Burghley Pty Ltd v Soames - [2021] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2021 00212

BETWEEN:

BURGHLEY PTY LTD (ACN 616 183 450)	Plaintiff
v
MONIQUE ELIZABETH MARY SOAMES	First defendant
v
THE REGISTRAR OF TITLES	Second defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2021
DATE OF JUDGMENT:	5 May 2021
CASE MAY BE CITED AS:	Burghley Pty Ltd v Soames & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 236

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REAL PROPERTY — Caveat —Application to remove caveat — Estate or interest in land — Serious question to be tried — Balance of convenience — Caveator ordered to pay costs on an indemnity basis — Transfer of Land Act 1958 (Vic) s 90(3) — Piroshenko v Grojsman (2010) 27 VR 489 ; Goldstraw v Goldstraw [2002] VSC 491; Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr B Parker	Kenna Teasdale Lawyers
For the first defendant	Mr D Connors	DSA Lawyers
For the second defendant

HER HONOUR:

Burghley Pty Ltd (‘the plaintiff’) is the registered proprietor of a property situated at and known as 164 Arthurs Seat Road, Red Hill (‘the property’). Jonathan Cecil (‘Mr Cecil’) is the sole director and secretary of the plaintiff.

The plaintiff sold the property pursuant to a contract of sale dated 8 November 2021. Settlement of the sale was due to occur on 8 February 2021. Under the contract, the purchaser is entitled to serve a rescission notice unless agreement can be reached to extend the settlement date under the contract.

On 14 January 2021, Monique Elizabeth Mary Soames (‘the first defendant’) lodged caveat AT946071N on the title to the property claiming an implied, resulting or constructive trust (‘the caveat’).

By originating motion and summons filed 2 February 2021, the plaintiff sought an order, pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic), directing the Registrar of Titles to remove the caveat against the title of the property.

The Registrar of Titles is named as the second defendant in the proceeding. By letter dated 3 December 2021, the Registrar informed the Court that she did not intend to appear in the proceeding.

Background

The first defendant is Mr Cecil’s former girlfriend. According to Mr Cecil, he lived with the first defendant from on or about 4 January 2017, when they moved into the property together, until 29 November 2018 when the first defendant vacated the property. The first defendant says she lived at the property with Mr Cecil from the date of settlement on or about 20 December 2016 until 24 December 2018.

Initially the property was purchased by Mr Cecil on 28 October 2016 and he paid the deposit of $160,000. Subsequently, Mr Cecil nominated the plaintiff as the purchaser. Settlement of this purchase took place on 20 December 2016. Mr Cecil advanced the necessary funds by way of a loan to the plaintiff to complete the purchase. The…

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 Burghley Pty Ltd v Soames

Details

AGLC: Burghley Pty Ltd v Soames [2021] VSC 236
Case: [2021] VSC 236
Decision Date: 5 May 2021

CaseChat Overview and Summary

The case of Burghley Pty Ltd v Soames involved Burghley Pty Ltd, a property developer, seeking the removal of a caveat lodged by Soames against a property in Melbourne. The dispute centred on the validity and enforceability of the caveat, with Burghley contending that it was improperly lodged and should be removed. The matter was heard in the Supreme Court of Victoria. The primary legal issues were whether the caveat raised a serious question to be tried and whether the balance of convenience favoured Burghley's application to remove the caveat. Additionally, the court had to determine whether Soames should be ordered to pay costs on an indemnity basis.

The court examined the criteria for determining a serious question to be tried, as outlined in Piroshenko v Grojsman, and assessed whether Soames had a bona fide intention to deal with the land. It also considered the balance of convenience, applying principles from Goldstraw v Goldstraw and Ugly Tribe Co Pty Ltd v Sikola. The court found that Soames's caveat was not supported by a serious question to be tried and that the balance of convenience favoured Burghley. Consequently, the court ordered Soames to remove the caveat and pay costs to Burghley on an indemnity basis.

In conclusion, the Supreme Court of Victoria ruled in favour of Burghley Pty Ltd. The court found that Soames's caveat was not justified and ordered its removal. Soames was also ordered to pay Burghley's costs on an indemnity basis. This decision reinforces the importance of bona fide intention and the criteria for maintaining a caveat under the Transfer of Land Act 1958 (Vic).

Orders