Commonwealth Bank of Australia v Love
[2014] VCC 887
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-14-00243
| COMMONWEALTH BANK OF AUSTRALIA | Plaintiff |
| v. | |
| HELEN LOVE & ANOR | Defendants |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2014 | |
DATE OF JUDGMENT: | 27 June 2014 | |
CASE MAY BE CITED AS: | Commonwealth Bank of Australia v. Love & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 887 | |
REASONS FOR JUDGMENT
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Catchwords: Caveat – Sale of land by mortgagee in possession – Caveat lodged by wife of mortgagor claiming common intention constructive trust – Contract for the sale of the property subject to a special condition entitling the bank to terminate the contract – Whether the bank should terminate the contract hoping for a higher price on resale – Whether caveat should be removed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Delany QC with Mr G. Moffatt | Gadens |
| For the First Defendant | Mr J. Barber | Madgwicks |
| For the Second Defendant | No appearance |
HIS HONOUR:
1The plaintiff, Commonwealth Bank of Australia (“CBA”), seeks summary judgment against the first defendant, Helen Love (“Mrs Love”), by summons filed 29 May 2014.
2CBA commenced the proceeding by originating motion filed 20 January 2014. The originating motion, and a summons, sought the removal of caveat AJ649538H lodged on behalf of Mrs Love with the Office of Titles on 8 May 2012 in respect of Certificate of Title Volume 10727 Folio 198; the property at 315 O’Herns Road, Epping (“the Property”).
3Mrs Love’s husband, Thomas James Love, is the registered proprietor of the Property. The Property was mortgaged (with other properties owned by Mr Love) to CBA to secure substantial borrowings. Mr Love defaulted and CBA sold the Property as mortgagee to Rentfile Pty Ltd by contract of sale dated 26 April 2013 (“the Contract of Sale”) for a purchase price of $2.8 million with settlement due on 24 January 2014.
4CBA sought the removal of the caveat so that settlement of the sale could proceed. Mrs Love refused to remove the caveat. The caveat claims an “estate in fee simple” pursuant to “the registered proprietor holding the Land as a trustee for the caveator under an implied trust by operation of s. 53(2) of the Property Law Act”.
5Mrs Love in an affidavit sworn 23 January 2014, stated that she has an interest in the Property “under a constructive trust that arises from my contributions to a joint marital endeavour to improve the property during the course of our marriage”.
6In relation to the Property, Mrs Love said that she had, over the last 13 years:
“(a)assisted my husband in rebuilding water troughs, tanks, fencing and electric fencing following the acquisition by Vic Roads in 2003 of the part of 315 [the Property] on which such equipment had been located;
(b)assisted my husband in concreting of new cattle yards, digging post holes, bolting fence components following the acquisition of the part of 315 on which the old cattle yards stood;
(c)planted many trees;
(d)assisted my husband to rebuild the new cattle yards after they were damaged by fire on 18 February 2013;
(e)assisting my husband to repair fences on the property after the 18 February 2013 fire;
(f)contributed over $200,000 of my own money (financed from a property to which I had clear title in 2007, before we were married) towards the cost of the purchase of wire, fence posts, repairing machinery, interest on the loan from CBA and other bills;
(g)spent many hours assisting my husband since 2003 in his claim for compensation for the acquisition of part 315 by Vic Roads”.
7Upon the hearing of the application, Mrs Love’s counsel, Mr Barber, made oral application to amend the caveat, so that rather than claiming the whole estate, Mrs Love claimed a half interest in the Property.
8CBA’s application to have the caveat removed by summons returnable on 23 January 2014, was dismissed by His Honour Judge Cosgrave. At that time, Mrs Love also asserted that CBA had “undersold” both the Property, and, at an earlier date, another property owned by her husband at 275 O’Herns Road Epping (“275 O’Herns Road”).
9It was alleged that if 275 O’Herns Road had been sold by CBA in accordance with its statutory obligations, CBA’s entitlement would have been met and there would have been no cause to later sell the Property at all.
10In relation to the sale of the Property, Mrs Love stated that:
a.a “for sale” sign was placed at the Property indicating that the sale would be by public auction;
b.the only advertising of the auction was “some internet advertising”;
c.the sale was actually by tender after the production of “an information memorandum”;
d.the sale was to the same purchaser as another property of Mr Love’s sold by CBA, being Lot 3, 410 Cooper Street Epping, which was “also sold at a significant undervalue”;
e.the sale was made “without proper advertising and by a method that is completely opaque” in circumstances where the purchaser “must have been aware of the deficiencies in the sale process adopted by CBA”.
