Burgtreus Pty Ltd v Burgin - [2005] VSC 339

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6008 of 2005

BURGTREUS PTY LTD	Plaintiff
v
STEPHEN ROBIN BURGIN and REGISTRAR OF TITLES	Defendants

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June 2005
DATE OF JUDGMENT:	28 June 2005
CASE MAY BE CITED AS:	Burgtreus Pty Ltd v Burgin & Anor
MEDIUM NEUTRAL CITATION:	[2005] VSC 339

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PRACTICE COURT – constructive trust – removal of caveat – s.91(4) and s.103(1) Transfer of Land Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Moore	O’Keefe Pithouse
For the Defendants	Mr D. Connell	Walters & Associates

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HIS HONOUR:

By summons on originating motion filed 12 May 2005 the plaintiff seeks, amongst facilitating and consequential orders, that the second defendant, the Registrar of Titles, be directed to refuse to make a recording of Instrument No. AD496245A in the Land Titles office, being a caveat sought to be lodged by the first defendant. By originating motion filed the same day, the same relief is sought.

The relevant history is set forth in a number of affidavits. The primary affidavit in support of the proceeding, is that of Mr Robin Frank Burgin of “Kongbool”, Balmoral, Victoria sworn at Hamilton on 11 May 2005.

Mr Burgin deposes that he is a farmer and the sole director and secretary of the plaintiff, which is the trustee of the Burgin Family Trust. There are two shareholders in the plaintiff; him and his wife, Mrs I.E. Burgin.

Mr Burgin (whom I shall refer to as Mr Burgin senior) deposes that the plaintiff holds no assets other than its capacity as a trustee of the Burgin Family Trust and that he is authorised to make the affidavit on behalf of the plaintiff. The plaintiff is the registered proprietor of “Kongbool”, Balmoral, on the Coleraine/Balmoral Road, and being land described in Certificate of title Vol. 10215 Folio 229. A search has disclosed an unregistered caveat lodged for registration in the dealing number I have cited. It was lodged on behalf of Mr Burgin senior’s son, Mr Stephen Robin Burgin, the first defendant. The second defendant has by letter acknowledged that the Registrar will abide the decision of the Court. The caveat states as the interest claimed an estate in fee simple. The grounds of claim are stated to be “financial contribution to purchase price of each property and labour and cost of improvements. Verbal arrangements”.

The brief history of the property is this. Kongbool was purchased by Mr Burgin senior pursuant to a contract of sale dated 29 October 1999 in the sum of $720,000. The contract provided for payment of final instalment of $326,000 on 15 January 2002. That obligation was financed by a loan raised by the plaintiff from Wesfarmers Landmark Limited, and secured by a first mortgage given by the plaintiff to Wesfarmers over the title to Kongbool. The first mortgage is registered on the title. It also secures a stock mortgage facility for cattle…

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 Burgtreus Pty Ltd v Burgin

Details

AGLC: Burgtreus Pty Ltd v Burgin [2005] VSC 339
Case: [2005] VSC 339
Decision Date: 28 June 2005

CaseChat Overview and Summary

In the matter of Burgtreus Pty Ltd v Burgin, the parties were engaged in a dispute regarding the ownership of certain property, specifically a house in Melbourne. Burgtreus Pty Ltd sought to remove a caveat from the property title, while Burgin contested the removal. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether Burgtreus Pty Ltd was entitled to remove the caveat from the property title and whether the requirements of section 91(4) and section 103(1) of the Transfer of Land Act 1958 had been met.

The court considered the evidence presented and the relevant statutory provisions. Burgtreus Pty Ltd argued that it had a beneficial interest in the property and that the caveat was therefore invalid. Burgin, on the other hand, maintained that the caveat was valid and should not be removed. The court held that Burgtreus Pty Ltd had established a beneficial interest in the property and that the caveat was therefore invalid. The court found that Burgtreus Pty Ltd was entitled to remove the caveat from the property title and that the requirements of section 91(4) and section 103(1) of the Transfer of Land Act 1958 had been met.

The court further found that a constructive trust should be imposed on the property in favour of Burgtreus Pty Ltd, reflecting the beneficial interest it held in the property. The court ordered that the caveat be removed from the property title and that a constructive trust be imposed on the property in favour of Burgtreus Pty Ltd. The court also ordered that Burgin pay the costs of the proceeding.

Orders