Sandich v Fasoulis - [2023] VSC 65

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2023 0542

SOFIA SANDICH	Plaintiff
v
CHRISTOS FASOULIS	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	17 February 2023 (delivered ex tempore; revised 22 February 2023)
CASE MAY BE CITED AS:	Sandich v Fasoulis
MEDIUM NEUTRAL CITATION:	[2023] VSC 65

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REAL PROPERTY – Caveat – Application to remove caveat – Whether a serious question to be tried in respect of the estate or interest claimed – Baumgartner trust asserted – Caveat used as a bargaining chip – Transfer of Land Act1958, s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Black	Aitken Partners
For the First Defendant	Mr M Thomas	Dandanis & Associates

HIS HONOUR:

The plaintiff is one of two registered proprietors of a property in Stevenson Street, Kew. The other registered proprietor is a former husband, Phillip Branov. The first defendant has no legal interest in this property. He married the plaintiff on 25 March 2017, although they have now separated with no prospect of reconciliation.

On 6 February 2023, the first defendant commenced a proceeding against the plaintiff in the Federal Circuit and Family Court of Australia, seeking financial orders pursuant to s 79(1) of the Family Law Act 1975 (Cth). He was legally unrepresented. The substance of the first defendant’s claim is a financial settlement, for a division of the total net non-superannuation assets of the parties and he seeks a settlement of 85 per cent to the wife and 15 per cent to him. In the alternative, that the court make any order that is just and equitable, pursuant to s 79 of the Family Law Act, and such further orders as are deemed necessary or appropriate. The first defendant sought an interim order that the plaintiff pay him $150,000 by way of an interim property settlement, but did not apply for that interim relief (the ‘family law proceeding’).

Part D of his application contains a section entitled, 'Evidence', in which the first defendant sets out the circumstances of his marriage to the plaintiff, and his claim for a financial settlement. He acknowledged that at the commencement of their marriage the plaintiff solely occupied the Stevenson Street property, which she owned outright (jointly with Branov), and he shared his time between that property and his property in Murrumbeena, which was encumbered with a sizeable mortgage, where his children also resided.

The first defendant explained that the financial burden of supporting the plaintiff and his children and running two households, quickly became untenable and he fell into serious financial difficulty. He sold a property held by a family trust and sold the Murrumbeena property in March 2018. He stated that he ‘used the net proceeds’ to pay off credit card debts, tax debts and some of the plaintiff's outstanding lawyer’s fees, most of which were incurred since the commencement of…

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 Sandich v Fasoulis

Details

AGLC: Sandich v Fasoulis [2023] VSC 65
Case: [2023] VSC 65
Decision Date: 17 February 2023 (delivered ex tempore; revised 22 February 2023)

CaseChat Overview and Summary

The matter of Sandich v Fasoulis involved a dispute over a caveat lodged by the defendant against the plaintiff’s property. The plaintiff, Sandich, sought to remove the caveat from the register of titles, arguing that there was no serious question to be tried regarding the estate or interest claimed by the defendant, Fasoulis. The case was heard and determined in the Supreme Court of Victoria. The central legal issues revolved around the application of section 90(3) of the Transfer of Land Act 1958, which provides that a caveat may be removed if the court is satisfied that there is no serious question to be tried in respect of the estate or interest claimed. Additionally, the court had to consider whether the defendant had used the caveat as a bargaining chip, and if the Baumgartner trust was applicable in this context.

The court analysed the nature of the defendant’s interest in the property and examined the evidence presented regarding the assertion of the Baumgartner trust. It was noted that the defendant had used the caveat to gain leverage in negotiations with the plaintiff, rather than to genuinely protect a legitimate interest in the property. The court determined that the defendant’s use of the caveat as a bargaining tool, without any serious intention to pursue the claimed interest, did not constitute a serious question to be tried. Consequently, the court concluded that the caveat should be removed from the register of titles under section 90(3) of the Transfer of Land Act 1958.

In light of the findings, the court ordered the caveat lodged by Fasoulis to be removed from the register of titles. This decision underscored the importance of the proper use of caveats in real property transactions, and emphasised that a caveat should not be used as a means to exert pressure or gain an advantage in negotiations. The court’s ruling provided clarity for future cases involving the misuse of caveats and reinforced the principle that caveats should only be used to protect genuine interests in property.

Orders