Phillips v Southage Pty Ltd [2014] VSCA 17

Court of Appeal (Vic)|2014-02-20|Before: Vickery J, Judd J, Ginnane J, Whelan JA

Orders made 17 September 2013 (Vickery J), 10 October 2013 (Judd J) and 29 November, 3 December, 13 December and 18 December 2013 (Ginnane J)

PRACTICE AND PROCEDURE - Application for a stay pending application for special leave - Principles applicable - Application refused.

APPEALS - Refusal and granting of injunctions - Decisions of trial judges clearly correct - Appeals dismissed.

1 Mr Steve Phillips and his brother, Mr Phillip Phillipou, were the joint executors of the estate of their mother, Angeliki Phillipou. Amongst the assets of her estate when she died in 1994 were adjoining terrace houses at 27 and 29 Brunswick Street, Fitzroy. Provision was made in her will leaving 27 Brunswick Street to Mr Phillipou for his life or until his son turned 25, and then to his son; and leaving 29 Brunswick Street to Mr Phillips for his life or until his son turned 25, and then to his son.

2 Notwithstanding the provisions of the will, on 16 December 1996 Mr Phillips and Mr Phillipou as executors signed a transfer transferring 29 Brunswick Street, Fitzroy ('the property') to a company named Beijing Garden Resort Pty Ltd ('Beijing Garden'). Mr Phillips also signed the transfer on behalf of Beijing Garden as its sole director. The transfer expressed the consideration for the transfer to be $250,000.

3 Beijing Garden is the trustee of a discretionary trust established by Mr Phillips in 1996, named the Stavrous Phillipou Family Trust ('the family trust'). Mr Phillips and his children are beneficiaries. The deed names Mr Phillips as 'Guardian' and 'Appointor'.

4 In 2006 Beijing Garden mortgaged the property in favour of Permanent Trustee Co Ltd, and in 2010 it granted a second mortgage in favour of the respondent, Southage Pty Ltd ('Southage'). After default, Southage took proceedings in 2011 to obtain possession of the property.

5 Mr Phillips then embarked upon, what may fairly be described as, a campaign to prevent the mortgagee from taking possession of, and selling, the property. He has brought proceedings in the trial division of this Court and in the Victorian Civil and Administrative Tribunal, he has lodged caveats and other dealings with the Registrar of Titles, and he has defended proceedings concerning the removal of caveats, and proceedings seeking to enjoin him from activity outside the courts.

6 Southage obtained judgment for possession, and then obtained a warrant of possession, in 2012 in a proceeding which it had issued against Beijing Garden.[1] Mr Phillips was not a party to that proceeding. He was not a director of Beijing Garden at that time. Mr Phillips had become a bankrupt in 2006. He has since been discharged. An ASIC search relied upon by Mr Phillips in the hearing before us reveals that he was re-appointed as a director of Beijing Garden on 13 October 2013 and that his sole co-director is his daughter, Ashlee Phillips.

7 Notwithstanding Mr Phillips' efforts in the courts and outside them, the property was eventually sold and settlement of that sale occurred on 20 December 2013. An affidavit sworn by the director and secretary of Southage, who is also its solicitor, deposes that the proceeds of sale have been paid in accordance with the terms and conditions of the first mortgage and the second mortgage and that there is a substantial shortfall principally as a result of costs incurred in the various legal proceedings.

8 Applications and appeals by Mr Phillips are now pending in this Court in three proceedings.

9 The first proceeding[2] is a proceeding which was instituted by Southage against Beijing Garden, Mr Phillips, Mr Phillipou, Mr Phillips' three children, Mr Phillipou's son, and the Registrar of Titles. The proceeding concerned four caveats registered on the property. I will call this the 'principal caveat proceeding'. One caveat was lodged on behalf of Mr Phillips claiming an interest in the property as the life tenant under his mother's will. A second caveat was lodged by Mr Phillipou claiming an interest in the property by adverse possession. A third caveat was lodged on behalf of Mr Phillips' three children claiming an interest under the family trust and under their grandmother's will, and a fourth caveat was lodged by Mr Phillipou's son claiming an interest by adverse possession.

10 The second proceeding[3] is a proceeding instituted by Mr Phillips against Southage and others seeking an injunction to restrain the mortgagee's auction which had been scheduled for 12 October 2013. I will call this 'the injunction proceeding'.

11 The third proceeding[4] is a proceeding instituted by Southage against Mr Phillips seeking removal of a further caveat lodged on behalf of Mr Phillips claiming an interest under a constructive trust, and seeking an injunction restraining him from lodging any further caveats or dealings on the property. I will refer to this as 'the further caveat proceeding'.

