Vasiliou v Challenger Managed Investments Limited (ACN 002 835 592)

[2008] FCA 612

FEDERAL COURT OF AUSTRALIA

Vasiliou v Challenger Managed Investments Limited  (ACN 002 835 592) [2008] FCA 612

ANDREW VASILIOU v CHALLENGER MANAGED INVESTMENTS LIMITED (ACN 002 835 592), PERPETUAL TRUSTEE COMPANY LIMITED (ACN 001 001 007), COMMISSIONER OF STATE REVENUE, CITY OF PORT PHILLIP COUNCIL, JOHN MATTHIES & CO and REGISTRAR OF TITLES

VID 285 OF 2008

RYAN J
2 MAY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 285 OF 2008

BETWEEN: ANDREW VASILIOU
Applicant

AND:

CHALLENGER MANAGED INVESTMENTS LIMITED (ACN 002 835 592)
First Respondent

PERPETUAL TRUSTEE COMPANY LIMITED (ACN 001 001 007)
Second Respondent

COMMISSIONER OF STATE REVENUE
Third Respondent

CITY OF PORT PHILLIP COUNCIL
Fourth Respondent

JOHN MATTHIES & CO
Fifth Respondent

REGISTRAR OF TITLES
Sixth Respondent

JUDGE:	RYAN J
DATE OF ORDER:	2 MAY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for interlocutory relief be dismissed with costs. 

2.The proceedings be referred to Justice Finkelstein to be heard, subject to any contrary direction of his Honour, together with the proceedings numbered VID 124 of 2008.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 285 OF 2008

BETWEEN: ANDREW VASILIOU
Applicant

AND:

CHALLENGER MANAGED INVESTMENTS LIMITED (ACN 002 835 592)
First Respondent

PERPETUAL TRUSTEE COMPANY LIMITED (ACN 001 001 007)
Second Respondent

COMMISSIONER OF STATE REVENUE
Third Respondent

CITY OF PORT PHILLIP COUNCIL
Fourth Respondent

JOHN MATTHIES & CO
Fifth Respondent

REGISTRAR OF TITLES
Sixth Respondent

JUDGE:	RYAN J
DATE:	2 MAY 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application for an interlocutory injunction:

   ‘…restraining all the respondents from concluding the contract of sale or disposing or effecting any sale or transfer of land in any way of the property situated at 181-185 St Kilda Road, St Kilda, Victoria, 3182.’  (“the property”)

2. I am satisfied in the light of all the material of which I have been apprised that it would not be a proper exercise of this Court’s discretion to restrain settlement by way of completion of a contract which was concluded after an auction sale of the property on 6 March 2008.  To grant such an injunction would expose the mortgagee to a substantial claim for damages by the successful bidder at that auction, the purchaser under the contract, and no enforceable offer of security has been made by the applicant which would indemnify the respondents against that exposure.

3. Just as significant is the fact that essentially the same dispute is before another Judge of the Court, Finkelstein J, who has been fully apprised of the events which culminated in the auction sale of 6 March 2008.  Nevertheless, his Honour declined to grant an injunction to restrain the conduct of the sale.  Indeed, as I understand it, his Honour has made provision in an order, which is to be formalised today, for the disposition of the proceeds of sale, which his Honour has been well aware are expected to be received at settlement next Monday, 6 May.  That provision includes a direction for payment into this Court of part of the proceeds of sale to await the resolution by his Honour of the matters in dispute between the VA Unit Trust, which claims to be the beneficial owner of the land of which the VA Corporation of Australia Proprietary Limited is the registered proprietor and mortgagor, and in respect of which the first and second respondents are, effectively, the mortgagees which have purported to exercise the power of sale.  No explanation has been given for the failure before today to seek interlocutory relief from Finkelstein J in what is essentially the same dispute.

4. I have also been influenced by my perception that damages would be an adequate remedy if there has been a sale at an undervalue or any other irregularity in the mortgagees’ purported exercise of the power of sale.  As well, I entertain considerable doubt whether the present applicant, Andrew Vasiliou, as distinct from the trustee of the VA Unit Trust, has standing to prosecute the dispute as far as it is within the jurisdiction of this Court. 

5. For these reasons, the application for interlocutory relief will be dismissed with costs.  The proceedings will be referred to Finkelstein J to be heard, subject to any contrary direction of his Honour, together with the proceedings numbered VID 124 of 2008.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:       2 May 2008

Counsel for the Applicant:	The applicant appeared in person
Counsel for the First and Second Respondents:	Mr D Williams
Solicitor for the First and Second Respondents:	Deacons
Counsel for the Third Respondent:	Mr A Mazzone
Solicitor for the Third Respondent:	Victorian Government Solicitors' Office

Date of Hearing:	2 May 2008
Date of Judgment:	2 May 2008