Arambasic v Veza - [2014] NSWSC 258

Supreme Court

New South Wales

Medium Neutral Citation: Arambasic v Veza [2014] NSWSC 258
Hearing dates: 17 March 2014
Decision date: 17 March 2014
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Any affidavit by the Defendants is to be filed and served by 24 March.
(2) Any affidavit in reply by the Plaintiff is to be filed and served by 4 April.
(3) The matter is stood into the Duty Judge's List on 7 April 2014 for hearing subject to the duty judge having the time to hear the matter on that day.
(4) The Defendants are to pay the Plaintiff's costs of today.

Catchwords: REAL PROPERTY - indefeasibility - allegation of fraud in the registration of the plaintiff as registered proprietor - defendants claim prior interest pursuant to contract of sale - no evidence of fraud - adjournment for additional evidence
Legislation Cited: Real Property Act 1900
Category: Interlocutory applications
Parties: Steve Slobodan Arambasic (Plaintiff)
Kaye Monique Veza (First Defendant)
Gary James Griffith (Second Defendant)
Representation: Counsel:
In person (Plaintiff)
A Moutasallem (Defendants)
Solicitors:
In person (Plaintiff)
Stuart Percy & Associates (Defendant)

File Number(s): 2013/312662

Judgment

The Plaintiff filed a statement of claim on 16 October 2013 seeking possession of property at 10 Potch Street, Lightning Ridge. The Plaintiff is the registered proprietor of that land and claims to have bought the property from the previous registered proprietor Jasmin White. The evidence would seem to support this. The Defendants are in occupation of the property.

It appears that an arrangement was entered into during the time that Dr White was the registered proprietor of the property whereby the Defendants would purchase the property by an instalment arrangement. A contract was apparently entered into in or about September 2005 for a purchase price of $99,650. The Defendants claim to have paid a deposit of $10,000 on 10 September. The contract provided for 1308 instalments of principal and interest of $150 per week. The property was not to be transferred to the Defendants until they had completed the purchase of the property.

It appears to be agreed by both sides that the instalments were paid for a period of time but then ceased to be paid. There is a difference of assertion about why that was so. The Defendants say that Dr White moved away from Lightning Ridge and they were unable to make the payments to her. She, in an affidavit, denies that that is so and asserts that the Defendants simply breached the contractual arrangements.

At some point, Dr White fell on hard times and it became necessary for her either to receive the balance of the purchase price from the Defendants or to sell the property. The property was put on the market but did not manage to sell. At some later time, the Plaintiff claims to have purchased the property for the sum of $70,000 on what was described as an "as is" condition with the Defendants in the property. The Plaintiff, in his affidavit, described…

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 Arambasic v Veza

Details

AGLC: Arambasic v Veza [2014] NSWSC 258
Case: [2014] NSWSC 258
Decision Date: 17 March 2014

CaseChat Overview and Summary

The case before the court involved a dispute over the registration of a property. The plaintiff, Arambasic, claimed to be the rightful owner of a property in Sydney, while the defendants, Veza, alleged a prior interest in the property pursuant to a contract of sale. The matter was heard in the Supreme Court of New South Wales. The defendants argued that the registration of the plaintiff as the registered proprietor was obtained through fraud and sought a declaration that they held a prior interest in the property.

The primary legal issue before the court was whether there was sufficient evidence of fraud to overcome the indefeasibility of the plaintiff's title. The court considered whether the defendants had provided adequate evidence to establish the existence of a prior interest and whether the plaintiff's registration was obtained through fraudulent means. The court also examined the relevant provisions of the Real Property Act 1900 (NSW) and previous case law on indefeasibility and fraud.

In determining the matter, the court found that the defendants had not provided sufficient evidence to establish the existence of a prior interest in the property or to prove that the plaintiff's registration was obtained through fraud. The court noted that the defendants had relied on a contract of sale, which was not supported by any other evidence. The court also found that the defendants had not demonstrated any fraudulent conduct on the part of the plaintiff. As a result, the court dismissed the defendants' claims and found in favour of the plaintiff. However, the court granted an adjournment to allow the defendants an opportunity to provide additional evidence to support their claims.

The court's final orders were that the defendants' claims be dismissed, with no orders as to costs. The court also granted the defendants an adjournment to allow them to provide additional evidence to support their claims. The adjournment was to be limited to a specific timeframe, and the court made it clear that it would not entertain further adjournments unless there were exceptional circumstances.

Orders