JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OF JUDGMENT:	23 June 2023
CASE MAY BE CITED AS:	SJM v PMD
MEDIUM NEUTRAL CITATION:	[2023] VSC 349

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REAL PROPERTY — Caveats — Application to remove caveat pursuant to s 90(3) of Transfer of Land Act 1958 (Vic) — Caveat lodged following the breakdown of the de facto relationship between the plaintiff and first defendant — Final property settlement orders made pursuant to the Family Law Act 1975 (Cth) by consent — Protracted litigation followed — Whether the caveator has a prima facie case that he has a caveatable interest in the property — Piroshenko v Grojsman (2010) 27 VR 489 and Greater Geelong City Council v Giurina [2023] VSC 49 referred to — No prima facie case where questions of law and fact have been determined by a court of competent jurisdiction — Claim to set aside previous orders for fraud weak — Balance of convenience overwhelmingly supports the removal of the caveat — Caveat removed — Litigation history favours granting an injunction to restrain the lodgement of further caveats.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Fuller	Lampe Family Lawyers
The First Defendant in person
No appearance for the second defendant

HER HONOUR:

Introduction and Background

These reasons concern an application by the plaintiff for the removal of a caveat lodged by the first defendant (‘defendant’) over a property in Hoddles Creek, Victoria (‘property’) pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’). The plaintiff also seeks orders restraining the defendant from lodging further caveats on the title to the property.

The plaintiff also made an application that the parties be referred to by pseudonyms in all court documents pursuant to s 121 of the Family Law 1975 (Cth) (‘FLA’)[1], and sought leave to file a further amended originating motion to include a compensation claim pursuant to s 118 of the TLA.
[1]Those orders have been made, and accordingly the parties’ names have been anonymised in these reasons.

The plaintiff is the sole registered proprietor of the property.

The plaintiff and the defendant were in a de-facto relationship from around 1998 or 1999. The plaintiff purchased the property in or around March or April 2003.

The parties lived at the property together until 2010, when the plaintiff moved to Western Australia to complete her graduate studies in nursing. The defendant remained living at the property, and the parties agreed that the defendant would contribute to mortgage repayments and pay for the utilities.

The parties’ relationship ended in or around April or May 2010. Following this date, the defendant remained living at the property, leaving the property temporarily when the plaintiff returned from working on Christmas Island and in Western Australia.

In 2012 the plaintiff…

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 SJM v PMD

Details

AGLC: SJM v PMD [2023] VSC 349
Case: [2023] VSC 349
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the matter of SJM v PMD, the plaintiff sought the removal of a caveat lodged by the first defendant over a property in Melbourne, following the breakdown of their de facto relationship. The case was heard in the Supreme Court of Victoria, which was tasked with determining whether the caveat should be removed under section 90(3) of the Transfer of Land Act 1958 (Vic). The court was also asked to consider whether an injunction should be granted to prevent the first defendant from lodging further caveats.

The central legal issues for the court were whether the first defendant had a prima facie case that he held a caveatable interest in the property and whether the balance of convenience favoured the removal of the caveat. The plaintiff argued that the first defendant's caveat was an abuse of process, as it was lodged despite final property settlement orders being made by consent pursuant to the Family Law Act 1975 (Cth). The court considered the protracted litigation history between the parties and whether the first defendant's claim of fraud in setting aside the previous orders was sufficiently strong.

The court found that the first defendant did not have a prima facie case for a caveatable interest as the questions of law and fact had already been determined by a competent court. The court also determined that the first defendant's claim of fraud was weak and unlikely to succeed. The balance of convenience overwhelmingly favoured the removal of the caveat, as it had been lodged in bad faith and was an abuse of process. Consequently, the court removed the caveat and granted an injunction to prevent the first defendant from lodging further caveats without the leave of the court.

Orders