CAVEATS – Interest necessary to support caveat under s.89(1) of Transfer of Land Act – Constructive trusts – Claims for matrimonial relief and child maintenance – Removal of caveat pursuant to s.90(3) of the Transfer of Land Act – Caveator’s onus to establish serious question to be tried as to entitlement to estate or interest claimed in caveat – Proper purpose of lodging caveat under s.89(1) – Lodgment of caveat for a collateral purpose as a bargaining chip in relation to an unrelated claim
MAREVA INJUNCTION – Whether applicant has good arguable case or reasonable prospect of success – Whether real or serious risk that court process will be abused – Balance of convenience.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr G. Moore
McNab, McNab & Starke
For the First Defendant
Mr A. Bristow
McBain & Associates
HER HONOUR:
The Proceeding
In the present proceeding, the plaintiffs seek, in essence, an order pursuant to s.90(3) of the Transfer of Land Act for the removal of a caveat lodged by the first defendant against the title to the plaintiffs’ residential property. The first defendant seeks a Mareva injunction.
By originating motion filed 14 October 2002 the plaintiffs, Leonard George Ridgeway Goldstraw and Janis Maree Goldshaw, sought orders that:
(1)The requirements of Rules 5.03(1) and 8.02 of the Supreme Court Rules 1986 be dispensed with and that they be authorised to commence the proceeding by originating motion in Form 5C.
(2)Pursuant to s.90(3) of the Transfer of Land Act 1958 (“the Act”) the second named defendant remove caveat No. AB418953E from the land in Certificate of Title Volume 9594 Folio 576 or if it has not been recorded, not record the caveat but reject it.
By order made 28 October 2002 Master Evans made the procedural orders in relation to Rules 5.03(1) and 8.02 and commencement by originating motion in Form 5C. He referred the proceeding for hearing on 12 November 2002.
By summons filed 11 November 2002, the first defendant sought orders, including orders that:
(1)The plaintiffs be restrained from dealing with the settlement proceeds of the sale of 8 Dunbar Court Greenvale in so far as the amount of $43,101, being the amount claimed in the application for a departure order fixed for mention in the Federal Magistrates' Court on 19 November 2002.
(2)The proceeds of settlement of the sale of 8 Dunbar Court Greenvale in so far as the amount of $43,101, being claimed in the Application for a departure order for mention in the Federal Magistrates' Court on…
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
AGLC
Goldstraw v Goldstraw [2002] VSC 491
Case
[2002] VSC 491
Decision Date
CaseChat Overview and Summary
In the case of Goldstraw v Goldstraw, the Victorian Court of Appeal examined the validity of a caveat and the circumstances under which it could be removed. The dispute involved a property where the appellant, Mrs Goldstraw, had lodged a caveat against the transfer of the property to the respondent, Mr Goldstraw. The primary issue was whether the appellant had a necessary interest to support the caveat under s.89(1) of the Transfer of Land Act 1958 (Vic), and whether the caveat was lodged for a proper purpose. The court also considered whether the appellant had established a serious question to be tried regarding her entitlement to the estate or interest claimed.
The court found that the appellant did not have an interest necessary to support the caveat, as it was not lodged for the proper purpose of protecting her interest in the property. Instead, it was used as a bargaining chip in relation to unrelated claims for matrimonial relief and child maintenance. The appellant's claims were speculative, and the court held that she had not discharged the onus of establishing a serious question to be tried as to her entitlement. Additionally, the court found that the appellant's claims did not provide a good arguable case or reasonable prospect of success, and there was no real or serious risk that the court process would be abused. The balance of convenience favoured the removal of the caveat.
Consequently, the court ordered the removal of the caveat under s.90(3) of the Transfer of Land Act. The appeal was dismissed, and the orders of the trial judge were affirmed. The appellant was also ordered to pay the respondent's costs of the appeal.