Patmore v Upton
[2004] TASSC 77
•27 July 2004
[2004] TASSC 77
CITATION: Patmore v Upton [2004] TASSC 77
PARTIES: PATMORE, William Garry
SMITH, Glynis May
v
UPTON, Richard Austin
RECORDER OF TITLES
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M366/2003
DELIVERED ON: 27 July 2004
DELIVERED AT: Hobart
HEARING DATES: 29, 31 March 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Who may lodge – Registered proprietor has no caveatable interest in the registered land merely by virtue of being the registered proprietor.
Haupiri Courts Limited (No 2) [1969] NZLR 353; Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870; Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672; Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444, followed.
Land Titles Act 1980 (Tas), s133(1).
Aust Dig Conveyancing [184]
Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Who may lodge – What more does a registered proprietor have to show to have a caveatable interest in land?
Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870; Cross v National Australia Bank Ltd (1993) Q Conv R 54-33; Re McKean's Caveat [1988] 1 Qd R 524, followed.
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265, discussed.
Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672, not followed.
Land Titles Act 1980 (Tas), s133(1).
Aust Dig Conveyancing [184]
Conveyancing – Land Titles under the Torrens system – Caveats against dealings – Form – Extent of power of amendment.
Hooper v Australia and New Zealand Banking Group Limited (1996) 5 Tas R 398; Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Limited [1969] Qd R 150; In Re The Victorian Farmers' Loan and Agency Co Limited (1897) 22 VLR 629, discussed.
Midwarren Estates Pty Ltd v Retek [1975] VR 575; Multi-Span v Portland [2001] NSWSC 696, followed.
Land Titles Act 1980 (Tas), s135(2).
Aust Dig Conveyancing [185]
REPRESENTATION:
Counsel:
Applicants: M E O'Farrell
Respondent: P W Tree
Solicitors:
Applicants: Steven Chopping
Respondent: C A Johnstone, Munnings & Co
Judgment Number: [2004] TASSC 77
Number of Paragraphs: 82
Serial No 77/2004
File No M366/2003
WILLIAM GARRY PATMORE and GLYNIS MAY SMITH
v RICHARD AUSTIN UPTON and THE RECORDER OF TITLES
REASONS FOR JUDGMENT UNDERWOOD J
27 July 2004
The facts
On 29 May 1992, the respondent became the registered proprietor of 6.82 hectares of land at Honeywood Drive, Brighton. The certificate of title is volume 116236, folio 1. In February 1996, the respondent mortgaged his land to solicitors to secure repayment of a loan made to him. In March 2001, the solicitors transferred the mortgage to Tasmanian Trustees Limited, now known as Tasmanian Perpetual Trustees Limited ("the mortgagee").
The respondent asserts that:
· the solicitors did not comply with the Lending of Money Act 1915 and therefore the mortgage is unenforceable without the leave of the Court; and
· he was given no notice of assignment of the mortgage and therefore the purported assignment to the mortgagee is void.
I can dispose of both assertions summarily. There is no evidence that the solicitors were money lenders within the meaning of the Lending of Money Act, s10. The only evidence with respect to the giving of notice in compliance with the Conveyancing and Law of Property Act 1884, s86, is par3 of the respondent's affidavit sworn on 2 February 2004 in which he deposes:
"However, prior to the alleged transfer [from the solicitors to the mortgagee] I was given no notice of assignment, in consequence of which I contend that the assignment is void under section 86(1) of the Conveyancing and Law of Property Act 1884."
That section does not require that notice must be given prior to the assignment of a chose in action or prior to any registration of an assigned chose in action. See Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4. In any event, notice is not necessary to render the transfer of a Torrens system mortgage enforceable once it has been registered because of the provisions of the Land Titles Act 1980, s58(1).
In about October 2002, the respondent defaulted in making payments due under the mortgage. On 28 October 2002, the mortgagee obtained a judgment against the respondent in default of appearance for $112,801.90. The respondent decided to proceed with an idea that he had held for some time to subdivide, sell the land and discharge his liability to the mortgagee. A plan of subdivision was drawn up.
