Adams v Xypolitos - [2015] VSC 701

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S CI 2015 05878

JO-ANN ADAMS	Plaintiff
v
JOHN XYPOLITOS	First Defendant
– and –
REGISTRAR OF TITLES	Second Defendant

---

JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2015
DATE OF JUDGMENT:	2 December 2015
CASE MAY BE CITED AS:	Adams v Xypolitos & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 701

---

Caveats (removal) — agreement finalising financial matters post separation — litigant in person — litigant in prison — allegation of forgery — abuse of caveat process — serious issue to be tried — balance of convenience — injunction forbidding further caveats — Transfer of Land Act 1958 (Vic) ss 89, 90(3)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Crofts	Aitken Partners
For the First Defendant	Mr Xypolitos, in person by videolink
For the Second Defendant	No appearance

HIS HONOUR[1]:

[1]This is an edited version of an oral judgment given on 2 December 2015

The plaintiff (Ms Adams) has been the registered proprietor of the land described in certificate of title volume 10036 folio 609, known as 22 Raisell Road, Cranbourne West (‘Raisell Road’) since 7 March 2000. On 6 September 2013 Mr Xypolitos, through his solicitors, lodged a caveat claiming an interest in fee simple pursuant to either an implied constructive trust or a resulting trust. This is an application to remove that caveat, pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘the Act’). The second defendant responded to this application by letter, which is on the court file.

Ms Adams and Mr Xypolitos were in a domestic relationship from about mid-1999 until mid-to-late 2003. Mr Xypolitos lodged a caveat in relation to Raisell Road in October 2003, claiming a constructive, resulting or implied trust. In or about April 2004, they entered into an agreement finalising all matters arising out of the relationship. The agreement had been prepared by Mr Xypolitos’ solicitors and I am perfectly satisfied that Mr Xypolitos signed it.[2] In his submissions, Mr Xypolitos claims that it was not his signature upon the agreement, that he had not seen the agreement before and that it was, in substance, fraudulently produced. I totally reject those claims and allegations.
[2]It is signed in the name of ‘John Nicholls’, as Mr Xypolitos was known at the time.

The agreement contained two clauses of particular relevance to the subsequent caveat activity on Raisell Road. Clauses 3 and 4 read:

That within 30 days of the signing of this Agreement [Ms Adams] will do all things and sign all documents necessary to effect a transfer of her interest in [another property in Nyora] to [Mr Xypolitos] and contemporaneously with the transfer John will:
a.Indemnify [Ms Adams] as to all rates, taxes and the mortgage which is secured over the property.
b. Execute a Withdrawal of Caveat in respect of the property situate at [Raisell Road] and [the other property at Nyora].

That within 30 days…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Xypolitos

Details

AGLC: Adams v Xypolitos [2015] VSC 701
Case: [2015] VSC 701
Decision Date: 2 December 2015

CaseChat Overview and Summary

In the matter of Adams v Xypolitos, the court was asked to determine whether a party should be permitted to lodge further caveats against the transfer of property. The respondents, Adams, sought an injunction against the appellants, Xypolitos, to prevent them from lodging further caveats and to remove existing ones. The appellants were in prison and represented themselves, while the respondents were represented by counsel. The appellants argued that the respondents had forged documents, while the respondents sought to finalise financial matters post separation.
The primary legal issue before the court was whether the appellants had a serious issue to be tried and whether the balance of convenience favoured the grant of an injunction. The court was required to consider the circumstances in which the caveats were lodged, the nature of the allegations of forgery, and the appellants' conduct in relation to the caveat process. The court also had to determine whether the appellants' conduct amounted to an abuse of the caveat process.
The court found that the appellants had no serious issue to be tried, as the evidence did not support their allegations of forgery. The court also found that the balance of convenience favoured the grant of an injunction, as the appellants' conduct had caused unnecessary delay and expense to the respondents. The court held that the appellants' conduct amounted to an abuse of the caveat process, and that the appellants had acted in bad faith. The court therefore granted the respondents' application for an injunction forbidding the appellants from lodging further caveats and ordered the removal of the existing caveats. The court also ordered the appellants to pay the respondents' costs of the proceeding.

Orders