//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] VSC 379
defendant. The plaintiff’s summons for an ex parte injunction restraining registration of the caveat withdrawals was dismissed; the Court remained prepared to hear submissions about facilitating an urgent...
2 cited instruments linked from this judgment.
The plaintiff had agreed to withdraw caveats in connection with a proposed loan, then changed his position before the withdrawals were registered. He asked the Court, without notice to the defendants, to stop the Registrar from registering them. The judge refused that immediate order because the application lacked important evidence and explanations, and because it was brought in a proceeding that had been struck out and not reinstated. The judge did not finally decide whether the plaintiff could revoke the authority or whether an injunction should be granted after notice.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,314 words · generated 29/09/2026
Zurcas v Zurcas was an urgent interlocutory application heard by Kyrou J in the Supreme Court of Victoria on 25 and 26 September 2008. The plaintiff, Alex Zurcas, sought an injunction without notice to the defendants. He wanted the Registrar of Titles restrained from registering withdrawals of three caveats over land owned by the third defendant, T & U Zurcas Holdings Pty Ltd: [1], [11]. The Registrar was not a party to the proceeding: [17(c)].
The background was a family dispute that had already been resolved by terms of settlement. Alex Zurcas had commenced the proceeding on 2 August 2006. The parties signed settlement terms on 5 September 2007, and on 12 October 2007 Robson J made consent orders dismissing previous orders and striking out the proceeding with a right of reinstatement: [2].
The settlement provided for the first four defendants jointly and severally to pay the plaintiff $550,000. Of that amount, $400,000 was due by 30 September 2007, with the remaining $150,000 due on or before 1 September 2008, or earlier if certain properties were sold: [3]. Clause 14.1 provided for the third and fourth defendants to charge their interests in real estate in favour of the plaintiff and others described in that clause. The judgment noted that it was uncertain whether one of the titles identified in the caveats was within the charge’s scope: [3]. A related shareholders’ agreement contained an acknowledgment about the charge and a cap on the fourth defendant’s borrowings: [4].
The plaintiff said the $150,000 balance had not been paid: [5]. Separately, the third defendant had received approval for a proposed $300,000 loan from Statewide Secured Investments Ltd. The proposed security included mortgages over properties described in several certificates of title, including titles affected by the plaintiff’s caveats. The loan had not yet been made: [5].
The plaintiff’s affidavit indicated that about three months earlier he had agreed to the loan arrangement and expected to receive $50,000 from the loan. On 3 September 2008 he signed an authority asking and authorising Mr Indovino, the defendants’ solicitor, to withdraw his caveats. He reserved the possibility of instructing Mr Indovino to lodge them again after refinancing: [6]. Mr Indovino signed the withdrawals on 18 September 2008, and they were sent to Statewide’s solicitors: [7]-[8].
By 23 September the plaintiff was concerned that the loan might diminish his overall financial benefits or interests in the properties, and that $7,341.40 would be deducted from the $50,000 he expected to receive: [8]. He sought return of the withdrawals and told Statewide that he no longer consented to their lodgement. Statewide did not respond before the hearing: [8]-[9]. The plaintiff then brought the ex parte summons on 25 September: [11].
The summons was dismissed. The judge did not decide the ultimate status of the caveatable interest, the final effect of the settlement, or whether the authority could be revoked. The decision was about whether the material and procedure justified immediate relief without notice.
The judge’s central conclusion was discretionary and tied to the deficiencies in the particular application. At [18], Kyrou J said he was “not persuaded” that it was appropriate to grant the ex parte relief. The reasons identified at [17] show that the difficulty was not a single technical defect. It was the combined effect of gaps in the evidence, the procedural posture, and uncertainty about practical consequences.
First, the application did not adequately explain the arrangement under which the plaintiff had authorised the withdrawals. The plaintiff’s affidavit suggested an agreement involving the Statewide loan, payment of $50,000 to him, and withdrawal of the caveats, but it did not set out the agreement’s terms: [16]. The judge could not assess whether those terms affected the plaintiff’s asserted right to revoke his consent.
Second, the plaintiff had not explained satisfactorily why the matter was brought without notice. Counsel asserted urgency, but the evidence did not give a clear draw-down date or identify specific prejudice that would arise if the defendants received notice: [12], [15], [17(a), (d)]. The plaintiff had warned Statewide on 24 September that he might seek an injunction, yet the judge saw no apparent reason why notice could not also have been given to the defendants and Statewide: [17(a)].
