Vlavianos v The Registrar of Titles - [2014] WASC 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: VLAVIANOS -v- THE REGISTRAR OF TITLES [2014] WASC 317

CORAM: JENKINS J

HEARD: 22 AUGUST 2014

DELIVERED : 22 AUGUST 2014

PUBLISHED : 12 SEPTEMBER 2014

FILE NO/S: CIV 2856 of 2013

BETWEEN: ELIAS DIMITRIOS VLAVIANOS as trustee for the VLAVIANOS FAMILY TRUST
Plaintiff
AND
THE REGISTRAR OF TITLES
First Defendant
AUSTRALIAN & NEW ZEALAND BANKING GROUP LTD
Second Defendant
ELLES KAYLEEN ANTHONY
Third Defendant

Catchwords:

Trusts - Registered owner of land holding land as trustee - New trustee appointed - Vesting order - Protection of interests of third parties

Legislation:

Transfer of Land Act 1893 (WA), s 182
Trustees Act 1962 (WA), s 78, s 85

Result:

Vesting order made

Category: B

Representation:

Counsel:

Plaintiff:     Mr A M Prime
First Defendant             :     No appearance
Second Defendant         :     Ms K M Britton
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     MDS Legal
First Defendant             :     No appearance
Second Defendant         :     Gadens Lawyers (WA)
Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Nil
JENKINS J:
(These reasons were delivered orally and have been edited from transcript. Additional written reasons have been added.)

The amended originating summons dated December 2013 seeks:
(1)a declaration that the plaintiff is the trustee of the Vlavianos Family Trust;
(2)an order pursuant to s 78(2) of the Trustees Act 1962 (WA) and/or alternatively s 182 of the Transfer of Land Act 1893 (WA) vesting in the plaintiff the property situated at and known as 36 Southbourne Street, Scarborough, being more particularly described as lot 12 on diagram 29239 and being the whole of the land contained in the certificate of title volume 2077 folio 695 (the Land);
(3)such further or other orders including, as to costs, as the court deems fit;
(4)an order that upon payment by the plaintiff to the second defendant of the amount due and owing under the mortgage K037147 the second defendant do all things necessary to discharge the mortgage and to give possession of the property to the plaintiff.
The originating summons is supported by the plaintiff's affidavit sworn 8 November 2013 and the plaintiff's second affidavit sworn 18 June 2014. There is also an affidavit of substituted service on the third defendant sworn by Mr Prime on 24 June 2014. In respect of service on the third defendant I am satisfied that substituted service has been effected. The third defendant has chosen not to participate in these proceedings so the hearing has taken place in her absence.
I raised with the plaintiff the interests of the two caveators on the property. The caveat lodged by Sonsan Pty Ltd on 30 November 2009 has been the subject of correspondence between the plaintiff's solicitor and Sonsan's solicitor. I am satisfied that Sonsan has notice of this application and is content for it to proceed in its absence.
In respect of the caveat lodged by Demetre Vlavianos, the plaintiff's son, I am not so satisfied that he (Demetre) has had the same opportunity to consider the application before the court today. Consequently, for the reasons which I now give, I am prepared to make the orders or similar orders as sought by the plaintiff, but I will not make those orders until I am satisfied that Demetre consents to them being made or has had an opportunity to object to the orders being made.
The Trustees Act s 78 provides that the court may make a vesting order that has effect as provided in s 85. Section 78(2) sets out the circumstances in which the court may make a vesting order. The plaintiff relies upon s 78(2)(b):
A vesting order may be made in any of the following cases, namely -
…
(b)where a new trustee has been appointed out of court under any statutory or express power; or
…
The plaintiff says that he has been appointed as trustee of the Vlavianos Family Trust pursuant to the trust deed.
Section 182 of the Transfer of Land Act provides, in general terms, that if a person interested in land shall appear to the Supreme Court to be a trustee of such land or interest and any vesting order is made by the court, the registrar shall, upon being served with such order, enter on the certificate of title and any duplicate relevant details in relation to such vesting order.
Thus, s 182 is a mechanical provision to ensure that a vesting order made under s 78 of the Trustees Act is put into effect.
The Land was registered in the name of Jane Vlavianos on 16 August 1996. By deed dated 5 May 2001, the Vlavianos Family Trust was created. By her will dated 9 May 2001, Jane Vlavianos bequeathed her residuary estate, including real property, to the Vlavianos Family Trust.
In late 2001 or early 2002, Jane Vlavianos passed away. By a transfer dated 30 January 2002, the Land was transferred to the third defendant pursuant to the terms of the will. Although it is not noted on the title, this transfer was to the third defendant in her capacity as trustee of the Vlavianos Family Trust. There is no evidence before me to establish that the third defendant had any personal interest in the Land. Her only interest was as the trustee of the Vlavianos Family Trust.
On 22 December 2006, a first registered mortgage in favour of the second defendant was registered over the Land.
By an instrument in writing dated 1 December 2008, the plaintiff, as appointor under the deed of the Vlavianos Family Trust, removed the third defendant as trustee of the trust and appointed himself as trustee of the trust pursuant to cl 22 of the deed. There is nothing before me to indicate that that appointment was not made under the express power given to the plaintiff, as appointor, in the trust deed.
The third defendant's removal as trustee and the appointment of the plaintiff as trustee was confirmed in correspondence from the third defendant's solicitors in May 2009. In that correspondence there was no objection noted to the said removal and appointment.
Since approximately 2007 the plaintiff has attended to repaying the mortgage. However, it has fallen into arrears. The plaintiff has had no contact with the third defendant since around 2007 or 2008 despite attempts to contact her through family or friends.
As I have already said, substituted service has occurred on her and she has not responded to that service. Counsel for the second defendant has advised me today that the second defendant has had no recent contact with the third defendant either.
On 21 July 2008 Demetre, the plaintiff's son, lodged a caveat over the Land. On 30 November 2009, Sonsan Pty Ltd lodged a caveat over the Land. The Sonsan caveat is an absolute caveat, although there is correspondence from Sonsan's lawyer to the effect that it acknowledges that a caveat subject to dealings probably should have been lodged.
On 7 May 2013 in Supreme Court CIV 2099 of 2013, the second defendant obtained judgment against the third defendant under the mortgage for a sum of $257,298.99, plus interest of $52.90 per day, from 7 March 2013 until payment and costs. That judgment has not yet been satisfied although the plaintiff has put what appears to be a sufficient sum into an account in order to satisfy the judgment. The account requires the consent of both the plaintiff and the second defendant for any dealing with the money in it. The plaintiff and second defendant agree that if a vesting order is made the plaintiff will satisfy the judgment in the mortgage action from that account. The second defendant will then provide a discharge of mortgage which will enable the vesting order to be lodged. In the course of negotiations between the plaintiff and the second defendant the second defendant proposed that the plaintiff seek orders in similar terms to those contained in the originating summons to enable those transactions to take place.
By facsimile dated 12 December 2013, the first defendant advised that it did not intend to enter an appearance to the originating summons, however the first defendant did suggest that before final orders were made she be consulted so as to ensure that the orders could be given effect.
Mr Prime, solicitor for the plaintiff, advised me today that he has spoken to the office of the first defendant (Landgate) about the proposed orders and that no objections were raised in respect to them. However, as I have discussed with Mr Prime, it is not clear to me how it is intended to deal with the caveats that are currently on the title. I do not wish any orders I make today to jeopardise the interests of the caveators.
As I have already said, the third defendant has been served in accordance with the orders for substituted service made by Master Sanderson on 17 April 2014. Consequently, her interests, if any, do not need to be considered by me. I take the view that, having been given the opportunity to be here and not having taken that opportunity, she has no interests which I need to protect.
Thus, I am prepared on the basis of these facts to make an order in similar terms to par (2) of the amended originating summons on the basis that the plaintiff has been appointed trustee of the Vlavianos Family Trust out of court under an express power in the Vlavianos Family Trust deed.
In these circumstances it is appropriate that a vesting order be made which will have the effect of the plaintiff becoming the proprietor of the Land as trustee of the Vlavianos Family Trust. However, before I make final orders I direct Mr Prime to provide evidence to the court that Mr Demetre Vlavianos is satisfied that his caveat, or his rights which are reflected in the caveat, will be protected in the process of the vesting order being registered.
I have further raised with Mr Prime the issue about whether an order in similar terms to order (2) should be contingent on order (4) occurring. That is, whether the vesting order should, or the right to register the vesting order should be contingent on the plaintiff paying out the mortgage? As discussed with Mr Prime, these matters can be dealt with on the papers. Therefore, what I intend to do is adjourn the matter into private chambers subject to leave to the parties to apply to have the matter listed in open chambers.
The other matter which I have raised with Mr Prime is whether it is necessary to make an order in terms of the proposed order (1) of the originating summons. Mr Prime submits that, given that a vesting order can be made on the basis of the plaintiff having been appointed a new trustee of the Vlavianos Family Trust pursuant to s 78(2)(b), it is unnecessary for an order in terms of order (1) to be made. I agree with that.

