FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd

[2006] NSWSC 846

CITATION:	FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846
HEARING DATE(S):	14 August 2006
JUDGMENT DATE :	14 August 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	08/14/2006
DECISION:	Plaintiff’s Summons for removal of caveat dismissed.
CATCHWORDS:	CONVEYANCING – CAVEATS – Whether second caveat claims “same interest” and relies on “same facts” as prior caveat – whether second caveat ineffective under s.74O Real Property Act – whether failure in caveat to state “amount charged on the land” can be cured under s.74L – whether caveator can rely on doctrine of part performance to support caveat claiming oral agreement to create charge.
LEGISLATION CITED:	- Conveyancing Act 1919 (NSW) – s.23C, s.54A - Real Property Act 1900 (NSW) – s.32, s.74F, s.74L, s.74MA, s.74O - Real Property Regulation 2003 (NSW) – Schedule 3
CASES CITED:	- Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2006) NSW ConvR 56-143 - Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314 - Diamond Hill International Pty Ltd v Xu (1997) 7 BPR 15,213 - Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880 - Hastie & Benecke v National Australia Bank (1994) 7 BPR 15,116 - Jones v Baker (2002) 10 BPR 19,115 - McCulloch v Fern (2000) 10 BPR 18,073 - Midwarren Estates Pty Ltd v Retek [1975] VR 575 - Neoform Developments & Interiors Pty Ltd v Town & Country Marketing Pty Ltd (2002) 49 ATR 625 - Paul, In re (1902) 19 WN(NSW) 114 - Synergy Concepts Pty Ltd v Rylegrove Pty Ltd (in liq) (1997) 8 BPR 15,555 - Tolhurst v Crickett Pty Ltd (in liq) (2001) 10 BPR 19,087 - Troncone v Aliperti (1994) 6 BPR 13,291
PARTIES:	FTFS Holdings Pty Ltd – Plaintiff Business Acquisitions Australia Pty Ltd - Defendant
FILE NUMBER(S):	SC 4206/06
COUNSEL:	Ms P. Ryan – Plaintiff M. Southwick – Defendant
SOLICITORS:	Accentro Legal – Plaintiff Edwin Davey Commercial & Litigation Lawyers – Defendant

1 The Plaintiff seeks an order under s.74MA of the Real Property Act 1900 (NSW) (“RPA”) for the removal of a caveat lodged by the Defendant over the Plaintiff's property in Five Dock. The application is founded on several grounds. 2 The first ground is that the leave of the Court to file the subject caveat was required under RPA s.74O and that that leave was not obtained and cannot now be granted. That submission is founded upon the circumstance that the Defendant has previously lodged a caveat on the title to the Plaintiff's property, caveat numbered AC494875U. The interest in the estate or interest claimed by the Defendant as disclosed in schedule 1 of that caveat is “EQUITABLE INTEREST” . Under the heading “By virtue of the facts stated below” , the following is set out:
“ORAL AGREEMENT BETWEEN REGISTERED PROPRIETOR AND CAVEATOR ON 8 JUNE 2006.”
3    The facts underlying the lodging of this first caveat may briefly be summarised as follows. The Plaintiff wished to borrow money to fund a development project. The Defendant is a finance broker. The Plaintiff made inquiries of the Defendant to obtain finance for the Plaintiff's project. The Defendant says that on 9 July 2006 the Plaintiff, by Mr Nguyen on its behalf, agreed orally to the terms of a Mandate Agreement, which had been previously provided to it. 4    The Mandate Agreement, which has never been signed by the Plaintiff, provides in clause 3, so far as is presently relevant, as follows:

“ FEES

3.1 The Owner [meaning the Plaintiff] agrees to pay the following fees by the due date indicated below:

(a) Mandate Fee
The Owner shall pay a non-refundable mandate fee of $22,000 (inc gst) to BAA [meaning the Defendant] on the date of settlement.
If the owner fails to pay the mandate fee on the date of settlement, BAA shall have the option, by notice in writing to the Owner, of either:
i) terminating this Deed; or
ii) deeming the mandate fee to be a debt owed by the Owner and be subject to the terms of this clause 3 and subject to the Security interest in clause 4.

