Rolltherm Shutters Pty Ltd v Georgiou - [2004] VSC 273

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 7060 of 2004

ROLLTHERM SHUTTERS PTY LTD	Plaintiff
v
MICHAEL GEORGIOU & THE REGISTRAR OF TITLES	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 AUGUST 2004
DATE OF RULING:	5 AUGUST 2004
CASE MAY BE CITED AS:	ROLLTHERM SHUTTERS v GEORGIOU & ANOR
MEDIUM NEUTRAL CITATION:	[2004] VSC 273

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Application for an order pursuant to s.90(3) of the Transfer of Land Act 1958 – Alleged breach of s.91(4) of the Transfer of Land Act – Alleged that caveator has not discharged the onus which lies upon him to justify the maintenance of the caveat - Dispute as to whether heads of agreement resulted in the creation of an equitable caveatable interest – Existing proceeding concerning the interest claimed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Arthur	Clarkson & Socio
For the Defendants	Mr G. Lucas	Andrew T Fraser & Associates

HIS HONOUR:

By summons on originating motion the plaintiff in this matter seeks an order pursuant to s.90(3) of the Transfer of Land Act 1958 that a caveat dated 26 November 2003 lodged by the first defendant with the Registrar of Titles be removed forthwith. The application is made on two bases. First it is said that the caveat has been lodged in breach of s.91(4) of the Transfer of Land Act which provides:

"A caveat that has lapsed or been removed shall not be renewed by or on behalf of the same person in respect of the same interest".

Despite the diligent arguments advanced by Mr Arthur my preliminary view is that the caveat has not been renewed in respect of the same interest claimed in a previous caveat. The first caveat claimed on behalf of the defendant Georgiou an equitable estate in fee simple the grounds of claim were said to be an equitable interest pursuant to a contract of sale dated 24 October 2002 between Michael Georgiou and Rolltherm Shutters Pty Ltd (ACN 057 173 172). The caveat now in issue claims on behalf of the defendant Georgio an interest as equitable mortgagee. The grounds of claim are stated as pursuant to heads of agreement dated 24 October 2003 to give a mortgage between Michael Georgio, Nick Boutros and Dimitrios Tomazou.

My preliminary view is that the interest claimed is not in substance the same interest as that claimed in the first caveat although it is grounded on the evidence allegedly comprised in the same document embodying heads of agreement.[1]
[1]See Layrill v Furlap Constructions Pty Ltd [2002] VSC 51

Nevertheless because of the view I have taken with respect to the second limb of this matter, I will not express a concluded view as to the first basis of the plaintiff's application.

The second basis of the application is that the caveator has not discharged the onus which lies upon him to justify the maintenance of the caveat.[2] The defendant's response is that the…

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: [2004] VSC 273
Decision Date: 5 August 2004

CaseChat Overview and Summary

The case of Rolltherm Shutters Pty Ltd v Georgiou was heard by the Supreme Court of Victoria. Rolltherm Shutters Pty Ltd sought an order to discharge a caveat lodged by Georgiou over certain land. The dispute arose out of a complex set of transactions involving an alleged breach of certain sections of the Transfer of Land Act 1958. The primary issue before the court was whether the heads of agreement between the parties had resulted in the creation of an equitable interest which was caveatable. Additionally, the court had to determine whether Georgiou had discharged the onus of justifying the maintenance of the caveat.

The court examined the nature of the heads of agreement and the obligations imposed on the parties. It considered whether these agreements created an equitable interest sufficient to warrant the lodgement of a caveat. In doing so, the court highlighted that for a caveat to be justified, there must be an interest in the land that is both real and substantial. The court also took into account the fact that there was an existing proceeding concerning the interest claimed, which further complicated the matter. The court concluded that the heads of agreement did not create a caveatable interest and that Georgiou had not demonstrated sufficient grounds to maintain the caveat.

In reaching its decision, the court found that Georgiou had not discharged the onus of justifying the maintenance of the caveat. Consequently, the court ordered that the caveat be removed from the register of titles. This ruling underscores the importance of clear and substantial equitable interests in the context of caveats and the necessity for caveators to provide adequate justification for their actions.

Orders