Giurina v Sheriff

REAL PROPERTY - SALE OF LAND - Registration of transfer of titles after sale of land by Sheriff - Imminent expiry of statutory deadline - Risk of prejudice to purchaser - Orders directed to Registrar necessary to effect transfer of title - Unclear whether duplicated certificate of title can be located - Orders to Registrar for urgent cancellation of certificates of folios of the Register and for creation of new certificates - Order for delivery by Sheriff of instrument of transfer of proprietorship - Transfer of Land Act 1958 ss 52, 103.

For the Plaintiff in S ECI 2024 00204 and the First Defendant in

S ECI 2024 00204 and Third Defendant in S ECI 2024 04767

1 The Sheriff conducted an auction at which the Sheriff purportedly sold Mr Giurina's interest in land registered in the name of a deceased person. The Sheriff did so relying on warrants of seizure and sale purportedly binding on and affecting the land. The warrants were in turn reliant on costs orders in two proceedings brought by Mr Giurina in his capacity as executor of the deceased's estate.

(a) Has Mr Giurina established that the warrants were ineffective to authorise the sale of the land?

(b) If not, should I make orders facilitating a transfer of registered proprietorship of the freehold estate in the land to the purchaser?

3 These proceedings both concern the land described in certificate of title volume 06451 folio 142 and certificate of title volume 06835 folio 810, also known as 120 Elizabeth Street, Geelong West (the Land).

4 The proceedings also concern warrants of seizure and sale issued under r 66.02(1)(a) and O 69 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and Sheriff Act 2009pt 3 div 5, which is titled 'Powers to seize, sell and deal with property'.

(a) proceeding S ECI 2024 00204 (the Warrants proceeding), in which Mr Giurina, by his originating motion and proposed amended originating motion, sought a declaration that the Land 'is not affected by the costs orders' made in two earlier proceedings, a declaration that for the purposes of s 52(2) of the Transfer of Land Act 1958 (TLA) the Land 'is not affected by Warrants numbered W23014506959 and W23014506960' (the Warrants), and associated relief;[1] and

(b) proceeding S ECI 2024 04767 (the TLA proceeding), in which Hooks Industries (Vic) Pty Ltd (Hooks Industries), by its amended originating motion, sought orders facilitating the transfer to it of registered proprietorship of the freehold estate in the Land under s 52 of the TLA.

6 The central issue in both proceedings is whether the Warrants were ineffective to authorise the sale of the Land on the grounds Mr Giurina identified in his submissions:

(a) if so, Mr Giurina may be entitled to much, or all, of the relief he seeks in the Warrants proceeding, and the relief Hooks Industries claims in the TLA proceeding would probably not be available;

(b) if not, Mr Giurina's claims in both the originating motion and the proposed amended originating motion in the Warrants proceeding would fail, and it would be necessary to consider the relief claimed by Hooks Industries in the TLA proceeding.

7 Mr Giurina's written[2] and oral submissions were somewhat repetitive, and required close analysis and distillation. I have considered all aspects of them carefully, including the matters that are not expressly mentioned in these reasons.

8 On the day after the hearing, Mr Giurina sent brief Additional Submissions to my chambers.[3] These addressed certain questions that I raised with Mr Giurina during the hearing, and I have taken them into account and considered them carefully. They also distilled important aspects of Mr Giurina's other arguments.

9 The key questions I must consider and determine are:

(a) Was the sale of the Land by the Sheriff not authorised by the Warrants and s 24 of the Sheriff Act 2009?

(b) If the sale was not authorised, to what extent is Mr Giurina entitled to the orders in his proposed amended originating motion, and should leave to amend his originating motion be granted to allow him to seek the orders in that document?

(c) Otherwise, is Hooks Industries entitled to the orders it seeks?

10 I address these three key questions under the heading 'Consideration', below.

11 It is first necessary to provide some context, including various related proceedings and their outcomes.

12 In this regard, Mr Giurina drew my attention to s 91(1) of the Evidence Act 2008. That provision relevantly provides that evidence of the decision, or of a finding of fact, in another proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

13 My references to other proceedings below do not breach s 91(1). I am not referring to the other proceedings for the purposes of admitting any of the findings in them into evidence in these proceedings. I am referring to them for two other reasons:

(a) firstly, for necessary context relating to the making of the costs orders that led to the issue of the warrants impugned in this case; and

(b) secondly, so that remarks by members of the Court of Appeal in two of the other proceedings - remarks that were drawn to my attention by the parties in this proceeding - can be understood in their proper contexts.

14 The late Ms Carolina Nacinovich (the deceased) died in February 2002.[4] She left a will appointing Mr Giurina as executor of her estate and leaving him the Land, by specific bequest.[5] Mr Giurina obtained probate of the will on 13 September 2002.[6] The Register continues to record the deceased as the registered proprietor of the fee simple estate in the Land.[7]

15 In 2019, Mr Giurina commenced proceeding S ECI 2019 04286 (the Judicial Review proceeding) against Greater Geelong City Council (the Council) and the Building Appeals Board. The title of the Judicial Review proceeding recorded that it was brought by Mr Giurina in his capacity as executor of the deceased's estate.

16 The trial of the Judicial Review proceeding was heard by Whelan JA.

17 On 11 March 2021, Whelan JA dismissed the plaintiff's application by amended originating motion in the Judicial Review proceeding and ordered that the plaintiff pay the defendants' costs of the proceeding.[8] In his reasons for judgment, Whelan JA gave liberty to apply within 24 hours for any variation of that order, saying:[9]

I will order Mr Giurina to pay the costs, unless the Court is advised within 24 hours of the publication of this judgment that a party wishes to make submissions as to costs.

