Blog 93. Two reprise cases.

This Blog covers two relatively short cases which are related to previous Blogs.  Saad v Saad [2025] VSCA 29 (Whelan JA and Watson AJA) was an unsuccessful application for a stay of execution of the judgment of Gobbo AsJ in Saad v Saad [2025] VSC 15 ordering removal of a caveat, the subject of Blog 92, and alternatively for an injunction restraining dealing with the property pending determination of the caveators’ application for leave to appeal to the Court of Appeal.   Perpetual Ltd v Doyle [2025] VSC 70 (Irving AsJ) arose out of facts related to Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664, the subject of Blog 82.

In Saad v Saad [2025] VSCA 29 the Court of Appeal dismissed the application (pursuant to Rule 66.16 of the Supreme Court (General Civil Procedure) Rules) for a stay, and the injunction application, noting:

1. The decision at first instance was a discretionary judgment. The ultimate appeal could only succeed if an error of the kind described in House v The King (1936) 55 CLR 49 were established.  This would be very difficult. [42](a), (e).
2. Being interlocutory, the existing decision, and the refusal of a stay, did not determine any issue against the applicants. There was no issue estoppel or res judicata. [42](b).
3. The applicants’ claims were mutually inconsistent, and part of their case was, at the least, vague and uncertain. [42](d), (e), (f).
4. Any uniqueness in the property attributable to it being a family compound was most probably already lost. [42](g))
5. The balance of convenience strongly favoured refusal of a stay both because the caveat was preventing the elderly registered proprietor dealing with the land and because, even if the applicants’ claims were eventually established, monetary compensation was likely to be the adequate remedy. [42](c, (f), (h).
6. The application for an injunction was refused for the same reasons. [43]

The court also reiterated two basic points related to applications under the Transfer of Land Act s. 90(3) for removal of caveats.

First, that although it had been observed that there was, as to the caveator’s claim to an interest in the land, no real difference between a serious question to be tried test and the prima facie case test, the latter was now preferred. [35]

Second, that although the courts had adopted the analogy of an interlocutory injunction and the consequent two stage test (ie had the caveator established: first, a prima facie case or serious question to be tried of having the claimed interest in the land, and; second, that the balance of convenience favoured maintenance of the caveat), s. 90(3) was broadly drafted, and accordingly the two stage test should only inform whether the court should exercise the discretion, not subsume or restrict the power conferred by s. 90(3). [36]

 

Perpetual Ltd v Doyle [2025] VSC 70 (Irving AsJ)

As background to this case it assists briefly to summarise parts of Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664 (Downey), the subject of Blog 82.  In Downey –

• On 16 October 2007 the defendant (Doyle), who was the registered proprietor of land in Ardcloney Drive, Sunbury (the Land), transferred it to Robert Bourne who became its registered proprietor.
• It appeared that between 16 October 2007 and 10 July 2014 Doyle occupied the Land under an informal licence granted by Bourne. On 7 March 2014 she caveated over it claiming that the “registered proprietor holds his interest as trustee for the Caveator pursuant to a constructive trust and/or a declaration of trust from the registered proprietor made on 16 October 2007”.
• On 10 July 2014 a sequestration order was made over Bourne’s bankrupt estate and the plaintiff was appointed as his trustee.
• In 2016 a sequestration order was made over the Doyle’s bankrupt estate and the Official Trustee in Bankruptcy was appointed as her trustee.
• On 28 March 2023 the plaintiff terminated any informal licence held by Doyle.
• On 3 May 2023 the plaintiff became the registered proprietor of the Land and was informed that the Official Trustee agreed to permit Doyle’s caveat to lapse.
• The plaintiff issued a proceeding for recovery of possession and under s. 90(3) of the Transfer of Land Act (TLA) for removal of the caveat. Doyle claimed or deposed inter alia that: in 2006 she purchased the Land on trust for her children; in 2007 she purchased another property but agreed with Bourne that he would act as bare trustee for both properties and would after approximately two years reconvey the Land to her as co-trustee for her children; Bourne paid no consideration for the transfer to him; she never transferred her children’s beneficial interest in the Land to Bourne; although she had no personal interest in the Land the caveat had to be lodged in her name personally (rather than in her name as trustee for her children).