12 In the principal caveat proceeding Vickery J ordered removal of each of the four caveats on 6 May 2013. He published reasons[5] in which he found that there was no serious question to be tried as to the existence of any of the interests claimed in the caveats. His Honour applied the principles set out in Goldstraw v Goldstraw[6] to the effect that applications for removal of caveats under s 90(3) of the Transfer of Land Act 1958 ('the TLA') are a summary procedure analogous to the determination of interlocutory injunctions.

13 On 10 May 2013 Hargrave J made an order in that same proceeding requiring Mr Phillips to vacate the property and made further orders prohibiting him from entering the property or interfering with or disrupting Southage's right to possession.

14 On 27 and 28 May 2013 Mr Phillips issued summonses seeking leave to appeal, and extensions of time in which to apply for leave, in relation to the orders of Vickery J and Hargrave J made respectively on 6 May 2013 and 10 May 2013. Each of those applications was dismissed by this Court on 9 August 2013.[7] The Court ordered that Mr Phillips pay Southage's costs.

15 In relation to each order made by this Court on 9 August 2013 Mr Phillips has applied for special leave to appeal to the High Court by notices dated 30 August 2013. In each case the grounds and the orders sought are identical. They are set out in Annexure A to these reasons.

16 On 17 September 2013 Vickery J made two further orders in the principal caveat proceeding. In the first order he ordered the Registrar of Titles to remove a dealing. That order, in other matters, refers to the fact that this was consequential upon his finding that Mr Phillipou and his son, who had lodged caveats claiming adverse possession, did not have a caveatable interest. The second order was an order that Mr Phillips and his three children, the second to fifth defendants in the proceeding, pay the plaintiff's costs of the proceeding including reserved costs.

17 By a summons issued in this Court on 7 October 2013 Mr Phillips seeks leave, if leave is necessary, to appeal those orders; and also seeks an extension of time, if necessary.[8] The proposed grounds of appeal and the orders sought are set out in Annexure A to these reasons.

18 On 10 October 2013 Judd J dismissed Mr Phillips' application in the injunction proceeding; that is the proceeding in which Mr Phillips had sought to restrain the sale of the property by Southage scheduled for 12 October 2013.[9]

19 By a notice of appeal dated 24 October 2013 Mr Phillips appeals that order. The grounds of appeal and the orders sought are set out in Annexure A to these reasons.

20 In late-2013 Ginnane J made four orders in the further caveat proceeding. On 29 November 2013 he ordered removal of the further caveat lodged by Mr Phillips claiming an interest under a constructive trust and made an order restraining the 'second defendant' from lodging any further caveats or dealings. The reference to the second defendant was a mistake, as the second defendant was the Registrar of Titles. On 3 December 2013 Ginnane J made an order fixing the hearing of an application to amend the order restraining the lodging of further caveats so as to substitute the 'first defendant' for the 'second defendant'. The correction was proposed to be made under Rule 36.07 of the Supreme Court (General Civil Procedure) Rules, often referred to as the 'slip rule'. Ginnane J also made an order concerning service of that order. On 6 December 2013 Ginnane J corrected the order previously made, under the slip rule. There was no appearance by Mr Phillips. On 13 December 2013 Ginnane J made an order as to service on Mr Phillips, among other things. On 18 December 2013 Ginnane J ordered the Registrar of Title to remove certain notices of action.[10]

21 By a notice of appeal dated 24 December 2013 Mr Phillips appeals from the orders made by Ginnane J in the further caveat proceeding. The grounds of appeal and the orders sought are set out in Annexure A to these reasons.

22 It will be noted that in relation to all the pending applications and appeals the grounds are substantially the same.

Appeals and applications now to be determined

23 By a summons dated 12 January 2014 Mr Phillips seeks a stay, pending final determination of his proceedings in the High Court, of the costs orders made by this Court on 9 August 2013, the orders made by Vickery J on 17 September 2013, the order made by Judd J on 10 October 2013, and the orders made by Ginnane J in November and December 2013. He also seeks an order that the settlement monies on the property be paid into court and that he be given 'leave to apply for damages against the respondent'.

24 Thus, there are the following applications and appeals presently pending before this Court:

1. An application for a stay of execution on the various orders referred to pending Mr Phillips' applications for special leave to the High Court.[11]

2. An application for leave to appeal, and extension of time, from the orders of Vickery J made on 17 September 2013.[12]

3. An appeal from the orders of Judd J made 10 October 2013.[13]

4. An appeal from the orders of Ginnane J made in November and December 2013.[14]

25 The Court determined to hear all the matters together, given the evident overlap between them. The President made determinations under s 11(1A) of the Supreme Court Act 1986 to enable the bench constituted to hear the stay application to hear all the matters.

