Perpetual Ltd v Doyle
[2025] VSC 70
•4 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2024 05576
BETWEEN:
| PERPETUAL LIMITED (ACN 000 431 827) | Plaintiff |
| v | |
| MAUREEN THERESE DOYLE & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 January 2025 |
DATE OF JUDGMENT: | 4 March 2025 |
CASE MAY BE CITED AS: | Perpetual Ltd v Doyle |
MEDIUM NEUTRAL CITATION: | [2025] VSC 70 |
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REMOVAL OF CAVEAT — Removal of caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) — Balance of convenience favours removal of caveat — Application allowed.
PRACTICE AND PROCEDURE — Defendant’s recusal application due to apprehended bias — Bias due to findings on plaintiff’s credibility — Bias not made out — Application refused — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, referred to — QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] 409 ALR 65, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Dawes of counsel for the plaintiff | HWL Ebsworth Lawyers |
| For the First Defendant | In person by audio link |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Materials relied upon........................................................................................................................ 2
Background......................................................................................................................................... 2
The contested documents................................................................................................................. 4
Ms Doyle’s bias application............................................................................................................. 6
Ms Doyle’sevidence and submissions........................................................................................ 15
Applicable principles...................................................................................................................... 19
Consideration.................................................................................................................................... 20
Conclusion......................................................................................................................................... 26
HIS HONOUR:
Introduction
Perpetual Limited (Perpetual) seeks an order pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (TLA) that the Registrar of Titles remove Caveat AK952738Y (Caveat) from folio of the Register Volume 10196 Folio 978, being the property at 2 Powlett Street, Sunbury (Property).
Ms Doyle, the first defendant, is the caveator. Ms Doyle opposed the plaintiff’s application.
The second defendant is Ms Doyle’s Official Trustee in Bankruptcy. The second defendant claims that any interest Ms Doyle had in the property has vested in the second defendant. The second defendant does not oppose the plaintiff’s application, subject to orders being made that any surplus sale proceeds be held on trust by Perpetual’s solicitor for a period of 28 days and, if agreement cannot be reached about how those funds are to be distributed within that time, paid into Court.
The third defendant, the Registrar of Titles, informed the Court in writing on 22 October 2024 that she did not intend to appear in the proceeding.
At the end of the hearing of Perpetual’s application, Ms Doyle made an application that I recuse myself from hearing the application on the grounds of subconscious bias. I have taken Ms Doyle’s recusal application to rely on apprehended bias. For the reasons outlined below, I have decided not to recuse myself.
As foreshadowed at the hearing, given I have refused Ms Doyle’s recusal application, I have proceeded to determine Perpetual’s application. I have decided that Ms Doyle’s Caveat should be removed. I have provided my reasons below. In summary, while I am satisfied that Ms Doyle has established a serious question to be tried that she has the estate or interest she claims in the Property, the balance of convenience clearly favours the removal of the Caveat.
Materials relied upon
Perpetual relied on the affidavits of:
(a) Jessica Rae Cullin affirmed 18 October 2024;
(b) Declan James Dempster affirmed 2 December 2024;
(c) Declan James Dempster also affirmed 2 December 2024;
(d) Andrew Marrano sworn 28 November 2024; and
(e) Jessica Rae Cullin affirmed 20 January 2025 (Second Cullin Affidavit).
Ms Doyle objected to Perpetual being allowed to rely on the Second Cullin Affidavit or its written submissions in reply (contested documents), both of which were filed on 21 January 2025. For the reasons given at the hearing and summarised below, I allowed Perpetual to rely upon these two documents.
Ms Doyle relied upon her affidavit affirmed 21 December 2024 and written submissions filed 23 December 2024.
Background
Mr Robert Henry Bourne was the registered proprietor of the Property. In December 2007, Mr Bourne granted a mortgage over the Property in favour of Perpetual to secure a loan of $347,700.00. The mortgage was registered on the title on 31 December 2007. Mr Bourne is a bankrupt. The registered proprietor of the Property is Mr James Patrick Downey, Mr Bourne’s trustee in bankruptcy. On 2 August 2023, Perpetual issued a default notice to Mr Bourne, who did not rectify the default. On 19 January 2024 Perpetual took possession of the Property and now seeks to sell the Property as mortgagee in possession.
Ms Doyle contended that at the time the Property was purchased, she entered into an agreement with Mr Bourne that he would borrow the funds for the purchase and be the registered proprietor on trust for Ms Doyle. Ms Doyle also deposed that while Mr Bourne’s interest in the Property was held on trust for her, Ms Doyle’s interest in the Property is held on trust for her daughters.
I pause here to note that Ms Doyle contested that Perpetual have possession of the Property on the basis that Perpetual has not obtained an order for possession from the Victorian Civil and Administrative Tribunal (VCAT); that there are tenants occupying the Property; and that Ms Doyle is in possession of the Property. I have addressed these matters further below.
On 30 January 2024 Perpetual wrote to Ms Doyle requesting she withdraw the Caveat.
On 30 April 2024 Ms Doyle commenced a proceeding in this Court seeking an injunction to prevent Perpetual selling the Property by auction on 1 May 2024. Ms Doyle’s proceeding was dismissed by Watson J on 1 May 2024.
On 22 May 2024 Perpetual wrote to Ms Doyle’s Official Trustee in Bankruptcy requesting the Official Trustee withdraw the Caveat and confirming that Perpetual would deal with any surplus sale proceeds, after payment of Perpetual’s secured debt, pursuant to s 77 of the TLA.
On 29 July 2024 Ms Doyle’s Official Trustee wrote to Perpetual to advise that they were conducting further investigations into Ms Doyle’s assertion that she lodged the Caveat in her capacity as a trustee and that she has no beneficial interest in the Property.
