R & L Bell Pty Ltd v Casboult - [2003] VSC 169

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4907 of 2003

R. & L. BELL PTY LTD and ANOR	Plaintiff
v
RODNEY CASBOULT and ANOR	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 23 April 2003
DATE OF JUDGMENT:	23 April 2003
CASE MAY BE CITED AS:	Bell v Casboult
MEDIUM NEUTRAL CITATION:	[2003] VSC 169	First revision 30 September 2003

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Land law – Torrens title – Caveat – Removal of caveat – Second caveat lodged in respect of same interest – Whether permissible – Whether withdrawal of caveat encompassed in the words of ss 91(4), 118, Transfer of Land Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Messer	Mitchell Burke & Co.
For the Defendant	Mr A.P. Dickensen	Harwood Andrews Layers

HIS HONOUR:

This is an application pursuant to s.90(3) of the Transfer of Land Act 1958 for removal of a caveat forbidding dealings in respect of five parcels of land in a subdivision formerly known as 29 Murray Street, Anglesea. The caveat was lodged on 12 August 2002. The land comprises four lots registered in the names of the plaintiffs and one lot registered in the name of the body corporate of the subdivision. That lot was common property.

The caveat the subject of the proceeding is identical in form to a caveat previously lodged over the same land before it was subdivided. That caveat had been withdrawn following a proceeding brought by the same plaintiffs in this Court for its removal against the same defendant, which proceeding was compromised upon the defendant agreeing to withdraw the caveat and paying the plaintiffs’ costs.

In this application a preliminary point arises as to whether the lodging of the second caveat contravened s.91(4) of the Transfer of Land Act 1958. That sub-section is in these terms:

“(4) A caveat that has lapsed or been removed shall not be renewed by or on behalf of the same person in respect of the same interest.”

The history of that sub-section is somewhat curious, but it can be traced back to the Transfer of Land Statute of 1866, which, in the style of Acts common in those days, contained a provision in the middle of a very long section, s.117, in these terms:
“A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest, but if before the expiration of the said period of 14 days the caveator or his agent appears before a judge,” etc.

The condition referred to was the putting up of security to entitle the caveator to maintain the caveat.

The same section was repeated as s.144 of the Transfer of Land Act 1890 and repeated again as s.184 of the Acts of 1915 and 1928. In 1958, with the consolidation of that year, the section was re-drawn and the provision with which I am presently concerned was placed into s.90(4). It was 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: [2003] VSC 169
Decision Date: 23 April 2003

CaseChat Overview and Summary

The case before the court involved a dispute between R & L Bell Pty Ltd and Casboult regarding the removal of a caveat and the subsequent lodging of a second caveat over the same interest. The issue was whether such an action was permissible under the relevant sections of the Transfer of Land Act 1958. The court was tasked with interpreting the statutory language and determining the scope of the power to withdraw a caveat.

The central legal issue was whether the power to remove a caveat, as provided under sections 91(4) and 118 of the Transfer of Land Act 1958, included the authority to subsequently lodge a second caveat in respect of the same interest. This required a detailed examination of the statutory provisions and their intended purpose. The court considered the legislative intent behind the caveat system and whether it permitted such actions.

The court found that the statutory provisions did not explicitly allow the withdrawal of a caveat to be followed by the lodging of a second caveat over the same interest. The language of sections 91(4) and 118 was held to encompass only the power to remove a caveat, without the authority to reinstate it. The court emphasised the importance of preserving the integrity of the Torrens title system and the need to prevent the abuse of the caveat process. Consequently, the court ruled that the subsequent lodging of a second caveat was not permissible.

In conclusion, the court determined that the second caveat was invalid and could not be upheld. The decision reinforces the importance of adhering to the statutory framework governing the lodgement and removal of caveats. The final orders of the court declared the second caveat to be null and void, and no appeal was sought.

Orders