Bernstein v Georgakakis - [2010] VSC 52

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9699 of 2009

THERESA BERNSTEIN	Plaintiff
v
GEORGE GEORGAKAKIS THE REGISTRAR OF TITLES	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2010
DATE OF JUDGMENT:	2 March 2010
CASE MAY BE CITED AS:	Bernstein v Georgakakis & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 52

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REAL PROPERTY – Caveat – Caveatable interest – Whether serious question to be tried – Balance of convenience – Extent of prohibition claimed in caveat – Transfer of Land Act 1958, ss 89(1), 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S.E. Marantelli	Campbell and Shaw
For the First Defendant	Mr M.S. Goldblatt	J. Kotsifas & Associates
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

This proceeding concerns a property at 5 Dunlop Avenue, Kew, and more particularly described in Certificate of Title Volume 8393, Folio 998 (“the property”). Ms Theresa Bernstein, the plaintiff, is (and has been since 21 February 1994) the sole registered proprietor of the property.

For many years, the plaintiff lived at the property with her former husband, Dr Allan Bernstein. During the course of the marriage, the plaintiff and Dr Bernstein had two children. The marriage broke down in late 2005 or early 2006 and subsequently Dr Bernstein left the property.

On 28 September 2007, Mr George Georgakakis, the first defendant, lodged a caveat over the property, claiming an interest as chargee pursuant to an agreement. The grounds of claim are set out in the caveat as:

“Equitable interest pursuant to Agreement to enter into a Contract between the Caveator and Alan (sic) Sam Bernstein dated 8 August 2005.”

In this proceeding, the plaintiff seeks an order pursuant to s 90(3) of the Transfer of Land Act 1958 for the removal of the caveat. The second defendant, the Registrar of Titles, did not participate in the proceeding.[1] For the reasons given below, there will be an order requiring the removal of the caveat.
[1]The Registrar of Titles advised the Court by letter dated 28 October 2009 that this was the course he would adopt.

The principles to be applied

The principles to be applied in an application under s 90(3) of the Transfer of Land Act were conveniently summarised by Dodds-Streeton J in Goldstraw v Goldstraw.[2] Her Honour said:[3]

“Section 90(3) is in the nature of a summary procedure analogous to the determination of interlocutory injunctions. The Court’s power under s 90(3) is discretionary. In that context, it is recognised that the caveator bears the onus of establishing that there is a serious question to be tried that he or she does have the estate or interest in the land claimed. That is, ‘in order to resist successfully the applications for removal of caveats (the caveator’s) arguments must be directed towards the assertion of an interest in the subject land in the light of relevant principles of property and equity law”. Further, if the caveator does establish the…

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 Bernstein v Georgakakis

Details

AGLC: Bernstein v Georgakakis [2010] VSC 52
Case: [2010] VSC 52
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the matter of Bernstein v Georgakakis, the dispute arose in the Supreme Court of Victoria. The plaintiff, Bernstein, sought to establish whether the defendant, Georgakakis, had a caveatable interest in a property. The case hinged on whether the defendant had a serious question to be tried regarding the title of the property and if the balance of convenience lay in favour of maintaining the caveat. The legislative framework included the Transfer of Land Act 1958, specifically sections 89(1) and 90(3), which pertain to the validity of caveats and the criteria for their maintenance.

The primary legal issues the court needed to address were whether Georgakakis had a caveatable interest that warranted the caveat's continuation and if the balance of convenience favoured the defendant. The court had to determine if the defendant's claim raised a serious question to be tried and if there were substantial grounds to justify the continuation of the caveat. The court also needed to assess whether the extent of the prohibition claimed in the caveat was appropriate and whether it was proportionate to the defendant's interest.

The court found that Georgakakis did not possess a caveatable interest sufficient to warrant the maintenance of the caveat. The court concluded that there was no serious question to be tried on the merits of the defendant's claim. Furthermore, the balance of convenience did not favour the defendant, as the prohibition claimed in the caveat was excessive and disproportionate to the interest asserted. Consequently, the court determined that the caveat was invalid and should be removed. The court ordered the caveat to be expunged from the register of titles.

Orders