web view19.10.2015 · in the supreme court of victoria at ... in the matter of an...

IN THE SUPREME COURT OF VICTORIA AT MELBOURNECOMMON LAW DIVISION

No. S Cl 2015 0448

IN THE MATTER of the Property Law Act 1958 (Vic), section 84(1)

and

IN THE MATTER of an application by Rebekah Farrell and Alexander Joel Sheed-Finck for the discharge and/or modification of the restrictive covenant contained in Instrument of Transfer No. 2071058 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in Certificate of Title Volume 07210 Folio 950

IN THE MATTER of an application by:

Rebekah Farrell and Alexander Joel Sheed-FinckPlaintiffs

AFFIDAVIT OF ALEXANDER SHEED-FINCK

Date of document: 19 October 2015Filed on behalf of: The Plaintiffs Ref: Alex Sheed-Finck:141037SMR Legal DX 63008 SHEPPARTONSolicitors Tel: (03) 5821 077765 Nixon Street Email: [email protected] VIC 3630 Solicitor’s Code: 104503

I, Alexander Sheed Finck of 65 Nixon Street, Shepparton, Victoria 3060, Legal Practitioner, MAKE OATH AND SAY as follows:

Background

1. I am a Barrister and Solicitor of this Honourable Court and I am a legal practitioner under the provisions of the Legal Profession Uniform Law (Victoria).

2. I am a Director of the law firm SMR Legal.

3. I am one of the two plaintiffs in this matter. My wife, Ms Rebekah Farrell is the other plaintiff. I am authorised to make this affidavit on her behalf.

Compliance with Order 1 of Associate Justice Mukhtar’s Orders

4. I refer to the Orders of Associate Justice Mukhtar dated 7 September 2015 (“the Orders”). Now produced and shown to me and marked with the letters “ASF-1” is a true copy of the Orders.

5. Pursuant to Order 1, I personally attended to weatherproofing (by laminating) a copy of a notice in the form of Schedule One of the Order enlarged to size A3. I then erected it on a post in a conspicuous way alongside the letterbox adjacent to the driveway of the property at 68-74 Vasey Concourse, Croydon.

6. The notice in the form of Schedule One of the Order was erected on 14 September 2015 and remained displayed until 14 October 2015 in accordance with Order 1 and Order 2 of the Orders. Now produced and shown to me and marked with the letters “ASF-2” are true copies of photographs depicting the enlarged notice erected alongside the letterbox adjacent to the driveway of the property at 68-74 Vasey Concourse, Croydon.

Compliance with Order 3 of Associate Justice Mukhtar’s Orders

7. Pursuant to Order 3, I obtained Title Searches for Lots identified at Schedule Two of the Order through the Land Registry, Landata electronic title search system (“Title Searches”).

8. In accordance with Order 3 and with reference to the Title Searches, I arranged together with my colleague and fellow director of SMR Legal, Ms Kelli Ritchie, for letters enclosing a copy of Schedule One and a colour copy of Schedule Four of the Orders to be sent by pre-paid ordinary mail to the addresses of those registered proprietors and mortgagees identified at Schedule 2 and Schedule 3 of the Orders. Paragraphs 9 to 38 detail the process undertaken in serving each of those registered proprietors and mortgagees.

9. The Register Search Statement for Lot 2 on Plan of Subdivision LP16996 shows that it is now known as Lots 28, 29,30, 31, 32, 33, 35 on Plan of Subdivision 204937R and Lots 35 and 36 on Plan of Subdivision 204935V.

10.The Register Search Statement for Lot 28 on Plan of Subdivision 204937R shows that it is the property situate at and known as 2 Heyington Close Croydon and the registered proprietor is Kingswood Drive Pty Ltd. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Kingswood Drive Pty Ltd care of 2 Heyington Close Croydon and 17 Dalray Place Lilydale enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Investec Experien Pty Ltd and a registered mortgage to Bendigo and Adelaide Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Investec Experien Pty Ltd of GPO Box 2290 Victoria and the Proper Officer of Bendigo and Adelaide Bank Ltd of the Bendigo Centre PO Box 480 Bendigo providing the banks with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-3” is a true copy of the Register Search Statement pertaining to Lot 29 on Plan of Subdivision 204937R, the copy letter to Kingswood Drive Pty Ltd dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Investec Experien Pty Ltd dated 11 September 2015 and the copy Order with Schedule

attached, the copy letter to Bendigo and Adelaide Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

