Pazman v Paras - [2021] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
PAZMAN v PARAS
[2021] SADC 22
Judgment of her Honour Judge Deuter
12 March 2021
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - PARTICULAR CASES
The Applicant applied for an order that the time for removal of a caveat over a property at Unit 6/70 Ladywood Road, Modbury North ('the property'), be extended until his claim has been determined by the Magistrates Court of South Australia.
The Respondent purchased the property in her sole name in May 2018. She is the adult daughter of the Applicant’s former defacto partner. The Respondent’s mother was the sole trader in a business buying and selling cars. The Applicant worked in the business and received no salary. The Respondent’s mother was paid an annual income. On 19 December 2016 the Applicant deposited $286,215.44 into the business account. These were the net proceeds from the sale of a property owned by him. The car selling business suffered significant losses and was wound up in 2019. The Respondent purchased the property by way of a large bank loan, savings and a cash gift from her mother.
The Applicant asserted that he contributed to the purchase of the property as a result of the funds he had provided to the used car business owned by the Respondent’s mother. The Applicant also deposed that these funds were used to purchase stock for the used car business. He asserted that the Respondent’s mother was only in a position to gift monies to the Respondent for the purchase of the property from the used car selling business account as a result of his capital contribution.
The Respondent never worked in the car selling business; worked full-time elsewhere; and at times loaned monies to the business.
HELD:
1. That the Applicant has not established a prima facie case with sufficient probability of success that he has any equitable interest in the property.
2. That caveat no. 13206987 should be removed from the title of the property.
Partnership Act 1891 (SA) s 1(1), referred to.
Whallin v Bailbart Investments Pty Ltd (1987) 47 SASR 198; Paringawood Nominees Pty Ltd v Baulderstone [1999] SASC 380; Australian Broadcasting Corporation v O'Neill [2006] 227 CLR 57; Re: Baumgartner (1987) 76 ALR 75; Li v Wang [2020] SADC 97; Muschinski v Dodds (1985) 160 CLR 583; Piroshenko v Grojsman & Ors [2010] 27 VR 489; Eng Mee Yong [1980] AC 331; Magna Alloys & Research Pty Ltd v Coffery [1981] VR 23, applied.

PAZMAN v PARAS
[2021] SADC 22

Introduction

The Respondent, Majel Paras, is the registered proprietor of a property situated at Unit 6/70 Ladywood Road, Modbury North South Australia, comprised in Certificate of Title Register Book Volume 6017 Folio 395 (‘the property’).
The Applicant, George Pazman, claims an equitable interest in the property. On 19 November 2019, he caused a caveat to be lodged on the property (‘the caveat’). The Respondent warned the caveat,…

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 Pazman v Paras

Details

AGLC: Pazman v Paras [2021] SADC 22
Case: [2021] SADC 22
Decision Date: 12 March 2021

CaseChat Overview and Summary

The case of Pazman v Paras involved a dispute over the removal of a caveat against dealings on a Torrens title property. The property in question was located in New South Wales, and the matter was heard by the Supreme Court. The applicant, Pazman, had lodged a caveat against dealings on the property, asserting an equitable interest. The respondent, Paras, sought to have the caveat removed, arguing that the applicant had not demonstrated a sufficient probability of success in establishing an equitable interest.

The primary legal issue before the court was whether the applicant had demonstrated a prima facie case that he had an equitable interest in the property, sufficient to justify the maintenance of the caveat. This involved examining the applicant's claims and evidence to determine if there was a sufficient probability that he would succeed in establishing an equitable interest, which would entitle him to the caveat remaining on the title. The court was required to assess whether the applicant's claims were plausible and supported by credible evidence.

In delivering the judgment, the court found that the applicant had not established a prima facie case with sufficient probability of success that he had any equitable interest in the property. The court noted that the applicant's claims were speculative and not supported by credible evidence. Consequently, the court held that the caveat should be removed from the title of the property. The court found that there was insufficient evidence to support the applicant's assertions, and thus, the caveat was not justified. As a result, the respondent's application to remove the caveat was granted.

The final orders of the court were that the applicant had not established a prima facie case with sufficient probability of success that he had any equitable interest in the property, and that caveat number 13206987 should be removed from the title of the property. This decision underscores the necessity for applicants lodging caveats to provide credible and substantiated evidence to support their claims, and highlights the court's role in ensuring that caveats are not used as a tool for unjustified interference in property transactions.

Orders

Orders of the court

HELD:

1. That the Applicant has not established a prima facie case with sufficient probability of success that he has any equitable interest in the property.

2. That caveat no. 13206987 should be removed from the title of the property.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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