Third, the proceeding had been struck out and no application had been made to reinstate it: [11], [17(b)]. During argument, counsel referred to the possibility of commencing a proceeding under r 4.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in urgent cases. The judge had raised the procedural problem and referred to O’Brien and Fourth Taljan Pty Ltd v O’Brien & Nicholls Pty Ltd [2001] VSC 411, which stated that reinstatement is discretionary and should occur only where the circumstances warrant it: [14]. The judgment did not decide an application for reinstatement, because none was before the Court.
Fourth, the form of relief and the parties to the proceeding created difficulty. The summons sought an injunction against the Registrar, who was not a party, and did not seek relief against the defendants: [17(c)]. The judge also lacked adequate information to evaluate how an injunction might affect the proposed loan or prejudice the defendants: [17(d)].
Fifth, the evidence about the properties and the caveats was incomplete. The plaintiff did not produce the caveats or copies of the certificates of title. Information about ownership and the relationship between the caveats and particular titles was supplied from the Bar table during the hearing: [17(e)]. That left the Court without documentary material important to the relief sought.
Finally, the judge was not persuaded by the submission that the authority was revocable simply because it was not expressed to be irrevocable. By the time the plaintiff sought revocation, the authority had already been acted upon: [17(f)]. The judgment did not establish a general rule that an authority, once acted upon, can never be revoked. Rather, it treated that fact, together with the absence of evidence about the circumstances in which the authority was given, as weakening the application before it.
The judgment is a short interlocutory decision, not a comprehensive statement of Victorian caveat law. Before the decision, the relevant statutory context identified in the judgment was s 91(4) of the Transfer of Land Act 1958 (Vic). The plaintiff submitted that if the withdrawals were registered, that provision would prevent him from lodging further caveats on the same properties in respect of the same interest: [13]. Kyrou J said that submission “appears to be correct”, citing R & L Bell Pty Ltd v Casboult [2003] VSC 169; (2003) 6 VR 271 at [9]-[10]: [13].
That observation mattered to the plaintiff’s argument about the consequences of registration. But it did not determine the application. The judge expressly noted that the evidence was insufficient to assess the balance of convenience overall, including whether an injunction would jeopardise the loan or otherwise prejudice the defendants: [17(d)]. The judgment therefore does not establish that the asserted statutory consequence automatically warrants an injunction.
The procedural context also included the principle quoted from O’Brien and Fourth Taljan Pty Ltd v O’Brien & Nicholls Pty Ltd. As recorded at [14], that case stated that although there is a discretion to reinstate a proceeding, it should be exercised judicially and only where circumstances warrant reinstatement. Zurcas applied that concern to the procedural setting by identifying the absence of a reinstatement application as a problem. It did not itself reinstate the proceeding or determine how the discretion should be exercised on a properly supported application.
After the decision, the immediate outcome was that the requested ex parte injunction was refused and the summons dismissed: [18]. The judge left open a procedural possibility, stating a willingness to hear further submissions about orders that might facilitate an urgent application on notice: [19]. The judgment should therefore be read narrowly. It demonstrates the importance, in this particular urgent application, of evidence explaining the transaction, notice, urgency, the relevant titles, and practical consequences. It does not determine the merits of the underlying settlement dispute or the ultimate availability of injunctive relief.
At [13], the plaintiff argued that s 91(4) would prevent replacement caveats for the same interest if the withdrawals were registered. The judge said the submission “appears to be correct”, citing R & L Bell Pty Ltd v Casboult. In plain English, the judge accepted that the statutory consequence described by the plaintiff appeared to be a real issue. But the judge did not treat that point as enough, by itself, to justify an order without notice.
At [14], the judge raised the fact that the proceeding had been struck out and referred to O’Brien. The quoted statement was that reinstatement should be exercised judicially and only if the circumstances warrant it. In plain English, a party cannot simply assume that a struck-out case remains available for all later applications. The procedural basis for continuing it must be addressed. In Zurcas, no reinstatement application had been made.
At [16], the judge said the affidavit did not provide details of the alleged agreement about the loan and caveat withdrawals. In plain English, the existence of an apparent arrangement was not enough for the Court to assess what the plaintiff had agreed to, whether there were conditions, or how the arrangement affected the later attempt to withdraw consent.
At [17], the judgment set out the deficiencies collectively. These included the lack of a satisfactory explanation for proceeding without notice, the absence of a reinstatement application, relief sought against a non-party, insufficient information about draw-down and prejudice, and the absence of the caveats and title documents. The judge also identified difficulties with the evidence about revocation and the plaintiff’s changed position. The significance is cumulative: the decision explains why the record did not allow a properly informed discretionary assessment.
