Blog 51. Promise to make will in favour of caveator – Whether creating interest in land – But constructive trust based on proprietary estoppel.

Goldberg v Campbell and Shaw & Anor [2021] VSC 647 (8 October 2021), Matthews AsJ.  is the third round in the legal bout between Mr Mathers and the late Mr McColley.  The first two rounds were at VCAT under Part IV of the Property Law Act (ie co-ownership disputes): [2017] VCAT 1529, Mathers v McColley [2019] VCAT 1230.  See generally on Co-ownership Disputes the author’s paper on Foley’s site in June 2020.  The facts were –

  • The second defendant (Mathers) and Alexander McColley were registered proprietors as tenants in common in equal shares of a residential property.  Mathers deposed that they had on 29 March 2005 entered into a deed of arrangement whereby McColley could live there rent-free for life, or until he permanently vacated the property, on the proviso that he execute a will devising his share in the property to Mathers.
  • McColley lived there until August 2016 when he went into a nursing home.  He never made the contemplated will.
  • On 10 March 2017 Mathers caveated claiming a freehold estate on the grounds of an agreement with McColley dated 5 August 2016.
  • McColley died in 2019 leaving a will made in 2008.  The plaintiff, who was his executor and beneficiary, obtained probate of this will.  This half interest was the main asset of the estate.  In 2021 McColley’s daughter commenced a proceeding under Part IV of the Administration and Probate Act against the estate for testator’s family maintenance.

The plaintiff sought orders under s. 90(3) of the Transfer of Land Act for removal of the caveat and under Part IV of the Property Law Act for sale of the property and division of the proceeds.  The first defendant, a firm, were Mathers’ solicitors.

Matthews AsJ ordered removal of the caveat but granted a stay pending any application to amend the caveat, holding –

  1. There was no evidence of an agreement dated 5 August 2016. In any event an application to amend the caveat would have been futile because, assuming the deed was valid and enforceable, Mathers only had a contractual right to its performance sounding in damages.   Further, even a will of McColley devising his moiety would not have given Mathers a proprietary interest in that moiety, but merely a right to an order for due administration of the estate.   And even if there had been such a devise, the moiety would have been part of the estate subject to the claim for testator’s family maintenance. [34]-[40], [43]
  1. However, it was highly likely that Mathers had a prima facie case of a freehold estate in the moiety on the grounds of a constructive trust arising from the doctrine of proprietary estoppel. McColley had made a promise as to the future acquisition of ownership of his moiety by Mathers on which Mathers had been induced to rely to his detriment.  This trust came into existence at the time of reliance: while it was for a court to determine whether to declare the trust, the equitable interest arose from the date when the detrimental reliance rendered it unconscionable to depart from the promise.  There was a credible argument that the constructive trust came into existence when McColley commenced living at the property rent‑free after entering into the deed.  It was also possible that the trust came into existence when McColley made his will. [44]-[53]
  1. The balance of convenience favoured maintenance of the caveat provided it was amended to assert this trust. This supported a possible future order for transfer of McColley’s moiety to Mathers. [61]
  1. For identical reasons to those concerning the balance of convenience, any application for an order for sale under the Property Law Act Part IV was premature. [69]


Philip H. Barton

Owen Dixon Chambers West

     Tuesday, October 19, 2021

Blog 50. My Papers and Articles since 1981.

This is not a Blog about caveats but is a list of what I have written over 40 years, some of which I had lost track of.

Over the Summer of 1979–80 I did the Monash LLM subject “Company Liquidations” for which I wrote an essay.  Professor Baxt called me to his office and asked if it could be published, hence: “The law relating to disputed indebtedness where the winding–up of a company is sought on the ground of inability to pay debts”: Australian Business Law Review Volume 9 p. 94 (1981).

Then in 1984 I saw a notice on the Bar Notice Board that the University of Melbourne was offering $2,500 for someone to write a paper on property law.  This was the Pinkerton Scholarship.  No one at the University seemed to know the origin of this scholarship but I gathered that someone of that surname in Ballarat had left a capital sum to establish the scholarship a long time ago – I think I have since seen art in the Ballarat Art Gallery donated by someone of that surname.  And in preparing this Blog I have googled “Pinkerton Ballarat” and see this was Frank Pinkerton born 1858.  I asked my old College Tutor Ross Sundberg for a good topic, he supplied it, I got the scholarship, wrote the paper, and, I am sure through Ross’ good offices, it was published in the Australian Law Journal: “The applicability of Section 62 of the Property Law Act  1958 (Vic.) to the transfer of Torrens System land”: (1987) 61 ALJ 215.

