RNC Nominees Pty Ltd v Trotter - [2025] VSC 207

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…

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: [2025] VSC 207
Decision Date: 16 April 2025 (First revision 29 April 2025)

CaseChat Overview and Summary

In the case of RNC Nominees Pty Ltd v Trotter, the applicant sought to remove caveats lodged by the respondents over certain land. The dispute arose following the sale of the property by the registered mortgagee. The respondents claimed caveatable interests through either a joint endeavour or a common intention constructive trust. The matter was heard in the Supreme Court of Victoria.

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.

Orders