Ventura v Ventura - [2018] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2018 00795

GIOVANNA VENTURA	First Plaintiff
NINA VENTURA	Second Plaintiff
v
ROBERTO VENTURA AND OTHERS (according to the schedule)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2018
DATE OF JUDGMENT:	29 August 2018
CASE MAY BE CITED AS:	Ventura & Anor v Ventura & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 485

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PROPERTY LAW – Co-owners entered into contract to sell land – One co-owner refuses to complete the contract – Rights of other co-owners to compel completion – Property Law Act 1958, s 49.

PRACTICE AND PROCEDURE – Application by originating motion in Form 5C pursuant to the special procedure – Supreme Court (General Civil Procedure) Rules 2015, r 45.05 – Whether appropriate procedure – Procedure appropriate in the particular circumstances.

PRACTICE AND PROCEDURE – Execution of instrument by order of Court under s 22 of the Supreme Court Act 1986 (Vic) – Circumstances where appropriate to order.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr JA Silver	MNG Lawyers Pty Ltd
No appearance for or on behalf of the Defendants

HIS HONOUR:

Introduction

In this proceeding, the plaintiffs (Giovanna and Nina) seek the determination of the question whether the first defendant (Roberto) is bound to complete a Contract of Sale (Contract) between the plaintiffs and Roberto, as vendors, and the second and third defendants as purchasers (Purchasers) for the sale of land at 16 Halsey Road, Reservoir, Victoria (Land).[1] If so, the plaintiffs seek consequential orders requiring Roberto to authorise the vendors’ solicitors to effect the completion, or settlement, of the sale using the electronic conveyancing system established pursuant to the Electronic Conveyancing National Law (Vic) (ECNL).[2] The application is made under s 49 of the Property Law Act 1958 (Vic) (PLA).
[1]The land more particularly described in Certificate of Title Volume 8149 Folio 731.
[2]The National Law was adopted in Victoria pursuant to the Electronic Conveyancing (Adoption of National Law) Act 2013 (Vic).

Background facts

Nina is the mother of Giovanna and Roberto. Giovanna and Roberto hold one of two equal undivided shares in the Land as joint proprietors, they being the legal personal representatives of Gino Luigi Ventura, deceased. Nina holds the other of the two equal undivided shares in the Land as sole proprietor. As between Giovanna and Roberto, on the one part, and Nina on the other, they hold their respective shares as tenants in common.

On 17 February 2018, Giovanna, Nina and Roberto, as vendors, entered into the Contract with the Purchasers to sell the Land for the sum of $765,000.00 payable by deposit of $76,500.00 with the balance of $688,500.00 due at settlement on 20 March 2018. All three vendors signed the contract. Giovanna, who made the principal affidavit in support of the application, deposed that she knows Roberto’s signature and was present…

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 Ventura v Ventura

Details

AGLC: Ventura v Ventura [2018] VSC 485
Case: [2018] VSC 485
Decision Date: 29 August 2018

CaseChat Overview and Summary

In the matter of Ventura v Ventura, the dispute involved co-owners of a property who had entered into a contract to sell the land. One of the co-owners refused to complete the contract, raising issues regarding the rights of the other co-owners to compel completion. The matter was brought before the Supreme Court of Victoria.

The central legal issue before the Court was whether the co-owners could be compelled to complete the contract for the sale of the property, and whether the procedure adopted to seek this relief was appropriate. Specifically, the Court needed to consider the application by originating motion in Form 5C under the special procedure outlined in rule 45.05 of the Supreme Court (General Civil Procedure) Rules 2015, and the appropriateness of ordering the execution of the instrument by the Court under section 22 of the Supreme Court Act 1986 (Vic).

The Court found that the special procedure was appropriate in the circumstances of the case, given the urgency and the need to resolve the matter expeditiously. The Court determined that compelling the co-owners to complete the contract was necessary to ensure the rights of the other co-owners were protected and to enforce the agreement that had been reached. Furthermore, the Court concluded that ordering the execution of the instrument was appropriate, as it was a necessary step to enforce the contract and protect the interests of the parties involved.

The Court ordered that the co-owners complete the sale of the property as per the terms of the contract, and that the necessary instruments be executed by order of the Court. This decision underscores the importance of protecting the rights of co-owners in property transactions and the role of the Court in enforcing agreements to ensure that all parties adhere to their contractual obligations.

Orders