Vo v Nguyen

[2014] NSWSC 1622

Supreme Court

New South Wales

Medium Neutral Citation:	Vo v Nguyen [2014] NSWSC 1622
Hearing dates:	14 November 2014
Decision date:	14 November 2014
Jurisdiction:	Equity Division - Duty List
Before:	Stevenson J
Decision:	Summons dismissed with costs
Catchwords:	REAL PROPERTY - Torrens title - caveats - extension of caveat - evidence not sufficient to establish caveatable interest claimed
Legislation Cited:	Family Law Act 1975 (Cth) Property (Relationships) Act 1984 Real Property Act 1900
Cases Cited:	Bethian Pty Ltd v Green (1977) 3 Fam LR 11 579 Ryan v Kalocsay [2009] NSWSC 1009
Texts Cited:	Peter Butt, Land Law, (6th ed 2010, Lawbook Co)
Category:	Principal judgment
Parties:	Kim Anh Thi Vo (Plaintiff) Davis Nguyen (Defendant)
Representation:	Counsel: C Jackson (Defendant) Solicitors: Vo Lawyers (Plaintiff)
File Number(s):	SC 2014/332605

EX TEMPORE Judgment (REVISED)

1. On 2 October 2014, the plaintiff, Ms Vo, lodged a caveat on the title of a property at Ashcroft which is owned by the defendant, Mr Nguyen. The property is the land contained in Folio Identifier 605/216020.

1. The estate or interest claimed is as follows:

"The Caveator is a defacto [sic] partner of the registered owner and has [sic] equitable interest in the property helping [sic] to pay off the mortgage and the households [sic] expenses."

1. On 27 October 2014, Mr Nguyen served on Ms Vo a lapsing notice under s 74J of the Real Property Act 1900.

1. By summons filed in Court before me as Duty Judge on 11 November 2014 Ms Vo seeks, amongst other things, an order pursuant to s 74K of the Real Property Act extending the caveat or, alternatively, leave under s 74O of the Real Property Act to lodge a "further caveat".

1. On 11 November 2014, Mr Vo, solicitor, appeared for Ms Vo and I granted leave to serve a summons with short notice and made it returnable before me today. Today, Mr Vo appears for Ms Vo and Mr Jackson appears for Mr Nguyen.

1. I am not prepared to make either of the orders that Ms Vo has sought because I am not satisfied that Ms Vo has established she has a caveatable interest in the land.

1. There is, in any event, a problem with the form of the caveat. It is necessary that a caveat state clearly what legal or equitable interest the caveator has in the land. The particulars in the caveat, which I have set out above, do no more than assert "an equitable interest" said to arise from the making of payments under the mortgage of the property and contribution to household expenses. The precise nature of the "equitable interest" claimed is not disclosed.

1. In any event, Ms Vo's evidence, as adduced, does not justify the facts asserted in the caveat as giving rise to the "equitable interest" claimed.

1. In her affidavit affirmed in support of the summons, Ms Vo states that:

(a)   she had been in a de facto relationship with Mr Nguyen for some five years;

(b)   Mr Nguyen is the father of her four year old son;

(c)   she and Mr Nguyen have separated and Mr Nguyen has "threatened to kick me and my child out of the house"; and

(d)   "If the caveat lapse [sic] the Respondent will sell the house and kick me out without providing me with any monetary sum for maintenance and child support. I cannot afford to find a new place at the moment suitable for my 4 children. If the caveat lapse [sic], I am in fear that the Respondent will put pressure on me to move and not provide me with any monetary sum in which I am entitled to under the Family Law Act 1975."

1. Ms Vo has annexed to her affidavit an application she made on 10 November 2014 to the Federal Circuit Court seeking a property settlement and other orders under the Family Law Act1975 (Cth). She also annexed to her affidavit in these proceedings an affidavit she affirmed on 10 November 2014 in the Federal Circuit Court proceedings.

1. Although, in the caveat, Mr Vo claims an interest in the property arising from "helping to paying [sic] off the mortgage and the household expenses", she does not mention this in her affidavit sworn in these proceedings. Nor does Ms Vo say anything to this effect in the affidavit affirmed in the Federal Circuit Court proceedings. Rather, in the Federal Court proceedings she stated:

"17. The Respondent Father purchased the property at ... Ashcroft...

18. I moved into the property at...Ashcroft... with my 4 children towards the end of October 2011.

19. During our relationship the Respondent Father only made contributions to the mortgage. I paid for all household expenses and expenses relating to the care of our son Solomon.

20. At this stage I am not aware of the amount still owed to the mortgage [sic]. However, the Respondent Father pays around $2,000 a month for the mortgage".

1. Thus, in the Federal Circuit Court proceedings Ms Vo asserts that it was Mr Nguyen who has made the mortgage payments. Although the caveat refers to "helping to pay off the mortgage", Mr Vo does not in these, or the Federal Circuit Court proceedings assert, let alone prove, that she has "helped pay off the mortgage".

1. I pointed those matters out in argument with Mr Vo and asked him whether he had any further application to make. He asked that I adjourn the proceedings for a short time so he could consider his position. When the matter resumed, he simply said he had nothing more to say.

1. Section 74F of the Real Property Act makes clear that a caveat may only be lodged by a person claiming to have a "legal or equitable estate or interest in land".

1. Ms Vo has failed to adduce evidence showing she has any such interest in the land.

1. A caveat "cannot be lodged to protect what is merely a claim to exercise a cause of action": Peter Butt, Land Law, (6th ed 2010, Lawbook Co) at [20.28]. Thus a claim to "an estate or interest under the Family Law Act" is not itself a caveatable interest: Bethian Pty Ltd v Green (1977) 3 Fam LR 11 579 at 11 583. Nor, without more, is a claim to an estate or interest under the Property (Relationships) Act 1984: Ryan v Kalocsay [2009] NSWSC 1009.

1. The interest that Ms Vo claims in the land is, based on the evidence before me, no more than an asserted entitlement to relief under the Family Law Act.

1. For those reasons, I order that the summons of 11 November 2014 be dismissed with costs.

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Decision last updated: 17 November 2014