11Pursuant to directions given by Judge Cosgrave on 23 January 2014, CBA delivered a statement of claim, and on 21 May 2014, Mrs Love filed a defence and counterclaim.
12The defence did not refer to or rely upon the alleged underselling of the Property or 275 O’Herns Road. Mr Barber informed me that this was done deliberately. Following discovery by CBA of documents relating to the advertising of the Property for sale, it was not considered that Mrs Love could maintain her assertions that the properties had been sold in breach of CBA’s statutory duties.
13Instead, Mrs Love relied upon the following matters in her defence:
a.“her equitable interest in the property under a constructive or implied trust” as particularised in Mrs Love’s affidavit sworn 23 January 2014;
b.CBA would breach its statutory duties as a mortgagee, if it proceeded to settle the sale of the Property, as CBA was entitled to rescind the Contract of Sale without penalty and it should do so because the Property would be likely to be resold on a further sale for a higher price.
14The second allegation arises from Special Condition 16.1 of the Contract of Sale. The Special Condition was varied by Deed of Variation dated 26 May 2014 between CBA and the purchaser, Rentfield Pty Ltd.
15Clause 16.1, as it reads after the Deed of Variation, and with the changes marked by underlining and striking through, is as follows:
“16.1 In the event that the Vendor shall be restrained or prevented from completing this Contract by injunction, caveat or otherwise, the Vendor may at its option elect to:
(a)terminate this Contract by notice in writing to the Purchaser prior to the date for completion of this Contract whereupon this Contract shall be at an end and all money paid by way of deposit by the Purchaser shall be refunded to the Purchaser and the Purchaser shall not be entitled to claim and the Vendor shall not be liable to the Purchaser for any damages or compensation by reason of such termination; or
(b)
extend the time for payment of the balance for a period of up to 60 days to enableextend (one or more times) the time for payment of the balance for a period of up to 220 days in total to enable the Vendor to remove any such injunction, caveat or other restraints so that the Vendor will be able to give title to the Purchaser in the terms of this Contract and the Purchaser shall not be entitled to claim and the Vendor shall not be liable to the Purchaser for any damages or compensation by reason of such extension. In the event of the Vendor being unable to give title to the Purchaser in the terms of the Contract by such extended date the Vendor may by notice in writing terminate this Contract whereupon this Contract shall be at an end and all money paid by way of deposit by the Purchaser shall be refunded to the Purchaser and the Purchaser shall not be entitled to claim and the Vendor shall not be liable to the Purchaser for any damages or compensation by reason of such termination.”
16My task, on the present application, is to determine whether Mrs Love has a real prospect of maintaining her caveat or there is some other basis upon which it is appropriate for the matter to proceed to trial.
17Although the present application is for summary judgment, I consider that I should, in addition to the terms of s. 63 of the Civil Procedure Act 2010 (Vic) and the relevant Rules of Court relied upon, have regard to the following matters:
a.Judge Cosgrave’s orders on 23 January 2014, as varied on 15 April 2014, required the filing of all affidavit material by the parties and all experts reports as to damages and liability, by 5 June 2014;
b.the relevant principles stated by Warren CJ in Piroshenko v Grojsman (2010) 27 VR 489 (“Piroshenko”) upon the hearing of an application for the removal of a caveat.
18In Piroshenko, Warren CJ at paragraph 8 noted the earlier decision of Schmidt v 28 Myola Street Pty Ltd (2006) 14 VR 447 where Her Honour stated that “…the proper exercise of the discretion under s 90(3) will involve considering: in which party’s favour the balance of convenience lies; whether there is a serious question to be tried; and whether the caveator claims an interest wider than what the caveator may be entitled. These questions inform the ultimate consideration, that is, whether the caveator has discharged his or her onus of justifying the maintenance of the caveat”.
19At paragraph 78 of Piroshenko, Warren CJ in considering the issue of “whether there is a serious issue to be tried” when deciding an application under s. 90(3) of the Transfer of Land Act 1958 (Vic), stated that the person seeking to maintain the caveat “must satisfy the court that:
1.there is a probability on the evidence before the court that he or she will be found to have asserted equitable rights or interest; and
2.that probability is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal property rights”.
