27. Caveat removal procedure – whether originating application for removal of the caveat required or just a summons in the proceeding sufficed?

 

Walters v Perton (No 2) [2019] VSC 542 (16 August 2019) Derham AsJ.

The facts were:

·      Mr Warring was Mrs Perton’s father and Mrs Walters’ domestic partner.  Mrs Perton, as trustee of a trust, was the registered proprietor of certain land.  

·    The Supreme Court had previously granted judgment in favour of Mrs Perton for possession but in the current proceeding Mrs Walters sued Mrs Perton claiming that the property was held on trust for her.  She had also lodged a caveat grounded on this claim. 

·    In this proceeding Mrs Perton made no claim by counterclaim or otherwise for removal of the caveat but nonetheless filed a summons seeking its removal. 

·    The hearing of the removal application was fixed for hearing with the hearing of an unrelated application.  Two months before the hearing date the defendant notified the Court that she no longer pressed the hearing of the caveat removal application but would seek a speedy trial of all issues in the proceeding including the caveat removal.

·       The plaintiff applied for costs of the caveat removal application, including submitting that it had been incompetent because the defendant had not filed an originating application for such removal.

Derham AsJ held –

1.   Having regard to the Civil Procedure Act 2010, the requirement set out in s. 90(3) of the Transfer of Land Act that the person “bring proceedings in a court against the caveator” for the removal of the caveat, if it meant commence a proceeding by writ, originating motion or possibly a counterclaim, must yield, if necessary and appropriate, to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.  Shaw v Yarranova Pty Ltd [2005] VSC 94 was accordingly distinguishable because it preceded the Civil Procedure Act. [13]

2.   Accordingly if the caveat removal application were otherwise well founded in fact and law it could have been brought by summons in the proceeding.  But in a case such as the present, the caveat removal application amounted in substance to an application summarily to dismiss the plaintiff’s claim that she had an equitable proprietary interest in the land sufficient to sustain the caveat.  The matters relevant to determination of the validity of the caveat were intimately wrapped up with the plaintiff’s claims for a declaration that she had an equitable interest in the land.  Because of the operation and effect of the Civil Procedure Act the Court looked to the substance of the application rather than its form – if that would further the overarching purpose.  The defendant had accordingly in this case employed the wrong procedure to remove the caveat. [14], [16], [17]

3. The defendant was ordered to pay the plaintiff’s costs thrown away by the abandonment of its caveat removal application. [19]

 

Comment: A decision on an unusual point, and subtle in the sense that it holds that a summons may suffice in some proceedings but not in others.