Irving AsJ. refused the application for possession but granted the application for removal of the caveat, holding in brief summary (the full holding is in Blog 82) –

1. The Land was vested in the plaintiff as Bourne’s trustee in bankruptcy.
2. To the extent that Doyle had any interest in the Land as trustee, that interest had vested in her trustee in bankruptcy.
3. Doyle accordingly had no prima facie case of the interest claimed in the caveat.

The case the subject of this Blog, Perpetual Ltd v Doyle [2025] VSC 70, concerns land at Powlett Street Sunbury (the Property), being the “other property” referred to the previous case.  In this case Doyle alleged or the uncontested facts were –

• When Bourne purchased the Property she entered an agreement with him that he would borrow funds for the purchase and be the registered proprietor holding it on trust for her, she holding her interest therein on trust for her daughters. Although the loan was to be taken out in his name she and/or her daughters would remain responsible for the mortgage repayments and outgoings.
• In December 2007 Bourne mortgaged the Property to the plaintiff (Perpetual) to secure a loan of $347,700.00. The mortgage was registered.
• More than 6 years later Doyle caveated claiming an implied, resulting or constructive trust on the ground of a constructive trust.
• Bourne became bankrupt. His trustee in bankruptcy, Downey, became registered proprietor of the Property.
• In 2023 Perpetual issued a default notice to Bourne, who did not rectify the default, and it now sought to sell the Property as mortgagee in possession.
• In 2024 the Supreme Court dismissed an application by Doyle for an injunction to prevent the sale.
• Perpetual applied under the Transfer of Land Act s. 90(3) for removal of the caveat. The second defendant was Doyle’s trustee in bankruptcy, who argued that any interest of Doyle in the property had vested in it.
• An exhibit to an affidavit filed by Perpetual included a table of repayments of the Perpetual loan with numerous entries from at least 10 January 2011 to 5 January 2018 recording payments by either ‘Ms Maureen Doyle’ or ‘M Doyle’.

Irving AsJ. dismissed Doyle’s application that he recuse himself from hearing the application.

Irving AsJ. ordered removal of the caveat, holding –

1. An order for possession was not a precondition of Perpetual (or any applicant) having standing to apply for relief under s. 90(3). Perpetual had standing to bring the application. [61], [66]
2. As to her standing to oppose Perpetual’s application, Doyle did not assert that she had standing because of her asserted status as trustee for her daughters – she relied on her alleged trustee status to argue that the Property was not an asset in which her trustee in bankruptcy could claim an interest. However, it was appropriate to hear her on Perpetual’s application because she was the named caveator, Perpetual did not argue that she should not be heard, and the question whether any interest she had in the Property had vested in her trustee was unresolved. [63]
3. There was no credible evidence that Doyle’s trustee had agreed to annul her bankruptcy. [64]
4. Doyle’s claim to being the beneficiary of a constructive trust was grounded on her alleged agreement with Bourne referred to above. If left to her evidence alone, absent documentary evidence, there would not be a serious question to be tried that this trust existed.  However, one possible inference from the table of loan repayments was that she had been responsible for at least some loan repayments, leading to the further inference of a trust.  In order to accept that inference the court must be satisfied that it was more likely than other possible inferences.  She had so satisfied the court.  The combination of her evidence and Perpetual’s evidence of loan repayments raised real questions about Doyle’s interest in the Property, and so raised a serious question to be tried. [67]-[69]
5. However the balance of convenience did not favour maintenance of the caveat because: Perpetual’s interest in the Property had priority over any interest of Doyle’s; her caveat was lodged long after registration of its mortgage; it had no notice of existence of a trust when it took its mortgage; Doyle’s trustee in bankruptcy asserted that any proprietary interest she had vested in it;  any surplus sale proceeds remaining after discharge of the mortgage would be dealt with under s. 77 of the Transfer of Land Act; Doyle’s application for an injunction prohibiting the sale had been dismissed; although Doyle asserted that the Property was required for a family home she did not depose by whom; she had not produced any tenancy agreement to support her assertion that the Property was tenanted; she had not explained the legal basis for her asserted right to let or occupy the Property; and her submissions about the Property’s poor condition were unsupported, apparently at odds with photographic evidence, and any suggested repair works were unfunded. [71]-[75]

Philip H. Barton

Owen Dixon Chambers West

Tuesday, May 20, 2025