(b) Brokering Fee
A brokering fee of the greater of 5% of the amount arranged to be financed by BAA or $20,000. The brokering fee is payable upon settlement of the Finance. The brokering fee is non-refundable even if the Owner elects not to accept the offer of finance. If the Owner fails to pay the brokering fee on the due date (date of settlement) BAA may deem the brokering fee to be a debt owned by the Owner and be subject to the terms of this clause 3 and subject to the Security interest in clause 4.

3.2 Payment of fees
The Owner shall be liable to pay the Fees to BAA on or before the date referred to for the relevant fee in clause 3.1. Any Fees that are not paid by its due date shall constitute a debt by the owner to BAA subject to the terms of this Deed.
…
3.5 On demand
The Fees and all accrued interest in respect of the Fees shall be a debt due and payable by the Owner to BAA within 24 hours of receipt of a notice in writing by BAA.”
5    It appears from the evidence that the Defendant did some work to procure a loan for the Plaintiff's development. Documents were drawn up and forwarded to the Plaintiff's solicitors. As it transpired, the loan which the Defendant said it had arranged did not proceed. Nevertheless under the terms of Clause 3.1(b) of the Mandate Agreement, the Defendant demanded payment of the brokerage fee, which the Plaintiff refused to pay. The Defendant then placed a caveat on the title to the Plaintiff's land, purportedly in pursuance of Clause 4 of the Mandate Agreement said to have been orally accepted. 6    Clause 4 provides as follows:

“ SECURITY

The Owner acknowledges and consents to the granting of a Security Interest over any asset of the Owner including the Property to secure the Owner’s obligation to pay the Fees, interest and any expenses payable by the Owner to BAA.

The Owner charges the Property with the payment of any amount payable under this Deed.

The Owner consents to:

(a) BAA lodging a caveat against the title of the Property noting BAA’s interest in the Property pursuant to this Deed and preventing any dealings on the title until the Fees, interest and expenses have been paid; and

(b) notifying the existence of BAA’s Security Interest to any other person who has or will have a Security Interest over any of the assets of the Owner.”
7 The Plaintiff then applied to the Court under RPA s.74MA for removal of the caveat. The matter came on for hearing before Nicholas J and his Honour ordered removal of the caveat. His Honour’s reasons for judgment are not yet available but, from what I am told from the Bar table, it appears that the essence of his Honour's decision was that the words "equitable interest" in the description “nature of the estate or interest in the land" in the caveat form were inadequate to disclose the interest claimed and resulted in the caveat being incurably bad in form. 8    The Defendant then lodged the caveat which is the subject of this application. Under the heading "Nature of the estate or interest in land" appears the following, “Charge and entitlement to lodge caveat arising from Exclusive Mandate” . Below that there appears a disclosure of what is meant by “Exclusive Mandate” as follows:

“Nature of Instrument	Date	Parties
Exclusive Mandate	July 2006	The registered proprietor and the caveator”

9    There can be no doubt that the instrument identified as "Exclusive Mandate" is the Mandate Agreement which is attached to Mr Wong's affidavit sworn 11 August 2006, and which is said to have been orally accepted by the Plaintiff on 9 July 2006. This is made clear by the following statement in the caveat form under the heading, “by virtue of the facts stated below”:
“Exclusive Mandate agreement accepted orally on 9 July 2006 by the registered proprietor and subsequent conduct of the registered proprietor and by reference to the loan offer set out in the letter from Redmond van de Graff.”
10 There is no doubt that the Defendant intends to protect by this second caveat the same security right in the Plaintiff's land which the Defendant contended it had under the Mandate Agreement and which the Defendant sought to protect by the first caveat that was lodged against the land. However, the Defendant’s intention is not the decisive point in ascertaining whether or not, as a matter of fact and construction, the second caveat falls within the words of RPA s.74O. 11 Subsection (1) of that section relevantly provides:

“ Restrictions on lodgement of further caveats if earlier caveat lapses or is withdrawn

