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Victorian lawyer lodges wrongful caveat on feuding neighbour
A Victorian lawyer who assisted a client’s fence line feud with a neighbour has faced disciplinary proceedings.
Naomi Neilson
The Victorian Civil and Administrative Tribunal (VCAT) found Hubert Fong guilty of three counts of unsatisfactory professional conduct for lodging caveats on the neighbour’s property without a proper basis.
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While the Legal Services Commissioner pushed for a finding of professional misconduct, senior member Elisabeth Wentworth determined Mr Fong did not act “knowingly or recklessly”.
For the first caveat, lodged in 2016 over a dispute about where the fence line began, Mr Fong used the ground “adverse possession by exclusive occupation” and claimed the caveat was lodged to “defend claims for adverse possession should they be made”.
On the second and third caveats, lodged in 2017 and 2018, Mr Fong claimed the registered proprietors were “entitled to possession of the certificate of title for the land and to prevent improper dealings”.
The first and third caveats lapsed after the neighbour made an application to Land Titles, and Mr Fong did not commence proceedings in an attempt to substantiate his client’s claims.
The second was withdrawn before an application could be made.
Ms Wentworth said the grounds were wrong for all three caveats.
“His client had no legal, equitable, or possessory interest in the neighbour’s property capable of supporting a caveat,” Ms Wentworth said, and added Mr Fong now recognises it was wrong.
Ms Wentworth said the client had the right to bring a claim in the Magistrates Court under the Fences Act 1968, but no such right existed for Mr Fong to create a caveatable interest.
While Ms Wentworth found the conduct was not deliberately reckless, she did note a reasonably competent and diligent practitioner would have “critically examined” the grounds and carefully considered whether it supported a caveat.
Given the neighbour’s lawyer had sent Mr Fong letters about why the caveats were not wrong after each attempt, Ms Wentworth found the third caveat was a “more serious error”.
“Lodging the first caveat was, in my view, at the lower end of unsatisfactory professional conduct but nevertheless warranted that description,” Ms Wentworth said.
“Once Mr Fong was on notice of the arguments raised by the neighbour’s lawyer, after the first caveat had been lodged, his conduct including not seeking advice before lodging the subsequent caveats took the matter to the higher end of unsatisfactory professional conduct.”
An administrative mention has been scheduled to determine penalty.
