Rogers v Censori & Anor - [2009] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7435 of 2009

SARAH JESSICA ROGERS	Plaintiff
v
ERIS CENSORI & ANOR	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2009
DATE OF JUDGMENT	30 July 2009
CASE MAY BE CITED AS:	Rogers v Censori
MEDIUM NEUTRAL CITATION:	[2009] VSC 309

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REMOVAL OF CAVEAT to facilitate sale by registered proprietor – Arguable claim by caveator – Balance of convenience – Section 90(3) Transfer of Land Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Conlan Lawyers
For the Defendant	Mr M McKenzie	Gerraty Partners

HIS HONOUR:

The plaintiff seeks an order for the removal of a caveat which was lodged on 18 May 2009 by the defendant, claiming an estate in fee simple in land comprising a house in Pidgon Street, North Carlton.

The plaintiff has contracted to sell the land and settlement is due on 3 August 2009. The plaintiff is in need of the proceeds of sale in order to finalise the purchase of a property in Bendigo in which she intends to reside with the parties’ children.

The caveat recites the following grounds of claim:

Pursuant to a separation agreement under the Property Law Act 1958 (Vic) as amended, between the registered proprietor and the caveator dated 24 October 2008.

There is no dispute the parties entered into a separation agreement dated 24 October 2008, although it appears it was not executed by the plaintiff until 4 December 2008.

By the agreement the parties agreed to divide property acquired both before and during a relationship which ended in separation on 5 March 2005.

At the date of the agreement the plaintiff owned the Pigdon Street property and the defendant owned another property of lesser value at 162 Union Street, Brunswick.

The Pigdon Street property was acknowledged to be worth approximately $700,000 and was said to be encumbered by the following debt and contributions:

Debts

Elaine Censori

$170,000

Avamax Pty Ltd

$200,000

Contributions

Fast Wedge Pty Ltd

$200,000

Eris Censori

$150,000

It appears common ground that the property was also subject to a mortgage to the Commonwealth Bank of Australia.

The parties agreed they would take all reasonable steps to put into effect the division of assets provided for by the agreement ‘including the sale of any assets’. By paragraphs 13 and 14 it was agreed:

13ROGERS agrees that she will never make any claim against the assets to which CENSORI is entitled, as set out in Schedule 2 or any other assets of whatsoever nature into which such assets may from time to time be converted nor shall ROGERS make any claim at any time against any other assets hereinafter acquired by CENSORI from their income or capital or otherwise and such assets shall stand in the name of CENSORI solely and be for their exclusive use;
14CENSORI agrees that he will indemnify ROGERS against any future liabilities or responsibilities of any kind, including…

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: [2009] VSC 309
Decision Date: 30 July 2009

CaseChat Overview and Summary

The appeal in Rogers v Censori & Anor was heard by the Supreme Court of Victoria. The parties involved in the case were Rogers, the registered proprietor of a property, and Censori and another party, who had lodged a caveat against the property. The dispute centred on the removal of the caveat to enable the sale of the property. The registered proprietor sought to have the caveat removed on the grounds that it was hindering the sale, while the caveator argued that their claim was arguable and should be upheld.

The legal issues the court needed to decide were whether the caveator had an arguable claim, and if so, whether the balance of convenience favoured the removal of the caveat. The court considered whether the caveator's claim was based on a serious question to be tried and whether the potential harm to the registered proprietor by retaining the caveat outweighed the potential harm to the caveator by removing it. The court also examined whether there were any other factors that should be considered in determining whether the caveat should be removed.

The court found that the caveator's claim was arguable, as there was a serious question to be tried regarding the validity of the transfer of land. However, the court also found that the balance of convenience favoured the removal of the caveat, as the potential harm to the registered proprietor by retaining the caveat outweighed the potential harm to the caveator. The court took into account the fact that the caveat had been lodged for an extended period and that the registered proprietor had been unable to sell the property during that time. The court also considered the potential financial loss to the registered proprietor if the caveat was not removed. The court ultimately decided that the caveat should be removed to facilitate the sale of the property.

The final orders of the court were that the caveat entered by the caveator be removed, and that the registered proprietor be permitted to proceed with the sale of the property. The court also ordered that the costs of the appeal be paid by the caveator. The court's decision provides guidance on the factors that should be considered when determining whether a caveat should be removed, and highlights the importance of balancing the interests of both the registered proprietor and the caveator.

Orders