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

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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

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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)

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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

1. 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.

1. 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.

1. 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 of the signing of this Agreement [Ms Adams] will do all things and sign all documents necessary to give effect to indemnify [Mr Xypolitos] in respect of any mortgages, rates, taxes and charges which may exist over properties in which she is the registered proprietor or in which she holds any legal interest including but not limited to the properties at [Raisell Road] [and other properties].

1. In May 2004 Mr Xypolitos withdrew the caveat he had lodged in relation to Raisell Road, although he subsequently lodged another caveat on the property claiming the same interest. He withdrew this second caveat in July 2005. The present caveat is the third he has lodged claiming an identical interest.

1. On 6 September 2013, Mr Xypolitos was convicted by jury verdict of having murdered Ms Adams’ son, Gary Adams, on 5 December 2003. He was sentenced to a term of 27 years’ imprisonment, with a non-parole period of 24 years. [3] There have subsequently been proceedings freezing a number of Mr Xypolitos’ assets, as well as proceedings brought through the Office of Public Prosecutions in relation to funds held under previous orders made by this Court.

   [3]R v Xypolitos [2013] VSC 485; unsuccessfully appealed as Xypolitos v the Queen [2014] VSCA 339.

1. In the circumstances of this case, I am satisfied that there is no serious issue to be tried, that is, that Mr Xypolitos has no claim or interest in the property in relation to which the caveat has been lodged. Any claim that he may have had in relation to Raisell Road was compromised by the agreement made in or about April 2004. Further, I am satisfied that the lodging of the present caveat is an act of harassment of Ms Adams by Mr Xypolitos, as was the lodging of the previous caveat on the property that was subsequently withdrawn. I am satisfied that Mr Xypolitos is perfectly well equipped to understand what is going on, and has filed the last two caveats without any substance in order obtain leverage over Ms Adams and to enmesh her in continuing difficulties in obtaining a clear title to Raisell Road.

1. In Piroshenko v Grojsman[4] Warren CJ explained the nature of caveats under the Torrens system, the two steps involved in determining applications for their removal, and who bears the onus of these enquiries:

Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. … This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act.[5]

[4](2010) 27 VR 489.

[5]Ibid 491 [7] (citations omitted).

1. The balance of convenience in this case very strongly favours the removal of the caveat. Ms Adams has owned, and lived in, the Raisell Road property for over a decade. The Court should facilitate the severance of all relationships between Ms Adams and Mr Xypolitos.

1. Mr Xypolitos has previously had the benefit of legal advice as to his position. Over ten years ago he entered into an agreement, prepared by his own legal advisors, to withdraw the caveat over Raisell Road. It is of the utmost significance that he was convicted of murdering Ms Adams’ son and is serving a long term of imprisonment. There is everything to be said in favour of bringing to an end any continuing contact between the parties and ending any harassment he might seek to inflict upon Ms Adams.

1. For these reasons I am entirely satisfied that it is appropriate for orders to be made by the Court that will not only remove the caveat, but restrain Mr Xypolitos from lodging any future caveat over 22 Raisell Road.

1. I will not make any exception to the injunction in respect of purported interests said to arise after the date of these orders. It would be unnecessary in the circumstances. Should there be a future change, which strikes me as highly unlikely, an application can be made to this Court.