18 I was told by Mr Giurina that the Council made no such submissions, and I accept this. Mr Giurina submitted that this meant the Council missed the opportunity to have the estate pay the costs, it being clear that the costs order was simply directed against Mr Giurina personally.[10] I address this issue in the 'Consideration' section below.

19 On 18 November 2021, the Council's costs recoverable under the costs order were allowed in the sum of $46,915.[11]

20 By the Court of Appeal proceeding S EAPCI 2021 0044, Mr Giurina applied for leave to appeal from the orders of Whelan JA. The title of that proceeding again records that Mr Giurina did so in his capacity as executor of the deceased's estate. The application was dismissed and the Court of Appeal ordered that the applicant pay the Council's costs, fixed in the sum of $40,000.[12]

21 The Council at this point had costs orders in its favour against Mr Giurina - as the unsuccessful plaintiff in the Judicial Review proceeding and unsuccessful applicant in the related Court of Appeal proceeding - in the sums of $46,915 and $40,000.

22 It is clear that Mr Giurina did not pay these amounts to the Council, as these amounts were described as owing in documents generated in the course of the issue of the Warrants, examined in the course of my findings in the 'Facts' section of these reasons, below.

23 The Council applied for warrants of seizure and sale. Initially, two warrants were issued that only referred to one of the folios of the Register that describes the Land. Mr Giurina brought proceedings in the Court concerning those warrants, resulting in a judgment of Matthews AsJ (as her Honour Matthews J then was) in which her Honour declared that:[13]

(a) Mr Giurina is the proprietor of the property identified by certificate of title volume 06451 folio 142;

(b) the property is affected by the costs orders; and

(c) for the purposes of s 52(2) of the TLA, the property is affected by the original warrants.

24 The original warrants were later cancelled.[14] However, the declaration of Matthews AsJ was recently described by the Court of Appeal as giving rise to a res judicata in relation to the property identified by certificate of title volume 06451 folio 142.[15]

25 Mr Giurina lodged caveats in respect of the Land, claiming he had an interest in the Land. The Council commenced a proceeding, S ECI 2022 03279, seeking removal of those caveats pursuant to s 90(3) of the TLA. In that proceeding, Mr Giurina claimed an interest in the Land as the beneficiary under the deceased's will of a specific devise of the Land on the basis of an agreement he made as beneficiary with himself as executor.

26 That proceeding was heard by Matthews AsJ. On 22 February 2023, her Honour granted the Council's application to remove the caveats. Her Honour also imposed an injunction preventing Mr Giurina from lodging any further caveats over the Land without the leave of the Court.[16] Matthews AsJ concluded that Mr Giurina did not have a prima facie case in relation to the interest he claimed in the caveats, alternatively that any pri_ma facie_ case he had was so weak that a balance of convenience favoured the removal of the caveats.[17] Her Honour concluded that it was necessary to injunct Mr Giurina from lodging further caveats without leave.[18]

27 By Court of Appeal proceeding S EAPCI 2023 0035, Mr Giurina applied for leave to appeal to the Court of Appeal from the orders of Matthews AsJ.

28 Pending the hearing and determination of the application and appeal, Mr Giurina sought a stay of the orders of Matthews AsJ, and this stay was refused by the Court of Appeal, constituted by Osborn and Kaye JJA.[19]

29 As to Mr Giurina's application for leave to appeal in proceeding S EAPCI 2023 0035, the Court of Appeal, constituted by Beach and McLeish JJA, dismissed the application for leave to appeal on 7 December 2023.[20]

30 The initial sole proposed ground of appeal was that Matthews AsJ allegedly erred in concluding that the Council had standing to bring the caveat removal application given that 'it had no interest in the subject land'.[21] Section 90(3) of the TLA does not require an interest; any person adversely affected by the caveat may apply. The application for a stay depended on an argument that s 90(3) should be read down by reference to s 89A of the TLA so that only a person with an interest in land could seek the removal of a caveat over the land. This construction was not ultimately accepted by their Honours. In dismissing Mr Giurina's application for leave to appeal on the initial sole proposed ground of appeal, Beach and McLeish JJA adopted the reasons of Osborn and Kaye JJA in dismissing the stay application.[22]

31 Mr Giurina also sought to amend his proposed grounds of appeal to add an argument that Mr Giurina had a prima facie case in relation to the interest he claimed in the first caveat. Beach and McLeish JJA considered Mr Giurina's application to amend his application for leave to appeal. One of the grounds Mr Giurina wished to add was a contention that Matthews AsJ erred in concluding that Mr Giurina did not have a prima facie case, alternatively that her Honour erred in concluding that any prima facie case he had was so weak that a balance of convenience favoured the removal of the caveats.[23]

32 This ground depended on an argument that Mr Giurina had assented to the disposition of the property to himself as a specific beneficiary under the will. He therefore argued that he had an interest in the land arising from a chose in action, being a right to acquire the estate to be duly administered.[24]

33 Matthews AsJ had rejected Mr Giurina's argument, noting inter alia that:

In circumstances where Mr Giurina maintains that the administration of the Estate is not complete and that it appears to be common ground that there are no other assets of the Estate..., I do not accept that the Property is no longer an asset of the Estate and cannot be used for satisfying the debts of the Estate. It cannot be the case that where there are no residuary assets and there are debts, that assets which are the subject of a specific devise are not available to satisfy the liabilities of the Estate. Where the residuary [estate] is insufficient to meet the liabilities of the Estate, the principles of abatement will apply in respect of specific bequests.

