Matusiewicz v Vlahos
[2003] WASC 109
MATUSIEWICZ -v- VLAHOS & ORS [2003] WASC 109
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 109 | |
| Case No: | CIV:1489/2003 | 22 MAY 2003 | |
| Coram: | EM HEENAN J | 22/05/03 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend operation of caveat dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEOPOLD MATUSIEWICZ MATTHOS VLAHOS VICTORIA VLAHOS VASILIKI PANOURGIA THE REGISTRAR OF TITLES |
Catchwords: | Transfer of Land Act Caveats Application to extend operation No interest in land demonstrated Turns on its own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
1962-1968 BETWEEN : LEOPOLD MATUSIEWICZ
- Plaintiff
AND
MATTHOS VLAHOS
First Defendant
VICTORIA VLAHOS
Second Defendant
VASILIKI PANOURGIA
Third Defendant
THE REGISTRAR OF TITLES
Fourth Defendant
Catchwords:
Transfer of Land Act - Caveats - Application to extend operation - No interest in land demonstrated - Turns on its own facts
(Page 2)
Legislation:
Nil
Result:
Application to extend operation of caveat dismissed
Category: B
Representation:
Counsel:
Plaintiff : Dr P R MacMillan
First Defendant : Mr K M Penkin
Second Defendant : Mr K M Penkin
Third Defendant : Mr K M Penkin
Fourth Defendant : Mr K M Penkin
Solicitors:
Plaintiff : Rattigan Kearney & Bochat
First Defendant : Kevin Penkin & Associates
Second Defendant : Kevin Penkin & Associates
Third Defendant : Kevin Penkin & Associates
Fourth Defendant : Kevin Penkin & Associates
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: This is a claim for the extension of a caveat over land registered in the names of the first and second defendant. The claim as set out in the caveat is a claim for an estate in fee simple pursuant to a resulting and/or constructive trust on the grounds that the caveator is a beneficial owner because of the facts set out in the supporting statutory declaration lodged therewith.
2 The statutory declaration, or the unexecuted copy of it appearing in the papers before the Court, asserts that the caveator contributed financially and by other non-financial means to the acquisition, conservation and improvement of the land and declares that the caveator has resided on the land since 1991 save for the times when he was away with his employment in construction, mining and resources projects for relatively short periods. The caveator claims an estate in fee simple and an interest in the land as beneficial owner pursuant to a resulting and/or constructive trust arising from his contribution to the acquisition, conservation and improvement of the land in the manner then set out. The caveat forbids the registration of any person as transferee.
3 In the original affidavit the caveator refers to an agreement between a company, Levan Enterprises Pty Ltd, and the defendants, as vendors for that company to purchase the land. It asserts that the caveator paid outgoings on the unit and various instalments under the mortgage. This occurred in circumstances where the plaintiff was living at the unit as man and wife with the third defendant, the daughter of the second defendants who are the proprietors of the land and the vendors under the contract of sale to Levan Enterprises Pty Ltd.
4 Since then the plaintiff has become bankrupt, Levan Enterprises Pty Ltd has been deregistered and the estate or interest of the purchaser is alleged to have been terminated by an agreed rescission of the contract for sale because of defaults in payments due. Nevertheless, in a subsequent affidavit filed only this morning, Mr Matusiewicz deposes that he has purchased from his trustee in bankruptcy the former estate and interest which he had in 50 per cent of the issued shares of Levan Enterprises Pty Ltd so that he is now, as he was before, a shareholder in that company. Through his counsel he has informed the Court that he intends to take steps to have the company reregistered and he asserts that he has a beneficial interest in the land via his shareholding in Levan Enterprises Pty Ltd, the purchaser under the contract of sale. This argument overlooks entirely the allegations that the contract of sale has been rescinded or otherwise terminated by the vendors for various defaults.
(Page 4)
5 There is no admissible evidence before the Court to make any determination whether or not the contract of sale has been terminated and, if so, upon what grounds. In the circumstances the only course which I should adopt is to assume that, in some way or another, the contract of sale remains on foot and might yet be completed by Levan Enterprises Pty Ltd. However, in my view, that does not give the plaintiff any equitable or proprietary interest in the land. It is well established that a shareholding in a company does not confer on the shareholder any proprietary interest in the assets of the company and I therefore reject the submission that by virtue of his shareholding in Levan Enterprises Pty Ltd the plaintiff has any caveatable interest in this property.
6 That leaves the question of whether or not, despite having no interest under the contract of sale, the plaintiff may have some interest in the land by virtue of various payments which he made towards the mortgage instalments and for other outgoings incurred in connection with the land. In the affidavit of 21 May 2003 the plaintiff deposes to a variety of such payments, but the exact nature of the payments and the source of the moneys employed are not clearly defined by that affidavit. Although the plaintiff asserts that the money used was his, a closer scrutiny of the affidavit indicates that significant payments were made by Levan Enterprises Pty Ltd, and other payments which the plaintiff asserts were his were made from the account of Levan Enterprises Pty Ltd. In relation to those payments the plaintiff says he deposited his own money and earnings in the account of Levan Enterprises Pty Ltd and that this was used for these payments, but that does not to my mind provide any satisfactory evidence that the payments were made on behalf of the plaintiff as distinct from being made on behalf of Levan Enterprises Pty Ltd.
7 I do not consider that a sufficiently case has been shown by the plaintiff that payments were made by him in his personal capacity as a result of which any equitable interest in the land might be established. That is another way of saying that I do not consider that there is a sufficiently serious question to be tried to allow this caveat to continue. In any event, the balance of convenience seems to me to favour the refusal of an order for continuation of the caveat because there is no offer being made to complete the payments due or to offer any other payments in respect of the continued occupation of the property, or to pay moneys owing under the alleged contract of sale.
8 The refusal of this application to extend the caveat may not be the end of the plaintiff's opportunities. If Levan Enterprises Pty Ltd is
(Page 5)
- reregistered, then the company may be able to support a caveatable interest in the land if it wishes to advance one. Alternatively, if there is any cogent evidence to show that direct payments were made by the plaintiff in respect of this land on his own behalf, as distinct from payments on behalf of Levan Enterprises Pty Ltd, that may justify the lodging of a further caveat limited to a claim for a charge in respect of the value of the aggregate of any such payments which can be shown to have been made.
9 At present, however, I do not consider that a sufficient case for a beneficial interest in this land by the plaintiff personally has been established and I decline to extend the operation of this caveat.
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