Van Klaveren v Otelta Pty Ltd - [2018] VSC 10

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S CI 2017 04789

JAMES JOHN VAN KLAVEREN	Plaintiff
v
OTELTA PTY LTD (ACN 115 860 814) AND OTHERS (according to the schedule attached)	Defendants

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 January 2018
DATE OF JUDGMENT:	23 January 2018
CASE MAY BE CITED AS:	Van Klaveren v Otelta Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 10

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CAVEATS - Application for removal of a caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) – Caveat lodged by defendants pursuant to claim of leasehold interest in the property – Whether any serious question to be tried that defendants had a caveatable interest - No serious question to be tried established - Balance of convenience favours removal of caveat – Caveat not to be used as a ‘bargaining chip’ to secure a claim for damages - Order for removal of caveat made – Costs awarded in favour of plaintiff – Yamine v Mazloum [2017] VSC 601, referred to

PRACTICE AND PROCEDURE – Whether VCAT proceeding concurrently on foot seeks to substantiate the interests alleged in the caveat - Whether this application amounts to an abuse of process in circumstances where the VCAT proceeding results in a finding that the relevant claim is untenable – Relevant claims in VCAT proceeding informally struck out by Tribunal Member – Discretion of court to scrutinise merits of any separate proceeding relied upon by caveator in determining the threshold issue - Yuksels Nominees Pty Ltd v Nguyen & anor [2015] VSC 663, distinguished - VCAT not a ‘court’ within the meaning of s 90(3) of the TLA - No abuse of process - TLA s 89A(7) – Section 7 of Civil Procedure Act 2010 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Virgona	McCluskys
For the First and Second Defendants	Mr Elliot Sgargetta, by leave granted 22 January 2018
No appearance for or on behalf of the Third Defendant (Registrar of Titles)

HER HONOUR:

The plaintiff, Mr Van Klaveren is the registered proprietor of a property at 10 Stewart Road, Emerald (‘property’). The property has been sold and settlement is due on 29 January 2018. The first defendant, Otelta Pty Ltd (‘Otelta’) is a former lessee of the property. The property was apparently used to run a bed and breakfast business. The second defendant, Sleep Overs Group Pty Ltd (‘Sleep Overs Group ‘) does not appear to have been a party to any agreement with the plaintiff, but apparently was responsible for management of the bed and breakfast business on behalf of Otelta. It is unclear why Sleep Overs Group is said to have a caveatable interest in the property, or indeed should be a party to this proceeding. The Registrar of Titles is also a defendant to the proceeding, but has by letter indicated that he does not intend to appear in the proceeding, and will abide by…

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 Van Klaveren v Otelta Pty Ltd

Details

AGLC: Van Klaveren v Otelta Pty Ltd [2018] VSC 10
Case: [2018] VSC 10
Decision Date: 23 January 2018

CaseChat Overview and Summary

The case of Van Klaveren v Otelta Pty Ltd involved the plaintiff, Van Klaveren, seeking the removal of a caveat lodged by the defendants, Otelta Pty Ltd, on a property. The defendants claimed a leasehold interest in the property, which was disputed by the plaintiff. The matter was heard in the Supreme Court of Victoria, which was required to determine whether there was any serious question to be tried that the defendants held a caveatable interest, and if the balance of convenience favoured the removal of the caveat.

The legal issues before the court included whether there was any serious question to be tried regarding the defendants' claim of a caveatable interest and whether the balance of convenience favoured the removal of the caveat. Additionally, the court needed to consider whether the defendants were using the caveat as a bargaining chip to secure a claim for damages. The court also had to decide if the concurrent proceeding before the Victorian Civil and Administrative Tribunal (VCAT) amounted to an abuse of process, and whether the court should scrutinise the merits of any separate proceeding relied upon by the caveator in determining the threshold issue.

In addressing these issues, the court found that no serious question to be tried existed regarding the defendants' claim of a caveatable interest, and the balance of convenience favoured the removal of the caveat. The court emphasised that a caveat should not be used as a bargaining chip to secure a claim for damages. It was also determined that the VCAT proceeding did not amount to an abuse of process, and the court had discretion to scrutinise the merits of any separate proceeding relied upon by the caveator in determining the threshold issue. The court referred to Yamine v Mazloum [2017] VSC 601 and distinguished Yuksels Nominees Pty Ltd v Nguyen & anor [2015] VSC 663. Consequently, the court made an order for the removal of the caveat and awarded costs in favour of the plaintiff.

The final orders included the removal of the caveat lodged by Otelta Pty Ltd and the awarding of costs to the plaintiff, Van Klaveren. The court made it clear that the caveat was not to be used as a bargaining chip and emphasised the importance of the threshold issue of whether there was any serious question to be tried regarding the defendants' claim of a caveatable interest.

Orders