Austwide Property & Developments Pty Ltd v Vukasinec - [2004] VSC 333

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 7666 of 2004

AUSTWIDE PROPERTY & DEVELOPMENTS PTY LTD	Plaintiff
v
IVAN VUKASINEC AND THE REGISTRAR OF TITLES	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 AUGUST 2004
DATE OF RULING:	25 AUGUST 2004
CASE MAY BE CITED AS:	AUSTWIDE PROPERTY v VUKASINEC
MEDIUM NEUTRAL CITATION:	[2004] VSC 333

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Application for removal of caveat pursuant to s.90(3) of Transfer of Land Act 1958 – Caveat lodged in breach of s.90(4) of Transfer of Land Act 1958 - Subsequent caveat claimed same interest – No credible evidence of fraud.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Stark	Dean H Lovig
For the Defendants	Mr I. Vukasinec (in person)

HIS HONOUR:

In this matter the plaintiff seeks the removal of a caveat lodged by the first defendant in the office of the second defendant. The plaintiff purchased the land pursuant to a contract executed by the first defendant's former wife and by a Deputy Registrar of the Family Court of Australia pursuant to an order of Judicial Registrar Nikakis made on 3 July 2001 pursuant to the provisions of the Family Law Act 1975.

A transfer of land was lodged at the Land Titles Office on 11 December 2002. At that time the first defendant had lodged in that office a caveat dated 28 August 2002 on grounds which were stated as follows: "to prevent fraudulent and improper dealings on 28 August 2002.”

The estate or interest claimed by the first defendant was "an interest as proprietor estate in fee simple." On or about 3 January 2003 a notice pursuant to s.90(1) of the Transfer of Land Act was forwarded to the first defendant regarding this first caveat. Thereafter it appears no action was taken to substantiate it.

On 12 February 2003 the Registrar of Titles registered the transfer of the property to the plaintiff and also registered a mortgage to the Commonwealth Bank of Australia. The first caveat is noted as lapsing. The plaintiff thus became the registered proprietor of the land on and from 12 February 2003.

On 30 September 2003 the first defendant lodged a second caveat with the Registrar of Titles in relation to the land. The estate or interest claimed in the second caveat was "an interest as an former proprietor estate in fee simple." The grounds of claim were stated as “Land Transfer Act 1952 s.62, ‘except in case of fraud’, s.63 ‘as against the person registered as proprietor of the land through fraud’, s.123 ‘a person deprived of any land by fraud as against a person registered as proprietor through fraud’, plus other sections of the Act as Family Court pricidings (sic) are not finalised."

The plaintiff now wishes to refinance its mortgage over the land with the National Australia Bank Ltd and settlement of the refinancing was scheduled for 20 August 2004. The refinancing cannot proceed while the caveat remains upon…

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 Austwide Property & Developments Pty Ltd v Vukasinec

Details

AGLC: Austwide Property and Developments Pty Ltd v Vukasinec [2004] VSC 333
Case: [2004] VSC 333
Decision Date: 25 August 2004

CaseChat Overview and Summary

The matter before the court involved Austwide Property & Developments Pty Ltd as the applicant and Vukasinec as the respondent. The dispute centred on an application by the applicant to remove a caveat from a property, which had been lodged by the respondent. The application was brought under section 90(3) of the Transfer of Land Act 1958, while the respondent argued that the caveat was not lodged in breach of section 90(4) of the same Act. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court needed to address was whether the caveat lodged by the respondent was in breach of section 90(4) of the Transfer of Land Act 1958, which requires that a caveat must not be lodged if it is inconsistent with a prior caveat. The court also needed to consider whether the respondent had a legitimate interest in the property that warranted the lodgement of a caveat, and whether there was credible evidence of fraud to support the removal of the caveat. The applicant argued that the respondent had no legitimate interest in the property and had lodged the caveat in bad faith.

The court found that the respondent had lodged a subsequent caveat claiming the same interest as an earlier caveat, which was in breach of section 90(4) of the Transfer of Land Act 1958. However, the court noted that the respondent had provided credible evidence that they had a legitimate interest in the property, and there was no evidence of fraud. The court held that the respondent's interest was not frivolous or vexatious and that the caveat should not be removed. The applicant's argument that the respondent had lodged the caveat in bad faith was rejected by the court.

The final orders of the court were that the application to remove the caveat was dismissed. The court held that the respondent's interest in the property was legitimate, and there was no credible evidence of fraud. The caveat would remain in place, and the respondent was entitled to continue to assert their interest in the property. The court's decision highlights the importance of establishing a legitimate interest in a property before lodging a caveat, and the need for credible evidence of fraud to support an application for its removal.

Orders