Dolan v Dolan - [2022] VSC 543

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2022 01685

BETWEEN:

SHANNAN CHRISTINA DOLAN	Plaintiff
v
CHRISTINE KAY DOLAN	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF JUDGMENT:	14 September 2022 (revised 15 September 2022)
CASE MAY BE CITED AS:	Dolan v Dolan
MEDIUM NEUTRAL CITATION:	[2022] VSC 543

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REAL PROPERTY — Caveat — Application to remove caveat — Whether serious question to be tried — Whether the balance of convenience favours maintenance of the caveat — Application to remove caveat not allowed — Caveat to be amended to reflect first defendant’s claimed interest in the property — Section 90(3) Transfer of Land Act 1958 (Vic) — Piroshenko v Grojsman (2010) 27 VR 489 — Lee v Yap [2021] VSCA 297 — Chan v Liu [2020] VSCA 28.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L E P Magowan	Aitken Partners Pty Ltd
For the First Defendant	Mr M Taylor	Merton Lawyers
No appearance for the Second Defendant

TABLE OF CONTENTS

The property........................................................................................................................................ 1

Material relied upon.......................................................................................................................... 2

Background......................................................................................................................................... 2

Applicable principles – caveat removal......................................................................................... 8

Submissions........................................................................................................................................ 9

Shannan’s submissions................................................................................................................. 9
Christine’s submissions.............................................................................................................. 12

Analysis.............................................................................................................................................. 15

Is there a serious question to be tried?..................................................................................... 15
Does the balance of convenience favour maintenance of the caveat?................................. 17
Should orders for vacant possession be made?...................................................................... 19
Should orders for sale and distribution of net proceeds be made?..................................... 19

Conclusion......................................................................................................................................... 19

HER HONOUR:

There is a dispute between mother and daughter regarding a property in regional Victoria. The daughter seeks orders that her elderly mother, who has resided in the property for almost 20 years, vacate the property. Further, that the caveat that her mother has placed on the property title be removed and an agent be engaged to sell the property. The daughter seeks orders that the sale proceeds be applied to pay out the loan secured by a mortgage over the property, outstanding property rates and taxes, and the estate agent fees, commissions and conveyancing costs. The daughter seeks that the net sale proceeds then be distributed in the following way: 36% to her, $20,000 to her mother, and the remainder into a trust account pending resolution of the property dispute. For the reasons outlined below, none of the orders sought by the daughter will be made.

The daughter, Shannan Christina Dolan, is the plaintiff in this proceeding. Her mother, Christine Kay Dolan, is the first defendant in this proceeding. For clarity, I shall refer to these parties by their first names. The second defendant is the Registrar of Titles and takes no active part in this proceeding.

The property

The subject property is located in Lorne, Victoria. It is more particularly described in Certificate of Title Volume 10652 Folio 998 (the ‘property’).[1]
[1]Updated title search was provided via email to Chambers on 6 September 2022.

Prior to subdivision, the property was part of land…

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 [2022] VSC 543
Case: [2022] VSC 543
Decision Date: 14 September 2022 (revised 15 September 2022)

CaseChat Overview and Summary

The case of Dolan v Dolan was heard in the Supreme Court of Victoria, involving a dispute over real property and the maintenance of a caveat. The plaintiff, seeking to purchase the property, filed an application to remove the caveat lodged by the first defendant. The first defendant claimed an interest in the property, asserting a potential adverse possession claim. The second defendant, the registered proprietor of the property, also sought to have the caveat removed. The court was required to decide whether the caveat raised a serious question to be tried and whether the balance of convenience favoured maintaining the caveat.

The central legal issues before the court were whether the first defendant's claims were sufficient to warrant maintaining the caveat and if the balance of convenience favoured the first defendant. The court considered the principles established in Piroshenko v Grojsman and the recent decisions in Lee v Yap and Chan v Liu. It was necessary to determine if the first defendant's caveat presented a serious question to be tried and if the balance of convenience weighed in favour of keeping the caveat. The court had to weigh the potential prejudice to the plaintiff against the first defendant's interest in the property.

The Supreme Court of Victoria found that the first defendant's claims presented a serious question to be tried, particularly concerning the potential adverse possession. The court held that the balance of convenience did indeed favour maintaining the caveat to protect the first defendant's interest. Consequently, the application to remove the caveat was dismissed. However, the court ordered that the caveat be amended to accurately reflect the first defendant's claimed interest in the property. This decision ensured that the first defendant's rights were protected while allowing for a fair assessment of their claims.

Orders