20Accordingly, when determining whether the plaintiff has satisfied the test for summary judgment, I should assume that the evidence of the parties, including their expert witnesses, has already been filed with the Court and that the matters Mrs Love needs to establish are the matters stated by Warren CJ in Piroshenko.
Constructive trust claimed by Mrs Love
21Mr Barber submitted that the constructive trust that gave rise to Mrs Love’s interest in the Property arose from the “common intention” of Mr and Mrs Love. He submitted that “the requisite common intention may be inferred from the conduct of the parties, such as contributions to the cost of the property or its maintenance”. It was submitted that Mrs Love had made “the contribution of substantial labour and money”.
22The circumstances in which Mrs Love claimed an interest in the Property include:
a.the Property was registered in Mr Love’s name on 17 May 2002;
b.the Property was mortgaged to CBA on 23 August 2006 as part of security for advances of $4.79 million. By March 2009, the advances had increased to $12.6 million;
c.on 19 April 2011, Mr Love defaulted under the mortgage. At the time of the first demand, $8.9 million was owing;
d.the caveat was lodged on Mrs Love’s behalf on 8 May 2012;
e.Mr and Mrs Love married on 30 September 2000;
f.in 2003, VicRoads acquired part of the Property. After this date, Mrs Love helped to rebuild water troughs, tanks, fencing and electric fencing, constructing new cattle yards and assisting with the compensation claim against VicRoads;
g.after they were damaged by fire in February 2013, Mrs Love assisted in the rebuilding of new cattle yards and the repair of fences;
h.Mrs Love contributed “over $200,000 of my own money…towards the cost of the purchase of wire, fence posts, repairing machinery, interest on the loan from CBA and other bills”;
i.Mrs Love planted trees;
j.further contributions of labour by Mrs Love sworn to by her solicitor, Amelia Anne Strano in paragraph 5 of her affidavit sworn 13 June 2014.
23It was clear that the caveat was lodged in a form which was not “commensurate to the interest it is designed to protect” (Piroshenko at paragraph 40). This was conceded by Mr Barber and led to his application to amend the caveat to claim a half share of the Property.
24Mr Barber, relying upon the Full Federal Court decision of Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120 (“Parsons”), submitted that the fact that the marriage still subsisted, despite no declaration of trust having been made by a court, did not prevent the independent existence of such a trust.
25In Director of Public Prosecutions v Ali & Anor (No 2) [2010] VSC 503 (“Ali”), Hargrave J rejected the contention that a common intention constructive trust had been made out as between a husband and wife in circumstances where the marriage continued. Hargrave J at paragraph 80 stated, “I accept that the evidence is capable of supporting an agreement, arrangement or understanding that, if the marriage failed, Mrs Ali would be entitled to either a house in Australia to live in or the money referred to in the marriage certificate. However, that is an entirely different intention to that relied upon to support the common intention constructive trust”.
26Notwithstanding the decision in Ali, I consider that the claim by Mrs Love that, as between herself and her husband a common intention constructive trust may be established, is arguable and not fanciful.
27In Parsons, at paragraph 16, the Court stated that, “The equitable interest [of the applicant wife in respect of an interest in the property in her husband’s name] will not be defeated merely because the legal title has passed to a trustee in bankruptcy, for he stands in the shoes of the bankrupt”. The Full Court at paragraph 17 noted that, “the interest may be defeated [if] the conduct of [the applicant] as regards her acquisition of her interest in the matrimonial home, or the manner in which she dealt with that interest,…could lead a court to deny her full beneficial entitlement [or which] would cause a court to prefer the interests of unsecured creditors of the bankrupt estate [of the husband, over her] own equitable interests”.
28In Parsons, the trustee of the bankrupt estate had sought to set aside the transfer of property from the husband to the wife. The property, although acquired by the husband before marriage, had been the matrimonial home and the husband and wife had “agreed that it would be owned by them equally”, and the wife had made contributions towards the loan the husband had taken to purchase the property, including payments of principal.
29The evidence in the present case is not as strong. There is no evidence of any agreement, the Property was not the matrimonial home and Mrs Love did not contribute to the repayment of any loan to purchase the Property.
30Nevertheless, I consider that it is arguable that the evidence might establish a common intention that Mr and Mrs Love were each to have an equal interest in the Property on the basis of the contributions made by Mrs Love, both monetarily and by her labour over an extended period.
