Merrion Pty Ltd v Loustas - [2017] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 05330

MERRION PTY LTD (ACN 141 640 128)	Plaintiff
v
ARTHUR LOUSTAS AND OTHERS (according to the attached schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2017
DATE OF JUDGMENT:	14 March 2017
CASE MAY BE CITED AS:	Merrion Pty Ltd v Loustas and ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 95

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CONTRACT – Dispute between builder and owners – Entitlement of builder to transfer of land pursuant to Deed of Settlement – Enforceability of Deed of Settlement – Whether Deed entered into under duress or unconscionable conduct – Terms of Deed upheld in favour of builder.

PRACTICE AND PROCEDURE- Whether proceeding can be decided on a summary basis – Whether real prospect of success – Civil Procedure Act 2010 (Vic) s 63(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A T Schlicht	Jeremy Johnson & Associates
For the First Defendant	Mr G J Parncutt	Kiatos & Co
For the Second Defendant	No appearance
For the Third Defendant	Mr M C McKenzie	Bowlen Dunstan & Associates Pty
For the Fourth Defendant	Mr W G Stark	Allen & Macaulay

HER HONOUR:

On 28 December 2016 the plaintiff, Merrion Pty Ltd (‘builder’) issued this proceeding. In its originating motion, the builder seeks, among other things, the following orders:

3.An Order that the fourth defendant remove its caveat over the following properties:
(a)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 387;
(b)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 394;
(c)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 400.

4.An order that the second and third defendants execute transfers of land to the plaintiff in respect of the following properties:
(a)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 387;
(b)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 394;
(c)All that piece of land more particularly described in Certificate of Title Volume 11834 Folio 400.

5.An order that the first defendant execute a consent to the transfers of land to the plaintiff of the aforementioned properties.

6. An order that the defendants pay the plaintiff’s costs of this proceeding.

The properties referred to in the Originating Motion are three lots in a subdivision of a property at 405 High Street, Northcote (‘property’).

The background to this proceeding can be summarised as follows:

(a) the second and third defendants, Mr Peter Sier and Mr Vincent Sier (‘owners’) are the owners of the property, upon which the builder has constructed a substantial medium density, mixed use development (‘project’) pursuant to a contract with an entity controlled by the owners, 405 Plaza Pty Ltd (‘developer’);

(b) the first defendant, Mr Arthur Loustas, is the plaintiff in a proceeding in which he claims an interest in the property…

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 Merrion Pty Ltd v Loustas

Details

AGLC: Merrion Pty Ltd v Loustas [2017] VSC 95
Case: [2017] VSC 95
Decision Date: 14 March 2017

CaseChat Overview and Summary

Merrion Pty Ltd, a builder, sought the transfer of land from Loustas, the owner, under a Deed of Settlement. The dispute arose over the enforceability of the Deed, with Loustas alleging it was entered into under duress and unconscionable conduct. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the Deed of Settlement was enforceable against Loustas. Loustas argued that the Deed was entered into under duress and unconscionable conduct, rendering it void. The court had to determine whether the terms of the Deed were upheld in favour of the builder.

The court found that the Deed of Settlement was enforceable. Loustas did not establish that the Deed was entered into under duress or unconscionable conduct. The court held that the evidence did not support Loustas's claims, and the terms of the Deed were valid. Additionally, the court ruled that the proceeding could be decided on a summary basis, finding that Merrion had a real prospect of success under section 63(1) of the Civil Procedure Act 2010 (Vic).

The court ordered the transfer of the land from Loustas to Merrion as per the terms of the Deed of Settlement. Loustas was also ordered to pay Merrion's costs of the proceeding.

Orders