JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2023
DATE OF JUDGMENT:	18 May 2023
CASE MAY BE CITED AS:	Sohtra v Peddi
MEDIUM NEUTRAL CITATION:	[2023] VSC 262

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PROPERTY LAW – Sale of Land – Plaintiff sold one of a pair of properties to the defendant – At settlement of the sale, possession of the wrong property given to the defendant – Vendor discovered mistake four years after the settlement of the sale – Vendor, as registered proprietor of the property in possession of the defendant, applies for an order to recover possession of the property – Registered proprietor entitled to recover possession of the property and the rents and profits arising from the property.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S V Kipen	Mahl Lawyers
For the Defendant	No appearance

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Evidence - plaintiff............................................................................................................................ 2

Evidence - defendant......................................................................................................................... 6

The pleadings..................................................................................................................................... 7

Submissions - plaintiff..................................................................................................................... 7

Submissions - defendant.................................................................................................................. 9

Consideration...................................................................................................................................... 9

Conclusion......................................................................................................................................... 11

HIS HONOUR:

Introduction

By originating motion filed on 25 February 2022, the plaintiff applied under Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) for the recovery of the land at 54A O’Reilly Road, Tarneit, Victoria (‘Subject Property’).[1] In accordance with r 53.03(2) of the Rules, the proceeding was commenced without naming any person as defendant.[2]
[1]The land more particularly described in Certificate of Title Volume 11642 Folio 721.
[2]By order of McDonald J made on 16 May 2023, pursuant to r 77.05 of the Rules, the originating motion filed on 25 February 2022 (meaning the proceeding commenced by the originating motion) was referred to the Derham AsJ for hearing and determination.

By order of Keith JR made on 4 May 2022, Mamatha Peddi was joined as a defendant pursuant to r 9.06 of the Rules.[3] On 7 June 2022, the proceeding was fixed for hearing on 26 July 2022, with directions for the filing and service of affidavits. The application came on for hearing on 26 July 2022 and Ierodiaconou AsJ refused the application and ordered a Court-annexed mediation. The proceeding did not resolve at mediation and the plaintiff applied for orders that the proceeding continue as if commenced by writ.
[3]The power for the Judicial Registrar to do so was referred by Matthews AsJ pursuant to r 84.04(1) of the Rules.

The hearing of the plaintiff’s application was conducted by audio-visual link and it became impossible for the Associate Judge concerned to communicate adequately because the defendant and her husband spoke only limited English. The hearing was adjourned and came on in Court before Keith JR who made orders pursuant to r…

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 Sohtra v Peddi

Details

AGLC: Sohtra v Peddi [2023] VSC 262
Case: [2023] VSC 262
Decision Date: 18 May 2023

CaseChat Overview and Summary

The case of Sohtra v Peddi involved a dispute between the plaintiff, the original seller of a property, and the defendant, the buyer who had possession of the incorrect property after settlement. The dispute was brought before the court to determine whether the plaintiff, as the registered proprietor, was entitled to recover possession of the property and any rents and profits arising from it. The defendant, who had been in possession of the property for four years, argued that the plaintiff's delay in discovering the error should preclude the recovery of possession.

The court had to determine whether the plaintiff's delay in discovering the error and the defendant's long possession of the property should prevent the plaintiff from recovering possession and the rents and profits. This involved examining the principles of property law, specifically the rights of a registered proprietor and the effect of delay on the recovery of possession. The court also had to consider whether the defendant had any equitable interest in the property that could defeat the plaintiff's claim.

The court held that the plaintiff, as the registered proprietor, had the right to recover possession of the property, regardless of the delay in discovering the error. The court found that the delay did not prejudice the defendant, as the defendant had not made any improvements to the property and had not established any equitable interest. The court also held that the plaintiff was entitled to recover the rents and profits from the property, as the defendant's possession was wrongful. The court's decision was based on the principle that the registered proprietor has the right to possession and the rents and profits of the property, and any delay in asserting those rights does not automatically preclude recovery.

The court ordered that the defendant vacate the property and pay the plaintiff for the rents and profits arising from the property. The court also ordered that the defendant pay the plaintiff's costs of the proceeding.

Orders