On 21 November 2024 Ms Doyle’s Official Trustee’s solicitor wrote to Perpetual stating that the Official Trustee claimed an interest in the Property, being the interest of Ms Doyle, which has vested in the Official Trustee. The solicitor for the Official Trustee further stated that the Official Trustee was not aware of any reason why Perpetual should not be permitted to lawfully exercise its power of sale and receive the money owing under the mortgage.
Perpetual does not accept that Ms Doyle has a caveatable interest in the Property. The thrust of its argument was, however, that the Court need not decide whether Ms Doyle had established a serious question to be tried that she held the interest asserted in her caveat because the balance of convenience clearly favoured the removal of the caveat.
The contested documents
Ms Doyle objected to Perpetual’s reliance on two documents that Perpetual filed on 21 January 2025 on the basis that those documents were not filed within the time allowed by the Court’s orders made on 4 December 2024. The documents were the Second Cullin Affidavit and Perpetual’s reply submissions.
On 4 December 2024 the Court made orders requiring Ms Doyle to file by 19 December 2024 any affidavits and submissions she would seek to rely upon at the hearing. The Court also ordered that Perpetual file its reply submissions by 16 January 2025.
Ms Doyle filed her affidavit and submissions on 23 December 2024. Perpetual raised no objection to Ms Doyle’s late filing of those documents.
On 20 January 2025 my Associate wrote to the parties. The Associate noted that Perpetual’s materials had not been filed by the due date of 16 January 2025 and stated, among other things:
In case either party wishes to amend the timetable, please note that any amendment to the timetable would need consent from the opposing party so that a new timetable can be agreed to. If no agreement can be reached, the party seeking the adjustment should request that the matter be listed for mention. Please note that in all circumstances, any amendment to the timetable must have the final documents filed no later than seven days before the hearing.
On 20 January 2025 Perpetual sought Ms Doyle’s consent to Perpetual’s late filing of the Second Cullin Affidavit and reply submissions.
On 21 January 2025 Ms Doyle refused to consent. Perpetual wrote by email to my Chambers seeking leave to file the Second Cullin Affidavit and reply submissions, which were attached. On that same day Ms Doyle wrote to my Chambers objecting to Perpetual being granted permission to file the material.
I directed my Associate to inform the parties that Perpetual should file the material without prejudice to Ms Doyle raising at the hearing her objection to Perpetual being allowed to rely on those documents.
At the commencement of the hearing I heard Ms Doyle’s objection. Ms Doyle submitted that:
(a) she was a self-represented litigant, a pensioner and a carer;
(b) she was under a deadline to prepare an electronic court book in another Supreme Court proceeding by 28 January 2025;
(c) accordingly she had no time to prepare a response to Perpetual’s new material;
(d) it would be procedurally unfair to allow a large law firm to file new material less than seven days before the hearing; and
(e) my Chambers had informed the parties on 20 January 2025 that any amendment to the timetable for the filing of material must have the final documents filed no later than seven days before the hearing.
Perpetual submitted that its late filing of the material was due in part to Ms Doyle’s late filing of her material, because at the time it was filed on 23 December 2024, important members of Perpetual’s legal team were on leave. Ms Doyle refuted her late filing contributed to Perpetual’s delay because she had provided unaffirmed and unsealed copies of her documents to Perpetual on 20 December 2024 which were identical in content to the versions filed on 23 December 2023.
I allowed Perpetual to rely on the Second Cullin Affidavit and reply submissions for the following reasons:
(a) Ms Doyle is a self-represented litigant, pensioner and carer and entitled to the assistance of the Court. She has previously worked as a long term bank employee, a financial advisor and a mortgage broker. I have observed that Ms Doyle is well capable of making complex factual and legal submissions and has some experience of Court processes;
(b) the Second Cullin Affidavit is a forty-six page document. The substantive content of the body of the Affidavit comprises three paragraphs of a total of 9 lines. The Affidavit exhibited two documents. The first was a table setting out the payment history of the Perpetual loan comprising eight pages. Several entries in the table record payments made by an ‘M Doyle’ and so were possibly to the advantage of Ms Doyle. The second exhibit was a Valuation Report in relation to the Property prepared by Opteon Solutions, valuing the Property at $800,000.00 and comprising 43 pages including attachments. Perpetual sought to rely on the valuation report to support its application for orders that the surplus of net sale funds be paid into Court;
(c) the reply submissions in substance comprised approximately eight pages of 1.5 spaced typed submissions;
(d) the documents were filed just under forty-eight hours before the hearing which, given their limited scope, provided sufficient time for Ms Doyle to read and understand them, notwithstanding her other Court commitments. Indeed, Ms Doyle confirmed she had read the documents before the hearing;
(e) section 8 of the Civil Procedure Act 2010 (Vic) (CPA) requires the Court, in exercising its powers, to give effect to the overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute; and
(f) weighing all of the above matters in my view the overarching purpose was best given effect by allowing Perpetual to rely on the material.
Ms Doyle’s bias application
At the conclusion of the hearing Ms Doyle made an application that I recuse myself on the basis of apprehended bias. Ms Doyle also stated that I may also have been actually biased but did not develop that submission.
The principles relevant to a recusal application based on apprehended bias are well settled. I must recuse myself if I am satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide.[1] In QYFM,[2] Keifel CJ and Gageler J noted that the “double might” in the test serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”. Their Honours addressed how these criterion are to be applied:
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.[3]
[citations omitted].
[1]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Ebner); Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] 409 ALR 65.
[2]QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] 409 ALR 65 (QYFM), [37].
[3]Ibid, [38].
The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.[4]
[4]Isbester v Knox City Council (2015) 255 CLR 135, 146 [20] (Kiefel, Bell, Keane and Nettle JJ).
In QYFM, Gordon J identified four aspects of the test:
…First, it is an objective test: it does not require a conclusion about the judge’s actual state of mind or an assertion of actual bias. The principle gives effect to the requirement that justice should both be done and be seen to be done.
