Saafin Constructions Pty Ltd v Vidak - [2015] VSC 441

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2015 03611

SAAFIN CONSTRUCTIONS PTY LTD	Plaintiff
v
KATHERINE VIDAK	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

---

JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2015
DATE OF JUDGMENT:	25 August 2015
CASE MAY BE CITED AS:	Saafin Constructions Pty Ltd v Vidak & anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 441

---

REAL PROPERTY — Removal of caveat — Whether serious question to be tried — Agreement document said to give rise to caveatable interest allegedly procured by duress — Alleged option to purchase land — No consideration provided — Balance of convenience favourable to removal of caveat — Transfer of Land Act 1958 s 90(3).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M C White	NOH Legal
For the First Defendant	Mr J G Levine	Toorak Law Pty Ltd
For the Second Defendant	No appearance

HER HONOUR:

The plaintiff seeks the removal of a caveat under s 90(3) of the Transfer of Land Act 1958.

The parties filed affidavits which were, in part, incomplete as to the facts. However, the essential facts may gleaned from the affidavits which I now summarise.

The plaintiff’s factual allegations

The plaintiff (‘Saafin’) is a corporation and has as one of its directors Wael Elsaafin, who deposed on affidavit as to the facts relied upon by the plaintiff. I set those out in the following paragraphs.

Saafin is the registered proprietor of the fee simple in the land at 65-67 Arden Street, North Melbourne (‘the North Melbourne property’), described in Certificate of Title Volume 08614 Folio 340. Another entity, Talara Nominees, is the registered mortgagee of the North Melbourne property. The first defendant (‘Ms Vidak’) lodged a caveat, number AL631976P, over the North Melbourne property (‘the caveat’). In the caveat, Ms Vidak described the caveatable interest as an ‘implied, resulting or constructive trust’. When the plaintiff’s lawyers requested that the caveat be removed, Ms Vidak through her lawyers produced a document entitled ‘Agreement’ which was said to give Ms Vidak grounds to lodge the caveat (‘the agreement document’). It provided as follows:

Agreement
DATE: 22nd August 2013
This is an agreement between Saafin Constructions Pty. Ltd.
and
Ms Katherine Vidak of 2 Eglington Court, Taylors Hill, 3037
According to the agreement, Saafin Constructions owes the amount of $200,000 to Ms Vidak, this amount of money will be paid back in full one week after getting the final certificate of occupancy permit of building the 27 apartment project of 65-67 Arden Street., North Melbourne, which owned [sic] by Saafin Constructions Pty. Ltd.
Alternatively, Ms Kathrine [sic] can buy and move to one of the apartments at the settlement date after paying the difference in the price of the unit she is moving in, depends on the market price at that time.

The document is then purported to be signed by Mr Elsaafin and one Hassan El Safin, another of Saafin’s directors, and…

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 Saafin Constructions Pty Ltd v Vidak

Details

AGLC: Saafin Constructions Pty Ltd v Vidak [2015] VSC 441
Case: [2015] VSC 441
Decision Date: 25 August 2015

CaseChat Overview and Summary

The matter before the court involved a dispute between Saafin Constructions Pty Ltd, the plaintiff, and Vidak, the defendant, concerning the removal of a caveat from a property title. The defendant had lodged a caveat asserting an interest in the property, which the plaintiff sought to have removed. The case was heard in the Supreme Court of Victoria.

The central legal issues revolved around whether the defendant had a serious question to be tried in maintaining the caveat. The defendant claimed that an agreement document, which was allegedly procured by duress, gave rise to a caveatable interest. This agreement purportedly provided an option to purchase the land, but no consideration was provided for this option. The court had to determine if the balance of convenience favoured removing the caveat, considering the relevant provisions of the Transfer of Land Act 1958, particularly section 90(3).

The court assessed the merits of the defendant’s claims, examining the validity of the agreement and the presence of any caveatable interest. It found that the defendant had not demonstrated a serious question to be tried due to the lack of evidence supporting the existence of a genuine option to purchase or any consideration. The court also noted that the balance of convenience favoured the removal of the caveat, as the plaintiff was likely to suffer significant prejudice if the caveat remained in place. Consequently, the court ruled in favour of the plaintiff, ordering the removal of the caveat from the property title.

The final orders of the court mandated that the caveat lodged by the defendant be removed from the property title and that the defendant bear the costs of the application. This decision reinforced the principle that a caveat should not be used to secure a claim that lacks substantial merit or to cause undue prejudice to the registered proprietor.

Orders