11.The Register Search Statement for Lot 29 on Plan of Subdivision 204937R shows that it is the property situate at and known as 6 Cecil Circuit Croydon and the registered proprietors are Paul Winston Pritchard and Irene Mary Pritchard. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr P W and Ms I M Pritchard care of 6 Cecil Circuit Croydon and 1 Stevanage Court Vermont South enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-4” is a true copy of the Register Search Statement pertaining to Lot 28 on Plan of Subdivision 204937R, the copy letter to Mr P W and Ms I M Pritchard dated 11 September 2015 and the copy Order with Schedule attached.

12.The Register Search Statement for Lot 30 on Plan of Subdivision 204937R shows that it is the property situate at and known as 4 Cecil Circuit Croydon and the registered proprietor is Ian Graeme Burgoyne. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr I G Burgoyne care of 4 Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Australia and New Zealand Banking Group Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Australia and New Zealand Banking Group Ltd of ANZ Centre Melbourne, Level 9 833 Collins Street Melbourne providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-5” is a true copy of the Register Search Statement pertaining to Lot 30 on Plan of Subdivision 204937R, the copy letter to Mr I G Burgoyne dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Australia and New Zealand Banking Group Ltd dated 11 September 2015 and the copy Order with Schedule attached.

13.The Register Search Statement for Lot 31 on Plan of Subdivision 204937R shows that it is the property situate at and known as 2 Cecil Circuit Croydon and the registered proprietors are Harold Maxwell Goodhead and Jacqueline Mary Goodhead. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr H M and Ms J M Goodhead care of 2 Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-6” is a true copy of the Register Search Statement pertaining to Lot 31 on Plan of Subdivision 204937R, the copy letter to Mr H M and Ms J M Goodhead dated 11 September 2015 and the copy Order with Schedule attached.

14.The Register Search Statement for Lot 32 on Plan of Subdivision 204937R shows that it is the property situate at and known as 56 Montana Parade Croydon and the registered proprietors are Stuart James Dodds and Anita

Michelle Dodds. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr S J and Ms A M Dodds care of 56 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to National Australia Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of National Australia Bank Ltd of Level 1 800 Bourke Street Docklands Melbourne providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-7” is a true copy of the Register Search Statement pertaining to Lot 32 on Plan of Subdivision 204937R, the copy letter to Mr S J and Ms A M Dodds dated 11 September 2015, the copy Order with Schedule attached, the copy letter to National Australia Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

15.The Register Search Statement for Lot 33 on Plan of Subdivision 204937R shows that it is the property situate at and known as 54 Montana Parade Croydon and the registered proprietors are Edward Albert Henderson and Faye Lois Henderson. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr E A and Ms F L Henderson care of 54 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-8” is a true copy of the Register Search Statement pertaining to Lot 33 on Plan of Subdivision 204937R, the copy letter to Mr E A and Ms F L Henderson dated 11 September 2015 and the copy Order with Schedule attached.

16.The Register Search Statement for Lot 34 on Plan of Subdivision 204937R shows that it is the property situate at and known as 52 Montana Parade Croydon and the registered proprietors are Trung Tu and An Nhu Thi Nguyen. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr T Tu and Ms A N Nguyen care of 52 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to First Mortgage Company Home Loans Pty Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of First Mortgage Company Home Loans Pty Ltd of Level 38 Riverside Centre, 127 Eagle Street Brisbane City, Queensland providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-9” is a true copy of the Register Search Statement pertaining to Lot 34 on Plan of Subdivision 204937R, the copy letter to Mr T Tu and Ms A N Nguyen dated 11 September 2015, the copy Order with Schedule attached, the copy letter to First Mortgage Company Home Loans Pty Ltd dated 11 September 2015 and the copy Order with Schedule attached.

17.The Register Search Statement for Lot 36 on Plan of Subdivision 204935V shows that it is the property situate at and known as 48 Montana Parade Croydon and the registered proprietor is Nathalie Elfrida Graves. On 11

September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Ms N E Graves care of 48 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Pepper Group Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Pepper Group Ltd of PO Box 6186 North Sydney NSW providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-10” is a true copy of the Register Search Statement pertaining to Lot 36 on Plan of Subdivision 204935V, the copy letter to Ms N E Graves dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Pepper Group Ltd dated 11 September 2015 and the copy Order with Schedule attached.

