Seaborne v Lester - [2022] VSC 52

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2021 03548

VELSHA ZENA SEABORNE	Plaintiff
v
KAREN BEATRICE LESTER	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	17 February 2022
CASE MAY BE CITED AS:	Seaborne v Lester & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 52

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REAL PROPERTY – Caveat – Removal application – Onus on caveator – Caveatable interest – Serious question to be tried – Prime facie case test – Balance of convenience – Transfer of Land Act1958 (Vic), ss 90(1), 118 - Piroshenko v Grojsman & Ors [2010] VSC 240, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P H Caillard of counsel	G&M Lawyers
For the First Defendant	Mr P Lennon, solicitor	Lennon Lawyers

HIS HONOUR:

Introduction

The issue in this proceeding is whether a caveat lodged by the first defendant on the title of a unit owned by the plaintiff should be removed.

The plaintiff, Ms Velsha Seaborne, is the de facto partner of Mr Andrew Lester. She is the registered proprietor of the property known as Unit 5, 22 Abinger Street, Richmond, Victoria, being the land more particularly described as Certificate of Title Volume 10308 Folio 139 (Property). She purchased the Property from her partner, Mr Lester (Vendor) on 11 September 2020.

The first defendant, Ms Karen Lester, is the former wife of the Vendor. On 14 July 2021, some 10 months after Ms Seaborne had purchased the Property from the Vendor, Ms Lester lodged a caveat with dealing number AU576904S on the Property (caveat). The grounds of claim stated in the caveat are ‘implied, resulting or constructive trust’.

For the reasons that follow, I am not satisfied that the first defendant has established that there is a serious question to be tried that an implied, resulting or constructive trust exists in her favour over the Property. Accordingly, I will order removal of the caveat.

Background

The first defendant and the Vendor have now divorced. In April 2018, the first defendant issued proceedings in the Family Court of Australia (Family Court) for property orders pursuant to s 79A of the Family Law Act1975 (Cth) and final orders were made by consent on 14 March 2019 (March Orders).

The March Orders contemplated that the Vendor would pay the first defendant the sum of $2,625,000.

The Vendor failed to comply with the March Orders, prompting the first defendant to issue enforcement proceedings in the Family Court. On 10 June 2020, orders were made by the Family Court by consent (June Orders) which provided:

(a) the Vendor will pay the first defendant the sum of $1,063,000 by way of the following instalments:

(i) an initial payment of $750,000 within 90 days (first payment); and

(ii) a second payment of $313,000 within 90 days of…

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.

Continue reading Seaborne v Lester

Details

AGLC: Seaborne v Lester [2022] VSC 52
Case: [2022] VSC 52
Decision Date: 17 February 2022

CaseChat Overview and Summary

Seaborne v Lester involved a dispute over a property in Melbourne, Victoria. The respondent, Lester, had lodged a caveat over the property in question, preventing the transfer of title. The applicant, Seaborne, sought the removal of the caveat. The matter was heard in the Supreme Court of Victoria. The legal issues before the court centred on the onus of proof on the caveator to justify the lodging of a caveat, the requirement of a caveatable interest, and whether a serious question to be tried was made out. Additionally, the court needed to assess the balance of convenience and consider relevant statutes and precedents.

The court examined the statutory framework provided by the Transfer of Land Act 1958 (Vic), specifically sections 90(1) and 118. It also considered the case of Piroshenko v Grojsman & Ors [2010] VSC 240, which was pertinent to the principles of serious questions to be tried and the burden of proof on the caveator. The court held that the onus was on the caveator to establish a serious question to be tried, which could be satisfied if there was a prima facie case. Furthermore, the balance of convenience test was applied to determine whether the caveat should be maintained. The court found that the caveator had not discharged the required onus, and the balance of convenience favoured the removal of the caveat.

In light of these findings, the court granted the application for the removal of the caveat. The respondent's arguments were insufficient to justify the lodging of a caveat, and the balance of convenience favoured the applicant. The court ordered that the caveat be removed and the transfer of title proceed as per the applicant's request. The decision underscored the importance of the onus of proof on the caveator and the need for a clear demonstration of a serious question to be tried before a caveat can be sustained.

Orders