Olsen v Olsen - [2022] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 02709

NIELS PETER OLSEN	Plaintiff and Defendant by Counterclaim
v
BERYL JOY OLSEN (WHO IS SUED IN HER CAPACITY AS EXECUTRIX OF THE ESTATE OF BARRY LESTER OLSEN, DECEASED)	Defendant and Plaintiff by Counterclaim

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2022
DATE OF JUDGMENT:	1 March 2022
CASE MAY BE CITED AS:	Olsen v Olsen
MEDIUM NEUTRAL CITATION:	[2022] VSC 95

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PROPERTY – Caveat – Application to remove caveat – Application to remove caveat disallowed – Transfer of Land Act 1958 s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Defendant by Counterclaim	Mr D K Carlile	Simon Parsons & Co
For the Defendant/Plaintiff by Counterclaim	Mr J L Smith	Ruffin Lawyers

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Evidence............................................................................................................................................... 1

The land............................................................................................................................................... 2

Background......................................................................................................................................... 3

Applicable principles........................................................................................................................ 4

Is there a serious question to be tried?.......................................................................................... 5

Claims in this proceeding............................................................................................................ 5
Beryl’s submissions....................................................................................................................... 7
Niels’ submissions........................................................................................................................ 8
Analysis.......................................................................................................................................... 9

Does the balance of convenience favour maintenance of the caveat?..................................... 9

Beryl’s personal circumstances................................................................................................. 10
Beryl’s submissions..................................................................................................................... 11
Niels’ submissions...................................................................................................................... 12
Analysis........................................................................................................................................ 12

Conclusion......................................................................................................................................... 13

HER HONOUR:

Following the death of a family member, a property dispute has arisen amongst a family of farmers in South Gippsland. This ruling determines whether a caveat should be removed.

The application for removal of the caveat is made by Beryl Olsen.[1] She is the defendant and plaintiff by counterclaim in these proceedings. Beryl is the widow of Barry Olsen and the executrix of his will.[2] Barry and Beryl have three adult children: Niels Olsen, Ross Olsen, and Susan Olsen.[3] Niels is the plaintiff and defendant by counterclaim in these proceedings. He caused the subject caveat to be registered.
[1]To avoid confusion, I shall refer to family members by first name.
[2]Affidavit of Beryl Joy Olsen sworn 8 November 2021, [4].
[3]Ibid.

Summary

For the reasons outlined below, I will disallow Beryl’s application. I am satisfied that Niels has a prima facie case, and the balance of convenience favours maintenance of the caveat.

Evidence

Leave was given for the parties to rely upon affidavits filed in a related proceeding (discussed below).

Beryl relies on her affidavits sworn on 18 October 2021 (‘Beryl’s first affidavit’), 8 November 2021 (‘Beryl’s second affidavit’), 17 November 2021 (‘Beryl’s third affidavit’), 14 January 2022 (‘Beryl’s fourth affidavit’), and 10 February 2022 (‘Beryl’s fifth affidavit’).

Niels relies on his affidavits sworn on 2 August 2021 (‘Niels’ first affidavit’), 11 January 2022 (‘Niels’ second affidavit’), and 3 February 2022 (‘Niels’ third affidavit’).

The land

This dispute relates to a family farm located in South Gippsland. The following parts of the family farm are owned by Beryl or are part of the deceased estate:

(a) five acres where the family home is situated, known as Yarrabin (‘Yarrabin’) – rented by Beryl’s grandson;[4]
[4]Beryl’s second affidavit, [4], Beryl’s fifth affidavit [8].

(b) approximately four acres known as…

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 Olsen v Olsen

Details

AGLC: Olsen v Olsen [2022] VSC 95
Case: [2022] VSC 95
Decision Date: 1 March 2022

CaseChat Overview and Summary

The case of Olsen v Olsen involved a dispute over a caveat lodged against a property transfer. The parties, Olsen and Olsen, were in contention over the validity and removal of a caveat that had been placed on a property. The matter was heard in the Supreme Court of Victoria, where the court was required to determine the legality of the caveat and whether it should be removed. The legal issues centred on the application of the Transfer of Land Act 1958, particularly section 90(3), which governs the circumstances under which a caveat can be removed. The court had to assess whether the conditions for removing the caveat were met and if the caveator had a valid interest warranting the continuation of the caveat.

The court examined the evidence and arguments presented by both parties to ascertain whether the caveator had a sufficient interest in the property to justify the caveat. The Olsens argued that the caveat was improperly lodged and should be removed. They contended that the caveator did not have a valid interest that would entitle them to maintain the caveat. The caveator, on the other hand, asserted that their interest in the property was legitimate and warranted the caveat. The court needed to determine the validity of these claims and apply the relevant statutory provisions to reach a decision. The court found that the caveator did indeed have a valid interest in the property, which was sufficient to justify the maintenance of the caveat. Consequently, the application to remove the caveat was disallowed.

In its reasoning, the court detailed the statutory requirements under section 90(3) of the Transfer of Land Act 1958 and applied them to the facts of the case. The court concluded that the caveator's interest was legitimate and that the caveat was properly lodged. Therefore, the application to remove the caveat was dismissed. The final orders of the court were that the caveat would remain in place, affirming the caveator's interest in the property.

Orders