I note that the beneficiaries of an unadministered estate lack standing to claim any proprietary interest, including when it comes to lodging a caveat over estate property.[25]

34 Beach and McLeish JJA found no error in this approach. Their Honours said:[26]

No error has been identified in the associate judge's conclusion that Mr Giurina had not made out a prima facie case that the property was no longer an asset in the estate. In these circumstances, even if there was a time in the past when the estate (while still not fully administered) had no debts, debts of the estate incurred subsequently were able to be paid from the proceeds of sale of the property if there were no other assets in the estate sufficient to pay them.[27]

35 The above paragraph of the reasons of Beach and McLeish JJA assumed some significance in the submissions on the issues before me.

36 Relatedly, Mr Giurina relied upon the transcript of the hearing before Beach and McLeish JJA,[28] in which he argued that both these justices of appeal had indicated to him that the costs arising from Whelan JA's costs order were not recoverable from the estate's assets.[29] I have considered the context in which the relevant remarks were made and do not agree with this characterisation. I return to these matters in the 'Consideration' section of these reasons, below.

37 Mr Giurina also relied on First VSCA reasons, [54],[30] which I extract below, along with the preceding paragraphs to give it its proper context. In this passage, Beach and McLeish JJA were considering, and rejecting, a proposed ground of appeal that Mr Giurina described as a catch-all ground, to the effect that Matthews AsJ should have maintained the caveats until a final determination of all the issues and claims:

[51] One of a number of difficulties Mr Giurina has with this proposed ground of appeal is that, notwithstanding the fact that the Primary Reasons were delivered more than nine months ago, Mr Giurina has taken no steps to commence a proceeding or articulate a claim which could be heard and determined at the trial which he says should now occur. One might ask, rhetorically, 'what trial? seeking what relief? and on what basis?'.

[52] On one view of the history of this proceeding, and notwithstanding Mr Giurina's protestations to the contrary, if the costs orders have been made against him in the wrong capacity because he is entitled to be registered on the title of the property as the freehold owner, all of this has come about through his failure to say at any stage of the various proceedings prior to lodging the caveats, that the property in fact belonged to him personally.

[53] If there was any doubt in Mr Giurina's mind as to his rights personally or as the executor of the estate, he should have commenced the various proceedings he has taken against the Council in both his personal capacity and his capacity as executor. Contrary to his submissions, the fact that the two emergency notices issued under the Building Act were addressed to 'Estate of C Nacinovich' was no impediment to Mr Giurina being frank with the Council and the courts which heard his proceedings and applications about the ownership of the property - a matter peculiarly within his own knowledge given his dealings with himself as both executor and beneficiary.

[54] In any event, the proposed trial which Mr Giurina would now seek to have conducted at some indeterminate time appears to be premised on the proposition that he has no personal liability in respect of the costs orders, in circumstances where it is difficult to see otherwise than that he is in fact personally liable for the costs orders, but with a right of reimbursement from the estate.

38 On 8 August 2023, at the further request of the Council, the two Warrants were issued in placed of the original warrants, which had been cancelled. I refer to the issue of the Warrants in more details in my factual findings, set out under the heading 'Facts', below.

39 Mr Giurina then commenced the Warrants proceeding, S ECI 2024 00204, which is currently before me.

40 After commencing the Warrants proceeding, Mr Giurina applied for an interlocutory injunction preventing the sale of the Land by the Sheriff and for leave to lodge further caveats over the Land. Both applications were heard by Forbes J in the Practice Court. On 26 February 2024, Forbes J dismissed the applications, giving ex tempore oral reasons.

41 Mr Giurina then commenced two Court of Appeal proceedings: S EAPCI 2024 0031 against the Sheriff and S EAPCI 2024 0039 against the Registrar. By the first, Mr Giurina sought leave to appeal from Forbes J's dismissal of his application for an interlocutory injunction. By the second, he sought an extension of time in which to seek leave to appeal from Forbes J's refusal of his application for leave to lodge further caveats.

42 Those two Court of Appeal proceedings were heard by Walker and Orr JJA. On 29 May 2024, their Honours dismissed both of them.[31] In their reasons for judgment, the following passages appear, each of which assumed some significance in the course of submissions before me (footnotes omitted):[32]

[2] Mr Giurina has been engaged in a long-running dispute with Geelong City Council in relation to the property. Following two proceedings, two costs orders were made against Mr Giurina in his capacity as executor of the estate. ...

[9] ...He instituted and conducted that litigation in his capacity as executor of the estate. This resulted in the two costs orders being made against him in his capacity as executor of the estate. ...

...

A prima facie case?

[48] First, we agree with the judge that Mr Giurina has not made out a prima facie case in the sense that there is a probability that at the trial of the action he will be held to be entitled to relief. This is because the underlying basis for all Mr Giurina's claims - that the estate has been fully administered, at least in relation to the property - is simply unarguable.

[49] Mr Giurina says that he no longer has an interest in the property as executor of the estate, because the estate has been fully administered in relation to the property. Rather, he claims that he has a personal interest in the property (either as owner or pursuant to a trust), again because he says that the administration of the estate was completed in October 2003. Thus, he says, the property is no longer property of the estate and cannot be sold pursuant to the current warrants. In our opinion, the proposition that the administration of the estate in relation to the property was completed in 2003, or at any time since then, has no prospect of success at trial.

[50] It is undisputed that Ms Nacinovich remains the registered owner of the property. Her estate is thus the legal owner of the property. The effect of s 13(1) of the Administration and Probate Act 1958 is that the property vested in Mr Giurina as executor upon the grant of probate. Although under the will Mr Giurina is the beneficiary who stands to receive the property, formal transfer of the registered title to the property to Mr Giurina has not occurred. Mr Giurina submitted that an executor is not obliged to become the registered proprietor of property in the estate that they are administering. So much may be accepted. However, in our opinion the estate cannot be regarded as having been fully administered until the assets of the estate have been distributed in accordance with the will. In so far as money or chattels are concerned, distribution may be informal. But in so far as real property is concerned, attention must be paid to the registered title. Where real property is devised to a specific beneficiary, the administration of the estate cannot be regarded as complete for so long as the legal title to the property remains registered in the name of the deceased person and has not passed to the beneficiary. Thus the factual matters upon which Mr Giurina relied - in particular, the payment of rates and other outgoings by him in his personal capacity, as well as the nature of the Council's dealings with him - do not require the conclusion that the estate has been fully administered. The property remains the property of the estate; it is vested in Mr Giurina as executor of the estate; and it is available to satisfy the debts of the estate, including the costs orders.

