Hazelwood v BP Australia Limited
[1987] TASSC 18
•26 February 1987
TASSC A5/1987
CITATION: Hazelwood & Anor v BP Australia Limited [1987] TASSC 18; A5/1987
PARTIES: HAZELWOOD & ANOR
v
BP AUSTRALIA LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M16/1987
DELIVERED ON: 26 February 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Cox J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicants:
Respondent:
Solicitors:
Applicants:
Respondent:
Judgment Number: TASSC A5/1987
Number of paragraphs: 11
Serial No A5/1987
File No M16/1987
HAZELWOOD & ANOR v BP AUSTRALIA LIMITED
REASONS FOR JUDGMENT COX J
26 February 1987
By this originating summons, the applicants challenge the validity of a caveat filed with the Recorder of Titles against land of which they are registered proprietors. They assert that the caveat is defective in form in that it is not “in the prescribed form” as required by s133(1) of the Lands Titles Act 1980 and further that it fails to comply with the provisions of s133(2) of that Act. The latter subsection reads as follows:
“(2) A caveat under this section shall state -
(a) the name and address of the caveator;
(b) an address for service of notices on the caveator;
(c) the estate or interest claimed by the caveator;
(d)the folio of the Register, or the registered dealing, affected by the caveat; and
(e)where the caveat relates to part only of the land in a folio of the Register or registered dealing, such further description as may be necessary to identify the subject land,
and shall be signed by the caveator or by his solicitor, attorney, or authorized agent.”
The caveat is lodged on the form prescribed by reg47(2) of the Lands Titles Regulations 1981 (Form 48). The material parts are as follows:
“TAKE NOTICE THAT BP Australia Limited
1 Albert Road
MELBOURNE
Victoria
claiming Estate or Interest as equitable and/or beneficial owner of all that portion of the land comprising storage tanks, pumping equipment and other fixtures and the right to enter and remove the same
by virtue of an agreement for loan entered into between the Caveator and Gregory Raymond Webb and Sandra Maree Webb and the undertaking by Charles James Hazelwood and Jean Mary Hazelwood contained therein, dated the 21 October 1985.
in ALL the land mentioned in the schedule following:
FOLIO OF REGISTER
Volume Folio
3672 62
forbid the registration of any dealing affecting the land until this caveat be withdrawn by me etc.”
The schedule set out in the form consists of three columns: the first for insertion of the “Folio of Register” and having two sub–columns for the Volume and Folio; the second headed “Whole or Part”, and the third “Description (if part only)”. In the caveat in question no entry was made in the second or third columns.
The applicants submit first that the caveat is defective in form in that no entry has been made in the last mentioned columns and that accordingly it is not “in the prescribed form”. In my view s133(1) of the Act does not require so slavish an adherence to the form that the absence of an entry in the relevant columns would ipso facto render the document not in the prescribed form. If the material which the form contemplates being accommodated by these columns is clearly stated elsewhere on the face of the caveat then I see no reason why a failure to place it in the columns should alone render the whole document defective. However this raises the question whether or not the caveat does purport to affect the whole of the land in the title or only some part or parts of it. If there is ambiguity then in my view the caveat would be defective.
The form of the caveat as laid down by the Regulations invites the formulation of three basic propositions by the assertion of which the caveator purports to exercise a right to forbid the registration of any dealing affecting the land. The first is the nature of the estate or interest he claims, the second the grounds on which the claim is founded and third the land affected by his claim. In the present caveat the nature of the interest is said to be as equitable “and/or” beneficial owner of all that portion of the land comprising storage tanks, pumping equipment and other fixtures and the right to enter and remove the same. The draftsman while describing the nature of the interest makes it clear that the fixtures are on portion only of the land and are not coterminous with its boundaries, and does not define the area which it may be necessary to traverse in order to exercise the right of removal. The statement of grounds on which the claim is founded does not carry the matter any further but merely refers to an agreement for loan and undertaking. The land the subject of the estate or interest is said to be all the land (not therein before mentioned but) “in the schedule following” and that schedule as I have said refers to land in a particular certificate of title but fails to say whether it be the whole or part thereof.
