REAL PROPERTY – Caveat – Application to remove caveat - Transfer of Land Act1958 s 90(3) – Nature of discretion – Analogous to application for interlocutory injunctive relief – Meaning of a serious question to be tried – Need to establish prima facie case of sufficient probability to justify maintenance of caveat - Australian Broadcasting Authority v O’Neill (2006) followed.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr P Nimal Wikramanayake SC
Lewenberg & Lewenberg
For the First Defendant
Mr S Tatarka
Bellelli King & Associates
HER HONOUR:
The dispute between the parties
This is a dispute over a property known as Unit 6, 21-23 Gardenvale Road, Caulfield South VIC 3162 described in Certificate of Title Volume 8652 Folio 013 (‘the property’). The plaintiff is the sole registered proprietor of the property. The first defendant claims an unregistered equitable interest in the property.
The third defendant, the Registrar of Titles, did not participate in the hearing.
Background to the dispute
The parties began a de facto relationship in the Ukraine in 2002 or 2003. They moved to Australia in February 2006. After coming to Australia, the parties married. They are now divorced. On 18 December 2006 a deposit of $10,000 was paid on the property and a contract signed. The plaintiff is nominated as the only purchaser on the contract of sale. On 18 January 2007, the parties began cohabiting in the property pursuant to a license agreement executed between the plaintiff and its vendors. At the end of January, the parties separated, and on 6 February 2007, the plaintiff obtained an interim intervention order against the first defendant restraining him from coming within 200 metres of the property. On 16 February 2007, the plaintiff obtained a mortgage from the Commonwealth Bank of Australia. On 2 March 2007, the plaintiff purchased the property and became the registered proprietor.
Subsequently, by a contract of sale dated 5 March 2010, the plaintiff sold the property to a third party, Theresa Kadel for $520,000. Settlement of that transaction was scheduled to take place on 9 April 2010, but has been extended. On 11 March 2010, the first defendant lodged a caveat on the Certificate of Title (‘the caveat’) pursuant to s 89 of the Transfer of Land Act1958 (‘the Act’). He claimed an estate in fee simple in the property pursuant to an implied trust between himself and the plaintiff. The nature of this implied trust, whether it be resulting or constructive, has not been specified in the first defendant’s affidavit or in the oral submissions of his counsel. As…
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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AGLC
Piroshenko v Grojsman [2010] VSC 240
Case
[2010] VSC 240
Decision Date
CaseChat Overview and Summary
Piroshenko v Grojsman involved a dispute concerning the removal of a caveat from a property transaction. The matter was heard in the Supreme Court of Victoria. The plaintiff, Piroshenko, sought the removal of a caveat lodged by the defendant, Grojsman, on a property that Piroshenko intended to purchase. The legal issues before the court encompassed the nature and scope of the discretion exercised under section 90(3) of the Transfer of Land Act 1958 in relation to the removal of a caveat and the standard required to establish a serious question to be tried. The court had to determine whether Grojsman had a sufficient basis to maintain the caveat.
The court considered the principles set forth in Australian Broadcasting Authority v O’Neill, emphasising that the standard for establishing a serious question to be tried is analogous to that required for interlocutory injunctive relief. The court held that Grojsman needed to demonstrate a prima facie case with a sufficient probability to justify the maintenance of the caveat. This involved a rigorous assessment of the evidence presented to determine whether there was a serious question to be tried. The court applied this standard and found that Grojsman had not met the requisite threshold.
Consequently, the court ruled in favour of Piroshenko and ordered the removal of the caveat lodged by Grojsman. The decision underscored the high bar set for maintaining a caveat and reinforced the necessity for the caveator to establish a prima facie case with a significant probability of success. This ruling clarified the legal criteria for the removal of caveats and provided guidance for future similar applications.