Riverview Projects Pty Ltd v Elleray & Anor - [2007] VSC 150

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5210 of 2007

RIVERVIEW PROJECTS PTY LTD (ACN 069 234 000)	Plaintiff
v
MARA ELLERAY	First
and	Defendant

REGISTRAR OF TITLES Second

Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	27April 2007
DATE OF JUDGMENT:	18 May 2007
CASE MAY BE CITED AS:	Riverview Projects P/L v Elleray & Registrar of Titles
MEDIUM NEUTRAL CITATION:	[2007] VSC 150

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REAL PROPERTY – Transfer of Land Act 1958 (Vic) – Application for removal of caveat – Company registered proprietor of property –Cohabitation agreement referring to property – Proceeding by first defendant seeking orders under Part IX of Property Law Act 1958 - Balance of convenience

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Hardy	The Law Offices of Barry Fried
For the First Defendant	Mr K McFarlane	JC Lawyers

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TABLE OF CONTENTS

The application................................................................................................................................... 2

Section 90(3)......................................................................................................................................... 2

The facts............................................................................................................................................... 2

The County Court proceeding......................................................................................................... 6

Submissions........................................................................................................................................ 7

Conclusion........................................................................................................................................... 8

HER HONOUR:

The application

This is an application by the plaintiff (“Riverview”) under s 90(3) of the Transfer of Land Act 1958 (“the Act”) for the removal of a caveat, lodged on 8 December 2006 by the first defendant (“Ms Elleray”), claiming an interest “pursuant to a constructive or implied trust” in the property known as 46 Hillsyde Parade, Strathmore, Victoria (“the property”).

The second defendant has notified the Court that she does not intend to participate in the proceeding and will abide by the result.

Section 90(3)

The Court has a wide discretion under s 90(3).[1] The onus is on the caveator to justify the maintenance of the caveat[2]. The caveator must persuade the Court that there is a serious question to be tried as to the existence of the equitable interest claimed to support the caveat[3]. If there is a serious question to be tried, the Court will not normally order the removal of the caveat on the basis of affidavit evidence. However, where the balance of convenience favours it, the caveat will be removed.
[1]Commercial Bank of Australia Limited v Shierholter [1981] VR 292 per Young CJ at [295].
[2]Lewenberg & Pryles v Direct Acceptance Corp Limited [1981] VR 344 per O’Bryan J at [347].
[3]Darnel Pty Ltd v Bigic [2003] VSC 13 per Balmford J at [8].

The interest of a beneficiary under a constructive or an implied trust could support a caveat[4].
[4]See: McMahon v McMahon [1979] VR 239.

The facts

A number of factual matters are uncontentious and others are disputed. I will indicate those about which there is no agreement. I note that I have accepted any uncontradicted allegations by either party as common ground.

Riverview was incorporated on 1 May 1995. Mr Paul Schneider, the former partner of Ms Elleray, is one of two directors of Riverview. He is also the company secretary and holds 9 of Riverview’s 10 issued shares. Mr Schneider’s sister, Ms Helene Woods, is the other…

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 Riverview Projects Pty Ltd v Elleray & Anor

Details

AGLC: Riverview Projects Pty Ltd v Elleray [2007] VSC 150
Case: [2007] VSC 150
Decision Date: 18 May 2007

CaseChat Overview and Summary

In the matter of Riverview Projects Pty Ltd v Elleray & Anor, the Supreme Court of Victoria was tasked with determining whether a caveat entered by the second defendant, Elleray, against a property registered in the name of the plaintiff, Riverview Projects, could be removed. The property in question was subject to a cohabitation agreement that mentioned it, but the agreement did not specify ownership. The first defendant, who was in a relationship with Elleray, sought orders under Part IX of the Property Law Act 1958 to address the balance of convenience in the dispute. The central legal issues revolved around the interpretation of the cohabitation agreement, the rights of the parties under the Transfer of Land Act 1958 (Vic), and the application of Part IX of the Property Law Act 1958.

The court examined the cohabitation agreement to ascertain whether it provided any basis for Elleray's claim of an interest in the property. It found that the agreement, while acknowledging the property, did not confer any specific rights or interests in it. The court also considered the provisions of the Transfer of Land Act 1958 (Vic) and concluded that the registered proprietor, Riverview Projects, held a valid title. The court then turned to the first defendant's application under Part IX of the Property Law Act 1958, assessing the balance of convenience to determine whether the caveat should be removed. It concluded that the balance of convenience favoured Riverview Projects, as the registered proprietor, and ordered the caveat to be removed.

The court's reasoning was grounded in the principle that the registered proprietor holds the legal title to the property, subject to any caveats that have been properly entered. The cohabitation agreement was found to be insufficient to establish any interest in the property, and thus could not support the caveat. The court emphasised the importance of the registration system in land law and the need to protect the rights of registered proprietors. The orders made by the court included the removal of the caveat and the dismissal of the first defendant's application under Part IX of the Property Law Act 1958.

Orders