Lovrinov v Dean - [2021] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LOVRINOV v DEAN & ORS
[2021] SADC 159
Reasons for Decision of her Honour Judge Deuter (ex tempore)
16 December 2021
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - EXTENSION
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL
The applicant applied for an order that the time for removal of caveats over two properties be extended until his claim had been determined by the Court.
The first and second respondents are registered proprietors of the properties. Both are vacant parcels of land upon which a multi-residence development was proposed. The applicant asserts that by the provision of architectural and other services provided he had contributed to an increase in the value of the properties. He also claims that he has contributed monies to pay rates, taxes and other charges. Limited evidence tendered to support the claims that are denied by the respondents.
HELD.
1. The applicant has not established a prima facie case with sufficient probability of success that he has any equitable interest in the properties.
2. Orders extending the time for removal of caveats revoked and no further extension of time for the removal of the caveats allowed.
Real Property Act 1886 (SA), referred to.
Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57; Adnyamathanha Traditional Lands Association v Minister for Energy and Mining SA & Anor [2018] SASC 142; Piroshenko v Grojsman & Ors [2010] 27 VR 489, considered.

LOVRINOV v DEAN & ORS
[2021] SADC 159
LOVRINOV v DEAN & ORS

This is an application made pursuant to the provisions of s.191(1)(g) of the Real Property Act 1986, (RPA). The applicant seeks to extend the time for removal of two caveats over separate pieces of land.
The application is opposed by the respondents who have warned the two caveats. In my opinion, and for the brief reasons that I outline now, the applicant has failed to establish that he has a caveatable interest in either property.
Background
The applicant has provided some detail of an interest he claims in two properties situated at 1005 Solandra Crescent (‘the Solandra property’), Modbury North, and 48 Famechon Crescent, Modbury North (‘the Famechon property’).
The properties are vacant allotments that are to be developed into a multi-dwelling residential project (‘the project’). The applicant deposed in his affidavits,[1] that he had a role in providing architectural services to the project in 2005 for which he has not been paid. He also claims that his sketches added considerable value to the project. In addition, the applicant claims that he was involved in promoting and finding buyers for the project and the proposed dwellings. A proposed sale of the project in 2019 at a price of $3,600,000.00 did not proceed due to, on his claim, the actions of the respondents. He alleges that those actions were calculated to cause him and others to suffer loss. The applicant claims that through 2020 he was continuing…

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 Lovrinov v Dean

Details

AGLC: Lovrinov v Dean [2021] SADC 159
Case: [2021] SADC 159
Decision Date: 16 December 2021

CaseChat Overview and Summary

The case of Lovrinov v Dean involved the applicant, seeking to establish a prima facie case for an equitable interest in two properties in order to extend the time for removal of caveats lodged against dealings concerning those properties. The properties in question were located in Australia and were subject to the Torrens title system. The applicant's claims were challenged by the respondent, who sought to have the existing caveats removed and to prevent any further extensions of the time for their removal.

The central legal issue before the court was whether the applicant had demonstrated a sufficient probability of success in establishing an equitable interest in the properties, thereby warranting an extension of the time for removing the caveats. The applicant argued that his equitable interest was based on an agreement with a third party, which he claimed gave him certain rights over the properties. The respondent, however, contended that the applicant had not provided adequate evidence to support his claims and that the caveats should be removed without further delay.

The court carefully considered the evidence presented by both parties and determined that the applicant had not established a prima facie case with a sufficient probability of success regarding his claimed equitable interest in the properties. The court found that the applicant's evidence was insufficient to substantiate the existence of the alleged agreement or the nature of the rights it purportedly conferred. Consequently, the court revoked the orders that had previously extended the time for removal of the caveats and ruled that no further extensions would be allowed.

The final orders of the court were that the applicant had not established a prima facie case with a sufficient probability of success that he had any equitable interest in the properties, and that the orders extending the time for removal of the caveats were revoked. Furthermore, the court ruled that no further extensions of the time for the removal of the caveats would be allowed. This decision reinforced the importance of providing sufficient evidence to support claims of equitable interests in property matters under the Torrens title system.

Orders

Orders of the court

HELD.

1. The applicant has not established a prima facie case with sufficient probability of success that he has any equitable interest in the properties.

2. Orders extending the time for removal of caveats revoked and no further extension of time for the removal of the caveats allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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