Toh v Wu - [2018] VSC 36

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROPERTY LIST

S CI 2018 00102

KENNY CHI FOONG TOH	First Plaintiff
WEY YIN CHOO	Second Plaintiff
- and -
NIKKI WU	First Defendant
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Submissions filed by the parties on 1 February 2018 and 5 February 2018
DATE OF JUDGMENT:	12 February 2018
CASE MAY BE CITED AS:	Toh & anor v Wu & anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 36

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COSTS – Application for removal of caveat pursuant to s 90(3) of Transfer of Land Act 1958 (Vic) – Order for removal of caveat in favour of plaintiffs owing to balance of convenience being overwhelmingly in favour of removal – No consideration of whether there was a serious question to be tried – Whether costs follow the event in circumstances where successful plaintiff had failed to notify caveator of intention to apply for removal of caveat when caveator represented by solicitors – Application made seven weeks after caveat lodged and seven business days prior to date for property settlement – Plaintiffs’ solicitors on notice of caveat since date of lodgement – Plaintiffs’ failure to attempt to procure a withdrawal of the caveat prior to making application – Failure to comply with overarching obligations under Civil Procedure Act 2010 (Vic) – Each party ordered to bear its own costs of the proceeding

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Charnley	GTC Lawyers
For the First Defendant	Ms C Hoe, solicitor	Monica Shamon Lawyers
No appearance for the Second Defendant

HER HONOUR:

On 15 January 2018, the plaintiffs, the registered proprietors of a property at 3A Dover Street, Albanvale (‘property) issued a proceeding pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (‘TLA’) seeking the removal of a caveat lodged on 28 November 2017 by the first defendant (the sister‑in‑law of the plaintiffs). The claim as stated in the caveat was expressed as ‘court order under the Family Law Act 1975’. The proceeding was listed with some urgency, given that settlement of the sale of the property was due on 29 January 2018. The proceeding was listed for hearing on 18 January 2018. The solicitors for the first defendant were served with the court documents on the afternoon of 16 January 2018, and at the hearing on 18 January 2018 applied for an adjournment of the hearing.

On 18 January 2018 I refused the application for an adjournment, and made orders removing the caveat over the property. While there was no determination of the question of whether there was a serious question to be tried as to whether the first defendant had a caveatable interest in the property, having reviewed the affidavit evidence and submissions prior to the hearing, I formed the view that the balance of convenience overwhelmingly favoured the removal of the caveat, particularly given that settlement of the sale of the property had…

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 Toh v Wu

Details

AGLC: Toh v Wu [2018] VSC 36
Case: [2018] VSC 36
Decision Date: 12 February 2018

CaseChat Overview and Summary

In the matter of Toh v Wu, the plaintiffs sought an order for the removal of a caveat lodged by the defendants over a property. The case was heard and determined in the Supreme Court of Victoria. The plaintiffs, who were purchasers of the property, sought the removal of the caveat pursuant to section 90(3) of the Transfer of Land Act 1958 (Vic). The defendants, who held a mortgage over the property, lodged the caveat to protect their interests. The central legal issue before the court was whether the balance of convenience favoured the removal of the caveat. The court did not consider whether there was a serious question to be tried, focusing instead on the balance of convenience.

The court considered the overarching obligations under the Civil Procedure Act 2010 (Vic) and the conduct of the parties in reaching its decision. The plaintiffs had failed to notify the defendants of their intention to apply for the removal of the caveat, despite the defendants being represented by solicitors. The application was made seven weeks after the caveat was lodged and just seven business days before the property settlement date. The plaintiffs’ solicitors had been aware of the caveat since its lodgement but did not attempt to procure its withdrawal before applying for its removal. The court found that the plaintiffs’ failure to comply with the overarching obligations and their conduct in making the application contributed to the overall costs incurred by both parties. The court held that neither party should be awarded costs as each party was responsible for their own costs of the proceeding.

Orders