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Goldberg v Campbell & Shaw

Goldberg v Campbell & Shaw

Case [2022] VSC 24 3 February 2022

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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:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2021
DATE OF RULING:	3 February 2022
CASE MAY BE CITED AS:	Goldberg v Campbell & Shaw
MEDIUM NEUTRAL CITATION:	[2022] VSC 24

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REAL PROPERTY – Caveats – Application for leave to amend a caveat – Section 90(3) of the Transfer of Land Act 1958 (Vic) – Considerations for leave to amend a caveat – Nature of the amendment sought – Circumstances in which the error was made – The Court should not readily act in a way which might encourage the belief that caveats can be imprecisely formulated and later amended – Merits of the claim for the caveatable interest sought by the amendment – Whether there is a prima facie case of proprietary estoppel – Whether co-owners are required to pay rent to each other – Detrimental reliance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Antill	Casey Business Lawyers
For the Second Defendant	Mr P Reynolds	Campbell & Shaw
No appearances on behalf of the First Defendant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Issues.................................................................................................................................................... 5

Relevant statutory provisions.......................................................................................................... 5

Power to amend caveats.................................................................................................................... 5

Considerations for amending a caveat........................................................................................... 7

Nature of the amendment............................................................................................................ 8
Circumstances in which the error was made............................................................................ 8
The second defendant’s position....................................................................................... 8
The plaintiff’s position...................................................................................................... 10
Consideration..................................................................................................................... 11

The Court should not readily act in a way which might encourage the belief that caveats can be imprecisely formulated and then amended.................................................................. 14
Merits of the claim for the caveatable interest sought by the amendment to the Caveat 15
The second defendant’s position..................................................................................... 15
The plaintiff’s position...................................................................................................... 18
The second defendant’s position in reply...................................................................... 25
Consideration..................................................................................................................... 30
Prima facie case..................................................................................................... 31
Balance of convenience........................................................................................ 40

Conclusion......................................................................................................................................... 41

Orders................................................................................................................................................. 41

HIS HONOUR:

Introduction

This is an application by Norman Leslie Mathers, the second defendant, for leave to amend caveat number AN634457G (‘the Caveat’) registered upon Certificate of Title Volume 9299 Folio 729 (‘the Property’), pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘the Act’) by summons filed on 22 October 2021. The second defendant seeks the following amendments, each in the alternative:

(a) substituting ‘constructive trust arising from the doctrine of proprietary estoppel’ for ‘AGREEMENT WITH THE FOLLOWING PARTIES AND DATE’ as the grounds of claim;

(b) substituting ‘implied, resulting or constructive trust’ for ‘AGREEMENT WITH THE FOLLOWING PARTIES AND DATE’ as the grounds of claim; or

(c) substituting ‘estoppel’ for ‘AGREEMENT WITH THE FOLLOWING PARTIES AND DATE’ as the grounds of claim.

In support of his application, the second defendant relied upon: his written submissions filed on 15 November 2021; his written submissions in…

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 Goldberg v Campbell & Shaw

Details

AGLC: Goldberg v Campbell and Shaw [2022] VSC 24
Case: [2022] VSC 24
Decision Date: 3 February 2022

CaseChat Overview and Summary

The case before the court involved Goldberg as the applicant seeking leave to amend a caveat lodged over a property, with Campbell and Shaw as the respondents. The dispute centred around the validity and scope of the proposed amendment to the caveat, and the circumstances under which the initial caveat was lodged. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court encompassed whether the applicant could amend the caveat to include a claim for proprietary estoppel, and if there was a prima facie case for such a claim. Additionally, the court had to consider the broader implications of allowing amendments to caveats, particularly in light of the principle that caveats should be precise and clearly articulated. The court also needed to determine whether there was a requirement for co-owners to pay rent to each other and whether any detrimental reliance by the applicant could support the claim for estoppel.

The court, in its reasoning, emphasised the importance of specificity in the formulation of caveats, noting that allowing amendments could undermine the certainty and reliability of the Torrens system. While recognising the potential merits of the applicant’s claim for proprietary estoppel, the court ultimately decided against granting leave to amend the caveat. The reasoning included concerns about the timing and nature of the amendment, as well as the broader policy implications of permitting imprecise caveats to be subsequently refined. The court found that the applicant had not established a prima facie case of proprietary estoppel and that there was no requirement for co-owners to pay rent to each other in the circumstances presented.

The final orders of the court were that the application for leave to amend the caveat was dismissed, and no further amendments would be permitted. The existing caveat remained in place, and the court's decision underscored the need for clarity and precision in the initial lodging of caveats.

Orders