Hocking Land Company Pty Ltd v Bacardi Holdings Pty Ltd

[2005] WASC 223

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HOCKING LAND COMPANY PTY LTD -v- BACARDI HOLDINGS PTY LTD & ORS [2005] WASC 223

CORAM:   MASTER SANDERSON

HEARD:   21 SEPTEMBER 2005

DELIVERED          :   21 SEPTEMBER 2005

PUBLISHED           :  11 OCTOBER 2005

FILE NO/S:   CIV 2053 of 2005

BETWEEN:   HOCKING LAND COMPANY PTY LTD (ACN 084 881 309)

Plaintiff

AND

BACARDI HOLDINGS PTY LTD
First Defendant

CRAIG ALLAN HUGHES
Second Defendant

REGISTRAR OF TITLES
Third Defendant

Catchwords:

Injunction - Application for mandatory injunction for removal of caveat - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004, s 15(1), s 15(1)(a)

Civil Judgments Enforcement Regulations, reg 9(2), reg 90, reg 90(b), reg 100

Result:

Injunction granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J R Birman

First Defendant             :     Mr M D Cuerden

Second Defendant         :     Mr M D Cuerden

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Birman & Ride

First Defendant             :     Holborn Lenhoff Massey

Second Defendant         :     Holborn Lenhoff Massey

Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471

Custom Credit Corporation Ltd v Chellaston Pty Ltd & Anor, unreported; SCt of WA (Anderson J); Library No 930340; 10 June 1993

Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42

Dataforce Pty Ltd v Brambles Holdings Ltd [1988] VR 771

Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129

Economy Shipping Pty Ltd v Fischer Constructions Pty Ltd [1969] 2 NSWR 97

Eng Mee Yong v Letchumanan [1980] AC 331

Ex parte Britt [1987] 1 Qd R 221

J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546

Jones v Dunkel (1958) 101 CLR 298

Lewandowski v Lovell (1991) 4 WAR 311

Lydon v Ryding [2002] WASC 308

Midland Brick Company Pty Ltd v Welsh [2002] WASC 248

Porter v McDonald [1984] WAR 271

Redland Bricks Ltd v Morris [1970] AC 652

Rossage v Rossage [1960] 1 All ER 600

State of Queensland v Australian Telecommunications Commission (1985) 59 ALJR 562

1. MASTER SANDERSON:  This was the return of an application by the plaintiff for an order compelling the first defendant remove a caveat over certain property.  After the first and second defendants filed affidavits in opposition to the application, the plaintiff filed a further application seeking to strike out certain parts of the first and second defendants' affidavit evidence.  When I first dealt with the matter on 15 September 2005, I dealt with the strike out application and made rulings with respect to paragraphs of the affidavits to which objection was taken.  I then heard full argument in relation to the injunction application.  At the conclusion of the hearing I granted the injunction.  Subsequent to the orders being made, the first and second defendants applied for a stay of the orders.  The plaintiff applied to vary the orders.  I dealt with both of these applications - amending the orders slightly and refusing the stay of execution on 21 September 2005.  I indicated to the parties that I would publish reasons at a later date.  These reasons cover all the decisions I have made with respect to the applications in this action.  There is a parallel action in which an application was made and refused.  This action is Bacardi Holdings Pty Ltd v Greenteak Pty Ltd CIV 1437/2005.  I will publish separate reasons in that matter.

2. It is convenient to begin with a summary of the relevant facts.  The plaintiff is a land development company.  It pursues this business by buying large tracks of metropolitan land (referred to as "parent blocks") and subdividing these parent blocks into residential lots.  It then sells the residential lots for a profit.  As at February 1999, the first defendant held one‑third of the issued shares in the plaintiff and 50 per cent of the issued shares in a company known as Richking Nominees Pty Ltd ("Richking").  Although Richking is not a party to these proceedings, it is intimately involved in the events that give rise to the action.  As at February 1999, the plaintiff had entered into a number of written agreements to purchase land at Lot 21, East Road, Hocking and Lots 81, 82 and 83 Nicholas Road, Hocking.  Together these four lots are defined as the "Hocking Lots".  As at the same date, Richking had entered into a number of written agreements to purchase land, being Lots 4, 240, 244 and 245 Dumbarton Road, Canning Vale, Lots 83, 84, 85 and 86 Comrie Road, Canning Vale and Lot 31 Birnham Road, Canning Vale.  Taken together these lots are defined as the "Richking Lots".  It is common ground that in or about late 1998 the first defendant loaned funds to the plaintiff and Richking to pay the deposits on the purchase of both the Hocking Lots and the Richking Lots.

