Glenis v Ikosedikas (No 2) - [2018] VSC 324

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:	15 June 2018
CASE MAY BE CITED AS:	Glenis & Anor v Ikosedikas & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 324

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COSTS – Property law – Application for removal of caveat – Caveat removed – Serious question to be tried but balance of convenience in favour of plaintiffs – Application for costs by plaintiffs – Application for costs by defendants – Whether costs should follow event – No order as to costs – Supreme Court Act 1986 s 24.

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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:

On 30 May 2018, upon the application of the plaintiffs, I ordered that a caveat lodged on behalf of the first and second defendants (‘the defendants’) be removed from the register book.[1] The plaintiffs are the registered joint proprietors of the relevant property.
[1]Glenis & Anor v Ikosedikas & Ors [2018] VSC 278.

In short, I found that there was a serious question to be tried as to whether the caveat was lodged as a part of a loan agreement between the first plaintiff and the first and/or second defendants. If the loan agreement was authentic (which was accepted for the purposes of this application) then it seemed clear that the first plaintiff intended to grant the defendants a charge over the property as security for loan funds already advanced.[2]
[2]For further elucidation on this issue, see ibid [12], [13].

I was persuaded however that, notwithstanding this finding, the balance of convenience favoured the plaintiffs. Essentially, I found that because of the way plaintiffs had structured their affairs, the caveat was ineffective as an instrument capable of protecting any interest the defendants may have. To leave it in place would be a futile exercise, frustrating the plaintiffs’ capacity to deal with their property and offering no effective security to the defendants for the loan funds advanced.

In these circumstances, the plaintiffs apply for costs. They argue that it ought follow the usual rule that costs follow the event; it mattered not that there was a serious question to be tried, the fact is that the balance of convenience favoured them, clearly so, and the result was pre-ordained. The defendants resisted the plaintiffs’ application and submitted that I ought exercise my discretion to order that the successful plaintiffs pay their costs because, inter alia:

(a) they (the plaintiffs) structured their affairs to render worthless the defendants’ security in the caveat and thus could not claim to have ‘clean hands’;

(b) there was no evidence that the plaintiffs were under any duress to repay the mortgage…

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 (No 2)

Details

AGLC: Glenis v Ikosedikas (No 2) [2018] VSC 324
Case: [2018] VSC 324
Decision Date: 15 June 2018

CaseChat Overview and Summary

In the matter of Glenis v Ikosedikas (No 2), the plaintiff sought to remove a caveat from her property, while the defendant aimed to maintain the caveat. The dispute was heard in the Supreme Court of Victoria. The plaintiff, Glenis, had initiated proceedings to remove a caveat lodged by Ikosedikas over her property. Ikosedikas contested the removal of the caveat, arguing that there was a serious question to be tried concerning the validity of the caveat. The court had to decide whether the balance of convenience favoured the removal of the caveat and whether costs should follow the event.

The court examined the merits of the caveat and whether there was a serious question to be tried. The court determined that while there was a serious question to be tried, the balance of convenience favoured the removal of the caveat in favour of the plaintiff. This decision was based on the consideration of the respective positions of the parties and the potential harm that could be caused by the continued existence of the caveat. Both parties subsequently applied for costs under the Supreme Court Act 1986 section 24, seeking reimbursement for the legal expenses incurred during the proceedings.

The court considered the applications for costs by both parties and concluded that, given the circumstances of the case, it was appropriate not to make an order as to costs. The court reasoned that the costs should not necessarily follow the event, as both parties had valid arguments and the case involved complex legal issues. Consequently, the court declined to award costs to either party, recognising the importance of preventing unnecessary financial burdens on litigants in cases where the outcome is not entirely in favour of one party.

No specific orders were made regarding the costs in this case, reflecting the court's approach to balancing the equities in matters involving property law and caveats.

Orders