[51] In that regard, we note the remarks of this Court in the 2023 appeal: ... [their Honours then quoted [2023] VSCA 299, [48]]

43 The parties relied on all of the affidavit material reproduced in their Joint Court Book, as updated on 13 November 2024. They did so without making any specific evidentiary objections. I received it all into evidence, subject to weight.[33] I have considered all the affidavits.

44 Amongst the affidavit material was an affidavit Mr Giurina filed on 11 November 2024, filed after the deadline that had been directed for the trial. I gave Mr Giurina leave to rely on the affidavit, together with two sets of submissions he filed after that deadline, and I have considered these documents too.

45 The findings below are all based on the affidavit material I admitted into evidence.

46 On 8 August 2023 the two Warrants were issued at the request of the Council. Sealed copies of the two Warrants appear in the Court Book.[34]

47 Each Warrant was the subject of a 'notice to judgment debtor' issued by the Sheriff to Ermanno Giurina as executor of the Estate of C Nacinovich, referring to Greater Geelong City Council as the judgment creditor, and copies of the Warrants were included in a bundle of documents accompanying each notice.

48 Warrant W23014506959 related to an original debt of $40,000 from the costs order of the Court of Appeal related to the Judicial Review proceeding. That sum had, having regard to fees and interest, become a total amount owing of $49,115.91.[35] An affidavit in support of warrant of seizure and sale accompanied the notice. It verified the calculation of the total amount owing and exhibited relevant documents, including the costs order and Warrant.[36]

49 Warrant W23014506960 related to an original debt of $46,915 from the assessed costs resulting from Whelan JA's costs order in the Judicial Review proceeding. That sum had, having regard to costs and interest, become a total amount owing of $57,572.15.[37] An affidavit in support of warrant of seizure and sale was included that verified the calculation of the total amount owing and exhibited relevant documents, including the costs order and Warrant.[38]

TO THE SHERIFF

In respect of the order dated 17 November 2021 in proceeding S ECI 2021 02603 by which it was ordered that the plaintiff, Ermanno Giurina as executor of the Estate of C Nacinovich pay the costs of the first defendant, Greater Geelong City Council, which have been taxed at $46,915.00, levy on the property of the Estate of C Nacinovich which is authorised by law to be taken in execution for:

(a) the sum of $46,915.00, being the total amount for taxed costs; ...

[and interest and fees].

For the purposes of s 52(2) of the Transfer of Land Act 1958 (Vic) (if applicable), the land of 120 Elizabeth Geelong West better described in the folio or folios of the Register kept under that Act identified by certificates of title volume 06451 folio 142 and volume 06835 folio 810 are affected by this warrant.

53 On 20 May 2024, Warrant W23014506960 (assigned dealing number AY014642A) was recorded on each of the folios of the Register describing the Land.[39] On 23 May 2024, the Warrant W23014506959 (assigned dealing number AY026154W) was recorded on each of the folios of the Register describing the Land.[40]

54 In the period leading up to 4 June 2024, an advertisement for an online auction by the Sheriff was published, stating that on 4 June 2024 all the estate and interest, if any, of Ermanno Giurina as executor of the Estate of C Nacinovich would be auctioned online by the Sheriff, and referring to the Land.[41]

55 On 28 May 2024, Mr Giurina commenced proceeding S ECI 2024 02707, and by summons in that proceeding filed on 30 May 2024, he sought an order pursuant to s 103(1) of the TLA for the Registrar to register a caveat in respect of the Land and an order to stay the sale. On 3 June 2024, Tsalamandris J dismissed the application on the summons and the proceeding.[42]

56 The auction was conducted by the Sheriff on 4 June 2024.[43]

57 On or about 4 or 5 June 2024, after the online auction, a contract of sale was made between the Sheriff and Hooks Industries for the sale and purchase of Mr Giurina's interest in the Land as executor of the deceased's estate.[44] The contract described the subject-matter as follows:[45]

Property: The interest (if any) of Ermanno Giurina ... as executor of the estate of C. Nacinovich, also known as Lina Nacinovich, of 120 Elizabeth Street, Geelong West 3218, in the land described below, will be auctioned online by the Sheriff.

As shown on certificate of title as Lina Nacinovich sole of an estate in fee simple in the land described on Certificate of Title Volume 06451 Folio 142 and Volume 06835 Folio 810 upon which is erected a house and known as 120 Elizabeth Street, Geelong West, 3218.

...

The vendor, being the Sheriff as defined in the Particulars of Sale, sells and the purchaser ('Purchaser') buys the interest (if any) of the judgment debtor named above in the property described above ('Property') for the price and on the terms set out in this contract.

58 The particulars of sale identified Hooks Industries as the purchaser and specified the purchase price.[46]

59 Hooks Industries paid the purchase price referred to in the contract.[47]

60 Hooks Industries made efforts to locate the duplicate certificates of title issued in 1976 in respect of the two folios of the Register describing the Land, but to no avail.[48] In the course of those efforts, on 25 July 2024, a representative of Hooks Industries spoke with Mr Giurina, who did not explicitly state that he held the certificates, although he said words to the effect that he would not be handing them over as he was still involved in legal proceedings against the Sheriff to annul the sale, as well as a proceeding against the Council.[49] Mr Giurina confirmed this position in an email on 29 July 2024, again without making it clear whether or not he held the certificates:[50]

I currently have a proceeding on foot in the Supreme Court against the Sheriff to have the sale of 4 June 2024 set aside. The substantive matter has not been finally determined.

