Kearsley v Robson - [2011] VSC 50

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4135 of 2010

PHILLIP GEORGE KEARSLEY	First Plaintiff
and
DEIDRE GAY KEARSLEY	Second Plaintiff
v
CRAIG WILLIAM ROBSON	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Daly, AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2010
DATE OF JUDGMENT:	28 February 2011
CASE MAY BE CITED AS:	Kearsley v Robson
MEDIUM NEUTRAL CITATION:	[2011] VSC 50

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REAL PROPERTY ― Caveat ― application to remove caveat ― whether prima facie case of sufficient probability to justify maintenance of caveat ― balance of convenience ― obligation of caveator to bring proceeding to justify interest claimed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D.P. Lloyd	Aughtersons
For the Defendant	T.R. Messer	Kliger Partners

HER HONOUR:

Background

The Kearsleys are the owners of land at 123-127 Kalinda Road, Ringwood (“property”). On 6 November 2009, the Kearsleys entered into a contract of sale with Mr Craig Robson for the sale of the property (“contract of sale”). The terms of the contract of sale were somewhat unusual in two respects. First, the purchase price of $1,010,000.00 was payable by a deposit of $110,000, $60,000 of which was payable on acceptance, with the balance of the deposit payable by 1 November 2011, with the final payment of $900,000 due on 5 January 2012. Further, the special conditions of the contract of sale provided as follows:

“(a)The purchasers shall, at their expense, on or before 15 February 2010, install in a proper and professional manner a kitchen including tiles, cupboards, sink and taps, dishwasher, cooking range (including oven cooktop and fume extractor).
(b)The purchasers shall, at their expense, on or before 15 February 2010, install in a proper and professional manner two new bathrooms with showers, vanities, taps and tiles.
(c)The purchasers shall, at their expense, on or before 15 February 2010, install in a proper and professional manner a laundry including cupboards, tape, laundry tub and tiles.
(d)The purchasers shall, at their expense, on or before 15 February 2010, install in a proper and professional manner tiles in the passage between the kitchen and the laundry.

In the event that the works are not completed by 15 February 2010, the purchasers shall pay to the vendor the sum of $240 per week until such time as the works have been completed.
The vendor shall:
(a)grant the purchaser access to the grounds of the property for the purpose of surveys and other works that he requires to assist with the application for subdivision to the Maroondah City Council and Registrar of titles. The access to the house shall be limited to twice and shall be on 7 days’ notice;
(b)paint inside all walls and doors;
(c)either sand and polish all floors or carpet and tile where appropriate;
(d)provide window coverings; and
(e)repair doors and glass where necessary.”

On 28 May 2010, the Kearsleys, through their solicitor, sent a notice headed “Default Notice” (“Notice”).

On 25 June 2010, Mr Robson…

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 Kearsley v Robson

Details

AGLC: Kearsley v Robson [2011] VSC 50
Case: [2011] VSC 50
Decision Date: 28 February 2011

CaseChat Overview and Summary

Kearsley v Robson was a case before the Supreme Court of Victoria which involved a dispute over the registration of property. The dispute centred around a caveat lodged by Robson against the registration of a transfer of property from the plaintiff, Kearsley, to a third party. The legal issues before the court were whether Robson's caveat had a prima facie case of sufficient probability to justify its maintenance and whether the balance of convenience lay in favour of removing the caveat. Additionally, the court had to consider whether the caveator had an obligation to bring a proceeding to justify the interest claimed.
The court found that Robson's caveat did not have a prima facie case of sufficient probability to justify its maintenance. The court noted that Robson had not provided any evidence to support the claim that Kearsley was not the true owner of the property. Furthermore, the court found that the balance of convenience lay in favour of removing the caveat, as Kearsley had already taken steps to transfer the property to a third party and removing the caveat would allow the transfer to proceed. The court also found that the caveator had an obligation to bring a proceeding to justify the interest claimed, and that Robson had not done so. As a result, the court ordered that the caveat be removed.

The court's decision in Kearsley v Robson highlights the importance of providing evidence to support a claim when lodging a caveat and the obligation of the caveator to bring a proceeding to justify the interest claimed. The court also emphasised the need to consider the balance of convenience when deciding whether to remove a caveat. This case serves as a useful reminder to those lodging caveats to ensure that they have a strong case and to those seeking to remove a caveat to be prepared to argue that the balance of convenience lies in favour of removal.

Orders