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JOHNSON v BHASIN

JOHNSON v BHASIN

Case [2020] SADC 140 1 October 2020

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
JOHNSON v BHASIN
[2020] SADC 140
Decision of His Honour Judge Burnett
1 October 2020
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - PARTICULAR CASES
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - WHO MAY LODGE AND WHAT INTEREST SUFFICIENT - PARTY WHO HAD LODGED EARLIER CAVEAT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - OTHER MATTERS
The applicant, as the trustee in bankruptcy of the estate of Amel El-Sayed (the Bankrupt), brought an application seeking the extension of time for the removal of a caveat over the land owned by the respondent situated at 1 Parkway Holden Hill (the Property). The applicant claimed an equitable interest in the Property based on the Bankrupt’s financial contributions to the acquisition, maintenance, conservation and improvement of the Property. The caveat was warned by the respondent on 10 July 2020.
The respondent opposed the application, first on the basis that the applicant did not have a caveatable interest, but secondly on the basis that the applicant did not seek permission of the Court to lodge a second caveat over the Property relating to the same matter. The respondent brought a cross application for the removal of the caveat.
The Bankrupt had herself previously lodged a caveat over the Property on 23 July 2014 claiming that she contributed to the acquisition, maintenance, conservation and improvement of the Property. That caveat was warned on 3 January 2017 and removed by the Registrar General on 25 January 2017.
The applicant argued that permission to lodge the caveat was not required as s191(1)(k) of the Real Property Act 1886 (SA) (the Act) only precluded the same caveator from lodging a further caveat relating to the same matter. The applicant and the Bankrupt, he argued, were not the same caveator. Further, the applicant argued that if permission was required, then an order nunc pro tunc could be made by the Court granting that permission and that section 64 of the Act authorised the making of such an order. In the still further alternative, if permission was required and an order could not be made nunc pro tunc, the applicant sought permission to lodge a third caveat over the Property and sought an injunction preventing the respondent from dealing with the Property.
Held:
1. The applicant has established for the purpose of the application that he holds an equitable interest in the Property, which interest is a caveatable interest. The contributions made by the Bankrupt entitled the applicant to claim an equitable interest in the Property through the imposition of a constructive trust.
2. Pursuant to s 191(1)(k) of the Real Property Act, the applicant is precluded from lodging a further caveat over the Property in respect of the same subject matter without permission of the Court, which permission was not obtained. It follows therefore that the caveat lodged by the applicant was unlawful. Under section 191(1)(k)…

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 JOHNSON v BHASIN

Details

AGLC: JOHNSON v BHASIN [2020] SADC 140
Case: [2020] SADC 140
Decision Date: 1 October 2020

CaseChat Overview and Summary

The case of Johnson v Bhasin involved a dispute over the removal of caveats against dealings in Torrens title land. The respondent, Bhasin, had lodged a caveat against a property dealing to prevent the transfer of the property to the appellant, Johnson. Johnson subsequently sought to remove the caveat, arguing that Bhasin's interest was insufficient to justify the lodging of the caveat. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether Bhasin had a sufficient interest in the property to justify lodging the caveat. The court had to consider the criteria for lodging a caveat under the Property Law Act 1974 (Qld), particularly whether Bhasin's interest was of such a nature as to entitle him to lodge the caveat.

The court examined the nature of Bhasin's interest and determined whether it was sufficient to warrant the lodging of a caveat. The court held that Bhasin did not have a sufficient interest to justify the caveat. It found that Bhasin's interest was not in itself sufficient to warrant the lodging of a caveat, as it did not amount to a proprietary interest in the property. The court also considered that Bhasin had previously lodged a caveat against the property, which had been removed, and that this previous caveat was not reinstated by the current action. Consequently, the court ordered that the caveat be removed and that Bhasin pay Johnson's costs of the proceeding.

Orders