Plaintiff v Defendant

2 The plaintiff's wife died in August 2004 and the plaintiff, by right of survivorship, is now the sole registered proprietor of that property.

3 The first defendant is the son of the plaintiff but the plaintiff has not been in contact with him for some years.

4 On 15 August 2006, the first defendant lodged a caveat on the title of the property being caveat number AE545313G. In that caveat the first defendant claimed to be entitled to an equitable interest in the land pursuant to a constructive trust.

5 On 2 November 2007, the plaintiff's solicitors lodged at the Land Registry an application under s 89A(1) of the Transfer of Land Act 1958 for service of a notice in respect of the property under s 89A(3) of the Act. On 24 September 2007 the plaintiff's solicitors were advised by notice that the Registrar of Titles had been notified in writing of proceedings in a court of competent jurisdiction to substantiate the claim of the first defendant in relation to the property, and the interest claimed by the first defendant in the property, were on foot. Accordingly, no further action was taken in respect of the s 89A application made by the plaintiff.

6 Despite that notification given by the registrar to the plaintiff, the first defendant has failed to institute any proceedings in any court of competent jurisdiction or otherwise to substantiate the interest claimed by him in the land.

7 In the present proceeding the plaintiff has issued an application under s 90(3) of the Transfer of Land Act seeking removal of the first defendant's caveat.

8 The matter came before Hargrave J on 25 August 2009 and his Honour, on that occasion, raised an issue as to whether the proceeding had been appropriately served. Accordingly the matter was adjourned.

9 There is now before me an affidavit of service sworn by Noel Francis McLellan on 14 October 2009 which proves that on 5 October 2009 he posted to the first defendant true copies of the sealed copy of the originating motion of the sealed copy of the summons of the sealed copy of the affidavit of the plaintiff in support of his application, and the exhibits, by posting them, by prepaid post, to the first defendant care of Suite 1/30 Beetham Parade, Rosanne, Victoria 3084. That address is the address nominated by the first defendant in the caveat as the address for service of notices.

10 Mr W Rimmer, who appears on behalf of the plaintiff, has drawn to my attention s 89(4) of the Transfer of Land Act and to the decision of Batt J in National Australia Bank Ltd v Dyer & Anor[1]. In that case his Honour, after giving the matter careful consideration, held that s 89(4) is an exception to rule 6.02(1) of Chapter 1 of the Rules, and thus it entitles a plaintiff, in an application such as that before me, to serve proceedings by post on the address nominated by caveator in the caveat.

11 His Honour's decision has been followed by Ashley J in National Australia Bank Ltd v McFarlane[2], and has been accepted as being correct by Young CJ in equity in the Supreme Court of New South Wales in Makucha v Nothingtoohard Pty Ltd[3].

12 In my respectful view, Batt J was correct in the National Australia Bank case and I shall accordingly follow that decision.

13 It therefore follows that the service on the first defendant has been properly made pursuant to s 89(4) of the Transfer of Land Act. I am comforted in that view by the fact that the plaintiff's solicitor has spoken to the first defendant's solicitor, who has advised him that the papers were received by him and they had been forwarded by the first defendant's solicitor to the first defendant at his last known address.

14 I add that notwithstanding that, the first defendant has not filed any appearance.

15 In relation to the merits of the application, in an application such as this, the onus lies on the caveator to prove that he has at least an arguable case that he has an equitable interest in the property. No such material has been put before me and therefore there is no serious issue to be tried.

16 While the plaintiff has managed to be able to become registered as a sole proprietor of the property by lodging the survivorship application, it nonetheless is a detriment to him to have a caveat still subsisting over the property, and accordingly the balance of convenience favours the removal of the caveat.

17 Insofar as any exercise of the discretion is concerned, in my view, the considerations, which are discretionary, strongly favour removal of the caveat. The first defendant had the opportunity to issue proceedings to vindicate the caveat. Rather than doing so, he has, in my view, wrongly used the proceedings available to him under s 89A to forestall the summary procedure which would have been available to the plaintiff under that, and he has thus put the plaintiff to the expense of this proceeding before me.

18 In those circumstances, it is clearly correct that the caveat ought to be removed and I intend to make an order to that effect.

[1] (Unreported, Supreme Court of Victoria, 14 August 1996) BC9604041.

[2] [2003] VSC 226, especially at paragraphs [9] to [12].

[3] (2004) NSWSC 1038.