Commonwealth Bank of Australia v Maher

[2000] VSC 543

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6526 of 2000

COMMONWEALTH BANK OF AUSTRALIA	Plaintiff
v.
ELIZABETH JOANNE MARIE MAHER AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 DECEMBER 2000
DATE OF JUDGMENT:	21 DECEMBER 2000
CASE MAY BE CITED AS:	COMMONWEALTH BANK OF AUSTRALIA v. MAHER & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 543

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CATCHWORDS:      Removal of caveat – No caveatable interest – Caveat defective in form.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. R.D. Shepherd	G.S. Ray
For the First Defendant	Mr. G.D. Steart	F.W. Robson & Co.

HIS HONOUR:

1. On 28 April 1995 Melvyn Gregory Taylor became the registered proprietor of a property situate at 384 Spencer Street, Melbourne being the whole of the land more particularly described in Certificate of Title Volume 894 Folio 782.

1. On 18 April 1997 Taylor mortgaged the property to the plaintiff the Commonwealth Bank of Australia to secure the repayment by him of certain advances and accommodation granted to him by the bank.

1. The mortgage was registered on 19 May 1997.

1. On19 June 1997 the first defendant Elizabeth Joan Mary Maher lodged a caveat over the property in the Office of Titles.  The dealing number of the caveat is U830181H.

1. The estate or interest claimed was originally expressed in the caveat as "One undivided half share as tenant in common".  On some unspecified date some person struck out those words and substituted for them the words "An estate in fee simple".

1. The grounds of claim specified in the caveat read:

"Pursuant to a declaration of trust dated 15 March 1995 where the registered proprietor authorised a caveat to be lodged by the caveator."

1. In due course Taylor defaulted in repaying the advances made to him.

1. On 25 May 1998 the bank served on Taylor a demand for payment of the sum of $203,237.46 which was the amount then outstanding under the facility and a notice pursuant to s.76 of the Transfer of Land Act 1958.

1. Thereafter there were protracted negotiations between the bank and its solicitor and the solicitors for Maher concerning the removal of the caveat.

1. For some time the bank was led to believe that Mrs. Maher was to take an assignment of Taylor's mortgage.  However, that did never come to pass.

1. During the course of those negotiations Maher's solicitors wrote the following letter to the bank's solicitor:

"8 December 1998

Ian F. Purbrick
Solicitor
DX 407
MELBOURNE

Dear Sirs,

Re:ELIZABETH MAHER and COMMONWEALTH BANK OF AUSTRALIA, 384 SPENCER STREET, WEST MELBOURNE

We refer to your letter dated 3 December 1998.

In relation to the interest claimed by our client, we are instructed that she provided moneys for the purpose of the acquisition of the property on the basis that an interest in same was to be held on trust for her.  To this extent, we believe that our client's interest pre-dates that of your client, but accept that, in the circumstances that she did not register her interest, the bank has priority.

We look forward to receiving the draft deed of assignment in the near future.

Yours faithfully

OAKLEY THOMPSON & CO."

1. Despite the recognition by Maher's solicitors of the fact that the bank's interest takes priority to any interest Maher may have in the property, Maher refuses to remove the caveat.

1. On 18 August 2000 the bank filed this proceeding in the Court whereby it seeks an order to that effect.

1. In an affidavit sworn by Maher on 20 November 2000 and filed in opposition to the bank's application, Maher has deposed to the fact that in 1995 she paid sums totalling $112,000 to Taylor for the purpose of Taylor acquiring the property.

1. She has further sworn, and I quote:

"It was the common intention of myself, on behalf of the Maher Family Trust and Melvyn Taylor that the sum of $112,000.00 was not a gift and would be repaid, and that until it was repaid the sum would be secured by a mortgage or charge against the land and until such time as a mortgage or charge had been executed and registered that Mr. Taylor would hold one half of his interest in the land on trust for me as trustee of the Maher Family Trust."

1. In an affidavit sworn by Maher's son Dennis Maher on 14 December 2000 Dennis Maher has said that he is the tenant in possession of the property pursuant to a 15 year lease dated 15 March 1995 entered into by him and Taylor.

1. The Certificate of Title to the property makes no reference to any such lease.  But even if it did it would have no bearing on the fate of the present application.

1. In my opinion there is no basis upon which the first defendant can successfully resist the plaintiff's application.

1. The plaintiff took its interest in the property without notice of any interest held by the first defendant.

1. The first defendant's caveat was not lodged until after registration of the plaintiff's mortgage by which stage the plaintiff had obtained an indefeasible title to the property.

1. Further the first defendant's caveat is bad in form and ought to be removed on that ground.  The caveat as worded does not claim any interest as trustee.

1. The following are the orders I make in the proceeding:

1.The plaintiff has leave to amend the name of the first defendant in the originating motion by deleting "Joan Mary" and substituting therefore "Joanne Marie".

2.I dispense with the requirement that the plaintiff file and serve an amended originating motion.

3.I order that the caveat lodged by the first defendant in dealing No. U830181H in the Office of Titles be removed by the second defendant from Certificate of Title Volume 0894 Folio 782.

4.I order that the first defendant pay the plaintiff's costs of the proceeding including any reserved costs.

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