Parnell v Cummins
[2001] NSWSC 430
•3 May 2001
CITATION: Parnell v Cummins [2001] NSWSC 430 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 2422/01 HEARING DATE(S): 3 May 2001 JUDGMENT DATE:
3 May 2001PARTIES :
Michael Parnell (P)
Mark John Cummins (D)JUDGMENT OF: Hamilton J
COUNSEL : P in person
T W L Stuart (D)SOLICITORS: P self represented
Hunt & Hunt (D)CATCHWORDS: CONVEYANCING [185] - Land titles under the Torrens system - Caveats against dealings - Form of caveat - Statement of estate or interest - Statement reveals caveator relies on contract which is oral and therefore unenforceable. LEGISLATION CITED: Conveyancing Act 1919 s 54A CASES CITED: La Fontaine v Manley [2000] NSWSC 1252 DECISION: Summons for extenson of caveat dismissed with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 3 MAY 2001
JUDGMENT2422/01 MICHAEL PARNELL v MARK JOHN CUMMINS
1 HIS HONOUR: This is an application by the plaintiff appearing in person to extend caveat 6983754G over the land contained in folio identifier 111/245493 or, more accurately, over the plaintiff's share in that land as tenant in common in equal shares. The evidence shows that the plaintiff is the holder of the fee simple in that land as tenant in common in equal shares with his wife. In the caveat the registered proprietor is described as the plaintiff only. The nature of the estate or interest claimed in the land is stated as “Equitable mortgage of an estate in fee simple”, and the facts relied on are stated as,
- “Oral Agreement between the Registered Proprietor and the Caveator whereby the Registered Proprietor agreed to grant in favour of the Caveator a mortgage over the land to secure the Registered Proprietor's liabilities to the Caveator.”
Because only one of the registered proprietors is named in the caveat the Registrar General has, in my view correctly, treated the caveat as binding only the plaintiff's half share in the land.
2 The affidavit evidence indicates that the statement of facts in the caveat is indeed accurate. The defendant owing the plaintiff considerable sums of money, the plaintiff asked for security. A conversation occurred in which the defendant agreed to give the plaintiff mortgage security over his real property and handed to the defendant a list of what were said to be items of real property owned by him and their net value after other encumbrances. However, the document, whilst identifying the properties clearly, contains no words which constitute or confirm the promise to give a mortgage or other form of security over the property. Mr Prassas, the solicitor for the defendant, argues that no caveatable interest is shown because the agreement relied on is stated, on the face of the caveat, to be an oral agreement. His client seeks to rely upon the provisions of s 54A of the Conveyancing Act 1919 and there is no sign in the evidence of any note or memorandum which would satisfy the provisions of s.54A; indeed, so far as it goes, the evidence appears to negative the existence of any such document.
3 The plaintiff, in argument, draws my attention to my own decision in La Fontaine v Manley [2000] NSWSC 1252 and in particular refers me to the words in [4]:
- “Mr Scheib squarely faces up to the fact that what the plaintiff must establish to be entitled to extension is not that it has an estate or interest but 'that the caveator's claim has or may have substance' (referring to words of s 74K(2) of the Real Property Act 1900).”
He says that he should have an extension of the caveat if there is any possibility of the establishment of a caveatable interest. Whilst it is certainly true that in some circumstances oral agreements for the sale of land or an interest in land are enforced by courts of equity, there are no signs whatever available on the material before me of the existence of any such circumstances in the present case.
4 An adjournment is not applied for and, in any event, it would be difficult to grant any adjournment of any utility, since today is the day at the end of which the caveat expires. These proceedings were brought by the plaintiff into the Court for the first time only yesterday. In the circumstances it seems to me that the only appropriate course to follow is to refuse the plaintiff's application for the extension of the caveat. As this is the only relief sought by the summons, it follows that the summons should be dismissed.
(The parties addressed on costs.)
5 The orders of the Court will therefore be:
- (1) I dismiss the summons.
(2) I order that the plaintiff pay the defendant's costs of the proceedings.
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