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:

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.

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.

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…

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 Campbell v Pastras

Details

AGLC: Campbell v Pastras [2015] VSC 162
Case: [2015] VSC 162
Decision Date: 23 APRIL 2015

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Campbell v Pastras involved a dispute over property ownership between the two parties. The conflict arose when Pastras lodged a caveat over Campbell's property without any genuine intention to pursue a claim, leading to Campbell's application for an injunction to prevent Pastras from maintaining the caveat. The court was tasked with determining whether Pastras had a bona fide claim, and if not, whether an injunction should be granted to remove the caveat. Additionally, the court had to decide on the issue of indemnity costs.

The legal issues before the court included the validity of the caveat lodged by Pastras, whether it was done with a bona fide intention, and whether an injunction should be granted to remove the caveat. The court also considered whether Pastras should bear the costs of the proceedings due to the lack of a bona fide claim. The key question was whether the caveat was validly lodged and whether it was done with the intention to pursue a claim, as this would determine the outcome of the case.

The court found that Pastras's caveat was not supported by a bona fide claim, as it was evident that Pastras had no intention to pursue a legal action. Consequently, the court ruled that the caveat should be removed and granted the injunction in favour of Campbell. Furthermore, the court held that Pastras should bear the costs of the proceedings due to the lack of a bona fide claim, awarding indemnity costs to Campbell. This decision reinforced the importance of lodging caveats with genuine intentions and the consequences of doing so without proper grounds.

The final orders of the court included the removal of the caveat lodged by Pastras over Campbell's property, the granting of an injunction to prevent Pastras from maintaining the caveat, and the awarding of indemnity costs to Campbell. This case serves as a reminder for property owners and potential claimants to ensure that any caveats lodged are based on bona fide claims, as the consequences of doing otherwise can be significant.

Orders