26 This Court has power to stay execution of judgments and orders under Rules 64.25 and 66.14, and under its inherent jurisdiction.

27 The principles governing a stay of execution pending the hearing and determination of an appeal are well established and were summarised by Dodds-Streeton JA in Maher v Commonwealth Bank.[15] The Court has a wide discretion which is not circumscribed by rigid rules. It should take into account all the circumstances of the case. That said, a successful party to litigation is presumed to be entitled to the benefit of the judgment obtained and is entitled to a presumption that the judgment is correct. So, an applicant must demonstrate that special circumstances exist before a stay pending appeal will be granted. Such circumstances may arise where the appellant might be deprived of the fruits of the appeal if a stay of execution were not granted; in other words, where the refusal of a stay might render the appeal nugatory. A stay should not be granted unless there is at least an arguable ground of appeal.

28 As to this Court's jurisdiction to order a stay pending an application for special leave to appeal to the High Court, it is well established that that can be done.[16] Like stays more generally, the jurisdiction to grant a stay pending an application for special leave will not be exercised unless there are special circumstances. Again, preservation of the subject matter of the litigation is a relevant consideration. Other relevant considerations include the prospects of special leave being granted, whether a stay will cause loss to the respondent, and where the balance of convenience lies. The presumptions that the respondent is entitled to the benefit of the judgment and that the judgment is correct continue to apply.

29 As Brennan J explained in Sali v SPC Ltd,[17] in a passage quoted and adopted by this Court in Sunland,[18] where a stay is sought on costs orders, the applicant faces the difficulty that it is unlikely that the refusal of a stay could ever render the appeal, or special leave application, nugatory.

30 In the context of an application for a stay pending an application for special leave, consideration of the prospect of obtaining special leave requires consideration of not only whether there is an arguable ground of appeal, but also whether there is any question of public importance, or any difference of opinion between different courts requiring resolution, as provided for in s 35A of the Judiciary Act 1903 (Cth).

31 An inability to recover costs by virtue of a stay is, in itself, a relevant disadvantage or loss to the respondent.[19]

32 Given that the property has been sold and the sale settled, the only aspects of the relevant orders which will be operative in the absence of a stay are the costs orders.

33 Mr Phillips submitted that if the High Court were to eventually rule in his favour 'all decisions in the Supreme Court will be nullified including all orders as to costs'. He submitted that a stay should be granted 'in order to reduce the wastage of resources and time', and that there would be no prejudice to the respondent if a stay was granted. When asked whether there was any concern as to repayment of costs should the appeal succeed, Mr Phillips said his experience in the building industry was that companies often become insolvent and then did not meet their obligations. As to his prospects of obtaining special leave, he submitted that there was a matter of public importance involved in protecting people from being removed from their home on the basis of an order made in a proceeding to which they were not a party, and also that there was a matter of public importance in protection of the caveat system.

34 A stay should not be granted for the following reasons:

1. There is no sense in which the application for special leave, or any appeal if special leave is granted, will be rendered nugatory because a stay is refused.

2. Having reviewed the reasons of Vickery J and of Hansen and Tate JJA, I am unpersuaded that there is a reasonable prospect of special leave being granted. In particular, it does not seem to me that there is any matter of public importance, or issue requiring resolution, as provided for in s 35A of the Judiciary Act 1903 (Cth).

3. Mr Phillips has not put any material before the Court which would justify a conclusion that costs paid under an order subsequently set aside will not be able to be recovered.

4. Whilst I have noted from the files that Mr Phillips has obtained fee waivers, there is otherwise no material indicating that execution will have consequences which might be relevant to a stay, such as bankruptcy before an appeal can be heard and determined.

5. A stay will, in itself, be disadvantageous to the respondent as it will preclude recovery of costs to which it is presently entitled under the orders of the Court (subject to the rules governing taxation of costs insofar as they are applicable).

36 The application to have the proceeds of sale paid into Court also cannot succeed on the material before us. According to the sworn evidence of the solicitor for the mortgagee, there is a shortfall on the secured debt.

Application for leave to appeal from orders of Vickery J made 17 September 2013, and for an extension of time

37 By one of the orders made on 17 September 2013 Vickery J ordered that a particular dealing be removed from the title to the property. That order was directed to the Registrar of Titles and concerned the interest over the property claimed by Mr Phillipou and his son. They were represented by counsel before Vickery J. The dealing in question was an application for a vesting order based upon adverse possession. The applicants were named as Mr Phillipou and his son, but the application had been lodged by Mr Phillips.[20]

38 By a second order made by Vickery J on 17 September 2013 Mr Phillips and his three children, together the second to fifth defendants in that proceeding, were required to pay Southage's costs of the proceeding including reserved costs. By virtue of s 17A(1)(b) of the Supreme Court Act 1986 orders as to costs are not subject to appeal except by leave.