(1) This section applies if a caveat lodged under a provision of this Part in respect of any particular estate or interest in land or any particular right arising out of a restrictive covenant:
…
…
(c) is withdrawn or lapses under section 74MA,

and the same caveator lodges a further caveat with the Registrar-General in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat.”
12    It will be seen that, in order for leave of the Court to be required for a second caveat, that caveat must be "in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat" (emphasis added). The wording in the two caveat forms as to the interest claimed or as to the supporting facts does not have to be identical to bring the second caveat within the purview of RPA s.74O; mere colourable variations in the wording of the two caveats will not be effective to circumvent the section: McCulloch v Fern (2000) 10 BPR 18,073 at para 7 per Hamilton J; see also Hastie & Benecke v National Australia Bank (1994) 7 BPR 15,116 per Handley JA. However, it must be clear from a comparison of the two caveat forms that it is “the same estate, interest or right” which is being claimed in both caveats. Likewise, it must be clear from a comparison of the two documents that essentially the same facts are being relied upon to support both claims for the same estate or interest: cf per Santow J (as his Honour then was) in Synergy Concepts Pty Ltd v Rylegrove Pty Ltd (in liq) (1997) 8 BPR 15,555. 13 That a second caveat is ineffective under RPA s.74O should appear fairly clearly from a comparison of what appears on the face of the two caveats. Where the two caveats claim distinctly different interests or rely upon distinctly different facts, the Plaintiff cannot show that s.74O has been engaged by taking the Court behind the face of the second caveat and demonstrating that the caveator relies upon the same underlying transaction as was claimed to support the first caveat. This is because the engagement of s.74O should be apparent to the Registrar General, who cannot go behind the face of the documents lodged in the same way as the Court can. The Registrar General should be able to see that, colourable variations in wording aside, the interests claimed in the two caveats are the same and the supporting facts relied upon are the same. The Registrar General must be able to see that the second caveat has been lodged without an order of the Court under s.74O(2)(a) or without an endorsed consent under ss.(2)(b). If the Registrar General is satisfied from the face of the caveats lodged that the second caveat is ineffective under s.74O, the Registrar General may decline to record it or may, if it has been recorded, cancel it under RPA s.32(6), without any application to the Court under s.74MA being necessary. 14 Of course, where a subsequent caveat claims a distinctly different interest from a prior caveat lodged by the same caveator or relies upon distinctly different supporting facts, the Registrar could rarely, if ever, have recourse to s.32(6). The registered proprietor in such a case is not, however, without remedy. He or she may always apply to the Court for removal of the second caveat under RPA s.74MA, relying upon any of the grounds available under that section. Indeed, even though in such a case the second caveat could not be held ineffective under s.74O, the Court could order its removal under s.74MA ex parte and without notice to the caveator if it appeared clear beyond argument both that the caveator’s interest in the land claimed in the second caveat was without substance and that the second caveat had been lodged vexatiously: see e.g. Hastie v National Australia Bank Ltd (supra); Diamond Hill International Pty Ltd v Xu (1997) 7 BPR 15,213. 15 In my opinion, a comparison of the two caveats in the present case shows that an application by the Defendant for leave to file the second caveat under RPA s.74O was not necessary. The first caveat claimed an undefined "equitable interest" , which is so vague as to be meaningless so that, in effect, no particular interest at all was claimed: see e.g. Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880 per Campbell J. The second caveat, however, claims two specific interests, one being the express security interest provided by the charging clause of the Mandate Agreement and the other being the implied equitable charge arising by virtue of the Plaintiff’s agreement in Clause 4 that the Defendant may lodge a caveat against the Plaintiff’s land. It has been held on a number of occasions that if a registered proprietor by contract consents to the lodging of a caveat against his or her land in aid of a money claim, that agreement supports the implication of an equitable charge sufficient to maintain a caveat: see e.g. Troncone v Aliperti (1994) 6 BPR 13,291; Neoform Developments & Interiors Pty Ltd v Town & Country Marketing Pty Ltd (2002) 49 ATR 625 at para 21 per Young CJ in Eq. It is clear, in my opinion, in the present case that the “same interest” is not claimed in the second caveat as has been claimed in the first caveat. 16    Further, the second caveat does not rely upon the “same facts” as the first caveat. The second caveat certainly refers to the oral acceptance of the terms of the written Mandate Agreement, but it relies also upon subsequent conduct of the Plaintiff as evidencing an intention to be bound by the terms of the document. This is no mere colourable variation of the facts referred to in the first caveat. 17 For these reasons, I am not satisfied that the lodging of the second caveat required the leave of the Court under RPA s.74O(2). 18 The Plaintiff’s second submission is that the present caveat is irretrievably bad in form because it does not comply with the requirements of the Real Property Regulation 2003 (NSW). Schedule 3 of the Real Property Regulation provides in paragraph 4 that a caveat must contain:
