Brett Grimley Sales Pty Ltd v Petrovic - [2015] VSC 716

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2014 03289
BRETT GRIMLEY SALES PTY LTD (ACN 006 222 046)	Plaintiff
v
GORAN PETROVIC	Defendant
DRAGAN PETROVIC	Claimant
-and-
S CI 2015 06143
GORAN PETROVIC	Plaintiff
v
DRAGAN PETROVIC	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2015
DATE OF JUDGMENT:	9 December 2015
CASE MAY BE CITED AS:	Brett Grimley Sales Pty Ltd v Petrovic
MEDIUM NEUTRAL CITATION:	[2015] VSC 716

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CATCHWORDS

CAVEAT – Removal of caveat – Claim for equitable interest by caveator – Undertakings given by legal owner to court to sell property – Undertakings largely complied with by legal owner – Serious issue to be tried – Balance of convenience favours removal – Caveat removed.

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APPEARANCES:	Counsel	Solicitors
S CI 2014 03289
For the Plaintiff	Mr I Upjohn QC and Mr B Mason of Counsel	Lewenberg & Lewenberg
For the Defendant	Mr A R Kirby of Counsel	Nicholas O’Donohue & Co
For the Claimant	Mr R A Edmunds of Counsel	Messrs. Tasiopoulos Lambros & Co.
S CI 2015 06143
For the Plaintiff	Mr A R Kirby of Counsel	Nicholas O’Donohue & Co
For the First Defendant	Mr R A Edmunds of Counsel	Messrs. Tasiopoulos Lambros & Co.
For the Second Defendant	No appearance

HIS HONOUR:[1]

[1]This is an edited version of an oral judgment given in the Practice Court on 9 December 2015.

There are two applications before the Court concerning the property at 16/693 Malvern Road, Toorak VIC 3124 (‘the Toorak property’), being the land described in Certificate of Title Volume 8408 Folio 543. By an originating motion in proceeding no. S CI 2015 06143 and summons on originating motion, Goran Petrovic (‘Goran’) seeks an order for the removal of caveat no. AL321577J from the Toorak property under s 90(3) Transfer of Land Act 1958 (Vic). He also seeks an order for possession of the Toorak property to effect the transfer of vacant possession to the purchaser. By a summons issued in proceeding no. S CI 2014 03289 (‘the 2014 proceeding’), Goran’s father Dragan Petrovic (‘Dragan’) seeks a declaration from the court that Goran holds his legal interest in the Toorak property on trust for Dragan and other orders.

On 12 August 2015, Goran undertook to the Court constituted by the Chief Justice to conduct on or before 4:00pm on 12 September 2015 a public auction of the Toorak property at a minimum reserve price of $505,000.00, and to take all reasonable steps to prosecute the auction and complete any sale. Goran also undertook to the Court to pay from the proceeds of sale in the following priority:

(a) the costs of and incidental to the sale;

(b) the amount required by the mortgagee to discharge the mortgage registered in dealing no. AF991677Q;

(c) the judgment debt together with interest and costs pursuant to the order of Costs Registrar Deviny made on 25 September…

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 Brett Grimley Sales Pty Ltd v Petrovic

Details

AGLC: Brett Grimley Sales Pty Ltd v Petrovic [2015] VSC 716
Case: [2015] VSC 716
Decision Date: 9 December 2015

CaseChat Overview and Summary

The case of Brett Grimley Sales Pty Ltd v Petrovic involved a dispute over the removal of a caveat from property owned by the first respondent. The applicant sought to have the caveat removed to proceed with the sale of the property, while the caveator, the second respondent, claimed an equitable interest in the property. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the caveat should be removed given the undertakings provided by the legal owner to sell the property and the balance of convenience. The court had to consider whether the caveator had a serious issue to be tried and if the balance of convenience favoured the removal of the caveat. The court also needed to assess the extent to which the legal owner had complied with the undertakings to sell the property.

The court found that the caveator had established a serious issue to be tried concerning their claim for an equitable interest in the property. However, the court determined that the balance of convenience favoured the removal of the caveat. This decision was influenced by the fact that the legal owner had largely complied with the undertakings to sell the property. Consequently, the court ordered the caveat to be removed, allowing the sale to proceed.

As a result of the court's decision, the caveat was removed, enabling the applicant to proceed with the sale of the property. The court's ruling highlighted the importance of balancing the interests of the parties involved and the significance of compliance with court undertakings.

Orders