18.The Register Search Statement for Lot 35 on Plan of Subdivision 204935V shows that it is the property situate at and known as 50 Montana Parade Croydon and the registered proprietors are Michael John Couch and Rita Couch. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr M J Couch and Ms R Couch care of 50 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-11” is a true copy of the Register Search Statement pertaining to Lot 35 on Plan of Subdivision 204935V, the copy letter to Mr M J Couch and Ms R Couch dated 11 September 2015 and the copy Order with Schedule attached.

19.The Register Search Statement for Lot 8 on Plan of Subdivision LP16996 shows that it is the property situate at and known as 65-59 Montana Parade Croydon and the registered proprietors are Russell Percival Pratt and Maureen Ruth Pratt. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr R P and Ms M R Pratt care of 65-59 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-12” is a true copy of the Register Search Statement pertaining to Lot 8 on Plan of Subdivision LP16996, the copy letter to Mr R P and Ms M R Pratt dated 11 September 2015 and the copy Order with Schedule attached.

20.The Register Search Statement for Lot 9 on Plan of Subdivision LP16996 shows that it is the property situate at and known as 71-75 Montana Parade Croydon and the registered proprietors are Martin Gerald and Karyn Margaret Haar. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr M G and Ms K M Haar care of 71-75 Montana Parade Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of two registered mortgages to Australia and New Zealand Banking Group Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Australia and New Zealand Banking Group Ltd of ANZ Centre Melbourne Level 9, 833 Collins Street, Docklands providing the bank with a copy of the Order with Schedule attached. Now produced and shown to

me and marked with the letters “ASF-13” is a true copy of the Register Search Statement pertaining to Lot 9 on Plan of Subdivision LP16996, the copy letter to Mr M G and Ms K M Haar dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Australia and New Zealand Banking Group Ltd dated 11 September and the copy Order with Schedule attached.

21.The Register Search Statement for Lot 12 on Plan of Subdivision LP16996 shows that it is the property situate at and known as 62-66 Vasey Concourse Croydon and the registered proprietor is Patricia Holley. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Ms P Holley care of 62-66 Vasey Concourse Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of two registered mortgages to Bendigo Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Bendigo Bank Ltd of PO Box 480 Bendigo Victoria providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-14” is a true copy of the Register Search Statement pertaining to Lot 12 on Plan of Subdivision LP16996, the copy letter to Ms P Holley dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Bendigo Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

22.The Register Search Statement for Lot 13 on Plan of Subdivision LP16996 shows that it is now known as Lot 1 on Title Plan 215957U and is the property situate at and known as 43-49 Vasey Concourse Croydon and the registered proprietors are Frank Scagnetti and Andrea Louise Scagnetti. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr F and Ms A L Scagnetti care of 43-49 Vasey Concourse Croydon and 2 Meringer Court Nunawading enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-15” is a true copy of the Register Search Statement pertaining to Lot 1 on Title Plan 215957U, the copy letter to Mr F and Ms A L Scagnetti dated 11 September 2015 and the copy Order with Schedule attached.

23.The Register Search Statement for Lot 14 on Plan of Subdivision LP16996 shows that it is now known as Lots 1 and 2 on Plan of Subdivision 401106Y.

24.The Register Search Statement for Lot 1 on Plan of Subdivision 401106Y shows that it is the property situate at and known as 55 Vasey Concourse Croydon and the registered proprietors are Stephen Charles Freeman and Jean Maria Freeman. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr S C and Ms J M Freeman care of 55 Vasey Concourse Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Bendigo and Adelaide Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Bendigo and Adelaide Bank Ltd of the Bendigo

Centre, Bendigo providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-16” is a true copy of the Register Search Statement pertaining to Lot 1 on Plan of Subdivision 401106Y, the copy letter to Mr S C and Ms J M Freeman dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Bendigo and Adelaide Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