Additional reasons on the papers

By email dated 5 September 2014, Mr Prime, on behalf of the plaintiff, advised me that:
(1)he holds a signed and registrable withdrawal of Demetre Vlavianos' caveat, with instructions from him to lodge it at the time of lodging the vesting order application (assuming such orders are made by the court);
(2)he has prepared a minute of proposed orders which envisage that the making of the vesting order will be subject to the plaintiff complying with the order in relation to the discharge of the mortgage;
(3)he conferred with Landgate both as to those proposed orders and as to the process of registration of any vesting application, namely that the process of registration would involve the lodging of the discharge of mortgage, withdrawal of the Sonsan caveat, withdrawal of the Vlavianos caveat, lodgement of the vesting order application and then lodging of the new Sonsan caveat. Landgate has indicated that both the proposed orders and the registration process are acceptable; and
(4)he has conferred with the solicitors for the second defendant as to the proposed wording of the orders and the orders are acceptable to them.
This information satisfies the concerns which I raised with Mr Prime at the hearing. Therefore, I make the following orders as contained in the plaintiff's minute of proposed vesting order as follows:
(1)Subject to the plaintiff complying with order 2 below, pursuant to s 78(2) of the Trustees Act 1962 (WA) and s 182 of the Transfer of Land Act 1893 (WA), the land situated at and known as 36 Southbourne Street, Scarborough and being more particularly described as lot 12 on diagram 29239 and being the whole of the land contained in certificate of title volume 2077 folio 695 vest in the plaintiff.
(2)Upon payment by the plaintiff to the second defendant of the amount due and owing under mortgage K037147 the second defendant do all things necessary to discharge the mortgage and to give possession of 36 Southbourne Street, Scarborough to the plaintiff.