Campbell v Pastras

[2015] VSC 162

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT
PRACTICE COURT

S CI 2015 01671

DAVID BRUCE CAMPBELL	Plaintiff
v
SAVAS PASTRAS	First Defendant
– and -
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 APRIL 2015
DATE OF JUDGMENT:	23 APRIL 2015
CASE MAY BE CITED AS:	CAMPBELL v PASTRAS
MEDIUM NEUTRAL CITATION:	[2015] VSC 162

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PROPERTY LAW – Removal of caveat – Caveat lodged without bona fide claim – Application for injunction to restrain further caveat refused – Indemnity costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Moore	Logie-Smith Lanyon Lawyers
For the Defendants	No appearance

HIS HONOUR:

1. This is an application for the removal of a caveat over a property owned by the plaintiff which was sold at auction on 29 November 2014 to a person not party to this proceeding.  The contract of sale provided for a settlement date of 26 March 2015.

1. The sale of the property has not completed because a caveat (caveat no AL775859N) had been lodged on the title by Mr Savas Pastras, the first defendant (‘the defendant’), on 24 March 2015.  The caveat was lodged by the defendant in person and claimed a freehold estate.  The grounds of claim were stated as ‘Purchasers’ contract with the following parties and date’.  The date of the claim (presumably the date of the alleged contract) was 22 November 2014. 

1. The plaintiff deposes to the fact that he did not enter into any such contract with the defendant, moreover he had never met the defendant or had any dealings with him whatsoever.  Apart from a letter referred to below, there is no evidence that the defendant at any time attempted to contact the plaintiff or his solicitors for the purpose of enforcing his alleged contract of sale of 22 November 2014.  Today, an envelope was received by the plaintiff's solicitors from the defendant containing a letter to this Court and a letter to the plaintiff’s solicitors.  The letter to the Court relevantly stated:

I cant [sic] make it to court today but I enclose copy of the letter iI [sic] got arranged to be delivered to the solicitor in this matter.

Thanks for reading it

The letter to the plaintiff’s solicitors relevantly stated:

My son has sent me the documents you dropped off at my house which I read. Its [sic] right I did ring the conveyancing company whose name was on the contract and did want there [sic] address to go in and take the transfer so I can settle at the end of the month. the [sic] guy told me he doesn’t have an address as he works from a post box so he wanted me to email him the transfer and the contract. I took th [sic] email address but told him I would have to find the contract as I only had part of it. I still haven’t been able to finf [sic] all the pages which I got from the agent before the sale. I need more time at least a week so I can find it… if you wont [sic] give me more time give me my $1000 back and I will walk away… the owner is just a dog and the bullshit he wrote in his affidavit shows it. So either give e [sic] a week and will find all the contract  and all the money or give my $1000

Notably, the defendant confirmed that he has received the application for the removal of the caveat but gave no reason as to why he ‘cant [sic] make it to court today’, or why he could not arrange for a lawyer to attend on his behalf.  Further, the defendant said that he cannot find all the pages of the contract of sale and that he only has part of it.  However, the defendant does not provide a copy of the contract or any part of it. 

1. I have evidence before me that, on a previous occasion, the defendant has lodged a caveat on a different property after the sale of that property by auction on 19 July 2014.  Similarly, in that case, the caveat claimed an interest based on an alleged contract of sale dated 18 June 2014 between the owner of that property and the defendant.  Ultimately, after the defendant failed to appear on an application for removal of the caveat, orders were made by Hargrave J on 13 February 2015 removing that caveat; and after the defendant lodged another caveat claiming a similar interest, Kaye JA on 25 February 2015 made orders removing the subsequent caveat and granted an injunction restraining the defendant from filing any caveats with respect to that property, except with the leave of this Court.

1. I have decided to grant the plaintiff’s application for removal of the caveat in this proceeding. I have, however, decided to refuse the plaintiff’s further application for an injunction in similar terms to that granted by Kaye JA above. That application is refused, because, in my opinion, such an injunction is not necessary by virtue of s 91(4) of the Transfer of Land Act1958 (Vic), which provides that a caveat that has been removed by an order of a court shall not be renewed by or on behalf of the same person in respect of the same interest.

1. I am prepared to order that the defendant pay the plaintiff's costs on an indemnity basis because, on the basis of the above facts, I have inferred that the defendant at no time had any valid basis upon which he could claim a caveat over the property the subject of this application.  It seems that the motivations for the lodging of the caveat may be related to his demand in the letter received today for ‘[his] $1000 back’, which the defendant, on the evidence, has never paid.

1. This Court must plainly discourage persons from lodging caveats and interfering with the normal and proper conveyance of properties in this State when those persons do not have bone fide claims.  In those circumstances, it is my opinion that the plaintiff in this case should be entitled to an order for indemnity costs. 

1. Accordingly, I order as follows:

(1)The plaintiff have leave pursuant to rule 45.05 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) to commence this proceeding by originating motion in Form 5C and the requirements of rr 5.03(1) and 8.02 of the Rules are hereby dispensed with.

(2)The second defendant is ordered pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) to remove caveat no AL775859N from the land in Volume 8309 Folio 861.

(3)The defendant pay the plaintiff's costs of and incidental to this proceeding on an indemnity basis. 

(4)       There is liberty to apply.

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