Dolan v Dolan

[2023] VSCA 136

Victorian Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Torrens system
3. › Caveats
4. › Application for removal of caveat
5. › Whether order refusing removal was interlocutory or final
6. › Whether issue estoppel or res judicata arises from refusal to remove caveat
7. › Transfer of Land Act 1958 (Vic), s 90(3)
1. Real Property
2. › Caveats
3. › Serious question to be tried
4. › Admissibility of affidavit evidence in same form as proposed pleading
5. › Whether affidavit paragraph reproducing pleading was inadmissible
6. › Evidence Act 2008 (Vic)
1. Real Property
2. › Caveats
3. › Balance of convenience
4. › Acceptance of undertakings from caveator
5. › Whether associate judge erred in accepting undertaking where applicant declined to engage on adequacy
6. › Whether applicant can subsequently complain amount was inadequate
1. Real Property
2. › Equitable interests in land
3. › Common intention constructive trust
4. › Whether caveator established serious question to be tried
5. › Whether equitable interest confers possessory right

Quick Take

An order refusing to remove a caveat under s 90(3) of the Transfer of Land Act 1958 (Vic) is interlocutory in nature and does not give rise to issue estoppel or res judicata, regardless of whether the hearing was characterised as a trial. A party who declines to engage on the adequacy of undertakings offered by the caveator at the hearing cannot subsequently complain that the undertakings were inadequate. Affidavit evidence is not rendered inadmissible merely because it reproduces the content of a proposed pleading.