The applicants, Mr Patmore and his partner, Ms Smith, were interested in buying lot 2. On 15 November 2002, the applicants and the respondent signed a contract for the former to buy lot 2. The purchase price was $32,000. A deposit of $3,000 was paid to the respondent. It was a term of the contract that completion would take place "on the issue of separate titles". Before the contract could be completed, the respondent needed subdivisional approval from the local authority and a partial discharge of mortgage from the mortgagee.
On or about 6 December 2002, the respondent telephoned a Mr Kitto in the Launceston office of the mortgagee and told him that he had signed a contract for the sale of lot 2. On 9 December the respondent asked Mr Kitto to tell him the amount required to discharge the mortgage. A figure was duly supplied. The respondent said that at that time, or during a conversation with Mr Kitto shortly after that time, Mr Kitto said that the amount owing was about $116,000 and that the respondent should "come back to us with an offer." A little later in his cross-examination the respondent said that "the indication" was that about $100,000 would be sufficient to pay out the mortgage. That figure was substantially less than the amount owed and less than the judgment sum. Why the mortgagee would accept less than the full amount of capital and interest was not made clear.
In early 2003, the respondent was negotiating with Connect Credit Union. He was attempting to get it to take over the mortgage. Frequently during his cross-examination the respondent said that he was "negotiating" with Mr Kitto, but what there was to negotiate was not made clear. I place little reliance upon the respondent's evidence that he was "negotiating" a sum with Mr Kitto. During the course of his cross-examination, the respondent repeatedly refused to answer questions, preferring instead to resort to argument. Generally, I found him an evasive witness. It may well have been that the respondent was pressing Mr Kitto with the proposition that the mortgage was wholly unenforceable by virtue of the claimed breaches of the Lending of Money Act by the solicitors, and the subsequent failure to give a notice of assignment to the mortgagee, but it seemed pretty clear to me that Mr Kitto remained adamant that the mortgage would not be discharged unless the respondent paid the whole of the capital sum, plus interest to date of payment, nor would the mortgagee grant a partial discharge of lot 2 in return for payment of a lesser sum.
Meantime, the applicants were anxious to get their contract completed. The respondent gave his consent to the applicants' applying to the local authority for subdivisional approval with respect to lot 2 only. On 17 February 2003, the respondent told Mr Kitto that he had agreed to the applicants applying for subdivisional approval with respect to lot 2 only. The approval from the local authority did not come through until 19 March 2003. About that time the applicants also obtained building approval and commenced building a house and garage on the land.
One day in early March 2003, a real estate agent visited lot 2. The first applicant happened to be there at the time. The agent wanted to know what the applicant was doing building on the land when it was owned by the mortgagee. The agent said that the mortgagee had someone who was interested in buying lot 2. Needless to say, the applicants found this intelligence disturbing. The first applicant telephoned the mortgagee and spoke to a Mr Michael Milne. The latter told the first applicant that the mortgagee had exercised its power of sale with respect to the whole 6.82 hectares, and inquired if the applicants were interested in buying this land. The first applicant protested that he had already signed a contract to buy lot 2 from the respondent and had paid him a deposit of $3,000. The first applicant said that Mr Milne responded, "well you've done that".
The applicants believed (incorrectly) that the respondent had cheated them and signed a contract to sell land that he no longer owned. There followed discussions between Mr Milne and the first applicant which resulted in the applicants signing a contract on 12 March 2003 for the purchase the whole of the 6.82 hectares of land from the mortgagee for $75,000. The contract contained the usual condition precedent with respect to the use of the land as "a rural residential allotment" and it was a term that completion would take place within 30 days of confirmation of that condition precedent.
The respondent learnt about this contract shortly after 17 March 2003. By a letter of that date, the solicitor for the applicants wrote to the solicitor for the respondent advising that "the property, the subject of the contract dated in November [sic]", had been sold by the mortgagee. The letter asked for the return of the deposit.
On 25 March 2003, the respondent lodged a priority notice with respect to the lodgement of a discharge of mortgage, a new mortgage to Connect Credit Union and a transfer of lot 2 to the applicants. On 29 March 2003, the respondent lodged a caveat on his title to the whole of the land. By this application, the applicants seek an order that the caveat be removed. Its existence is preventing the mortgagee from completing its contract to sell the whole of the land to the applicants for $75,000.
