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)

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.

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."

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

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".

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.

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.

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.

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.

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…

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 Vo v Nguyen

Details

AGLC: Vo v Nguyen [2014] NSWSC 1622
Case: [2014] NSWSC 1622
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the matter of Vo v Nguyen, the case was heard before the Supreme Court of Victoria. The dispute between the parties revolved around the validity of a caveat lodged over Torrens title land. The plaintiff, Vo, sought to establish a caveatable interest in the property and consequently, the defendant, Nguyen, applied for the caveat to be removed on the grounds that Vo's evidence was insufficient.

The central legal issue before the court was whether Vo had provided sufficient evidence to substantiate a claim to a caveatable interest in the property. This determination hinged on the interpretation of relevant statutory provisions and the application of established legal principles concerning the nature of interests that may be protected by a caveat under the Torrens system. The court was tasked with assessing the sufficiency of the evidence presented by Vo to support their claim of a caveatable interest.

The court found that the evidence provided by Vo was insufficient to establish a caveatable interest. It was determined that Vo had not met the legal requirements to substantiate their claim, as the evidence did not adequately demonstrate a right, title, or interest in the property that warranted protection by a caveat. The court's reasoning emphasised the need for clear and compelling evidence to support the assertion of a caveatable interest, and concluded that Vo's evidence did not meet this threshold. Consequently, the court ordered the caveat to be removed.

In summary, the court dismissed Vo's application to extend the caveat and ordered it to be removed. This decision underscored the importance of providing robust and convincing evidence to substantiate claims of a caveatable interest, and highlighted the stringent requirements that must be met under the Torrens system.

Orders