Sarandal Pty Ltd v Nameplan Pty Ltd - [2007] VSC 568

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…

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: [2007] VSC 568
Decision Date: 7 December 2007

CaseChat Overview and Summary

Sarandal Pty Ltd, the plaintiff, filed a summons seeking the removal of certain caveats lodged over land at Wallan, Victoria, pursuant to s 90(3) of the Transfer of Land Act 1958. The defendants by counterclaim, Candibon Pty Ltd, argued that the caveats should be removed as they were impeding the sale of the land and causing substantial financial loss. The case involved a complex web of partnerships, trusts, and agreements, primarily between Sarandal, Nameplan Pty Ltd, and Sherpy Pty Ltd, concerning the development of the Wallan land. The key issues were whether Sarandal had a valid equitable interest in the land and if the balance of convenience favoured the removal of the caveats.

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.

Orders