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Nicholas Olandezos v Bhatha

Nicholas Olandezos v Bhatha

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Case Copied 5 May 2017 38 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 00558

NICHOLAS OLANDEZOS	Plaintiff
v
SATNAM SINGH BHATHA	First Defendant
JASWINDER BHATHA	Second Defendant
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Third Defendant
REGISTRAR OF TITLES	Fourth Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2017
DATE OF JUDGMENT:	5 May 2017
CASE MAY BE CITED AS:	Nicholas Olandezos v Bhatha & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 234

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CAVEAT – Removal of caveats – Caveats lodged by persons claiming interests by adverse possession – Subject land vested in ASIC – Plaintiff owner of neighbouring land is applicant to ASIC to purchase subject land – Standing of plaintiff not disputed – Serious question to be tried established – Balance of convenience favours caveators – Caveators applied pursuant to s 60 of the Transfer of Land Act 1958 for an order vesting the land in them for an estate in fee simple – Whether disputes of fact warrant maintenance of caveat subject to condition that caveators commence proceedings – Conditional order for the removal of the caveats made – Ex Parte Vincent (1886) 12 VLR 566; Re Jasper’s Caveat [1923] VLR 650; Evandale Estates Pty Ltd v Keck [1963] VR 647; McMahon v McMahon [1979] VR 239; Piroshenko v Grosjman (2010) 27 VR 489; Carbon Black Pty Ltd v Launer [2015] VSCA 126; Sylina v Solanki [2014] VSC 2.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Cawthorn QC with Mr J P Foster	Garden & Green Australian Lawyers
For the First and Second Defendants	Mr W F Rimmer	Peter Speakman & Co
For the Third Defendant	Ms E Levine	ASIC
No appearance for the Fourth Defendant

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of Conclusions................................................................................................................. 2

Factual Background........................................................................................................................... 2

Disputed Land is vested in ASIC............................................................................................... 5

Relevant legal principles.................................................................................................................. 7

Application to Remove Caveats................................................................................................. 7
Adverse Possession.................................................................................................................... 10

Prima facie case................................................................................................................................. 12

Submissions................................................................................................................................. 12
Analysis........................................................................................................................................ 16

Balance of convenience................................................................................................................... 19

Conditional Removal of the Caveats............................................................................................ 21

Conclusion......................................................................................................................................... 24

HIS HONOUR:

Introduction

The plaintiff seeks the removal of 2 caveats (‘the Caveats’) pursuant to s 90(3) of the Transfer of Land Act1958 (Vic) (‘the TLA’). The Caveats have been lodged by the first and second defendants (‘Caveators’) in relation to a strip of land near the Benjeroop-Tresco Road, Tresco, Victoria registered in the name of Australian Farms Pty Ltd (ACN 004 066 513) (‘Australian Farms’), being the whole of the land described in Certificate of Title Volume 11256 Folio 932. The Caveators’ claim a freehold estate in that land by adverse possession (‘the disputed land’). The prohibition against the registration of any instrument affecting the estate claimed is absolute.

The disputed land is 347.42 meters long and 20.12 meters wide and adjoins the plaintiff’s land.[1] It also adjoins the Caveators’ land.[2] The disputed land lies to the east of the Caveators Land and between it and the plaintiff’s land.
[1]Situate at Benjeroop-Tresco Road, Tresco,…

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: [2017] VSC 234
Decision Date: 5 May 2017

CaseChat Overview and Summary

The matter before the Court was between Nicholas Olandezos and Bhatha. Olandezos, the owner of neighbouring land, sought to purchase property from the Australian Securities and Investments Commission (ASIC), which was the subject of caveats lodged by the Bhatha family claiming adverse possession. The court was required to decide the issues of whether the serious question to be tried was made out and whether the balance of convenience favoured the caveators. Olandezos applied to ASIC for permission to purchase the property, and the Bhatha family, who lodged the caveats, opposed the application.

The Court considered the principles and relevant case law concerning the removal of caveats and the balance of convenience. The Court found that Olandezos had established a serious question to be tried, but the balance of convenience favoured the Bhatha family. The Court determined that the Bhatha family had a reasonable prospect of successfully defending the claim of adverse possession and that the balance of convenience favoured them. The Court made a conditional order for the removal of the caveats, requiring the Bhatha family to commence proceedings within a specified time frame. The Court relied on precedents such as Ex Parte Vincent, Re Jasper’s Caveat, Evandale Estates Pty Ltd v Keck, McMahon v McMahon, Piroshenko v Grosjman, Carbon Black Pty Ltd v Launer, and Sylina v Solanki.

The Court's final orders were that the caveats be removed subject to the Bhatha family commencing proceedings within the specified time frame. The Court also ordered that the subject land be vested in Olandezos upon the commencement of the proceedings by the Bhatha family, subject to any final determination of the adverse possession claims. This decision highlights the importance of the balance of convenience in determining whether to remove a caveat and the need for the caveators to promptly commence proceedings to defend their claims.

Orders