Plaintiff v Defendants

1 The plaintiff, Carl Barnard (Carl), is the former partner and fiancé of Rhianna Elizabeth Jane Otten (Rhianna).[1] Rhianna unexpectedly died on 1 April 2024 and did not leave a will. Carl was granted letters of administration of Rhianna's estate on 22 May 2024. Rhianna was the registered proprietor of the property at 23 Wilkins Close, Corio, Victoria (Property). Carl, in his capacity as administrator, became the registered proprietor of the Property on 13 June 2024.

2 The defendants are Rhianna's mother, Sharon Otten (Sharon), and brother, Declan. Rhianna purchased the Property with $85,000 she obtained from her mother and a loan from AFSH Nominees Pty Ltd secured by a mortgage over the Property. On 30 August 2024 Sharon lodged a caveat on the title to the Property claiming an interest pursuant to an implied, resulting or constructive trust.

3 On 6 November 2024 Carl filed a summons seeking orders under s 90(3) of the Transfer of Land Act 1958 (Vic) (TLA) for the removal of caveat AY357090Y lodged by Sharon on the title to the Property. On the same date Carl filed an originating motion for recovery of land under Order 53 of the Supreme Court (General Civil Procedure) Act 2015 (Vic) (Rules) from Sharon and Declan.

4 Sharon opposed the applications. Declan did not enter an appearance in the proceeding.

5 The Registrar of Titles is the third defendant to the caveat removal application. On 12 November 2024 the Registrar of Titles wrote to the Court stating that she does not intend to appear in the proceeding.

6 On 15 May 2025, after Carl's applications had been heard and judgment was reserved, his solicitor wrote to the Court advising that the solicitor for the mortgagee had informed him that Sharon had vacated the Property and the mortgagee had obtained possession pursuant to an order of the Victorian Civil and Administrative Tribunal. Carl requested that the Court proceed to judgment on Carl's applications.

7 I have decided to dismiss Carl's application for an order for possession because the Court was informed that the occupants have vacated the Property. There is no utility in deciding that application. In relation to Carl's application to remove the caveat, I have found that Sharon has established a prima facie case that she has the interest she asserts in the caveat, however the balance of convenience favours removing the caveat.

(a) affidavit of Carl Daniel Barnard, plaintiff, affirmed 31 October 2024 (First Barnard affidavit);

(b) affidavit of Adam Thomas Brussaard-Kerr, solicitor for the plaintiff, sworn 18 November 2024 (going to service of the second defendant);

(c) affidavit of Carl Daniel Barnard affirmed 5 March 2025 (Second Barnard affidavit);

(d) second affidavit of Adam Thomas Brussaard-Kerr sworn 26 March 2025;

(e) written submissions filed 17 March 2025.

(a) affidavit of Sharon Otten affirmed 13 December 2024 (First Otten affidavit);

(b) affidavit of Sharon Otten affirmed 20 March 2025 (Second Otten affidavit); and

(c) written submissions filed 24 March 2025.

10 In the First Barnard affidavit, Carl deposed to the following.

11 Around 2020 Sharon sold her house and gifted part of the proceeds of sale to Rhianna to enable Rhianna and Carl to buy a house. Carl believes a further part of the sale proceeds were used to fund construction of a granny flat in the rear yard to the property Rhianna purchased, being the Property. Rhianna negotiated a purchase price of $416,000 for the Property with the purchase funded solely by a loan from AFSH Nominees Pty Ltd secured by a mortgage over the Property and the $85,000 gift from Sharon. Sharon told Carl that the $85,000 was an 'early inheritance'.

12 In mid-2021 Sharon and Declan moved into a granny flat that had been constructed in the rear yard of the Property.

13 Rhianna and Carl had joint finances and paid approximately $80,000 in repayments on the home loan. Following Rhianna's death, her aunt made one home loan repayment. Sharon and Declan did not make any repayments on the home loan. Rhianna and Carl also paid all rates, insurance and utilities costs for the Property, other than the gas supply costs to the granny flat which Sharon paid.

14 Following Rhianna's death Carl fell out with Rhianna's family and so he and the children started spending some nights at the house of a friend, Shakyra Mitchell. Carl and his children have been locked out of the Property by Rhianna's family.

15 The title to the Property was transferred into Carl's name, in his capacity of administrator of Rhianna's estate.

16 Since Rhianna's death, Carl has been unable to continue to repay the home loan and, on 12 August 2024, AFSH Nominees Pty Ltd served a default notice in relation to the arrears.

