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Walters v Perton (No 2)

Walters v Perton (No 2)

Case [2019] VSC 542 16 August 2019

Real Property

Costs

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS EQUITY AND PROBATE LIST

S ECI 2018 00225

IN THE MATTER of the Will and Estate of DONALD GRAEME WARRING,
deceased

- and –

IN THE MATTER of s 34 of the Administration and Probate Act 1958 (Vic), and
S 48 of the Trustee Act 1958 (Vic)

BETWEEN:

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as executrix of the will and trustee of the estate of DONALD GRAEME WARRING, deceased)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2019
DATE OF JUDGMENT:	16 August 2019
CASE MAY BE CITED AS:	Walters v Perton (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 542

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REAL PROPERTY – Removal of caveat – nature of application to remove caveat under s.90(3) of the Transfer of Land Act 1958 (Vic) – whether application can be made by defendant by summons in an existing proceeding – Shaw v Yarranova Pty Ltd & Anor [2005] VSC 94.

PRACTICE AND PROCEDURE – Whether since the introduction of the Civil Procedure Act 2010 (Vic) the Court has power to allow an application for removal of a caveat by summons in an existing proceeding – Civil Procedure Act 2010 (Vic) s 7, 8 and 9.

COSTS – Where application for removal of a caveat by defendant by summons in an existing proceeding not pursued – Where ultimate determination of the plaintiff’s claims in the proceeding will determine whether the plaintiff has a caveatable interest – Whether defendant should pay the plaintiff’s costs of the summons.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Garratt QC and Mr R Miller of Counsel	Nedovic Lawyers
For the Defendant	Mr P Bick QC and Mr D Farrands of Counsel for the defendant	Darrer Muir Fleiter

HIS HONOUR:

Introduction

These reasons deal with the costs of an application made by the defendant by summons filed on 20 March 2019 for the removal of a caveat lodged by the plaintiff over the property at 17 Odenwald Road, Eaglemont, Victoria (Eaglemont property).[1] The application was made pursuant to s 90(3) of the Transfer of Land Act 1958 (Vic) (TLA) by summons filed 20 March 2019 (caveat removal application).
[1]The land more particularly described in Certificate Title Vol 10515 Folio 218.

The background to this proceeding has been described in previously published reasons for decision concerning an application by the defendant to set aside subpoenas issued by the Court at the request of the plaintiff: see Walters v Perton;[2] and in reasons for orders made in a related proceeding: see Perton v Walters.[3] I will not repeat them in these reasons.
[2][2019] VSC 356.
[3][2018] VSC 445.

Caveat removal application

The plaintiff claims in this proceeding, amongst other things, that she is the sole beneficial owner of the Eaglemont property, alternatively…

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 Walters v Perton (No 2)

Details

AGLC: Walters v Perton (No 2) [2019] VSC 542
Case: [2019] VSC 542
Decision Date: 16 August 2019

CaseChat Overview and Summary

In Walters v Perton (No 2), the parties were engaged in a dispute over the removal of a caveat under section 90(3) of the Transfer of Land Act 1958 (Vic). The matter was before the court to decide whether the defendant could make an application to remove the caveat by summons within an existing proceeding, and if so, whether the defendant should bear the costs of the summons if the application was not pursued. The case referenced Shaw v Yarranova Pty Ltd & Anor [2005] VSC 94, which was relevant to the interpretation of the process for removing a caveat. The court had to consider the implications of the Civil Procedure Act 2010 (Vic), specifically sections 7, 8, and 9, to determine the current procedural framework for such applications.

The primary legal issues before the court were whether the defendant had the right to apply for the removal of the caveat by summons in an existing proceeding, and if this procedural approach was still valid following the introduction of the Civil Procedure Act 2010 (Vic). The court also needed to address the issue of costs, considering whether the defendant should be responsible for the plaintiff's costs of the summons if the application was not pursued, given that the ultimate determination of the plaintiff’s claims would decide whether they had a caveatable interest. The court's analysis involved interpreting the relevant statutory provisions and understanding how they interact with the procedural rules for handling caveats.

The court found that the defendant could indeed make an application to remove the caveat by summons in an existing proceeding, aligning with the interpretation set out in Shaw v Yarranova Pty Ltd & Anor [2005] VSC 94. However, it was noted that the introduction of the Civil Procedure Act 2010 (Vic) did not fundamentally alter this procedural ability. Regarding the costs, the court held that if the defendant chose not to pursue the application for removal of the caveat, they should bear the plaintiff’s costs of the summons. This decision was made because the resolution of the plaintiff's claims in the proceeding would determine whether the plaintiff had a caveatable interest, and the defendant's decision not to pursue the application effectively left the plaintiff without a means to challenge the validity of the caveat.

The court ordered that the defendant should pay the plaintiff's costs of the summons. This outcome was based on the principle that the defendant's decision not to pursue the application for removal of the caveat left the plaintiff without a procedural avenue to challenge the validity of the caveat. The court's ruling ensured that the defendant would bear the costs associated with the summons, reflecting the implications of their decision in the context of the ongoing litigation.

Orders