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 citedANDREW 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)
AppellantsAND:
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)
AppellantsAND:
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…
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- AGLC
- Vasiliou v Marchesi [2006] FCAFC 197
- Case
- [2006] FCAFC 197
- Decision Date
CaseChat Overview and Summary
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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