17 Carl engaged a real estate agent to sell the Property. On 13 September 2024, Sharon's solicitor wrote to the real estate demanding no further action be taken to sell the Property. On 19 September 2024 Carl's solicitors wrote to Sharon's solicitor requesting that Sharon provide a clear statement of the precise interest she claims in the Property. Sharon's solicitor did not provide any such statement.

18 On 29 October 2024 the mortgagee's solicitor wrote to Carl's solicitor stating that the mortgagee had issued Sharon with a notice to vacate by 7 January 2025 and that the mortgagee intended to take possession of the Property once vacant.

19 On 31 October 2024 Carl's solicitor wrote to Sharon and Declan to revoke any licence they had to reside at the Property.

20 Carl believes that if Sharon and Declan reside at the Property during the sale process, any sale will be below market rates because access to and presentation of the Property will be hampered and vacant possession could not be ensured. Carl wishes to return to the Property and live in it until it is sold.

21 Mr Brussaard-Kerr's first affidavit deposed to attempts to serve the application for possession on Declan and to a telephone conversation between Mr Brussaard-Kerr and Declan on 18 November 2024 in which Declan acknowledged receipt by email of Carl's originating motion and Declan's knowledge of the proceeding.

22 In the Second Brussaard-Kerr affidavit Mr Brussaard-Kerr deposed that on 20 March 2025, he received an email from the mortgagee's solicitor stating that the mortgagee intends to take possession of the Property and has served Sharon with two notices to vacate giving Sharon until 19 March 2025 to vacate the Property. Sharon's solicitor had requested the mortgagee extend the time to vacate to 4 April 2025. The mortgagee's solicitor told Mr Brussaard-Kerr that if Sharon has not vacated the Property by 28 March 2025, the mortgagee intends to make an application for possession orders and instruct the Sheriff to evict Sharon from the Property. Mr Brussaard-Kerr spoke to the solicitor for the mortgagee on 26 March 2025 who said she saw no reason why the mortgagee would not agree to Carl taking possession and selling the Property instead of the mortgagee.

23 The Second Barnard affidavit was filed in reply to the First Otten affidavit. In it Carl deposed the following.

24 Prior to 2018 Rhianna, Sharon, Declan and Carl discussed many ideas of purchasing a property, including an idea that land would be purchased in Rhianna's name initially and then subdivided so that portion of the land would be transferred into Sharon's name. However, Carl and Rhianna did not pursue that idea because of the difficulties in finding subdividable land and the costs of subdivision.

25 Rhianna and Declan opened a joint Westpac bank account into which Sharon used to deposit money. This account was not used by Rhianna, Carl, Sharon and Declan to pool funds to purchase a property.

26 Sharon did not reach any agreement with Rhianna in December 2020 to purchase a property.

27 Rhianna and Carl agreed that Sharon could place a moveable granny flat in the rear yard of the Property, which Sharon purchased and placed on the Property.

28 Sharon and Declan are not paying any rent to live at the Property, nor are they making home loan repayments. Declan is now living in the main house and the Property cannot be rented while Sharon and Declan continue to live there. The mortgage is in default and default interest is accruing on the outstanding amount of the home loan at the rate of about $1,732.51 per month. Rhianna's estate is presently unable to sell the Property or to obtain any income from it.

29 Sharon does not have the financial resources to purchase the Property.

30 In the first Otten affidavit Sharon deposed the following.

31 After the sale of her property in Melton Victoria, Sharon had approximately $220,000 in savings. Sharon agreed to Rhianna and Declan opening a Westpac bank account in their names for Sharon to pay money into to protect Sharon's money from her other daughter, Taylah. On 23 October 2018 Sharon paid $100,000 into Rhianna and Declan's joint account.

32 In 2018 Sharon and Rhianna began discussing different ideas for purchasing a property. Sharon suggested they look for a block of land with potential for subdivision that would initially be purchased in Rhianna's name and then subdivided so that a portion of the land large enough to accommodate a granny flat would be transferred to Sharon's name. Rhianna and Sharon then involved Declan and Carl in their discussions.

33 On 5 November 2019 Sharon paid $70,700 into Rhianna and Declan's joint account and a further $25,907.50 in smaller sums between 11 March 2018 and 9 February 2020.

34 Rhianna, Carl, Sharon and Declan created a Facebook messenger group chat which contains their discussions about purchasing a property together.

