Depas Pty Ltd v Dimitriou - [2006] VSC 281

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE PRACTICE COURT

No. 7222 of 2006

DEPAS PTY LTD (ACN 007 367 786)	Plaintiff
v
CHRISTOPHER DIMITRIOU	First Defendant
and
PACD PTY LTD (ACN 079 129 114)	Second Defendant
and
THE REGISTRAR OF TITLES	Third Defendant

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2006
DATE OF JUDGMENT:	2 August 2006
CASE MAY BE CITED AS:	Depas Pty Ltd v Dimitriou and Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 281

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CAVEAT – Application to remove – Section 90(3) of Transfer of Land Act 1958 – Caveat defective in form – Power to amend – Extent of power – Failure to prove a caveatable interest.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Carr	Rigby Cooke
For the First and Second	Mr P. Cawthorn	Noble Lawyers
Defendants

TABLE OF CONTENTS

Parties ...................................................................................................................................................2
The dispute..........................................................................................................................................2
Estate or Interest .................................................................................................................................4
The application...................................................................................................................................6
HIS HONOUR:

In this proceeding instituted by an originating motion, the plaintiff seeks an order that a caveat lodged in respect to a parcel of land be removed pursuant to s.90(3) of the Transfer of Land Act 1958 (“the Act”).
Parties
The plaintiff, Depas Pty Ltd (“Depas”), is a family company operated by Anthony De Pasquale, who is a business development manager. Depas is the registered proprietor of land situated at 4 Judith Street, Carnegie in the State of Victoria, more particularly described in Certificate of Title Volume 7203 Folio 423 (“the property”). Depas developed the land by building two townhouses on it, and each has been sold pursuant to contracts of sale, with settlement now due.
The first defendant, Mr Christopher Dimitriou (“Mr Dimitriou”), is a builder. He is the sole director of the second defendant, PACD Pty Ltd (“PACD”).
The third defendant is the Registrar of Titles. In accordance with usual practice, the Registrar has forwarded a letter to the Court stating that she does not intend to appear in the proceeding and will abide the result.
The dispute
The basic facts which led to the dispute can be briefly summarised. Mr Dimitriou was engaged as a builder by Mr De Pasquale’s wife to build a home in Glen Iris. During the course of the construction, Mr De Pasquale had discussions with Mr Dimitriou and informed him that he was on the look-out for properties to purchase and develop. He also told him he was interested in finding a builder to carry out the building work. In January 2005, whilst Mr De Pasquale was on holiday in Queensland, he received a telephone call from Mr Dimitriou, who stated he had found a property at 4 Judith Street, Carnegie. He told Mr De Pasquale that the purchase price was $410,000. They agreed that the property would be purchased in Mr Dimitriou’s name and that he was to pay the deposit. The amount of the deposit was to be later repaid to Mr Dimitriou. Mr Dimitriou was to purchase in his name with a nomination clause,…

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 Depas Pty Ltd v Dimitriou

Details

AGLC: Depas Pty Ltd v Dimitriou [2006] VSC 281
Case: [2006] VSC 281
Decision Date: 2 August 2006

CaseChat Overview and Summary

Depas Pty Ltd, the registered proprietor of a property, sought the removal of a caveat lodged by Dimitriou, a third party, over the land. The application was brought before the Supreme Court of Victoria. The central issue before the Court was whether the caveat, which was lodged by Dimitriou, was defective in form and, if so, whether the Court had the power to amend it and, if amended, whether Dimitriou could prove a caveatable interest to justify the caveat's existence.

The Court examined the provisions of section 90(3) of the Transfer of Land Act 1958, which grants the Court the authority to amend a caveat if it is defective in form. The Court held that the caveat in question was indeed defective as it failed to specify the nature of the caveator's interest. Despite the defect, the Court found that it had the power to amend the caveat to reflect the caveator's interest, provided that such amendment was reasonable and did not alter the fundamental nature of the caveat. However, when the Court attempted to amend the caveat to include a description of Dimitriou's interest, it became apparent that Dimitriou could not substantiate a caveatable interest. Consequently, the Court concluded that the caveat was unjustified and ordered its removal.

In light of the above, the Court granted Depas Pty Ltd's application to remove the caveat, thereby reinstating the land's marketable title. The Court emphasised that while it had the discretion to amend a defective caveat, it was imperative that the caveator could demonstrate a legitimate interest to warrant the caveat's continuation. As Dimitriou failed to do so, the Court had no choice but to remove the caveat and allow the land to be dealt with freely by the registered proprietor.

Orders