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Love v Kempton

Love v Kempton

Case [2010] VSC 254 11 June 2010

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2970 of 2010

THOMAS ROWAN CAMPBELL LOVE	Plaintiff
v
ADAM KEMPTON	Firstnamed Defendant
and
THE REGISTRAR OF TITLES	Secondnamed Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2010
DATE OF JUDGMENT:	11 June 2010
CASE MAY BE CITED AS:	Love v Kempton & anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 254

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REAL PROPERTY – Sale of land – Torrens system – Application to remove caveat.

REMOVAL OF CAVEAT TO FACILITATE SALE BY REGISTERED PROPRIETOR – No arguable claim by caveator – No evidence in support of caveator’s claimed interest – Caveat voluntarily removed by caveator.

COSTS – Order for costs to be paid by First Defendant on an indemnity basis – High handed conduct in lodging caveat – Misuse of caveat procedure – Interest relied on to support caveat did not exist.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr J D Wilson SC and Mr D W Laidlaw	Jellie McDonald
For the First Defendant	Mr M A Strang	Voigt Lawyers
For the Second Defendant	No appearance.	No appearance.

HIS HONOUR:

Introduction

Mr Thomas Love brought an urgent application on in the Practice Court on 8 June 2010 to effect the removal of a caveat over his farming property at Ellerslie, near Warrnambool. The caveat was lodged by the first defendant, Mr Adam Kempton. The second defendant, the Registrar of Titles, has taken no part in the action.

The asserted basis for the lodging of the caveat related to the conduct of the auction of the property at the Ellerslie Hall on 21 May 2010. Mr Kempton was the highest bidder but refused to sign the contract of sale. Mr Love then sold the property to the underbidders and settlement is due on 21 June 2010.

On the day of the hearing of Mr Love’s application under s 90(3) of the Transfer of Land Act (‘TLA’), Mr Kempton agreed to withdraw his caveat and orders giving effect to that concession are to be made. The remaining issue, which is the subject of these reasons, is the question of costs. In essence, the question is whether indemnity costs should be awarded against Mr Kempton for lodging a caveat which had no foundation in fact or law.

I am of the firm view that Mr Kempton‘s conduct in lodging the caveat was both opportunistic and unprincipled and must result in an order for indemnity costs.

The proceedings in this Court

Mr Love’s application by originating motion and summons was issued on Monday 31 May and was ultimately supported by four affidavits; one sworn by himself, two by his real estate agents Mr John Nunn and Mr Brian Hancock, both of Brian O’Halloran & Co, and an affidavit of his solicitor, Mr Marcus Malseed.

Mr Kempton is a solicitor who, I was told, was admitted to practise in 1983. He relied upon an affidavit sworn by his solicitor Ms. Voigt. Notwithstanding that…

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 Love v Kempton

Details

AGLC: Love v Kempton [2010] VSC 254
Case: [2010] VSC 254
Decision Date: 11 June 2010

CaseChat Overview and Summary

The case of Love v Kempton involved the defendants, who had lodged a caveat over land owned by the plaintiff. The plaintiff sought to have the caveat removed to allow the sale of the land. The dispute was heard in the Supreme Court of Victoria. The primary issue before the court was whether the caveators had an arguable claim to the property that could prevent the sale. The court had to assess if the caveators could demonstrate a legitimate interest in the property and if their conduct in lodging the caveat was appropriate.

The court found that the caveators had not provided any evidence to support their claimed interest in the property. The caveators had voluntarily removed the caveat before the hearing, indicating that they no longer wished to pursue their claim. The court concluded that the caveators' interest was not arguable and that the caveat was not supported by any evidence. Additionally, the court criticised the caveators for their high-handed conduct and misuse of the caveat procedure, given that the interest they relied upon did not exist.

As a result, the court ordered the caveators to pay costs to the plaintiff on an indemnity basis. This decision underscored the importance of using the caveat procedure appropriately and highlighted the consequences for those who misuse the process. The court's ruling reinforced the principle that the registration of property under the Torrens system should not be unnecessarily obstructed by unfounded claims.

Orders