Second, it is a test of possibility not probability — whether the fair-minded lay observer might reasonably think that the judge might be biased. It has even been said that the fair-minded lay observer is generally taken to be mistaken because decision-makers will rarely be biased in the ways attributed to them, as the observer might have appreciated if fully apprised of the operation of a particular decision-maker. That said, a finding of apprehended bias is “not to be reached lightly”. In determining whether an apprehension of bias arises, relevant considerations include “the legal, statutory and factual contexts in which the decision is made” and “the nature of the decision…, what is involved in making the decision and the identity of the decision-maker”.
Third, the test is not prescriptive about the ways in which a reasonable apprehension might arise. “The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty”. Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: “the hypothetical observer would recognise that judges are human, not a ‘passionless thinking machine’ or robot just assessing information”.
Fourth, the adjective “lay” in relation to the fair-minded observer is critical — “[i]t would defy logic and render nugatory the principle to imbue the hypothetical observer” with the knowledge and professional self-appreciation of a lawyer, let alone that of an experienced judge. The fair-minded lay observer is a member of the public because the principle is concerned with maintenance of public confidence in the justice system. “[I]t is the court’s view of the public’s view, not the court’s own view, which is determinative”.[5]
[citations omitted].
[5]QYFM (n 2), 83-84 [68]-[71].
As Jagot J stated in QYFM:
In applying the test for apprehended bias, with its “double might” components, a judge must be faithful to their judicial duty to discharge the functions of their judicial office. This duty to sit underlies such statements as that: (a) it “would be an abdication of judicial function” for a judge to adopt the approach that the judge will not sit if a party requests the judge not to do so on the ground of apprehended bias; (b) “[a]lthough it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit”; and (c) a conclusion of apprehended bias “must be firmly established and should not be reached lightly”.[6]
[citations omitted].
[6]Ibid, 136 [278].
In Webb v The Queen,[7] Deane J identified four types of cases where a judge might disqualify himself on the basis of an apprehension of bias:
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (e.g., a case where a judge is disqualified by reason of having heard some earlier case) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
[citations omitted].
[7](1994) 181 CLR 41, 74.
In Livesey v New South Wales Bar Association,[8] the High Court (Mason CJ, Murphy, Brennan, Deane and Dawson JJ) said:
…It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
[8](1983) 151 CLR 288, 300.
I understood the basis of Ms Doyle’s application to be that:
(a) in determining a different proceeding[9] (the Ardcloney Drive matter) in which Ms Doyle was a party I had impermissibly made adverse findings about Ms Doyle’s credibility;
[9]Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664.
(b) I ignored crucial factual matters in reaching a decision in the Ardcloney matter; that Mr Bourne had attempted to blackmail Ms Doyle; and that, in the current proceeding, Mr Downey and Mr Bourne had colluded with Perpetual to allow Perpetual to bypass obtaining an order for possession;
(c) I dismissed everything Ms Doyle asked for in this proceeding and the Ardcloney Drive matter on the basis that I did not think Ms Doyle credible;
(d) I allowed Perpetual to rely upon materials which had been filed late, denying Ms Doyle a proper opportunity to prepare her response to that material;
(e) I refused to allow Ms Doyle to make further submissions in response to Perpetual’s oral reply submissions;
(f) I had not read the material filed in this matter or the Ardcloney Drive matter; and
(g) Mr Bourne has trespassed and made threats to the occupants of the Property.
In order to understand Ms Doyle’s submissions regarding the Ardcloney Drive matter, it is necessary to briefly summarise that proceeding.
On 27 October 2023 I heard an application by Mr Downey, in his capacity as Mr Bourne’s trustee in bankruptcy, against Ms Doyle. Mr Downey’s application related to a property located in Ardcloney Drive, Sunbury, Victoria. He had applied for an order under Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to recover possession of the property from Ms Doyle and for an order under s 90(3) of the TLA that the Registrar of Titles remove a caveat on the title to the land lodged by Ms Doyle. In a decision published on 17 November 2023, I decided not to grant Mr Downey’s application for possession, but rather to refer that matter for trial, and to grant his application that the caveat be removed.
In the Ardcloney Drive matter Ms Doyle’s caveat claimed that the registered proprietor ‘holds his interest as trustee for the Caveator pursuant to a constructive trust and/or a declaration of trust from the registered proprietor made on 16 October 2007’. That was the date that Ms Doyle transferred her interest in that property to Mr Bourne. Mr Downey asserted that sometime between 16 October 2007 and 10 July 2014, Ms Doyle came to occupy the property under an informal licence granted by Mr Bourne, which had been revoked by Mr Downey in his capacity as Mr Bourne’s trustee in bankruptcy.
Ms Doyle’s case was that, in 2006, she purchased the Ardcloney Drive property on trust for her children. In 2007 she asked Mr Bourne to act as bare trustee of both the Ardcloney Drive property and the Powlett St Property (the subject of the current proceeding) in order to secure finance. As a result of this arrangement Mr Bourne became the registered proprietor of both properties. Ms Doyle said that in 2018 Mr Bourne had applied to remove her caveat over the Ardcloney Drive property, resulting in Ms Doyle’s children engaging a lawyer to meet with Mr Bourne and Mr Downey. Ms Doyle said that at this time Mr Bourne attempted to blackmail her. He demanded Ms Doyle offer him 50% of the Powlett St property and pay $50,000 to Mr Downey, failing which Mr Bourne would give evidence against Ms Doyle’s claimed ownership of Ardcloney Drive. In August 2018 Ms Doyle’s then solicitor wrote to the plaintiff’s solicitor, asserting that Ms Doyle had an interest in the land and enclosing a draft statement of claim in which Ms Doyle acknowledged that the Powlett St Property and the Ardcloney Drive property had vested in Mr Downey in his capacity as Mr Bourne’s trustee in bankruptcy.