39 Mr Phillips' application for leave was filed on 7 October 2013. Being outside the 14 day time limit, an extension of time is sought.

40 In his outline of submissions dated 28 October 2013 Mr Phillips, in substance, submits that he should have leave because the earlier decision of Vickery J to remove the caveats was wrong, because there was an appeal on foot to the High Court in relation to that earlier decision, and because there was 'ostensible if not actual bias' on the part of the judge against Mr Phillips and the third to fifth defendants.

41 In order to obtain leave to appeal an applicant must show that the decision in question is attended by sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were refused, supposing the decision to be wrong.

42 As to the application to extend time, factors relevant to the exercise of the discretion to extend time include the length of the extension sought, the reason for delay, prejudice to the other party, and the prospects of success.

43 Insofar as Mr Phillips' submissions are directed to establishing that Vickery J's original decision in relation to the caveats is wrong, that matter has already been determined by this Court, and is currently the subject of the applications for special leave.

44 Notwithstanding that position, in deference to Mr Phillips' position as a litigant in person and to the very detailed material he placed before the Court, I set out below Mr Phillips' submissions on this aspect of the application.

45 Mr Phillips filed a detailed affidavit setting out the history of the matter, and he amplified that history in the course of his oral submissions. A folder of documents which he filed in advance of the hearing and upon which he wished to rely was tendered as exhibit 'A', and he added three further documents to that exhibit in the course of his submissions.

46 Without repeating all the detail he gave, the relevant substance of the history as he described it, is as follows.

47 Mr Phillips is, or was, a builder and project manager. He established the family trust in connection with a construction business in which he was involved, which he said was called 'Phoenix International Group'. Beijing Garden, as trustee of the family trust, held all the shares in that entity.

48 Mr Phillips says he had discussed with his mother before she died the unfairness of leaving the property to his son when he turned 25 when he had two daughters as well. According to Mr Phillips, she agreed with him that the property should be placed in a trust for all of them. Mr Phillips says he implemented that intention after she died by transferring the property to Beijing Garden as trustee of the family trust.

49 Mr Phillips and his brother signed the transfer of the property, from the two of them as legal personal representatives of his mother's estate, to Beijing Garden. The transfer is dated 16 December 1996. Beijing Garden became the registered proprietor of the property. Mr Phillips also signed the transfer on behalf of Beijing Garden as its sole director.

50 Mr Phillips makes two submissions about that transfer. He says:

• There are alterations on the transfer which were unauthorised. The name of the lodging firm of solicitors has been changed. Words beginning 'as Trustee for' and which are then indecipherable due to a stamp have been crossed out and initialled, not by him according to Mr Phillips. It seems highly likely that the indecipherable part of what has been crossed out, and initialled by someone, refers to the family trust.

• The consideration of $250,000 expressed in the transfer was never paid.

51 Mr Phillips told us the first mortgage on the property secured a loan for 'working capital' for the construction business.

52 In August 2006 Mr Phillips became bankrupt. A woman named Tanya Belaj took over as the director of Beijing Garden. Many of his financial problems were, according to Mr Phillips, a result of the failure of one Zygmunt Zayler and companies associated with him to meet their obligations to 'Phoenix Group Pty Ltd'. In order to 'maintain' legal proceedings against Mr Zayler and his companies, Ms Belaj 'sourced funds via broker (LendLaw)'.

53 The funds so sourced were lent to Beijing Garden by Southage and were secured by a second mortgage over the property dated 21 May 2010. The epitome of that mortgage, tendered by Mr Phillips, reveals that Beijing Garden borrowed the funds and mortgaged the property in its own capacity and as trustee of the family trust. Ms Belaj guaranteed the loan. The loan was due to be repaid on 21 May 2011.

54 As to this loan, Mr Phillips says his children, as beneficiaries of the family trust, were never consulted. He also says that it was never revealed that the loan emanated from a superannuation fund.

55 Beijing Garden defaulted on the loan. Mr Phillips says agents of Southage acted so as to 'jeopardise' a possible settlement in one of the construction business' recovery actions by informing the other party that the loan was in default in July 2012. Generally, he says Southage refused to negotiate and that it put 'undue pressure' on Ms Belaj by 'threatening' her with personal liability.