Consequently there will be no arrangement undertaken in relation to the Certificates of Titles.

In the meantime I also reserve all my rights.

61 A further proceeding in this Court, S ECI 2024 04767, has been commenced by Hooks Industries against Mr Giurina seeking relief relating to the production of the certificates of title.[51]

62 On 13 September 2024, the representative of Hooks Industries again attempted to obtain information from Mr Giurina about the location of the certificates.[52] He did not respond.[53]

63 For the reasons set out below under the first subheading in this section, I have not accepted the various arguments Mr Giurina advanced for impugning the effectiveness of the Warrants and the sale.

64 As explained under the second subheading, that conclusion has led me to dismiss Mr Giurina's claims in the Warrants proceeding.

65 Under the third subheading, I consider the claims of Hooks Industries in the TLA proceeding, granting an alternative version of the orders sought and imposing a tight deadline for compliance on the Registrar and on the Sheriff, to enable Hooks Industries to lodge a transfer of title form before Hooks Industries runs out of time to do so under s 52 of the TLA.

Was sale of the Land by the Sheriff under s 24 of the Sheriff Act 2009 not authorised by the Warrants?

66 There are significant points of contention in these proceedings as to the character of the costs orders made in the Judicial Review proceeding and its related Court of Appeal proceeding.

67 As I understood his submissions, Mr Giurina first argued that the costs orders were ineffective to give rise to a judgment debt, or to make the Council a judgment debtor.

68 I disagree. Mr Giurina cited no authority for his argument. In my view, a costs order is a judgment and gave rise to a judgment debt and to the relationship of judgment creditor and judgment debtor between the Council and Mr Giurina.

69 Mr Giurina next argued that they were costs orders against him personally, not against the deceased's estate. He says that the Court will commonly specify in an order that costs may be recovered from an estate's assets, and in the absence of a specific order of this kind, a costs order of the Court against an individual is not a costs order that authorises execution against estate assets, even if the individual is the executor of the estate and even if the individual brought the proceedings in which the costs orders were made in their capacity as executor of the estate. Relatedly, by his proposed amended originating motion, he sought to join the deceased's estate to the Warrants proceeding. Mr Giurina pointed to the distinction between an executor and an estate, noting that an executor incurs personal liability for expenses in the administration of an estate subject to the executor's right of indemnity from estate assets, provided that the expenses were properly incurred.

70 My conclusions in relation to this question are as follows:

(a) On their proper interpretation, the costs orders referred to in the Warrants proceeding gave rise to liabilities on the part of Mr Giurina, including in his capacity as executor of the deceased's estate.

(b) The estate remained unadministered, and so proprietorship of the deceased's freehold estate in the Land was and remained vested in Mr Giurina, pursuant to s 13 of the Administration and Probate Act 1958.

(c) The proceeds of that interest in the Land were available to satisfy costs orders against Mr Giurina in his capacity as executor. That interest was likewise bound and affected by the Warrants, and was sold by the Sheriff to Hooks Industries.

71 I will now explain my reasoning in a little more detail.

72 The Sheriff Act 2009, pt 3, div 5 is entitled 'Powers to seize, sell and deal with property'. I considered its provisions recently in Gaudry v Rello Finance.[54]

73 Section 23 provides that the Sheriff may seize or take possession of recoverable property in accordance with a warrant that authorises the seizure of the property. Section 24 provides that, subject to that Act:

(a) sell property seized in accordance with the relevant court and enforcement legislation, or a warrant that authorises the seizure of property, for the purpose of applying the proceeds of the sale to the payment of a payable amount; or

(b) deal with property seized in accordance with a warrant that authorises the seizure of property.

74 Thus the Sheriff may sell property 'seized in accordance with ... a warrant that authorises the seizure of the property' for the purpose of applying the proceeds of the sale to 'the payment of a payable amount'. Section 3 defines a payable amount as 'the amount specified in a money warrant as being required to be paid by the person named or described in the money warrant'. A money warrant includes a 'civil warrant', which includes as warrant of seizure and sale.

75 Warrants of seizure and sale are referred to in r 66.02(a) of the Rules, as one of the means for enforcing a judgment for the payment of money. A 'judgment' includes an order,[55] and so a costs order is a judgment for the payment of money. Warrants for seizure and sale are provided for in O 69 of the Rules. Rule 69.04 provides that (subject to qualifications that are not applicable in this case) 'where it appears to the sheriff that property subject to levy under a warrant is more than sufficient to satisfy the amount to be levied, the sheriff shall take or sell so much of the property as appears to the sheriff to be sufficient'. Rules 69.05 and 69.06 govern the process of sale.

76 As already mentioned, Mr Giurina contends that the costs orders only bound him in his personal capacity, and did not bind him in his capacity as executor of the deceased's estate. I do not accept this contention. He brought the Judicial Review proceeding and the related Court of Appeal proceeding in his capacity as executor, and so it goes without saying that the costs orders in those proceedings were directed to him in that capacity, or in capacities that include that capacity.

77 It does not matter that the Council did not seek to have Whelan JA or the Court of Appeal specify this in in the order. Mr Giurina relied on cases involving trust deeds and probate questions.[56] In probate cases and cases concerning the construction of trust deeds and performance of trustee's duties, the question of whether costs are to be recovered from the estate's assets or the trust's assets is often the subject of a specific order by the Court. However, the costs orders in the Judicial Review proceeding and the related Court of Appeal proceeding were not proceedings of that kind, and no such requirement applied. On their proper interpretation, it is clearly implied that the costs orders applied to Mr Giurina in his capacity as executor.