At the time of lodgement of the priority notice, and at the time of filing the caveat, the respondent knew that he could not complete his contract for the sale of lot 2 to the applicants because he had not been able to obtain a discharge of the mortgage.
The respondent spoke to Mr Kitto about the mortgagee exercising its power of sale and its sale of the whole of the land to the applicants. The respondent deposed that Mr Kitto told him that there was a contract but it had yet to be signed. That information was, of course, incorrect. There is no evidence which permits a finding to be made as to why the incorrect information was given to the respondent. A possibility is that Mr Kitto was unaware of the dealings between Mr Milne and the applicants, and that Mr Milne was unaware of the dealings between Mr Kitto and the respondent.
At all events, on 7 April 2003, Mr Kitto advised the respondent by facsimile message that as at that date, the amount required to settle was $100,000 principal, and interest of $24,713.08. I find that the respondent knew that the amount required to settle after 7 April 2003 would increase by the daily rate on the capital sum of $100,000. Notwithstanding that knowledge, on 9 April 2003, the respondent faxed Mr Kitto and said that he was "arranging a bank guarantee for $124,713.08 as security to finance [sic] payout of Mortgage B929135". On 11 April 2003, the respondent again faxed Mr Kitto with the advice that he was ready to settle the loan account on 14 April 2003 ¾"amount required $124,713.08".
The respondent deposed that between early April 2003 and the end of May 2003, there were many telephone conversations between him and Mr Kitto, but the mortgage was not discharged. According to the respondent's affidavit, at some stage, there was talk of paying the applicants $5,000 by way of "damages". I find that the mortgage was not discharged because the mortgagee had signed a contract to sell the whole of the land, and because the respondent did not tender the amount due under the mortgage. Notwithstanding absence of tender, the respondent deposed that "since 20 May 2003 he [has] remained ready, willing and able to discharge the mortgage …".
Apparently about this time there was correspondence between the respondent's solicitor and the solicitor for the mortgagee. However, only one piece of this correspondence went into evidence. It is a letter from the respondent's solicitor to the solicitor for the mortgagee. It is dated 4 August 2003. Its terms are a little obscure. It reads (formal parts omitted):
"Further to ours of 2/7/03 enclosing Transfer of Mortgage B929135 we tender herewith Bank Cheque drawn in your favour in the sum of $125,000.00 in satisfaction of the Mortgage/Judgement Debt said to be owed by Upton; the tender is subject only to clarification of the amount said to be owing at this date and the consequential payment of additional money or the refund of money hereby over-tendered; the Transfer of Mortgage herewith replaces that earlier drawn (in error as to title reference).
Since our letter your [sic] have advised (8/7/03) that, pending instructions being received from your client Company thereon, the Transfer of Mortgage could not or would not be entered into because a Sale has been made which must be continued with; we therefore wrote to Mr Chopping and have received the reply now copied. We have not been advised of your Client's instructions.
This letter of tender is without prejudice to Upton's ultimate right to (inter alia) impugn the enforceability of the mortgage and/or the behaviour of your client Company in representing (7/4/03) that the mortgage could be redeemed when the Patmore's 'contract' is said to have already become 'unconditional' (Kitto's Affidavit"). Patmore's actions will also be questioned." [Original emphasis.]
The reference to "Kitto's Affidavit" in the letter is a mystery. Mr Kitto did not file an affidavit in these proceedings. The bank cheque tendered with the letter was not accepted. This application was filed on 19 December 2003.
The respondent's contentions
On behalf of the respondent, Mr Tree submitted that the caveat should not be removed and that:
(1)A registered proprietor can lodge a caveat upon his or her own land relying merely on the fee simple as the caveatable interest, and that I should not follow Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (2000) 9 Tas R 444, in which case it was held that a registered proprietor must establish something over and above that status to acquire a caveatable interest in his or her land.
(2)In any event, the respondent had something over and above his status as a registered proprietor in that:
· he was an unpaid vendor to the applicants;
· he had a right to restrain the mortgagee's power of sale;
· the mortgage is invalid because of non-compliance with procedures under the Lending of Money Act, and/or because there was no assignment of the mortgage contrary to the Conveyancing and Law Property Act, s86(1);
· the mortgagee agreed to allow the respondent to proceed with an orderly sale;
· the mortgagee wrongfully refused to discharge the mortgage on tender of the sum secured;
· the mortgagee has not exercised the power of sale in good faith because the sale is under value.
