JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 & 31 May 2024
DATE OF JUDGMENT:	6 June 2024
CASE MAY BE CITED AS:	Archer Wealth v Casey
MEDIUM NEUTRAL CITATION:	[2024] VSC 300

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PROPERTY – Caveats – Application made to remove caveats to enable plaintiffs to complete settlement of mortgage property – Where mortgagor alleges improper sale and breach of duties – Whether the defendants established prima facie case of existence of caveatable interest in the mortgage property – Whether balance of convenience favours removal – Application to remove caveats granted – Transfer of Land Act 1958 ss 76 and 90(3) – Bayblu Holdings Pty Ltd & Anor v Capital Finance Australia Ltd [2011] NSWCA 39 – Byrne v St George Bank Ltd [1996] ANZ ConvR 405 – Harvey v McWatters (1948) 49 SR (NSW) 173 - Inglis v Commonwealth Trading Bank of Australia (1971) 126 CLR 161 – Lawrence & Hanson Group Pty Ltd v Young [2017] VSCA 172 – Piroshenko v Grojsman (2010) 27 VR 489 – Swanston Mortgage v Trepan Investments [1994] 1 VR 672 – Vasiliou v Westpac Banking Corporation (2007) 19 VR 229 – Welldog Pty Ltd v Prox Pty Ltd [2017] WASCA 62.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Rubenstein	ERA Legal
For the First, Second and Fourth Defendants	Mr T Dowling	Strongman & Crouch
For the Third Defendant	No appearance

HIS HONOUR:

Background

Kookee Pty Ltd (Kookee), the second defendant in this proceeding, is the registered proprietor of land at 426 Bunstons Road, Tolmie in the State of Victoria (the Tolmie property). The fourth defendant, Irene Lagoutatzis, is the sole director and shareholder of Kookee; the first defendant, Scott Casey, is Ms Lagoutatzis’ husband.[1]
[1]The third defendant, the Registrar of Titles, informed the Court that she did not intend to appear in the proceeding. References in these reasons to ‘the defendants’ are references to all of the defendants save for the third defendant.

The Tolmie property is a 100 acre plot of land on which there is some shedding. Mr Casey and Ms Lagoutatzis hope to retire there and build a dwelling on the property. Their family have a special connection with the Tolmie property; Mr Casey’s father’s ashes are buried there under a tree planted by Mr Casey and his best friend who previously owned the property and whose ashes are also buried there.

On 16 August 2023, Archer Wealth Pty Ltd (Archer), the first plaintiff in this proceeding, loaned Kookee $4,325,000 (the first loan). As security for the first loan, Archer was granted a mortgage over the Tolmie property (the first mortgage) as well as mortgages over three other properties of which Kookee or Ms Lagoutatzis were registered proprietors (collectively…

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 Archer Wealth v Casey

Details

AGLC: Archer Wealth v Casey [2024] VSC 300
Case: [2024] VSC 300
Decision Date: 6 June 2024

CaseChat Overview and Summary

The case of Archer Wealth v Casey involved a dispute over the removal of caveats to enable the plaintiffs to complete a settlement of mortgage property. The defendants, Casey, lodged caveats over the property, claiming an interest in it and alleging improper sale and a breach of duties by the plaintiffs. The case was heard in the Supreme Court of Victoria. The plaintiffs sought the removal of the caveats to facilitate the sale of the mortgage property.

The legal issues before the court were whether the defendants had established a prima facie case of the existence of a caveatable interest in the mortgage property and whether the balance of convenience favoured the removal of the caveats. The court had to consider the relevant statutory provisions under the Transfer of Land Act 1958, as well as case law, to determine the validity of the defendants' claims and the appropriate course of action.

The court found that the defendants had not established a prima facie case of a caveatable interest in the property, and that the balance of convenience favoured the removal of the caveats. The court relied on the principles established in cases such as Bayblu Holdings Pty Ltd & Anor v Capital Finance Australia Ltd, Byrne v St George Bank Ltd, Harvey v McWatters, Inglis v Commonwealth Trading Bank of Australia, Lawrence & Hanson Group Pty Ltd v Young, Piroshenko v Grojsman, Swanston Mortgage v Trepan Investments, Vasiliou v Westpac Banking Corporation, and Welldog Pty Ltd v Prox Pty Ltd. The court held that the defendants' claims were speculative and lacked sufficient evidence to support the existence of a caveatable interest. As a result, the application to remove the caveats was granted.

The final orders of the court were that the caveats lodged by the defendants were removed, and the plaintiffs were permitted to complete the settlement of the mortgage property. The court emphasised the importance of balancing the interests of all parties involved and the need for claimants to establish a clear and convincing case when lodging caveats.

Orders