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Dolan v Dolan

Dolan v Dolan

Case [2023] VSCA 136 8 June 2023

Caveat

Interlocutory Orders

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0108

SHANNAN CHRISTINA DOLAN	Applicant
and
CHRISTINE KAY DOLAN	First Respondent
AND
REGISTRAR OF TITLES	Second Respondent

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JUDGES:	NIALL, OSBORN and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	8 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 136
JUDGMENT APPEALED FROM:	[2022] VSC 543 (Ierodiaconou AsJ)

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REAL PROPERTY – Caveat – Associate judge refused to order removal of caveat – Whether associate judge conducted a trial of the originating motion – Nature of order made the true issue – Order did not finally determine rights – Order interlocutory – No issue estoppel or res judicata arises.

REAL PROPERTY – Caveat – First respondent deposed to agreement in identical form as in proposed draft pleading – Whether paragraph in affidavit inadmissible on basis of being a pleading – Evidence relevant and on its face came from deponent’s personal knowledge – Paragraph capable of conveying contents of a conversation – Other evidence for agreement – Applicant’s counsel made concession on issue to which paragraph related.

REAL PROPERTY – Caveat – Associate judge accepted undertaking from first respondent – Whether associate judge erred in accepting undertaking where no evidence undertaking would meet ongoing liabilities – Applicant declined to engage on adequacy of undertaking at hearing – Applicant cannot subsequently complain amount was inadequate or associate judge should have rejected undertaking – Application to adduce fresh evidence that mortgage in arrears rejected – Application for leave to appeal refused.

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Counsel
Applicant:		Mr LEP Magowan
First Respondent:		Mr MA Taylor
Second Respondent:		No appearance
Solicitors
Applicant:	Aitken Partners
First Respondent:	Ramsden Lawyers
Second Respondent:	Land Use Victoria

NIALL JA
OSBORN JA
KAYE JA:

This application for leave to appeal is from a decision of an Associate Judge of the Court to refuse to order the removal of a caveat on a title to residential property in Lorne, Victoria. The underlying dispute is between Shannan Dolan (‘Shannan’ or ‘the applicant’) and her mother Christine Dolan (‘Christine’ or ‘the respondent’).[1]
[1]For convenience first names are used in these reasons.
Shannan is the sole registered proprietor of the property and wishes to sell it. Christine has lived in the property since construction of a house on the land was completed in late 2003 to early 2004. Between that time and 2006, she lived in the property with Shannan and from 2006 she has lived there alone or with her son. The property was created by subdivision of a larger block. Christine was a registered proprietor of the parent title and transferred her interest to Shannan in circumstances that are in dispute. Christine contends that she holds 93 per cent of the beneficial interest in the property pursuant to a common intention constructive trust.[2]
[2]Alternatively, she claims a 65 per cent interest pursuant to a resulting trust.
Fearing that Shannan would sell the property, Christine lodged a caveat. Shannan applied for an order to remove the caveat, which Christine opposed…

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 Dolan v Dolan

Details

AGLC: Dolan v Dolan [2023] VSCA 136
Case: [2023] VSCA 136
Decision Date: 8 June 2023

CaseChat Overview and Summary

In the case of Dolan v Dolan, the applicants, who were parties to a proceeding involving real property, sought an order for the removal of a caveat lodged by the respondents. The application was heard by an associate judge of the Federal Circuit and Family Court of Australia, whose decision was subsequently appealed. The applicants contested the associate judge's refusal to remove the caveat, arguing procedural errors and the admissibility of certain evidence.

The primary legal issues before the court involved the nature of the associate judge's decision and whether it constituted a final determination of the parties' rights. The applicants also argued that a particular paragraph in an affidavit should have been deemed inadmissible as it mirrored the proposed draft pleading. The court considered whether the evidence provided, including the contested affidavit paragraph, was relevant and based on personal knowledge, and whether the associate judge correctly accepted an undertaking from one of the respondents. Additionally, the applicants sought to introduce new evidence regarding a mortgage that was in arrears, which was denied by the court.

The court found that the associate judge did not conduct a trial of the originating motion but rather made an interlocutory order. As the order did not finally determine the parties' rights, issues of issue estoppel or res judicata did not arise. The court held that the evidence in question was relevant and did not constitute a pleading, as it was based on the deponent's personal knowledge and could convey the contents of a conversation. The applicants' counsel had conceded on the issue related to the contested paragraph. Furthermore, the applicants could not complain about the adequacy of the undertaking or the associate judge's acceptance of it, as they had not raised these concerns during the hearing. The application to adduce fresh evidence regarding the mortgage was rejected, and the application for leave to appeal was dismissed.

No specific orders were made beyond the refusal of the appeal and the rejection of the application to adduce fresh evidence. The court's decision upheld the associate judge's interlocutory order and maintained the caveat in place.

Orders