Can a registered proprietor caveat his or her own land?
The Act 1980, s133(1), relevantly provides:
"133 ¾ (1) Where ¾
(a) …; or
(b) a person claims an estate or interest in registered land under an unregistered dealing, or by devolution in law or otherwise ¾
that settlor or person may, by caveat in an approved form lodged with the Recorder, forbid the registration of any dealing affecting that land, estate, or interest."
The issue is whether, upon its proper construction, the Act, s133(1), authorises a registered proprietor to claim against the registered land "an estate or interest in the registered land under an unregistered dealing, or by devolution in law or otherwise". Mr Tree correctly acknowledged that there is no definitive High Court authority on this point. Although the right of a registered proprietor to caveat his or her registered land has not been examined by the High Court, such right was not questioned in Barry v Heider (1914) 19 CLR 197. In that case, the registered proprietor signed a transfer of his land but later claimed the transfer was obtained by a fraud or trick. He lodged a caveat to prevent the transfer being registered. Before it was registered, the transferee borrowed some money and executed mortgages to secure the repayment of that money. The issues for the court included whether the mortgagees had acquired an equitable interest in the registered land and, if yes, what were the priorities of those who had an interest in the land. The existence of the registered proprietor's caveat gave notice to one of the mortgagees, and this fact was relevant to the issue of priorities. None of the members of the court questioned the registered proprietor's right to lodge the caveat with respect to the land of which he was the registered proprietor.
Percey v Youngman [1941] VLR 275 was a case of a caveat lodged by a former registered proprietor claiming a transfer was void or voidable. Davies v Ryan [1951] VLR 283 was a similar case. In neither was the issue of the right of a registered proprietor to caveat his or her registered land raised.
Although the Land Titles Act 1994 (Qld), s122(1)(c), now gives a registered proprietor the right to lodge a caveat, there was no such provision at the time of judgment in Re Hardey's Caveat [1969] QWN 4. In that case it was held that a caveat lodged by a tenant in common with another claiming an estate or interest in land "as a registered proprietor" was valid. In Re Burman's Caveat [1994] 1 Qd R 123, a registered proprietor lodged a caveat with respect to the registered land. The issue before the court was whether the judge at first instance had correctly applied the principles applicable to the grant of an interlocutory injunction upon the hearing to remove the caveat. The right of the caveator to lodge the caveat is not mentioned.
In J & H Just (Holdings) Pty Limited v Bank of New South Wales (1971) 125 CLR 546, Barwick CJ said, at 553:
"The lodgment of a caveat by the respondents even whilst they were still registered proprietors might well have been thought appropriate, once the duplicate certificates of title and executed memoranda of transfer had been given to the mortgagee. This would be a means of safeguarding themselves against an abuse of the authority which they had given their mortgagee."
That observation was made with respect to the advice of the Privy Council in Abigail v Lapin [1934] AC 491. When that case was in the High Court (1930) 44 CLR 116, Dixon J (as he then was) made some observations at 205 about the statutory caveat scheme in New South Wales. However, the capacity of a registered proprietor to lodge a caveat was never in issue in Abigail for the respondent in the Privy Council was not the registered proprietor at the relevant time. Accordingly, it seems to me, with respect, that caution should be urged before placing too much weight upon the obiter comment of Barwick CJ, cited above.
There are Australian decisions in which the right of a registered proprietor to caveat the registered land by virtue of his fee simple interest is discussed. The relevant statutory provisions considered by the Full Court of South Australia in In Re Martin [1900] SASR 69 are indistinguishable from the Act, s133(1). In that case, the Petitioners did not seek to extend the caveat but sought, and obtained, other relief. In their reasons for judgment all three members of the court said obiter dicta that a registered proprietor could lodge a caveat on the registered land to prevent the registration of an assignment of a lease obtained in breach of a covenant against assignment without the landlord's consent. It is not clear whether this was because the registered proprietors held the fee simple or whether it was because as well as holding the fee simple they were lessors.
