Ford v Birt

[1999] NSWSC 238

CITATION:	Ford v Birt [1999] NSWSC 238
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	3597/97; 1682/99
HEARING DATE(S):	15 & 17 March 1999
JUDGMENT DATE:	17 March 1999
PARTIES :	Margaret Caroline Ford (P) Daniel Arthur Birt (D)
JUDGMENT OF:	Hamilton J

COUNSEL :	Miss C A Webster (P) A Relf, Solicitor (D)
SOLICITORS:	Walker Gibbs & King (P) John Clarke & Associates (D)
CATCHWORDS:	CONVEYANCING [191] - Torrens system - Caveats against dealings - Practice - Order extending caveat - Circumstances in which order extending refused but interlocutory injunction granted.
CASES CITED:	Morris v Morris [1982] 1 NSWLR 61
DECISION:	Order extending caveat refused but interlocutory injunction granted.

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~17/03/99 3

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 17 MARCH 1999

1682/99 MARGARET CAROLINE FORD v DANIEL ARTHUR BIRT
3597/97 MARGARET CAROLINE FORD v DANIEL ARTHUR BIRT

JUDGMENT

HIS HONOUR:
1 This matter has come before me as an application for the extension of a caveat which expires today. The caveat, in terms, claims:
"Equitable ownership by the caveator of new house and 100 acres around house on the land."
The background is that the plaintiff is a daughter, and the defendant the executor of her mother's estate. The mother owned rural land of about 600 acres and during her lifetime, it is alleged by the plaintiff, that the daughter and her husband, at their own expense, built a house on that land. The balance of the plaintiff's case is put alternatively that there was such a promise and/or conduct by the mother as ought lead to a constructive trust being declared of the house and 100 acres of land around it in favour of the daughter, or that, at the very least, there should be a charge under the principle of Morris v Morris [1982] 1 NSWLR 61 declared in the daughter's favour in respect of moneys invested in the house. Either of these, it is said, would be a caveatable interest, although it is the former and not the latter that is adverted to in the caveat in fact on the title.

2 I should say at once that there are also pending between the same parties in this Division of the Court proceedings under the Family Provision Act 1982 (the FPA) in which the daughter claims provision out of the mother's estate. It may be that the provision would be granted. The alleged promise of part of the land is obviously relevant to those proceedings and provision may, if circumstances were appropriate, be made in the form of an order to transfer part of the land. Certainly it would be difficult for the mother's estate to be dealt with in the FPA proceedings independently of it being, or before it was, determined whether the daughter had a proprietary right in the subject land.

3 Mr Relf, the solicitor for the defendant, has drawn attention to a number of difficulties with the existing caveat, and those difficulties are of some substance. The only one that I need to advert to in these short reasons for judgment is the lack of definition of the 100 acres of land referred to. Certainly the property is not at the present time subdivided, so that there is no parcel with separate title representing the 100 acres referred to. There may be difficulties about the 100 acres being able to be defined at the present time, though it is not clear that that difficulty is such as would necessarily defeat the plaintiff's ultimate claim.

4 For this and various other reasons I do not propose to extend the caveat, as I do not, in these circumstances, think that the most satisfactory interlocutory regime is by way of caveat. I do, however, on the application made today by Miss Webster, of counsel for the plaintiff, and subject to the giving of an appropriate undertaking as to damages, propose to grant relief by way of injunction. Mr Relf has no instructions which would permit him to consent to the injunction, although he has very sensibly and usefully cooperated with Miss Webster in bringing forward a form of injunction that would meet the circumstances, if I were minded to grant an injunction. I am of the view that a sufficient case is made out on the plaintiff's material read before me for it to be appropriate for injunctive relief to be granted and, in addition, the balance of convenience, it seems to me, favours the granting of an injunction in the form that has been drafted.

5 Whilst it is not appropriate within the administrative arrangements of this Division of the Court for me, not being an Expedition Judge for 1999, to make an order for expedition, I do think it appropriate that I make an order that these proceedings and the FPA proceedings, to which I have already referred, be heard at the same time and to refer both matters to the Expedition Judge in the near future for his attention, and that is the course I propose to take.

6 Mr Relf has pressed on me that I ought deal with the question of costs today and that the defendant should receive a favourable order for costs, as he was always ready to come to some appropriate regime and a communication was sent to the plaintiff to this effect yesterday. There is some uncertainty as to the precise form in which the communication was sent and, bearing that in mind, together with other circumstances of the case, in my view this is one of those occasions where it would be better to reserve the costs of the interlocutory application, so that they may be considered after the issues between the parties have been resolved, and that is what I propose to do.

7 I make the following orders:

1 In proceedings 1682/99 I make orders in accordance with the short minutes initialled by me and placed with the papers.

2 In proceedings 3597/97 I order that these proceedings be tried at the same time as proceedings 1682/99 and that the evidence in the one be evidence in the other, subject to relevance.

3 I order that both sets of proceedings stand over to 19 March 1999 before the Expedition Judge.


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