25.The Register Search Statement for Lot 2 on Plan of Subdivision 401106Y shows that it is the property situate at and known as 51-53 Vasey Concourse Croydon and the registered proprietors are Christopher Douglas Purcell and Jacqueline Blythe Purcell. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr C D and Ms J B Purcell care of 51-53 Vasey Concourse Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Bendigo and Adelaide Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Bendigo and Adelaide Bank Ltd of Bendigo Centre, Bendigo providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-17” is a true copy of the Register Search Statement pertaining to Lot 2 on Plan of Subdivision 401106Y, the copy letter to Mr C D and Ms J B Purcell dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Bendigo and Adelaide Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

26.The Register Search Statement for Lot 15 on Plan of Subdivision LP16996 shows that it is the property situate at and known as 1A Cecil Circuit Croydon and the registered proprietor is Yu Xiao. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr Y Xiao care of 1A Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Westpac Banking Corporation. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Westpac Banking Corporation of 275 Kent Street Sydney NSW providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-18” is a true copy of the Register Search Statement pertaining to Lot 15 on Plan of Subdivision LP16996, the copy letter to Mr Y Xiao dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Officer of Westpac Banking Corporation dated 11 September 2015 and the copy Order with Schedule attached.

27.The Register Search Statement for Lot 16 on Plan of Subdivision LP16996 shows that it is now known as Lots 1 to 4 on Plan of Subdivision 204938P.

28.The Register Search Statement for Lot 1 on Plan of Subdivision 204938P shows that it is the property situate at and known as 1 Cecil Circuit and the registered proprietors are Terry Ross Walker and Anjela Kathryn Walker. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by

pre-paid ordinary mail to Mr T R and Ms A K Walker care of 1 Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Westpac Banking Corporation. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Westpac Banking Corporation of 275 Kent Street Sydney, NSW providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-19” is a true copy of the Register Search Statement pertaining to Lot 1 on Plan of Subdivision 204938P, the copy letter to Mr T R and Ms A K Walker dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Westpac Banking Corporation dated 11 September 2015 and the copy Order with Schedule attached.

29.The Register Search Statement for Lot 2 on Plan of Subdivision 204938P shows that it is the property situate at and known as 3 Cecil Circuit Croydon and the registered proprietors are Adrian Mark Sujevic and Leanne Catherine Sujevic. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr A M and Ms L C Sujevic care of 3 Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-20” is a true copy of the Register Search Statement pertaining to Lot 2 on Plan of Subdivision 204938P, the copy letter to Mr A M and Ms L C Sujevic dated 11 September 2015 and the copy Order with Schedule attached.

30.The Register Search Statement for Lot 3 on Plan of Subdivision 204938P shows that it is the property situate at and known as 5 Cecil Circuit Croydon and the registered proprietors are Rodney Doyle and Omer Balla. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to R Doyle and O Balla care of 5 Cecil Circuit Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-21” is a true copy of the Register Search Statement pertaining to Lot 3 on Plan of Subdivision 204938P, the copy letter to R Doyle and O Balla dated 11 September 2015 and the copy Order with Schedule attached.

31.The Register Search Statement for Lot 4 on Plan of Subdivision 204938P shows that it is the property situate at and known as 7 Cecil Circuit Croydon and the registered proprietors are Joseph Aromataris and Lorraine Aromataris. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr J and Ms L Aromataris care of 7 Cecil Circuit Croydon and 4 Syson Close Deer Park enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-22” is a true copy of the Register Search Statement pertaining to Lot 4 on Plan of Subdivision 204938P, the copy letter to Mr J and Ms L Aromataris dated 11 September 2015 and the copy Order with Schedule attached.

32.The Register Search Statement for Lot 22 on Plan of Subdivision LP16996 shows that it is now known as Lots 1 to 5 on Plan of Subdivision 423994Q.

33.The Register Search Statement for Lot 1 on Plan of Subdivision 423994Q shows that it is the property situate at and known as 60 Vasey Concourse Croydon and the registered proprietors are Ian Edwin Gates and Bettina Maree Gates. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr I E and Ms B M Gates care of 60 Vasey Concourse Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to St George Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of St George Bank Ltd of St George Bank Ltd of 158-164 Swanston Street Melbourne providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-23” is a true copy of the Register Search Statement pertaining to Lot 2 on Plan of Subdivision 423994Q, the copy letter to Mr I E and Ms B M Gates dated 11 September 2015, the copy Order with Schedule attached, the copy letter to St George Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