In Davies v Herbert (1885) 11 VLR 386, Molesworth J said, also by way of obiter dicta, at 394, that he could see no reason why a registered proprietor could not lodge a caveat against the act of the registered mortgagee for:
"Herbert was, I think, a beneficiary under the 'Transfer of Land Statute' (No 301), sec 116, and entitled to guard himself against a fraudulent exercise of a power of sale by, his mortgagee being registered. In fact it would be one of the most useful effects of the caveat power; and if the sale were really so impeachable, I think the provisions for redress under the subsequent sections, perhaps might now be applicable."
In that case, the registered proprietor sought to prevent the registration of a transfer executed by the mortgagee following his exercise of the power of sale upon the grounds that the mortgage was ineffective as it bore no stamp contrary to the Stamp Duties Act 1879. The majority held that here had been no breach of that Act.
Mr Tree referred to the following statement by Clark J in Woodbury v Gilbert [1907] Tas LR 7 at 9 that for the purposes of the Real Property Act 25 Vic No 16, s82 (the forerunner of the Act, s131(1)), the following would be an interest in land:
"1A right to the present or future possession of the land, either as owner of the fee simple, or as a tenant for life, or for years, or for some shorter period."
In that case the right of a registered proprietor to lodge a caveat over the registered land was not in issue and the observation was plainly obiter.
Although the statutory provisions in Re An Application by Haupiri Courts Limited (No 2) [1969] NZLR 353 differ from the Act, s133(1), I do not think that, for present purposes, the differences are material. In that case Richmond J assumed, without deciding, that a registered proprietor could be a person claiming "to be entitled to, or to be beneficially interested in any land, estate or interest under this Act". He then held that even if a registered proprietor was such a person, a claim to an estate in fee simple could not be said to be made "by virtue of any unregistered agreement or other instrument or transmission, or any trust express or implied, or otherwise howsoever". Richmond J applied the ejusdem generis construction rule to the words "or otherwise howsoever". He held, at 356, that there was no higher source of title under the Act than registration, and that the section was only concerned with unregistered interests in land. His Honour concluded, at 357:
"I conclude, therefore, that a registered proprietor cannot lodge a caveat against dealings merely because he is the registered proprietor. He must go further and establish some set of circumstances over and above his status as registered proprietor which affirmatively gives rise to a distinct interest in the land. In such circumstances it would seem that the fact that he is the registered proprietor of an estate or interest under the Act may not prevent him lodging a caveat." [Original emphasis.]
Applying the above principle to the facts at hand, Richmond J held that the mortgagor did no more than allege a series of acts that may result in the mortgagee being deprived of its existing interest in the land and said, also at 357:
"It is true that it is claiming the land adversely to the mortgagee but it is doing so by virtue of its existing ownership and not by virtue of some new and distinct interest in the land brought into existence by the acts of the mortgagee."
The Haupiri Courts case was considered by Needham J in Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870. This was a case, not dissimilar from the present case, in which a registered proprietor sought to maintain a caveat to prevent the mortgagee who had exercised its power of sale, from completing a conveyance claiming that the sale would be set aside upon an application to the court. Needham J cited the passage from Haupiri Courts that I have also cited and held that a registered proprietor is not authorised by the statute to lodge a caveat claiming fee simple as an interest in land. He said, at 872:
"The registered proprietor, as such, cannot be said to be claiming any estate; he has indefeasible title to the highest estate attainable. It may be, however, that there are circumstances in which he could, by lodging a caveat in a limited form, enjoin the registration of a particular, or a particular kind of dealing. That possibility was recognized by the Privy Council in Great West Permanent Loan Co v Friesen [1925] AC 208, at p 216, where it was said, in effect, that the lien of an unpaid vendor could support a caveat forbidding dealings with the land by the purchaser."