“If the caveator claims as mortgagee, chargee or covenant chargee, a statement of the amount (if readily ascertainable) of the debt or other sum of money charged on the land (or, if the amount is not readily ascertainable, the nature of the debt, annuity, rent-charge or other charge secured on the land).”
19 The Plaintiff says that as the Defendant in the present case is claiming as a chargee, the caveat should have contained a statement of the amount of the debt charged on the land. Because the caveat clearly does not do so, it is said, it is bad and should be removed. 20 The Defendant makes two answers to this submission. The first is that the amount said to be charged by the Defendant against the land may be the subject of dispute as to amount, so that the amount is not “readily ascertainable” for the purposes of paragraph 4 of the Regulations. What is the proper amount payable, if it be found that there is an agreement which binds the Plaintiff, is susceptible to argument depending upon the construction of the brokerage clause to which I will come in a moment. 21 However, I think that the second point in answer to this submission is the more persuasive. Mr Southwick of Counsel, who appears for the Defendant, says that if there is a failure in the present caveat to comply with the requirements of paragraph 4 of the Real Property Regulation , that failure is susceptible of cure under RPA s.74L of the Real Property Act. That section provides as follows:
“If in any legal proceedings a question arises as to the validity of a caveat lodged under a provision of this Part, the court shall disregard any failure of the caveator to comply strictly with the requirements of this Part, and of any regulations made for the purposes of this Part, with respect to the form of the caveat.”
22 In response to that contention Ms Ryan of Counsel, who appears for the Plaintiff, says that the failure to state the amount of the security is of such consequence that it goes, in effect, to the very essence of the caveat and is not susceptible of cure under RPA s.74L. Ms Ryan relies upon the decision of Brereton J in Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd ([2006] NSW ConvR 56-143 ) and upon the authorities which his Honour discusses therein. However, that case and the authorities which his Honour discusses were concerned with a failure to disclose adequately the nature of the estate or interest in land claimed by the caveator, as is expressly required by RPA s.74F(5)(b)(v). Such failure has long been regarded as a defect which is not susceptible of cure under RPA s.74L: see, e.g. Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314; In re Paul (1902) 19 WN(NSW) 114; Midwarren Estates Pty Ltd v Retek [1975] VR 575; Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd (supra). In the present case there can be no complaint about the adequacy of the description of the estate or interest in land claimed by the Defendant in the second caveat. 23    It seems to me that Real Property Regulation Schedule 3 paragraph 4 itself recognises that the statement in a caveat of the amount secured by a charge is not essential to the validity of the caveat. This is so because the amount claimed to be secured is to be stated only if "readily ascertainable" . It seems to me, therefore, that a failure to state the amount secured by the charge is, of its nature, curable by RPA s.74L: see also Tolhurst v Crickett Pty Ltd (in liq) (2001) 10 BPR 19,087, at paras 6-7 per Young CJ in Eq. 24 In the present case I do not think there is any reason why the Defendant should not be entitled to avail itself of the provisions of RPA s.74L in order to validate the caveat. The terms of the Mandate Agreement were unquestionably made known to the Plaintiff; the debate is whether the Plaintiff ever accepted those terms. The terms show the manner in which the Defendant's fee is calculated. If the Plaintiff is ultimately found to have agreed to the terms of the Mandate Agreement, then the means of calculating the Defendant’s fee will have been known to the Plaintiff for some time. For those reasons, I do not think that the caveat should be held incurably bad because of the omission from the caveat form of the amount claimed to be secured by the charge. 