The equitable ownership of chattels affixed to realty and the subject of a right of entry and repossession has been held to create an equitable interest in the freehold thus affected. (See In Re Morrison, Jones and Taylor Limited (1914) 1 Ch D 50, In Re Samuel Allen & Sons Limited (1907) 1 Ch 575 and Craven v Geal (1932) VLR 172). If the fixtures are situate on only some small part of the land in a title and the means of access are in fact such as to enable their removal without the necessity of traversing any other part of the land and the title, I do not know how it could be said that the original owner of the fixtures can have an equitable interest in the entirety of the land and can forbid registration of a dealing which affects only that other part and does not in fact affect that part of the land where the fixtures are situate. On the other hand, the fixtures though only on portion of the land in a given title may be so spread as to cover almost all of the land and the access required to remove them may as a matter of realty cover its entirety. Accordingly, though the fixtures themselves may cover only a portion of the land, it is at least arguable that the estate or interest of their owner is an equitable interest in the whole of the land. Whether or not it is in any given case would be a question of fact but one could not say that if the caveator claimed estate or interest in the whole of the land by virtue of his ownership of the fixtures on portion thereof and his right to remove them the claim asserted was bad in form.
I have no knowledge of the facts of the present case and am concerned only with the form of the caveat. It may be that the equitable interest is in fact confined to only a small portion of the land in the certificate of title or it may affect the whole of it. The agreement for loan and undertaking referred to in the grounds on which the claim is founded may or may not purport to give a right of access over the entirety of the land. Thus the unambiguous filling in of the second column with the word “Whole” or “Part” would have put the matter beyond dispute. I am inclined to think that the caveator is claiming only an interest in portion of the land and indeed that was how its counsel argued. I think however the claim is at best ambiguous and that the caveator is not asserting an interest in the whole of the land. Were he doing so, there would be no defect in form but as it is unclear I hold that the caveat is defective in form and fails to identify the land the subject of the estate or interest and in consequence the land dealings with which are prohibited.
If however I am wrong about this and the position is that the caveat on its true construction does purport to limit the subject land to a portion of the land in the certificate of title, I am of the view that the description given is inadequate to identify the subject land.
In Elliott v Blanshard (1970) 17 FLR 7, Blackburn J, regarded the description of land as “the northern half” of a piece of land which was thereafter adequately described as an insufficient compliance with a statutory requirement that it contained “a sufficient description to identify the land”. His Honour referred to the practice in New South Wales described by Baalman Commentary on the Torrens System in New South Wales at 283, that where a caveator claims an interest in part only of the land of the caveatee the Registrar–General requires the part to be defined with the same standard of accuracy as is necessary for the definition of a registered estate but said that while that was the practice, it was not decisive of the law. His Honour went on to express the view that the whole purpose and scheme of the Northern Territory statute with which he was dealing, “required that a caveat, like any other document which appears on the Register, should upon its true construction satisfy these requirements among others: first, it must provide a reference to a parcel of land; secondly, such a reference must enable the parcel to be identified”.
The effect of a caveat is to prevent all dealings with the subject land. If part only of the land in a certificate of title is subject to such a prohibition the Recorder to whom the caveat is directed must be able to determine with reasonable precision whether or not any given dealing is affected by it. If, for example, a transfer to an adjoining owner of a small portion of the land in the certificate of title were presented for registration, the Recorder would have no means of knowing whether or not it was affected by the presence of the respondent’s storage tanks, pumping equipment or other (not described) fixtures or the means of access to them or any of them. I have no knowledge of the size of this land. It could be a large block capable of subdivision into any number of lots, many of which could be transferred without prejudicing the caveator’s interest. If this caveat stood, the Recorder would likewise have no means of knowing what portions were affected. There is good reason then, no matter what the size of the land, which of course would be known to the Recorder) [sic] for some measure of precision. I would not presume to set a standard and do not wish to be taken as asserting that a full and detailed survey is required or that the practice in New South Wales stated by Baalman should be adopted but I am of the view that the present description fails to define the area affected sufficiently and that the caveat is accordingly defective in form.
Other arguments were raised by the applicant registered proprietors but I find it unnecessary to address them.
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