Whether CBA has a duty to rescind the Contract of Sale
31Mr Barber submitted that CBA owed a duty to Mrs Love arising from Special Condition 16.1 of the Contract of Sale, as follows:
a.Mrs Love presently makes no complaint as to the “process” by which CBA sold the Property in April 2013;
b.since April 2013, CBA has not obtained a valuation of the Property;
c.the Property has increased or “may have increased in value”;
d.CBA now has the right pursuant to Special Condition 16.1 to terminate the contract;
e.CBA’s duty to Mr Love requires it to terminate the contract and to resell the Property in the expectation that it would realise a higher price than the $2.8 million of the present Contract of Sale.
32During the course of argument, Mr Barber submitted that CBA could and should, without terminating the present Contract of Sale, seek to advertise the Property for sale and should treat the Contract of Sale as no more than an offer, or perhaps an irrevocable offer. I consider that those submissions have no substance and should be ignored.
33The matters of dispute between the parties are:
a.whether there is any evidence that the Property has, or may have, increased in value since April 2013;
b.whether CBA has the immediate right to terminate the Contract of Sale;
c.whether CBA owes a duty to Mrs Love which requires it to terminate the Contract of Sale and resell the Property.
34Value of the Property: Mrs Love relies upon a recent valuation of the Property by a valuer, Mr Mark Holland. He was asked to value the Property as at April 2013. His valuation report is dated 7 May and a supplementary report is dated 11 June 2013.
35Mr Holland valued the Property as at April 2013 at $4.4 million. The Property was sold at that date by CBA to Rentfile Pty Ltd for $2.8 million. Mr Holland’s valuation was based upon a consideration of four sales of broad-acres in the area. These included the sale by CBA of 275 O’Herns Road in 2011. Mr Holland did not appear to take into account the actual sale of the Property by CBA to Rentfile Pty Ltd.
36I do not consider that it follows from Mr Holland’s valuation that the Property would, if sold today, realise more than $2.8 million. In the valuation report, Mr Holland took account of what is described as “ecological considerations” in respect of the Property comprising species of flora and fauna “considered by the authorities as being worthy of preservation”, and which may have adversely affected the value of the Property.
37Mr Holland said that from his enquiries of the purchaser of 275 O’Herns Road, it seems that the purchaser did not need to spend as much as it had budgeted (apparently to deal with the ecological issues), and for which it had made allowance in the purchase price it offered CBA. Further, the ecological issue may have been clarified to some extent since April 2013, and that because “the ecological cloud has somewhat lifted since the date of sale in April 2013”, prudent purchasers at present “would come to the view that the subject land is probably not adversely affected by ecological issues” . Nevertheless, Mr Holland recommended that a report be obtained from an ecological expert on the issue, to “confirm this understanding”.
38Mr Barber submitted that the only reasonable inference was that Mr Holland was suggesting that, in the future, the Property would not have a perceived lesser value because the impact of the ecological issue had been “clarified” as of lesser significance and that accordingly, the value of the Property would have increased following the sale in April 2013.
39Mr Holland would presumably have stated that conclusion in his report if it had been his opinion, and one that his expertise or experience permitted him to express. That opinion has not been stated. Although the expert report was not filed in accordance with Judge Cosgrave’s directions, it is a sworn valuation prepared about one month ago. I should not, as Mr Barber submitted, regard it as an interim report which may be supplemented by further expert opinion at trial.
40In my view, there is presently insufficient evidence that the value of the Property has increased since April 2013. Mr Barber relied on the possibility that the Property “may have increased in value” (the alternative pleading in the defence), by submitting that this required CBA, in the exercise of its statutory duties, to obtain an up to date ecological report or sworn valuation before determining its future action under the contract. I do not accept the submission that CBA would arguable owe any such duty in the circumstances.
41Whether CBA can immediately rescind the contract: Mr Delaney QC, with whom Mr Moffatt appeared for CBA, submitted that CBA could not now terminate the contract pursuant to Special Condition 16.1 because the amendments by the Deed of Variation had effectively extended the settlement date for a total of 220 days.
42The amended Condition anticipates extensions, “one or more times…for a period of up to 220 days in total”. It is therefore unlikely that the mere execution of the Deed of Variation would result in a further extension at all, let alone for a period of 220 days.
