Mancewicz v Truong - [2024] VSC 167

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST
PRACTICE COURT

S ECI 2024 01337

JACEK MANCEWICZ	First Plaintiff
ANNA MANCEWICZ	Second Plaintiff
v
HUNG TRUONG	First Defendant
KIM NGO	Second Defendant
REGISTRAR OF TITLES	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2024
DATE OF JUDGMENT:	9 April 2024
CASE MAY BE CITED AS:	Mancewicz v Truong
MEDIUM NEUTRAL CITATION:	[2024] VSC 167

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REAL PROPERTY – Sale of land – Caveats – Whether caveators have an interest in land – Interest in land created by Construction Loan Agreement – Whether caveators charge obliged to remove caveats to permit sale of land – Whether serious question to be tried – Balance of convenience – Order for removal of caveats – Transfer of Land Act 1958 ss 89(1), 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T B D Gorton	Gadens Lawyers
For the First and Second Defendants	Mr J Searle	Belleli King & Associates
For the Third Defendant	No appearance

HIS HONOUR:

The plaintiffs, Jacek and Anna Mancewicz, who are husband and wife, seek the removal of caveats lodged by the first and second defendants on titles of land being Lots 1 and 2, 10 Killara Avenue, Sunshine West. The plaintiffs are property developers and the registered proprietors of those lots and Lot 3, on each of which they have had a unit built. They entered into contracts of sale of Lots 1 and 2 on 25 March 2021 and 26 July 2021 respectively which were due for settlement on 2 April 2024 and they wish to proceed with the settlements.

The caveatable interest claimed by the first and second defendants is contended to be pursuant to a charge contained in a Construction Loan Agreement (‘the Loan Agreement’) made with the plaintiffs on 5 March 2021. On 19 July 2022, the first and second defendants lodged a caveat upon the title of the Sunshine West land. That land was later subdivided into 3 lots, being Lots 1, 2, and 3, and caveats in the same terms as the First Caveat are now recorded on the titles of those lots.

The first and second defendants, Hung Truong and Kim Ngo, who are husband and wife, were the lenders to the plaintiffs under the Loan Agreement. For ease of reference, I will refer to Mr Truong and Ms Ngo, as the defendants, because the third defendant, the Registrar of Titles, although making written suggestions about the appropriate form of orders, as is the custom, did not appear at the hearing. Mr Truong, or the company of which he is director and shareholder, HDT Constructions Pty Ltd, was the builder of the three units under a HIA New Homes Contract (‘the Building Contract’). The defendants contend that they lent the plaintiffs $517,000 under the Loan Agreement, which together with interest is now owing to them. They obtained the money which they loaned to the plaintiffs by mortgaging their own…

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 Mancewicz v Truong

Details

AGLC: Mancewicz v Truong [2024] VSC 167
Case: [2024] VSC 167
Decision Date: 9 April 2024

CaseChat Overview and Summary

The case of Mancewicz v Truong involved a dispute over the sale of land, where the respondents, the caveators, had lodged caveats against the transfer of the land. The applicants, Mancewicz, sought to remove the caveats to facilitate the sale of the land. The matter was heard in the Supreme Court of Victoria. The applicants argued that the respondents had no interest in the land sufficient to justify the lodgement of the caveats. They contended that the interest claimed by the respondents, which arose under a Construction Loan Agreement, did not entitle them to lodge caveats against the sale of the land.

The court was required to determine whether the respondents had an interest in the land that warranted the lodgement of caveats, and whether the chargees under the Construction Loan Agreement were obliged to remove the caveats to allow the sale of the land. The court also had to consider whether there was a serious question to be tried and whether the balance of convenience favoured the removal of the caveats. The applicants relied on sections 89(1) and 90(3) of the Transfer of Land Act 1958, which provide for the removal of caveats when certain conditions are met.

The court found that the respondents did not have an interest in the land that would justify the lodgement of the caveats. The interest under the Construction Loan Agreement did not confer upon the respondents a right to prevent the sale of the land. The court determined that there was a serious question to be tried regarding the respondents' entitlement to lodge the caveats, but that the balance of convenience favoured the removal of the caveats to allow the sale of the land to proceed. Consequently, the court ordered the respondents to remove the caveats to enable the transfer of the land to the applicants.

Orders