3. Also in or about February of 1999 the plaintiff, the first defendant, Richking and others entered into a written agreement pursuant to which a company known as Greenteak Pty Ltd ("Greenteak") was to acquire all of the first defendant's shares in the plaintiff and Richking.  It is alleged by the first defendant that this written agreement was entered into on or about 17 February 1999.  Regrettably, that agreement has gone missing and despite the best efforts of all concerned, no copy has turned up.  Throughout the evidence this agreement is referred to as the "Missing Agreement".

4. The material terms of the Missing Agreement, so far as the first defendant is concerned, is set out in par 7 of a statutory declaration (by the second defendant) which was lodged at the same time as the caveat the subject of this application (see annexure "TMB 2" to the affidavit of Tina Michelle Bazzo ("Ms Bazzo") sworn 31 August 2005).  Par 7 is in the following terms:

   "7.1The Caveator (first defendant) would transfer its shares in the Registered Proprietor (plaintiff) and in Richking to Pollock and/or Greenteak and/or another entity controlled by Pollock;

   7.2Pollock and/or Greenteak and/or another entity controlled by Pollock would make certain payments ('Cash Payments') to the Caveator (first defendant) on or about the date of execution of the Missing Agreement;

   7.3The Caveator (first defendant) would forgive the Loans;

   7.4Richking and the Registered Proprietor (plaintiff) would subdivide the land described in paragraph 3 above (being the Hocking Lots and the Richking Lots) ('Core Blocks') to create residential lots ('the Core Lots');

   7.5The Caveator would be entitled to receive:

   (a)       $2,500 in respect of each Core Lot; and

   (b)$2,000 in respect of each residential lot not being a Core Lot but falling within 6 kilometres of any Core Block and acquired by any of the other parties to the Missing Agreement within 3 years after the date of the Missing Agreement ('Affected Lots');

   7.6Payment to the Caveator in respect of each Core Lot and each Affected Lot under paragraph 7.5 above was to be made on the sale of such lot or 3 years after the date of the Missing Agreement, whichever occurred first.

   7.7As security for the due payment of all sums owing to the Caveator by the other parties to the Missing Agreement, such other parties charged their interests in the Core Lots and the Affected Lots in favour of the Caveator and consented to the Caveator lodging caveats over the Core Lots and the Affected Lots to protect such charge."

5. It is worth pausing at this point to note precisely what interest the first defendant says it has which justifies it lodging a caveat.  Two distinct parcels of land each involving a number of lots are involved.  The first are the so‑called Core Lots.  These Core Lots are comprised of the Hocking Lots and the Richking Lots.  The effect of the Missing Agreement on this land is easily understood.   The Affected Lots are something different.  The position of the Affected Lots can be illustrated by reference to land acquired by the plaintiff from Anthony Marko Stampalia ("Stampalia").  This land is more particularly described as Lot 9402 on Deposited Plan 41050.  A copy of the transfer of that land from Stampalia to the plaintiff appears as annexure "TMB 9.7" to the affidavit of Ms Bazzo sworn 31 August 2005 and filed in support of the injunction application.  The transfer is dated 1 November 2004.  It would appear then on any reading of the Missing Agreement that it falls outside the terms of that contract and it could not therefore be an Affected Lot.  It is the first defendant's position that although the Stampalia property was not actually acquired by the plaintiff until November of 2004, an arrangement or understanding had been reached between the plaintiff and Stampalia in the three years from February 1999 covered by the Missing Agreement.  It was on this basis that the first defendant alleged it was entitled to lodge a caveat over all of the plaintiff's land - the Core Lots and the Affected Lots.  Before dealing with the respective arguments of the parties on this application, it is convenient at this point to deal with the objections taken to various affidavits.