43The initial extension of the time to pay the balance of the purchase money, of 60 days until 25 March 2014, was effected by notice from CBA to the purchaser dated 11 February 2014. No further notice has been given by CBA. Mr Delaney suggested that the execution of the Deed of Variation may have led to an expectation on the part of the purchaser that further extensions may be granted. In fact, Mr Delaney submitted, the circumstances of the execution of the Deed may constitute an actionable representation, if no extension were granted to the purchaser by CBA.
44In my view, the Special Condition is for the benefit of CBA. CBA may continue to bind the purchaser to the contract, if it chooses to do so. Otherwise, if no extension were notified by CBA, the purchaser may seek to tender the balance of the purchase price, and if nothing further happened, the purchaser could probably seek to bring the contract to an end. It is likely, however, that CBA would either terminate the contract or extend the settlement date for further periods, up to 220 days.
45Accordingly, I consider that, at present as Mr Barber contended, CBA is entitled under Special Condition 16.1(a) to forthwith give notice to terminate the contract.
46Does CBA owe a duty to Mrs Love to terminate the contract and to resell the Property: CBA had a duty to “take reasonable steps to obtain the best price consistently with its right to enforce its security interests” (MBF Investments Pty Ltd v Nolan [2011] VSCA 114 at paragraph 100).
47The sale by CBA in April 2013 is not now sought to be impugned. CBA chose the time of sale. It is not to point that a higher price may have been realised if the sale had been postponed. CBA was entitled in April 2013 to realise its security in order to recover the debt owing to it. The best price it obtained after appropriate steps were taken was $2.8 million.
48CBA has a contract with a purchaser which requires the payment of the balance of $2.8 million of the purchase price at the date CBA nominates, within 220 days following 25 March 2014.
49It would require compelling evidence that a termination of the contract and resale of the Property would result in a higher price, before a mortgagee would be required to relinquish a ready purchaser bound to a contract to purchase for what was regarded as the best price to be achieved in the market at the time the contract was entered into. In the present case, there is no such evidence that an increased price would be available.
Balance of convenience
50Warren CJ said in Piroshenko at paragraph 7,
“Caveats under Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. Insofar as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. This approach has been established law in Australia since the decision of Lord Diplock in Eng Mee Yong v. Letchumanan was approved by the Full Court of the Queensland Supreme Court of Appeal in Re Jorss’ Caveat.
This two stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act”.
51Mrs Love claims that, “Damages would not be an adequate remedy” for her loss and damage. Mrs Love asserts that her “loss and damage would be a loss of enjoyment of the property if she and the second defendant by counterclaim are unable to refinance the property before it is sold, alternatively a diminution in the value of her equitable interest in the property proportionate to the proportion by which the amount of $2,800,000 falls short of the value of the property”.
52In the present case, the following factors would militate against the maintenance of the caveat, even if it were considered that it were arguable that Mrs Love had an interest in the Property, or that the Property might now resell for a higher price, if CBA rescinded the present contract:
a.there is no evidence to suggest that Mrs Love was not aware of the substantial advances made to her husband by CBA, including upon the security of the Property;
b.in fact, part of the contribution made by Mrs Love, from which she says the common intention might be inferred, was the payment of “interest on the loan from CBA”;
c.the Property is broad-acres;
d.there is no reason advanced why damages would not be a sufficient remedy, if an equitable interest were to be established;
e.the extent of the equitable interest is certainly not the whole estate, but is otherwise unclear, save by reference to contributions of “over $200,000” of Mrs Love’s own money;
f.CBA sold the Property in April 2013 by a process which Mrs Love does not now challenge;
g.the recent execution by CBA and the purchaser of the Deed of Variation would indicate that both desire to complete the Contract of Sale.
Further pleadings
53Following the preparation of these reasons, I became aware that the following further pleadings had been filed:
a.amended defence and counterclaim of the first defendant dated 20 June 2014, filed pursuant to Rule 36.03;
b.defence [to counterclaim] and counterclaim of the second defendant by counterclaim against the first defendant by counterclaim filed 20 June 2014.