56 As previously indicated, Southage eventually obtained judgment for possession in a proceeding against Beijing Garden.

57 Two matters which Mr Phillips particularly emphasised when explaining why Vickery J's decision that none of the caveats raised any serious question to be tried as to the existence of the respective interests claimed was wrong, were:

• There had been no 'sale', as the transfer purported to record, as the $250,000 consideration was never paid; and

• Vickery J had relied upon the fact that his son had already reached 25 years when he will not do so until 2016.

58 When this Court dismissed Mr Phillips' applications for leave to appeal, and for an extension of time, it set out why it had concluded that any appeal would have no meaningful prospect of success. Without wishing to supplant the full reasons given, the claims by Mr Phillips and his son are inconsistent with the transfer to Beijing Garden, and the claims by Mr Phillipou and his son are untenable given the ownership of the two houses and Vickery J's conclusion that the relevant fence alignment was clearly a result of consensual family arrangements. The detailed explanation of the relevant circumstances which Mr Phillips gave us, as set out above, seems to me to do more to confirm the correctness of Vickery J's original decision, and this Court's decision to refuse leave to appeal from it and an extension of time, than to undermine them.

59 It is clear that Mr Phillips and his brother intended to transfer the property to Beijing Garden as trustee of the family trust, and that they did so. It is clear that Beijing Garden intended to mortgage the property, and that it did so. In this State, under ss 40-43 of the TLA, subject to certain exceptions, registered titles are indefeasible. Nothing deposed to by Mr Phillips, or asserted by him, could impugn the mortgagees' rights under their registered mortgages.

60 Mr Phillips seems to be unwilling or unable to confront the most critical fact - that it was he and his brother who transferred the property out of his mother's estate.

61 As to the alterations relied upon, one is immaterial (the name of the lodging solicitors), and it seems very likely that the other was a result of s 37 of the TLA (crossing out the reference to the family trust). In any event, according to Mr Phillips, Beijing Garden did hold the property as trustee for the family trust and it mortgaged it in that capacity.

62 As to the $250,000 unpaid, Mr Phillips' mother's estate may have a claim against Beijing Garden, but the existence of any such claim cannot affect registered mortgagees who dealt with the registered proprietor.

63 As to the assertion that Vickery J erroneously found his son had exceeded 25, it seems to me that that is either a misinterpretation of what his Honour said at [57], or confusion with his Honour's findings in relation to Mr Phillipou's son. But regardless of that, at [58] his Honour correctly observed that what was of greater significance was the transfer Mr Phillips had signed.

64 Mr Phillips' application for leave to appeal, and for an extension of time, in relation to the orders of Vickery J made 17 September 2013 should be dismissed on the ground that the relevant issues have already been determined by Hansen and Tate JJA in this Court.

Appeal from orders of Judd J made 10 October 2013

65 On 10 October 2013 Judd J dismissed an application by Mr Phillips for an injunction to restrain Southage from conducting a mortgagee auction on Saturday 12 October 2013. The auction has since taken place. The property has been sold and that sale has been settled. To that extent the application, and the proceeding itself, has now been overtaken by events. Judd J also ordered that Mr Phillips pay the costs.

66 It is apparent from the reasons published by Judd J that, in substance, he reached the same conclusions as to Mr Phillips' claims as had been reached by Vickery J and by this Court. Judd J said:

The plaintiff formulated his interest in the land in different ways, but, in substance, said that until his son reached twenty-five years of age he was entitled under the will to occupy the property. The property was, however, not administered under his mother's will, because in 1996 it was transferred to Beijing.

The plaintiff seems to contend that in some fashion his interest under the will survived the transfer. In any event, he claimed that his children own the property under the trust and that he is entitled to represent their interests in this proceeding. He also contended, apparently in the alternative, that the mortgages should be disregarded because the transfer to Beijing was flawed because of amendments made to the record of transfer at some time after the document was executed. Accordingly, he contended that the property ought to be dealt with as if subject to the trust, under the will, but if not, his children ought to have been consulted in advance of the grant of any mortgage.

The difficulty with these contentions is that Beijing is the registered proprietor. It has granted mortgages and has consented to a regime under which a warrant was issued and the sale is now to proceed. Furthermore, the children under the trust are not applicants in this proceeding, although, as I have said, the plaintiff contended that he was entitled to appear and act on their behalf. But even if they were, their interest in the trust property, in so far as they might have any direct interest, remains subject to the mortgages.

67 Mr Phillips submitted in relation to these orders, and those of Ginnane J, that they were all a consequence of the initial erroneous decision of Vickery J. He adopted a characterisation put to him during his submissions to the effect that they are 'fruit of the poisoned tree'. I have already addressed that position.

