Hall v Clark

[1989] TASSC 115

Serial No B37/1985
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Hall v Clark [1989] TASSC 115; B37/1989

PARTIES: IN THE MATTER OF S136 OF THE LAND TITLES ACT 1980

IN THE MATTER OF CAVEAT NO A 45068

HALL
  v
  CLARK
  TASMANIAN DEVELOPMENT AUTHORITY
  RECORDER OF TITLES

FILE NO:  M352/1989
DELIVERED ON:             22 September 1989
JUDGMENT OF:              Neasey J

Judgment Number:  B37/1989
Number of paragraphs:  8

Serial No B37/1989
File No M352/1989

IN THE MATTER OF S136 OF THE LAND TITLES ACT 1980
AND IN THE MATTER OF CAVEAT NO A 45068
HALL v CLARK, TASMANIAN DEVELOPMENT AUTHORITY
AND RECORDER OF TITLES

REASONS FOR JUDGMENT  NEASEY J

22 September 1989

1. The applicant has applied for an order under s136 of the Land Titles Act 1980 that the Recorder of Titles shall not register any instrument the registration of which is presently prevented by caveat No A454068. The caveat was lodged on 18 June 1974 in respect of land comprised and described in Certificate of Title volume 2328 folio 22. The caveat is in the following form:–

"TAKE NOTICE that I GEOFFREY MILTON HALL Sawmiller of Karanja in Tasmania claiming Estate or Interest as purchaser of an amount of timber growing on the land contained in Certificate of Title Vol. 2328 Fol. 22 by virtue of an oral agreement between GEOFFREY MILTON HALL of the one part and KEITH CLARK of Ellendale Farmer of the other part in ALL the land mentioned in the schedule following [there follow particulars of the Certificate of Title, and a reference to 'whole of the land'] forbid the registration of any Memorandum of Transfer or other Instrument affecting the said land …".

1. The interest claimed by the applicant in the land is timber growing thereon. The right to take timber from land is a profit à prendre, and is an interest in land – Edward's Law of Property in Land and Conveyancing, 5th ed, pp237 and 238; Marshall v Green [1875] CPD 35; Woodberry v Gilbert [1907] Tas SR 7 at p9. It is therefore an interest within the meaning of s133(2) of the Land Titles Act 1980.

1. However, the evidence which seeks to establish that the applicant in fact has an interest in the land sufficient to maintain the caveat is scanty and unpersuasive. The applicant has filed an affidavit in which he says in substance that late in 1967 or in early 1968 he agreed to pay one Ronald Malcolm Clark, who is a brother of the first respondent Keith Clark, $800 for the timber growing on Ronald Clark's land. The affidavit does not say where the land is but the evidence as a whole indicates that it is the land at Karanja in relation to which the caveat was later lodged. The affidavit states that the applicant agreed to purchase the timber for $800 – the applicant does not say from whom, and that subsequently in the office of Mr J H Dixon, solicitor of New Norfolk, he met with Ronald Clark and the respondent Keith Clark. The applicant said that he there, at that meeting, recalls having paid Ronald Clark the sum of $800 by cheque, for which he did not get any receipt. He also says in the affidavit that the only condition to which the purchase of the timber was subject was that he was not to interfere with the water race on the land. The Certificate of Title shows that there is a "water race reserve 25 links wide" running across the southern side of the 49 acre block. The applicant's affidavit does not claim that he made any contract with the respondent Keith Clark, although he says the latter was present in the solicitor's office when he paid the $800 cheque to Ronald Clark.

1. The applicant's affidavit also has a statement to the effect that he has read a statutory declaration apparently made by Ronald Clark on 13 December 1988 in which the latter suggested that "the purchase" was subject to a condition that he should remove the timber within five years of the date of purchase, but that he "absolutely" denies there was any such restriction. The statutory declaration referred to by the applicant is apparently in fact an affidavit, according to the evidence before me. In that affidavit, Ronald Malcolm Clark states that in 1968 he agreed to sell the land in question to the respondent Keith Clark for $1,200, and that settlement was effected at the offices of the solicitor Mr Dixon in New Norfolk. The affidavit says that at the time of settlement he was present in Mr Dixon's office with Keith Clark and the applicant Mr Hall. He says, "I was present when Keith Clark agreed to sell to Hall the timber on the property for a sum of approximately $800. The oral agreement was that Hall "had the right to take all standing millable timber above the water race within a period of five years", and that the timber below the water race was not included in the agreement.

1. Two things are evident from the evidence stated so far. One is that applicant Hall does not allege that there was an agreement between himself and the respondent Keith Clark, but implies that his agreement to purchase the timber was with Ronald Clark, to whom he paid the cheque for $800. The second is that there is substantial inconsistency between the affidavits of the applicant Hall and Ronald Malcolm Clark. The only evidence of any agreement between Hall and the respondent Keith Clark, upon which the caveat is based, is the affidavit of Ronald Clark. That affidavit states that Hall's agreement was with Keith Clark, and it was qualified in the manner set out; namely that the timber was to be taken within five years. If the applicant has to rely upon the affidavit of Ronald Clark as the only evidence of an agreement with Keith Clark, then one would expect that he would accept the whole of what Ronald Clark says. Mr Hall's denial of the part of Clark's evidence which relates to collection of the timber within five years, is not particularly persuasive when his memory as a whole is as slight as his affidavit shows.

1. Under s136 of the Tasmanian Act, the provision is merely that the Recorder is to register the dealing on the title unless within the period allowed "an order to the contrary is made by the Supreme Court". Section 136(1) does not lay down any conditions or provide any guidance as to the principles in respect of which such an order is to be made; but it is obvious that there will be many cases, such as this one, when the question of caveator's entitlement to an interest in land cannot be satisfactorily resolved without hearing all the relevant evidence, in the context of a contested proceeding in the court wherein the witnesses are examined and cross–examined in accordance with ordinary procedures in an action, and the court has a proper opportunity to decide the facts and consider the legal arguments. There has been no such opportunity in the proceedings in this matter. I see no reason why the form of s136(1) of the Tasmanian Act should not be held to have the effect of making an order by the judge forbidding registration an exercise of discretion, as it has been held to in Victoria, New South Wales and Queensland – see McMahon v McMahon [1979] VR 239, particularly at pp245–246. It has been held in those States that it is not appropriate to try such an issue on a summons for removal of a caveat.

1. In a number of those cases the caveat has been allowed to remain, but only upon condition that the applicant take immediate steps to establish his claim by proceedings in the court – see eg Re Oil Tool Sales Pty Ltd, Classified Pre–Mixed Concrete Pty Ltd Caveator; [1966] Qld WN No 11; Ex Parte Muston; Anderson Caveator [1904] 20 WN(NSW) 270.

1. I could have made a similar order in this case, but here there is a possible reason why the application should not succeed. Section 36 of the Conveyancing and Law of Property Act 1884 provides that no action may be brought upon any contract for the sale or other disposition of land, or of any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or some other person thereunto by him lawfully authorised. There is no such memorandum or note in writing in the present case, and while it is for the defendant to plead the statute in such a case, since it is within the respondent's power to defeat the applicant's claim by relying upon the statute, it should be held that the applicant has not made out a case for maintaining the caveat. Accordingly, the application will be refused.