HIS HONOUR: The application before the Court is the return of a summons, which was filed on 16 January 2024 by Maria Eugenia Mastronardo, the registered proprietor of a property located at St Albans Street, Abbotsford (property) seeking removal of a caveat lodged on 9 January 2024 (second caveat) pursuant to s 74MA of the Real Property Act 1900 (NSW). A company, Remo West Ryde Pty Ltd, is named as the defendant.
On 16 January 2024, interim relief was initially sought to facilitate short service of the summons. Mr Nagle, who appeared for the plaintiff, informed me that the summons and the affidavit in support have been served on the company by the time limited for service.
Today, Carmelo Adrian Mastronardo, the son of the plaintiff, attended and sought leave to appear on behalf of the company. He provided to the Court an affidavit dated 19 January 2024 asserting that he was a director of the company and annexing a copy of an ASIC form indicating that he had been appointed as a director of the company yesterday.
There is an issue as to whether a director may appear on behalf of a company. In discussion with Mr Mastronardo, the question of whether he had any right to appear or leave to appear was addressed. Following the discussion, I gave Mr Mastronardo leave to appear for the purposes of addressing the matter today on terms as set out in the order that I had made.
Mr Mastronardo then sought an adjournment of the matter to next Wednesday 24 January 2024 to enable him to have the benefit of advice from solicitors and to prepare documentation, at least in the form of a cross‑summons, to seek a declaration that the plaintiff holds what is said to be the defendant's interests in the property on constructive trust. He requested an adjournment on the basis that he had only recently received the summons, an affidavit of the plaintiff, and an affidavit of the plaintiff's solicitor on 17 January 2024.
Part of the relevant context of this matter is that Mr Mastronardo is a plaintiff in other related proceedings listed today, which have been called but not yet formally dealt with. In those proceedings, commenced on 5 January 2024, Mr Mastronardo joined his parents (his mother, the plaintiff in the present proceedings, and his father) respectively as first and second defendants, and sought an extension of the operation of a caveat pursuant to s 74K of the Real Property Act 1900 (NSW), which Mr Mastronardo had caused to be previously filed or lodged on about 6 December 2023 by Ms Joanne Azar (first caveat).
In the first caveat Mr Mastronardo was named as caveator and the plaintiff named as the registered proprietor affected by the caveat. That caveat claimed an interest in an estate in fee simple by virtue of an agreement dated 1 August 2022, said to be between himself and the plaintiff. The details supporting the claim of a caveatable interest were "statutory declaration, letter of agreement, bank statement".
The second caveat that is the subject of the claim in these proceedings is another document, also lodged by Ms Azar, on behalf of the defendant as caveator in essentially the same terms as the first caveat. The estate or interest claimed in the second caveat is said to arise by virtue of an agreement also dated 1 August 2022, but is said instead to be between the defendant and the plaintiff. The details supporting the second caveat claim are virtually in identical terms as the first caveat, being (worded in slightly different order to the wording in the first caveat) "letter of agreement, statutory declaration, bank statements".
On 17 January 2024, I permitted a subpoena to be issued to Ms Azar of Platinum Conveyancing Services, returnable today, requesting certain documents, including the documents that I have just described. Ms Azar produced to the Registry the documents in response to the subpoena, and earlier today I granted access to the parties to the documents produced and provided copies to each of Mr Mastronardo and Mr Nagle.
In the related proceedings that are also listed and yet to be formally dealt with, Mr Mastronardo seeks leave to discontinue the proceedings, accepting that he has no caveatable interest in the property.
Mr Mastronardo has sought an adjournment of the application. He relied upon an affidavit of himself sworn 19 January 2024 and Mr Nagle, in opposing the adjournment application, relied upon an affidavit of his instructing solicitor Michael Andrew Clear dated 16 January 2024.
In considering the utility of any adjournment, and the strength of the case, I sought to understand the basis for the caveat.
In asking about details of the alleged agreement, Mr Mastronardo initially referred me to a document that had been produced by Ms Azar in the subpoena materials dated 4 March 2010 from Veritas Property Group, signed by him, which document included a paragraph numbered 4 referring to an advance on 18 December 2009 of $1 million "on terms to be agreed".
Another document produced by Ms Azar is a form of bank statement from the ANZ Bank relating to an account in the name of the defendant. The statement is directed to directors of the defendant. The account statement appears to disclose some form of transfer of funds of $1 million apparently by cheque made on 18 December 2009. There was no detail of the payee.
Self‑evidently, the document dated 4 March 2010 to which Mr Mastronardo referred me in that bundle of subpoenaed material is not an agreement document dated 1 August 2022. As I understood him, in further inquiring about it, Mr Mastronardo indicated or intimated that there is no such letter of agreement per se, although he referred to some discussions, apparently on his version said to be relevant as giving rise to some form of interest.
There is no detail in any of the evidence of any such discussions. The affidavit of the plaintiff (Mr Mastronardo's mother), which was read on the application, denies entering into any form of agreement with the defendant in relation to the property on 1 August 2022. She has no recollection of any such statutory declaration. No agreement has been provided to the Court. No statutory declaration has been provided to the Court.
I am prepared to have some regard to the bank statement in the materials produced by Ms Azar, but that bank statement, which is dated in 2009, has very limited utility without any specific indication of the purposes and details of the transfer of funds from the account.
