Mihalic, S.A. v. Mihalic, P. & Anor [1987] FCA 149

Mihalic, S.A. v. Mihalic, P. & Anor [1987] FCA 149

The appellant is entitled to maintain both a common law action to recover the unpaid purchase price and a caveat against the property to protect her vendor's lien. These remedies are complementary and not mutually inconsistent; thus, no election is required. The caveat sufficiently identified the equitable interest claimed, even without using the term 'vendor's lien', by setting out the factual basis of the claim and the unpaid amount. The lack of oral evidence from the appellant was not a bar to maintaining the caveat at this stage, given the filed pleadings and admissions.

Parties
Appellant and Cross Respondent: Sharon Ann Mihalic (Administratrix ad Litem of the Estate of Frank Mihalic, Deceased); Respondent and Cross Appellant: Paul Mihalic; Respondent and Cross Appellant: Ana Mihalic
Jurisdiction
Australia
Judgment Date
25 March 1987
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of the Australian Capital Territory
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
Vendor's Lien, Caveat, Contract for Sale of Land, Security for Costs, Undertaking as to Damages
Vendor and Purchaser Real Property Practice and Procedure Vendor's Lien Caveat Contract for Sale of Land Security for Costs Undertaking as to Damages

Case Brief

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Parties

Sharon Ann Mihalic (Administratrix ad Litem of the Estate of Frank Mihalic, Deceased)

Appellant and Cross Respondent

Paul Mihalic

Respondent and Cross Appellant

Ana Mihalic

Respondent and Cross Appellant

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of the Australian Capital Territory

Legal Issues

  1. 1 Whether a vendor may simultaneously pursue an action at common law for unpaid purchase price and lodge a caveat to protect a vendor's lien
  2. 2 Whether the caveat sufficiently identified the interest claimed as required by statute
  3. 3 Whether the appellant needed to elect between alternative remedies

Ratio Decidendi

The appellant is entitled to maintain both a common law action to recover the unpaid purchase price and a caveat against the property to protect her vendor's lien. These remedies are complementary and not mutually inconsistent; thus, no election is required. The caveat sufficiently identified the equitable interest claimed, even without using the term 'vendor's lien', by setting out the factual basis of the claim and the unpaid amount. The lack of oral evidence from the appellant was not a bar to maintaining the caveat at this stage, given the filed pleadings and admissions.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • Appeal allowed with costs.
  • The order of the Supreme Court dated 24 June 1986 set aside; the application for removal of the caveat is dismissed with costs.