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Luna v & a Luna Pty Ltd

Luna v & a Luna Pty Ltd

Case [2023] VSC 126 22 March 2023

Caveat

Interlocutory Injunction

Constructive Trusts

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2023 00158

BETWEEN:

PASQUALE LUNA	Plaintiff
v
V & A LUNA PTY LTD (ACN 007 80 547) & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF JUDGMENT:	22 March 2023
CASE MAY BE CITED AS:	Luna v V & A Luna Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 126 (revised 5 April 2023)

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PROPERTY LAW – Caveat – Whether possible or appropriate to reinstate lapsed caveat –Neither possible nor appropriate – Transfer of Land Act 1958 (Vic) s 89A.

INJUNCTION – Interlocutory – Whether continuation of interlocutory injunction initially ordered should be continued – Principles applicable – Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bradto Pty Ltd v State of Victoria (2006) 15 VR 65.

TRUSTS – Constructive trusts – Whether family members intention to pool financial resources – Whether proprietary remedy may be available at trial – Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Giumelli v Giumelli (1999) 196 CLR 101.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Bobko	Lawcorp Lawyers Pty Ltd
For the Defendants	Mr H Forrester	DSA Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 3

The Writ............................................................................................................................................... 5

Defendants’ affidavits....................................................................................................................... 7

Plaintiff’s further affidavits........................................................................................................... 12

Defendant’s Submissions............................................................................................................... 17

Plaintiff’s Submissions................................................................................................................... 19

Consideration – Caveat................................................................................................................... 20

Interlocutory Injunction Application.......................................................................................... 24

Constructive Trust – Principles..................................................................................................... 25

Interlocutory Injunction – Consideration................................................................................... 28

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

By summons dated 23 January 2023, the plaintiff sought urgent relief to, in substance, preserve the subject matter of the litigation, although that is not in terms the relief he sought to obtain, as I shall explain. The summons was supported by affidavits which purported to show, as the Judge recorded in his Order (referred to below), that the Registrar of Titles had resolved to cause caveat AR211958H (the ‘Caveat’) over the title of the first defendant’s land to lapse with effect from 24 January 2023. That land is described in Certificate of Title Volume 09070 Folio 221, being a 20-acre farming property at 105 Summerhill Road, Wollert, Victoria (the ‘Wollert Land’ or the ‘Land’).[1]
[1]Unfortunately, the plaintiff’s affidavit material misdescribed the volume number of the Title as ‘volume 970’ instead of the correct volume number 09070, as the exhibits to the affidavit of Lily Silvana Angelovski made 23 January 2023 (‘Angelovski affidavit’) make clear. This error found its way into the order of O’Meara J made on 24 January 2023. This did not mislead the defendants, and Counsel for them who appeared on 17 March 2023 accepted that it was a typographical error.

The hearing of the application came on before O’Meara J on 24 January 2023. The defendants were represented and made submissions opposing the making of orders, but, as O’Meara J…

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 Luna v & a Luna Pty Ltd

Details

AGLC: Luna v & a Luna Pty Ltd [2023] VSC 126
Case: [2023] VSC 126
Decision Date: 22 March 2023

CaseChat Overview and Summary

In the case of Luna v Luna Pty Ltd, the dispute centred around the validity of a lapsed caveat and the continuation of an interlocutory injunction, as well as the potential for a proprietary remedy under a constructive trust. The matter was heard in the Supreme Court of Victoria. The plaintiff, Luna, sought to reinstate a lapsed caveat and continue an interlocutory injunction against the defendant, Luna Pty Ltd, in addition to seeking a proprietary remedy on the basis of a constructive trust.

The legal issues that the court needed to resolve included whether it was possible or appropriate to reinstate the lapsed caveat under the Transfer of Land Act 1958 (Vic) s 89A, the criteria for continuing an interlocutory injunction, and whether a proprietary remedy may be available under a constructive trust. The court examined the evidence and submissions from both parties, considering the principles from relevant authorities such as Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 and Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 for the interlocutory injunction, and Muschinski v Dodds (1985) 160 CLR 583, Baumgartner v Baumgartner (1987) 164 CLR 137, and Giumelli v Giumelli (1999) 196 CLR 101 for the constructive trust.

The court concluded that it was neither possible nor appropriate to reinstate the lapsed caveat under the relevant statute, and thus dismissed the plaintiff's application in this regard. Concerning the interlocutory injunction, the court determined that the plaintiff had not satisfied the criteria for continuing the injunction, and therefore, it was not to be maintained. Regarding the constructive trust, the court found that there was insufficient evidence to support the plaintiff's claim that the family members intended to pool their financial resources, and thus, the application for a proprietary remedy was also dismissed. The court's decision was grounded in a detailed analysis of the statutory provisions and the applicable legal principles, ensuring that all relevant factors were considered.

Orders