Legal Research
Cases
Decola and Decola (No 2)

Decola and Decola (No 2)

Case [2021] FamCA 208 15 April 2021

Constructive Trust

Jurisdiction

Remedies

Statutory Construction

Type to search within this case.

FAMILY COURT OF AUSTRALIA

DECOLA & DECOLA (NO. 2)

[2021] FamCA 208

FAMILY LAW – CAVEAT REMOVAL – under s 90(3) of the Transfer of Land Act – review of applicable authorities – order made for caveats to be removed.

Bankruptcy Act 1966 (Cth), s 153A
Transfer of Land Act 1958 (Vic), ss 4, 90(3)

BCA Asset Management Group Pty Ltd v Sand Solutions (Vic) Pty Ltd & Ors [2021] VSC 177
Bell v Graham [2000] VSC 142
Bing & Bing (No 2) [2009] FamCA 709
Decola & Decola [2020] FamCA 884
Goldstraw v Goldstraw [2002] VSC 491
Hacker Nominees (NT) Pty Ltd v Sperrer (2010) 245 FLR 28
Hermiz v Yousif [2019] VSC 160
Jacem Pty Ltd v RMBL Investments Ltd [2010] SADC 97
Jerambak Holdings Pty Ltd v Austral-Asean Pty Ltd (2005) 147 NTR 1
Kuipers v Harrington (No 2) [2019] VSC 190
LI v Wang [2020] SADC 97
Pander v Popa [2013] FCCA 2177
Phillips v Southage Pty Ltd [2014] VSCA 17
Re Sabri; ex parte Brien (1997) FLC 82-732
Royal Melbourne Institute of Technology v Galloway [2020] VSC 575
Sledge & Pinder [2017] FCCA 3051
Tailor & Tailor [2019] FamCA 383
Talacko v Talacko [2009] VSC 349
Toffler & Eggers [2014] FCCA 764
Young v Young [2011] VSC 188

APPLICANT:

Mr Decola

RESPONDENT:

Ms Decola

FIRST INTERVENOR:

Mr A (as

liquidator of CCV

Australia Pty Ltd (ACN

…) (in

liquidation))

SECOND INTERVENOR:

B Pty Ltd

(ACN …) (in

liquidation)

THIRD INTERVENOR
(TRUSTEE-IN-BANKRUPTCY):

Mr C as

Trustee of Bankrupt Estate

of Mr Decola

FOURTH INTERVENOR:

Mr P (as liquidator of BB Pty Ltd) ACN …

FIFTH INTERVENOR:

BB Pty Ltd (in liquidation) ACN …

FILE NUMBER:

MLC

8877

2018

DATE DELIVERED:

15 April 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

12 & 14 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr J. Werner
(14 April 2021)

SOLICITOR FOR THE RESPONDENT:

KHQ Lawyers

COUNSEL FOR THE FIRST INTERVENOR:

Not applicable

SOLICITOR FOR THE FIRST INTERVENOR:

Mills Oakley Lawyers

COUNSEL FOR THE SECOND INTERVENOR:

Not applicable

SOLICITOR FOR THE SECOND INTERVENOR:

Mills Oakley Lawyers

COUNSEL FOR THE THIRD INTERVENOR (TRUSTEE-IN-BANKRUPTCY):

Not applicable

SOLICITOR FOR THE THIRD INTERVENOR (TRUSTEE-IN-BANKRUPTCY):

Coulter Roache Lawyers

COUNSEL FOR THE FOURTH INTERVENOR:

Not applicable

SOLICITOR FOR THE FOURTH INTERVENOR:

Force Legal

COUNSEL FOR THE FIFTH INTERVENOR:

Not applicable

SOLICITOR FOR THE FIFTH INTERVENOR:

Force Legal

Orders

Pursuant to s 90(3) of the Transfer of Land Act the Registrar of Titles is hereby directed to forthwith remove caveat … dated 23 July 2018 from certificate of title volume … folio … in relation to the land known and described as EE Street, Suburb V in the State of Victoria.
Pursuant to s 90(3) of the Transfer of Land Act, the Registrar of Titles is hereby directed to forthwith remove caveat … dated 9 June 2020 from certificate of title volume … folio … in relation to…

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 Decola and Decola (No 2)

Details

AGLC: Decola and Decola (No 2) [2021] FamCA 208
Case: [2021] FamCA 208
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Decola (the applicant husband) and Ms Decola (the respondent wife) concerning the removal of two caveats lodged by the husband. The application also involved intervenors, including the trustee-in-bankruptcy of the husband's estate and liquidators of companies associated with the husband. The husband, who was an undischarged bankrupt, had lodged caveats against two separate properties, claiming an interest based on implied, resulting, or constructive trusts. The removal of these caveats was a final issue to be resolved following an in-principle settlement of the broader litigation between the parties.

The primary legal issue before the court was whether the husband had established a sufficient caveatable interest in the two properties to justify the continued existence of the caveats, or whether the caveats should be removed pursuant to section 90(3) of the Transfer of Land Act. This required the court to determine if the husband had discharged the onus of demonstrating a serious question to be tried regarding his claimed interest and whether the caveats were lodged for a proper purpose. The court also considered the implications of the husband's bankruptcy on his ability to assert such an interest.

Justice Wilson applied the principles established in *Goldstraw v Goldstraw* and subsequent authorities, which hold that a caveator must discharge the onus of establishing a serious question to be tried as to the estate or interest claimed and must have a proper purpose for lodging the caveat, discouraging the use of caveats as bargaining chips. The court noted that the husband made no attempt to substantiate his claimed interests, and his response, communicated through an accountant, failed to articulate any specific caveatable interest or intention to commence proceedings to support the caveats. Furthermore, the husband's trustee-in-bankruptcy confirmed that the bankruptcy would not be annulled due to insufficient assets to pay creditors in full. Given the lack of evidence presented by the husband to support his claims, and the established legal principles regarding caveatable interests, the court found that the husband had failed to discharge his burden.

Consequently, the court ordered the Registrar of Titles to forthwith remove both caveats. The first caveat, dated 23 July 2018, was removed from the certificate of title for the land at EE Street, Suburb V, Victoria. The second caveat, dated 9 June 2020, was removed from the certificate of title for the land at FF Street, Suburb H, Victoria.

Orders