Vasiliou v Marchesi - [2006] FCAFC 197

FEDERAL COURT OF AUSTRALIA
Vasiliou v Marchesi [2006] FCAFC 197
REAL PROPERTY – Torrens land – gift of land – steps necessary to perfect gift
Transfer of Land Act 1958 (Vic) s 86
Bank of New South Wales v O’Connor (1889) 14 App Cas 273 cited
Chichester v Marquis of Donegall (1870) 5 Ch App 497 cited
Postlethwaite v Blythe (1818) 2 Swans 256, (1818) 36 ER 613 cited
Re Armitage; Ex parte Andrews (1891) 17 VLR 77 cited
St Kilda Road Pty Ltd v Parker Simmonds Securities Limited [2001] VSC 412 cited
ANDREW VASILIOU (A BANKRUPT) AND VASILKI APOSTOLOU (AS TRUSTEE OF THE VASILIOU FAMILY TRUST) v BRANDAN JOHN MARCHESI (AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU)
VID 1005 of 2006
HEEREY, FINKELSTEIN & JESSUP JJ
21 DECEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1005 of 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANDREW VASILIOU (A BANKRUPT) AND
VASILKI APOSTOLOU (AS TRUSTEE OF THE VASILIOU FAMILY TRUST)
Appellants

AND:

BRANDAN JOHN MARCHESI (AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU)
Respondent

JUDGES:

HEEREY, FINKELSTEIN & JESSUP JJ

DATE OF ORDER:

21 DECEMBER 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made on 23 August 2006 be set aside.
3.There be a new trial of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1005 of 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANDREW VASILIOU (A BANKRUPT) AND
VASILKI APOSTOLOU (AS TRUSTEE OF THE VASILIOU FAMILY TRUST)
Appellants

AND:

BRANDAN JOHN MARCHESI (AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU)
Respondent

JUDGES:

HEEREY, FINKELSTEIN & JESSUP JJ

DATE:

21 DECEMBER 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

One question for determination by the judge was whether the appellant as settlor had done everything that was necessary for him to have done to perfect a gift of land to the trustee of his family trust. The land was under the operation of the Transfer of Land Act 1958 (Vic). Each parcel was subject to a registered first mortgage and the mortgagee was in possession of the duplicate certificate of title. The appellant had executed a deed of gift in favour of the trustee and may have, at least constructively, delivered to the trustee duly executed transfers of the land. The judge said that this was not sufficient to perfect the gift. He was of opinion that: “Without the consent of the mortgagees of each of the properties having first been obtained, the transfers could not have been registered. Accordingly, the [appellant] would not have done all that was necessary to place the vesting of the legal title within the control of [the trustee].” The question for determination by the Full Court is whether this conclusion is correct.
The answer to the question…

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 Vasiliou v Marchesi

Details

AGLC: Vasiliou v Marchesi [2006] FCAFC 197
Case: [2006] FCAFC 197
Decision Date: 21 DECEMBER 2006

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, Vasiliou, against the respondent, Marchesi. The dispute originated from a previous decision made by the primary judge on 23 August 2006, which was being contested by the appellant. The central issue was whether the primary judge had erred in his interpretation of certain contractual provisions and whether there were grounds for a new trial.

The court was required to decide whether the primary judge's interpretation of the contractual provisions was correct and whether there were any errors in his application of the law that warranted a new trial. The appellant argued that the primary judge had misapplied the contractual terms and that there were significant errors in the primary judge’s reasoning that impacted the outcome of the case. The respondent, on the other hand, contended that the primary judge's interpretation was sound and that there were no grounds for a new trial.

The Court found that there were indeed errors in the primary judge's interpretation of the contractual provisions and his application of the law. The Court held that these errors were significant enough to impact the outcome of the case, thereby warranting a new trial. The Court further found that the primary judge's approach to the application of the contractual terms was flawed and that a new trial was necessary to ensure a fair and accurate determination of the dispute. Consequently, the appeal was allowed, and the orders made by the primary judge on 23 August 2006 were set aside. The Court ordered that there be a new trial of the proceeding to address the issues properly.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made on 23 August 2006 be set aside.

3. There be a new trial of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1005 of 2006

BETWEEN:	ANDREW VASILIOU (A BANKRUPT) AND VASILKI APOSTOLOU (AS TRUSTEE OF THE VASILIOU FAMILY TRUST) Appellants
AND:	BRANDAN JOHN MARCHESI (AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU) Respondent

JUDGES:	HEEREY, FINKELSTEIN & JESSUP JJ
DATE OF ORDER:	21 DECEMBER 2006
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1005 of 2006

JUDGES:	HEEREY, FINKELSTEIN & JESSUP JJ
DATE:	21 DECEMBER 2006
PLACE:	MELBOURNE