Legal Research
Cases
Djordjevich v Peter Djeka Pty Ltd

Djordjevich v Peter Djeka Pty Ltd

Link copied

Case Copied 5 December 2022 75 min read

Contents

On this page

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

---

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

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Djordjevich v Peter Djeka Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSC 732
Decision Date: 5 December 2022

CaseChat Overview and Summary

In Djordjevich v Peter Djeka Pty Ltd, the matter before the court involved a dispute regarding the co-ownership of land and the sale of such land. The applicants, Djordjevich, sought to have the orders of the Victorian Civil and Administrative Tribunal (VCAT) reviewed, as they pertained to the sale of land that was co-owned with the respondents, Peter Djeka Pty Ltd. The applicants argued that the Principal Registrar lacked the authority to execute the tasks ordered by VCAT to sell the land, and that the Tribunal had erred in ordering the sale without first considering the applicants' claim for a declaration regarding their respective rights and interests in the land.

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