SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0059
| LAWRENCE & HANSON GROUP PTY LTD | Appellant |
| v | |
| JOHN STANLEY YOUNG & MARY ANNE YOUNG | Respondents |
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| JUDGES: | REDLICH and KYROU JJA and KEOGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 June 2017 |
| DATE OF JUDGMENT: | 30 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 172 |
| JUDGMENT APPEALED FROM: | Young vLawrence & Hanson Group Pty Ltd (Unreported, Supreme Court of Victoria, Rush J, 9 June 2015) |
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LAND – Caveat – One of two joint proprietors of land executed a charge in respect of his interest in the land – Chargee lodged a caveat prohibiting ‘absolutely’ the registration of any instrument affecting its estate or interest under the charge – Whether the judge erred in deciding that the caveat impermissibly affected the interest of the joint proprietor who did not execute the charge and that the balance of convenience favoured the removal of the caveat – Appeal allowed – Sections 89(1), 90(3) of the Transfer of Land Act 1958.
PRACTICE AND PROCEDURE – Standing to sue – Whether a discrepancy in the name of the limited partner of a limited partnership of which the appellant was the general partner affected the appellant’s entitlement to lodge a caveat – Effect of conclusive certificate under s 58 of the Partnership Act 1958.
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| APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr D G Robertson QC with Mr M T Lapirow | Davies Moloney |
| No appearance for the first respondent | ||
| For the second respondent | Mr A Herskope | Kalus Kenny Intelex |
REDLICH JA
KYROU JA
KEOGH AJA:
Introduction and summary
This is an appeal against an order made by a judge of the Trial Division on 9 June 2015 requiring the removal of a caveat lodged by the appellant on 14 October 2014 (‘Caveat’) against land in Eltham that was then jointly owned by the respondents, John and Mary Young (‘Land’).[1] The appeal is brought pursuant to leave granted by this Court on 21 October 2015.[2]
[1]Young vLawrence & Hanson Group Pty Ltd (Unreported, Supreme Court of Victoria, Rush J, 9 June 2015) (‘Ruling’).
In the Caveat, the appellant claimed an interest as chargee under an agreement with Mr Young dated 8 April 2014. The Caveat prohibited the registration of any instrument affecting that interest ‘Absolutely’.
The Caveat was lodged pursuant to s 89(1) of the Transfer of Land Act 1958 (‘TLA’) which provides that ‘[a]ny person claiming any estate or interest in land under any unregistered instrument … may lodge … a caveat in an appropriate approved form forbidding the registration of any … instrument affecting such estate or interest either absolutely or conditionally’.
The order for the removal of the Caveat was made pursuant to s 90(3) of the TLA on the application of Mr and Mrs Young. Section 90(3) provides that ‘[a]ny person who is adversely affected by any … caveat may bring proceedings…
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- Case
- [2017] VSCA 172
- Decision Date
CaseChat Overview and Summary
The Court was required to decide whether the judge erred in deciding that the caveat impermissibly affected the interest of the joint proprietor who did not execute the charge and that the balance of convenience favoured the removal of the caveat. The Court was also required to determine whether a discrepancy in the name of the limited partner of a limited partnership of which the appellant was the general partner affected the appellant’s entitlement to lodge a caveat, and the effect of a conclusive certificate under s 58 of the Partnership Act 1958.
The Court found that the caveat was invalid, as it improperly affected the interest of the joint proprietor who did not execute the charge. The Court held that the caveat should be removed, as the balance of convenience favoured Young. The Court found that the discrepancy in the name of the limited partner of a limited partnership of which the appellant was the general partner did not affect the appellant’s entitlement to lodge a caveat, as the conclusive certificate under s 58 of the Partnership Act 1958 was sufficient evidence of the appellant’s authority to lodge the caveat. The Court allowed the appeal and remitted the matter to the Supreme Court for further consideration.
The Court made no orders as to costs.
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