JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2017
DATE OF JUDGMENT:	23 March 2017
CASE MAY BE CITED AS:	Tajon Pty Ltd v Arvanitis and Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 130

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LAND – Recovery of possession – Mortgagee seeking to recover possession of mortgaged land from persons in occupation as beneficiaries under a discretionary investment trust – Mortgagor company is trustee, purportedly pursuant to a tenancy agreement or licence – Mortgagor company in liquidation – Whether basis for the recognition of a tenancy – Whether defendants and other occupiers are mere licensees – Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Galloway v National Australia Bank Limited [2016] VSCA 330; Balanced Securities Limited v Bianco & Ors [2010] VSC 162.

PRACTICE AND PROCEDURE – Application for summary recovery of possession of land – Alternatively, recovery of possession under the Transfer of Land Act 1958 or at common law – Whether summary procedure to recover possession of the land available to mortgagee against third parties to the mortgage – Whether originating motion procedure appropriate to an action for the recovery of possession of land – Recovery of possession pursuant to Order 53 of the Rules available to the plaintiff in this case – Alternatively, originating motion procedure available in any event – Supreme Court (General Civil Procedure) Rules 2015, Order 53 – Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241, affirmed in Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 354; Pappas v Bowmark Pty Ltd [1998] VSCA 120; Byrne v Ritchie [2009] VSC 114.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D McKay	Mills Oakley
For the Defendants	Mr T Kaine	Kainelaw Australian Lawyers

HIS HONOUR:

Introduction

The plaintiff applies by amended originating motion in Form 5E:

(a) pursuant to order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) for the recovery of the land situated at 323-33 Point Nepean Road, Dromana, Victoria and 3-5 Heales Street, Dromana, Victoria (‘the Property’);[1]

(b) alternatively, possession of the Property at common law or pursuant to the Transfer of Land Act 1958 (Vic) (‘TLA’).[2]

[1]The land more particularly described in Certificates of Title Volume 2411 Folio 008, Volume 4034 Folio 739, Volume 8177 Folio 586, Volume 8531 Folio 974 and Volume 10662 Folio 275.

[2]The originating motion as issued made application only pursuant to order 53. By amendment made with leave on 23 February 2017, the further basis of recovery of possession was added.

Background
The Mortgages

Pearl Beach Property Administration Pty Ltd (‘PBPA’) is the registered proprietor of the Property. The plaintiff holds a first mortgage over the Property dated 5 April 2011. It was transferred to the plaintiff by Wisewoulds…

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 Tajon Pty Ltd v Arvanitis

Details

AGLC: Tajon Pty Ltd v Arvanitis [2017] VSC 130
Case: [2017] VSC 130
Decision Date: 23 March 2017

CaseChat Overview and Summary

Tajon Pty Ltd, a mortgagee, sought to recover possession of a property from the defendants, who were in occupation as beneficiaries under a discretionary investment trust. The mortgagor company, which was also the trustee of the investment trust, was in liquidation. The defendants argued that they were either tenants under a tenancy agreement or merely licensees. The matter was heard in the Supreme Court of Victoria. The court had to decide whether the defendants were tenants with a recognised basis for their tenancy under the applicable statutes and case law. This involved examining whether the defendants had exclusive possession of the property and the nature of their agreement with the mortgagor company. Additionally, the court needed to determine whether the defendants were merely licensees, which would mean they had no legal right to remain on the property.

The court found that the defendants were not tenants with a recognised basis for their tenancy. It concluded that the purported tenancy agreement was not supported by the evidence and did not confer exclusive possession on the defendants. Instead, the defendants were found to be mere licensees, who had permission to occupy the property but lacked any proprietary interest. The court referred to precedents such as Cowell v Rosehill Racecourse Co Ltd, Galloway v National Australia Bank Limited, and Balanced Securities Limited v Bianco & Ors to support its decision. The court also addressed the procedural issues, finding that the summary recovery of possession was appropriate and that the originating motion procedure was suitable for this case. This was based on the authorities of Framlingham Aboriginal Trust v McGuiness and Chatfield, Pappas v Bowmark Pty Ltd, and Byrne v Ritchie.

The court ruled in favour of the mortgagee, Tajon Pty Ltd, granting it possession of the property. The defendants were ordered to vacate the premises within a specified period. The court further considered the procedural aspects and confirmed that the summary procedure was suitable for the recovery of possession against third parties, and that the originating motion procedure was appropriate. The court's decision provided clarity on the nature of the defendants' occupancy and the applicable legal principles in such cases. The court's final orders mandated the defendants to vacate the property and allowed Tajon Pty Ltd to take possession of the property as the rightful mortgagee.

Orders