Fazal v Fazal - [2022] VSC 165

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S ECI 2022 00493

ROONA FAZAL	Plaintiff
v
HAMAD FAZAL	Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2022
DATE OF RULING:	4 April 2022
CASE MAY BE CITED AS:	Fazal v Fazal
MEDIUM NEUTRAL CITATION:	[2022] VSC 165

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REAL PROPERTY – Caveat - Transfer of Land Act 1958 s 90(3) – Application for removal of caveat – Whether filing of summons satisfies requirement to ‘bring proceedings’ – Where plaintiff lodged a second caveat in the same terms as earlier caveat – Where there was no material change in circumstances – Whether re-litigation of caveat in identical terms is abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented litigant
For the Defendant	Ms S Khan

HIS HONOUR:

A. Introduction

The plaintiff, Ms Fazal, is the mother of the defendant, Mr Fazal. Mr Fazal is the registered proprietor of a property in Doveton (‘the property’). The property is mortgaged, and the loan is in default. With the agreement of the lender, and after it took steps to enforce the mortgage, Mr Fazal has signed a contract of sale for the property for $865,000. Ms Fazal has lodged a caveat over the property. On Friday 1 April 2022, Mr Fazal applied to me for an order that the caveat be removed so that he can settle the sale of the property. Ms Fazal opposed that order being made. After hearing argument, I made the orders that Mr Fazal sought, and said that I would give reasons later. These are those reasons.

B. The background to the application

The background to the application is as follows:

(a) The property was purchased in August 2018 for $650,000 with a loan from the bank guaranteed by Ms Fazal. Work started to construct some townhouses on the property.

(b) On 22 November 2021, Mr Fazal, he says, entered into a contract for the sale of the property for $865,000, with a 10% deposit that was paid, and with settlement due on 21 January 2022.

(c) On 17 January 2022, Ms Fazal lodged a caveat over the property. She produced a 2018 declaration of trust that she says was signed by Mr Fazal. Mr Fazal denies that he signed that document, and asserted that he is the beneficial owner.

(d) By an originating motion and summons filed 9 February 2022, Mr Fazal applied in the Practice Court under s 90(3) of the Transfer of Land Act 1958 for an order that the caveat be removed. That application was opposed.

(e) The application was heard by a judge of this Court, Forbes J, on 17 February 2022. Ms Fazal, who has legal training, was represented by solicitors at the time. On 17 February 2022, this Court ordered that the caveat be removed.

(f) On 21 February 2022, Ms Fazal commenced this proceeding by filing a writ endorsed with a statement of claim, in which she…

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 Fazal v Fazal

Details

AGLC: Fazal v Fazal [2022] VSC 165
Case: [2022] VSC 165
Decision Date: 4 April 2022

CaseChat Overview and Summary

The case of Fazal v Fazal involved a dispute between the parties over a property, with the plaintiff seeking the removal of a caveat entered by the defendant. The matter was heard by the Supreme Court of Victoria. The defendant had entered a caveat on the property, which the plaintiff sought to have removed. The plaintiff argued that the defendant had no reasonable cause for the caveat and that there had been no material change in circumstances since the initial caveat.

The court was required to determine whether the filing of a summons to remove a caveat satisfied the requirement to 'bring proceedings' under section 90(3) of the Transfer of Land Act 1958. Additionally, the court had to decide if the plaintiff's filing of a second caveat in the same terms as the earlier caveat, in the absence of any material change in circumstances, amounted to an abuse of process.

In its judgment, the court found that the filing of a summons to remove a caveat did indeed satisfy the requirement to 'bring proceedings'. However, the court held that the re-litigation of the caveat in identical terms, without any material change in circumstances, was an abuse of process. The court considered that the plaintiff was attempting to relitigate the same issue, which had already been determined, without any new evidence or change in circumstances. The court found that this was an abuse of the court's process.

As a result, the court dismissed the plaintiff's application for the removal of the defendant's caveat. The court also awarded costs to the defendant, reflecting its view that the plaintiff's actions amounted to an abuse of process.

Orders