Darnel Pty Ltd v Bigic [2003] VSC 13

Supreme Court of Victoria|2003-02-14|Before: Balmford J

For the reasons given, I am not satisfied that there is a serious question to be tried as to the existence of an enforceable contract of sale of the property from the plaintiff to Mr Bigic, which would give Mr Bigic a caveatable interest in the land. There are other issues between the parties which may fall to be resolved on another occasion; but my concern is only with the plaintiff's application for removal of the caveat lodged by Mr Bigic.

While that finding as to the lack of a serious question to be tried is sufficient to dispose of the matter, it is, I think appropriate to refer briefly to the question of the balance of convenience. There are several matters to be taken into account under this head. The sale to FJ's is due to be settled on Monday 18 February. It appears from the fact that there is no issue as to the right of the plaintiff to sell, that Mr Bigic is in default under the mortgage, with all that that implies. There is a third matter which relates to the procedure adopted by the plaintiff under section 89A of the Transfer of Land Act.

On or about 9 January 2003 the plaintiff's solicitors applied to the Registrar under that section for service of a notice under section 89A(3) requiring Mr Bigic to advise the Registrar that he had commenced a proceeding in a court of competent jurisdiction to substantiate the interest claimed by him in the caveat. By letter dated 23 January 2003 the Registrar advised the solicitors that she had been so advised by Mr Bigic, and that no further action would be taken to remove the caveat.

It transpired that the solicitors for Mr Bigic on 15 January 2003 had forwarded to the Registrar a copy of the writ in proceeding No. 8532 of 2002 together with a copy of an amended statement of claim in that proceeding, which was expressed to substantiate the interest under the caveat. However, the only statement of claim in that proceeding which had been filed and served as at that date dealt entirely with matters arising before the auction took place, and contained no claim substantiating the caveat. The amended statement of claim was not filed until 6 February 2003 at a hearing before Master Wheeler, and it appears that it has not yet been served upon the plaintiff. Rule 36.05 of the Supreme Court (General Civil Procedure) Rules 1996 provides that an amendment to a pleading is effected by both filing and serving the amendment.

Thus the letter advising the Registrar that an appropriate proceeding had been commenced was in fact incorrect. The evidence does not indicate what was the date specified by the Registrar pursuant to section 89A(4) within which the Registrar's notice was to be complied with. There is no sanction in the Act for the giving of incorrect information by the caveator to the Registrar under section 89A. However, if the specified date had passed before the filing and serving of the amended statement of claim, a question might have arisen as to the effect of that incorrect information. In the present case, it is not necessary to consider that question; but I accept the submission of Mr Wise that the provision of incorrect information to the Registrar is a matter appropriate to be taken into account in consideration of the balance of convenience in this proceeding.

For the reasons given, I find the balance of convenience to lie with the plaintiff.

There will be an order granting the application of the plaintiff for removal of the caveat. I await the submissions of counsel as to the form of the order and as to costs.

[1] Unreported, decided on 17 April 1993

[2] Parker v Barnett (1889) 16 VLR 214 at 221

Supreme Court (General Civil Procedure) Rules 1996

PROPERTY - removal of caveat - no serious question to be tried - balance of convenience Instruments Act 1958 - section 126 Transfer of Land Act 1958 - s 90(3) Farrow Mortgage Services Pty Ltd (in liquidation) v Nyomn Suarsana Hardika unreported, decided 17 April 1993 Parker v Barnett (1889) 16 VLR 214 Popiw v Popiw [1959] VicRp 32; [1959] VR 197

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