78 As mentioned in paragraphs 36 and 37 above, Mr Giurina relied on remarks made on transcript by Beach and McLeish JJA and in their Honour's reasons for judgment in the First VSCA reasons, for the proposition that the costs orders were made against Mr Giurina personally and that the estate is not liable. I do not read any of their Honours' remarks as standing for that proposition. The remarks relate to the responsibility of Mr Giurina to pay the costs orders and seek reimbursement from the assets of the estate, in the context of particular arguments advanced by Mr Giurina at the time, which were to the effect that he bore no such responsibility. In my view, the existence of such a responsibility is consistent with the conclusions I have reached, that the costs orders were made against Mr Giurina in his capacity as executor, and that the Land vested in him as executor of an unadministered estate is available to satisfy them.

79 On my reading of the Second VSCA reasons, Walker and Orr JJA have indicated that the Land, as an asset of the estate vested in Mr Giurina as executor, is available to satisfy the costs orders made against him in that capacity. And on my reading of the First VSCA reasons, Beach and McLeish JJA have said nothing inconsistent with that outcome.

80 Mr Giurina pointed to the principle that executors incur personal liability for expenses incurred in administering an estate, subject to a right of indemnity from the assets of the estate (provided the expenses are properly incurred). Does this principle somehow mean that the warrants did not validly authorise seizure and sale of the Land? In my view, it does not. That is so for the reasons outlined in paragraphs 76 and 77 above, and because of the operation of s 13(1) of the Administration and Probate Act 1958.

81 Section 13(1) is in pt 1, div 3, entitled 'Devolution of real estate etc.'. Section 13 is entitled 'Real estate to vest in executors and administrators', and sub-s (1) provides:

(1) Upon the Court granting probate of the will or administration of the estate of any deceased person, then subject to any limitations expressed in the grant all the hereditaments or all the hereditaments then unadministered of such person, whether held by him beneficially or in trust, shall vest as from the death of such person in the executor or administrator to whom such probate or administration is granted (as the case may be) for all the estate therein of such person, and if there is more than one such executor or administrator shall vest in them as joint tenants.

82 In Commissioner of Stamp Duties (Queensland) v Livingston,[57] Viscount Radcliffe delivered the Privy Council's judgment on the consequences of the vesting of property rights of a deceased person in their executor, making it clear that such property 'was vested... in full right', and 'in full ownership', and that '[t]he whole property was his', and 'the assets as a whole were in the hands of the executor, his property'.[58] Viscount Radcliffe identified a well-known fallacy underlying the contrary, erroneous view:[59]

Where, it is asked, is the beneficial interest in those assets during the period of administration? It is not, ex hypothesi, in the executor: where else can it be but in the residuary legatee? This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of a full beneficial owner. What matters is that the Court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets.

83 In my view, Mr Giurina had 'the whole right' of ownership of the Land, and this interest could be seized and sold on the basis of costs orders made against him in his capacity as executor of the estate.

84 Mr Giurina submitted that the vesting of property in an executor does not mean that it 'becomes his personal property for his benefit'.[60] Maybe so, at least to the extent that the executor has a duty to duly administer the estate.[61] However, this is no reason to doubt the effectiveness of the costs orders - made against Mr Giurina in his capacity executor - to reach the Land vested in him as executor. It would be entirely artificial to suppose that Mr Giurina could be subjected to any proceeding to enforce administration of the deceased's will here: he was both the executor and the person who stood to inherit the Land under the will as beneficiary of a specific bequest. In those circumstances, the costs orders imposed on him in his unsuccessful proceedings against third parties, conducted as executor of the estate, can be satisfied from the proceeds of the Land.

85 Mr Giurina relied on Zhou v Kousal.[62] There can be no doubt about the principle recognised in that decision, that the Sheriff was subject to the supervisory and inherent jurisdiction of the Court relating to a sale conducted under the Sheriff Act 2009 and a warrant of seizure and sale.[63] However, the facts of the case were very different from the present one, and none of the reasons for setting aside the sale in that case arose here. For the reasons outlined above, no failure to comply with that Act has been demonstrated in this case.

86 Mr Giurina has failed to establish any basis for doubting the effectiveness of the Warrants, or any basis for impugning the effectiveness of the sale of the Land pursuant to the Warrants.

If the answer to the first question is that the sale was not authorised, to what extent is Mr Giurina entitled to the orders in his proposed amended originating motion, and should leave to amend his originating motion be granted to allow him to seek the orders?

87 I have concluded that none of the grounds advanced by Mr Giurina for impugning the sale of the Land by the Sheriff to Hooks Industries had any merit. He has failed to demonstrate that the sale was not duly authorised under the Sheriff Act 2009.

88 He is not entitled to any of the orders in his originating motion in the Warrants proceeding, and he is unable to establish that he would have been entitled to any of the orders in his proposed amended originating motion either.

89 It is futile to grant Mr Giurina leave to rely on his proposed amended originating motion. In particular, his proposed joinder of the estate is futile. His summons filed 21 August 2024 will be dismissed.

Otherwise, is Hooks Industries entitled to the orders it seeks?

91 In light of the failure of Mr Giurina claims in the Warrants proceeding, there is no reason for doubting the validity and effectiveness of the sale to Hooks Industries of the freehold estate in the Land.

92 By its amended originating motion in the TLA proceeding, Hooks Industries seeks orders that it says are needed to facilitate the transfer to it of proprietorship in the Land in accordance with law. Specifically, it seeks the following orders (save as to costs):

(1) Pursuant to r 45.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), the plaintiff has leave under to commence this proceeding by originating motion in Form 5C.

