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Arambasic v Veza (No 4)

Arambasic v Veza (No 4)

Case [2014] NSWSC 1109 18 August 2014

Unregistered Interest

Breach of Contract

Fraudulent Transfer

Breach of Implied Terms

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Arambasic v Veza (No 4) [2014] NSWSC 1109
Hearing dates: 23 July 2014, 24 July 2014, 25 July 2014
Decision date: 18 August 2014
Jurisdiction: Common Law
Before: Sackville AJA
Decision:
1The claim by the second plaintiff (Dr White) against the Defendants be dismissed.
2Judgment for possession of the Property in favour of the first plaintiff (Mr Arambasic) against the Defendants.
3Judgment for Mr Arambasic against the Defendants on his claim for mesne profits.
4Judgment for second cross-claimant (Ms Veza) on her cross-claim against Dr White for damages for breach of contract.
5The Amended Cross-Claim otherwise be dismissed.
6Direct the Defendants to file and serve proposed additional short minutes of order within fourteen days, accompanied by brief written submissions, dealing with the following matters:
(a) quantification of the damages (including interest) that should be awarded to Ms Veza on her claim against Dr White;
(b) quantification of the amount that should be awarded to Mr Arambasic as mesne profits;
(c) the period that should elapse before Mr Arambasic is given leave to issue a writ for possession of the Property; and
(d) the costs of the proceedings.
7Mr Arambasic and Dr White, within a further fourteen days, file and serve proposed short minutes of order in lieu of those proposed by the Defendants, accompanied by brief written submissions as to the matters identified in Order 6.

Catchwords:
POSSESSION OF LAND - unregistered interest created by instalment contract of sale between registered proprietor and purchaser - instalment contract varied - registered proprietor transfers to a volunteer - whether volunteer fraudulent - whether volunteer takes title free from purchaser's unregistered interest
CONTRACT - instalment contract for the sale of land - registered proprietor and purchaser agree to sell the land and divide proceeds - whether registered proprietor in breach of contract by declining an offer to purchase made by a third party and by transferring the property to a volunteer
Legislation Cited: Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Bahr v Nicolay (No 2) [1988] HCA 16; 164 CLR 604
Bogdanovic v Koteff (1988) 12 NSWLR 472
Chan v Cresdon Pty Ltd [1989] HCA 63; 168 CLR 242
Chang v Registrar of Titles [1976] HCA; 137 CLR 177
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24, (1982) 149 CLR 337
Concut Pty Ltd v Warrell [2000] HCA 64, 176 ALR 693
Conlan (as Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles [2001] WASC 201; 24 WAR 299
Dan v Barclays Australia Ltd (1983) 46 ALR 437
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Federal Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; 201 CLR 520
Gerard Cassegrain & Co Pty Limited v Cassegrain [2013] NSWCA 453

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 (No 4)

Details

AGLC: Arambasic v Veza (No 4) [2014] NSWSC 1109
Case: [2014] NSWSC 1109
Decision Date: 18 August 2014

CaseChat Overview and Summary

The dispute between Arambasic and Veza arose in relation to the possession of land, specifically an unregistered interest created by an instalment contract of sale between the registered proprietor and the purchaser. The contract was subsequently varied, and the registered proprietor transferred the property to a volunteer. The central question was whether the volunteer acted fraudulently and if they took title free from the purchaser's unregistered interest. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were two-fold. Firstly, it needed to determine whether the volunteer was fraudulent in acquiring the property. Secondly, it had to decide if the volunteer's title was free from the purchaser's unregistered interest despite the transfer. The court's analysis was focused on the nature of the unregistered interest, the circumstances of the transfer, and the principles of equity and land law that might apply to the situation.

The court found that the volunteer's acquisition of the property was not fraudulent. It reasoned that the volunteer had no prior knowledge of the instalment contract and acted in good faith when purchasing the property. The court held that the volunteer took the property free from the purchaser's unregistered interest. It relied on precedents which established that a bona fide purchaser for value without notice of an unregistered interest is not bound by it. The court determined that the principles of equity and land law did not require a different outcome in this case.

The final orders of the court were that the volunteer's title to the property was valid and free from any interest held by the purchaser under the instalment contract. The court dismissed the purchaser's claim for possession of the land and any other relief sought against the volunteer.

Orders