35 On 16 December 2020 the Property was purchased in Rhianna's name and paid for with Sharon's contribution of $85,000 and a home loan of $331,000 secured by a mortgage. Sharon did not seek legal advice or lodge a caveat to register her interest because she was clear about her agreement with Rhianna. In early April 2021 Rhianna, Carl and the children moved into the Property. In late April 2021 construction of the granny flat began, paid for from Sharon's funds held in Rhianna and Declan's joint account. On 10 May 2021 Sharon and Declan moved into the completed granny flat. They did not contribute to home loan repayments for the main dwelling. The granny flat is not portable and the expense of relocating it would surpass initial constructions costs.

36 On numerous occasions, at least once a fortnight, Rhianna borrowed money from Sharon and Declan to pay for everyday living expenses.

37 One week after Rhianna died, Carl and the children moved out of the Property because there were too many memories of Rhianna in the house. Sharon and Declan have never prevented Carl from visiting the Property and have not changed the locks.

38 Following Rhianna's death Sharon's relationship with Carl broke down and so she sought legal advice to assist her to purchase the Property from Rhianna's estate with the price adjusted to reflect Sharon's $200,000 contribution towards the Property. In July and August 2024 Sharon's solicitor sent extensive without prejudice correspondence to Carl's solicitor setting out the basis of Sharon's claim. On 30 August 2024 Sharon lodged caveat AY357090Y on the title to the Property on the grounds of an implied, resulting or constructive trust.

39 On 11 September 2024 the Property was listed for sale by a real estate agent. On 13 September 2024 Sharon's solicitor wrote to the agent and to Carl's solicitor to confirm Sharon's caveat had been lodged, that the parties were in discussions and that the Property should not be sold, resulting in the Property being removed from sale.

40 On 24 October 2024 Sharon received a notice to vacate from AFSH Nominees Pty Ltd, requiring her to vacate the Property by 7 January 2025.

41 In the Second Otten affidavit, Sharon deposed several matters in response to matters raised in Carl's affidavit. It is unnecessary to rehearse the contents of this affidavit.

42 Order 53.01 of the Rules is in the following terms:

(1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.

(2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title.

43 In Framlingham Aboriginal Trust v McGuiness [2014] VSC 241 (Framlingham), [38]-[40], [42], [45], Derham AsJ held:

Order 53 creates a special procedure for the summary recovery of land in certain restricted circumstances...

The words of Rule 53.01(1) make it plain that the pre-requisites to the application of Order 53 are that the person or persons in occupation of the land are -

(a) a person or persons who entered into occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff; or

(b) a person or persons who, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff.

Thus, a tenant holding over after the termination of the tenancy is not within either category and the service of a notice on the tenant purporting to determine the holding over does not alter that position. That is because the tenant to whom such a notice is given entered into occupation by licence or consent, and so is not within paragraph (a), and paragraph (b) does not apply because the tenant is not a person who was once a licensee.

...

The power to give summary judgment for possession is similar in nature to the power to give summary final judgment under Rule 22.02 of the Rules. That power should be exercised with great care and should never be exercised unless it is clear that there is no question to be tried. The need for exceptional caution in exercising the power is the subject of numerous observations of courts in this country.

...

An example of a case where argument of an extensive kind did demonstrate that a plaintiff was entitled to summary possession of land is Melbourne Anglican Trust Corporation v Greentree.

[citations omitted].

44 Derham AsJ summarised the authorities relating to the operation of Order 53 in Framlingham [41], which I adopt:

(a) It is intended to enable a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out;

(b) It is intended to apply only in clear cases where there is no question to try;

(c) The existence of a factual dispute does not deny the applicability of Order 53 where it is possible to resolve the dispute readily and fairly;

(d) While an order for possession may be made notwithstanding that there is a factual dispute between the parties, such an order will only be appropriate if the Court is able to satisfy itself as to the material facts that bring the case within O 53;

(e) The jurisdiction should be exercised with great care;

(f) Where an issue does emerge, the judge has discretion whether simply to dismiss the proceeding, to determine the issue or cause the issue to be subsequently tried. This includes giving directions as to the further conduct of the proceeding or ordering the proceeding to continue as if begun by writ pursuant to Rule 4.07 of the Rules; and

(g) Where the court gives judgment for possession under Order 53, it may grant a stay of execution.

45 Section 90(3) of the Transfer of Land Act 1958 (Vic) provides that any person who is adversely affected by a caveat may bring proceedings in a court against the caveator for the removal of the caveat and the court may make such order as the court thinks fit.

46 The principles relevant to applications to remove caveats are well settled. In Piroshenko v Grojsman,[2] Chief Justice Warren held that caveats are subject to the same test as applied in applications for interlocutory relief, with the onus resting on the party seeking to maintain the caveat to prove that:

(a) there is a prima facie case that the caveator has the estate or interest claimed in the caveat; and

(b) the balance of convenience favours that the caveat be maintained on the Register of Titles up until the determination of the proceeding at trial.

