Bajc v Bajc - [2007] VSC 121

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No 5683 of 2007

ALEXANDER FRANK BAJC	Plaintiff
v
FRANK BAJC and ANOR.	Defendants

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2007
DATE OF JUDGMENT:	20 April 2007
CASE MAY BE CITED AS:	Bajc v Bajc
MEDIUM NEUTRAL CITATION:	[2007] VSC 121

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PROPERTY – Application for the removal of a caveat – Loan agreement – Constructive trust claimed – Action in contract statute barred – Balance of convenience in favour of applicant – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T R Messer	Ainsworths
For the Defendants	Mr F H Deans	Deano’s Legal

HER HONOUR:

The court has before it an application under s 90(3) of the Transfer of Land Act 1958 for the removal of a caveat. The application relates to land known as Lot 1, Duggan Road, Sheoaks, being the whole of the land more particularly described in Certificate of Title Volume 9703 Folio 866 ("the property").

The history of the transaction relating to the land is described in the affidavit of the plaintiff, Alexander Frank Bajc, sworn 13 April 2007. I will summarise that affidavit. In 1980, the older brother of the plaintiff was married and the first defendant, who is the father of the plaintiff, made a gift of the sum of $20,000 to the brother. Subsequently, in 1987, the first defendant entered into a contract for the purchase of the property. The purchase price was $33,000. The plaintiff deposes that he contributed $13,000 towards the purchase price and the first defendant contributed the balance, namely, $20,000. The plaintiff deposes that the first defendant told him at the time, that is, in 1987, that the $20,000 was to represent the first defendant's contribution to the purchase and intended as a gift for the plaintiff. He further deposes that, owing to concerns relating to the brother, the first defendant insisted on being registered as the joint owner of the property. He also insisted upon the signing of a loan agreement. Accordingly, on 17 June 1987, the plaintiff and the first defendant signed a formal loan agreement which is exhibited in the affidavit of the plaintiff. The plaintiff further deposes that it was the mutual intention of he and the first defendant that there would not be a requirement to make any payments under the loan and hence none was made. Further, the loan agreement provides that there is a principal sum to be repaid on 17 June 1997. There is no dispute between the parties that the money remained unpaid to this date.

Subsequently it transpired that the plaintiff and his wife wished to build a residence on the property. This was said to have occurred in 1993. At around that time, indeed on 22 December 1993, the first defendant transferred his interest in the property to the plaintiff. The consideration recited in the transfer was "desire to make a gift". Subsequently the plaintiff did not…

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 Bajc v Bajc

Details

AGLC: Bajc v Bajc [2007] VSC 121
Case: [2007] VSC 121
Decision Date: 20 April 2007

CaseChat Overview and Summary

Bajc v Bajc was a case in the Supreme Court of Victoria where the husband sought to remove a caveat that the wife had placed on their jointly owned property. The husband, the applicant, argued that the wife's caveat was invalid and should be removed, while the wife, the respondent, maintained that the caveat was valid and should remain in place. The dispute arose from a loan agreement between the parties, with the wife claiming that the husband had breached the agreement and that a constructive trust should be imposed on the property.

The court had to determine several legal issues, including whether the wife's caveat was valid, whether the husband's claim for the removal of the caveat was statute-barred, and whether the balance of convenience favoured the applicant. The court found that the wife's caveat was invalid as it was based on a mistaken belief that the husband had breached the loan agreement, and that the husband's claim was not statute-barred as it was a claim in equity rather than in contract. The court also found that the balance of convenience favoured the applicant, as the removal of the caveat would allow the property to be sold and the proceeds distributed according to the terms of the loan agreement.

In light of these findings, the court granted the husband's application for the removal of the caveat. The court ordered that the caveat be removed and that the property be sold, with the proceeds distributed according to the terms of the loan agreement. The court also ordered that the wife pay the husband's costs of the application.

Orders