Schmidt v 28 Myola Street Pty Ltd

In Schmidt v 28 Myola Street Pty Ltd, the dispute before the court concerned the validity of a caveat lodged by the respondent, 28 Myola Street Pty Ltd, over a unit in a unit-trust. The applicants, Schmidt, sought the removal of this caveat under section 90(3) of the Transfer of Land Act 1958. The applicants argued that the interest claimed in the caveat was too broad and did not constitute a sufficient interest to justify the maintenance of the caveat. The court had to determine whether the interest claimed by the respondent in the unit-trust was capable of supporting a caveat and whether the respondent had discharged the onus of justifying the maintenance of the caveat.

The legal issues before the court included the nature of the interest a unit-holder in a unit trust possesses in the trust property and whether such an interest could support a caveat. Additionally, the court had to consider the nature of the discretion under section 90(3) of the Transfer of Land Act 1958 and whether the respondent had demonstrated that a serious question was to be tried and that the balance of convenience favoured the removal of the caveat. The court's analysis involved examining the precedent set in Costa & Duppe Properties Pty Ltd v Duppe & Ors, which established that a unit-holder in a unit trust has an interest in the trust property, and considering whether the interest claimed in the caveat was stated too broadly.

The court found that a unit-holder in a unit trust does indeed have an interest in the trust property, following the decision in Costa & Duppe Properties Pty Ltd v Duppe & Ors. However, the court held that the interest claimed in the caveat was stated too broadly and did not constitute a sufficient interest to justify the maintenance of the caveat. The court emphasised that the interest claimed must be specific and not overly expansive. The court further found that the respondent had not discharged the onus of justifying the maintenance of the caveat as it failed to demonstrate that a serious question was to be tried and that the balance of convenience fell in favour of removing the caveat. The court concluded that the caveat should be removed.

The final orders of the court were that the caveat lodged by 28 Myola Street Pty Ltd over the unit in question was removed. The court ordered that the caveat be expunged from the register of titles, thereby allowing the applicants to proceed with their intended transactions without the impediment of the caveat.