Sohtra v Peddi
[2022] VSC 427
•29 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2022 00574
BETWEEN:
| SHAH NAWAZ SOHTRA | Plaintiff |
| v | |
| MAMATHA PEDDI | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 July 2022 |
DATE OF JUDGMENT: | Given ex tempore on 26 July 2022, revised on 29 July 2022 |
CASE MAY BE CITED AS: | Sohtra v Peddi |
MEDIUM NEUTRAL CITATION: | [2022] VSC 427 |
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LAND – Recovery of possession – Application for summary possession rejected – Whether application may be granted in circumstances where there is a dispute about complex facts or legal issues - FramlinghamAboriginal Trust v McGuiness and Chatfield [2014] VSC 241.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R A Fink | Mahl Lawyers |
| The Defendant appeared in person | Mr T Peddi (appeared as lay advocate) | Self-Represented Litigant |
TABLE OF CONTENTS
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 1
Applicable principles........................................................................................................................ 4
Submissions........................................................................................................................................ 5
Analysis................................................................................................................................................ 5
Conclusion........................................................................................................................................... 7
HER HONOUR:
The plaintiff’s application is made pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’). As discussed below, Order 53 is a summary procedure for possession of land. The subject property is located at 54A O’Reilly Road, Tarneit. It is described by Certificate of Title Volume 11285 Folio 723.[1]
[1]The certificate of title is contained in Exhibit SNS-4 to the Sohtra affidavit.
Evidence
The plaintiff relies on the following.
(a) Affidavit of Shah Nawaz Sohtra affirmed on 17 February 2022 (‘Sohtra affidavit’);
(b) Affidavit of Chirag Grewal affirmed on 22 February 2022 (‘Grewal affidavit’);
(c) Affidavits of Service of Numan Amjad sworn on 16 March 2022 and 26 May 2022.
The defendant relies on the following.
(a) Affidavit of Mamatha Peddi affirmed on 29 June 2022 (‘Peddi affidavit’).
Background
The following outlines the background and the factual dispute between the parties, based on their affidavit evidence.
In February 2013, the plaintiff purchased 54 O’Reilly Rd, Tarneit and subdivided the lot into two properties, being 54A O’Reilly Rd (‘subject property’), and 54B O’Reilly Rd (‘adjacent property’).[2] In February 2016, the plaintiff engaged a real estate agent, Mr Mukesh Kumar of Reliance Real Estate, to sell one of the properties. He intended to retain the other property as a passive investment.[3]
[2]Sohtra affidavit, [1]-[5].
[3]Ibid, [6]-[8].
In May 2016, Mr Kumar advised the plaintiff that he had conducted an inspection of the subject property with the defendant and her husband.[4] The defendant says she inspected the subject property (which she refers to by the number for the adjacent property) and decided to buy it. She deposes that:
While inspecting the property the vendor and real estate agent misrepresented the property number as 54B O’Reilly Road Tarneit 3029 [which is the number of the adjacent property].
I trusted and entered the contract.
I have been given possession of the [subject] property which I inspected and [is] now numbered as 54A O’Reilly Road [which is the number of the subject property].
I do not have the money to afford a legal representation in this matter.
I want to stay in the same property which we agreed to purchase with the real estate agent and the vendor.
I have been misled by the vendor and the [R]eliance real estate agent.[5]
[4]Ibid, [9].
[5]Peddi affidavit, [18]-[20], [22]-[24].
In June 2016, the defendant and her husband agreed to purchase that property. In August 2016, the defendant became the registered proprietor of the adjacent property.[6]
[6]Sohtra affidavit, [12].
The plaintiff says that, shortly after settlement, the real estate agent mistakenly gave the defendant the keys to the subject property. The defendant then took possession of the subject property.[7] From August 2016-June 2020, the adjacent property was leased out by Reliance Real Estate on behalf of the plaintiff.[8]
[7]Ibid, [13].
[8]Ibid, [14].
The defendant believes that the adjacent property should be properly numbered on the certificate of title as the subject property.
The plaintiff deposes that he has been in sole possession of the subject property since March 2016 and has never consented to the defendant living in the subject property during that time.[9] The defendant deposes that she was shocked when informed by the vendor and real estate agent for the plaintiff, around 14 January 2021, that the property she had taken possession of had been registered incorrectly and that she should vacate it.[10]
[9]Ibid, [16].
[10]Peddi affidavit, [16]-[17].
The plaintiff deposes that he seldom visited the subject property, as he lives some distance from the property.[11] He deposes that he learned of the mistake with respect to possession of it in February 2020, when he attempted to sell the adjacent property.[12] The plaintiff deposes that Mr Kumar informed him of the mistake with the keys at that time. The plaintiff was informed that he owned the subject property, not the adjacent property.[13] The plaintiff says there were then discussions between the parties but there was no resolution.
[11]Sohtra affidavit, [17].
[12]Ibid, [18].
[13]Ibid, [19].
In March 2021, the plaintiff’s solicitors wrote to the defendant to resolve this issue.[14]
[14]Ibid, [22].
In May 2021, the defendant’s husband telephoned the plaintiff’s solicitors and rejected the plaintiff’s offer to resolve the dispute.[15]
[15]Grewal affidavit, [9]-[10].
