| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
No. 9126 of 2006
| SARANDAL PTY LTD (ACN 069 533 857) | Plaintiff |
| v | |
| NAMEPLAN PTY LIMITED (ACN 050 098 863) & ORS | Defendants |
AND BETWEEN:
| CANDIBON PTY LTD (ACN 006 867 358) | Plaintiff by Counterclaim |
| V | |
| SARANDAL PTY LTD (ACN 069 533 857) & PRIME EQUITY DEVELOPMENTS PTY LTD (ACN 082 747 626) | Defendants by Counterclaim |
AND BETWEEN:
| NAMEPLAN PTY LIMITED (ACN 050 098 863) & SHERPY PTY LTD (ACN 084 100372) | Plaintiffs by Counterclaim |
| v | |
| SARANDAL PTY LTD (ACN 069 533 857) & ORS | Defendants by Counterclaim |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2007 | |
DATE OF JUDGMENT: | 7 December 2007 | |
CASE MAY BE CITED AS: | Sarandal Pty Ltd v Nameplan Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 568 | |
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff and first defendant by counterclaim | Mr P D Crutchfield with Mr C Moller | Browne & Co Solicitors and Consultants Pty Ltd |
| For the first, second and fifth defendants | Mr J Manetta | Rigby Cooke Lawyers |
| For the sixth, seventh and Eighth defendants. | Mr S Rubenstein | Rotman & Morris Solicitors |
| For the ninth defendant and plaintiff by counterclaim and Victoree Pty Ltd | Mr P J Riordan SC with Mr P Fary | Comito, Iacovino & Co |
PROPERTY – Removal of caveat – Onus on caveator to maintain – Balance of convenience – s 90(3) Transfer of Land Act 1958
Latec Investments v Hotel Terrigal Pty Ltd (1965) 113 CLR 265
Moffatt v Dillon (1992) 2 VR 480
Jacobs v Platt Nominees Pty Ltd (1990) VR 146
HIS HONOUR:
The court has before it a summons filed on 22 November 2007 issued by Candibon Pty Ltd (“Candibon”), the ninth defendant and plaintiff by counterclaim in proceeding No.9126 of 2006, seeking orders under s 90(3) of the Transfer of Land Act 1958 that the caveats referred to in paragraph 1 of the summons be removed and under paragraph 2, an order that the Registrar of Titles be ordered pursuant to s 90(3) of the Transfer of Land Act 1958 to remove the caveats.
The respondents to the summons are the plaintiff in the proceedings, the caveator, Sarandal Pty Ltd (“Sarandal”), and the Registrar of Titles.
Candibon relies on the affidavit of Souhail Mondous (“Mr Mondous”), a director of Candibon, sworn 22 November 2007. Sarandal relies on an affidavit of Daniel Matruglio (“Mr Matruglio”), a former director of Sarandal, sworn on 3 December 2007.
Mr Matruglio deposes as follows. Sarandal is ‘his company’. Mr Matruglio is a builder by trade and from 1980 he carried on business as a property developer of commercial developments. Since approximately 1995, he has carried on business as a property developer involving subdivisions. In the main he has conducted that business in partnership with George Blau and Joseph Pierkarski.
The partnerships have been between companies associated with him, Blau and Pierkarski respectively. There have been several such partnerships. Since the disputes with…
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- Case
- [2007] VSC 568
- Decision Date
CaseChat Overview and Summary
Sarandal argued that it held an equitable fee simple interest in the land due to a partnership agreement and resulting trusts. It claimed that the caveats were necessary to protect its interest from being extinguished by the sale to Candibon. Conversely, Candibon argued that the sale was legitimate and that Sarandal's delay in challenging the sale undermined its claim. The court found that Sarandal had established a serious question to be tried regarding its equitable interest in the land and that the balance of convenience favoured the removal of the caveats, albeit on terms that protected Sarandal's rights and provided for possible compensation if it was found to have lost a valuable property interest. The court ordered the removal of the caveats with conditions to safeguard Sarandal’s potential losses and reserved the costs of the proceedings.
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