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Lawrence & Hanson Group Pty Ltd v Young

Lawrence & Hanson Group Pty Ltd v Young

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Case Copied 30 June 2017 46 min read

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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’).
[2]Lawrence & Hanson Group Pty Ltd v Young [2015] VSCA 284.

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…

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

Case: [2017] VSCA 172
Decision Date: 30 June 2017

CaseChat Overview and Summary

Lawrence & Hanson Group Pty Ltd sought to appeal against a decision of the Supreme Court of Victoria which held that a caveat, which it had lodged, was invalid and should be removed. The respondent, Young, was the joint proprietor of a property with the appellant's director, Hanson. Hanson executed a charge over his interest in the property to the appellant, which was registered. The appellant then lodged a caveat prohibiting the registration of any instrument affecting its estate or interest under the charge, including the registration of a transfer of the whole of Hanson's interest in the property to Young. The appellant argued that the caveat was valid, as it protected its interest under the charge, and that Young had standing to object to the caveat. Young argued that the caveat was invalid, as it improperly affected his interest in the property, and that the appellant had no standing to lodge the caveat due to a discrepancy in the name of the limited partner of a limited partnership of which the appellant was the general partner.

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.

Orders