At [18], the judge stated that he was “not persuaded” to grant the requested ex parte relief. In plain English, this is a refusal on the evidence and circumstances presented, not a final ruling that the plaintiff had no possible claim to an injunction.
At [19], the judge said he was prepared to hear further about orders facilitating an urgent application on notice. In plain English, refusal of the ex parte summons did not mean the Court would not consider an urgent application with notice to affected parties and an appropriately addressed procedural basis.
The decision is relevant to applications seeking urgent injunctive relief without notice where the applicant’s own earlier conduct or authority is central to the dispute. In Zurcas, the plaintiff had signed an authority for the caveat withdrawals, and those withdrawals had been signed and forwarded before he sought to revoke the authority: [6]-[8]. The Court needed evidence about the agreement and circumstances surrounding that authority before assessing the claim.
It is also relevant where an applicant seeks relief in a proceeding that has been struck out, particularly where there has been no application to reinstate it: [11], [17(b)]. The decision highlights the need to identify the procedural basis on which the Court is being asked to act.
The case may also be useful where the proposed order affects third parties or a transaction, but the evidence does not explain the transaction’s timing and consequences. Here, Statewide was the proposed lender, the Registrar was the target of the injunction but not a party, and the defendants’ potential prejudice was not established in sufficient detail: [12], [17(c)-(d)].
Finally, the case concerns applications involving caveats and the consequences attributed to s 91(4) of the Transfer of Land Act. It shows that the asserted statutory effect of a withdrawal can be relevant, while still requiring evidence sufficient to assess the whole application. The judgment does not say that the same outcome necessarily follows in every caveat dispute.
The supplied judgment identifies two authorities, but it does not report later judicial treatment of Zurcas itself. It cites R & L Bell Pty Ltd v Casboult for the plaintiff’s submission about the effect of s 91(4), which the judge said appeared correct: [13]. It also refers to O’Brien and Fourth Taljan Pty Ltd v O’Brien & Nicholls Pty Ltd for the stated approach to reinstatement of struck-out proceedings: [14].
Those citations do not establish how later courts have treated Zurcas. On the material provided, it is not possible to say whether later decisions followed, distinguished, explained, or otherwise treated this judgment. The decision’s own reasoning is narrow and fact-specific, centred on the deficiencies in an ex parte application and the unresolved procedural position.
The Court did not decide whether the plaintiff ultimately had a caveatable interest over each property, or whether the settlement terms created an enforceable charge over the titles in question. The judgment records uncertainty about whether Certificate of Title Volume 9746 Folio 959 fell within the settlement charge: [3]. It also records that the relevant title documents and caveats were not produced at the hearing: [17(e)].
The Court did not decide whether the plaintiff’s 3 September authority could be revoked as a matter of law, or whether any agreement about the loan imposed obligations affecting revocation. The judge’s concern was that the evidence did not explain the agreement or the authority’s circumstances: [16]-[17(f)].
Nor did the Court decide whether an injunction should be granted after notice, whether the proceeding should be reinstated, or how the balance of convenience would be assessed on a fuller record. The judge’s indication at [19] left open the possibility of hearing further about an urgent on-notice application, but it was not an order granting relief.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Real property - caveats - ex parte application for injunction restraining the Registrar of Titles from registering withdrawals of caveats - Transfer of Land Act 1958, s 91(4) - reinstatement of proceeding that is struck out.
1 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.
2 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.
3 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 releases.
4 Clause 2 of the terms of settlement states that the parties agree to enter into the shareholders' agreement that is attached to the terms of settlement. The shareholders' agreement was in fact executed but is undated. Clause 4.8 of the shareholders' agreement contains an acknowledgment by the parties that they have agreed for the third and fourth defendant to charge in favour of the plaintiff and the others described in cl 14.1 of the terms of settlement 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. Clause 4.7 provides that the fourth defendant's borrowings must not exceed $4 million.
5 In his affidavit of 25 September 2008 in support of his application, the plaintiff states that the balance of $150,000 has not been paid to him. He exhibits a letter dated 3 September 2008 that shows that the third defendant has received approval from Statewide Secured Investments Ltd ("Statewide") for a loan of $300,000 to be secured by, among other securities, a registered second mortgage over the third defendant's property located at 25 Doyles Road, Grahamvale (which is more particularly described in Certificates of Title Volume 10610 Folio 121 and Volume 10610 Folio 122) and the property located at 85 Doyles Road, Shepparton (which is more particularly described in Certificates of Title Volume 8021 Folio 124, Volume 9537 Folio 473 and Volume 9746 Folio 959). The loan has not yet been made.
