| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
PRACTICE COURT
S ECI 2025 01663
| RNC NOMINEES PTY LTD (ACN 602 126 287) AS TRUSTEE FOR THE AGRIMAC FUND AND RNC NOMINEES PTY LTD (ACN 602 126 287) AS TRUSTEE FOR THE ROADNIGHT CAPITAL PRIVATE DEBT FUND | Plaintiff |
| v | |
| LORNA HEATHER TROTTER | First Defendant |
| THE REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | Gray J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2025 |
DATE OF JUDGMENT: | 16 April 2025 (First revision 29 April 2025) |
CASE MAY BE CITED AS: | RNC Nominees Pty Ltd v Trotter |
MEDIUM NEUTRAL CITATION: | [2025] VSC 207 (First revision 29 April 2025) |
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CAVEATS — Application to remove caveats — Sale of land by registered mortgagee —Caveatable interests claimed through either joint endeavour or common intention constructive trust — Prima facie case — Balance of convenience — Transfer of Land Act 1958 s 90(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Wangmann | Mills Oakley |
| For the First Defendant | Ms AR Wilson | JCL Legal |
HIS HONOUR:
Introduction
The plaintiff (RNC Nominees) has applied under s 90(3) of the Transfer of Land Act 1958 for the removal of caveats lodged by the first defendant (Mrs Trotter) over three properties which I will refer to in this ruling as Hemphills, Woods, and South-East.
The courts have developed a test for deciding such applications. In order for Mrs Trotter to successfully resist RNC Nominees’ application, she must satisfy a two‑stage test. Firstly, she must satisfy the Court that there is a prima facie case (previously a ‘serious question to be tried’) that she has the estate or interest in the property which she claims that she has that interest, or ‘a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat’.[1] Secondly, she must satisfy the Court that the balance of convenience falls in favour of the caveat remaining until trial. The discretion under s 90(3) is broad and, strictly speaking, is not restricted by this test.[2] Nevertheless, I propose to follow it here.
[1]Piroshenko v Grojsman (2010) 27 VR 489, 491 [7], 494 [22] (Warren CJ); [2010] VSC 240 (‘Piroshenko’); CFHW Pty Ltd v Burness [2014] VSC 451 [17], [20] (Warren CJ); approved in Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, [35], [37] (Santamaria, Ferguson and McLeish JJA).
[2]Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126, [36] (Santamaria, Ferguson and McLeish JJA).
The first limb of the test will be met if Mrs Trotter establishes that the probability on the evidence of her being found to have the asserted interest is sufficient to justify maintenance of the caveat over the properties.[3] This ‘cannot but introduce some consideration of the balance of convenience into the assessment of the serious question to be tried’.[4]
[3]Piroshenko 493 [18], 494 [22].
[4]Ibid 494 [19].
In determining whether this test is met, I will…
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- Case
- [2025] VSC 207
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the respondents had established a prima facie case for their claimed interests and whether the balance of convenience favoured the removal of the caveats. The court had to consider the statutory provisions of the Transfer of Land Act 1958, specifically section 90(3), which governs the removal of caveats.
The court found that the respondents had not established a prima facie case for their claimed interests. The evidence did not support the existence of a joint endeavour or a common intention constructive trust. Given the lack of a substantial case, the balance of convenience weighed in favour of the applicant. Consequently, the court ordered the removal of the caveats, allowing the sale of the property to proceed.
The final orders included the removal of the caveats lodged by the respondents, permitting the applicant to complete the sale of the property. The court's decision was based on the absence of a substantial case for the respondents' claims and the balance of convenience favouring the applicant.
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