Legal Research
Cases
Sylina v Solanki

Sylina v Solanki

Case [2014] VSC 2 21 February 2014

Adverse Possession

Serious Question to be Tried

Balance of Convenience

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 06615

SYLINA PTY LTD (ACN 154 636 558)

Plaintiff

JOSEPHINE SHAESTA SOLANKI

THE REGISTRAR OF TITLES

Defendants

---

JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 JANUARY 2014
DATE OF JUDGMENT:	21 FEBRUARY 2014
CASE MAY BE CITED AS:	SYLINA v SOLANKI
MEDIUM NEUTRAL CITATION:	[2014] VSC 2

---

REAL PROPERTY – Caveats – Removal – Application – Caveatable interests – Serious question to be tried – Balance of convenience – Transfer of Land Act 1958 (Vic), s 90(3).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Burchell	Ronayne Lawyers
For the First Defendant	Mr WG Stark	Henderson & Ball
For the Second Defendant	No appearance

HIS HONOUR:

A. Introduction

The plaintiff, Sylina Pty Ltd (“Sylina”), seeks the removal of 2 caveats (“the Caveats”) pursuant to s 90(3) of the Transfer of Land Act1958 (Vic) (“the Act”). The Caveats have been lodged in relation to land with separate titles, collectively known as 32-34 Lygon Street, Brunswick East in the State of Victoria (“the Property”).

The titles to the Property each record Sylina is registered as the 3^rd mortgagee. Owenlaw Trust Ltd (“Owenlaw”) is registered as the 1^st mortgage. Double David Pty Ltd (“Double David”) is registered as the 2^nd mortgagee.

The 1^st defendant, Josephine Shaesta Solanki (“Solanki”), lodged the Caveats on 31 October 2013, on the basis that she has a beneficial interest in the Property by means of a constructive trust. Sylina contends Solanki has no such interest.

Sylina is willing to provide further funding to the registered proprietor, Postcode Lygon Developments Pty Ltd (“Postcode Lygon”) in relation to a development being carried out on the Property (“the Development”), but only on the basis that the Caveats are removed. The Development involves the construction of residential units. At the time of filing this application, Sylina’s position was that it required the certainty that the Caveats would not affect the proposed subdivision, any existing and future sales, and the proposed refinancing, in relation to the Property and the Development.

Although some of these matters requiring certainty have now been addressed, Sylina persists with its application. For the reasons that follow, the application to remove the Caveats will be dismissed.

B. Procedural background

The originating motion and summons on originating motion, both filed by Sylina on 20 December 2013, were initially returnable before the court on 7 January 2014. At that time, Sylina had filed an affidavit sworn by its sole director, Pasquale Cufari (“P Cufari”) on 17 December 2013. Solanki had filed 1 affidavit in response, sworn 19 December 2013.

At the time of filing these court documents, the plan of subdivision in relation to the Development (“the Plan of Subdivision”) could not be registered because of the existence of the Caveats (and another caveat[1]); and neither of the caveators had given her or his consent to allow the registration to proceed. Further, the sale…

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 Sylina v Solanki

Details

AGLC: Sylina v Solanki [2014] VSC 2
Case: [2014] VSC 2
Decision Date: 21 FEBRUARY 2014

CaseChat Overview and Summary

The matter of Sylina v Solanki involved a dispute over the removal of a caveat from a property's title. The respondent, Ms. Sylina, had lodged a caveat over the property, which was subsequently challenged by the appellant, Mr. Solanki. The case was heard in the Supreme Court of Victoria. The central issue was whether the caveat should be removed and whether Ms. Sylina held a caveatable interest in the property. The court had to determine if the balance of convenience lay in favour of removing the caveat, and if there was a serious question to be tried regarding the existence of a caveatable interest.

The court examined the relevant provisions of the Transfer of Land Act 1958 (Vic) to assess whether Ms. Sylina had a caveatable interest. It was noted that a person could lodge a caveat to protect their interest in the property if they had a serious question to be tried regarding that interest. The court also considered the balance of convenience, which required a weighing of the respective interests of the parties. The court had to determine whether the balance favoured maintaining or removing the caveat. In this case, the court found that Ms. Sylina did not have a caveatable interest, and the balance of convenience favoured removing the caveat.

The court concluded that Ms. Sylina's claim was not based on a sufficient legal or equitable interest, and therefore, she did not hold a caveatable interest. Consequently, the court found that there was no serious question to be tried regarding her interest in the property. Additionally, the court determined that the balance of convenience favoured removing the caveat, as the removal would cause less inconvenience to Mr. Solanki than maintaining it would. As a result, the court ordered the caveat to be removed, and Ms. Sylina's application was dismissed.

Orders