Supreme Court of Victoria: Green v Elvin Lawyers Caveat Removal Victoria

• The Supreme Court of Victoria ordered the conditional removal of a caveat lodged by Elvin Lawyers over a family home in Green (a pseudonym) v Elvin Lawyers Pty Ltd [2026] VSC 675.
• Elvin Lawyers had lodged the caveat to secure $33,899.77 in unpaid legal fees, based on a charge granted by the property owner.
• The charge was granted in November 2023, despite an injunction issued by the Federal Circuit and Family Court in April 2023 prohibiting encumbrances on the property.
• The court found a prima facie case for the law firm's interest but noted doubts about the charge's enforceability due to the breach of injunction.
• The balance of convenience favored removing the caveat, primarily to prevent the plaintiff from losing her family home through mortgage enforcement, with the removal conditioned on an undertaking for potential damages.

The court gave considerable weight to the possibility of the plaintiff losing her residence, particularly when juxtaposed with the relatively modest amount of $33,899.77 secured by the law firm unpaid fees caveat, and the questionable circumstances surrounding the charge's creation.

The Supreme Court of Victoria recently addressed an application concerning a caveat lodged by Elvin Lawyers Pty Ltd over a property in Coburg North, a matter identified as Green (a pseudonym) v Elvin Lawyers Pty Ltd [2026] VSC 675. The dispute arose from legal fees incurred by the property's owner, the former de facto partner of the plaintiff, who had engaged Elvin Lawyers for representation in family law proceedings.

In April 2023, the Federal Circuit and Family Court of Australia issued an injunction, specifically prohibiting the parties from dealing with or further encumbering their property. Despite this order, in November 2023, the former partner granted Elvin Lawyers a charge over the property to secure both existing and future legal fees. Following this, the law firm proceeded to lodge a caveat, asserting an interest as a chargee. By October 2025, the family court had ordered the former partner to transfer his interest in the property to the plaintiff, but this transfer was not completed. The plaintiff subsequently sought to refinance the property, encountering an obstacle when Elvin Lawyers demanded $33,899.77, or equivalent security, before agreeing to withdraw its caveat.

The Supreme Court of Victoria considered the application for `caveat removal Victoria` under section 90(3) of the Transfer of Land Act 1958 (Vic). The court's assessment focused on two primary questions: whether the law firm had established a prima facie case for its claimed proprietary interest and whether the `balance of convenience` justified maintaining the caveat.

Regarding the prima facie case, the court acknowledged that the written charge and evidence of outstanding legal fees did indeed establish a preliminary proprietary interest for Elvin Lawyers. However, the court also noted significant doubts regarding the enforceability of this charge. This concern stemmed from the apparent fact that the former partner had granted the charge in direct breach of the injunction issued by the Federal Circuit and Family Court in April 2023. The Supreme Court, however, did not definitively resolve the issue of the `charge in breach of injunction` or determine the priority between the competing equitable interests at this stage of the proceedings.

In its crucial assessment of the `balance of convenience caveat removal`, the court weighed the competing interests, placing substantial emphasis on the plaintiff's inability to complete the necessary refinancing of the property. A significant factor was the potential for the Bank of Melbourne to enforce its mortgage, which could lead to the loss of the family home. The court gave considerable weight to the possibility of the plaintiff losing her residence, particularly when juxtaposed with the relatively modest amount of $33,899.77 secured by the `law firm unpaid fees caveat`, and the questionable circumstances surrounding the charge's creation.

Ultimately, the court concluded that the `balance of convenience` strongly favored the removal of the caveat. This decision for `conditional caveat removal family home Victoria` was made contingent upon the plaintiff providing an undertaking to comply with any future damages order that might arise from the caveat's removal. The court directed the plaintiff to prepare draft orders incorporating this undertaking and also urged both parties to consider their obligations under the Civil Procedure Act 2010 (Vic) to pursue a negotiated resolution before engaging in further litigation.

This ruling highlights the Victoria Supreme Court's approach to balancing competing interests when a law firm lodges a caveat for unpaid fees against a family home. Lawyers should note the court's emphasis on the 'balance of convenience' test, prioritizing the prevention of homelessness, and be aware of the potential unenforceability of charges granted in breach of existing injunctions when structuring security for legal fees.

Source: Original reporting via Australasian Lawyer