Evans v Advertising Department Pty Ltd - [2009] VSC 587

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9806 of 2009

JUDITH ANNE EVANS	Plaintiff
v
ADVERTISING DEPARTMENT PTY LTD	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 DECEMBER 2009
DATE OF JUDGMENT:	2 DECEMBER 2009
CASE MAY BE CITED AS:	EVANS v ADVERTISING DEPARTMENT
MEDIUM NEUTRAL CITATION:	[2009] VSC 587

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CAVEATS – Application for removal of caveat – Section 90(3) Transfer of Land Act 1958 – Finding of no caveatable interest – Balance of convenience.

EQUITABLE CHARGES – Description of property to be charged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr O. Bigos	Wiswoulds
For the Defendant	Mr J. Kewley	DS McKay and Associates

HIS HONOUR:

In this proceeding the plaintiff, Judith Anne Evans, seeks the removal of a caveat lodged by a company, the Advertising Department Pty Ltd (“Advertising”). The property concerned is the property more fully described in Certificate of Title volume 8499 folio 138 being 41 Northcote Road, Armadale in Victoria (“the property”).

The registered proprietors of the property are Judith Anne Evans, who is the plaintiff in this proceeding, who gives as her address 41 Northcote Road, Armadale, and her former husband, Raymond John Evans, who is recorded in the title as having an address at 186 Walsh Street, South Yarra.

A caveat in this matter was lodged by Advertising, dated 16 February 2004 against a number of properties, which included the subject property at 41 Northcote Road in Armadale. The estate or interest claimed by Advertising in that caveat was an equitable interest as chargee. The grounds of the claim were described as follows:

Pursuant to a charging clause in an acknowledgement of loan dated 12 January 2004 between the Advertising Department Pty Ltd and Ray Evans.

The caveat contained a wide prohibition.

The agreement for the loan, which was the subject of the alleged caveatable interest and is said to have given rise to it, is a document entitled "Acknowledgement of Loan". It was entered into on 16 January 2004 between Advertising, as the lender, and Raymond John Evans, Ms Evans’ former husband, as the borrower. The lending limit was AUD$200,000.

Pursuant to clause 9 of that Acknowledgement of Loan, the following was provided for the "Security" for the loan to Mr Evans:

It is a term of this agreement (and a condition subsequent to the Lender making the Initial Advance) that the Borrower shall procure and maintain until the Lender shall have received 100 cents in the dollar of the Redemption Sum, in a form acceptable to the Lender such legally enforceable (and registered if so required) mortgages, guarantees and/or indemnities and other securities for payment of the Redemption Sum or any part thereof as are, in the Lender's unfettered discretion required by the Lender, and that all obligations required to be performed by any party with respect thereto are duly and punctually performed.
The Borrower acknowledges the Lender's caveatable interest in respect of the redemption Sum under this agreement and…

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.

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Details

Case: [2009] VSC 587
Decision Date: 2 DECEMBER 2009

CaseChat Overview and Summary

In Evans v Advertising Department Pty Ltd, the dispute involved a claim for the removal of a caveat from a property title. The defendant, Advertising Department Pty Ltd, had entered a caveat over the property, and the plaintiff, Evans, sought its removal. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that the defendant's caveat was invalid as it did not represent a caveatable interest under the relevant provisions of the Transfer of Land Act 1958. Specifically, the plaintiff contended that the defendant had no equitable charge over the property and that the description of the property in the caveat was insufficient.

The court was required to determine whether the defendant held a caveatable interest that justified the caveat, and if not, whether the balance of convenience favoured the removal of the caveat. The key legal issue was whether the defendant's interest could be described as an equitable charge and whether the description of the property in the caveat was sufficient to establish a caveatable interest. The court examined the nature of the defendant's interest in the property and the terms of the caveat lodged.

The court found that the defendant did not hold a caveatable interest as it did not have an equitable charge over the property. The description of the property in the caveat was also deemed insufficient to establish a caveatable interest. The court considered the balance of convenience and determined that it favoured the removal of the caveat. Given the findings, the court concluded that the caveat should be removed.

The court ordered the removal of the caveat from the property title. The judgment highlighted the importance of establishing a proper equitable charge and providing a sufficient description of the property to maintain a valid caveat. The decision underscored the need for claimants to demonstrate a genuine caveatable interest to justify the lodging of a caveat.

Orders