| 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…
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- AGLC
- Fazal v Fazal [2022] VSC 165
- Case
- [2022] VSC 165
- Decision Date
CaseChat Overview and Summary
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
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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