Decola and Decola (No 2)

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.