The plaintiff deposes that in October 2021 he observed a “for rent” sign in front of the subject property and he caused this to be removed in late October 2021.[16] Further, in October 2021, the plaintiff arranged for the locks to be changed in the subject property.[17]
[16]Sohtra affidavit, [24]-[25].
[17]Ibid, [26].
The defendant says the subject property is currently leased and there is a tenant residing there. Presumably they are paying rental income to the defendant. The evidence from the plaintiff is that at least at the time of serving proceedings, the property had been recently leased. In November 2021, the plaintiff met with a real estate agent and Mr Ho, who was leasing the subject property and residing there with his family.[18] The plaintiff submits that the property is now vacant. This is disputed by the defendant.
[18]Ibid, [27].
The plaintiff deposes there has been several attempts to contact Mr Kumar, however, those attempts have been unsuccessful.[19]
[19]Ibid, [29]-[33].
Applicable principles
Order 53.01 of the Rules follows.
Application of Order
(1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.
(2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.
In FramlinghamAboriginal Trust v McGuiness and Chatfield,[20] Derham AsJ held:
[20][2014] VSC 241, upheld on appeal Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 354 (Ginnane J).
Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances…
The words of Rule 53.01(1) make it plain that the pre-requisites to the application of Order 53 are that the person or persons in occupation of the land are –
(a) a person or persons who entered into occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff; or
(b)a person or persons who, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent or that of any predecessor in title of the plaintiff.
Thus, a tenant holding over after the termination of the tenancy is not within either category and the service of a notice on the tenant purporting to determine the holding over does not alter that position. That is because the tenant to whom such a notice is given entered into occupation by licence or consent, and so is not within paragraph (a), and paragraph (b) does not apply because the tenant is not a person who was once a licensee.
The power to give summary judgment for possession is similar in nature to the power to give summary final judgment under Rule 22.02 of the Rules. That power should be exercised with great care and should never be exercised unless it is clear that there is no question to be tried. The need for exceptional caution in exercising the power is the subject of numerous observations of courts in this country.[21]
[21]Ibid, [38], [39]-[40], [42] (citations omitted).
Derham AsJ summarised the authorities relating to the operation of Order 53, which I adopt.
(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;
(b) It is intended to apply only in clear cases where there is no question to try;
(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly.
(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the court is able to satisfy itself as to the material facts that bring the case within O 53;
(e) The jurisdiction should be exercised with great care;
(f) Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules; and
(g) Where the court gives judgment for possession under Order 53, it may grant a stay of execution. [22]
[22]Ibid, [41] (citations omitted).
Submissions
The parties each made submissions, and the plaintiff provided written submissions dated 21 July 2022. It is unnecessary to reiterate them here.
Analysis
The plaintiff’s application pursuant to Order 53 is disallowed for the following reasons.
Order 53 is a summary procedure. It is not appropriate in circumstances where there are complex facts or legal issues that are more suitable to be ventilated at trial. That is the case here. I disallow the application on this basis. The defendant says that the certificates of title for the properties are incorrect. That is, that she should have been registered as the owner of the subject property. I apprehend there will be a dispute between the parties about whether or not there should be rectification of the titles, or whether the parties each have an interest in the subject property and adjacent property. If so, this will involve questions such as: what is the nature of the interest? When did the interest arise? What is the appropriate remedy or relief?
I reject the plaintiff’s submission that because the defendant has not foreshadowed she is contemplating legal action, or shown some basis for the error in the certificates of title, that the plaintiff is entitled to relief. The onus is on the plaintiff to prove he is entitled to the relief. The defendant has argued there has been error on the certificates of title. This is arguable given the factual background. Even on the plaintiff’s best case, there has been a mistake.
There are facts which are in dispute or not evident. There is, for instance, no evidence from a key person, Mr Kumar, the real estate agent who it is said provided the keys to the subject property to the defendant. It is common ground that the defendant then took possession of the property. There is a dispute about the circumstances.
I must address the tenancy submissions as a matter of completeness. Order 53 does not apply to occupation by tenants. The defendant says the subject property is currently tenanted. The plaintiff’s affidavit material evidenced the property being tenanted. However, the plaintiff submitted that the property is now vacant and sought an adjournment to obtain evidence from a real estate agent, who is currently overseas, to that effect. It would be contrary to the overarching purpose of the Civil Procedure Act 2010 (Vic) to provide such an adjournment. There is no utility in it given the application must be rejected for the reasons discussed. Further, the plaintiff says that the exclusion of tenants in Order 53 must relate to tenants of the registered proprietor. There is no direct authority on point. It is unnecessary to determine now. It only serves to highlight what has emerged as the real issue in dispute here, which is the ownership of the subject property.
Conclusion
There is a dispute here that needs to be resolved. This application is not the correct vehicle for resolving that dispute. There is a fork in the road ahead. On one path, there is conversion of this proceeding to one issued by writ, or the issuing of a separate proceeding, and the destination is a trial. On the other path, there is mediation, and the destination is in the parties’ hands. I intend to order this proceeding to a Court-annexed mediation and list it for a directions hearing after mediation if the proceeding does not resolve. At that time, I will hear from the parties and consider whether to convert this proceeding to one issued by writ, or whether this proceeding should be dismissed and a separate proceeding issued.
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