6 The plaintiff's affidavit suggests that, three months ago, he agreed to the abovementioned loan and agreed to receive $50,000 from that loan. On 3 September 2008, he signed an authority in favour of Tom Indovino of Indovino's Lawyers, who were the solicitors on the record for the defendants in this proceeding, stating:
I Alex Zurcas, hereby request and authorise you to withdraw all Caveats that I have registered as Caveator on properties owned by T & U Zurcas Holdings Pty Ltd. I confirm that I will instruct you following the refinance if I wish to re-lodge the Caveats.
7 It appears that Statewide has requested the withdrawals of caveats as a condition of making the loan. The withdrawals of caveats were signed by Mr Indovino on the plaintiff's behalf on 18 September 2008 pursuant to the abovementioned authority.
8 In his affidavit, the plaintiff states that on 23 September 2008, he was very concerned that if the loan went through, it would erode his overall financial benefits from the settlement and/or interests in the properties connected with the terms of settlement. He was also concerned that an amount of $7,341.40 would be deducted from the amount of $50,000 he expected to receive from the loan. On that day, he informed Mr Indovino that he wanted to have his withdrawals of caveats returned to him. On 24 September 2008, he faxed a letter to Mr Indovino stating that he no longer consented to the lodgement of the withdrawals of caveats. On the same day, he saw Mr Indovino and was given a letter dated 24 September 2008 stating that Mr Indovino had forwarded the withdrawals of caveats to Statewide's solicitors on 18 September 2008. Mr Indovino's letter is inconsistent with some aspects of the plaintiff's affidavit. Later on 24 September 2008, the plaintiff faxed a letter to Statewide stating:
For your records I am attaching a copy of a letter sent to Indovino Lawyers withdrawing instruction for removing caveats on the subject properties that your company has issued a letter of offer for finance
Please could you ring me as a matter of urgency by no later than 430 pm today to advise that you undertake to return the withdraw of Caveats forthwith
Failing which you will leave me with no alternative but to make application to the court for an Injunction preventing the withdraw of caveats of which it is my understanding that your Solicitors hold
9 The plaintiff has not received a response from Statewide.
10 In his affidavit, the plaintiff states that "[t]he defendants' solicitors dealt with me directly, and not my solicitors, Lennon Settle Mazzeo at the time". However, the affidavit does not provide any details as to whether Lennon Settle Mazzeo acted for the plaintiff in connection with the withdrawals of caveats or the circumstances in which the plaintiff executed the authority in favour of Mr Indovino.
11 On 25 September 2008, the plaintiff issued a summons in this proceeding seeking an injunction restraining the Registrar of Titles from registering the withdrawals of caveats. The summons was issued notwithstanding that the proceeding has been struck out and has not yet been reinstated and notwithstanding that the Registrar is not a party to the proceeding.
12 Mr Levine, who appeared for the plaintiff, submitted that this is an urgent application because draw-down of the loan is imminent, resulting in the withdrawals of caveats being lodged. He was not specific about the timing of the draw-down loan. There was no evidence before me as to the timing of the draw-down, other than that the loan was approved on 3 September 2008 and the withdrawals of caveats were forwarded to Statewide on 18 September 2008.
13 Mr Levine submitted that the plaintiff has a caveatable interest over the relevant properties. He also submitted that as the authority the plaintiff gave to Mr Indovino was not expressed to be irrevocable, the plaintiff was entitled to revoke it. He therefore submitted that the plaintiff had established that there is a serious question to be tried. He also submitted that the balance of convenience favours the plaintiff because, if the withdrawals of caveats are lodged with the Registrar, s 91(4) of the Transfer of Land Act 1958 (Vic) will preclude the plaintiff from lodging any further caveats on the same properties in respect of the same interest. This submission appears to be correct.[1] Mr Levine also informed me that the plaintiff is prepared to give an undertaking as to damages.
14 During argument, I raised with Mr Levine procedural issues relating to the summons, including the fact that the proceeding has been struck out and has not been reinstated. I drew his attention to the case of O'Brien and Fourth Taljan Pty Ltd v O'Brien & Nicholls Pty Ltd[2] which stated that "whilst there is a discretion to reinstate the proceeding such discretion should be exercised judicially and only if the court is satisfied that the circumstances warrant reinstatement". Mr Levine said that in cases of urgency, the Court can authorise the commencement of a proceeding pursuant to r 4.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
15 I asked Mr Levine why the application was made without notice to the defendants. Mr Levine said that the matter was urgent, without specifying any particular prejudice that would arise if the defendants were given notice of the application.