68 Judd J's decision refusing the injunction was, in my view, clearly correct for the reasons his Honour gave. The appeal should be dismissed.

Appeal from orders of Ginnane J made in November and December 2013

69 The orders made by Ginnane J in November and December 2013 include an injunction restraining Mr Phillips from lodging further caveats, a costs order against Mr Phillips, and an order directing the Registrar to remove certain notices.

70 Again, Mr Phillips' submissions are premised on the acceptance of his submissions as to Vickery J's original decision, upon which this Court has already ruled. Ginnane J, when he ordered removal of Mr Phillips' further caveat, expressly relied upon the decisions of Vickery J, the Court of Appeal, and Judd J, with which he said that he agreed. This appeal must also be dismissed for the same reason as the appeal from the orders of Judd J.

Other matters raised and materials relied upon by Mr Phillips

71 In Mr Phillips' written submissions, and in his grounds and proposed grounds, a vast range of complaints are made against Southage, its solicitor, and the judges who have dealt with the matters. I have considered them all and, in my view, they are either irrelevant or without substance, or both.

72 Mr Phillips, assisted by his daughter, also handed up and sought to rely upon copies of the following materials:

• Calderone v Perpetual Trustees Victoria Limited;[21]

• Jarrett and Jarrett v Westpac Banking Corporation;[22]

• Laurice Abbatangelo v Whittlesea City Council;[23]

• Extracts from legislation in Victoria, New South Wales and Queensland;

• ASIC v Money For Living (Australia) Pty Ltd (Administrators Appointed).[24]

73 Calderone v Perpetual concerns the position of a life tenant in possession, and the statutory exception to indefeasibility in s 42(2)(e) of the TLA.

74 The interest of a tenant in possession is protected by s 42(2)(e) from 'inconsistent registered' interests.[25] Here, the tenant has himself joined in a transfer to a trustee of a trust of which he and his children are beneficiaries. That trustee has become registered proprietor. The 'tenant' can hardly then contend that his interest

(and that of his son as well one assumes) somehow survived that transfer. That position becomes even more untenable when a third party financier deals with the trustee as registered proprietor and itself obtains a registered interest under a mortgage. Even if some possible argument might be constructed out of all this, in my view it could not justify maintenance of the caveats in the circumstances set out by Vickery J and by Hansen and Tate JJA, or the granting of the injunction sought before Judd J. Likewise, in my view Ginnane J's orders were clearly correct in the circumstances.

75 Abbatangelo v Whittlesea concerns adverse possession claims. Mr Phillips handed up a copy of the judgment at trial by Pagone J. Vickery J in his judgment[26] applied the principles set out by this Court on the appeal in that same case.[27] An owner cannot be in adverse possession against himself or herself. Possession by consent of the owner is not 'adverse'.

76 Jarrett and Jarrett v Westpac concerns the principles governing an application for a stay pending appeal in the Federal Court.

77 ASIC v Money For Living also concerns the statutory exception to indefeasibility for tenants in possession.

78 The applications and the appeals should be dismissed.

ANNEXURE A

GROUNDS AND ORDERS SOUGHT ON SPECIAL LEAVE APPLICATIONS

Failed to apply the rules of natural justice
They also ignored the defence of estoppel in that he inappropriately allocated matters for determination in one case to the exclusion of another case
They also ignored the best interests of the children affected and their Rights/Interests
They also failed to take into account the trespass of the Plaintiff/Respondent and its Agents, namely the episodes of locking the Plaintiffs out of the property in the circumstances
They also acted in breach of the Constitution of the Commonwealth of Australia
They also demonstrated ostensible if not actual bias towards the Defendant/Applicants
They also abused the process of justice and breached their oath of office
They also completely ignored the rights of the Life Tenant namely the Defendant/Applicant
They also failed to properly consider or apply the provisions of the Fair Trading Act (Victoria), or the legislation that succeeds it
They also ignored the Unconscionable Conduct of the Plaintiff and its Agent
They also failed to properly consider or apply the provisions of the Competition and Consumer Act (Commonwealth)
They also ignored the possessory rights of the Defendant/Applicant
They also failed to properly consider or apply the provisions of the Tenancy Act
They also failed to demonstrate judicial independence
They also accepted false and misleading evidence of the Plaintiff/Respondent
They also ignored the unlawful conduct of the Plaintiff/Respondent
They also improperly removed legitimate Caveats
They also ignored the proprietary rights of the Defendants/Applicants
Failed to properly consider the provisions of the Transfer of Land Act
Failed to properly consider the provisions of the Limitation of Actions Act 1958 Section 8
Failed to properly consider the provisions of the Building and Construction Industry Security of Payment Act 2002
Cost orders in regards to self representation, normally not awarded
Issued involved are that of public interest

