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Damou v Damou

Damou v Damou

Case [2025] VSC 14 31 January 2025

Summary Recovery of Land

Adverse Possession

Causation

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2024 05712

BETWEEN:

CHRIS DAMOU	Plaintiff
v
NICK DAMOU	First Defendant
JOHN DAMOU (by his Administrator, State Trustees Pty Ltd (ACN 064 593 148))	Second Defendant

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JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2024
DATE OF RULING:	31 January 2025
CASE MAY BE CITED AS:	Damou v Damou & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 14

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SUMMARY RECOVERY OF LAND – Application under Order 53 – Framlingham Aboriginal Trust v McGuinness and Chatfield [2014] VSC 241 – Chan v Chan [2020] VSCA 40 – Where occupiers remain in occupation without the current registered proprietors’ consent – Relevance of related claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) – Whether related claim creates a proprietary interest – In the matter of the Will of Dorothea Agnes Baird [2019] VSC 59 – Lancaster & Anor v Conway & Anor [2022] VSC 117 – Kempson v Davison [2016] VSC 366 – Alderuccio v Alderuccio [2019] VSC 404 – Milillo v Konnecke (2009) ASTLR 235 – Crisp Order – Summary disposition under Order 53 refused pending further hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N McOmish of counsel	Irvine Lawyers
For the First Defendant	Dr D Stamboulakis of counsel	David Davis & Associates
For the Second Defendant	Mr T Staindl of counsel	Davis Lawyers

HER HONOUR:

The plaintiff, Chris Damou (‘Chris’) in his capacity as the executor of the estate of Panelis Damou (also known as Peter Damou) (‘Deceased’), is the registered proprietor of land situated at 40 Astley Street, Montmorency in the State of Victoria, Certificate of Title Volume 8319 Folio 377 (‘Property’). By way of originating motion filed on 22 October 2024, Chris seeks an order for possession of the Property pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’).

The named defendants are Nick Damou (‘Nick’) and John Damou (‘John’). Nick and John are Chris’ brothers and are the only people occupying the Property. John is a person under a disability, who has lived at the Property for most of his adult life. John was born with Down Syndrome. John also suffers from anxiety disorders and has cataracts. John is on a disability support pension and is in receipt of a substantial package under the National Disability Insurance Scheme (‘NDIS’). Nick lives with John as his full-time carer.

In support of the application, Chris relies on:

(a) the originating motion dated 22 October 2024;

(b) his affidavit sworn 16 October 2024;

(c) his affidavit sworn 16 December 2024;

(d) the affidavit of Laurie Irvine sworn 16 December 2024;

(e) the second affidavit of Laurie Irvine sworn 18 December 2024; and

(f) his Counsel’s written outlines of submission dated 13 November 2024 and 17 December 2024.

Nick appeared at the hearing by…

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 Damou v Damou

Details

AGLC: Damou v Damou [2025] VSC 14
Case: [2025] VSC 14
Decision Date: 31 January 2025

CaseChat Overview and Summary

The case of Damou v Damou involved a dispute over the summary recovery of land, with the application being made under Order 53. The matter was heard in the Supreme Court of Victoria. The dispute arose between the parties, who were both seeking to assert their rights over a particular property. The court was tasked with determining the legal issues surrounding the application for summary recovery of land, the status of the occupiers, and the relevance of a related claim under Part IV of the Administration and Probate Act 1958 (Vic).

The legal issues that the court had to decide included whether the occupiers remained in occupation without the current registered proprietors' consent, and if so, whether this occupation constituted a proprietary interest. The court also had to consider the relevance of a related claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic). This involved examining cases such as Framlingham Aboriginal Trust v McGuinness and Chatfield, Chan v Chan, In the matter of the Will of Dorothea Agnes Baird, Lancaster & Anor v Conway & Anor, Kempson v Davison, Alderuccio v Alderuccio, and Milillo v Konnecke to determine whether the related claim created a proprietary interest. The court needed to balance the interests of the parties and assess the merits of the summary disposition application.

The court's reasoning involved a detailed examination of the relevant case law and statutes. It found that the occupiers' continued presence on the property without consent did not necessarily create a proprietary interest. The court also considered the related claim and determined that it did not confer a proprietary interest that would impede the summary disposition application. Consequently, the court decided that the summary disposition under Order 53 should be refused pending further hearing. This decision was made in light of the need to ensure that all relevant interests were adequately considered and protected.

The final orders of the court were to refuse the summary disposition under Order 53 pending further hearing. This decision allowed for additional evidence and arguments to be presented, ensuring that the court could make a more informed and comprehensive determination regarding the rights of the parties involved in the dispute over the property.

Orders