| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03091
BETWEEN:
| DAVID DJORDJEVICH | Plaintiff |
| v | |
| PETER DJEKA PTY LTD (ACN 057 188 235) | Defendant |
| - and - | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 October 2022 |
DATE OF JUDGMENT: | 5 December 2022 |
CASE MAY BE CITED AS: | Djordjevich v Peter Djeka Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 732 |
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CO-OWNERSHIP OF LAND – Sale of co-owned land – Construction of ss 228(1) and 232 Property Law Act 1958 (Vic) – Powers of the Principal Registrar, Victorian Civil and Administrative Tribunal – Whether Principal Registrar able to perform tasks ordered by Tribunal to sell land – Whether leave to appeal should be granted – Whether Tribunal erred in ordering sale of land – Property Law Act 1958 (Vic) ss 28A, 225, 228, 232, 233, 234, 234B; Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 8(3), 32, 64, 130, 148, 157A, 157B; Limitation of Actions Act 1958 (Vic) s 5(1); Court Services Victoria Act 2014 (Vic) s 33; Victorian Civil and Administrative Tribunal Rules 2018 (Vic) r 10.01.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Levine | Maciel Pizzorno & Co |
| For the Defendant | Mr B Guzzo | Aniston Lawyers |
| For the Intervener | Mr L Brown with Ms E Smith | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
David Djordjevich seeks leave to appeal, and if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) in proceeding BP5/2018 (‘VCAT proceeding’). The proceeding in this Court is brought under s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’).
Mr Djordjevich and Peter Djeka Pty Ltd (ACN 057 188 235) (‘Djeka’) are registered as the proprietors of an estate in fee simple of vacant land at 44A to 44F (both inclusive) Patterson Avenue, Keilor, being the land comprised in Certificates of Title Volume 10762 Folios 614, 615, 616, 617, 623, 624, 625, 626, 627, 628, 631 and 632 (‘the land’).
The VCAT proceeding is a claim by Djeka against Mr Djordjevich for an order for the sale of the land pursuant to the provisions of Pt IV Div 2 of the Property Law Act 1958 (Vic) (‘Act’), and the equal division of the proceeds. Mr Djordjevich opposed an order for sale and claimed that Djeka became a co-owner of the land by fraud.
On 23 February 2022, the Attorney-General for the State of Victoria was joined to the proceeding in this Court as an intervener.
The hearing
The VCAT proceeding was heard on 9-11 June 2021. There were three witnesses – Mr Krickic, the director of Djeka, Mr Djordjevich and Mr Poljakovic, a builder. They were all cross-examined. The Tribunal also had the benefit of written and oral submissions, and reserved its decision. The Tribunal made orders and published its reasons for decision on 28 July 2021.[1]
[1]Peter…
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- Case
- [2022] VSC 732
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Principal Registrar had the authority to carry out the tasks ordered by VCAT, and if the Tribunal had erred in ordering the sale of the land without considering the applicants' claim for a declaration. Furthermore, the court had to determine if leave to appeal should be granted, considering the applicants' argument that the Tribunal's decision was unlawful, unjust, or unreasonable.
In addressing these issues, the court first noted that the Principal Registrar's powers are limited and do not extend to performing tasks ordered by VCAT to sell land. Consequently, the orders made by VCAT were invalid as they required the Principal Registrar to undertake actions outside of their legal authority. The court further held that the Tribunal had erred in ordering the sale of the land without first considering the applicants' claim for a declaration, as this was a matter that should have been determined before proceeding with the sale. The court concluded that the Tribunal's failure to consider this claim amounted to an error of law. Additionally, the court found that leave to appeal should be granted due to the significant legal issues involved and the potential impact on the applicants' rights.
The court ultimately quashed the orders made by VCAT and remitted the matter back to VCAT for reconsideration in light of the court's findings. The court ordered that VCAT must first consider the applicants' claim for a declaration regarding their respective rights and interests in the land before proceeding with any sale.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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