White v Guyatt

[2010] VSC 141

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1123 of 2010

WARREN BRIAN WHITE as Trustee of the estate of Marjorie Frances Olle (deceased)	Plaintiff
- and -
NANETTE LISLES GUYATT	First Defendant
- and -
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2010
DATE OF RULING:	31 March 2010
CASE MAY BE CITED AS:	White v Guyatt and Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 141

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PROPERTY LAW - Order sought pursuant to s 90(3) of the Transfer of Land Act 1958 for removal of a caveat lodged on title of a residential property within deceased estate – no appearance by the caveator - onus is on the caveator to show that a claim to an equitable interest raises a serious question to be tried – caveator’s interest (if any) is subject to that of the plaintiff - notice to the caveator was appropriately served – balance of convenience  also favours removal of the caveat.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. M. Dinelli	Bridge Drennan Legal
For the Defendant	No appearance

HIS HONOUR:

1. In this matter the plaintiff seeks an order pursuant to s 90(3) of the Transfer of Land Act 1958 that the second defendant remove a caveat lodged by the first defendant on title relating to a residential property in Karma Avenue, East Malvern (‘the property’). 

1. The first defendant does not appear before the Court today and has failed to appear in circumstances where I am satisfied that she has been served in accordance with orders made by Daly AsJ regarding the appropriate mode of service.

1. It is apparent from the affidavit of the plaintiff sworn 3 March 2010 that he has been appointed trustee of the estate of Marjorie Frances Olle (deceased) following an application by the City of Stonnington in the Federal Magistrates' Court of Australia under Part 11 of the Bankruptcy Act 1966 (Cth).

1. The will of the deceased left the residue of her estate, after the payment of debts and expenses, in three equal shares to her children, one of whom is the first defendant.  The first defendant has caused the caveat to be lodged with respect to the property claiming a one‑third equitable interest in that property.

1. The application is uncontested and in my view the authorities make clear that it is for the caveator to satisfy the Court on evidence that the claim to an interest made by the caveat raises a serious question to be tried.

1. Putting the question of onus to one side, it is apparent that any interest the first defendant may have in the property is however subject to that of the plaintiff who is entitled to get in the assets of the deceased estate, in circumstances where he has no other capacity to pay debts due by the estate.

1. I am satisfied that the evidence does not disclose a serious question to be tried in respect of the caveat and I am further satisfied that in any event the balance of convenience favours the removal of the caveat and the orderly administration of the estate. 

1. Accordingly I propose to make the orders sought by counsel in the form submitted save I will add an order that the order be signed by the judge pursuant to rule 60.4 of the Rules of the Supreme Court.