In relation to the claim for possession, Ms Doyle claimed that she was a tenant under a residential tenancy agreement. Ms Doyle submitted that there were live issues in dispute including whether she occupied Ardcloney Drive as a licensee or a tenant and whether Mr Bourne’s interest in Ardcloney Drive was held as a trustee or co-trustee for the benefit of Ms Doyle’s children.
A notable feature of the case was that Ms Doyle had produced very little documentary evidence of her claims while asserting there were large amounts of documentary evidence available.
My decision in relation to the summary possession application was contained at paragraph [51] of the judgment:
Based on the material before the Court on the hearing of the application I have reservations about the strength of the defendant’s case. Notwithstanding those reservations, having regard to the principles relevant to an application under Order 53, I am satisfied that it would be inappropriate to determine the issues in dispute without a full hearing on the merits. I have reached this view because in the course of submissions [Ms Doyle] asserted she had further documentary evidence she wished to place before the Court and because it appeared to me that a final resolution of the dispute may well involve an assessment of the credibility of any witnesses. Mindful that the power to make orders for possession should be exercised with great care, it is appropriate that I make orders for the orderly preparation of the dispute for trial.
In relation to the application to remove the caveat, Ms Doyle argued that Mr Bourne’s interest in the Ardcloney Drive property had not vested in Mr Downey, his trustee in bankruptcy as it was not property divisible among Mr Bourne’s creditors by virtue of s 116(2)(a) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). Ms Doyle said that Mr Downey had no standing to bring the application because the extension of Mr Bourne’s bankruptcy under s 129AA of the Bankruptcy Act only applied to property disclosed in Mr Bourne’s statement of affairs provided to Mr Downey in 2014, which did not claim ownership of the Ardcloney Drive property. Ms Doyle also argued that Mr Downey had deliberately misled the Official Receiver, the Registrar of Titles and the Court because his affidavit falsely stated that Mr Bourne had disclosed his interest in the Ardcloney Drive property in his 2014 statement of affairs.
My decision in relation to the caveat removal application is contained at paragraphs [59] to [62] of the judgment:
I do not consider that [Ms Doyle’s] concession that the [Ardcloney Drive property] remained vested in [Mr Downey] in [Ms Doyle’s] letter dated 31 August 2018 to be a position from which she may easily resile. In any event, the plaintiff is the registered proprietor of the Land and, by virtue of s 42 of the TLA, acquired an indefeasible title upon registration. This is clearly sufficient standing to bring an application with respect to the removal of the caveat from the title to the Land.
As I stated during the hearing of the proceeding, the application before me did not pertain to the alleged breaches of the Bankruptcy Act by [Mr Downey] and Mr Bourne, and the alleged breaches are not matters I am required to determine on the application to remove the caveat. The alleged breaches do not go to the issues relevant to the [Ms Doyle’s] interest in the Land nor the balance of convenience. Whether or not the Land was disclosed in Mr Bourne’s statement of affairs, or was accurately represented as not being in Mr Bourne’s statements of affairs, does not impact [Mr Downey’s] title and standing to bring this application.
To the extent [Ms Doyle] has any interest in the Land as trustee, that interest vested in her trustee in bankruptcy upon commencement of her bankruptcy. This is the case notwithstanding her failure to file a statement of affairs and her stated intention to seek the annulment of her bankruptcy. The Official Trustee has consented to the caveat lodged by [Ms Doyle] lapsing on the basis that [Mr Downey] hold the net proceeds of the sale of the Land while [Ms Doyle’s] trustee determines if [Ms Doyle’s] estate has any claim against those funds. The Official Trustee has chosen not to oppose [Mr Downey’s] caveat removal application.
Accordingly, I am not satisfied that [Ms Doyle] has established a prima facie case to be tried. I am also not satisfied that there is any good reason for the Court not to exercise its discretion to order the removal of [Ms Doyle’s] caveat. Having failed to establish a prima facie case, it is appropriate that the Court order that the caveat be removed.
Read fairly, the above extract from the Ardcloney Drive judgment does not support Ms Doyle’s claim that I have made adverse findings about her credit. Rather, the extract points out that in a case seemingly reliant on oral evidence, unsupported by contemporaneous documents, which is likely to conflict with other oral evidence, the credit of the witnesses is likely to be important. A trial, which is where the evidence would be given, was the appropriate opportunity for that evidence to be given and tested. Accordingly, I do not accept that Ms Doyle’s claim that I have made findings relating to her credit is correct. It follows that I am not satisfied that it is a factor which a fair-minded lay observer might reasonably apprehend might lead me to resolve a question in this proceeding other than on its legal and factual merits.
Similarly, Ms Doyle’s allegation that Mr Bourne attempted to blackmail her in 2018 is referred to in paragraph [28] of the Ardcloney Drive judgment. In circumstances where Mr Bourne’s interest in the property had vested in Mr Downey, who was at the time of that hearing the registered proprietor, the earlier alleged blackmail was not a factor relevant to establishing either Ms Doyle’s asserted interest in the property or the balance of convenience in 2023. There is no logical connection between my deciding Ms Doyle’s allegation of blackmail was an irrelevant consideration in that application and my deciding the current application on its legal and factual merits.
If the decisions I made in the Ardcloney Drive matter were supported by apparent justifications, the mere fact that the decision went against Ms Doyle in part, cannot be enough to meet the first step of the test in Ebner.[10] Even if I was incorrect, that does not mean that the Ebner test is met.[11]
[10]Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).
[11]Ibid.
Ms Doyle asserted that, in this proceeding, I ignored evidence of collusion between Mr Downey, Mr Bourne and Perpetual to avoid the need for Perpetual to obtain an order for possession. This requires some explanation. During the course of the hearing Ms Doyle sought, and I did not allow her, to read out the content of an email said to evidence collusion. As explained to Ms Doyle at the time, the reason I did not allow that to occur was because the email was not in evidence before the Court. While Ms Doyle is a self-represented litigant and entitled to the assistance of the Court and to a degree of flexibility, that assistance and flexibility cannot skew the fairness of the process. This also applies to Ms Doyle’s complaint that I refused to allow her to make further oral submissions in response to Perpetual’s reply submissions. Such a course would have been irregular, unfair and contrary to the overarching purpose in s 7 of the CPA. It follows that I am not satisfied that these are factors which are logically capable of leading to an apprehended deviation from my deciding this application on its merits.
