Kayali v Koca - [2023] VSC 131

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 00562

MEHMET KAYALI	Plaintiff
v
SALIH KOCA	First Defendant
and
REGISTRAR OF TITLES	Second Defendant
AND BETWEEN:
SALIH KOCA	Plaintiff by Counterclaim
v
MEHMET KAYALI	First Defendant by Counterclaim
and
FILIZ KAYALI	Second Defendant by Counterclaim

---

JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATES OF HEARING:	10–11, 13–14, 17–19, 24–28 October and 2, 4 and 23 November 2022
DATE OF JUDGMENT:	24 March 2023
CASE MAY BE CITED AS:	Kayali v Koca
MEDIUM NEUTRAL CITATION:	[2023] VSC 131

---

TRUSTS – Whether first defendant holds property subject to a constructive trust in favour of the plaintiff commensurate with $146,500 allegedly advanced by plaintiff in respect of the acquisition and upkeep of the property – Property not held by first defendant subject to constructive trust – Plaintiff does not have caveatable interest in the property – Registrar of Titles ordered to remove caveat lodged by plaintiff on the title of the property.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff and First Defendant by Counterclaim	In person
For the Defendant and Plaintiff by Counterclaim	Mr S Minahan	Pera Lawyers
For the Second Defendant by Counterclaim	In person

HIS HONOUR:

Introduction

On 7 July 2016 Mr Salih Koca signed a contract for the purchase of a property situated at 35 Heversham Grove, Greenvale, Victoria (‘Greenvale property’).[1] On 15 August 2016 Mr Koca paid a deposit of $41,000 being 5% of the purchase price of $820,000.[2] On 15 August 2016 Mr Koca paid the balance of the purchase price, with adjustments, in the sum of $782,997.18.[3] On 18 August 2016 Mr Koca paid stamp duty of $44,270 and a registration of transfer fee of $2,102.[4] The total outlay for the purchase of the property was $870,279.18. Shortly after settlement of the contract the plaintiff Mr Mehmet Kayali, his wife Ms Filiz Kayali and their two children moved into the Greenvale property. They continued to reside there until August 2017.
[1]Court Book filed on behalf of the first defendant dated 15 November 2022 (‘CB’) 803–805, Contract of sale dated 7 July 2016. The Greenvale property is more particularly described as Certificate of Title Volume 9458 Folio 143.
[2]CB1182, ANZ Business Advantage Statement.
[3]CB621, Email correspondence between Mr Tran and Mr Kolege dated 11 August 2016; CB1234, ANZ Business Advantage Statement; CB1238, ANZ Home Loan Statement.
[4]CB1238, ANZ Home Loan Statement.

On 18 September 2017 Mr Kayali lodged Caveat No. AQ257107L on the title of the Greenvale property claiming the ‘freehold estate’ interest in the property pursuant to an agreement with Mr Koca. On 18 February 2018 Mr Kayali commenced the present proceeding by writ claiming a declaration that he is the sole legal fee simple proprietor of the land at 35 Heversham Grove, Greenvale. As against the Registrar of Titles, Mr Kayali seeks orders directing the Registrar to amend the Register of Titles to record Mr Kayali as the sole legal fee simple proprietor of the land…

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 Kayali v Koca

Details

AGLC: Kayali v Koca [2023] VSC 131
Case: [2023] VSC 131
Decision Date: 24 March 2023

CaseChat Overview and Summary

The case of Kayali v Koca involved a dispute over the ownership of a property and the alleged financial contributions made by the plaintiff, Kayali, towards its acquisition and maintenance. The first defendant, Koca, was the registered owner of the property, and the second defendant, who was also a party to the case, was Koca's wife. The plaintiff sought to establish that Koca held the property subject to a constructive trust in their favour to the extent of the $146,500 allegedly advanced by the plaintiff for the property's acquisition and upkeep. Additionally, the plaintiff sought to maintain a caveat they had lodged on the property's title, which the defendants sought to have removed. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the first defendant held the property subject to a constructive trust in favour of the plaintiff. The court had to consider the evidence regarding the plaintiff's alleged financial contributions and whether those contributions gave rise to a trust in their favour. The court also needed to determine whether the plaintiff had a caveatable interest in the property and if the caveat lodged by the plaintiff should be removed.

In delivering the judgment, the court found that the plaintiff did not have a caveatable interest in the property and that the property was not held by the first defendant subject to a constructive trust in favour of the plaintiff. The court held that the plaintiff's claims were not supported by the evidence and that the plaintiff had not demonstrated that they had a sufficient interest in the property to warrant the maintenance of the caveat. The court ordered the Registrar of Titles to remove the caveat lodged by the plaintiff on the title of the property.

The court's decision in this case highlights the importance of establishing a clear and convincing case when seeking to establish a constructive trust over a property. The court found that the plaintiff had not provided sufficient evidence to support their claims, and as a result, the property remained in the sole ownership of the first defendant. The court's order for the removal of the caveat lodged by the plaintiff further emphasises the need for a caveator to have a strong legal basis for lodging a caveat on a property's title.

Orders