6. In opposition to the application the second defendant swore an affidavit dated 13 September 2005.  It was mainly to this affidavit that counsel for the plaintiff took exception.  During the course of argument, counsel for the first and second defendants conceded certain paragraphs should be struck out.  These were pars 7, 8, 11, 29, 30, 33, 35, 36, 44.6, 44.7, 44.8, 46, 47, 48 and 50.

7. Dealing with the remaining paragraphs, I struck out all those words after the words in brackets in the third line of par 12.  What followed was the deponent's interpretation of what was contained in a letter referred to in the earlier part of the paragraph.  That letter speaks for itself and the commentary by the deponent was irrelevant.

8. Objection was taken to par 15.  That paragraph provides background to the dispute between the parties.  It is not specific in its terms, but in my view, it was not so objectionable as to warrant its being struck out.

9. Par 19 was struck out.  That paragraph responded to an allegation in an affidavit of Ms Bazzo that the first defendant had no caveatable interest in the land.  Par 19 is a bare denial and is unhelpful.  On that basis it was struck out.

10. Objection was taken to par 22 of the affidavit.  That paragraph dealt with an alleged transfer of shares in the plaintiff and Richking.  The material contained in that paragraph was either irrelevant or at odds with a search of the plaintiff which appears as annexure "CAH 2" to the affidavit.  On that basis it was struck out.  I allowed to stand all those words after "Richking" in the third line from the bottom of the paragraph.

11. Objection was taken to pars 23, 24 and 25.  I allowed all three paragraphs to stand.  The objection was based on relevance.  The paragraphs could only be relevant on the basis that they provide background material.  In and of themselves they are not objectionable as they report what was told to the deponent by certain individuals on various occasions.  Although only of peripheral relevance, in my view, the paragraphs were unobjectionable and I allowed them to stand.

12. Objection was taken to pars 26 and 27.  I struck out all those words in par 26 after "1998" and par 27.  The parts of par 26 struck out and par 27 were no more than commentary and irrelevant to the matters in issue between the parties.  On that basis they were struck out.

13. Objection was taken to par 32.  It was said that the paragraph was both irrelevant and scandalous.  The paragraph reports what was allegedly said to the deponent.  To that extent it is admissible.  It also goes to the question of control of the plaintiff.  Although that issue is of peripheral relevance, I was satisfied that the paragraph was unobjectionable and could stand.

14. Objection was taken to par 34 on the basis it was irrelevant and scandalous.  That is clearly correct.  There are allegations made in the paragraph of improper behaviour by a certain individual.  The allegations are general with no specifics provided at all.  Such material should not properly be in an affidavit and the paragraph was struck out.

15. Complaint was made of pars 37, 38, 39 and 40.  In each case the complaint was that the material was irrelevant and in each case I struck out the paragraph.  These four paragraphs deal with three transactions.  These transactions all involve Richking rather than the plaintiff.  For that reason they are irrelevant and would be struck out.  Furthermore, they do not provide evidence of anything - they are commentary on property transactions which may or may not have sinister overtones.  Whatever the position, they are irrelevant to the matters in issue in this action and they were therefore struck out.

16. Objection was taken to pars 41, 42, 43, 44.1, 44.2, 44.3 and 44.5.  In each case I allowed these paragraphs to stand.  Pars 41, 42 and 43 explain in broad general terms the position taken by the first defendant.  In my view, the paragraphs are unobjectionable.  The plaintiff submitted they were argumentative.  With respect, that is not the case at all.  They simply set out the first defendant's position - with subsequent evidence dealing with particular lots to follow.  The remaining paragraphs deal specifically with a particular property.  They do provide some general background which is picked up elsewhere in the affidavit but there is nothing in that material which is objectionable.  Quite the contrary - it is highly relevant to the argument put by the first defendant.

17. Objection was taken to part of par 44.4.  I struck out all of the words in that paragraph after the first sentence.  The part struck out provided the deponent's interpretation of words which were allegedly said to him by a third party.  His understanding of those words is irrelevant.  The evidence that is relevant is the words that were actually said to him.