I have dealt with Ms Doyle’s argument about the requirement for Perpetual to obtain a possession order below. In summary, Perpetual’s standing to bring its application is not conditional upon it having obtained an order for possession.
I have set out my reasons for allowing Perpetual to rely on the contested documents above.
Ms Doyle did not explain how her allegation that Mr Bourne had trespassed or made threats against the occupants of the Property supported her argument that I recuse myself on the basis of apprehended bias.
For these reasons I am not satisfied that the matters raised by Ms Doyle meet the test in Ebner. Accordingly, I have decided I should not recuse myself.
Ms Doyle’s evidence and submissions
Ms Doyle’s evidence was that:
(a) Mr Bourne was the tenant of the Property who overstayed his lease and his trustee in bankruptcy, Mr Downey, had no legal standing to be registered on the title and has never had possession of the Property;
(b) Ms Doyle’s children, as the beneficial owners of the Property, have been in possession of the Property since it was purchased in 2007;
(c) in the proceeding before Watson J, Ms Doyle acted as agent for the beneficial owners of the Property and not in her personal capacity and therefore her status as a bankrupt was not in issue in that proceeding;
(d) Perpetual had informed Watson J that it would make an application for the removal of the caveat within 2 days but did not commence this proceeding until 6 months later;
(e) Ms Doyle changed the locks at the Property to protect the tenant’s privacy;
(f) Perpetual has not secured possession of the Property and do not have a right to sell the Property in circumstances where the beneficial owners have offered to pay out Mr Bourne’s mortgage in full;
(g) in 2007 Ms Doyle paid a deposit of $36,000.00 for the purchase of the Property. The balance of the purchase price was financed by withdrawing equity in another property plus bank finance. Mr Bourne agreed to have the bank finance in his name and to hold both property titles on trust for an initial estimated period of 2 years or until such time as Ms Doyle, as trustee, or the beneficial owners were able refinance the bank loans and have the Property title reconveyed to them. At the same time Ms Doyle entered into a long term lease agreement with Mr Bourne so that the beneficial owners would remain in possession of the Property;
(h) under the trust agreement with Mr Bourne, Mr Bourne was not responsible for mortgage repayments or outgoings;
(i) in around 2012, Ms Doyle offered Mr Bourne a 6 month lease of the Property. Mr Bourne moved into the Property but in May 2018 ceased paying rent;
(j) at the end of 2013 the beneficial owners of the Property, concerned that Mr Bourne may not agree to vacate the Property at the end of his lease, obtained pro bono legal advice and subsequently decided to lodge a caveat over the Property;
(k) the caveat was lodged in Ms Doyle’s name as trustee;
(l) in about February 2014, prior to Mr Bourne’s bankruptcy, Ms Doyle, as trustee, informed Mr Bourne that the beneficiaries instructed him to reconvey the Property to them, which Mr Bourne undertook to do;
(m) in March 2014 Mr Bourne informed Ms Doyle that a creditor had applied for a sequestration order against his estate and so the beneficiaries decided not to proceed with the reconveyance lest the transfer be deemed a deliberate act to defeat Mr Bourne’s creditors;
(n) Mr Bourne was declared bankrupt in 2014. His statement of affairs did not mention of the Property;
(o) in July 2014 Mr Downey, as Mr Bourne’s trustee in bankruptcy, requested Ms Doyle explain how the Property came to be registered in Mr Bourne’s name, which Ms Doyle provided in writing. Mr Downey took no action during Mr Bourne’s initial period of bankruptcy, from 2014 to 2017, to claim the Property for the benefit of Mr Bourne’s creditors;
(p) in May 2018 Mr Bourne applied for the Registrar of Titles to remove the Caveat under s 89A(1) of the TLA but later abandoned this application;
(q) subsequently, the lawyer for the beneficial owners of the Property advised them to request Mr Downey remove his caveat from the Property on the basis that Mr Bourne’s bankruptcy had been discharged. The beneficiaries lawyer entered into negotiations with Mr Downey during which it is alleged Ms Doyle instructed the lawyer to acknowledge the Property had vested in Mr Downey. Ms Doyle denies giving the lawyer this instruction;
(r) in November or December 2018 Mr Bourne requested a three-month reprieve from making mortgage repayments, despite not being responsible for these payments under the trust agreement;
(s) in September 2019 Mr Bourne applied for an intervention order against Ms Doyle and her daughters and was granted an interim order. Ms Doyle believes Mr Bourne applied for the intervention order after being served a notice to vacate the Property and in order to keep Ms Doyle and her daughters away from the Property. Ms Doyle was subsequently charged with breaching the interim intervention order, but that charge was later dismissed;
(t) in February 2023 the beneficiaries agreed to sublet the Property and so Ms Doyle placed a notice on the Property advising any occupiers to vacate the Property. In response, in March 2023 Mr Bourne applied for another interim intervention order. Mr Bourne vacated the Property in early 2024 and his application for the intervention order was dismissed.
