| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2019 04538
| OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE PROPERTY OF JOHN RASHLEIGH SHAW, A BANKRUPT | Plaintiff |
| v | |
| JOHN RASHLEIGH SHAW | First Defendant |
| - and - | |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 October 2019 |
DATE OF JUDGMENT: | 14 October 2019 |
CASE MAY BE CITED AS: | Official Trustee in Bankruptcy v Shaw & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 681 |
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REAL PROPERTY – Caveat – Ground of claim in caveat described as ‘estoppel’ – No evidentiary basis to suggest caveatable interest – Order that caveat be removed – Transfer of Land Act 1958 (Vic), s 90(3)
PRACTICE AND PROCEDURE – Application for recusal of judicial officer – Apprehended bias – Judicial officer previously heard and determined matter involving applicant – Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Moller | Harris Carlson Lawyers |
| For the First Defendant | No appearance | |
| For the Second Defendant | No appearance |
HIS HONOUR:
Summary of matters giving rise to the proceeding
John Rashleigh Shaw was, until 1 August 2019, registered as the sole proprietor of an estate in fee simple in a residential unit and an associated car parking space, being lots 5 and 19 on registered plan 016333, being the land more particularly described in certificates of title volume 9420 folio 449 and 9420 folio 463 (Property).
On 11 June 2014, the Federal Court of Australia made a sequestration order against Mr Shaw and the Official Trustee was appointed as trustee of his bankrupt estate. There is a history of legal challenges following that order and other matters, but it is not necessary for present purposes that I set out the full history of the litigation.
On 6 July 2019, the Official Trustee entered into a contract to sell the Property to purchasers for $363,000, with settlement due to take place on 4 October 2019.
It is unclear precisely when Mr Shaw became aware of that sale (which I note was at public auction), although it is probable that he was informed of an intention to sell the Property or knew that he was no longer the registered proprietor of it from an earlier point in time.
It is sufficient to note that in one of the extant proceedings, being Federal Court of Australia proceeding number VID778 of 2019, Mr Shaw applied for review of the decision made by the Official Trustee to partially admit a proof of debt advanced in the bankruptcy under the Bankruptcy Act 1966 (Cth). Included in that application was a claim for interlocutory injunctive relief, directed at a related decision made by the Official Trustee to sell the Property.
In reasons for the judgment,[1] Snaden J recorded that:
The interlocutory relief that Mr Shaw sought was the subject of discussion at a case management conference that took place on 9 August 2019.
At my invitation, the parties there…
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- Case
- [2019] VSC 681
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the ground of claim in the caveat, described as ‘estoppel’, had a sufficient evidentiary basis to warrant its continuation. The court considered whether the caveat met the statutory requirements under the Transfer of Land Act 1958 (Vic) and whether it was appropriate for the caveat to be maintained. Additionally, the court examined an application for the recusal of the judicial officer on the basis of apprehended bias, given that the judicial officer had previously heard and determined a matter involving the applicant.
The court found that there was no evidentiary basis to support the claim of estoppel as a caveatable interest, as required by the Transfer of Land Act 1958 (Vic), s 90(3). Consequently, the court ordered the caveat to be removed. Regarding the application for recusal, the court dismissed the application, holding that there was no reasonable apprehension of bias on the part of the judicial officer. The application for recusal was rejected due to the absence of any facts that would suggest a reasonable apprehension of bias in the judicial officer.
The final orders of the court were that the caveat entered by Shaw be removed and that the application for recusal be dismissed. The property could now proceed to be sold to satisfy the creditor's claim against the bankrupt estate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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