Teo v Vasuthan
[2014] VCC 2042
•25 November 2014
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL LIST | Reasons given orally |
Case No. CI-14-01923
| ALISTAIR LOON SIONG TEO | Plaintiff |
| V | |
| VENYAGE SUSHANTHY MAHENDRAN VASUTHAN | Defendant |
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JUDGE: | HER HONOUR JUDGE KENNEDY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2014 | |
DATE OF JUDGMENT: | 25 November 2014 | |
CASE MAY BE CITED AS: | Teo v Vasuthan | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2042 | |
REASONS FOR RULING
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Practice and Procedure – Application for summary judgment – plaintiff seeks return of deposit paid to defendant under contract for sale of real property – plaintiff alleges defendant co-owner did not have right to sell the property in her own right – defendant relies on purported transfers of Registrar of the Family Court pursuant to Consent Orders made 27 March 2013 – transfers not authorised by Orders – defendant thereby not in position to give good title – defence has no real prospect of success – judgment given pursuant to s63 Civil Procedure Act 2010 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Downie | Avia Lawyers |
| For the Defendant | In person | ---- |
HER HONOUR:
1 This is the return of a further amended summons of the plaintiff dated 25 November 2014. It seeks an order, inter alia, for summary judgment under section 63(1) of the Civil Procedure Act2010 (Vic) on the basis that the defence has no real prospect of success.
2 The plaintiff claims a return of a deposit in relation to a contract for the sale of a property at 28 Brushbox Court, Clayton, Victoria (Certificate of Title Volume 11065 Folio 811). In particular, the plaintiff claims that the defendant co-owner did not have the right to sell the property in her own right (without the inclusion of her husband as party to the contract), and that she thereby repudiated the contract which repudiation was accepted by notice of 16 January 2014.
3 The defendant however says that she had valid title by reason of two purported transfers allegedly signed on behalf of her former husband by a Registrar of the Family Court or Federal Circuit Court pursuant to Consent Orders made by the Federal Magistrates’ Court on 27 March 2013.
4 Both parties agree that the critical issue is whether or not the transfers purportedly given were empowered by the terms of the Family Court Consent Orders.
5 The defendant appeared before the court unrepresented, but she indicated that she was content to proceed to defend the matter. However, the matter was stood down to permit her to adduce an affidavit and also for her to take an opportunity to seek assistance from the court’s self-represented litigant coordinator.
Principles
6 Pursuant to s 63 of the Civil Procedure Act2010 (Vic) a court may give summary judgment if satisfied that a defence has no real prospect of success.
7 Pursuant to the decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, the Court of Appeal distilled the test to be applied when determining whether to give summary judgment pursuant to s 63.
8 At paragraph 35, Warren CJ and Nettle JA stated as follows:
Upon the present state of authority:
a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
Background
Consent Orders
9 The Consent Orders of 27 March 2013 were made in the context of family property proceedings between the defendant and her former husband. They deal with three properties (as well as children of the relationship) then held by the defendant and her former husband jointly. The three properties were: 93 Rosebank Avenue, Clayton South, Victoria (the Clayton South property); 28 Brushbox Court, Clayton, Victoria (the relevant property); and 43 Grandview Avenue, Dandenong, Victoria (the Dandenong property).
10 In relation to the Clayton South property, clause 3 provides that the Husband shall within 14 days of a request to that effect being made by the Wife and/or Wife’s solicitors, do all acts and things and sign all documents as may be required to transfer to the Wife all of his right, title and interest in and to the Clayton South property.
11 This is to be compared with the provisions made in relation to both the relevant property and the Dandenong property. Thus, both these properties were to be “forthwith placed on the market for sale upon such terms and conditions as agreed between the parties’ respective solicitors” with provision made for the application of the net proceeds of sale in the proportion of 80% to the wife and 20% to the husband (clauses 7, 9 and 11).
12 Critically, there is no provision for a transfer between spouses in relation to these latter properties.
Transfers
13 The defendant then says that two transfers were executed by a Registrar of the Family Court or Federal Circuit Court.
14 The first transfer adduced into evidence is somewhat illegible but appears to be dated 21 May 2013 and executed by a Registrar (Kaur and/or Moser). It purports to transfer the relevant property from the husband and wife to the wife (the defendant) absolutely citing the Consent Orders.
15 The second transfer is in similar terms, although is more legible and is dated 11 December 2013. It appears to contain the seal of the Family Court and be executed by a Registrar Marrone. It is said to be signed by a Registrar of the Family Court or Federal Circuit Court pursuant to the Consent Orders.