34.The Register Search Statement for Lot 2 on Plan of Subdivision 423994Q shows that it is the property situate at and known as 60A Vasey Concourse Croydon and the registered proprietors are Josef Schneeweiss and Patricia Anne Schneeweiss. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr J and Ms P A Schneeweiss care of 60A Vasey Concourse Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Police Association Credit Co-Operative Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Police Association Credit Co-Operative Ltd of 121 Cardigan Street Carlton providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-24” is a true copy of the Register Search Statement pertaining to Lot 2 on Plan of Subdivision 423994Q, the copy letter to Mr J and Ms P A Schneeweiss dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Police Association Credit Co-Operative Ltd dated 11 September 2015 and the copy Order with Schedule attached.

35.The Register Search Statement for Lot 3 on Plan of Subdivision 423994Q shows that it is the property situate at and known as 41- 43 Cheong Street Croydon and the registered proprietor is Tanya Elizabeth Atherton. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Ms T E Atherton care of 41- 43 Cheong Street Croydon and 22 Bristow Drive, Forest Hill enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to Westpac Bank Corporation. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of Westpac Bank Corporation of 275 Kent Street Sydney NSW providing the bank with a copy of the Order with Schedule attached. Now produced and

shown to me and marked with the letters “ASF-25” is a true copy of the Register Search Statement pertaining to Lot 3 on Plan of Subdivision 423994Q, the copy letter to Ms T E Atherton dated 11 September 2015, the copy Order with Schedule attached, the copy letter to Westpac Bank Corporation dated 11 September 2015 and the copy Order with Schedule attached.

36.The Register Search Statement for Lot 4 on Plan of Subdivision 423994Q shows that it is the property situate at and known as 37-39 Cheong Street Croydon and the registered proprietors are Weng Kong Cheong, Jing Wen Cheong and Zu Xian Cheong. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to W K, J W and Z X Cheong care of 37-39 Cheong Street Croydon and 5/12 Karingal Street Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is not the subject of a registered Mortgage. Now produced and shown to me and marked with the letters “ASF-26” is a true copy of the Register Search Statement pertaining to Lot 4 on Plan of Subdivision 423994Q, the copy letter to W K, J W and Z X Cheong dated 11 September 2015 and the copy Order with Schedule attached.

37.The Register Search Statement for Lot 5 on Plan of Subdivision 423994Q shows that it is the property situate at and known as 33-35 Cheong Street Croydon and the registered proprietors are Nabil Tabikh and Nouha Tabikh. On 11 September 2015 my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to Mr N and Ms N Tabikh care of 33-35 Cheong Street Croydon enclosing a copy of the Order with Schedule attached to the Order. The property is the subject of a registered mortgage to National Australia Bank Ltd. On 11 September, my colleague, Ms Ritchie forwarded correspondence by pre-paid ordinary mail to the Proper Officer of National Australia Bank Ltd of 800 Bourke Street, Docklands Melbourne providing the bank with a copy of the Order with Schedule attached. Now produced and shown to me and marked with the letters “ASF-27” is a true copy of the Register Search Statement pertaining to Lot 5 on Plan of Subdivision423994Q, the copy letter to Mr N and Ms N Tabikh dated 11 September 2015, the copy Order with Schedule attached, the copy letter to National Australia Bank Ltd dated 11 September 2015 and the copy Order with Schedule attached.

Enquiries

38.On 15 September 2015, our office received a facsimile from ANZ. The ANZ is the registered mortgagee of the properties at 4 Cecil Court and 71-75 Montana Parade. Now produced and shown to me and marked with the letters “ASF-28” is a true copy of that facsimile. Upon receipt of that facsimile, I telephone the ‘Enquiries Line’ on the number provided on the facsimile. I explained that the facsimile appeared to misunderstand our correspondence. The ANZ telephone representative stated that the facsimile was likely to have been automatically generated. He stated that I could ignore the facsimile and that there I would not be charged any fee for any unsought production of the Certificate of Title.

39.On 17 September 2015, I received a telephone call from Stephen Dwyer of Pepper Group Limited (“Pepper”). Pepper is the registered mortgagee of the property at 48 Montana Parade. Mr Dwyer asked some general questions about the Croydon area particularly about house sales, house prices and development of the suburb generally. Mr Dwyer stated that Pepper had no objection to the application to remove the covenant and wished me well.

