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Super Jacobs Pty Ltd v Esera Faalogo

Super Jacobs Pty Ltd v Esera Faalogo

Case [2019] VSC 778 3 December 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 04338

SUPER JACOBS PTY LTD (ACN 615 977 001) (as Trustee for TEAM JACOBS SELF-MANAGED SUPERANNUATION FUND)	First Plaintiff
LEEJEAM PROPERTY PTY LTD (ACN 609 004 971) (as Trustee for LEEJEAM SELF-MANAGED SUPERANNUATION FUND)	Second Plaintiff
v
ESERA SONE FAALOGO	First Defendant
PALOLO FAALOGO	Second Defendant
REGISTRAR OF TITLES	Third Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	3 December 2019
CASE MAY BE CITED AS:	Super Jacobs Pty Ltd and anor v Esera Faalogo and ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 778

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REAL PROPERTY – Caveats – Application for removal of a caveat lodged by the former registered proprietors – Property transferred to the plaintiffs under a contract of sale – Defendants claimed that they were victims of a fraud, and alleged that the transfer was tainted by fraud – Mere equity is not caveatable until a conclusive finding by a court – Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265, referred to – Any claim to set aside a transfer of land does not confer upon the claimant an equitable interest in the land until the claim is made good – Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672, considered and applied.

SUMMARY RECOVERY OF LAND – Application under Order 53 – Framlingham Aboriginal Trust v McGuinness and Chatfield [2014] VSC 241 and Tajon Pty Ltd v Arvanitis [2017] VSC 130, referred to – Where occupiers remain in occupation without the current registered proprietors’ consent – Summary disposition under Order 53 refused owing to factual dispute between the parties.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr B Harding	TZ Lawyers
For the First and Second Defendants	Mr C Hender	Wollerman Shacklock Lawyers

HER HONOUR:

The plaintiffs are the corporate trustees of two self‑managed superannuation funds. The first and second defendants (‘Faalogos’), a married couple of limited means, are the former registered proprietors and the current occupants of a residential property in Hampton Park (‘Hampton Park property’). The Faalogos lodged a caveat over the title of the Hampton Park property on 13 August 2018, after they discovered that that property had been transferred to the plaintiffs on 26 June 2018.

The Hampton Park property was transferred to the plaintiffs pursuant to a contract of sale dated 15 July 2017. The contract of sale was executed on behalf of the Faalogos by Mr Kenneth Brown, a mortgage broker, under a General Power of Attorney executed by each of the Faalogos on 7 May 2016. The Faalogos do not deny signing the power of attorney, but say that they did so on the instructions of Mr Brown, who they believed was arranging finance for them, with any loans to be secured against the Hampton Park property. It appears that the Faalogos, who are originally from Western Samoa and…

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 Super Jacobs Pty Ltd v Esera Faalogo

Details

AGLC: Super Jacobs Pty Ltd v Esera Faalogo [2019] VSC 778
Case: [2019] VSC 778
Decision Date: 3 December 2019

CaseChat Overview and Summary

Super Jacobs Pty Ltd sought to have a caveat lodged by Esera Faalogo removed from the register of title to a property they had purchased. The defendants claimed they were victims of fraud and that the transfer to the plaintiffs was tainted by fraud. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the mere equity claimed by the defendants, due to their assertion of being victims of fraud, was sufficient to maintain the caveat. Additionally, the court had to consider whether the summary recovery of land could be granted given the factual disputes between the parties.

The court addressed the caveat issue by referencing Latec Investments Ltd v Hotel Terrigal Pty Ltd, which established that a mere equity is not caveatable until a conclusive finding by a court. The defendants' claim of fraud did not provide them with an equitable interest in the land until they had successfully set aside the transfer. The court applied the principles from Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd, which held that any claim to set aside a transfer does not confer an equitable interest until the claim is substantiated. Consequently, the defendants' equity was not sufficient to sustain the caveat.

Regarding the summary recovery of land under Order 53, the court examined the cases of Framlingham Aboriginal Trust v McGuinness and Chatfield and Tajon Pty Ltd v Arvanitis, which indicated that summary disposition could be refused when there was a factual dispute between the parties. Given the unresolved issues concerning the defendants' claim of fraud and the factual dispute over their occupation of the property, the court declined to grant the summary disposition requested by the plaintiffs.

The court ordered that the caveat remain in place until the defendants' equity was conclusively determined by a court, and it denied the application for summary recovery of the property.

Orders