Australia, Nov. 30 -- Supreme Court of Victoria issued text of the following judgement on Oct. 18:
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.
2 The key issues I must determine are:
(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'.
5 The proceedings are:
(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.
*Rest of the document and Footnotes can be viewed at: (https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2024/715.html)
Disclaimer: Curated by HT Syndication.