Polidoro Developments v Hayek - [2012] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

SCI 2012 234

POLIDORO DEVELOPMENTS PTY LTD (ACN 151 340 395)	Plaintiff
v
FRED HAYEK	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2012
DATE OF JUDGMENT:	2 February 2012
CASE MAY BE CITED AS:	Polidoro Developments v Hayek & anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 20

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REAL PROPERTY – Caveat – Application to remove caveat – Transfer of Land Act s 90(3) – Whether estate or interest in land.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	I Jones SC	Efron & Associates
For the Defendant	D Triaca	Seoud Solicitors

HIS HONOUR:

Introduction

This is an application made in the Practice Court by the plaintiff Polidoro Developments Pty Ltd[1] pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic).[2] It seeks to remove a caveat lodged by the first defendant Mr Fred Hayek over a property in Kett Street, Lower Plenty.[3]
[1]“PD”.
[2]“TLA”.
[3]The second defendant, the Registrar, as is customary, took no part in the hearing of the application.

The guiding mind of PD is Mr Remo Polidoro. He and Mr Hayek have fallen out over their joint venture in the development of the property which involved the construction of six units (now completed and occupied), three of which are the subject of contracts of sale.

The primary issue agitated before me is whether the joint venture agreement between PD and Mr Hayek gave Mr Hayek an interest in land and thus the basis for the lodging of the caveat. A secondary point arises in relation to the form of the caveat.

Some relevant facts

The affidavit material filed reveals many issues which cannot be resolved until trial. However, I think the following matters are not in issue.

The property was the subject of a transfer by Myrtle Turnbull to Grandell Pty Ltd[4] on 21 November 2008. Grandell became and remains the registered proprietor. It is the corporate vehicle of a developer, Mr Robert Elliot who is an associate of both Mr Hayek and Mr Remo Polidoro.
[4]“Grandell”.

Notwithstanding that Grandell remained the registered proprietor, PD and Mr Hayek entered into a joint venture to develop the property by constructing six units. I shall return to the terms of the joint venture agreement (which was oral) in a moment.

On 17 June 2010, Mr Polidoro entered into a contract of sale with Grandell to purchase the property.

On 22 June 2011, PD (as the nominee of Mr Polidoro) settled the purchase and a transfer from Grandell to PD was lodged with the Registrar of Titles.

On 4 July 2011, Mr Hayek lodged a caveat in relation to the land in the following terms:

Estate or interest claim: An equitable interest in fee simple
Grounds of claim: As beneficiary under an implied, resulting or constructive trust.

In July 2011, a writ was issued in the County Court by Mr Hayek against Grandell,…

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 Polidoro Developments v Hayek

Details

AGLC: Polidoro Developments v Hayek [2012] VSC 20
Case: [2012] VSC 20
Decision Date: 2 February 2012

CaseChat Overview and Summary

In Polidoro Developments v Hayek, the dispute revolved around the validity of a caveat lodged by the defendant over a property. The plaintiff, Polidoro Developments, sought to have the caveat removed, arguing that it was invalid and had been improperly lodged. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the caveat lodged by Hayek was valid under the Transfer of Land Act 1936 (NSW). Specifically, the court had to determine whether the caveat related to an estate or interest in the land as required by section 90(3) of the Act. Polidoro Developments argued that the caveat did not pertain to any estate or interest in the land and was thus invalid.

The court considered the provisions of the Transfer of Land Act and the nature of the interest claimed by Hayek. The court held that the caveat was invalid because it did not relate to an estate or interest in the land. The court reasoned that the caveat did not satisfy the statutory requirements, as it was based on a personal claim unrelated to any proprietary interest in the property. Consequently, the court granted Polidoro Developments' application to remove the caveat.

The final orders of the court were that the caveat lodged by Hayek was invalid and should be removed. The court further ordered that the caveat be expunged from the register of titles for the relevant property. This decision clarifies the requirements for a valid caveat under the Transfer of Land Act and reinforces the importance of ensuring that any caveat relates directly to an estate or interest in the land.

Orders