Qin v Smith - [2013] VSC 158

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5748 of 2012

KATRINA QIN	Plaintiff
v
SIMON SMITH and KAREN SMITH	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2013
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Qin v Smith
MEDIUM NEUTRAL CITATION:	[2013] VSC 158

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REAL PROPERTY – Caveat – Application to remove caveat – Transfer of Land Act 1958 s 90(3) – Serious question to be tried – Estate or interest in land – Balance of convenience

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Watters	Victor Tse & Associates
For the Defendant	Mr T Sowden	Ken Smith & Associates

HER HONOUR:

Issue for Determination

The issue for determination is whether the Court should exercise its discretion under s 90(3) of the Transfer of Land Act 1958 (‘the Act’) to remove a caveat lodged by a purchaser claiming an interest in property pursuant to a contract of sale.

Factual Background

By contract of sale dated 25 July 2012, the plaintiff (‘the purchaser’) purchased from the defendants (‘the vendors’) the property situate at and known as Unit 312, 86 Macaulay Road, North Melbourne, being the property described in Certificate of Title Volume 11227 Folio 345 (‘the property’). The purchase price was $417 000, with settlement due on 24 September 2012. The contract provided that vacant possession of the property be given on settlement.

Vacant possession of the property was a specific requirement on the part of the purchaser, as she intended to move into the property. Prior to signing the contract, the issue of vacant possession of the property was raised by the purchaser with the vendors’ agent. The agent informed the purchaser that he had mentioned to the vendors that she required vacant possession.[1] At that time, the agent informed the purchaser that he would insert a special condition that would ‘void’ the contract in the event that vacant possession was not provided. The contract ultimately provided that the sale was not subject to any lease, but the special condition was left out. The words ‘not applicable’ were inserted under general condition 1.1, which governed any lease, and the clause was initialled by both the vendors and the purchaser.[2]
[1] Affidavit of Katrina Chao Qin sworn 15 February 2013, [4]; Exhibit KQ-001 to the Affidavit of Katrina Chao Qin sworn 15 February 2013.
[2] The purchaser submitted that, because of cl 1.1, she considered it unnecessary to insert the special condition.

Prior to signing the contract, the purchaser was provided with a statement required by s 32 of the Sale of Land Act 1962, signed by the vendors (‘the vendors’ statement’). The vendors’ statement dated 25 July 2012 disclosed a lease signed by the vendors more than six months earlier, with an expiry date of 4 January 2013. The vendors rely on this fact to show that the purchaser was aware that the property was subject to a lease before she signed…

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 Qin v Smith

Details

AGLC: Qin v Smith [2013] VSC 158
Case: [2013] VSC 158
Decision Date: 12 April 2013

CaseChat Overview and Summary

The case of Qin v Smith involves a dispute over the validity of a caveat lodged over a property. The plaintiff, Mr Qin, sought to purchase the property, but the caveat lodged by the defendant, Ms Smith, raised issues regarding her interest in the land. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the caveat lodged by Ms Smith was valid and whether it should be removed to allow for the transfer of the property to Mr Qin. The court needed to consider whether Ms Smith had a serious question to be tried in relation to her interest in the land, as required by section 90(3) of the Transfer of Land Act 1958. Additionally, the court had to weigh the balance of convenience to determine whether it was in the interests of justice to maintain or remove the caveat.

The court examined the nature of the interest claimed by Ms Smith and the evidence provided to support her claim. It was found that Ms Smith's interest was not sufficient to constitute a serious question to be tried. The court held that the caveat was not valid as it was not based on a real or bona fide claim to an estate or interest in the land. The court further determined that the balance of convenience favoured removing the caveat, as the interest claimed by Ms Smith was unlikely to succeed and would cause significant prejudice to Mr Qin if allowed to stand. The court found that maintaining the caveat would result in a substantial hardship for Mr Qin, who had already entered into a contract to purchase the property.

Consequently, the court ordered the caveat to be removed, allowing for the transfer of the property to proceed. The court also awarded costs to Mr Qin for the application to remove the caveat. The decision in this case highlights the importance of ensuring that caveats are based on valid claims and interests in land, and the court's willingness to remove caveats that are found to be unjust or without merit.

Orders