Knig v Alexander

[2004] VSC 334

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7696 of 2004

VALMAI ROBYN KING	Plaintiff
V
ANTON CHRISTO ALEXANDER	First Defendant
And
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Cummins  J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2004
DATE OF JUDGMENT:	2 September 2004
CASE MAY BE CITED AS:	King v Alexander & Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 334

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Removal of caveat – s.90(3) Transfer of Land Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Williams	Aughtersons
For the First Defendant:	Mrs D. Doncheva (Appearing for her husband, the first Defendant)

HIS HONOUR:

1. I have before me a summons on a originating motion, both filed 23 August 2004, by Valmai Robyn King against Anton Christo Alexander and the Registrar of Titles, for the removal of caveat No.AC888609L from land in the Certificate of Title, vol.8233, folio 071, and consequential Orders. 

1. The plaintiff is represented before me most ably by Mr Williams.  The Registrar of Titles abides by the result of the proceeding.  The first defendant, Mr Alexander, is presently in custody, in circumstances to which I shall come; and his wife, Mrs D.D. Doncheva, has appeared before me on her husband's behalf.   The defendant has been notified of these proceedings and correspondence has occurred in that regard, as is evident from the affidavit of Mr G.E.A. Egerton, solicitor for the plaintiff, sworn 31 August 2004, and as is evidenced by Mrs Doncheva's presence before me today, and by the fax that has been provided and placed on the Court file and to which I shall refer.

1. The matter came on before me this morning, and, in consideration of Mrs Doncheva's position, I stood the matter over till this afternoon, to ensure that any material emanating from Port Phillip Prison, where her husband is in custody, could be placed before the Court.  In the event, a fax and supporting documentation has been provided to the Court from Mr Alexander.  Essentially, Mr Alexander, in the fax, and Mrs Doncheva, before me, request an adjournment of the proceedings for an indefinite period, the indefinite arising from the circumstance that, as Mrs Doncheva has put to me, neither she nor her husband are in a position to be able to afford arranging legal representation on this matter, and second, her husband is in gaol, awaiting trial, and it is uncertain whether he will be released from gaol before the trial, or after the trial if convicted and sentenced. 

1. Normally, one would accede to an application for an adjournment in relation to a defendant who is unable to attend court by reasons beyond their control.  However, there are unusual circumstances in this case, to which I shall, in a moment, come. 

1. The essential background circumstances, and the immediate circumstances, are set forth in an affidavit of Mrs King, the plaintiff, sworn 20 August 2004. 

1. Essentially, the history is that Mrs King and Mr Alexander, over a number of years, had a relationship.  Ultimately, the relationship was terminated by Mrs King.  There are a number of properties owned individually by the parties.  After the relationship terminated, certain events precipitating Mr Alexander's placement in gaol occurred.  They were, notably, alleged by Mrs King to be:  3 April 2004, the rape of her by Mr Alexander; 6 April 2004, a knife assault upon her by him;  the imposition, on 8 April, of an intervention order;  the placement of Mr Alexander upon bail, having been charged with the offences;  breach of the bail; breach of the intervention order; and return by Mr Alexander to custody.  That is why he is where he is now.  There was a period, in April, when he was out of custody, but he was returned, on 6 June, and remains there at the present time.  The circumstances are briefly set forth in paragraph 23 of Mrs King's affidavit. 

1. The particular property in question as to which the caveat has been lodged is property in the sole name of Mrs King.  She has sold it.  At the time she sold it, she was not aware of any caveat placed upon it, and no notice had been given to her.  It then came to her attention.  She sought to have it removed.  Acting in good faith, having sold the property and purchased another, she is in a situation of needing to effect that settlement.  The caveat claims a constructive trust.  As Mr Alexander is not here, I put aside for purposes of this application the matters in Mrs King’s affidavit paragraphs 13 and 14 as to terms of settlement allegedly sought by Mr Alexander.

1. In all the circumstances, I am entirely unsatisfied that an adjournment ought to be granted in this case.  I understand fully what Mrs Doncheva has said about the difficulty of Mr Alexander, from custody, and with his lack of funds, defending the summons and motion.  I also understand what Mrs Doncheva has said, namely that he, Mr Alexander, did some work on the house which has been sold, and that Mrs King allegedly owes Mr Alexander money.  Further, as Mrs Doncheva has said, Mrs King has now put a caveat on the Pearl Court, Rye house of Mr Alexander, which was his property and, which, on its face, would appear to be inconsistent with what is stated in Mrs King's affidavit, paragraph 20, that they each agreed not to make any claim on each other's property.  It would appear that that caveat by Mrs King was in response to the caveat first being placed on her property by Mr Alexander.  Mr Williams has informed me, in any event, it may be that that caveat on the Rye property will be withdrawn. 

1. Whatever happens as to the Rye caveat, I am persuaded that I ought grant the application of Mrs King, because of the prejudice which will occur to Mrs King if the sale of her home, made in good faith, is jeopardised; and if the purchase of her new home, made in good faith, is also jeopardised.  Time is of the essence in these matters, and I consider that it is critical to ensure that Mrs King is not prejudiced in those important respects.  Further, the first defendant will not permanently lose his claim or rights, if he has any and they are legitimate, because Mrs King is purchasing a property, and thus the funds from the sale of the property will be invested in the purchased property.  This is not a case of the funds being dissipated and there then being nothing to have recourse to, in the ordinary course of claim by Mr Alexander, if he has any legitimate claim.  Accordingly, Mr Alexander is not permanently prejudiced, because if he has any good claim he can litigate it without losing the funds, and Mrs King will avoid significant prejudice with the caveat removed.  I am satisfied that the Order sought in the summons ought be granted.

1. Accordingly, I order that caveat No.AC888609L, on the land in Certificate of Title Vol.8233, folio 071, be removed. That order is made pursuant to s.90(3) Transfer of Land Act 1958, being a direction to the Registrar of Titles.

1. I direct that a copy of this judgment be forwarded to Mr Alexander in custody.  I shall have a copy of it provided to Mrs Doncheva also.

(After discussion)

I order that the first defendant pay the plaintiff’s cost of this proceeding.  That is the usual order and I make it in this proceeding