| 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…
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- AGLC
- Damou v Damou [2025] VSC 14
- Case
- [2025] VSC 14
- Decision Date
CaseChat Overview and Summary
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.
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