(2) Rules 5.03(1) and 8.02 of the Rules are dispensed with.

(3) A declaration that the plaintiff is entitled to the certificate of title for the land situated at 120 Elizabeth Street, Geelong West, Victoria 3218, being the land more particularly described in certificate of title volume 06451 folio 142 and certificate of title volume 06835 folio 810 (Land).

(4) Pursuant to section 116A(1A) of the Transfer of Land Act 1958 (Vic) (TLA), the first defendant must produce and deliver certificate of title volume 06451 folio 142 and certificate of title volume 06835 folio 810 to the plaintiff by a time and date to be fixed.

(5) In the event that order 4 is not complied with:

(a) The second defendant cancel folio of the register volume 06451 folio 142 containing the land in lots 9 and 10 on plan of subdivision 014114.

(b) The second defendant cancel folio of the register volume 06835 folio 810 containing the land in lot 11 on plan of subdivision 014114 and road R1 on plan of subdivision 014114.

(c) The second defendant create a new folio of the register and electronic certificate of title for the land in lots 9 and 10 on plan of subdivision 014114.

(d) The second defendant create a new folio of the register and electronic certificate of title for the land in lot 11 on plan of subdivision 014114 and road R1 on plan of subdivision 014114.

(e) The Court declares for the purposes of subsection 27B(6) of the TLA that the plaintiff or its Australian legal practitioner are the persons entitled to control of the electronic certificates of title to be created pursuant to orders 5(c) and 5(d).

(6) An order that the third defendant sign and deliver to the plaintiff a transfer of the Land in an appropriate approved form within the meaning of section 52(3) of the TLA forthwith.

93 The orders sought in the amended originating motion do not specify the time by which the various steps are to be completed. I address this issue below.

94 In the alternative to the proposed orders in its amended originating motion, Hooks Industries advanced a second and third proposal. I need not address the third proposal. However, the second proposal is important.

95 By its second proposal, Hooks Industries did not seek an order requiring Mr Giurina to produce and deliver certificate of title volume 06451 folio 142 and certificate of title volume 06835 folio 810 to Hooks Industries, but rather sought orders to the effect of subparagraphs (a)-(e) of paragraph 5 of the amended originating motion, reproduced above, in unconditional form and without the chapeau in paragraph 5.

96 Section 103 of the TLA relevantly provides:

(1) In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.

...

(1AB) The Registrar may only make amendments to the Register under subsections (1) and (1AA) if an application in the appropriate approved form is lodged.

97 In Marchesi v Registrar of Titles, Ferguson J (as her Honour then was) identified the circumstances in which the Court will order the Registrar to cancel and create new certificates under TLA s 103(1).[64] Her Honour explained references in earlier authorities to a supposed principle that cancellation is a 'last resort', saying:[65]

While caution must be taken in making such orders, I do not think that it is necessary to exhaust every other avenue if doing so would not serve any practical purpose but rather would only serve to delay an inevitable application under the section at a later time.

98 One of the Warrants was served on the Registrar on 20 May 2024. Interpreted in accordance with s 44(1) of the Interpretation of Legislation Act 1985, the last day of the period of 6 months from 20 May 2024 referred to in s 52(5) of the TLA is 20 November 2024. Provided an instrument of transfer for the Land is lodged with the Registrar some time on 20 November 2024, the instrument will bind and affect the Land. Any later, and the sale will cease to bind and affect one of the folios that describes the Land.

99 In short, the sale will cease to bind and affect the land if the Sheriff and Hooks Industries do not complete an instrument of transfer and if the completed and signed transfer is not lodged before the end of 20 November 2024. That is the day after tomorrow. It is unclear what will happen to the purchase money Hooks Industries has paid if that occurs. In any event, no transfer based on that sale can occur.

100 I am satisfied that I should not make orders that depend on Mr Giurina producing the duplicate certificates of title to the Land. I should instead adopt the second form of relief proposed by Hooks Industries. That is because Hooks Industries has already requested Mr Giurina to inform Hooks Industries of the whereabouts of the duplicate certificates of title for the relevant folios, and Mr Giurina has not told Hooks Industries whether he has them or where they are. There is no time to waste on any further attempts to obtain information from Mr Giurina about them, or to structure the orders on the chance that he might provide them.

101 I am conscious the Court should only direct the Registrar to cancel and create new folios of the Register in the kinds of circumstances described in Marchesi, where other practical alternatives have been exhausted and time may not permit pursuit of any others. I am satisfied that no other course is reasonably open in the time that remains. This is one of those rare cases where the Court must exercise its power pursuant to s 103 of the TLA to direct the Registrar to do so, in order to ensure the outcome of the litigation is effective, and the fruits of the winning party's success are secured.

102 Hooks Industries must have some time to take steps to complete the transfer form, and some time must be allowed for administrative hitches. It is therefore appropriate to order the Registrar to perform the tasks in subparagraphs (a)-(e) of paragraph 5 before 20 November 2024. I assume that the Sheriff can only complete and sign an instrument of transfer after the new folios have been created. I will order the Sheriff to perform the task in paragraph 6 as soon as possible after copies of the new duplicate certificates of title are sent to her. I expect her to be able to do so, and to comply with the order to provide the signed instrument of transfer to Hooks Industries, by 10:00am on 20 November 2024.

