Rolltherm Shutters Pty Ltd v Georgiou [2004] VSC 273

"A caveat that has lapsed or been removed shall not be renewed by or on behalf of the same person in respect of the same interest".

6. Despite the diligent arguments advanced by Mr Arthur my preliminary view is that the caveat has not been renewed in respect of the same interest claimed in a previous caveat. The first caveat claimed on behalf of the defendant Georgiou an equitable estate in fee simple the grounds of claim were said to be an equitable interest pursuant to a contract of sale dated 24 October 2002 between Michael Georgiou and Rolltherm Shutters Pty Ltd (ACN 057 173 172). The caveat now in issue claims on behalf of the defendant Georgio an interest as equitable mortgagee. The grounds of claim are stated as pursuant to heads of agreement dated 24 October 2003 to give a mortgage between Michael Georgio, Nick Boutros and Dimitrios Tomazou.

9. My preliminary view is that the interest claimed is not in substance the same interest as that claimed in the first caveat although it is grounded on the evidence allegedly comprised in the same document embodying heads of agreement.[1]

12. Nevertheless because of the view I have taken with respect to the second limb of this matter, I will not express a concluded view as to the first basis of the plaintiff's application.

15. The second basis of the application is that the caveator has not discharged the onus which lies upon him to justify the maintenance of the caveat.[2] The defendant's response is that the interest which is in issue has been claimed by him in another proceeding in this court. This is proceeding No. 8919 of 2003 in which Michael Georgio is the plaintiff, Nicholas Boutros is the first defendant, Kathy Boutros is the second defendant and Rolltherm Shutters Pty Ltd is the third defendant. I shall call this proceeding "the main action".

18. The recitation of parties is sufficient to demonstrate that the plaintiff and the first defendant in the application before me are respectively the third defendant and plaintiff in the main action. The statement of claim annexed to the writ in the main action alleges by paragraph 3(d):

"The First Defendant as director of the Third Defendant and being duly authorised to do so and to better secure his obligations agreed for and on behalf of himself and his wife to execute when called upon to do so a mortgage and procure that his wife the Second Defendant would execute such a mortgage to be given by the Third Defendant over factory premises situate at and known as 54 Halsey Road, Airport West (the 'land')."

22. The interest thus claimed is the interest which is asserted as founding the caveat which is challenged before me today. The defence effectively admits the terms of the heads of agreement pursuant to which the main action is brought but does so on a restricted basis and one which does not directly admit the basis for the claim which the caveator seeks to maintain before me. Conversely the authority of Nicholas Boutros to contract on behalf of the company is not expressly denied. The relevant pleading is an admission "that the first defendant (Boutros) would better secure his obligations pursuant to clause 2.2 in the manner set forth in clause 2.3 of the Heads of Agreement ..."

25. The statement of claim also alleges the plaintiff is entitled to a mortgage over the land in issue pursuant to the provisions of the Fair Trading Act 1999. The defence in turn denies this and further seeks to raise issues of waiver and breach of implied term as alternative defences to the claim in contract.

28. It can be seen that these pleadings further complicate the factual dispute as to the effect of the heads of the agreement, which are in issue between the parties.

31. By an affidavit in opposition to the application before me the defendant Georgiou deposes, "Pursuant to the Heads of Agreement referred to in paragraph 11 of the affidavit of Nicholas Boutros, the Plaintiff by its director and sole shareholder Nicholas Boutros granted to me an equitable mortgage of the property situate at 54-56 Halsey Road, Airport West in the State of Victoria being the land described in Certificate of Title Volume 9515 Folio 734 ... ".

34. I am satisfied that there is a genuine dispute as to whether the heads of agreement resulted in the creation of an equitable caveatable interest over the property in question. In my view the proper course is for this question to be resolved in conjunction with the determination of the main action. I am reinforced in this view by the fact that there is no affidavit material before me demonstrating immediate hardship or other practical difficulties if this course is followed. Furthermore the plaintiff has the protection of s.118 of the Transfer of Land Act. In order to ensure that the course to which I have referred continues to be an appropriate and fair course, I will also reserve liberty to apply with respect to the summons before me.

37. Accordingly, I will order firstly that the originating motion between the parties and the summons on originating motion dated 16 July 2004 be referred for hearing and determination together with proceeding number 8919 of 2003. I reserve liberty to apply and subject to anything counsel may wish to put to me, I will reserve the costs of this application.

[1] See Layrill v Furlap Constructions Pty Ltd [2002] VSC 51

[2] See Lewenberg & Pryles v. Direct Acceptance Corporation [1981] VicRp 36; [1981] VR 344