Ms Doyle’s submissions can be summarised as follows:
(a) the plaintiff has no standing to bring the application because it has not obtained an order for possession;
(b) Ms Doyle is the settlor and trustee of a trust the beneficiaries of which are her children. Ms Doyle does not claim any beneficial interest in the Property but rather holds her interest on trust for her children;
(c) in September 2024, Ms Doyle’s Official Trustee in Bankruptcy agreed to annul her bankruptcy because there were no creditors and so the Official Trustee cannot now claim any interest in the Property;
(d) the registered proprietor of the Property, Mr Downey, has not objected to the Caveat remaining on the title;
(e) Mr Bourne and Mr Downey have colluded so that Mr Bourne will be paid if he gives information to Mr Downey and Mr Bourne has threatened Ms Doyle and her daughters;
(f) Ms Doyle or her children, as persons with an interest in the Property, have a right of mortgage redemption which overtakes a mortgagee’s power to sell property without proper cause. The plaintiff, as mortgagee only has power to sell the property if interested parties do not repay the loan in full;
(g) the Property is required for a family home;
(h) if the Property is sold, sale costs, taxes and payments to the trustees in bankruptcy, will be unnecessarily incurred;
(i) the Property is in a poor state of repair which will affect the sale price; and
(j) Ms Doyle has expended her whole life savings paying for the Property, which will be lost if the Property is sold.
Ms Doyle submitted that the facts in the case of Dolan v Dolan,[12] were very similar to her case and that this Court should follow the Court of Appeal when it said:
Where, again as generally will be the case, the claimed interest in land said to support the caveat remains to be vindicated, it will be necessary for that to be done in a properly constituted suit. Given that factual disputes will almost inevitably arise, a writ and pleadings will generally be required. An originating motion, which is used as a vehicle under s 90 of the Transfer of Land Act to determine whether or not the caveat should remain on title, is ill-suited to such a dispute. Where that occurs, there may be no utility in keeping the originating motion on foot: the question of the rights in the property will be determined finally in the action commenced by the caveator. In the event that the interest is established, the conclusion will be reflected in the form of relief. Where the interest is not established, the Court will require the removal of the caveat. That will be the case whether or not the originating motion seeking the removal of the caveat remains on foot.
In this case, the associate judge referred to these principles. Moreover, the structure of the Reasons shows that she applied them. The associate judge considered whether [the respondent] had established a prima facie case of an interest in the property in the form of a resulting or constructive trust, and whether the balance of convenience favoured the maintenance of the caveat.
The originating motion to remove the caveat provided for the occasion for the caveator to establish, to the level of an arguable case, an interest in the property. Once that hurdle was overcome and the balance of convenience favoured the maintenance of the caveat, the relief in the summons (which reflected the relief sought in the originating motion), was refused. Having regard to the nature of the issue before the associate judge, the Reasons and the form of the order, the refusal of relief self-evidently did not determine whether [the respondent] has any equitable interest in the property.
…
Nor does the caveat prevent the making of a contract for the sale of property. Nonetheless, although the caveat does not prevent the sale of the property, as a practical matter it is likely to affect the ability to secure a sale and to impact the price at which a sale may occur. Further, although not the subject of an order by the associate judge, it was plainly contemplated that [the respondent] would remain in possession of the property pending resolution of her proceeding. However, whether or not the caveat remained in place did not determine, even on an interlocutory basis, her right to remain in the property.
…
On the other hand, where the claimed interest confers possessory rights or represents the whole or a substantial proportion of the beneficial proprietary interest, it may be appropriate to leave the caveat in place so there can be no change in the registered title until the issue concerning the claimed interest can be determined.
[12][2023] VSCA 136, [55]-[57], [89], [91].
Applicable principles
Section 90(3) of the TLA permits any person who is adversely affected by any caveat to bring a proceeding against the caveator for the removal of the caveat and the court may make such orders as the court thinks fit.
Section 42(1) of the TLA enshrines the principle of indefeasibility of title of a registered proprietor. Indefeasibility is subject to the circumstances set out in s 42(2), which includes s 42(2)(e), the interest (but excluding any option to purchase) of a tenant in possession of the land.
The principles relevant to an application under s 90(3) of the TLA were considered by Warren CJ in Piroshenko v Grojsman:[13]
Caveats under the Torrens system are treated by the courts as analogous to applications for interlocutory injunctive relief. In so far as their registration is an administrative act, it is when application is made for their removal that the onus falls on the caveator to satisfy the two-stage test used by the court when deciding whether to exercise its discretion to grant interlocutory injunctive relief. This approach has been established law in Australia since the decision of Lord Diplock in Eng Mee Yong v Letchumanan was approved by the Full Court of the Queensland Supreme Court of Appeal in Re Jorss’ Caveat. This two-stage approach requires the caveator to establish that there is a serious question to be tried that they have the estate or interest which they claim in the land in question, and having done so, to establish that the balance of convenience favours the maintenance of the caveat on the Register of Titles until trial. This is still the approach taken by the courts in Victoria when deciding applications under s 90(3) of the Act.
[citations omitted].
[13](2010) 27 VR 489, 491 [7]; [2010] VSC 240.
Consideration
As the authorities make clear, in order for Ms Doyle to defeat Perpetual’s application, Ms Doyle must establish that there is a serious question to be tried that she has the estate or interest she claims in the land, and having done so, to establish that the balance of convenience favours the maintenance of the caveat until trial. The interest claimed in Ms Doyle’s caveat is an implied, resulting or constructive trust. The grounds of that claim as set out in the caveat are, ‘Whereby the registered proprietor holds his interest as trustee for the Caveator pursuant to a constructive trust’. Ms Doyle’s evidence was limited to her affidavit affirmed 21 December 2024 which did not exhibit any documents supporting the assertions made in her affidavit. Much of Ms Doyle’s evidence and submissions was aimed at attacking Perpetual’s application rather than positively prosecuting her own case. While Ms Doyle made numerous assertions and allegations during the course of her oral submissions, it was difficult to afford these much weight where they were not supported by evidence on affirmation or oath or by documents properly placed before the Court.
