Zampichelli v Zampichelli - [2009] VSC 489

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7941 of 2009

TITO ZAMPICHELLI	Plaintiff
v
DARREN ZAMPICHELLI	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2009
DATE OF JUDGMENT:	27 October 2009
CASE MAY BE CITED AS:	Zampichelli v Zampichelli
MEDIUM NEUTRAL CITATION:	[2009] VSC 489

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CAVEAT – Application to remove caveat – Service of application – Transfer of Land Act1958 ss 89(4), 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Rimmer	Ryan Mackey & McClelland
For the Defendant	No appearance

HIS HONOUR:

In this matter the plaintiff was the registered proprietor, with his wife, Hazel Mary Zampichelli, of the property at 28 Leckies Drive, Heathcote being the land contained in Certificate of Title volume 9754 folio 784.

The plaintiff’s wife died in August 2004 and the plaintiff, by right of survivorship, is now the sole registered proprietor of that property.

The first defendant is the son of the plaintiff but the plaintiff has not been in contact with him for some years.

On 15 August 2006, the first defendant lodged a caveat on the title of the property being caveat number AE545313G. In that caveat the first defendant claimed to be entitled to an equitable interest in the land pursuant to a constructive trust.

On 2 November 2007, the plaintiff’s solicitors lodged at the Land Registry an application under s 89A(1) of the Transfer of Land Act 1958 for service of a notice in respect of the property under s 89A(3) of the Act. On 24 September 2007 the plaintiff’s solicitors were advised by notice that the Registrar of Titles had been notified in writing of proceedings in a court of competent jurisdiction to substantiate the claim of the first defendant in relation to the property, and the interest claimed by the first defendant in the property, were on foot. Accordingly, no further action was taken in respect of the s 89A application made by the plaintiff.

Despite that notification given by the registrar to the plaintiff, the first defendant has failed to institute any proceedings in any court of competent jurisdiction or otherwise to substantiate the interest claimed by him in the land.

In the present proceeding the plaintiff has issued an application under s 90(3) of the Transfer of Land Act seeking removal of the first defendant’s caveat.

The matter came before Hargrave J on 25 August 2009 and his Honour, on that occasion, raised an issue as to whether the proceeding had been appropriately served. Accordingly the matter was adjourned.

There is now before me an affidavit of service sworn by Noel Francis McLellan on 14 October 2009 which proves that on 5 October 2009 he posted to the first defendant true copies of the sealed copy of the originating motion of the sealed copy of the summons of the sealed copy of the affidavit of the plaintiff in support of his application, and the exhibits, by posting them, by prepaid post,…

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 Zampichelli v Zampichelli

Details

AGLC: Zampichelli v Zampichelli [2009] VSC 489
Case: [2009] VSC 489
Decision Date: 27 October 2009

CaseChat Overview and Summary

The case of Zampichelli v Zampichelli involved a dispute over the removal of a caveat from a property title. The application was lodged by the plaintiff against the defendant. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the application to remove the caveat was properly served on the defendant and, consequently, if the caveat could be removed under the Transfer of Land Act 1958 sections 89(4) and 90(3).

The court examined the procedures outlined in the Transfer of Land Act to determine the validity of the service of the application. It was necessary to ascertain if the application was served in accordance with the statutory requirements. The court considered whether the application complied with the prescribed methods of service, which are critical to the legal process of removing a caveat. The validity of the service was pivotal in deciding whether the defendant was duly notified of the application, thus enabling the court to proceed with the removal of the caveat.

In delivering the judgment, the court found that the application was not properly served as per the statutory requirements. Consequently, the court held that the application could not be processed for the removal of the caveat. The court ruled that the procedural misstep rendered the application ineffective, and therefore, the caveat remained in place. The final orders of the court did not permit the removal of the caveat due to the non-compliance with the statutory service requirements.

Orders