Weingarten v Fletcher [2003] VSC 448

2 Mr Weingarten has deposed to the fact that in September 1998 he and the defendant commenced a domestic relationship at the property in question. Thus, the first point to note is that the property was purchased by the plaintiff prior to any relationship with the defendant. Mr Weingarten then deposes to the fact (and I am summarising) that he has expended all the moneys in the purchase, maintenance and upkeep of the property and that the defendant has made no financial contribution and made no other contribution, other than the fact, of course, that she was living there in a domestic relationship with the plaintiff. The parties separated in January of this year and the defendant moved out of the property.

3 Notwithstanding the lodging of the caveat, the defendant has not come to court to support the caveat, so that I am left with Mr Weingarten's unchallenged evidence. I am satisfied on the basis of that material, in the absence of any evidence from the defendant in support of her claim, that there is no caveatable interest and the caveat should be removed.

4 There was one complication, and that concerned service of the application on the defendant. Last Thursday I made an order for substituted service, having been told that four attempts were made to serve the defendant at her new residential address and that there was no response to the attempt to contact her. The premises at which she lives at 804/1 Roy Street, Melbourne were such that it is impossible to gain access to the premises unless someone in one of the units permitted it. Initially I had some concern about making an order preserving the proceeds of the sale, after the first mortgagee bank had been paid out. The concern was based on the fact that there had only been substituted service, although I was satisfied that the order had been complied with and that all the documents had been placed in the letter box for that particular unit. However, Mr Herskope, who appeared with Mr Heath for the plaintiff, persuaded me that, by virtue of the fact that a letter from their instructing solicitors to the defendant seeking her consent to removal of caveat had been personally served on her, she was well aware of the fact that this application would be made if she did not comply with that request. I have now been provided with an affidavit by the courier who handed the envelope, in which, evidence has been given, the letter was contained, to the defendant and that she acknowledged that she was the person to whom it was addressed. In those circumstances it seems to me that, the defendant not having come to Court to seek to pursue her claim, I should make no orders preserving the proceeds of the sale and merely make an order for removal of the caveat.

5 The only other question is the question of costs. Mr Herskope has sought costs on an indemnity basis. He submitted that I should infer that the lodging of the caveat, in circumstances where no claim had previously been made for any interest in the property and no subsequent contact was made with the plaintiff or his solicitors and no attendance at court, was merely an attempt to cause difficulties to the plaintiff. As Dodds-Streeton J said in the decision of Goldstraw v. Goldstraw [2002] VSC 491 at [42], if a widespread practice developed of lodging caveats as bargaining chips in such context (which, I interpose, was a matrimonial context in that case) it would undermine the operation of an essential feature of the Torrens system. I respectfully agree with her Honour's comments as to the undesirability of allowing caveats to become bargaining chips. One provision in the legislation to try and dissuade the wrongful or unjustifiable lodging of caveats is that a caveator can be sued for damages for the lodging of a caveat without reasonable cause (s.118 of the Transfer of Land Act 1958). There is no such claim here, but it seems to me that the fact that damages could be claimed is a justifiable reason for giving the plaintiff protection to the fullest extent possible in terms of costs so that he should not be out of pocket from having to come to court in circumstances which, as I consider them now, seem to be a totally unwarranted interference with his rights.

6 On that basis I will make an order for indemnity costs and I will sign the order.