Glenis v Ikosedikas - [2018] VSC 278

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2018 01788

JERRY GLENIS	First Plaintiff
FAYE GLENIS	Second Plaintiff
v
PETER IKOSEDIKAS	First Defendant
TORUA PTY LTD	Second Defendant
THE REGISTRAR OF TITLES	Third Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2018
DATE OF JUDGMENT:	30 May 2018
CASE MAY BE CITED AS:	Glenis & Anor v Ikosedikas & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 278

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PROPERTY LAW – Application for removal of caveat – Plaintiffs joint registered proprietors of property – First plaintiff owed money to first and second defendants – Written agreement that first and second defendants could lodge caveat if loan not repaid – Defects in caveat – Serious question to be tried – Balance of convenience in favour of plaintiffs – Caveat removed – Transfer of Land Act 1958 (Vic) s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Laidlaw	Stenta Legal
For the Defendant	Mr D Clough	GPZ Legal

HIS HONOUR:

By originating motion the plaintiffs, Mr Jerry Glenis and his wife Ms Faye Glenis, seek removal from the register book caveat registered number AQ896290B (‘the caveat’), lodged on behalf of the first and second defendants, Mr Peter Ikosedikas and Torua Pty Ltd (‘the defendants’). The third defendant, the Registrar of Titles, does not appear in the action, does not seek costs, and will have no objection to the relief sought should the court grant it.

Both plaintiffs have sworn and filed affidavits. I have been provided with submissions on their behalf. The defendants have filed an affidavit and submissions.

The plaintiffs are the registered joint proprietors of the property situated at 18 Riverside Avenue, Balwyn North, Victoria (Certificate of Title Volume 4472 Folio 234). On 5 March 2018, the plaintiffs entered into a contract of sale for the sale of the property. The sale price is $1.995 million.

The property is mortgaged to AFSH Nominees under mortgage number AN926435Q. There is currently over $2 million owing under loans linked to this mortgage. The plaintiffs wish to clear the title, achieve settlement and pay out the bulk of the monies owing under the mortgage. Another property, at Rye, apparently solely registered to the second plaintiff, is also linked to this mortgage.

The caveators under the caveat are Mr Ikosidekas and Torua Pty Ltd. It is undisputed that the first plaintiff, Mr Glenis, owes the caveators a substantial sum of money – the extent of the indebtedness ranges from $450 000 to $690 000.

The impugned caveat was not lodged until 6 April 2018; that is one month after the contract of sale was signed. The caveat includes the following:

2. Grounds of Claim

Part-performed oral agreement with the following parties.

3. Parties

The registered proprietor(s)

4. Estate on interest claimed

Interest as charge

5. Prohibition

Unless we consent in writing

On 14 June 2011, the first defendant deposes that Mr Glenis entered into a loan agreement that…

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 Glenis v Ikosedikas

Details

AGLC: Glenis v Ikosedikas [2018] VSC 278
Case: [2018] VSC 278
Decision Date: 30 May 2018

CaseChat Overview and Summary

Glenis v Ikosedikas involved a dispute over the removal of a caveat from a property jointly registered in the names of the plaintiffs. The first plaintiff had borrowed money from the first and second defendants. They had an agreement that if the loan was not repaid, the defendants could lodge a caveat against the property. The plaintiffs sought the removal of the caveat, arguing it was defective and that the balance of convenience favoured them. The court was required to determine whether the caveat was valid and whether it should be removed under the Transfer of Land Act 1958 (Vic) s 90(3).

The court identified two main issues. First, whether the caveat was valid despite its defects. Second, whether the balance of convenience favoured the plaintiffs, warranting the removal of the caveat. The court examined the agreement between the parties and the nature of the defect in the caveat. It concluded that although the caveat had formal defects, the agreement was clear and the caveat still served its purpose. However, the balance of convenience favoured the plaintiffs due to their need to sell the property.

The court found that, despite the formal defects in the caveat, it was still effective because the agreement between the parties was clear and the purpose of the caveat was not undermined by these defects. The court also found that the balance of convenience favoured the plaintiffs, as they needed to sell the property to settle their debts. Consequently, the caveat was removed, and the court ordered the transfer of the property to proceed.

The final orders of the court were that the caveat was to be removed, and the plaintiffs were entitled to proceed with the sale of the property. The court's decision highlighted the importance of clear agreements and the practical effect of a caveat, even if it has formal defects. The balance of convenience was a critical factor in the decision, reflecting the need for a fair outcome in property disputes.

Orders