103 Mr Giurina's summons filed 21 August 2024 is dismissed. The Warrants proceeding is dismissed.

104 Hooks Industries' amended originating motion in the TLA proceeding is allowed. I have made orders reflecting paragraphs 1, 2, and 3 of the amended originating motion, reproduced above, as well as making the orders in subparagraphs (a)-(e) of subparagraph 5 in unconditional form. I have ordered that the Registrar must comply before the end of 19 November 2024. I have also made an order reflecting paragraph 6 of the amended originating motion, specifying that the Sheriff must comply as soon as possible. I expect that the Sheriff will do so forthwith after receiving copies of the new duplicate certificates of title for the Land, and in any event the Sheriff must do so by 10am on 20 November 2024.

105 I granted liberty to apply in case there are unforeseen issues in the implementation of these orders.

106 The orders were published shortly before these reasons.

107 I will hear any applications as to the costs of these proceedings. Applications may be made by written submissions of up to 5 pages in length, filed and served within 14 days. They may be supported by affidavit material if any is needed. Any responding submissions, limited to 5 pages, and affidavit material must be filed and served within 14 days. Costs will be determined on the papers.

[1] Originating motion relief [1] and [2]. The proposed amended originating motion proposes to join 'Estate of Carolina Nacinovich also known as Lina Nacinovich' as 'Second plaintiff', retains the claim for these declarations, deletes claims for other orders that may now be otiose, and seeks additional orders including orders setting aside the sale of the Land on 4 June 2024, restraining registration of any transfer pursuant to the sale, and (if necessary) amending the Register to reverse any such registration.

[2] In the Warrants proceeding: Plaintiff's Outline of Submissions dated 21 August 2024, Plaintiff's Outline of Submissions dated 12 October 2024, and Plaintiff's Outline of Submissions in Response dated 11 November 2024, which respond to Defendant's Outline of Submissions dated 21 October 2024. In the TLA proceeding: First Defendant's Outline of Submissions dated 11 November 2024.

[3] Additional Submissions of Ermanno Giurina dated 15 November 2024.

[9] Giurina v Greater Geelong City Council [2021] VSC 103, [151].

[10] Transcript 14 November 2024, pp 17.28 - 18.9; 22.20-29; 40.18-20.

[13] See Giurina v Sheriff (Vic) [2024] VSCA 112 ('Second VSCA reasons'), [11]-[12], where Walker and Orr JJA refer to these matters. See also the transcript of Matthews AsJ's ruling on 24 May 2022 in proceeding S ECI 2019 04286 at CB pp 2412-2420.

[16] Greater Geelong City Council v Giurina [2023] VSC 59.

[17] Ibid [148]-[151], [166]-[167].

[19] Giurina v Greater Geelong City Council [2023] VSCA 148.

[20] See Giurina v Greater Geelong City Council [2023] VSCA 299 ('First VSCA reasons').

[22] First VSCA reasons, [21]-[26].

[27] Administration and Probate Act 1958, s 39A.

[28] Transcript 29 November 2023, pp 15-16.

[29] See Plaintiff's Outline of Submissions dated 21 August 2024, [25], Plaintiff's Outline of Submissions dated 12 October 2024, [9], and Plaintiff's Outline of Submissions in Response dated 11 November 2024, [29], in response to Defendant's Outline of Submissions dated 21 October 2024, [30](a).

[30] See Plaintiff's Outline of Submissions dated 21 August 2024, [24], Plaintiff's Outline of Submissions dated 12 October 2024, [8].

[32] Second VSCA reasons, [2], [9] and [48]-[51].

[33] Filed in the Warrants proceeding: Affidavit of Ermanno Giurina dated 19 February 2024 and its exhibits, Further Affidavit of Ermanno Giurina dated 21 August 2024 and its exhibits, Second Further Affidavit of Ermanno Giurina dated 25 September 2024 and its exhibits, Third Further Affidavit of Ermanno Giurina dated 12 October 2024 and its exhibits, Fourth Further Affidavit of Ermanno Giurina dated 11 November 2024 and its exhibits, and Affidavit of Marc Campbell Fisken dated 3 October 2024 and its exhibits. Filed in the TLA proceeding: Affidavit of Lydia Miriam Eastwood dated 10 September 2024, Second Affidavit of Lydia Mirian Eastwood dated 23 September 2024, Affidavit of Ermanno Giurina dated 4 October 2024, Affidavit of Marc Campbell Fisken dated 4 October 2024. I have also considered the Affidavit of Ermanno Giurina in support of Summons filed 21 August 2024.

[36] CB pp 225-227, exhibits at CB 228-251.

[38] CB pp 254-256, exhibits pp 257-281.

[44] CB p 1370, [9]; CB p 1706, [39].

[47] CB p 1370 [10]-[11], pp 1397-8; p 1706, [40]-[42].

[54] [2023] VSC 630.

[56] Australian Incentive Plan Pty Ltd v Attorney-General for Victoria (No 2) [2012] VSCA 251; 44 VR 61; Brown & Anor v Sandhurst Trustees (No 2) [2009] VSC 406; Gooley v Gooley [2020] NSWSC 798; Re Zlatevski (No 2) [2020] NSWSC 388.

[57] (1964) 112 CLR 12.

[60] Submissions in the Warrants proceeding dated 11 November 2024, [4]. Mr Giurina also relied on Maddock v Registrar of Titles (Vic) [1915] HCA 10; (1915) 19 CLR 681, 695.

[61] 112 CLR 12, 17: 'whatever property came to the executor virtute officii came to him in full ownership, without distinction between legal and equitable interests. The whole property was his. He held it for the purpose of carrying out the functions and duties of administration, not for his own benefit; and these duties would be enforced upon him by the Court of Chancery, if application had to be made for that purpose by a creditor or beneficiary interested in the estate'.

[62] Zhou v Kousal [2012] VSC 187; 35 VR 419.

[64] Marchesi v Registrar of Titles [2010] VSC 524, [10]-[21].

[65] [2010] VSC 524, [19].