40.On 23 September 2015, our office received a telephone call from Mr Paul Pritchard. Mr Pritchard is one of the two registered proprietors of the property 6 Cecil Circuit, Croydon. The other registered proprietor is Ms Irene Pritchard. I was not in the office at the time but my assistant, Ms Demase took a message, which was recorded at 3:10 pm on 30 September 2015. Ms Demase explained to me that Mr Pritchard was calling to enquire whether any new driveway in the proposed plan of subdivision would exit onto the dirt road of Montana Parade. The answer to that question is no. 68-74 Vasey Concourse, Croydon is on Vasey Concourse, which is a sealed road. The land does not connect to Montana Parade. I telephoned Mr Pritchard within the hour but was directed to his voice mail. I left a message acknowledging his call, explaining my position and asking him to telephone me about his enquiry or any other questions that he may have. At the time of swearing this affidavit, I have not received nor do I know of any further contact from Mr Pritchard.

41.On 25 September 2015 our office received a telephone call from Mr Kiernan Humphrey of 23 Yvone Avenue, Ringwood East. I was not in the office at the time but my assistant, Ms Demase took the telephone call and recorded a message which was recorded at 4:49 pm on 30 September 2015. Ms Demase explained to me that it was not entirely clear what Mr Humphrey was enquiring about. Mr Humphrey explained that he had seen the sign erected at the front of 68-74 Vasey Concourse. He said that he would like some further information about the sign. Ms Demase asked him to leave his number so that Ms Ritchie or I could telephone him about the matter and provide him with the information sought. Mr Humphrey said he would not leave a number and hung up. A Google search states that 23 Yvone Avenue is 2.8 kilometres from 68-74 Vasey Concourse. 23 Yvone Avenue is not a beneficiary of the covenant and is well outside the original parent title identified in paragraph 4.2 of Ms Easton’s planning report filed in this proceeding. At the time of swearing this affidavit, I have not received nor do I know of any further contact from Mr Humphrey.

42.On 30 September 2015 our office received a telephone call from Mr Stuart Dodds. Mr Dodds is one of two registered proprietors of the property at 56 Montana Parade. The other registered proprietor is Ms Anita Michelle Dodds. I was not in the office at the time but my assistant, Nicole Demase took a message, which was recorded at 9:24 am on 30 September 2015. I returned Mr Dodd’s telephone call within the hour. Mr Dodds explained that he had received SMR Legal’s letter and the enclosures. Mr Dodds explained that he had discussed the letter with some of his neighbours who he stated had also received SMR Legal’s letter and enclosures. Mr Dodds did not say who those

neighbours were. Mr Dodds stated that he would like to obtain more information about the matter to discuss with his neighbours. I explained that my wife, Ms Farrell and I had commissioned Mr Easton to prepare a detailed planning report, which had been filed in this proceeding. I summarised the issues addressed in Mr Easton’s report and asked if that sounded like the information he was after. Mr Dodds said that was the information he wanted and he went on further to express an interest in the history of the covenant and our ideas about the ultimate subdivision of the property. I stated that if having considered the planning report, he had any further enquiries or concerns that he was welcome to contact me at the office or on my mobile telephone number. I explained to Mr Dodds, that the planning report contained colour photographs and asked him whether he would like to receive it by email. Mr Dodds said that he would prefer correspondence by email. Mr Dodds then provided me with his email address.

43.At 11:37 am on 1 October 2015, Ms Demase wrote to Mr Dodds and provided him with the planning report email. The planning report had to be sent across two emails due to the size of the attachment. Now produced and shown to me and marked with the letters “ASF-29” are true copies of that letter and the emails (attachments excluded).

44.At 12:47 pm on 1 October 2015, Mr Dodds responded to Ms Demase stating, ‘I received both emails and attachments.’ Now produced and shown to me and marked with the letters “ASF-30” is a true copy of that email. At the time of swearing this affidavit, I have not received nor do I know of any further contact from Mr Dodds.

45.On 1 October 2015 our office received a telephone call from a woman who said her name was ‘Angela’. Ms Demase took the call. Ms Demase told me that Angela stated that she had seen the A3 notice and asked if there had been any objectors. Ms Demase explained that there had been no objections. Ms Demase asked Angela if she would like to leave her details or if she wanted any information about the notice. Angela said she would not leave her details. She said that she would discuss the notice with her husband and call if anything further was required. At the time of swearing this affidavit, I have not received nor do I know of any further contact from ‘Angela’.

