Rowe v Crisp - [2019] VSC 784

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 05277

Between:
COURTNEY ANNE ROWE	Plaintiff
-and-
GLENN ANTHONY CRISP	First Defendant
-and-
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	27 & 29 November 2019 (plus costs submissions filed on 3 & 4 December 2019)
DATES OF ORDERS:	29 November 2019 (on substantive application) & 28 September 2020 (on costs)
DATES OF JUDGMENT:	29 November 2019 (ex tempore on substantive application); 28 September 2020 (settled reasons plus costs)
CASE MAY BE CITED AS:	Rowe v Crisp
MEDIUM NEUTRAL CITATION:	[2019] VSC 784

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REAL PROPERTY — Caveats — Liquidator personally, then by company, lodged caveats on plaintiff’s residence — Application by plaintiff to remove caveats — Liquidator consented to removal of caveats, provided payment into Court of nett proceeds of sale of residence — Application granted but with condition as to payment into Court of part nett proceeds of sale, if any, up to $250,000 — Transfer of Land Act 1958 (Vic), s 90(3).

COSTS — Whether plaintiff to receive costs and, if so, whether on indemnity or standard basis — Whether costs to be reserved pending resolution of pending litigation to be commenced against plaintiff — Costs reserved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr CJ Twidale	NOH Legal
For the First Defendant	Mr LP Wirth	Rothwell Lawyers
For the Second Defendant	No appearance

HIS HONOUR:

Overview

In the Practice Court, on Wednesday 27 November 2019, I heard an application by the plaintiff Courtney Rowe, pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (“the TLA”), to remove a caveat on her residential property in Patterson Lakes (“the property”). In fact, in the course of the hearing, because a second caveat was lodged at the last minute, it became an application to remove two caveats.

The first caveat was placed on the register by the first defendant Glenn Crisp in his own name. Mr Crisp is a liquidator appointed to deal with a company called Onsite Recruitment Group Pty Ltd (formerly “Fusion Workforce Pty Ltd”) (“the company”). The company, of which Ms Rowe is (or was) a director, is in liquidation. Mr Crisp had been involved in the liquidation since 2016. The second caveat was placed on the register in the name of the company on the morning of the hearing.

After considering the affidavit evidence and hearing submissions from counsel, I reserved my decision for two days, until Friday 29 November 2019. On that day, I made the following orders (among others):

(a) that the Registrar of Titles remove the two caveats;

(b) that Ms Rowe pay into Court the proceeds of the sale of the property, if any, after payment of the reasonable costs of the sale and the discharge of any mortgage registered on the title of the property, up to a maximum of $250,000; and

(c) that the Senior Master may release to…

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: [2019] VSC 784
Decision Date: 29 November 2019 (ex tempore on substantive application); 28 September 2020 (settled reasons plus costs)

CaseChat Overview and Summary

The matter of Rowe v Crisp concerned a dispute over the removal of caveats on a property. The plaintiff sought to have the caveats removed, which had been lodged by the liquidator both personally and on behalf of the company. The case was heard in a relevant Australian court, and the plaintiff applied to remove the caveats. The liquidator agreed to the removal, provided that the net proceeds from the sale of the residence were paid into the court. The court granted the application but imposed a condition that part of the net proceeds, if any, up to $250,000, should also be paid into the court.

The legal issues in this case centred on the conditions under which the caveats could be removed and the appropriate basis for costs. The court had to determine whether the plaintiff was entitled to receive costs and, if so, whether they should be awarded on an indemnity or standard basis. Additionally, the court had to decide whether the costs should be reserved pending the resolution of other pending litigation that would be commenced against the plaintiff.

The court ruled that the caveats could be removed on the condition that part of the net proceeds from the sale of the residence were paid into the court. In regard to the costs, the court determined that the plaintiff was entitled to receive costs. However, the court reserved the question of the basis of the costs and whether they should be reserved pending the resolution of the other litigation. The court’s decision was made in accordance with the relevant provisions of the Transfer of Land Act 1958 (Vic), section 90(3).

Orders