Young v Young

[2011] VSC 188

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

No. 1743 of 2011

IN THE MATTER OF an application pursuant to s 90(3) of the Transfer of Land Act

MICHAEL JOHN YOUNG

Plaintiff

v

DONNA LOUISE YOUNG
and
REGISTRAR OF TITLES

First Defendant

Second Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2011
DATE OF JUDGMENT:	5 May 2011
CASE MAY BE CITED AS:	Young v Young
MEDIUM NEUTRAL CITATION:	[2011] VSC 188

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PROPERTY – Transfer of Land Act 1958 – application to remove caveat – constructive trust – whether caveatable interest – whether caveat defective – whether caveator met onus of establishing serious claim to be tried - balance of convenience – caveat removed on conditions.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Nichol	Chembri & Co
For the Defendant	In person

HIS HONOUR:

INTRODUCTION

1. By an Originating Motion dated 12 April 2011, Mr Michael Young applies under s 90(3) of the Transfer of Land Act 1958 seeking an order that his wife Mrs Donna Young withdraw and remove a caveat over the land registered in his name contained in Certificate of Title Volume 09169, folio 960, being the property at 9 Sheringham Drive, Werribee.

1. Mrs Young’s caveat is dated 13 January 2011.  The estate or interest claimed is “an estate in fee simple”.  The grounds of the claim are “whereby the registered proprietor holds his/her interest as trustee for the caveator pursuant to a constructive trust”.

1. The application to remove the caveat is made under s 90(3) of the Transfer of Land Act.  That provides:

“(3)  Any person who is adversely affected by any such caveat may bring proceedings in a court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit.”

THE EVIDENCE

1. Mr Young’s application is supported by his affidavit of 24 April.  He deposes that Mrs Young and he were in a de facto relationship from 1985 to 2002.  He says that following their separation in 2002, they settled the financial matters between them pursuant to a deed of agreement and release.  That document is dated 6 January 2003.

1. Mr Young says he recommenced his relationship with Mrs Young a short time after executing the deed of agreement and release, and that he and Mrs Young were subsequently married in Perth, Western Australia, on 6 June 2003.  He says they separated on 25 December 2008 and have lived separately and apart ever since.

1. Mr Young says that on 13 August 2009, he purchased the property at 9 Sheringham Drive, Werribee for $260,000.  He says that in order to pay the deposit for the purchase of the property, he borrowed $26,000 from his parents.  He says the loan amount was paid to him by way of a cash payment of $6,000 on 23 February 2009 and two electronic transfers to his Bankwest account on 4 May 2009 of $5,000 and…