25 The Plaintiff’s third submission is that the Defendant has no caveatable interest because, on the true construction of the Mandate Agreement (if there was such an agreement), no debt for fees arose unless and until the finance the subject of that agreement was settled. The Plaintiff points to the words in clause 3(1)(b) "the brokering fee is payable upon settlement of the finance" . The Plaintiff says that as there was no settlement of the finance then it is unarguably clear that there can be no fee payable under this clause. 26    The clause is by no means well drafted. Clause 3.1(b) also states that the brokering fee is “non refundable even if the Owner elects not to accept the offer of finance” . If the offer of finance is not accepted then, of course, there can be no date for settlement of the finance. Thus, one part of the clause contradicts another. 27 It is not necessary, neither is it usually desirable, in an application of this type for the Court to embark upon issues of construction: an examination of the matrix of surrounding circumstances is often necessary in aid of construction and issues of fact may arise. It is sufficient if the caveator is able, for the purpose of demonstrating a caveatable interest, to show that there is at least an arguable case for the construction of the document he relies upon in order to support the interest claimed. In my opinion, the Defendant has demonstrated an arguable case that, despite the clumsy drafting of the Agreement, nevertheless a brokerage fee was payable if finance was “arranged”, regardless of whether settlement of that finance took place. 28 The Plaintiff’s next submission is that, even if the Court’s leave under RPA s.74O was not required for the lodgement of the second caveat, nevertheless the lodgement of the caveat is an abuse of process because no invoice was sent by the Defendant to the Plaintiff prior to lodgement claiming the amount due in respect of brokerage fees. 29 I do not think, with respect, that there is any substance in this point. It is clear that the parties have been in dispute for some time about whether the Plaintiff agreed to terms of the Mandate Agreement. On one side, the Plaintiff says that it was made clear that the terms of the agreement were not accepted. On the other side, the Defendant says that there was clear oral acceptance of the terms of the Agreement. That issue, being essentially one of credit, is not susceptible of resolution in an application such as this. There is a question to be tried as to whether or not any agreement was made in the terms of the Mandate Agreement and that issue will, no doubt, be determined on another occasion. The Plaintiff, however, has made it clear by its conduct that, even if an invoice had been sent claiming an amount pursuant to the Mandate Agreement, that invoice would not have been paid. 30 The Plaintiff’s next submission is that there was no agreement in fact made in the terms of the Mandate Agreement. I have dealt with this submission in discussing the previous submission. As I have said, there is a real issue to be tried as to whether or not the terms of the Mandate Agreement were accepted by the Plaintiff either orally or by conduct or by a combination of both. There is, in my opinion, sufficient evidence adduced by the Defendant to raise a triable and arguable issue. 31 The Plaintiff’s final submission is that even if there was an agreement made in terms of the Mandate Agreement the interest claimed by the Defendant thereunder is defeated by operation of s.23C and s.54A of the Conveyancing Act 1919 (NSW) because the Defendant concedes that the Mandate Agreement has not been signed “by the party to be charged” , namely, the Plaintiff. The answer made by the Defendant to this contention is that it is able to take advantage of the doctrine of part performance in that it collected material to support the Plaintiff’s loan application and did other work which is unequivocably referable to the performance of the Mandate Agreement according to its terms. 32    There is authority to support the proposition that part performance of an oral contract to create a security in land may be relied upon to support a caveat claiming that interest: see Jones v Baker (2002) 10 BPR 19,115, at par [60] per Young CJ in Eq and the authorities therein discussed. Whether or not what the Defendant actually did is unequivocably referable to the terms of the Mandate Agreement is an issue of fact which can only be determined at a final hearing. There is sufficient in the Defendant’s evidence at this stage, in my opinion, to raise a triable case that there has been part performance by the Defendant of the Mandate Agreement.

In summary, I am of the view that:

– the present caveat is not bad in form to the extent that it cannot be cured under RPA s.74L;

– lodgment of the caveat did not require the leave of the Court under RPA s.74O;

– the Defendant has discharged its onus of demonstrating that it has a prima facie or arguable case that the Agreement upon which it relies was, in fact, made and that the security interest which it claims thereunder is enforceable by reason of part performance by the Defendant.

33    For those reasons I decline to make the orders sought in the Summons. The Summons will, therefore, be dismissed. The Plaintiff will pay the Defendant’s costs of the proceedings.

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