18. Objection was taken to pars 44.10, 44.11 and 44.12.  In each case I struck out parts of these paragraphs.  In relation to 44.10 the first sentence was struck out.  In this sentence the deponent purported to say who transferred the property.  That can be ascertained from a search of the property and the deponent's evidence on this point is of no assistance.  In relation to 44.11 the first sentence was struck out.  The first sentence purported to ascribe to a named individual improper conduct.  It did so without reference to any fact or circumstance which would justify the conclusion which was drawn.  The rest of the paragraph was subject to vigorous debate.  Many of the paragraphs appearing in the affidavit subsequent to par 44.11 rely upon it.  What is said in that paragraph is a report of what the deponent was allegedly told by a third party.  The paragraph is general and what weight might be attached to it is open to question.  But the material itself is admissible.  I therefore allowed all those words beginning with the word "although" in the third line in par 44.11 to remain.  In relation to 44.12 I struck out the second sentence.  In that sentence the deponent referred to an instrument of transfer and then said that the property in question was acquired earlier than indicated on the transfer.  There was no basis for saying that in the affidavit and the evidence of the written instrument stands uncontradicted.  For that reason I struck out the sentence.

19. The plaintiff objected to all paragraphs between 44.13 and 44.31 with the exception of pars 44.21, 44.26 and 44.30.  With two exceptions, I was prepared to allow each of the paragraphs to stand.  In my view, the paragraphs reported matters based on what the deponent was told by a third party.  To that extent the evidence is unobjectionable.  I did strike out all but the first sentence of par 44.19.  The parts of that paragraph struck out purported to explain why the caveat had been lodged.  Such an explanation is irrelevant.  The first defendant either had the right to lodge a caveat or it did not.  There was no suggestion that by delaying and lodging the caveat the first defendant was in some way estopped from taking that step.  The material struck out was irrelevant.  In par 44.25 the final sentence was struck out.  That sentence was a comment as to the date upon which contracts, copies of which were not available, were alleged to have been signed.  There was no basis for what amounted to a conclusion and it is inconsistent with the documentary evidence.  For that reason the sentence was struck out.

20. There were further objections taken by both the plaintiff and the defendants to other affidavits.  However, none of these affidavits was crucial to determining the application and in each case I allowed the affidavits to stand.  That being so I do not propose to deal with each of these affidavits in detail.  It is sufficient if I say that I am satisfied that the evidence in each was relevant and admissible. 

21. There were two further matters raised to which I should refer.  First, counsel for the first and second defendants submitted that some of the documents annexed to the affidavit of Ms Bazzo were not stamped and were therefore not admissible.  Counsel for the plaintiff provided an explanation as to why in fact each and every document had been stamped, although that may not be apparent from one particular document considered in isolation.  Without going through counsel's explanation in detail, I was satisfied that all documents annexed to Ms Bazzo's affidavit had been stamped and there was no difficulty with admissibility.  Having heard counsel for the plaintiff's explanation, counsel for the first and second defendants took the matter no further.  As a concession to caution, I asked for and received an undertaking from counsel that all relevant documents had been stamped and if there were any documents which should have been stamped but had not been stamped, they would be presented to the stamp office for stamping.

22. Second, although it is not clear from the plaintiff's chamber summons, the injunction sought by the plaintiff was with respect to one caveat - that caveat being J286341.  Although there is only one caveat or at least one caveat number, the caveat affects numerous blocks of land.  That is because both the Core Lots and the Affected Lots have been subdivided.  Upon subdivision the caveat attaches to the newly created lot.  But no new caveat number is applied to the caveat applying to each individual lot.  The one caveat number is maintained.  So this application is directed at one particular caveat which, when removed, would free up a large number of individual lots.

23. The caveat itself appears as annexure "TMB 1" to the affidavit of Ms Bazzo sworn 31 August 2005.  A reading of the caveat immediately throws up a fatal difficulty for the first defendant.  The caveat is an absolute caveat.  Whatever else may be said about the first defendant's claims, there is nothing in the evidence which could justify the first defendant lodging an absolute caveat.  The most they would be entitled to is a subject to claim caveat.  Counsel for the first defendant conceded this point in his written submissions and repeated the concession in his oral submissions.  So prima facie then, the plaintiff was entitled to the order it sought - an order for the removal of the caveat.  What the first and second defendants then sought was an order that the caveat be varied or, alternatively, an order that the first defendant should have leave to lodge a subject to claim caveat.  This is the basis upon which the application proceeded.

