Day v Munday - [2019] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation: Day v Munday [2019] NSWSC 452
Hearing dates: 23 April 2019
Date of orders: 23 April 2019
Decision date: 23 April 2019
Jurisdiction: Equity - Duty List
Before: Kunc J
Decision:
Summons dismissed with costs.

Catchwords: LAND LAW — Caveats — Caveatable interest — No arguable case for an interest in land
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Stojanovski v Stojanovski [2013] NSWSC 1491
Woodsman Pty Limited v Jozic [2018] NSWSC 1311
Category: Principal judgment
Parties:
Henry Coglin Day (Plaintiff)
Frances Helen Munday (Defendant)
Representation:
Counsel:

H Day (Plaintiff in person)
A R Jordan (Defendant)

Solicitors:
Johnson & Sendall (Defendant)

File Number(s): 2019/114749
Publication restriction: No

Ex Tempore Judgment (REVISED)

Summary

This is an application by the plaintiff ("Mr Day") to extend the operation of a caveat (the “Caveat") over a property in Goulburn (the “Goulburn Property") which is owned by the defendant ("Mrs Munday"), who is Mr Day's mother.
Mr Day has represented himself since the inception of these proceedings by the filing of his summons in the Duty List on 12 April 2019. Mr A R Jordan of counsel has appeared for Mrs Munday, who opposes the extension of the operation of the Caveat.
The ground of opposition to the extension is straightforward, namely that the Caveat does not disclose a caveatable interest in the Goulburn Property. For the reasons which follow, the Court accepts that submission.

The facts

In 2004 Mrs Munday became the registered proprietor of the Goulburn Property.
In 2005 Mr Day, Mrs Munday and her late husband (“Mr Munday”) entered into a tenancy agreement (the “Tenancy Agreement") pursuant to which Mr Day agreed to lease a property at Kambah in the Australian Capital Territory (the “ACT Property") to Mr and Mrs Munday for a term concluding on 31 December 2015. Mr and Mrs Munday continued in occupation of the ACT Property after that term had expired.
Mr Day's evidence (which is denied by Mrs Munday) is that in late 2014 or early 2015, Mrs Munday "made an undertaking" to give the Goulburn Property to Mr Day as a form of compensation for the “many years of subsidising their living". On his own submission, the highest Mr Day's evidence rises is set out in paragraph [5] of his affidavit of 15 April 2019:

“(a) Mrs Munday first made an undertaking to me in private (ie. Without my father being present) stating that she was the registered owner (not her words. She used words to the effect of “it’s in my name”) and that she gave me an interest in that property because of my financial support of them for many years. Mrs Munday’s undertaking was made after the birth of my daughter in either late 2014 or early 2015.
(b) Subsequent to this undertaking, this agreement was again discussed on several occasions between then and 22 May 2016. During these subsequent discussions, Mr Munday was also present and aware of the topic being discussed.

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.

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Details

Case: [2019] NSWSC 452
Decision Date: 23 April 2019

CaseChat Overview and Summary

The case of Day v Munday involved a dispute concerning the validity of a caveat entered by the defendant against the plaintiff's property. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to establish a clear title to the property by having the caveat removed, arguing that the defendant had no arguable interest in the land. The defendant, in turn, contended that the caveat was validly entered as she had a sufficient interest in the land to warrant its protection.

The central legal issue the court had to address was whether the defendant had an arguable interest in the land sufficient to justify the entry of a caveat. This required the court to determine the nature of the interest the defendant claimed and whether it was sufficiently connected to the land to be considered "caveatable." Additionally, the court had to consider whether the plaintiff had made out a case for the removal of the caveat based on the absence of an arguable interest on the part of the defendant.

The court examined the evidence presented and found that the defendant did not possess an arguable interest in the property. It was determined that the defendant's claim was not supported by any legal or equitable basis that could be considered sufficient to warrant the entry of a caveat. The court emphasised that for a caveat to be valid, the caveator must have an interest in the land that is more than speculative or contingent. As the defendant's claim did not meet this threshold, the caveat was deemed invalid. Consequently, the court ordered the caveat to be removed and declared that the plaintiff held a clear title to the property.

In conclusion, the court ruled in favour of the plaintiff and ordered the removal of the caveat entered by the defendant. The court further declared that the plaintiff held a clear title to the property, and the defendant's claim to any interest in the land was not substantiated.

Orders