Boral Limited v Elham Aghili

Boral Limited appealed to the Court of Appeal of the Australian Capital Territory against an order of the Master refusing to extend the operation of a caveat. The application to extend the caveat had been made ex parte. The caveat sought to protect an equitable interest pursuant to a written guarantee, by which the registered proprietor agreed to charge all his equitable interest in freehold and leasehold property in favour of the caveator.

The Court of Appeal was required to determine whether the Master had erred in considering the substantive issues concerning the construction of the guarantee and the enforcement of the charge, rather than the procedural requirements for extending a caveat. Specifically, the Court needed to consider the application of Rule 706 of the Court Procedures Rules 2006 (ACT), which provides a mechanism for obtaining urgent orders, including the extension of a caveat, before proceedings have formally commenced.

The Court reasoned that the Master should not have embarked upon the substantive issues of the guarantee's construction or the charge's enforcement, as these were matters to be determined in substantive proceedings. Rule 706 of the Court Procedures Rules 2006 (ACT) provided a specific procedure for extending the operation of a caveat in urgent circumstances, even if other processes for extension were available. The Master had failed to consider the issues raised by Rule 706, including the requirement for issuing process to start proceedings. The Court found that the appeal should be upheld on this basis.

The Court further ordered that the Registrar-General enter a caveat on the Register in the same terms as the caveat that had been removed. This was done under section 107 of the Land Titles Act 1925 (ACT) to restore the parties to their position before the Master's order. The Court also extended an existing injunction restraining the respondent from dealing with the property until 5.00 pm on 13 August 2009, to allow the appellant time to file the new caveat. The appeal was upheld, with no order as to costs.