Next was “Compensation for loss due to town planning restriction under Part 5 of the Planning and Environment Act 1987”: The Valuer and Land Economist Volume 33 p. 239 (1994).   Then from 1995 were Law Institute Journal articles.  Then compulsory CPD arrived for legal profession giving further opportunities.  This list will be updated from time to time.


Recent decisions on Mortgagee/Lessee disputes.  LIJ March.


Testator’s family maintenance – the new regime.  LIJ February.

Town planning: social and economic considerations.  LIJ May.

Town planning – the medium density maelstrom (with David Whitney).  LIJ October.


Urgent injunctions.  LIJ March.

Injunctions & Interlocutory Relief in Proceedings related to Property.  LAAMS Seminar Paper


Which court? Choices in Victorian civil litigation (with Alan Vassie). LIJ June.


Defeating Testator’s Family Maintenance claims.  LIJ January – February.


Modifying and Extinguishing Restrictive Covenants in Victoria. Television Education Network Seminar Paper, October.


Modifying and discharging restrictive covenants in Victoria.  LIJ January – February.


Amendment and Cancellation of Planning Permits.  Victorian Bar Seminar Paper, May.


Rolling out the plans – Amendment and Cancellation of Planning Permits.  LIJ January – February.

The Rule in Saunders v Vautier.  Wills and Probate Bulletin, February.

Land protection – Caveats related to Unit Trusts.  LIJ July.


Lease Terminations, Repairs and Make Good.  Television Education Network Seminar Paper, February.

Be aware – Caveats related to Constructive Trusts.  LIJ April.

Caveats and Trusts.  Southern Solicitors Group Seminar Paper, July.


Costs Orders in Testator’s Family Maintenance proceedings.  LIJ December.


Caveats – When and when not to lodge and recent developments.  Leo Cussen Seminar Paper, June.

Modifying and discharging restrictive covenants: an update.  LIJ December.


The effect of Pre-Contractual Representations.  Legalwise Seminar Paper, March.

Wills and Probate Refresher.  CPDS Seminar Paper, March.

The effect of Pre-Contractual Representations.  Business Law Study Group Paper, May.

Interpretation of restrictive covenants.  LIJ October.


Property Law Case Updates.  Legalwise Seminar Paper, March.

Sale of Land – Enforcing Rights and Remedies.  Foleys List Seminar Paper, July.

Sale of Land – Enforcing Rights and Remedies.  Foleys List Seminar Paper, November.

Testator’s Family Maintenance Legislative Changes and Update.  Foleys List Seminar Paper, November.


New form of contract for sale of land and its impact on your practice.  Legalwise Seminar Paper, March.

Restrictive covenants and section 173 agreements.  Television Education Network Seminar Paper, May.

Malleability of a doctrine (proprietary estoppel).  LIJ May.

Proprietary estoppel – An oasis without palm trees or even water? (with Jim Mellas). Television Education Network Seminar Paper, August.


Testator’s Family Maintenance Cases over the last two years – The rise of ancillary matters.  Foleys List Seminar Paper, February.

The Contract of Sale: Getting it right from the beginning.  Legalwise Seminar Paper, March.

Residential Tenancy Eviction.  Foleys List Seminar Paper, June.


Issues arising at the end of a Retail Lease (Victoria).  Television Education Network Seminar Paper, March.

Property Law Case Law Update. Legalwise Seminar Paper, March.

Property Law Recent Developments. Leo Cussen Paper, April.

Ancillary issues in testator’s family maintenance litigation.  LIJ June p42.

Questionable Caveats – to lodge or not to lodge?  Leo Cussen Seminar Paper, July

VCAT Property Case Update.  Leo Cussen Seminar Paper, August.

Lease termination: where do disputes arise? – Legalwise Seminar Paper, November.