It is convenient to first deal with the issue of Perpetual’s standing to bring the application. Ms Doyle’s argument that the plaintiff does not have standing to bring the application because it has not obtained an order for possession is not supported by the text of s 90(3) or the authorities. The plain words of s 90(3) allow ‘any person who is adversely affected by any such caveat’ to bring the application. There is no requirement that the person have an order for possession before bringing such an application. In Giurina v Greater Geelong City Council,[14] the Court of Appeal considered and dismissed the argument that a judgment creditor did not have sufficient standing to bring an application under s 90(3), noting that there is no requirement under s 90(3) that the Court be satisfied that the applicant has an interest in the land. It was not in dispute that the title to the Property records Perpetual as a registered mortgagee. It seeks to effect a mortgagee sale. I am satisfied that Perpetual clearly has standing to bring the application.
[14][2023] VSCA 148, [15]-[17].
Perpetual’s solicitor deposed that Perpetual secured possession of the Property by receiving the keys and security codes from Mr Downey, for the purpose of proceeding with a mortgagee sale by auction.
Next, I turn to Ms Doyle’s standing to oppose Perpetual’s application. Ms Doyle’s caveat is not founded on her asserted status as trustee for her daughters. Ms Doyle relies on her alleged trustee status to argue that the Property is not an asset in which Ms Doyle’s trustee in bankruptcy can claim an interest. Beyond Ms Doyle’s own assertions, there is no evidence that she holds the Property on trust for her daughters. No trust deed has been produced, nor any evidence or assertion of interest from any of the alleged beneficiaries of the asserted trust. That said, Ms Doyle is the named caveator. Perpetual did not seek to argue that Ms Doyle should not be heard on the application. While the question whether any interest in the Property that Ms Doyle held has vested in her Official Trustee remains unresolved, it was appropriate that I allowed Ms Doyle to be heard on Perpetual’s application.
I will now address Ms Doyle’s assertion that her bankruptcy has been or is about to be annulled. There is simply no evidence, independent of Ms Doyle’s own assertions, that her trustee in bankruptcy has agreed to annul her bankruptcy. Ms Doyle’s assertion that her Official Trustee agreed in September 2024 to annul her bankruptcy is not supported by any evidence from her Official Trustee. Indeed the correspondence from Ms Doyle’s Official Trustee that was before the Court on this application does not mention any annulment of Ms Doyle’s bankruptcy and indicates that as late as 21 November 2024 the Official Trustee asserted that any interest held by Ms Doyle in the Property had vested in her Official Trustee. This assertion directly contradicts any suggestion of an agreement by the Official Trustee to annul Ms Doyle’s bankruptcy.
While it may be true that Mr Downey has not objected to Ms Doyle’s Caveat remaining on the title, it is difficult to see how this supports Ms Doyle’s case. Mr Downey’s lack of objection does not lend weight to the existence of Ms Doyle’s asserted interest in the Property. Nor in circumstances where Mr Downey has consented to Perpetual’s application, is it plainly relevant to the balance of convenience.
Ms Doyle’s submissions about collusion and fraud by Mr Bourne and Mr Downey were not easy to follow, not least because they were unsupported by any evidence that had been properly placed before the Court. I did not allow Ms Doyle to rely on an email said to demonstrate that Mr Bourne and Mr Downey had colluded with Perpetual to avoid the necessity for Perpetual to obtain an order for possession. As noted above, Perpetual’s evidence was that it had been given possession by the registered proprietor Mr Downey. There is no requirement for Perpetual to obtain an order for possession as a pre-requisite to making its caveat removal application.
The interest claimed in Ms Doyle’s caveat is an implied, resulting or constructive trust. The grounds of that claim as set out in the caveat are, ‘Whereby the registered proprietor holds his interest as trustee for the Caveator pursuant to a constructive trust’. Ms Doyle’s claim is grounded in her alleged agreement with Mr Bourne that the loan to fund the balance of the purchase price of the Property was to be taken out in his name, but that she and/or her daughters would remain responsible for the mortgage repayments and outgoings. Other than her own evidence contained in Ms Doyle’s affidavit, she provided no contemporaneous or corroborating evidence of this arrangement. Ms Doyle has not provided any records to substantiate her claim that she paid the deposit on the purchase of the Property, that she took steps to realise the equity in the other property to help fund the purchase, that her agreement with Mr Bourne, involving an asset of considerable value, was reduced to writing or any cogent explanation why not, given both Mr Bourne and Ms Doyle were in the financial planning industry, or that she or her daughters made any of the mortgage repayments on the Property. The Court could not be satisfied to the requisite standard on the basis of Ms Doyle’s evidence alone that she has established a serious question to be tried that Mr Bourne held his interest in the Property on trust for her.
Without any supporting documentary evidence, Ms Doyle’s assertions would be the sole source of the evidence of alleged the trust arrangement. However, the table of the loan repayments on the Perpetual loan exhibited to the Second Cullin Affidavit, contains numerous entries from at least 10 January 2011 to 5 January 2018 recording payments by either ‘Ms Maureen Doyle’ or ‘M Doyle’. One inference that could be drawn from these entries is that Ms Doyle has been responsible for at least some repayments of the Perpetual loan. If accepted, that inference is capable of supporting Ms Doyle’s assertion that her agreement with Mr Bourne was that he hold the Property on trust for her and that she would be responsible for making the mortgage payments. In order to accept that inference the Court would need to be satisfied that it is more likely than other inferences that may be drawn from the payment record evidence.
In my view the combination of Ms Doyle’s evidence and Perpetual’s evidence of loan repayments does raise real questions about Ms Doyle’s interest in the Property. On balance I am satisfied Ms Doyle has established a serious question to be tried.
Having established a serious question to be tried, it is necessary for Ms Doyle to establish that the balance of convenience favours maintenance of the caveat until trial.
Perpetual submitted the balance of convenience favours the removal of the caveat so that the sale of the Property may proceed. In summary, Perpetual’s argument was that Ms Doyle does not dispute the existence of the loan or Perpetual’s registered mortgage. Perpetual served a default notice on the mortgagor and the default was not rectified. Perpetual’s mortgage was registered without notice of Ms Doyle’s interest and before Ms Doyle’s caveat. In these circumstances there can be no dispute that Perpetual’s interests take priority over Ms Doyle’s.