24. The first defendant's position can be summarised in this way.  Reference was made to the Missing Agreement and, in particular, the clause which appears as par 7.5 in the second defendant's statutory declaration accompanying the caveat and which I have quoted above.  It was conceded by the second defendant that save for the Core Lots, all of the Affected Lots were acquired by the plaintiff more than three years after the date of the Missing Agreement - that is after February 2002.  But nonetheless it is said that the Affected Lots were subject to the Missing Agreement and that the first defendant's entitlement with respect to those Affected Lots could be protected by caveat.  The second defendant puts his position in his affidavit of 13 September 2005 in this way:

    "41.It is my position therefore that the lots enumerated in Bazzo's first affidavit are lots for which contracts for their purchase were executed within the three year time period, or alternatively options to purchase those properties were executed within the three year time period.  It is therefore my position and that of the First Defendant that this amounted to an acquisition of the land insofar as the missing agreement was concerned.

    42.If I am wrong in that, and if the missing agreement did not provide expressly for that, it is my argument that the missing agreement contained an implied terms [sic] that 'acquisition' did not just include the physical transfer of the property but also the rights to acquire those properties through either contracts being executed or option agreements being executed within the three year time period from February 1999.

    43.It is the First Defendant's position that this is necessary in order to give commercial efficacy to the agreement, because otherwise it is the case that the Plaintiff could have simply avoided paying the monies due by acquiring the rights to the lot through either an offer and acceptance or an option, and then settling after the period of three years had elapsed, which was never the intent of the agreement."

1. A number of points should be made about those paragraphs.  First, in par 41 it is alleged that certain lots mentioned in Ms Bazzo's first affidavit "are lots for which contracts for their purchase were executed within the three year time period".  There is no evidence that was the case.  Nor is there any evidence that options to purchase these properties were executed within the three year time period.  Secondly, it is by no means clear what is meant in par 42 by the proposition that there was an implied term in the Missing Agreement that "acquisition" meant something more than actual transfer of the property "but also the rights to acquire those properties through either contracts being executed or option agreements being executed".  As I have said there is no evidence of either contracts being executed or option agreements being entered into with respect to the Affected Lots.  Presumably then the first defendant is saying that "acquisition" would extend to cover some informal, perhaps oral agreement, entered into by the plaintiff with registered proprietors of the Affected Lots.  As a proposition that is not without its difficulties.

2. The way in which the first and second defendants put their case can be illustrated by referring again to the property owned by Stampalia.  This property is dealt with in pars 44.15 through to 44.19 of the second defendant's affidavit of 13 September 2005.  I will quote these paragraphs in full (the parts of par 44.19 struck out have been omitted):

   "44.15The transferor for this lot was Anthony Marko Stampalia.

   44.16I was aware through my conversations with Kevin Pollock that he was dealing directly with the Stampalias to acquire further property.  I am also aware through conversations I had with Mr Jones that initially he presented one or 2 offers to the Stampalias on behalf of the Plaintiff.

   44.17Mr Pollock told me of his dealings with the Stampalias in or about 2000 or 2001 at the very latest, and ultimately obtained the rights to the land.  Mr Pollock told me that he had to come to a deal with the Stampalias within the three year period, and that I would make more money as a result.

   44.18Throughout the course of my dealings with Pollock in relation to these matters which finished in approximately 2003 when the various entitles [sic] controlled by Pollock went into administration, Pollock informed me when he acquired other lots and used to say to me words like 'I've got another 100 lots for you, you will make more money out of it'.

   44.19 I was obviously pleased about that, because the more lots that Pollock acquired during the three year period the more money the first defendant would make."

3. It was the plaintiff's position that this evidence was so vague and imprecise that it could not possibly justify the first defendant's caveat over these Affected Lots.  Counsel for the plaintiff did concede that the evidence was such that subject to claim caveats could be lodged over the Core Lots.  It has to be said that this concession was made grudgingly and only to avoid detailed argument on the evidence.  But, in my view, it was a concession properly made and although in the end not relevant to these proceedings, it is of relevance in parallel proceedings.