16 The defendant says that the Registrar had power to execute these transfers by reason of clause 12 of the Consent Orders which I will return to, shortly.
Contract for sale of relevant property
17 By contract entered into on 23 November 2013, the defendant purported to convey the whole of the relevant property to the plaintiff for the sum of $465,200 with a settlement day of 12 December 2013. The terms of the contract included a term that the defendant had, or by the due date for settlement would have, the right to sell the land (general condition 2.3(a))
18 On or about the day of signing the plaintiff paid a deposit in the amount of $46,520.
19 The (barely legible) first purported transfer was attached to the vendor’s statement as was a title search which stated that the relevant property was owned by the defendant and her husband (Vasuthan Sellathurai) jointly.
Termination
20 After signing, by correspondence of 26 November 2013, the plaintiff’s solicitor requested that, given the title search showed the relevant property was owned jointly, that the husband should sign as well.
21 By correspondence of 27 November 2013 the defendant’s solicitors asserted that the defendant was entitled to transfer the property, citing the Consent Orders.
22 The plaintiff’s solicitors thereby requested a copy of the Consent Orders by correspondence also of 27 November 2013. However, these Orders were not provided until 17 December 2013 at which time the second purported transfer was also provided.
23 The plaintiff thereafter refused to settle the contract and says it was never obliged to do so by reason of the defect in title.
24 The defendant then purported to rescind the contract by reason of the plaintiff’s alleged default in failing to provide the residue of the purchase monies by notice of 20 December 2013.
25 However, on 16 January 2014, the plaintiff sought to accept the defendant’s repudiation (in not being ready or willing to perform her obligations under the contract).
Defendant’s submissions
26 Although unrepresented, the defendant was articulate in defending her position.
27 She highlighted that the property has been subsequently validly sold. She also indicated that the other properties were transferred pursuant to the provisions of clause 12 in similar fashion. Finally, and most significantly, she submitted that clause 12 empowered the execution of the transfers and provided her with good title.
28 This last submission was consistent with the terms of the defence which was filed on her behalf by her then lawyers, Rotman & Morris. Pursuant to paragraph 9(a) of that defence she alleges:
“that the First Purported Transfer and the Second Purported Transfer (“the Transfers”) were valid inasmuch as the Transfers were signed by a Registrar of the Family Court of Australia or Federal Circuit Court of Australia pursuant to and in accordance with the Orders and were capable of registration at the Land Titles Office and of giving the plaintiff indefeasible title to the Land in accordance with the contract.”
Resolution
29 Dealing with the defendant’s less significant submissions, it is not to the point that the property has been subsequently sold, even if it has, or that other properties have been transferred pursuant to clause 12. Rather, as I have previously cited, the critical issue is whether or not the transfers were empowered by the Consent Orders, particularly clause 12, in relation to the relevant property the subject of this proceeding.
30 The precise terms of clause 12 were as follows:
“That should the parties fail to sign any documentation giving effect to the transfer of property between them in terms of these orders, then the Registrar of this Honourable Court shall be authorised to sign and execute the necessary documentation.” (emphasis added)
31 I consider that clause 12 cannot be utilised to justify the instruments adduced before me. Thus, clause 12 is a machinery provision designed to “give effect” to a transfer already provided for in the orders. However, there is no provision for any transfer of property between husband and wife in relation to the relevant property (or, for that matter, the Dandenong property). Instead, the relevant property was to be placed on the market by both parties acting jointly.
32 In those circumstances, I do not consider that the transfers were authorised such that they could give rise to a valid title in the hands of the defendant.
33 I have given consideration to whether or not there could be any real prospects of the success of a defence on this basis. However, I do not consider that there is any ambiguity in the terms of the Consent Orders.
34 In such circumstances, it follows that the transfers were not validly executed pursuant to clause 12.
35 It also follows that the defendant did not thereby have the right to sell the relevant property (without her husband) and was in fundamental breach of the contract.
36 In such circumstances she did not have a right to issue a notice of rescission.[1] Rather, the plaintiff was instead entitled to terminate for fundamental breach, as he did, and is also entitled to the return of his deposit.
[1]Emhill & Anor v Bonsoc Pty Ltd (No 2) [2007] VSCA 108 [68],[69], Roadshow Entertainment Pty Ltd v ACN 053 006 269 (1997) 42 NSWLR 462,479, DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977-1978) 138 CLR 423,433
Conclusion
37 The plaintiff is entitled to summary judgment in the sum of $46,520.
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