Toh v Wu

In the matter of Toh v Wu, the plaintiffs sought the removal of a caveat lodged by the defendants, asserting that the balance of convenience heavily favoured their removal. The case was heard in the Supreme Court of Victoria. The plaintiffs argued that they were entitled to the removal of the caveat under section 90(3) of the Transfer of Land Act 1958 (Vic). They contended that the balance of convenience was overwhelmingly in their favour, which justified the removal of the caveat, despite the absence of any serious consideration of whether there was a substantial question to be tried. The defendants contested the application on the basis that the plaintiffs had failed to comply with certain procedural requirements, including notifying the defendants of their intention to apply for the removal of the caveat.

The court had to decide whether the balance of convenience sufficiently justified the removal of the caveat and whether the plaintiffs' failure to notify the defendants of their intention to apply for the removal, coupled with their failure to attempt to procure a withdrawal of the caveat prior to making the application, warranted the imposition of costs. Furthermore, the court needed to assess whether the plaintiffs' conduct aligned with the overarching obligations under the Civil Procedure Act 2010 (Vic). The court found that the balance of convenience did indeed favour the removal of the caveat, but it also found that the plaintiffs' failure to comply with procedural requirements was significant. The court concluded that both parties were responsible for their own costs due to the plaintiffs' failure to adhere to the procedural obligations.

The court ordered that each party bear their own costs of the proceeding, reflecting the plaintiffs' procedural failings. This decision underscored the importance of adhering to procedural obligations, even in cases where the substantive outcome might otherwise seem favourable. The court's ruling highlighted that failure to notify the caveator of the intention to apply for the removal of a caveat, particularly when the caveator is represented by solicitors, can have significant implications, including the allocation of costs.