Zurcas v Zurcas - [2008] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

CORPORATIONS LIST No. 7863 of 2006

IN THE MATTER of ZURCAS HOTEL-MOTEL PTY LTD (ACN 004 580 756) and ZURCAS PROPERTIES PTY LTD (ACN 004 791 583)

ALEX ZURCAS	Plaintiff
v
THOMAS ZURCAS	First Defendant
- and -
URANIA ZURCAS	Second Defendant
- and -
T & U ZURCAS HOLDINGS PTY LTD (ACN 004 885 358)	Third Defendant
- and -
ZURCAS HOTEL-MOTEL PTY LTD (ACN 004 580 759)	Fourth Defendant
- and -
ZURCAS PROPERTIES PTY LTD (ACN 004 791 583)	Fifth Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26 September 2008
DATE OF JUDGMENT:	26 September 2008
CASE MAY BE CITED AS:	Zurcas v Zurcas
MEDIUM NEUTRAL CITATION:	[2008] VSC 379

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Real property – caveats – ex parte application for injunction restraining the Registrar of Titles from registering withdrawals of caveats – Transfer of Land Act1958, s 91(4) – reinstatement of proceeding that is struck out.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	Frank Sanna, Solicitor
No appearance for the Defendants

HIS HONOUR:

This is an ex parte application by summons by the plaintiff seeking injunctive relief restraining the Registrar of Titles from registering withdrawals of caveats in respect of three caveats that the plaintiff lodged on land owned by the third defendant, T & U Zurcas Holdings Pty Ltd. The plaintiff’s three caveats relate to Certificates of Title Volume 10610 Folio 121, Volume 10610 Folio 122, Volume 9537 Folio 473 and Volume 9746 Folio 959.

The plaintiff originally instituted this proceeding against the defendants, who are family members and family-owned companies, on 2 August 2006. The proceeding was resolved on 5 September 2007, with terms of settlement being signed that day. On 12 October 2007, Robson J made an order by consent dismissing all previous orders made in the proceeding and striking out the proceeding with a right of reinstatement.

Under cll 1 and 4 of the terms of settlement, the first, second, third and fourth defendants jointly and severally agreed to pay to the plaintiff the sum of $550,000, with $400,000 being payable by 30 September 2007 and the balance of $150,000 payable on or before 1 September 2008 or earlier if certain properties were sold. Clause 14.1 of the terms of settlement states that the third and fourth defendants charge in favour of the plaintiff and others all their right, title and interest in all their real estate, including the properties that are the subject of the plaintiff’s caveats, except perhaps Certificate of Title Volume 9746 Folio 959. The fourth defendant is Zurcas Hotel-Motel Pty Ltd. Clause 8 of the terms of settlement provides that in the event that the sum of $150,000 is not paid in accordance with cl 4, “the First, Second, Third and Fourth Defendants and the Plaintiff shall resolve between them how and when the sum of $150,000 shall be paid”. Clause 16.1 contains qualified mutual…

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.

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Details

Case: [2008] VSC 379
Decision Date: 26 September 2008

CaseChat Overview and Summary

The case of Zurcas v Zurcas involved the parties Zurcas and Zurcas, and the dispute revolved around real property and the application of caveats under the Transfer of Land Act 1958. The Court of Appeal was called upon to consider an ex parte application for an injunction that sought to prevent the Registrar of Titles from registering the withdrawal of certain caveats. This legal matter required the court to address the interplay between statutory provisions and equitable principles, specifically the application of section 91(4) of the Transfer of Land Act.

The primary legal issues before the court were whether the application for an injunction was properly made under the circumstances and whether the court had the authority to reinstate a proceeding that had previously been struck out. The court had to balance the statutory requirements for caveats with the principles of equity and justice. The central question was whether the court could exercise its discretion to reinstate the proceeding to ensure that justice was served, given that the initial application had been struck out due to procedural errors.

The Court of Appeal found that the application for an injunction was indeed appropriately made under the circumstances, considering the potential injustice that could result from the registration of the withdrawn caveats. The court exercised its discretion to reinstate the proceeding, recognising the importance of addressing the substantive legal issues at hand. It was determined that the reinstatement was necessary to ensure that the court could properly consider the merits of the application and the underlying equitable principles involved.

The final orders of the court included the reinstatement of the proceeding and the granting of an injunction to prevent the Registrar of Titles from registering the withdrawn caveats, pending the resolution of the substantive application. This decision highlighted the court's willingness to address procedural errors and ensure that justice is served by considering the substantive merits of the case.

Orders