Devine v Bernstone - [2020] VSC 507

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 05474

Between:
JENNIFER JANE LOUISE DEVINE	Plaintiff
-and-
TERRY BERNSTONE	First Defendant
-and-
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2019 (plus costs submissions filed subsequently)
DATES OF ORDERS:	4 December 2019 (caveat removal); 17 August 2020 (costs)
DATE OF JUDGMENT:	17 August 2020
CASE MAY BE CITED AS:	Devine v Bernstone
MEDIUM NEUTRAL CITATION:	[2020] VSC 507

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REAL PROPERTY — Caveat — First defendant lodged caveat on plaintiff’s title to land — Application by plaintiff to remove caveat — No proper basis for caveat — Consent to removal of caveat at hearing — Application granted — Transfer of Land Act 1958 (Vic), s 90(3).

COSTS — Whether costs to follow event — Whether costs ordered on standard or indemnity basis — Caveat lodged in wilful disregard of legal advice that no caveatable interest — Caveat lodged for ulterior motive (as a bargaining chip in a commercial dispute) — Indemnity costs ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Symons	Melbourne Legal Chambers
For the First Defendant	In person
For the Second Defendant	No appearance

HIS HONOUR:

Overview

On 4 December 2019, when sitting in the Practice Court, I heard an application by Jennifer Devine, pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (“the TLA”), for the removal of a caveat lodged by Terry Bernstone over Ms Devine’s property at 4 Tara Court, Torquay. After I explained that he did not appear to have any proper basis for lodging the caveat, Mr Bernstone (who represented himself) withdrew his opposition to the application. He also indicated that he would not lodge any more caveats over the property (this was his second). As a result, I granted Ms Devine’s application to remove the caveat and made orders accordingly.

Ms Symons, who appeared for Ms Devine, then made an application for an order directing Mr Bernstone to pay her client’s costs, and on an indemnity basis (as had been flagged in correspondence between the parties preceding the hearing). Mr Bernstone opposed the application. I reserved my decision on costs pending receipt of written submissions, which have since been received (along with an affidavit from Ms Devine). I did so rather hoping that the parties might reach an agreement on costs in the interim. Unfortunately, that has not occurred. And so it is that I am required to rule on the matter.

In the submissions, Ms Devine has maintained her stance that Mr Bernstone should be ordered to pay her costs on an indemnity basis. Incongruously, Mr Bernstone has now reverted to the position that the lodging of the caveat was justified. While he has not applied to set aside the order for the removal of the caveat, he appears to rely on his asserted justification for lodging the caveat (or perhaps his belief therein) as a basis…

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 Devine v Bernstone

Details

AGLC: Devine v Bernstone [2020] VSC 507
Case: [2020] VSC 507
Decision Date: 17 August 2020

CaseChat Overview and Summary

In the case of Devine v Bernstone, the plaintiff sought to remove a caveat lodged by the first defendant over their title to a property. The second defendant was also named in the proceedings but did not contest the application to remove the caveat. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the caveat lodged by the first defendant had a proper basis, and if not, whether the plaintiff was entitled to have it removed. Additionally, the court had to determine the appropriate costs order in light of the circumstances surrounding the lodging of the caveat.

The court found that the first defendant's caveat had no proper basis, as it was lodged without a caveatable interest and in clear disregard of legal advice to the contrary. The first defendant conceded to the removal of the caveat during the hearing, thereby resolving the substantive issue. The court further examined the costs application, noting that the caveat was lodged for an ulterior motive, specifically as a bargaining chip in a separate commercial dispute. The court held that the circumstances warranted indemnity costs being awarded to the plaintiff.

The Supreme Court of Victoria granted the plaintiff's application to remove the caveat, finding it had no proper basis. The court ordered that the first defendant pay the plaintiff's costs on an indemnity basis, reflecting the deliberate and indefensible nature of the caveat. The second defendant, having not contested the removal of the caveat, was not subject to any costs order.

Orders