Restrictive Covenants: Interpretation and Removal – Legalwise Seminar Paper, March 2018

Caveats (with Mark McKillop).  Foleys List Seminar Paper, March.

Electronic transactions involving property – signing on the digital line (with Emma Duke). Television Education Network Seminar Paper and Webinar, March.

Informal Wills. LIJ May.

Caveats – An Update.  UNSW Law Continuing Legal Seminar Paper, July.

Co-ownership disputes. LIJ August.

Electronic Contracts in Victoria (with Emma Duke). LIJ September.

Leases – Damages and Compensation.  Legalwise Seminar Paper, November.


Co-ownership Disputes.  Legalwise Seminar Paper, March.

Lease Termination – Where do Disputes Arise? Legalwise Seminar Paper, June.

Eviction Notice!  Terminating the Commercial Lease – Leo Cussen Seminar Paper, August.

Sale of Land Amendment Act 2019.  Law Institute of Victoria (LIV) Seminar Paper, October.

Caveats and Contracts of Sale.  LIJ November (p 42).


Caveats under the Transfer of Land Act.  Foleys List Podcast (February) and Paper (April).

Co-ownership Disputes.  Foleys List Podcast (May) and Paper (July).

Exclusion Clauses (with Sahrah Hogan).  Leo Cussen Seminar Powerpoint, June.

Concealment and Sale of Land.  LIJ October.

Recent Cases on Formation of Contracts of Sale of Land.  Foleys List Paper, Podcast, and Video November.


Non-Disclosure, Sale of Land and Litigation.  Leo Cussen Seminar Paper, February.

Recent Cases on Performance and Breach of Contracts of Sale of Land.  Foleys List Paper and Podcast, March.

Co-ownership Disputes – Update.  LIJ April.

Insights into Co-ownership Disputes.  LIV Seminar Paper, August.

The Odd Couple: Caveat Update & Exclusion Clauses.  Commercial Litigation Specialist Study Group Powerpoint, September.

Victorian Cases on Contracts of Sale of Land and on Forged Mortgages in 2021.  Foleys List Paper and Podcast, December.


       Philip H. Barton

          Owen Dixon Chambers West

        Tuesday, October 19, 2021

Blog 49. Service on the lodger with filthy hands who caveated – Caveat removed “pronto”.

In Sokolovska v Galea & Anor [2021] VSC 435 (23 July 2021), Croucher J.  the facts were –

  • Ms Sokolovska and Mr Galea had a turbulent friendship.  After various vicissitudes she in 2019 allowed him to live in her property at Yarraville.  She subsequently deposed that they were not intimate partners and that he (said by the Judge to have “such filthy hands”): contributed nothing to their living expenses; was only a “property damaging squatter”; commenced renovations but left the kitchen in “a ripped-up state”; filled the premises with hoarded furniture and rubbish; refused to leave; left nails in the walls, drug paraphernalia in nooks and crannies and rubbish about the place; damaged plaster; caused her to lose rental income; failed to repay loans of thousands of dollars; threw glass bottles at her; lunged at her with a metal rod; fought with others; barricaded himself inside the house; and changed the locks and installed security cameras without her consent.
  • Finally a firm of solicitors lodged a caveat on behalf of Galea, without providing his address, with notices to that firm at its address, claiming a freehold estate on the grounds of an “implied, resulting or constructive trust”.
  • The plaintiff applied for an order under the Transfer of Land Act s. 90(3).  She emailed the firm of solicitors the necessary documents.  They replied that they were not instructed to accept service on behalf of Galea and no longer acted for him.  She then emailed the necessary documents to Galea personally.

Section 89(1) is the basic caveat provision and s. 89(4) provides: “(4) Every notice relating to any such caveat and any proceedings in respect thereof if served at the address specified in the caveat shall be deemed to be duly served”.  Further, s. 113(3) provides: “The address appointed in a caveat as the place at which notices relating to the caveat may be served shall be the address for service of the caveator”.

His Honour held that the caveator, who did not appear, was properly served by reason of s. 89(4).  The caveat was removed “pronto” [60].


       Philip H. Barton

          Owen Dixon Chambers West

        Tuesday, October 5, 2021