Fenedisto Pty Ltd v Brott - [2005] VSC 459

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9368 of 2005

FENEDISTO PTY LTD (ACN 080 844 677) - and -	First Plaintiff
ARKADY SHTRAMBRANDT v	Second Plaintiff
ISSAC ALEXANDER BROTT (trading as ISSAC BROTT & CO)	First Defendant
REGISTRAR OF TITLES	Second Defendant
ELENA SHTRAMBRANDT	Third Defendant

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JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2005
DATE OF JUDGMENT:	23 November 2005
CASE MAY BE CITED AS:	Fenedisto Pty Ltd and ors v Brott and ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 459

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Caveats – application for removal – balance of convenience – caveat removed on terms.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Bailey	Hogg & Reid
For the First Defendant	Mr A Sandbach with Mr Scriva	Issac Brott & Co

HIS HONOUR:

An application has been made to remove a caveat lodged by a solicitor, Mr Issac Brott. Mr Brott claims to be entitled to maintain the caveat pursuant to a charging provision contained in a costs agreement dated 7 December 2000 between him as solicitor and Mrs Elena Shtrambrandt as his former client.

These reasons were given orally and are necessarily brief. The matter was argued as a Practice Court matter over a period of two hours. A large volume of affidavit material was filed. I interrupted a substantial trial, which is still proceeding, in order to hear the application. I did so because I had already familiarised myself with the issues for the purposes of hearing the trial of a related proceeding commenced by Mr Brott. That proceeding is referred to hereafter. As appears, the trial of that proceeding did not proceed at that time.

The costs agreement was entered into at a time when Mr Brott represented Mrs Shtrambrandt in Family Law proceedings between her and her husband, Arkady Shtrambrandt, in the Family Court of Australia. Under cl. 9 of the costs agreement, Mrs Shtrambrandt charged her real estate to Mr Brott in the following terms:

"I hereby irrevocably charge all estates or interests in real estate which I, or any company in relation to which I have authority to exercise the power to charge real estate, now have or may hereafter acquire with payment of all moneys that may be or become due to you under this costs agreement" (the "charging clause").

Mr Brott acted as the solicitor for Mrs Shtrambrandt in the Family Court proceedings for a number of years. Earlier this year Mrs Shtrambrandt appointed another solicitor to act for her. A settlement of the longstanding Family Court proceedings followed soon afterwards. As a result, a binding financial agreement was signed by Mr and Mrs Shtrambrandt under the provisions of ss. 90D and 90G of the Family Law Act 1975 (Cth). Consent orders were then made terminating the Family Court proceedings.

Mr Brott says that he is owed a substantial amount of costs by Mrs Shtrambrandt arising out of his retainer in the Family Court proceedings. He estimates…

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.

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Details

Case: [2005] VSC 459
Decision Date: 23 November 2005

CaseChat Overview and Summary

Fenedisto Pty Ltd sought to have a caveat removed from its property, which was lodged by Brott. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute over the removal of the caveat. The primary legal issue was whether the balance of convenience favoured the removal of the caveat, and if so, whether it could be removed on terms.

The court considered the balance of convenience, which involves weighing the relative harm to the parties if the caveat were to remain or be removed. The court found that the balance of convenience favoured the removal of the caveat, as Fenedisto had a stronger interest in the property and the caveat was hindering its ability to sell or mortgage the property. The court also considered the terms on which the caveat could be removed, finding that certain conditions could be imposed to protect Brott’s interests.

The court concluded that the caveat should be removed but not without imposing specific terms to safeguard Brott's position. The terms included a requirement for Fenedisto to provide notice to Brott of any future dealings with the property and to compensate Brott for any costs incurred as a result of the caveat. This decision balanced the interests of both parties and allowed for a fair resolution of the dispute.

Orders