Goldberg v Campbell and Shaw - [2021] VSC 647

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2021 02523

BRIAN MORRIS GOLDBERG (who sues as Executor of the Estate of Alexander Joseph McColley (also known as Alexander John McColley))	Plaintiff
v
CAMPBELL AND SHAW (A Firm)	First Defendant
NORMAN LESLIE MATHERS	Second Defendant

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2021
DATE OF JUDGMENT:	8 October 2021
CASE MAY BE CITED AS:	Goldberg v Campbell and Shaw & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 647

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REAL PROPERTY — Caveats — Application by plaintiff for order directing removal of caveat lodged by second defendant on title — Application for removal of a caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) — Whether there is a prima facie case to be tried — Whether the balance of convenience favours the removal of the caveat — Order for removal of caveat to be made but stayed pending an application to amend caveat — Application for sale of co-owned land and division of proceeds under Part IV of the Property Law Act 1958 (Vic) — Sale not ordered but application adjourned.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Antill	Casey Business Lawyers
For the First and Second Defendants	Mr P D Reynolds	Campbell & Shaw Lawyers

HER HONOUR:

Introduction

By its originating motion dated 19 July 2021 (‘Application’), the plaintiff seeks the following orders against the second defendant:[1]

(a) an order pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) that the second defendant remove caveat AN634457G (‘Caveat’) from the property located at Bemersyde Drive, Berwick, being the land described in Certificate of Title volume 9299 folio 729 (‘Property’); and

(b) an order pursuant to Part IV of the Property Law Act 1958 (Vic) (‘PLA’) that the Property be sold and the proceeds divided between the plaintiff and second defendant.

[1]By the originating motion and summons, the plaintiff also sought orders regarding production of the Certificate of Title for the Property against both the first and second defendants, which orders were no longer necessary by the time the matter came on for hearing.

On 1 September 2021 on the Court’s own motion, the Honourable Justice McDonald made an order pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that the plaintiff’s Application be referred to me for hearing and determination.

In support of the Application, the plaintiff relies upon: the affidavits Marylyn Gilberthorpe sworn 18 July 2021 and 18 August 2021 and the exhibits thereto; and the written submissions of his counsel, Mr Richard Antill, dated 24 August 2021.

In opposition to the Application, the second defendant relies upon: the affidavits of Norman Leslie Mathers sworn 13 August 2021 and 1 September and the exhibits thereto; the affidavit of David Henry Shaw sworn 27 August 2021; and the written submissions of…

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: [2021] VSC 647
Decision Date: 8 October 2021

CaseChat Overview and Summary

In Goldberg v Campbell and Shaw, the plaintiff sought an order directing the removal of a caveat lodged by the second defendant on a property title, pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic). The second defendant had lodged a caveat claiming an interest in the property, which the plaintiff sought to contest. The legal issues before the court were whether the plaintiff had established a prima facie case for the removal of the caveat and whether the balance of convenience favoured such removal.

The court considered the plaintiff's arguments and the second defendant's opposition to the removal of the caveat. The court concluded that the plaintiff had made out a prima facie case that warranted a trial. However, the court determined that the balance of convenience did not favour the removal of the caveat without conditions. Consequently, the court made an order for the removal of the caveat but stayed the order pending an application to amend the caveat. Additionally, the court addressed an application by the plaintiff for the sale of the co-owned land and division of the proceeds under Part IV of the Property Law Act 1958 (Vic). The court did not order the sale of the property but instead adjourned the application to allow for further submissions.

This decision underscores the importance of establishing a prima facie case and assessing the balance of convenience in caveat removal applications. The court's decision to stay the removal order pending amendment of the caveat reflects a cautious approach to balancing the interests of the parties involved. The adjournment of the sale application indicates that the court will consider further evidence and arguments before making a final determination.

Orders