Marinos v Mellissinos - [2024] VSC 642

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

S ECI 2024 05415

KALLIOPI MARINOS	Plaintiff
- and -
DESPINA MELLISSINOS	First Defendant
- and -
GEORGE MELLISSINOS	Second Defendant
- and -
EMMANUEL MELLISSINOS	Third Defendant
- and -
PANAGIOTIS MARINOS	Fourth Defendant
- and -
ALICE YANG	Fifth Defendant
- and -
REGISTRAR OF TITLES VICTORIA	Sixth Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2024
DATE OF JUDGMENT:	23 October 2024
CASE MAY BE CITED AS:	Marinos v Mellissinos & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 642

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PROPERTY – Caveats – Plaintiff registered proprietor of residential property since 2008 – Family dispute – ‘Refinancing’ in 2018 – Allegations of fraud and financial abuse – Plaintiff and defendants resident at the property until shortly prior to the hearing – Plaintiff listed property for sale – First defendant lodged caveat claiming ‘Implied, Resulting or Constructive Trust’ – Property sold and date of settlement extended on several occasions – First defendant claims common intention constructive trust – Onus – Whether prima facie case shown – Balance of convenience – Transfer of Land Act 1958 (Vic) s 90(3) – Piroshenko v Grojsman (2010) 27 VR 489, Hatziminas v Hatziminas [2024] VSC 513 and Blatch v Archer (1774) 98 ER 969, considered – Caveat removed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	CJ Twidale	Pentana Stanton Lawyers
For the First Defendant	A Felkel	Themida Legal
For the Second Defendant	No appearance
For the Third Defendant	No appearance
For the Fourth Defendant	No appearance
For the Fifth Defendant	No appearance
For the Sixth Defendant	No appearance

HIS HONOUR:

The plaintiff commenced proceedings by originating motion filed on Thursday, 10 October 2024.

By summons of the same date, the plaintiff seeks the removal of a caveat lodged by the first defendant on the title of a residential property located at 18 Cuthbert Road, Reservoir (‘property’). The first defendant is the plaintiff’s mother.

The plaintiff and defendants are members of, in essence, a family group that has been resident at the property until recently. The second defendant is the plaintiff’s brother and the first defendant’s son.

The plaintiff’s application is supported by an initial affidavit sworn on 10 October 2024, as well as more limited further affidavits sworn on 16 October 2024 and 18 October 2024. I will refer to those as the plaintiff’s first, second and third affidavits respectively.

The application was made returnable before me in the Practice Court at 10:30am on Friday, 18 October 2024.

The originating motion, summons and plaintiff’s first affidavit were served on the first defendant’s solicitor by email on the morning of Monday, 14 October 2024.

The following morning, the solicitor was informed of the hearing date. The second defendant was personally served with the material on the morning of Wednesday,

16 October 2024.

On Thursday, 17 October 2024 at 4.29pm, the first defendant filed an affidavit in response to the application,…

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 Marinos v Mellissinos

Details

AGLC: Marinos v Mellissinos [2024] VSC 642
Case: [2024] VSC 642
Decision Date: 23 October 2024

CaseChat Overview and Summary

The case of Marinos v Mellissinos involved a dispute over a residential property located in Melbourne. The plaintiff, Marinos, had been the registered proprietor since 2008. The defendants, Mellissinos, were family members who had resided at the property until shortly before the court hearing. The dispute arose when the plaintiff listed the property for sale in 2018, amidst a family dispute involving allegations of fraud and financial abuse. The first defendant lodged a caveat claiming an implied, resulting or constructive trust, which was subsequently used as the basis for a claim of a common intention constructive trust. The property had already been sold, but the date of settlement had been extended multiple times.

The court was required to decide whether the first defendant had established a prima facie case for a common intention constructive trust. This involved assessing the onus of proof and the balance of convenience in accordance with the relevant provisions of the Transfer of Land Act 1958 (Vic). The court considered the principles articulated in Piroshenko v Grojsman (2010) 27 VR 489, Hatziminas v Hatziminas [2024] VSC 513 and Blatch v Archer (1774) 98 ER 969, which establish the criteria for removing a caveat. The court found that the first defendant had not discharged the onus of proving a prima facie case for a common intention constructive trust. Consequently, the balance of convenience favoured the removal of the caveat.

The court determined that the first defendant had not demonstrated a sufficient likelihood of success on the merits of the claim to justify maintaining the caveat. The court's reasoning was based on the evidence presented and the applicable legal principles. As a result, the caveat was removed, and the plaintiff was permitted to proceed with the sale of the property. This outcome was consistent with the statutory framework and the established common law principles concerning the onus of proof and the balance of convenience in caveat disputes.

Orders