Wegner v Mayberry - [2020] VSC 239

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2020 01960

TAMMI LAURELLE WEGNER (formerly MAYBERRY)	First Plaintiff
and
NICOLE ERIN BUTKIEWICZ	Second Plaintiff
v
BRADLEY DEAN MAYBERRY	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2020
DATE OF JUDGMENT:	1 May 2020 (revised 4 May 2020)
CASE MAY BE CITED AS:	Wegner & Anor v Mayberry
MEDIUM NEUTRAL CITATION:	[2020] VSC 239

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REAL PROPERTY – Caveats – Application to remove caveat under s 90(3) Transfer of Land Act 1958 (Vic) – Where defendant adduced no evidence to support interest - Where any interest of defendant had already vested in trustee in bankruptcy – Balance of convenience also favoured removal of caveat – Order for removal made – Transfer of Land Act (Vic) s 90(3) - Chan and Wong v Liu and the Registrar of Titles [2020] VSCA 28.

COSTS – Indemnity costs – Where caveat lodged for improper purpose - Where caveat lodged in disregard of known facts – Order for indemnity costs made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr W Drent	Logie-Smith Lanyon
For the Defendants	No appearance

HER HONOUR:

This is an urgent application to remove a caveat pursuant to s 90(3) of the Transfer of Land Act 1958 (TLA).

Alternatively, the application is for orders that the caveat be set aside pursuant to s 91(4) of the TLA on the basis that a caveat in respect of the same interest was previously removed by an order of this court.

Background

The first plaintiff (Ms Wegner) was married to the defendant (Mr Mayberry) on 2 May 2009 and later divorced on 9 December 2016. Together they have two children.

On 17 April 2015, Ms Wegner and the second plaintiff became the registered proprietors of two commercial office suites situated at Units 4 and 4A, 8 to 18 Whitehall Street, Footscray in the State of Victoria (more particularly described in Vol 11474 Folios 306 and 307 (the properties) as tenants in common with one of two equal undivided shares each. The purchase was funded through a bank loan secured by mortgage to the ANZ Bank.

On 5 April 2018, Ms Wegner’s ex-husband, the first defendant, lodged a caveat over the properties claiming an ‘implied resulting or constructive trust' (the first caveat). The first caveat contained an absolute prohibition and affected the interests of both plaintiffs.

By order made on 2 April 2019, Associate Justice Derham removed the first caveat and also ordered indemnity costs against Mr Mayberry (who did not appear).

On 23 July 2019, Mr Mayberry then became a bankrupt.

On 31 January 2020, Mr Mayberry lodged a subsequent caveat over the properties, (the caveat) again claiming an ‘implied resulting or constructive trust’.

On 21 February 2020, the plaintiffs’ solicitors wrote to Khiem Lam of Provey Conveyancing (the addressee for notices on the caveat) requesting…

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 Wegner v Mayberry

Details

AGLC: Wegner v Mayberry [2020] VSC 239
Case: [2020] VSC 239
Decision Date: 1 May 2020 (revised 4 May 2020)

CaseChat Overview and Summary

The plaintiff, Wegner, sought the removal of a caveat lodged by the defendant, Mayberry, over a property. The dispute was heard and determined by the Supreme Court of Victoria. The defendant lodged the caveat without a legitimate interest in the property, and despite knowing of the plaintiff's ownership, continued to assert a claim over the property. The plaintiff applied to the court to have the caveat removed under section 90(3) of the Transfer of Land Act 1958 (Vic).

The court had to determine whether the defendant had a legitimate interest in the property that would justify the maintenance of the caveat. It was also required to consider the balance of convenience in deciding whether the caveat should be removed. The court noted that the defendant had not provided any evidence to support their claim over the property and that any interest they had was already vested in a trustee in bankruptcy. The court found that the balance of convenience favoured the removal of the caveat, as the plaintiff had a superior claim to the property.

The court ordered the removal of the caveat and awarded indemnity costs to the plaintiff. The court held that the caveat was lodged for an improper purpose and in disregard of known facts, which justified the award of indemnity costs. The court found that the defendant's actions were unreasonable and oppressive, and that the plaintiff was entitled to recover their costs from the defendant.

The court's final orders included the removal of the caveat and the award of indemnity costs to the plaintiff. The court emphasised the importance of caveats being lodged only for legitimate purposes and in accordance with the law. The court warned that those who abuse the caveat process may be liable for costs.

Orders