Repinac v. Dougherty

[2001] VSC 488

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8248 of 2001

BRANKO REPINAC	Plaintiff
v.
PETA ANN DOUGHERTY	Defendant

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JUDGE:	BEACH  J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2001
DATE OF JUDGMENT:	5 December 2001
CASE MAY BE CITED AS:	Repinac v. Dougherty
MEDIUM NEUTRAL CITATION:	[2001] VSC 488

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Removal of caveat – caveator having minimal interest in property affected by caveat.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Moore	Salinger Brown Pty.
For the Defendant	Mr G. De Vries	Duffy & Simon

HIS HONOUR:

1. This is the return of a summons filed on an originating motion whereby the plaintiff, Branko Repinac, seeks an order that the Registrar of Titles remove a caveat lodged by the first-named defendant, Peta Ann Dougherty, against the land situate at and known as 180 Boyd Road, Gembrook. 

1. The plaintiff purchased the property at 180 Boyd Road in early 1983 and became registered as the sole proprietor of the property on 29 April of that year.  In August 1995 he commenced a de facto relationship with the first-named defendant.  Initially he moved in with the first-named defendant and her children at premises then occupied by the defendant at 110 Collie Road, Gembrook.  That property was apparently registered in the joint names of the defendant and her estranged husband and was then mortgaged to the defendant's in-laws to secure a loan which had been procured from them. 

1. In May 1996 the defendant surrendered the property at 110 Collie Road and for some short period of time went to live with her mother.  Whilst she was living with her mother, the plaintiff moved into the bungalow which was erected at 180 Boyd Road and lived there alone.  In about mid-July 1996 the plaintiff, the defendant and the defendant's children went to live with the plaintiff's parents at another property in Boyd Road, Gembrook, being No. 5 Boyd Road, where they lived for a further period of about four months.

1. In November 1996 the plaintiff, the defendant and the defendant's children all moved into the bungalow at 180 Boyd Road and lived there until late June 1997, that is, a period of some seven months.  At that time the parties then moved to a property the plaintiff and the defendant had purchased at 205 Harewood Park Road as tenants in common in equal shares.  As I understand it, they remained together at that property until the defendant left the plaintiff in about January of this year.  When that occurred the plaintiff returned to live with his parents at 5 Boyd Road, and on 10 August 2001 he sold the property at 180 Boyd Road to one Caterina Balog.  Settlement of that sale is to occur on 30 March 2002.

1. In July of this year the defendant filed a proceeding in the County Court naming the plaintiff as defendant by which she makes a claim against him pursuant to Part 9 of the Property Law Act concerning the property at 205 Harewood Park Road, but no claim at all in respect of the property at 180 Boyd Road.  There is material before the court to indicate that the defendant does intend to amend her statement of claim in that proceeding to enable her to make a claim also in respect of 180 Boyd Road.  However, that amendment has not yet been made. 

1. At all events, on 13 August of this year, the defendant lodged a caveat in the Office of Titles by which she claims an estate in fee simple in the property at 180 Boyd Road.  The grounds of the claim read:

"The caveator is a beneficiary under resulting constructive and implied trusts arising from direct and indirect financial contributions by the caveator to the acquisition, conservation and improvement of the land hereinbefore referred to pursuant to Part 10 of the Property Law Act as a result of the breakdown of a genuine domestic relationship."

1. Not surprisingly, the plaintiff has now brought this proceeding in the court seeking to have the caveat removed so that settlement of the sale of the property at 180 Boyd Road to Balog may proceed.

1. In the affidavits filed on behalf of the defendant, the defendant refers to various financial contributions and other contributions she made to the plaintiff and to the properties in which they lived during the time she and the plaintiff were together, and it is based on those contributions that she makes the claim that the plaintiff holds some portion of the property at 180 Boyd Road in trust for her.

1. The fact is that the parties only lived at the Boyd Road property for a period of some months.  It may well be that during that period of time the defendant did make some contributions to the property, but in my opinion the contributions she made are hardly sufficient in the circumstances of this case to entitle her to register a caveat against the title to the property and thus frustrate the plaintiff in so far as the sale of the property is concerned.

1. The defendant has rightly made a claim pursuant to the Property Law Act in respect of the plaintiff's half interest in the property at 205 Harewood Park Road, but in my view, even if the defendant does establish that she did make some contribution to the property at 180 Boyd Road, it would be a comparatively small contribution, in respect of which she could be adequately compensated by an appropriate monetary award in her favour.

1. In my opinion, and in the exercise of my discretion, I consider it is appropriate to order that the caveat be removed, thereby allowing settlement of the sale of the property to proceed.

1. I order therefore that the second-named defendant remove caveat No. X667183V lodged by the first-named defendant on or about 14 August 2001 from the title to the property at 180 Boyd Road, Gembrook, being the land more particularly described in Certificate of Title Vol. 8216 Folio 685.

1. I see no reason why the costs of this matter should not follow the event.  Accordingly I order that the first-named defendant pay the plaintiff's costs of the proceeding, including any reserved costs.

1. I direct that the order be prepared by the solicitors for the plaintiff within seven days and be brought to me for authentication.

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