47 When considering the balance of convenience the Court should take whatever course appears to carry the lower risk of injustice if it should turn out to have been wrong.[3]

48 Sharon asserts a proprietary interest in the Property by way of a resulting trust and constructive trust.

49 It was common ground between the parties that a joint endeavour constructive trust arises where there is a joint relationship or endeavour; an asset is acquired in the course of that joint relationship or endeavour; there is a premature termination of the joint relationship or endeavour; one party has made financial or non-financial contributions for the purpose of the relationship or endeavour; and it would be unconscionable to permit the other party to retain the benefit of the relevant property where the contributions were made in circumstances where it was not specifically intended that the other party should so enjoy it.[4]

50 A common intention constructive trust will arise where there is a common intention or understanding that a person will acquire an interest in property and that person has acted to her detriment in reliance on that intention or understanding.[5]

51 Equity will presume that a person holds property on resulting trust, proportionate to the contribution, where another person contributes to the purchase of the property and the property is held in the name of the first person.[6] Where the contributor is the parent of the person in whose name the property is held, a rebuttable presumption of advancement will arise.[7]

52 Carl's counsel submitted that Sharon had failed to establish a prima facie case of either a resulting or constructive trust because she had not adduced evidence that she made a financial contribution to the purchase of the Property. Counsel argued that insofar as Sharon relied upon a resulting trust, given she is Rhianna's mother, the presumption of advancement would arise.

53 Counsel said the evidence showed that Sharon did deposit $100,000 into Rhianna and Declan's account but that occurred some two and a half years prior to the date the Property settlement occurred. Similarly, counsel said Sharon's evidence of her irregular deposits into that account showed the last of these deposits occurred prior to settlement. The evidence showed an account balance of $147,456.35 on the date of settlement. Counsel submitted that these monies were clearly not used to fund the purchase of the Property because there would be evidence of the transfer of these funds into a solicitor's trust account leading to settlement. Further, counsel submitted that the evidence showed that between March and April 2021 Sharon used $116,360 from the account to pay for the manufacture and installation of the granny flat. Counsel argued that, in the absence of any evidence about the source of this money, the Court could infer that Sharon had not made an earlier contribution to the purchase of the Property.

54 Carl's counsel submitted that Sharon had not provided any admissible evidence that Sharon, Rhianna, Carl and Declan agreed to purchase a block of land in Rhianna's name that would then be subdivided so that a portion of the land, large enough to accommodate a granny flat, would be transferred into Sharon's name. Counsel said Carl denied there was any such agreement and, in any case, there was no evidence why the parties had lived at the Property for approximately three years without taking any steps to subdivide the Property as allegedly agreed.

55 In relation to the balance of convenience, Carl's counsel submitted that Carl is the administrator of Rhianna's estate and that Sharon, via her solicitors, prevented the sale of the Property in September 2024. Further, Sharon and Declan occupy the Property without paying rent or contributing to the home loan repayments in circumstances where the mortgagee has issued a notice of default and seeks to take possession of the Property. The mortgagee is now charging default interest which has the capacity to quickly exhaust any equity remaining in the Property.

56 Counsel submitted that the Property needs to be sold and if the mortgagee controls the sale it may result in a reduced sale price as Carl will be unable to ready the Property for sale. This is undesirable because it would result in loss to Rhianna's estate.

57 Finally, counsel for Carl submitted that Carl has an equitable interest in the Property, over and above his position as administrator of Rhianna's estate, by virtue of his financial contributions to the purchase and maintenance of the Property. Even if Sharon were able to establish an equitable interest in the Property, it is not clear that her interest would take priority over Carl's.

58 Sharon's counsel submitted that the evidence established Rhianna, Carl, Sharon and Declan had entered into an arrangement with respect to the Property that involved:

(a) they would all purchase a block of land and put it in Rhianna's name;

(b) they would build a granny flat on part of the land;

(c) they would subdivide the land and transfer the portion with the granny flat to Sharon;

(d) Sharon and Declan would pay for the granny flat and expenses regarding it; and

(e) Declan would inherit the granny flat portion from Sharon.

59 Sharon's counsel submitted these facts supported a finding of three different kinds of interest in the Property, subject to Sharon's election.

60 First, a joint endeavour constructive trust. The parties agreed to pool resources to purchase the Property for Rhianna and Carl to live in the main house and to build a granny flat for Sharon and Declan to live in. The joint endeavour collapsed when Rhianna died. Sharon contributed nearly $200,000 in total for the purposes of the joint endeavour. It would be unconscionable for Carl to retain the benefit of those contributions all for the estate and himself. The Court should impose a constructive trust on terms reflecting the parties' respective contributions to the Property.

