Tresize v Tigerlin Pty Ltd

[2018] VCC 424

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CI-18-00956

SHANE MICHAEL TRESIZE	Plaintiff
v
TIGERLIN PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2018
DATE OF JUDGMENT	10 April 2018 (revised 11 April 2018)
CASE MAY BE CITED AS:	Tresize v Tigerlin Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 424

REASONS FOR JUDGMENT
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Catchwords:   Bills of exchange – Whether settlement monies due pursuant to a contract for the purchase of real estate may be satisfied by a purported “promissory note” issued by the purchaser – Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd [2017] VSC 682 and ANZ Banking Group Ltd v Evans [2016] NSWSC 1742 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S M Tresize in person
For the Defendant	Mr A J Purton	Sabelberg Morcos Lawyers

HIS HONOUR:

1       On about 9 October 2017, Shane Tresize entered into a contract of sale with Tigerlin Pty Ltd for the purchase of a property at Cannons Creek for $1.8 million. At settlement on 3 November 2017, Mr Treseize produced a document headed “Promissory Note” which he had purported to “issue” in the amount of the settlement sum of $1,805,665.66.

2       The promissory note “certified” that “Shane Michael Tresize of Victoria, Australia hereby promises to pay bearer: Westpac Banking Corporation…the full amount specified in this note for value received”.

3       There is no evidence that the promissory note was accepted by Tigerlin or by Westpac. Later, Tigerlin served a notice of default and terminated the contract of sale.

4 Mr Tresize lodged a caveat on the title to the property. Tigerlin followed the procedure under section 89A of the Transfer of Land Act 1958 (Vic). As a consequence, Mr Tresize issued this proceeding by Originating Motion. Today is the adjourned hearing of a summons by which Mr Tresize seeks final relief.

5       Mr Tresize submitted that:

a.    Tigerlin had no standing as the sale was by the mortgagee, Westpac, to whom Mr Tresize had been directed to pay the purchase money at settlement;

b.    Westpac, and Tigerlin, had not “protested” the payment of the purchase price by the tender of the promissory note and therefore should be regarded as having “accepted” the promissory note as payment;

c. the Court should not proceed with the hearing of the summons as Mr Tresize wished to raise a constitutional issue by serving a notice pursuant to section 78B of the Judiciary Act 1903.

6       I consider that there is no merit in the submissions raised by Mr Tresize and that the proceeding should be dismissed so that the “caveat shall lapse” and the Registrar of Titles can “make all necessary amendments to the Register”.

7       The orders I shall make are as follows:

1.    The plaintiff’s summons filed 8 March 2018 is dismissed.

2.    The proceeding is dismissed.

8       I shall hear from the parties further in relation to the costs of the proceeding.

9       As to the matters raised in Mr Tresize’s submissions, I have rejected them for the following reasons:

a.    there is no evidence that the property was sold by Westpac as mortgagee. The assertion that Tigerlin’s conveyancer directed to pay the purchase money to Westpac at settlement is not evidence of that the sale was by the mortgagee.  Tigerlin was the vendor pursuant to the contract of sale. Tender upon it of the purchase money may have satisfied the requirements of the contract of sale, although payment to the vendor without satisfaction of the mortgagee’s entitlement at the time of settlement would be unlikely to ever occur;

b.    the contract provided in clause 11.4 that,

“At settlement, payments may be made or tendered:  

a.    in cash; or

b.    cheque drawn on an authorised deposit- taking institution; or

c.    if the parties agree, by electronically transferring the payment in the form of cleared funds”.

In Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd [2017] VSC 682 (“Andrews”), Ginnane J rejected an argument that a purported payment by promissory note issued by the purchaser was sufficient payment under clause 11.4 of a similarly worded contract as the present.

Mr Tresize relied upon a statement by Lord Denning MR in Fielding v Platt Ltd v Selim Najjar [1969] 1 WLR 357 at 361 that the Court of Appeal had “repeatedly said… that a bill of exchange or a promissory note is to be treated as cash. It is to be honoured unless there is some good reason to the contrary”. Garling J in ANZ Banking Group Ltd v Evans [2016] NSWSC 1742 (“ANZ Banking Group”) rejected a similar submission as “illogical and incorrect as a matter of legal principle”, as Lord Denning’s statement was treated “out of the context in which it appeared”. Justice Garling labelled the attempt by the purchaser to be “excused from repaying his substantial liability” as “a nonsense” (paragraph 50).

c.    In Andrews, Ginnane J at paragraph 16ff, rejected an attempt to rely upon a notice served under s 78B of the Judiciary Act 1903 (Cth). Here there was no such notice and the reference by Mr Tresize in his submission to section 52 (xii) and (xvi) of the Commonwealth of Australia Constitution Act 1900 (Cth) and section 42-44 of the Bills of Exchange Act 1882 (or the current applicable legislative provisions in the Bills of Exchange Act 1909 (Cth)) were not capable of raising matters of a constitutional character.

I also rely upon the statement of Garling J in ANZ Banking Group at paragraphs 63 to 83.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 10 April 2018 and revised on 11 April 2018.

Dated: 11 April 2018.

Zeinab Ali
Associate to His Honour Judge Anderson