That the Orders of the Court of Appeal dated 9th August 2013 be set aside
That possession of the property known as 29 Brunswick Street, Fitzroy, is reinstated to the Appellant and Ors
The Caveats be reinstated
Costs and Damages
Any other orders the Court deems fit

PROPOSED GROUNDS OF APPEAL AND JUDGMENT/ORDERS SOUGHT RE VICKERY J'S ORDERS 17 SEPTEMBER 2012

The learned trial judge:

Failed to apply the rules of natural justice
He also ignored the defence of estoppel in that he inappropriately allocated matters for determination in one case to the exclusion of another case
He also ignored the their Rights/Interests of the:-

i) Children affected;

ii) Grandchildren of Mrs A Phillipou their Grand Mother;

iii) The Nominated Specified Beneficiaries of the Family Trust

He also failed to take into account the trespass of the Plaintiff/Respondent and its Agents, namely the episodes of locking the Plaintiffs out of the property in the circumstances
He also acted in breach of the Constitution of the Commonwealth of Australia
He also demonstrated ostensible if not actual bias towards the Defendant/Applicants
He also abused the process of justice and breached their oath of office
He also completely ignored the rights of the Life Tenant namely the Defendant/Applicant
He also failed to properly consider or apply the provisions of the Fair Trading Act (Victoria), or the legislation that succeeds it
He also ignored the Unconscionable Conduct of the Plaintiff and its Agent
He also failed to properly consider or apply the provisions of the Competition and Consumer Act (Commonwealth)
He also ignored the possessory rights of the Defendant/Applicant
He also failed to properly consider or apply the provisions of the Tenancy Act
He also failed to demonstrate judicial independence
He also accepted false and misleading evidence of the Plaintiff/Respondent
He also ignored the unlawful conduct of the Plaintiff/Respondent
He also improperly removed legitimate Caveats
He also ignored the proprietary rights of the Defendants/Applicants
Failed to properly consider the provisions of the Transfer of Land Act
Failed to properly consider the provisions of the Limitation of Actions Act 1958 Section 8
Cost orders in regards to self representation, normally not awarded. Southage Pty Ltd, Velos Lawyers, Bill Velos, LendLaw and Chris Dessiniotis are all associated entities
Issued involved are that of public interest
Ignored the abuse of legislative instruments
Applying undue pressure in order to circumvent proper procedure and justify unlawful conduct
The orders issued were ex-parte and commenced contrary to the orders made that the matter would be commenced 'upon reasonable notice to all parties'.

Both orders made by Justice Vickery on the 17th September 2013 be struck-out
Vesting Order based on Title by Possession lodged by the trustee (nominated in probate 1st November 1996) be re-instated
The Caveat be reinstated
Costs and Damages
Any other orders the Court deems fit

GROUNDS OF APPEAL AND ORDERS SOUGHT RE JUDD J ORDERS 10 OCTOBER 2013

The learned trial judge:

Failed to apply the rules of natural justice
He also ignored the defence of estoppel in that he inappropriately allocated matters for determination in one case to the exclusion of another case
He also ignored the their Rights/Interests of the:-

i) Children affected;

ii) Grandchildren of Mrs A Phillipou their Grand Mother;

iii) The Nominated Specified Beneficiaries of the Family Trust

He also failed to take into account the trespass of the Plaintiff/Respondent and its Agents, namely the episodes of locking the Plaintiffs out of the property in the circumstances
He also acted in breach of the Constitution of the Commonwealth of Australia
He also demonstrated ostensible if not actual bias towards the Defendant/Applicants
He also abused the process of justice and breached their oath of office
He also completely ignored the rights of the Life Tenant namely the Applicant
He also failed to properly consider or apply the provisions of the Fair Trading Act (Victoria), or the legislation that succeeds it
He also ignored the Unconscionable Conduct of the Plaintiff and its Agent
He also failed to properly consider or apply the provisions of the Competition and Consumer Act (Commonwealth)
He also ignored the possessory rights of the Applicant
He also failed to properly consider or apply the provisions of the Tenancy Act
He also failed to demonstrate judicial independence
He also accepted false and misleading evidence of the Respondent
He also ignored the unlawful conduct of the Respondent
He also ignored the proprietary rights of the Applicants
Failed to properly consider the provisions of the Transfer of Land Act
Failed to properly consider the provisions of the Limitation of Actions Act 1958 Section 8
Cost orders in regards to self representation, normally not awarded. Southage Pty Ltd, Velos Lawyers, Bill Velos, LendLaw and Chris Dessiniotis are all associated entities
Issued involved are that of public interest
Ignored the abuse of legislative instruments
Applying undue pressure in order to circumvent proper procedure and justify unlawful conduct
Breached the Professional Conduct and Practice Rules 2005
Failed to consider the caveats legitimately lodged with Land Victoria with are subject to appeal

