Deveraux v Cash - [2019] NTSC 78

CITATION: Deveraux v Cash [2019] NTSC 78
PARTIES: DEVERAUX, Kymberly

v
CASH, Jason

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:88 of 2019 (21931241)
DELIVERED:  15 October 2019
HEARING DATES:  14 October 2019
JUDGMENT OF:  Grant CJ
CATCHWORDS:

LAND LAW – CAVEATS –CAVEATABLE INTEREST – WHAT CONSTITUTES A CAVEATABLE INTEREST
Plaintiff as caveator must establish a serious issue to be tried as to the interest claimed and the balance of convenience must favour maintenance of the caveat – An interest under a claimed constructive trust is caveatable – Despite some improbability and implausibility in the plaintiff’s account likelihood of success not so low as to deny trial of the substantive issue – Balance of convenience favours maintenance of status quo – Application for removal of caveat dismissed.
Land Title Act 2000 (NT) s 138, s 143, s 145, s 146, s 197

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, Barfuss & Ors v Altmann [2008] NTCCA 1, Hayes v O’Sullivan (2001) 24 WAR 40, Legune Land Pty Ltd v Northern Territory Land Corporation and Northern Territory of Australia [2012] NTSC 99, Mijo Developments v Royal Agnes Waters [2007] NSWSC 199, Municipal District of Concord v Coles (1906) 3 CLR 96, Ogilvie v Ryan [1976] 2 NSWLR 504, Re McKean's Caveat (1988) 1 Qd R 524, Sinclair v Hope Investments Pty Ltd (1982) 2 NSWLR 870, Surfers Paradise Investments Pty Limited v United Investments Pty Limited, Eilazak Pty Limited [1997] QSC 179, Young v Young [2011] VSC 188, referred to.

REPRESENTATION:
Counsel:
Plaintiff:L Tattersall
DefendantP Cheong
Solicitors:
Plaintiff:Minter Ellison
DefendantHunt & Hunt
Judgment category classification:              B
Judgment ID Number:  GRA1918
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Deveraux v Cash [2019] NTSC 78

No. 88 of 2019 (21931241)
BETWEEN:

KYMBERLY DEVERAUX
Plaintiff

AND:

JASON CASH
Defendant

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 15 October 2019)
THE COURT:

This is an application by the defendant by Amended Summons filed on 4 October 2019 seeking orders:
(a)that the caveat lodged by the plaintiff over the defendant’s property at 185 Ewart Road, Lambells Lagoon in the Northern Territory of Australia (the property) be removed pursuant to s 143 of the Land Title Act 2000 (NT); and
(b)for compensation for loss or damage sustained as a result of the lodgement of the caveat without reasonable cause pursuant to s 146 of the Land Title Act.
Procedural history
The application is brought in proceedings commenced by the plaintiff seeking leave to lodge a caveat over the property pursuant to s 145 of the Land Title Act. That leave was required because the plaintiff had previously lodged a caveat over the property which had lapsed on 22 June 2016. Although the Originating Motion named the defendant as a party, the application for leave was heard ex parte on 20 August 2019 without…

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 Deveraux v Cash

Details

AGLC: Deveraux v Cash [2019] NTSC 78
Case: [2019] NTSC 78
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case of Deveraux v Cash involves a dispute over a caveat entered by the plaintiff, Deveraux, on a property she owns. The defendant, Cash, sought the removal of the caveat, which was entered to prevent the sale of the property. The matter was heard in the Supreme Court of the Northern Territory. The plaintiff argued that she had a serious question to be tried regarding her interest in the property, which was based on a claim of a constructive trust. The defendant contended that the plaintiff's claim was implausible and that there was no serious question to be tried.

The court had to determine whether the plaintiff had a sufficient likelihood of success to justify the preservation of the status quo pending the trial of the substantive issue. The court also needed to consider whether the balance of convenience favoured the maintenance of the caveat. The court found that the plaintiff had a serious question to be tried, as there was a sufficient likelihood of success despite the improbability and implausibility of the plaintiff's account. The court held that the balance of convenience favoured maintaining the status quo, as the consequences of refusing to remove the caveat could be significant for the plaintiff.

The court dismissed the defendant's application for the removal of the caveat. The court found that the plaintiff's interest under a claimed constructive trust was caveatable, and the likelihood of success was not so low as to deny a trial of the substantive issue. The court also found that the balance of convenience favoured maintaining the status quo, as the consequences of refusing to remove the caveat could be significant for the plaintiff.

The final orders of the court were that the defendant's application for the removal of the caveat be dismissed, and the caveat remain in place until the substantive proceedings were resolved.

Orders

Orders of the court

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Background

Background to the litigation

There is little practical difference between the formulations of “prima facie case” and “serious question to be tried”, and under both tests it is unnecessary for the plaintiff to establish a probability of ultimate success. Rather, the plaintiff must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial of the substantive issue. The strength of the likelihood required will depend on the nature of the rights the plaintiff asserts and the practical consequences likely to flow from a refusal to remove the caveat: Australian Broadcasting Corporation v O’Neill at [66], [71]. Background The plaintiff purchased the property with her former de facto partner on 16 November 2001 for the price of $235,000. That relationship broke down in or about 2005, and title was transferred to the plaintiff as sole owner by Deed of Settlement on 13 September 2005. The plaintiff and the defendant commenced a relationship in late 2008 or early 2009. The defendant was at that time renting a property at Howard Springs, and the plaintiff and her young son stayed most nights at the defendant’s property in the early stages of the relationship. At that time the plaintiff was in full-time employment at a rehabilitation facility. Although there is some dispute between the parties as to whether the plaintiff “lost” that job or resigned for reasons to do with childcare and travel, it is common ground that the employment finished in or about April 2009. Apart from a number of short periods of casual employment which did not continue for reasons not presently relevant, the plaintiff was thereafter in receipt of Centrelink benefits. The plaintiff deposes that she also received child support from her former partner and some unspecified income from a family business, but no further detail is given in relation to the quantum or frequency of those payments. In or about September 2009 the lease on the property the defendant was renting at Howard Springs expired and the defendant commenced living with the plaintiff and her young son at the property. That arrangement was the product of the natural evolution of the relationship between the plaintiff and the defendant and the fact that the plaintiff was having difficulty meeting the mortgage payments on the property due to her straitened financial circumstances. From the time he moved into the property the defendant paid the plaintiff approximately $500 per week in the form of rent, which he understood the plaintiff was putting towards payments for the mortgage and other bills. The defendant also assisted in undertaking repair and maintenance work on the property. The plaintiff and the defendant experienced some difficulties in their relationship during the course of 2010 which led to the defendant moving out of the property for a period of time before moving back in towards the end of that year. However, during that period living apart he continued making the same contribution to expenses. The plaintiff fell pregnant during the course of 2010 and gave birth to their son in January 2011.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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