16 I informed Mr Levine that it appeared from the plaintiff's affidavit that there was a discussion approximately three months ago in which agreement was reached that the loan would be obtained from Statewide, that the plaintiff would receive $50,000 out of the loan and that the plaintiff would withdraw his caveats to facilitate the loan. I informed Mr Levine that the plaintiff's affidavit does not give any details of any such agreement and therefore I am not in a position to assess whether, for example, there are any issues that affect the plaintiff's alleged right to revoke his consent to the withdrawals of the caveats. Mr Levine agreed that the plaintiff's affidavit does not provide details of the nature of any agreement that may have been reached.
17 The absence of details of the agreement referred to above has troubled me. So have the following features of the plaintiff's application:
(a) The plaintiff has not provided a satisfactory explanation as to why the application has been made without notice to the defendants. This is of concern because the proceeding has involved complicated litigation between the parties which commenced on 2 August 2006 and finally settled on 5 September 2007. Also, given that the plaintiff notified Statewide in his letter of 24 September 2008 that if they did not give the undertaking he sought, he would be left with no alternative but to seek an injunction, there is no apparent reason why the plaintiff could not have given notice of his application to the defendants and Statewide, if he intended to seek any relief against that company.
(b) The proceeding has been struck out and no application has been made by the plaintiff to reinstate the proceeding.
(c) The plaintiff's summons seeks an injunction against the Registrar, who is not a party to the proceeding, and does not seek any relief against the defendants.
(d) The plaintiff has not provided details of when the loan would be drawn-down, or whether any injunction that the Court grants might jeopardise the loan or otherwise cause prejudice to the defendants. Without this information, I have not been able to properly assess where the balance of convenience lies.
(e) The plaintiff has not produced to the Court the caveats or photocopies of the Certificates of Title. Much of the information about ownership of the properties and which caveats relate to which properties, was provided to me from the Bar table after Mr Levine obtained instructions from the plaintiff and his instructing solicitor during the hearing.
(f) Mr Levine's submission that the authority granted by the plaintiff to Mr Indovino was not irrevocable is not persuasive, given that by the time the plaintiff sought to revoke the authority, it had already been acted upon. Mr Levine's submission that, at the very least, it was imprudent for Mr Indovino to be dealing directly with the plaintiff in relation to the authority was also unpersuasive. There is simply no material before me to enable me to draw any inferences about the circumstances in which the plaintiff dealt directly with Mr Indovino.
(g) The plaintiff's affidavit does not adequately explain why he has changed his mind regarding the withdrawals of the caveats between 3 September 2008 (when he signed the authority) and 23 September 2008 (when he sought the return of the withdrawals of caveats). He does not point to any actual or threatened conduct of the defendants between the abovementioned dates that has caused, or will cause, him prejudice. His expressed concern about the alleged breach of the defendants' obligations under cl 4 of the terms of settlement to pay him $150,000 is unconvincing, as he executed the authority after the due date for payment. The references in his affidavit to borrowings by his three brothers do not appear to be relevant, as they are not defendants. In relation to his complaint that the $50,000 he expected to receive from the loan would be reduced by the amount of $7,341.40, there was insufficient material to enable me to understand why that deduction is to be made. Finally, the relevance of the plaintiff's concern that the fourth defendant has exceeded the borrowing cap of $4 million in the shareholders' agreement is not apparent, as that company does not own any of the land that is the subject of the plaintiff's caveats and is not the borrower in respect of the loan of $300,000.
18 Having regard to the above circumstances, I have not been persuaded that it is appropriate for me, in the exercise of my discretion, to grant the ex parte relief sought by the plaintiff. I therefore dismiss the plaintiff's summons.
19 However, I am prepared to hear further from Mr Levine in relation to any orders the plaintiff may require to facilitate an urgent hearing of an application upon notice for injunctive relief.
[1] R & L Bell Pty Ltd v Casboult [2003] VSC 169; (2003) 6 VR 271 [9]-[10].
[2] [2001] VSC 411, [30].
Zurcas
Zurcas & Ors [2008] VSC 379
(2003) 6 VR 271
The plaintiff’s summons for an ex parte injunction restraining registration of the caveat withdrawals was dismissed; the Court remained prepared to hear submissions about facilitating an urgent on-notice injunction hearing.