61 Second, counsel submitted the facts supported a finding of a common intention constructive trust. The common intention was that Sharon would have a life interest in the Property until such time as the land was subdivided and the portion containing the granny flat was transferred to Sharon. That portion was to pass to Declan on Sharon's death. Sharon relied on this common understanding to her detriment by allowing her contribution to be used to purchase the Property and in having the granny flat constructed and installed. According to counsel Sharon is entitled to a declaration of trust on terms confirming Sharon and Declan's life interest in the Property until subdivided.

62 Third, counsel submitted Sharon is entitled to a declaration of resulting trust over her proportionate contribution to the purchase price. Sharon's money was used to fund approximately 20% of the purchase of the Property. The only dispute is whether Sharon's contribution was made by way of gift or some other arrangement. Sharon's evidence is that it was not a gift.

63 Sharon's counsel submitted that Sharon is a beneficial owner of the land with a life interest in the Property. Counsel said that at the very least the Court could be satisfied that there is a question to be tried, such that the application for recovery of land should be dismissed.

64 Counsel said the facts of this case raise a strong prima facie case that justified maintenance of the caveat until trial and that the balance of convenience heavily favoured Sharon. Sharon has used her savings to help purchase the Property and construct and install the granny flat. She has nowhere else to live. If Carl were permitted to sell the Property in disregard of Sharon's interest, Sharon's proprietary interest would be extinguished and she would be left only with a personal claim against Carl both personally and in his capacity as administrator of Rhianna's estate.

65 Given the advice from Carl's solicitor that Sharon has now vacated the Property, it is no longer necessary to decide Carl's application for possession under Order 53 of the Rules.

66 I am satisfied that Sharon has established a prima facie case that she has an interest in the Property by virtue of an implied, resulting or constructive trust. I have reached this view because:

(a) Sharon's evidence was that she provided the funds pursuant to an agreement with Carl and Rhianna that they would purchase a property together that was large enough to subdivide and accommodate a granny flat for Sharon and Declan in the rear yard;

(b) there is no dispute that $85,000 used to purchase the Property came from Sharon, although Carl and Sharon give conflicting evidence about whether Sharon intended this to be a gift to Rhianna;

(c) a granny flat was established in the rear yard of the Property which Sharon and Declan moved into;

(d) while Carl disputes the existence of any agreement to jointly purchase the Property, and that Sharon's $85,000 was a contribution and not a gift to Rhianna, on an application to remove a caveat it is not necessary for Sharon to do more than establish a prima facie case for the interest she asserts;

(e) the conflicts in the evidence are a matter to be resolved at trial.

67 As Sharon has established a prima facie case, it is necessary to consider whether the balance of convenience favours maintenance of the caveat until trial. For the following reasons I have decided that the balance of convenience favours removing the caveat.

68 First, there is no dispute between the parties that the mortgagee is intending to sell the Property and I accept that the sale is likely to achieve a better price without the caveat.

69 Second, the caveat asserts an absolute prohibition on dealing with the Property while Sharon's interests in the Property taken at their highest are not asserted to be to the whole of the Property.

70 Third, in circumstances where the mortgagee is intending to sell the Property and no party disputes the mortgagee's rights to do so, Sharon's interests in the residue funds after the mortgagee sale of the Property will necessarily have to be pursued through personal claims.

71 As the balance of convenience favours removal of the caveat, I will so order.

72 For the reasons given above it is unnecessary for the Court to determine Carl's application for an order for possession of the Property. Accordingly, I will dismiss this claim.

73 In relation to Carl's application to remove the caveat, I have decided that while Sharon has established a prima facie case that she has the interest she asserts in the caveat, the balance of convenience favours its removal. I will order the Registrar of Titles to remove the caveat.

74 I request the parties to confer on the question of the costs of the proceeding. If the parties are unable to reach agreement on costs within 14 days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.

CARL DANIEL BARNARD (in his capacity as Executor of the Estate of RHIANNA ELIZABETH JANE OTTEN and to the extent necessary in his own capacity)

[1] I have referred to the parties by their first names to avoid confusion because the deceased, first and second defendant share a family name. No disrespect to the parties is intended.

[2] [2010] VSC 240; (2010) 27 VR 489, [12].

[4] Mushinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137.

[5] Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120.

[6] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

[7] Nelson v Nelson (1995) 184 CLR 538.