Ms Doyle’s Caveat was lodged more than six years after the registration of the Perpetual’s mortgage. Perpetual’s loan agreement with Mr Bourne does not record that Mr Bourne provided any notice of an assertion that Mr Bourne held the Property on trust. Perpetual’s mortgage was taken with no notice of Ms Doyle’s alleged interest in the Property.
Ms Doyle’s Official Trustee in Bankruptcy has confirmed the Trustee’s position in writing on 14 June 2024 and 21 November 2024 that any interest asserted by Ms Doyle in the Property has vested in her Official Trustee. If the Property is sold, the plaintiff has undertaken that any surplus sale proceeds after payment of the plaintiff’s secured debt will be dealt with in accordance with s 77 of the TLA. Ms Doyle’s application for an injunction prohibiting the sale of the Property was dismissed by Watson J on 1 May 2024.
Ms Doyle asserts that the Property is required for a family home but does not depose by whom. Nor has she produced any tenancy agreement to support her assertion that the Property is tenanted. In any event Ms Doyle has not explained the legal basis upon which she asserts a right to let or occupy the Property given that neither Ms Doyle nor her daughters are the registered proprietors.
Ms Doyles submissions about the poor condition of the Property were not supported by any evidence. In this regard Ms Doyle’s submissions appeared at odds with the photographs of the Property contained in the valuation report, which noted the valuation had been prepared after a full inspection of the Property on 31 January 2024. Much may have changed in a year. In the absence of further evidence of the Property’s poor state and a funded plan to carry out repair works, I am not satisfied that the condition of the Property favours maintenance of the Caveat.
In relation to Ms Doyle’s reliance on Dolan v Dolan, I accept that this proceeding, being an application for removal of the Caveat, is not the appropriate vehicle to finally determine whether Ms Doyle has an interest in the Property. Even though I have decided to order that the Caveat be removed, there is nothing stopping Ms Doyle from vindicating her claimed interest in the Property in a separate proceeding.
In Dolan v Dolan the Court of Appeal was considering a caveat in which the interest claimed was the existence of an implied, resulting or constructive trust arising from an alleged agreement between a mother and daughter in which both contributed to the purchase and construction of a dwelling on a property. It is necessary to consider the portions of the judgment Ms Doyle sought to rely upon in context. In dealing with the balance of convenience the Court of Appeal said:
As to the balance of convenience, it is important to observe that the caveat itself did not confer any rights on [the respondent] to occupy the property for the purpose of the caveat. It was not necessary for her to show a claim to a possessory title, and it was sufficient to show an interest in the property.
Nor does the caveat prevent the making of a contract for the sale of property. Nonetheless, although the caveat does not prevent the sale of the property, as a practical matter it is likely to affect the ability to secure a sale and to impact the price at which a sale may occur. Further, although not the subject of an order by the associate judge, it was plainly contemplated that [the respondent] would remain in possession of the property pending resolution of her proceeding. However, whether or not the caveat remained in place did not determine, even on an interlocutory basis, her right to remain in the property.
In considering whether the balance of convenience favoured the retention of the caveat, it was necessary to consider the nature of the claimed interest and what the caveat was designed to protect. In cases where the caveator is not in possession or where the claimed interest confers no possessory right, the claimed proprietary interest may be adequately protected by removing the caveat, allowing the property to be sold and, by orders or undertakings, for the proceeds or part of them to be secured until the respective interests in the property can be determined. Such a course will often be appropriate.
On the other hand, where the claimed interest confers possessory rights or represents the whole or a substantial proportion of the beneficial proprietary interest, it may be appropriate to leave the caveat in place so there can be no change in the registered title until the issue concerning the claimed interest can be determined.
Each case will turn on its own facts. In this case, Ms Doyle’s Caveat does not confer on her any rights to occupy the Property for the purpose of the Caveat. Ms Doyle claims the whole of Mr Bourne’s interest in the Property was held on trust for her, as trustee for her daughters. There is, however, no dispute that Perpetual holds a registered mortgage which it entered into without notice of Ms Doyle’s asserted equitable interest. This is a very different factual background to the dispute in Dolan v Dolan. In my view, on the facts of this case, the balance of convenience clearly favours removal of the Caveat.
Much of Ms Doyle’s submissions were directed to her stated desire to pay out the outstanding Perpetual loan to avoid a mortgagee sale. Ms Doyle asserted that she, and her daughters, had the funds available to pay out the loan but were prevented from doing so because Perpetual had withheld the payout figure from them. There is no doubt that Perpetual had been reticent to provide a payout figure to Ms Doyle because she was not the named lender or mortgagor. Perpetual did however, in the Second Cullin Affidavit state that the outstanding amount as at 17 January 2025 was $382,320.20. As I explained to Ms Doyle at the hearing, there is nothing to stop the parties to this proceeding engaging in settlement discussions at any time before, or indeed after, the proceeding is determined.
In my view any interest of Ms Doyle’s in the Property is adequately protected by ensuring that any surplus sale proceeds are quarantined and distributed in accordance with s 77 of the TLA.
Conclusion
For the reasons provided above I will grant Perpetual’s application and make orders in the form proposed by Perpetual.
Perpetual does not seek its costs of the proceeding. Accordingly, I will make no order as to Perpetual’s costs.
SCHEDULE OF PARTIES
| S ECI 2024 05576 | |
| BETWEEN: | |
| PERPETUAL LIMITED (ACN 000 431 827) | Plaintiff |
| - v - | |
| MAUREEN THERESE DOYLE | First Defendant |
| THE OFFICIAL TRUSTEE IN BANKRUPTCY (ABN 32 547 573 064) in relation to the bankrupt Estate of MS MAUREEN THERESE DOYLE | Second Defendant |
| THE REGISTRAR OF TITLES VICTORIA | Third Defendant |
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