4. The position of the first defendant can be summarised in this way.  Reference was made to the Missing Agreement.  It was said that the terms of the Missing Agreement had not been seriously disputed by the plaintiff.  Even if the terms of the Missing Agreement were disputed, it was arguable that the terms were as put by the first defendant and on this issue there was a serious question to be tried.  Second, it was said that there was no doubt that the Affected Lots had been acquired by the plaintiff.  Third, it was said that there was no denial on the part of the plaintiff that conversations took place between the second defendant and Pollock with respect to various parcels of land.  The discussion in relation to the Stampalia property provides an example.  It was submitted then that there was a serious question to be tried as to whether or not the Affected Lots were acquired within the three year time period.  On that basis, it was said a subject to claim caveat should be maintained over both the Core Lots and the Affected Lots.

5. In the end I did not find it necessary to resolve this dispute.  There is a rather more fundamental difficulty with the first defendant's claim.  In par 7.5(b) of his statutory declaration the second defendant says that the first defendant would be entitled to receive:

   "$2,000 in respect of each residential lot not being a Core Lot but falling within 6 kilometres of any Core Block and acquired by any of the other parties to the Missing Agreement within 3 years after the date of the Missing Agreement" (my underlining).

6. It is common ground between the parties that when land adjacent to the Core Lots was acquired by the plaintiff it was not "residential".  It was what might be referred to as a "greenfield" site.  Take for instance the Stampalia property.  It was a large undivided parcel of land which the plaintiff acquired for the purposes of subdivision.  Any reasonable reading of par 7.5(b) of the statutory declaration means that the obligation to make the $2000 payment arose when the residential lots were created.  The clause simply cannot be read in any other way.  It cannot mean that an obligation to make a payment of $2000 arose on acquisition of each greenfield site.  It was not the first defendant's position that when the Stampalia land was acquired the plaintiff was liable to pay to the first defendant $2000.  Counsel for the first and second defendants conceded this was the case.  What the first defendant appears to be saying is that if a property within six kilometres of the core block was acquired within three years of the date of the Missing Agreement, then when that property was subdivided the first defendant would be entitled to $2000 in respect of each residential lot.  The crucial date then was the date of acquisition of the greenfield site rather than the date upon which the residential lot was created.  The difficulty for the first defendant is that the Missing Agreement has never been put in those terms.

7. The first and second defendants' position on this application finds further expression in the parallel proceedings.  In these proceedings Bacardi sought an account in relation to the sale of Core Lots and Affected Lots.  At present the action is stayed pending the provision of Bacardi of security for costs.  But a statement of claim was endorsed on the writ when issued and necessarily it pleads the Missing Agreement.  Paragraph 13(f) of the statement of claim is in the following terms:

   "Hocking was to pay to the plaintiff a sum of $2,000 in relation to each residential lot acquired by any of the parties to the Agreement (save for the plaintiff) situated within 6 kilometres of the Hocking Lots, within 3 years of the date of the Agreement ('Affected Hocking Lots')."

8. The plea in this paragraph of the statement of claim mirrors what is to be found in par 7(b) of the statutory declaration.  It may be that both paragraphs are no more than muddled thinking and not an accurate representation of the Missing Agreement.  But even if that is the case and putting the most benign interpretation on both the statutory declaration and the plea in the statement of claim, there can be no basis upon which the subject to claim caveat might be maintained.  On the evidence as presented by the first defendant, there is no serious question to be tried.  In my view therefore, the plaintiff was entitled to the injunction sought and I was not prepared to either amend the caveat or order that a subject to claim caveat be lodged.

9. After I had indicated the orders I intended to make and explained in brief terms the reasons why I intended to make those orders, counsel for the first and second defendants made the point that the terms of the order did not prevent the first defendant from lodging a fresh subject to claim caveat.  That was correct.  Counsel for the plaintiff then sought an injunction to restrain such a caveat being lodged.  I indicated to the parties that I thought in the context of these proceedings it was inappropriate to grant such an injunction.  I ordered that the first and second defendants were to give the plaintiff's solicitors 48 hours' notice of intention to lodge a caveat.

