| 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,…
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- AGLC
- Marinos v Mellissinos [2024] VSC 642
- Case
- [2024] VSC 642
- Decision Date
CaseChat Overview and Summary
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.
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