46.On 12 October 2015 the probate clerk, Ryan Pacquola at SMR Legal received a telephone call from Ruth at the Bendigo Bank. Bendigo Bank is the registered mortgagee of the properties at 2 Heyington Close, 62-66 Vasey Concourse and 55 Vasey Concourse. Mr Pacquola sent me a message at 1:24 pm requesting that I give Ruth a call. I telephoned Ruth within the hour. Ruth stated that she had received the correspondence and asked if there was anything she needed to do in response. I asked her whether Bendigo Bank intended on objecting or had any enquiry about the correspondence. Ruth said Bendigo Bank had no interest in objecting. Ruth asked why we had corresponded with Bendigo Bank about a matter she considered to be irrelevant. I explained that as mortgagee, Bendigo Bank had an interest and that the Orders required Bendigo Bank notification in writing. Ruth said there

would be no objection and said she would simply put my letter on her file stating that there was nothing further to be done.

47.At the date of swearing this affidavit I have not received either through my office or personally any enquiry be it oral or in writing further to those enquiries referred to above.

48.At the date of swearing this affidavit I have not received either through my office or personally any objection be it oral or in writing from any of the proprietors or mortgagees to whom a copy of the Order and Schedules were provided in accordance with the preceding paragraphs nor from any other person or entity responding to the notice affixed to the property at 68-74 Vasey Concourse, Croydon.

SWORN by ALEXANDER SHEED-FINCK )

At Melbourne in the State of Victoria )

This 19th day of October 2015 )…………………………….

Before me:……………………………………………


No. S Cl 2015 0448


and




CERTIFICATE OF IDENTIFYING EXHIBIT


This is the Exhibit marked “ASF-1” now produced and shown to Alexander Sheed-Finck at the time of swearing his affidavit on 19 October 2015.

Before me:……………………………….

EXHIBIT “ASF-1”Copy of the Orders


No. S Cl 2015 0448


and







Before me:……………………………….

EXHIBIT “ASF-2”Copy of the Photographs


No. S Cl 2015 0448


and







Before me:……………………………….

EXHIBIT “ASF-3”Copy of Register Search Statement etc.


No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and








Before me:……………………………….



No. S Cl 2015 0448


and





Date of document: 19 October 2015Filed on behalf of: The Plaintiffs Ref: Alex Sheed-Finck:141037SMR Legal DX 63008 SHEPPARTONSolicitors Tel: (03) 5821 077765 Nixon Street Email: [email protected]

SHEPPARTON VIC 3630 Solicitor’s Code: 104503


Before me:……………………………….



No. S Cl 2015 0448


and





Date of document: 19 October 2015Filed on behalf of: The Plaintiffs Ref: Alex Sheed-Finck:141037SMR Legal DX 63008 SHEPPARTON

Solicitors Tel: (03) 5821 077765 Nixon Street Email: [email protected] VIC 3630 Solicitor’s Code: 104503


Before me:……………………………….



No. S Cl 2015 0448


and





Date of document: 19 October 2015

Filed on behalf of: The Plaintiffs Ref: Alex Sheed-Finck:141037SMR Legal DX 63008 SHEPPARTONSolicitors Tel: (03) 5821 077765 Nixon Street Email: [email protected] VIC 3630 Solicitor’s Code: 104503


Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and









Before me:……………………………….



No. S Cl 2015 0448


and

IN THE MATTER of an application by Rebekah Farrell and Alexander Joel Sheed-Finck for the discharge and/or modification of the restrictive covenant contained in Instrument of Transfer No. 2071058 registered in the Land Titles Office in the

Register Book and imposed upon the land more particularly described in Certificate of Title Volume 07210 Folio 950






Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….



No. S Cl 2015 0448


and







Before me:……………………………….


EXHIBIT “ASF-28”Copy of facsimile


No. S Cl 2015 0448


and







Before me:

……………………………….

EXHIBIT “ASF-29”Copy of Letter and Email


No. S Cl 2015 0448


and







Before me:……………………………….

EXHIBIT “ASF-30”Copy of Email

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