of Land Act 1962. This contention gives rise to disputed questions of fact and law, including the following:

(a)As to whether the contract of sale was a terms contract, within the meaning of the relevant legislation and
(b)As to whether the mortgagee had constructive notice of the…

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.

Keep reading for free

Create a free CaseChat account to read Skosples v Perpetual Trustees Victoria 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] VSC 336
Decision Date: 25 August 2004

CaseChat Overview and Summary

Skosples sought to stay a warrant for seizure and sale of a property by Perpetual Trustees Victoria Ltd. The property was subject to a mortgage and was due to be sold in execution of a judgment debt. Skosples argued that there were serious questions to be tried concerning the validity of the mortgage and the debt. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether the questions raised by Skosples were serious enough to warrant a stay of the sale. The court had to consider the evidence presented on the validity of the mortgage and the debt, and whether there was a real prospect that the questions could be resolved in Skosples' favour. The court also had to consider the balance of convenience and whether it was in the interests of justice to grant the stay.

The court found that the questions raised by Skosples were serious and that there was a real prospect that they could be resolved in his favour. The court found that the balance of convenience favoured a stay of the sale, as the potential loss to Skosples if the sale proceeded and the questions were later found to be in his favour would be significant. The court granted the stay of the sale.

The court ordered that the warrant for seizure and sale be stayed until the serious questions raised by Skosples were determined. The court also ordered that the parties file further evidence and submissions on the serious questions to be tried. The court reserved its decision on the final outcome of the case.

Orders