Schwartz v Hadid - [2013] VSC 130

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 727 of 2013

JERRY SCHWARTZ	Plaintiff
v
ALBERT HADID	First defendant
- and -
THE REGISTRAR OF TITLES for Victoria	Second defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2013
DATE OF JUDGMENT:	26 March 2013
CASE MAY BE CITED AS:	Schwartz v Hadid
MEDIUM NEUTRAL CITATION:	[2013] VSC 130

---

REAL PROPERTY – Caveat – Whether caveat defective – Whether caveat can be amended – Application to remove caveat – Transfer of Land Act 1958 s 90(3) – Serious question to be tried – Estate or interest in land – Balance of convenience

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Kennedy	Gadens Lawyers
For the Defendant	In person

HER HONOUR:

Issues for Determination

The issues for determination in this proceeding are:

(a) Whether Caveat AJ192736W, lodged by the defendant on the plaintiff’s property contained in Certificate of Title Volume 10643 Folio 020 (‘the property’), is defective.

(b) If the caveat is defective, whether the Court, in the exercise of its discretion, should allow the defendant to amend the caveat.

(c) If the Court exercises its discretion to allow the amendment of the caveat, or if the caveat was properly lodged over the property, whether the Court should exercise its discretion under s 90(3) of the Transfer of Land Act 1958 (‘the Act’) to remove the caveat.

Factual Background

The first defendant claims an estate in fee simple in the property on the grounds that he has an ‘[e]quitable interest as a 50% shareholder of the property pursuant to a trust Deed’.[1]
[1]Exhibit SLB-2 to the affidavit of Stephanie Louise Borg sworn 13 February 2013.

The background to the claim revolves around an agreement made on 23 August 2007 between the plaintiff and the first defendant (‘the August agreement’). The August agreement has been the subject of a proceeding in the New South Wales Supreme Court, namely, Schwartz v Hadid[2] (‘the NSW proceeding’). In that proceeding, the first defendant was represented by solicitors and counsel.
[2][2011] NSWSC 1041 (6 September 2011).

In the NSW proceeding, the first defendant claimed damages against the plaintiff for breach of an alleged agreement. The August agreement formed a significant part of that proceeding.

The general facts found in the NSW proceeding were that the first defendant presented an ‘investment proposal’ to the plaintiff. The proposal as alleged was that the plaintiff would purchase property referred to as site B (being the property the subject of this proceeding) and then purchase or take options on two other pieces of land known as site C and site D and that the properties would be sold together. The proposal did not include any building works to be performed on the properties before they were sold. The first defendant did not contribute any money to the purchase of the property[3] but merely presented the investment proposal to the plaintiff.[4]
[3]Ibid [27], [33].
[4]Ibid [8].

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.

Continue reading Schwartz v Hadid

Details

AGLC: Schwartz v Hadid [2013] VSC 130
Case: [2013] VSC 130
Decision Date: 26 March 2013

CaseChat Overview and Summary

In the case of Schwartz v Hadid, the respondent, Schwartz, sought to have a caveat lodged by the appellant, Hadid, removed from a parcel of land. Hadid's caveat was intended to protect an interest in the land arising from a purported agreement to sell the property. The dispute was heard in the Supreme Court of Victoria. Schwartz argued that the caveat was defective and should be removed, while Hadid maintained that the caveat was valid and should be upheld.

The central legal issues before the court were whether Hadid's caveat was defective and whether it could be amended to address any defects. The court also had to determine whether a serious question to be tried existed regarding Hadid's interest in the land, and whether the balance of convenience favoured removing the caveat. Furthermore, the court considered whether Schwartz had established that Hadid's caveat was an incumbrance on the land within the meaning of the Transfer of Land Act 1958.

The Supreme Court found that Hadid's caveat was defective as it did not clearly and concisely state the nature and particulars of the claimed interest in the land. Despite this defect, the court held that the caveat could be amended to correct the deficiencies. The court found that a serious question to be tried existed concerning Hadid's interest in the land, given the purported agreement to sell. However, the balance of convenience favoured removing the caveat, as Schwartz had demonstrated a clear right to the land and Hadid had not shown sufficient grounds to justify maintaining the caveat. Consequently, the court ordered the caveat to be removed.

Orders