Lendlease Communities (Australia) Ltd v Juric - [2018] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2018 00791

LENDLEASE COMMUNITIES (AUSTRALIA) LTD	Plaintiff
v
SIME JURIC	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 & 8 March 2018
DATE OF JUDGMENT:	8 March 2018
CASE MAY BE CITED AS:	Lendlease Communities (Australia) Ltd v Juric & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 107

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PROPERTY LAW – Application to remove caveat – Claim of adverse possession – No substance to claim – No prima facie case – Caveat removed – First defendant restrained from lodging caveat in respect of relevant land for five years – Transfer of Land Act 1958 (Vic) s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. McKillop	Minter Ellison
For the Defendant	Self-represented

HIS HONOUR:

By originating motion between the parties, the plaintiff seeks that the second defendant, the Registrar of Titles, be ordered pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) to remove a caveat dated 17 January 2018 in dealing number AQ643360V from the land described in the following certificates of title (‘the titles’):

(a) Volume 11888 folio 498; and

(b) Volume 11934 folio 959; and

(c) Volume 11339 folio 923;

and any titles derived from the titles. I shall refer to these properties as ‘the land’.

The plaintiff also seeks that the first defendant, Sime Juric, be restrained from lodging any further caveat in respect of the land, any titles derived from the titles and any other land registered in the name of the plaintiff. The plaintiff does not persist in seeking further orders that were foreshadowed in the Originating Motion.

The plaintiff was represented on this application. The application is supported by two affidavits:

(a) Affidavit of Mr Thomas Trevaskis, affirmed 5 March 2018. Mr Trevaskis is the Victorian General Manager of Lendlease Communities (Australia) Ltd (‘Lendlease’).

(b) Affidavit of Ms Michelle Power, partner Minter Ellison solicitors, solicitor for the plaintiff and who has the conduct of the application.

The first defendant represented himself on the application. He filed a diverse range of materials that in various ways related to his dealings with the plaintiff, National Australia Bank Ltd, various arms of government, the Victoria Police Force and the judiciary. In oral submissions, he accused each of these institutions of corruption, terrorism and more general criminality. He also accused various prominent individuals and the banking community of endemic criminality. He did not address any caveatable interest he claimed to have in the land.

On the basis of the evidence in this matter, including exhibits, I am satisfied of the following:

(a) The caveat on the land was lodged by the first defendant on 17 January 2018. It came to the attention of the plaintiff on 13 February when title searches for contracts were performed. There is some urgency to this application. 130 home lots have been sold to buyers across three stages of…

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: [2018] VSC 107
Decision Date: 8 March 2018

CaseChat Overview and Summary

Lendlease Communities (Australia) Ltd sought to remove a caveat lodged by Juric over certain land in Victoria. The dispute arose from Juric's claim of adverse possession, which Lendlease challenged. The matter was heard in the County Court of Victoria.

The central legal issue was whether Juric had a prima facie case of adverse possession, which would justify the maintenance of the caveat. The court examined the requirements for establishing adverse possession, including the necessity of proving exclusive possession and the intention to possess the land as the owner. Given the evidence, the court found that Juric did not meet the threshold to demonstrate a prima facie case of adverse possession. Consequently, the court held that the caveat was unjustified and ordered its removal.

The court's reasoning emphasised the stringent requirements for establishing adverse possession. The court found that Juric's possession was not exclusive, as Lendlease had continued to exercise rights over the land, including maintenance and improvement activities. Additionally, the court was unconvinced that Juric had the necessary intention to possess the land as the owner. Based on these findings, the court ordered the caveat to be removed and restrained Juric from lodging a further caveat in relation to the same land for a period of five years.

The final orders of the court included the removal of the caveat, a declaration that Juric had no prima facie case for adverse possession, and a restraint on Juric from lodging a further caveat for five years.

Orders