Nasseri v Martello Property Pty Ltd - [2024] VSC 561

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST
PRACTICE COURT

S ECI 2024 04324

TARENAH NASSERI	First Plaintiff
– and –
MORTEZA SERAJANSARI	Second Plaintiff
v
MARTELLO PROPERTY PTY LTD (ACN 644 428 124)	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August and 4 September 2024
DATE OF JUDGMENT:	4 September 2024
CASE MAY BE CITED AS:	Nasseri v Martello Property Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 561

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REAL PROPERTY – Sale of land – Caveats – Whether caveator had an estate or interest in land – Pending sale of property – First caveat claiming freehold estate – No basis for caveat – Order for caveat removal – Second caveat claiming interest in land as chargee – Claim that caveator advanced funds for development project – Dispute about rights under Development Management Agreement – Serious question to be tried – Balance of convenience favours maintenance of second caveat – Transfer of Land Act 1958 s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In person
For the Second Plaintiff	In person
For the Defendant	Ms C Jones	Appian Lawyers

HIS HONOUR:

The plaintiffs seek orders for the removal of two caveats registered on the certificate of title of land in Kew East. The orders are sought under s 90(3) of the Transfer of Land Act 1958. The first plaintiff, Ms Taraneh Nasseri, is the registered proprietor of the land. The second plaintiff, Mr Morteza SerajAnsari, is her former husband who claims 50 per cent of the net equity in the land, as a result of a property settlement and because of his contributions to the property’s purchase. Mr SerajAnsari made an affidavit, but because he is living overseas, he participated in the hearings remotely.

The caveats were lodged by Martello Property Pty Ltd (‘Martello’), which had entered into a Development Management Agreement (‘DMA’) with Ms Nasseri for the development of the land. Martello carries on business as a developer and project manager.

As the caveator, Martello must establish a serious question to be tried that it has an estate or interest in the land which supports the caveats and that the balance of convenience favours their maintenance until trial.[1]
[1]Piroshenko v Grojsman (2010) 27 VR 489, 491 [7].

On 23 May 2024, the second plaintiff, Mr SerajAnsari also registered a caveat on the title to protect his claimed interest in the land.

Ms Nasseri has entered into a contract to sell the property for $1.88 million with settlement pending. The Kew East property was the family home of the plaintiffs and their children. The property is mortgaged to the National Australia Bank and secures debt of approximately $1.5 million, thus leaving a net equity in the property of approximately $380,000. The mortgage was granted by Ms Nasseri and Mr SerajAnsari. However, recently mortgage repayments have not been made.

The evidence at present is that Ms Nasseri discussed with…

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.

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Details

Case: [2024] VSC 561
Decision Date: 4 September 2024

CaseChat Overview and Summary

The case of Nasseri v Martello Property Pty Ltd involved a dispute over the sale of a property situated in Melbourne. The first defendant, Martello Property Pty Ltd, was the registered proprietor of the property, while the plaintiff, Nasseri, and the second defendant, First State Funds Management, were caveators. The first caveat claimed a freehold estate in the property, while the second caveat asserted an interest in the land as the chargee. The dispute arose when the first defendant sought to sell the property and the caveats were lodged, impeding the sale. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court had to address was whether the caveats were valid and, if so, whether they should be removed to allow the sale to proceed. The court needed to determine if the first caveator had a legitimate basis for claiming an estate or interest in the land. Additionally, the court had to assess whether the second caveator had a serious question to be tried and whether the balance of convenience favoured the maintenance of the second caveat. These issues were critical to resolving the dispute and enabling the sale of the property to proceed.

The court found that the first caveat had no basis in fact or law, as the caveator had no estate or interest in the property. Consequently, the first caveat was ordered to be removed. Regarding the second caveat, the court held that the caveator had advanced funds for a development project and had rights under a Development Management Agreement. The court recognised that there was a serious question to be tried concerning the validity of the second caveator's interest in the land. Furthermore, the balance of convenience favoured maintaining the second caveat, given the significant financial interests at stake. Therefore, the court determined that the second caveat should remain in place, pending the resolution of the underlying dispute.

The final order of the court was to remove the first caveat and maintain the second caveat. This decision allowed the sale of the property to proceed, subject to the second caveat remaining in place. The court's ruling emphasised the importance of assessing the validity of caveats and the balance of convenience in cases where the sale of land is impeded by such caveats.

Orders