10. The matter then came back before me on an oral application by the first and second defendants for a suspension of the orders I had made pending appeal.  At the same time the plaintiff applied for amendment of the orders.  These amendments were relatively minor.  The number of the caveat had been left out at par 3 of the orders and in par 4 a reference to the second defendant should have been a reference to the plaintiff.  Both of these amendments were made to the extracted order without objection on the part of counsel for the first and second defendants.

11. The first and second defendants applied for the suspension order under s 15(1) of the Civil Judgments Enforcement Act 2004 ("the Act"). Pursuant to s 15(1)(a) of the Act, it was open to the first and second defendants to apply in the proceedings rather than to the Court of Appeal. Prior to considering the merits of the application counsel for the plaintiff referred to reg 9(2) of the Civil Judgments Enforcement Regulations.  That regulation requires a party making an application for suspension to serve a copy of the application and a copy of the affidavit in support personally on the party entitled to the benefit of the judgment not less than three working days before the hearing of the application.  It was common ground between the parties that the application and the affidavit in support had not been served personally and that it had not been served on the plaintiff's solicitors three working days before the hearing.

12. Counsel for the first and second defendants in response referred to reg 90(b) which authorises service of a document "personally on a corporation" by leaving the document with a lawyer who is representing the corporation and is authorised to accept the document. Counsel also referred to reg 100. This allows the Court to abridge any time fixed by the regulations. Counsel submitted that by a combination of these two regulations - reg 90 and reg 100 - the matter could proceed. In response counsel for the first and second defendants said that he did not have authority to accept service of an application for a suspension order - despite the fact that he was the solicitor of record for the plaintiff.

13. I did not hear detailed argument on the interrelationship between regs 9, 90 and 100.  However, I did indicate to the parties that I would deal with the application for the suspension order thereby implicitly at least deciding that what appeared to be the strict stipulations in reg 9 can be overcome by reference to regs 90 and 100.  However, it seems to me that full argument on this question should await another day.

14. In reality, there was no basis for granting the suspension order.  To do so would have allowed the absolute caveat to be maintained.  As I have indicated, counsel for the first and second defendants conceded that, at the highest, his clients were entitled to lodge only a subject to claim caveat.  Further, at the same time the application for the suspension order was made, there was pending in the parallel proceedings an application by the plaintiff in this action for an injunction restraining the first and second defendants in this action from lodging subject to claim caveats.  Pragmatically and very sensibly, counsel for the first and second defendants took the view that rather than pursue the application for the suspension order, the better course was to argue the merits of the plaintiff's application in the parallel proceedings for an injunction.  I should emphasize that counsel did not concede the point.  But he made no detailed submissions in support of the suspension application.  It was therefore dismissed.

15. There is one further matter to which I should refer and that is the matter of costs.  At the conclusion of the hearing for the injunction, counsel for the plaintiff sought costs, such costs to be taxed without regard to the scale and to be paid forthwith.  Counsel for the first and second defendants submitted that in keeping with the usual practice, costs ought be reserved to be determined after trial of the action.  After hearing argument I accepted the submissions of counsel for the plaintiff and made the orders he sought.  It is only proper that I explain my reasons for that decision.

16. The granting of the injunction in this matter really brings the action to an end.  This is not a case where detailed pleadings will be required and the action will be pursued with perhaps the ultimate consequence that the mandatory injunction will be discharged.  After all, the caveat lodged was an absolute caveat and to that extent it could not stand.  So the fact, in reality, the action was at an end seemed to me to justify an order for costs being made.  That is the first reason for the costs order.  The second reason is that the solicitors for the first and second defendants appear to have entirely overlooked what they said were the terms of the Missing Agreement.  It may be that there were good reasons for the confusion - preparing documents in haste to respond to an application for an interim injunction is a difficult task.  But with respect, the flaw in the argument really was obvious.  If opposition is to be mounted to an application such as this, then very careful consideration needs to be given to the merits of the response.  While I would not suggest that in this case opposition was unwarranted, it was not structured in such a way, in my view, that it had any real chance of success.  In the circumstances then it seemed to me that the costs order I made was appropriate.