54Mrs Love’s amended defence and counterclaim includes the following substantial matters not included in the defence and counterclaim:
a.reference to the deed dated 26 May 2014 between CBA and the purchaser and the amendment to Special Condition 16.1(b) (paragraph 13B);
b.reliance upon Mr Holland’s valuation as at April 2013 to support the contention that “the property is now worth substantially more than $2,800,000” (paragraph 22A);
c.that Mrs Love also “held an equitable interest in 275 [O’Herns Road] under a constructive trust arising from her contributions to a joint marital endeavour to improve 275 during the course of her marriage” (paragraph 31);
d.that CBA undersold 275 O’Herns Road for $10.37 million on 24 August 2011 in breach of its obligations as mortgagee, in circumstances where:
i.it had two valuations dated April 2010 which indicated the market value was $25.2 million;
ii.it released ecological reports relating to the possible presence of native grasses on 275 O’Herns Road, without further investigations, which action “would have been likely to substantially reduce” the value of the Property;
iii.Mr Love, in an email dated 17 June 2010, had provided an officer of CBA with a description of “the history of the pasture on 275 [O’Herns Road]”
(paragraphs 30-50).
55Mrs Love’s solicitors had served by email a “proposed amended defence and counterclaim” on CBA’s solicitors on Friday 13 June 2014 at 1:04pm, prior to the hearing before me. That document was in substantially the same form as the pleading dated 20 June 2014, save it did not contain paragraphs 22A and 39, which I have summarised in sub-paragraphs (b) and (d)(iii) of the previous paragraph.
56At the hearing on 16 June 2014, Mr Barber informed the Court that he did not rely upon the proposed amended defence and counterclaim. Whilst some of the allegations raised in the proposed amended pleading and the actual amended pleading are supported by the affidavit sworn by Mrs Love, many of the allegations are not, and remain mere assertions.
57I consider, for the reasons I have stated, that Mr Holland’s valuation does not support the contention in paragraph 22A of the amended defence that “the property is now worth substantially more than $2,800,000”.
58The relevance of the alleged under-sale of 275 O’Herns Road to the interest claimed by Mrs Love in the Property is referred to in the particulars to paragraph 50 of the amended counterclaim. If 275 O’Herns Road had been sold for its alleged “market value” of $25.2 million, rather than the actual sale price of $10.37 million, this “would have fully discharged the debt owed to CBA and the bank guarantee secured on 275 [O’Herns Road] and would have generated a surplus of more than $11 million”. In these circumstances, CBA would not have needed to sell the Property in 2013.
59The allegations made by Mrs Love in her counterclaim are supported by Mr Love in his defence to the counterclaim filed by Mrs Love. In the counterclaim, Mr Love makes a claim against CBA for the alleged breach of the obligations it owed to him in the sale of both 275 O’Herns Road and the Property.
60In my view, the matters raised by Mrs Love in her amended pleading, even where supported by evidence, do not affect the conclusions I have reached in relation to the caveat lodged by Mrs Love in respect to the interest she claims in the Property.
61Mrs Love’s caveat should be removed for the following reasons:
a.she claimed “an interest wider” than that to which she could possibly be entitled;
b.there were no complaints persisted with in relation to the process for the sale by CBA of the Property;
c.even if Mrs Love could establish some interest in the Property, the evidence does not support the assertion in paragraph 27 of the defence that, “Damages would not be an adequate remedy for the first defendant’s loss and damage”;
d.Mrs Love had not satisfied the second limb of the test enunciated by Warren CJ in paragraph 78 of Piroshenko in considering the issue of “whether there is a serious issue to be tried”, as the “probability” of the asserted equitable interest being established is not “sufficient to justify the practical effect” on the ability of CBA to deal with the Property;
e.the balance of convenience favours CBA and the purchaser being permitted to settle the Contract of Sale of the Property.
62Accordingly, nothing raised by Mr and Mrs Love in the recently filed pleadings should affect the conclusion I have reached as to the appropriateness of an order being made to remove the caveat.
Orders
63In the circumstances, I consider that the plaintiff is entitled to an order that pursuant to s. 90(3) of the Transfer of Land Act 1958 (Vic), the second defendant should remove caveat no. AJ649538H from the land more particularly described in Certificate of Title Volume 10727 Folio 198.
64I will dismiss the first defendant’s application to amend the caveat as there was no evidence to support the application.
65Otherwise, I will hear further submissions from the parties before making any further orders, including any orders as to costs.
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Certificate
I certify that these 15 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 27 June 2014.
Dated: 27 June 2014
Catherine Kusiak
Associate to His Honour Judge Anderson
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