Popescu v A and B Castle Pty Ltd - [2016] VSC 175

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

S CI 2016 01151

HELEN MARY POPESCU	Plaintiff
v
A & B CASTLE PTY LTD	First Defendant
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2016
DATE OF JUDGMENT:	15 April 2016 (Revised)
CASE MAY BE CITED AS:	Popescu v A & B Castle Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 175

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REAL PROPERTY – Application to remove caveat – Whether estate or interest in land – Whether equitable charge created – Landscaping work – Unpaid debt – Romalpa clause regarding materials used – No serious question to be tried – Caveat disproportionate – Balance of convenience favours removal of caveat – Transfer of Land Act 1958 s 90(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L M Stanistreet	HDME Lawyers
For the First Defendant	Mr H A Aizen	McIntyre & Statton

HIS HONOUR:

The plaintiff seeks the removal of a caveat on the title of her property at Highton. The caveat is dated 22 February 2016 and claims an interest as chargee. The property has been sold with settlement due next Friday, 22 April 2016.

Under s 89(1) of the Transfer of Land Act 1958 (‘the Act’) a caveat can only be lodged by a person claiming an estate or interest in land. The estate or interest in land must be established to the requisite standard by the person who lodged the caveat if the caveat is challenged. An application to remove a caveat involves two steps.[1] First the caveator, in this case the first defendant (‘Castle’), must establish that there is a serious question to be tried that it has the claimed estate or the interest and secondly, having done so, it must establish that the balance of convenience favours the maintenance of the caveat on the title until trial.
[1]Piroshenko v Grojsman (2010) 27 VR 489 (Warren CJ); Carbon Black Pty Ltd v Launer [2015] VSCA 126.

Castle carried out landscaping work at the plaintiff's property in Highton. Mr Castle, in an affidavit on behalf of Castle says that:

All works executed by Castle involved installation of turf on the property, installation of walls, provision of pebbles, installation of decking, installation of fences, plumbing, provision of plants, installation of a driveway and the supply of screens.

Castle claims that the plaintiff still owed it approximately $115,000 for the work that it carried out. Part of that claim is for the materials described in Mr Castle’s affidavit. The balance appears to be for the cost of labour.

Castle demanded payment of the sum that it claims in a letter February 2015. But, the caveat was only lodged on 22 February this year and Castle’s County Court proceeding seeking payment of the amount that it claims was commenced on 1 April.

The clause upon which Castle relies to create the equitable charge to give it an interest in the land is contained in…

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: [2016] VSC 175
Decision Date: 15 April 2016 (Revised)

CaseChat Overview and Summary

Popescu, the applicant, sought the removal of a caveat lodged by A and B Castle Pty Ltd, the respondents, over a property. The dispute arose from an unpaid debt related to landscaping work, where the respondents claimed an equitable charge over the property. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether the respondents had an estate or interest in the land that warranted the caveat and if the respondents had created an equitable charge over the property. Additionally, the court needed to examine the application of the Romalpa clause and whether it could affect the respondents' claim over the property. The court was also required to decide whether there was a serious question to be tried, which would justify maintaining the caveat, and if the balance of convenience favoured the removal of the caveat.

The court found that the respondents did not have an estate or interest in the property, and no equitable charge was created. The Romalpa clause did not confer an interest in the land to the respondents. There was no serious question to be tried that would warrant maintaining the caveat, and the balance of convenience favoured the removal of the caveat. Therefore, the court ordered the removal of the caveat under the Transfer of Land Act 1958 s 90(3).

Orders