Legal Research
Cases
Marchesi v Vasiliou

Marchesi v Vasiliou

Case [2009] VSC 213 5 June 2009

Admissibility of Evidence

Injunction

Costs

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5856 of 2009

BRENDAN JOHN MARCHESI as trustee of the property of Andrew Vasiliou, a bankrupt	Plaintiff
v
ANDREW VASILIOU in his own right and as trustee of the Vasiliou Family Trust & Ors	Defendants

---

JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2009
DATE OF JUDGMENT:	5 June 2009
CASE MAY BE CITED AS:	Marchesi v Vasiliou
MEDIUM NEUTRAL CITATION:	[2009] VSC 213

---

REAL PROPERTY – Caveat – Removal.

INJUNCTION – To restrain lodging of further caveats – To restrain Registrar of Titles from accepting further caveats.

COSTS – High-handed conduct in lodging caveat – Misuse of caveat procedure – Indemnity costs.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M J Galvin	Piper Alderman
The First Defendant in person and, by leave, for the Third Defendant
No appearance by or on behalf of the Second or Fourth Defendants

HIS HONOUR:

In this proceeding the plaintiff seeks orders for the removal of a caveat and other related relief.

The plaintiff is Brendan John Marchesi who is, and sues as, the trustee in bankruptcy of the first defendant. The first defendant is Andrew Vasiliou who is sued in his own right and as trustee of the Vasiliou Family Trust, the second defendant is his wife Vasiliki Apostolou, the third defendant is Optquest Pty Ltd (“Optquest”) which is sued in its own capacity and as trustee of the Vasiliou Family Trust, and the fourth defendant is the Registrar of Titles.

At the hearing the plaintiff appeared by counsel, the first defendant appeared in person and by leave for the third defendant, the second defendant did not appear and the Registrar of Titles, in accordance with a letter to the Prothonotary, did not appear.

The caveat

The subject caveat, no. AG265788X, was dated 24 December 2008 and lodged on that day on behalf of the third defendant. It claimed an estate in fee simple in the land described in:

(a)certificate of title volume 9012 folios 077, 083 and 092. These titles comprise unit 5, 3 Alfriston Street, Elwood being a residential unit and an associated car park and accessory unit (“Alfriston”),
(b)certificates of title volume 4509 folio 646 and volume 10088 folio 011. This is a commercial property at 18 St Kilda Road, Melbourne (“St Kilda”),
(c)certificate of title volume 1173 folio 541. Residential apartments are erected on this property at 10 Claremont Street, South Yarra (“Claremont”)
on the following ground, namely:

“Pursuant to a Sale Contract dated the 25^th March 1989 between Andrew Vasiliou also known as Andreas Vasiliou and Optquest Pty Ltd ACN 006 828 664” but “Subject to Mortgage AB712284 to HSBC Bank of Australia Limited”. The caveat was “executed by Optquest Pty Ltd … by Ms Panagiota Vasiliou … Sole Director/Secretary of 34 Sandra Street, Bulleen, Vic, 3105 A Person Authorised to SIGN for the Company”.
Optquest

A current and historical company extract of Optquest provided by…

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 Marchesi v Vasiliou

Details

AGLC: Marchesi v Vasiliou [2009] VSC 213
Case: [2009] VSC 213
Decision Date: 5 June 2009

CaseChat Overview and Summary

The case of Marchesi v Vasiliou arose from a dispute concerning the removal of a caveat from a property title and the associated misuse of the caveat process. Vasiliou had lodged a caveat on a property owned by Marchesi, which led to a legal battle over the validity of the caveat and the misuse of the caveat procedure. The court was tasked with deciding whether the caveat was properly lodged and if it could be removed. Furthermore, the court had to determine if an injunction should be granted to prevent the lodging of further caveats and to restrain the Registrar of Titles from accepting them.

The legal issues before the court included the validity of the caveat lodged by Vasiliou and whether it was lodged in bad faith or as a misuse of the caveat procedure. The court had to consider if the caveat was properly supported by a sufficient interest in the property and if Vasiliou's actions were high-handed. Another issue was whether an injunction should be granted to restrain Vasiliou from lodging further caveats and to prevent the Registrar of Titles from accepting them.

The court found that Vasiliou had misused the caveat procedure and had acted in a high-handed manner. The caveat was not properly supported by a sufficient interest in the property, and Vasiliou's actions were deemed to be a misuse of the legal process. The court granted an injunction to restrain Vasiliou from lodging further caveats and to prevent the Registrar of Titles from accepting them. Additionally, the court awarded indemnity costs against Vasiliou due to the misuse of the caveat procedure.

As a result of the court's decision, Vasiliou was restrained from lodging further caveats on the property, and the Registrar of Titles was directed to refuse any such caveats. Furthermore, Vasiliou was ordered to pay indemnity costs to Marchesi for the misuse of the caveat procedure. This decision underscores the importance of the proper use of the caveat process and the consequences of acting in bad faith.

Orders