Sokolovska v Galea

[2021] VSC 435

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2021 02412

Between:

VERA SOKOLOVSKA	Plaintiff
-and-
PAUL GALEA	First Defendant
-and-
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2021
DATE OF ORDERS:	20 July 2021
DATE OF REASONS:	23 July 2021
CASE MAY BE CITED AS:	Sokolovska v Galea
MEDIUM NEUTRAL CITATION:	[2021] VSC 435	First revision: 16 August 2021

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REAL PROPERTY — Caveat — Application by plaintiff for order directing Registrar to remove caveat lodged by first defendant on title to land owned by plaintiff — First defendant asserted equitable interest in property — No appearance by first defendant and his now former solicitor who lodged caveat — Plaintiff emailed originating motion and supporting documents to first defendant’s former solicitor, who declined to accept service, and first defendant — Court satisfied that first defendant taken to be served — Evidence all one way — No prima facie case giving rise to serious question to be tried that first defendant has caveatable interest in land — Balance of convenience requires order sought by plaintiff — No caveatable interest — Application granted — Transfer of Land Act 1958 (Vic), ss 89(4), 90(3) & 113; Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 6.02(1).

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Appearances:Counsel  Solicitors

For the Plaintiff  Unrepresented/in person             N.A.

For the First Defendant                 No appearance  Beswick Foulkes Family       Law (not on record)

For the Second Defendant             Submitting appearance                  N.A.

HIS HONOUR:

Overview

1. This is an application I heard, and granted, in the Practice Court on Tuesday 20 July 2021.  I gave only very brief ex tempore reasons and deferred the publication of settled written reasons until later in the week.  These are those reasons (which I shall leave in the present tense).

1. Vera Sokolovska (the plaintiff) applies for an order, pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (“the TLA”), directing the Registrar of Titles (the second defendant) to remove a caveat lodged on Ms Sokolovska’s title to land (on which are residential premises) by solicitors Beswick Foulkes Family Law (“Beswick Foulkes”) on behalf of Paul Galea (the first defendant).

1. On the evidence before me, I make the following findings:

a) first, I am satisfied that, despite his failure to appear, whether by solicitors or in person, or to file any materials, and despite his former solicitors’ express failure to accept service, given the operation of s 89(4) of the TLA, Mr Galea is taken to have been served with Ms Sokolovska’s originating motion, affidavit and other documents, and in a timely fashion;

b)         second, contrary to the assertion in the caveat, I am not satisfied that Mr Galea has established a prima facie case giving rise to a serious question to be tried that he has any equitable interest — whether arising from an implied, resulting or constructive trust — in Ms Sokolovska’s property; and

c)          third, given the foregoing, and that Ms…