Toh & Anor v Wu & Anor  VSC 36 (12 February 2018) Daly AsJ.
The chronology was –
2017 First defendant commences family law proceeding in Federal Magistrates Court
against her husband. The plaintiffs in the subsequently issued Supreme
Court proceeding are her in-laws and are registered proprietors of a
property. Application (not yet determined) to join plaintiffs as parties
to the family law proceeding and to restrain sale of property or have proceeds
of sale retained in trust pending determination of
28 November 2017 Caveat lodged by first defendant over the property, grounds of claim being “court order under the Family Law Act 1975”.
15 January 2018 Plaintiffs notify intention to issue and issue s. 90(3) application.
16 January 2018 Service of application and material in support.
18 January 2018 Hearing at which caveat ordered to be removed. Order that net proceeds of sale be held in trust. Costs reserved.
29 January 2018 Settlement of sale of property due.
Daly AsJ ordered that each party should bear their own costs of the s. 90(3) application. Her Honour reasoned –
- In removing the caveat the court had not considered whether there was a serious question to be tried. Although the interest claimed in the caveat was not prima facie a recognized proprietary interest the underlying documents tolerably revealed claims pursuant to a resulting or constructive trust, and the suddenness of the application severely compromised the caveator’s ability to respond. However, the balance of convenience overwhelmingly favoured removal because of settlement and finance difficulties. The removal was also influenced by the fact that, having regard to the existing Federal Magistrates’ Court proceedings, it was in the parties’ interests for property interests to be determined in one proceeding, not fragmented across jurisdictions.
- Special circumstances warranted the plaintiffs not receiving their costs, namely their failure to warn the caveator of the intended application. While it would often be unnecessary or impractical to warn of an application, the application here was made some 7 weeks after lodgement of the caveat and only 7 business days before settlement of the sale was due. The caveator was ambushed.
- The caveator’s alleged impecuniosity was irrelevant to the costs decision.
Tawafi v Weil  VSC 643 (21 August 2017) Digby J.
Section 90(1)(e) of the Transfer of Land Act 1958 provides that, subject to certain exceptions, a caveat lapses as to land affected by a transfer upon the expiration of thirty days after notice by the Registrar that a transfer has been lodged for registration. If within this period the caveator appears before a court and gives an undertaking or security the court may direct the Registrar to delay registration for a further period, or may make such other order as is just (s. 90(2)). If the Registrar is of opinion that the doing of any act is necessary or desirable, then, if the act is not done within such time as the Registrar allows, the Registrar may refuse to proceed with any registration (s. 105(a)).
The timeline was –
11 April 2017 Plaintiff enters contract to purchase certain land.
30 May Defendant caveats on the grounds of “part performed oral agreement” et cetera with the registered proprietor.
26 June Settlement of the purchase without the caveat being removed.
28 June (about) Lodgment of the instrument of transfer (Transfer) for registration.
29 June Registrar notifies caveator that pursuant to s. 90(1) the caveat would lapse on 31 July unless the caveator obtained an order pursuant to s. 90(2). No order was obtained.
2 August Caveator commences a proceeding against registered proprietor inter alia claiming declarations of a proprietary interest in the land and for other relief in substance supporting the existence of the caveat and preventing registration of the Transfer. An
agreement with the registered proprietor proprietor in early 2016 is alleged whereby the caveator agreed to lend $86,000 on security of this land, followed by that loan. The second defendant was the conveyancer acting for both sides and the third defendant was the purchaser.
3 August The Registrar accordingly issues a Notice of Action prohibiting registration of further dealings until withdrawal of that notice or further order.
16 August Purchaser files Originating Motion seeking order for registration and Summons for dismissal of the caveator’s proceeding.
Digby J ordered the Registrar to register the Transfer and remove the Notice of Action. His Honour reasoned –
- The counting of days under s. 90(1) commenced from 30 June, being the day after the notice, thirty days elapsed on Sunday 30 July, and so the expiry date was 31 July. Accordingly the caveator was out of time. It was irrelevant that s. 105(1) might have achieved a similar result in suspending the progress of registration. -
- The judicial approach to caveat removal applications was analogous to that in applications for injunction, ie the burden of proving the caveatable proprietary interest and maintaining the caveat was upon the caveator who must also establish on the balance of convenience that the caveat should be maintained until the trial of the contested proprietary interest. However, because the caveat had lapsed this case was not the usual caveat removal contest. -
- In any event the caveator had not raised a sufficient prima facie case of or arguable triable issue concerning the asserted proprietary interest. Further, the balance of convenience heavily favoured the purchaser because: the asserted triable issue was palpably weak; and the purchaser would be prejudiced by deferral of registration, particularly having entered a building contract to improve the property which could not be financed until the financier could register a mortgage. , -
- Indemnity costs were awarded against the caveator, particularly because of her very weak case, the purchaser having previously asked the caveator in writing to identify an arguable caveatable interest, without proper response, and given appropriate warning to the caveator.  –