Costs against the plaintiff struck out
Any other orders the Court deems fit

GROUNDS OF APPEAL AND ORDERS SOUGHT RE GINNANE J ORDERS 29 NOVEMBER 2013, 3 DECEMBER 2013, 13 DECEMBER 2013 AND 18 DECEMBER 2013

GROUNDS OF APPEAL

The learned trial judge:

Failed to apply the rules of natural justice
He also ignored the defence of estoppel in that he inappropriately allocated matters for determination in one case to the exclusion of another case
He also ignored the Rights/Interests of the:-

i) Children affected;

ii) Grandchildren of Mrs A Phillipou; being their Grand Mother;

iii) The Nominated Specified Beneficiaries of the Family Trust

He also failed to take into account the breaking and entering/trespass of the Respondent and its Agents, namely the episodes of locking the Applicant out of the property in the circumstances in the presence of member of the Police Force (as admitted in affidavit)
He also acted in breach of the Constitution of the Commonwealth of Australia
He also demonstrated ostensible if not actual bias towards the Applicant
He also abused the process of justice and breached their oath of office
He also completely ignored the rights of the Life Tenant namely the Applicant
He also failed to properly consider or apply the provisions of the Fair Trading Act (Victoria), or the legislation that succeeds it
He also ignored the Unconscionable Conduct of the Respondent and its Agent
He also failed to properly consider or apply the provisions of the Competition and Consumer Act (Commonwealth)
He also ignored the possessory rights of the Applicant
He also failed to properly consider or apply the provisions of the Tenancy Act as defined
He also failed to demonstrate judicial independence
He also accepted false and misleading evidence of the Respondent
He also ignored the unlawful conduct of the Respondent
He also ignored the proprietary rights of the Applicant
Failed to properly consider the provisions of the Transfer of Land Act
Failed to properly consider the provisions of the Limitation of Actions Act 1958 Section 8
Cost orders in regards to self representation, normally not awarded; The solicitor on the record for Southage withdrew before proceedings began; Southage Pty Ltd, Velos Lawyers, Bill Velos who are associated entities under the control of Bill Velos (Being the Principal of those companies)
Issued involved are that of public interest
Ignored the abuse of legislative instruments
Ignored the Respondent applying undue pressure in order to circumvent proper procedure to justify unlawful conduct
Breached the Professional Conduct and Practice Rules 2005; Section 13, 14 & others
Failed to consider the caveats legitimately lodged with Land Victoria with are subject to appeal
Failed to take into account that Justice Vickery made fundamental errors in his decision on 6th May 2013 in proceeding SCI 2012 6182 which the Plaintiff/Velos relies upon
The Honourable Court and the Respondent were given adequate notice of my absence from the 10th December until the New Year (2014) on medical grounds. Further to this the Associate was aware I was not contactable via email
Denied the right of Rebuttal

Costs against the plaintiff struck out
All Caveats be re-instated
Orders issued against Land Victoria be struck out

[7] Written reasons of Hansen and Tate JJA were delivered and placed on the file.

[9] Written reasons were delivered and placed on the file.

[10] Reasons, later transcribed, were delivered for the orders of 29 November 2013 and 18 December 2013 and placed on the file.

[13] S APCI 2013 0160. Mr Phillips does not need leave to appeal from Judd J's order refusing an injunction: s 17A(4)(b)(ii) of the Supreme Court Act 1986.

[14] S APCI 2014 0001. Mr Phillips does not need leave to appeal from Ginnane J's order granting an injunction: s 17A(4)(b)(ii) of the Supreme Court Act 1986.

[16] Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681; Palmer v Permanent Custodians Limited [2009] VSCA 164; Sunland Waterfront (BVI) Ltd and Anor v Prudentia Investments Pty Ltd [2013] VSCA 266 ('Sunland').

[20] A copy of the application was tendered by Mr Phillips in the hearing before us.

[22] (Unreported, FCA, Tamberlin J, 25 September 1998).

[25] See Downie v Lockwood [1965] VicRp 38; [1965] VR 257, 259.

[26] [2013] VSC 272 [87]-[89].

[27] Whittlesea City Council v Abbatangelo [2009] VSCA 188.

Construction Industry Security of Payment Act 2002

Breached the Professional Conduct and Practice Rules 2005

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)