Mr Nagle submits that there is no evidence which could satisfy the Court that the defendant has an estate in fee simple in the land. There is a company search in relation to the defendant, which search discloses that at least for the period from 7 December 2009 until 6 September 2022 a controller, Coles Group Property Development Ltd, had been appointed in respect of the company. It will be noted that the period in which the controller was acting covers the period during which the agreement is said to have been put in place.
Mr Nagle says the caveat does not comply with the requirements of s 74L of the Real Property Act 1900 (NSW) and says that on that basis it would be sufficient to have it struck out, or more precisely removed, citing inter alia Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880 at [32]‑[36]. Further, Mr Nagle refers to comments of Ward CJ in Eq, as the President was then, in National Australia Bank Ltd v Sayed [2020] NSWSC 1002 at [12], saying that in that case the caveat did not claim, and did not properly set out fully and properly, the particulars of an equitable interest in the land that would constitute a caveatable interest. Her Honour noted that, at least in that case, a claim for damages could not give rise to an equitable interest in land, citing the decision of Kunc J in Day v Munday [2019] NSWSC 452 at [18].
In considering the application for adjournment, I had regard to the fact that Mr Mastronardo has made claims regarding an interest in the property for some time, as is evident from the form of caveat which he initially caused to be lodged in respect of the property on 6 December 2023.
As I have indicated above, the second caveat is in almost exactly the same terms as the first caveat lodged, with the exception of the first caveat identifying that the alleged agreement was said to be between Mr Mastronardo and the plaintiff, whereas the second caveat (which is the subject of this current application) is said to have been between the company and the plaintiff.
It is clear that the mere fact that a caveator is a creditor of the registered proprietor does not give rise to a caveatable interest in land: see, for example, Shannon Lindsay, Caveats Against Dealings in Australia and New Zealand (1995, Federation Press) at 112. In support of that proposition, the author states that the principle is so well understood that it is difficult to find authority for it, but cites the decision of Napier J in Shepherd v Houston [1927] SASR 144 at 146 as relevant. The proposition falls within the broader well-understood principle that a caveat cannot be lodged to protect a mere contractual or personal right: see Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) at [12.990]. The $1 million payment referred to by Mr Mastronardo appears to be by way of an unsecured loan rather than a payment specifically in respect of the property, and as such may not give rise to a caveatable interest: see, for example, KT & T Developments Pty Ltd v Tay (1995) 13 WAR 363 at 370 per Parker J.
I considered that the interests of justice favoured refusal of an adjournment and refused such an adjournment. I did so in circumstances where:
1. Mr Mastronardo has had involvement in claims regarding an interest in the property dating back to early December 2023, not just "recent" involvement;
2. there is evident connection between the lodgement of the first caveat and the second caveat;
3. there has been no production by Mr Mastronardo of any agreement dated 1 August 2022 nor evidence of discussions with his mother said to give rise to such agreement;
4. there has been no production of any statutory declaration; and
5. the plaintiff (his mother) denies the existence of any such agreement or statutory declaration and Mr Mastronardo has not sought to cross‑examine her in respect of that.
Mr Nagle, in circumstances where I refused the adjournment, proceeded on the summons. He read the affidavit of Mr Clear and also the affidavit of the plaintiff. Mr Mastronardo, when I asked him whether he had any objection to such evidence and whether he had any evidence in respect of the application, indicated that he was not able or prepared to deal with the matter and sought leave to withdraw from appearing in the matter. Subject to the question of costs, Mr Nagle had no objection to that course.
Mr Mastronardo remained in Court for some time during the balance of the hearing, which involved establishing whether there was no further evidence in respect of the matter and Mr Nagle making submissions.
In the absence of any evidence of any discussion in or about 1 August 2022 or otherwise as between Mr Mastronardo and the plaintiff referable to the lending of monies by the company in or about 2009, I was not satisfied of the defendant's claims.
In my proceeding to deal with the judgment in the matter, Mr Mastronardo briefly left the courtroom, though later returned.
I am satisfied that there is, on the material provided to the Court, no sufficient interest to support the caveat.
The orders of the Court are as follows. The Court:
1. Grants leave for Carmelo Adrian Mastronardo to represent Remo West Ryde Pty Ltd for the purposes of dealing with these proceedings today, notwithstanding that there is some doubt as to whether he has been effectively appointed as a director of the company on the basis that he accepts that whether in fact he is a director or not, he may be personally liable to pay some or all of the costs of the proceedings.
2. Declines the application of defendant for an adjournment.
3. Orders pursuant to s 74MA of the Real Property Act 1900 (NSW), the defendant, Remo West Ryde Pty Limited A.C.N. 119 722 128, withdraw the caveat having dealing number AT746629 lodged on the land contained in folio identifier XX/XXXXXX and located at XX St Albans Street Abbotsford by 10am on Tuesday, 23 January 2024.
4. Orders that Mr Mastronardo pays the plaintiff's costs of these proceedings.
5. Orders that order 4 above is without prejudice to the plaintiff having an opportunity to apply to the Court for a gross sum order or indemnity costs, such application to be made within 21 days of these orders.
[3]
Amendments
24 January 2024 - [1] change "s 74M" to "s 74MA"
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Decision last updated: 24 January 2024