Shklyarevsky v Vasiliou

[2003] VSC 177

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5853 of 2003

IN THE MATTER of the Transfer of Land Act 1958

and

IN THE MATTER of an application pursuant to Section 90(3) of the Transfer of Lane Act 1958 for the removal of a Caveat lodged in the Land Titles Office on Certificate of Title Volume 4721 Folio 185 in Dealing No. AC064832D

DMITRY SHKLYAREVSKY, LENA SHKLYAREVSKY and SVETLANA SHKLYAREVSKY	Plaintiffs
v
ANDREW VASILIOU, KATHY CALLAS and REGISTRAR OF TITLES	First and Second Defendants Third Defendant

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 May 2003
DATE OF JUDGMENT:	23 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSC 177

PRACTICE AND PROCEDURE – Application for removal of caveat – No caveatable interest – Order caveat be removed.

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APPEARANCES:	Counsel	Solicitors
Plaintiffs	Mr J. Castelan
1st & 2nd Defendants	In Person
Third Defendant	No appearance

HIS HONOUR:

1. This is an application by the plaintIffs for the removal of a caveat placed on a property at 226 Grange Road, Carnegie by the first defendant Andrew Vasiliou on 14 May of this year.

1. The history of this matter, as set out on the material, is that the property at Grange Road, Carnegie was sold on 24 November 2002 and was purchased by the first defendant.  Under the terms of the contract of sale Mr Vasiliou subsequently nominated the second defendant, Ms Kathy Callas, as purchaser.

1. On 24 February 2003 settlement of the sale was unable to take place and consequently a Notice of Recision dated 25 February was served on both Andrew Vasiliou and Kathy Callas by way of a letter from a solicitor, Rudestein Kron Lawyers on that date.

1. Under that Notice the defendants were effectively given until 11 March to settle the contract of sale, otherwise the contract was to be rescinded.  Settlement did not in fact occur on 11 March 2003 and the contract was rescinded.   I have heard from Mr Vasiliou a number of reasons why that settlement did not occur.  These included problems with a caveat apparently placed on the Callas property by the solicitors, Rudestein Kron Lawyers, in relation to a separate matrimonial dispute.   Various other problems had with that firm were asserted by Mr Vasiliou.

1. It appears that next in the sequence of events Ms Callas lodged a caveat on 12 March based on her interest as a purchaser under the contract of sale in November.  In fact, the property was sold at what I am informed was a reduced price on 13 March of this year to new purchasers.   The plaintiffs have been attempting to settle that contract of sale since that date.

1. One action taken to facilitate this occurring was the sending of a letter to the Registrar of Titles pursuant to the procedure set out under s.89A of the Transfer of Land Act. That section provides for the Registrar to write to a caveator specifying a day not less than 35 days after such written notice is served when, unless the application has been abandoned or notice in writing has been given to the Registrar that legal proceedings are on foot, the caveat shall lapse as to the land and the estate or interest therein. At that point the Registrar is to make the necessary amendments in the Register.

1. The final day before the lapsing of the caveat was apparently 15 May 2003 and, on 14 May, the first defendant lodged his own caveat in exactly the same terms as the Callas caveat which, one would assume under the provisions of the Act, was about to lapse. 

1. In submitting that this caveat should be removed, Mr Castelan, who appeared on behalf of the plaintiffs, made the points that the contract was validly rescinded on 11 March 2003 and consequently there was no basis in law for the caveat lodged on 12 March.  This was so because at that point there was no interest in the land that could be claimed by the second defendant.  In any event that caveat has now lapsed.

1. In relation to the caveat lodged on 14 May, it was put by Mr Castelan that it also had no basis in law since the first named defendant ,having nominated the second named defendant as the purchaser under the contract, had no legal standing. Alternatively, it was put that since the caveat of 14 May was in the same terms as the caveat lodged by Ms Callas on 12 March it should be removed pursuant to s.91(4) of the Transfer of Land Act. Arguably that is so, but I do not think I need to determine the precise meaning of the words in the section for the purposes of this application.

1. In essence, on the basis of the matters submitted to me by Mr Castelan it was argued that there was no serious issue to be tried and in any event the balance of convenience lay in the removal of the caveat.

1. In relation to the balance of convenience, it was pointed out that in expectation of the February settlement of the sale of the Grange Road property the plaintiffs had rented a house and had also knocked down another house expecting to build on the vacant land.  The initial sale having fallen through and the resale having been prevented to date by the imposition of the caveats, there had been no money to proceed with that project.

1. I think that from a legal point of view the matters raised by Mr Castelan are essentially correct.  Whilst there is some factual dispute surrounding these matters, I think that the better view in law is that there is no serious issue to be tried even if that were not the case, it is my view that the balance of convenience does not favour the continuation of the status quo and on that basis the caveat should be removed.

1. As to the other matters raised by Mr Vasiliou about which it is quite clear he feels strongly, particularly in relation to the actions of the vendor's solicitors, and of course in relation to any loss that may be occasioned to him if there is any forfeiture of the deposit, these issues can be dealt with in other legal proceedings.

1. However, in terms of the strictly legal matters that I have to decide today, it is my view as I have already indicated that the caveat should be removed and the orders by and large submitted to me by Mr Castelan on behalf of the plaintiffs are appropriate ones. However, I am not convinced at the end of the day that I should exercise my discretion in ordering costs on an indemnity basis as I have the power to do under s.118 of the Transfer of Land Act. I am of the view that party and party costs are adequate in the circumstances. I would accordingly propose to amend the order in so far as that matter is concerned.

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