Needham J then differed from Richmond J in the Haupiri Courts case and held that the registered proprietor had a caveatable interest in a case where he claimed that a mortgagee sale was voidable, provided the caveat was drafted so that it forbad only the impugned transfer. He referred to Breskvar v Wall (1971) 126 CLR 376 and Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265, and said that if a defrauded mortgagor who had lost his title was entitled to claim an estate or interest in land and lodge a caveat, it logically followed that a mortgagor who had not yet lost his title, but was at risk of doing so unless the mortgagee was stopped from completing a contract of sale, also had a caveatable interest in land. The reasoning process appears in this passage of the judgment at 875:
"The question is whether the mortgagor, maintaining his registered title, has, nevertheless, in his proprietary right to enjoin the completion of his mortgagee's contract for the sale of his land, a caveatable interest in the land. I do not think that the fact that the mortgagor remains the registered legal owner makes it impossible for him to hold, at the same time, an equitable interest in the land. The right, which is an equitable right, to prevent the completion of a voidable sale, is not one which arises solely from his position as registered proprietor. It arises from (1) the charge created by him by entering into the mortgage; (2) the action of the mortgagee in entering into the voidable contract. It is no less 'an equitable claim enforceable by reason on the principles of the Court of Chancery' than if the right existed shorn of the registered estate. Accordingly, in my opinion, the question whether the registered proprietor may lodge a caveat before the completion of the contract is not different from the question whether, after the contract has been completed and the transfer registered, the mortgagor may lodge a caveat to protect his right to have the sale set aside."
In Re McKean's Caveat [1988] 1 Qd R 524, Ryan J followed Sinclair v Hope Investments Pty Ltd. In McKean's case, the contract had been completed but the transfer had not been registered at the time the registered proprietor lodged her caveat. Ryan J referred to Needham J's reasoning in Sinclair and his conclusion that in a case where the contract has not been completed, the registered proprietor could acquire an equitable interest in his land, being an interest that arose from the charge created by him entering into the mortgage and the action of the mortgagee entering into a contract that was voidable. Ryan J then held that the same equitable interest arose in a case where the contract has been completed but the transfer not registered. He said, at 525 – 526:
"I consider that the right to set aside a contract entered into is equally an equitable interest sufficient to fund a caveat. I do not think that the position is in any way affected by s85(3) of the Property Law Act 1974 – 1986 which makes unimpeachable the title of a purchaser on the ground that the mortgagee has committed a breach of any duty imposed by the section. That does not, in my opinion, preclude a mortgagor of land under the Real Property Acts from asserting that he has, prior to registration of the transfer to the purchaser, a caveatable interest in the land."
Sinclair and McKean were followed by Cooper J in Re Cross v National Australia Bank Ltd (1993) Q Conv R 54-33.
I now turn to consider Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672. This was a decision by the Supreme Court of Victoria (Appeal Division). Brooking J wrote the judgment of the court. The other two members agreed with his reasons and the orders that he proposed be made.
In Swanston, the registered proprietor (Trepan) mortgaged its lands to secure repayment of a loan made by Swanston. Trepan defaulted. Swanston exercised its power of sale and entered into a contract with a purchaser. The circumstances surrounding the sale were such that suspicions arose that Swanston did not obtain the best price. Trepan sought to lodge a caveat to prevent the transfer being registered. The learned judge at first instance held that Trepan, as registered proprietor of the land, had a caveatable interest in the circumstances, and dismissed an application by Swanston for an order, in effect, directing the Recorder of Titles to reject the caveat and not record it on the register.
It is worth recording the estate or interest in the land claimed by the registered proprietor in its caveat. They are set out in Brooking J's judgment at 673 – 674:
"'Estate or interest claimed
'An equitable interest in the said land as mortgagor (and/or registered proprietor) pursuant to a mortgage registered No N19777SE to Swanston Mortgage Pty Ltd as mortgagee.
'Grounds of claim
'An equitable interest in the said land as mortgagor to prevent the completion of a voidable sale of the said land entered into by the mortgagee Swanston Mortgage Pty Ltd on or about 11 May 1993 in breach of the said mortgagee's duty to the mortgagor and without having regard to the mortgagor's interest as required by s77(1) of the Transfer of Land Act 1958.
'Extent of prohibition
'absolutely
'To forbid the registration of any transfer of the said land by the said mortgagee pursuant to its purported powers of sale in respect to a contract of sale made on or about 11 May 1993'."
Counsel for Trepan said the terms of the caveat were drawn from Sinclair v Hope InvestmentsPty Ltd (supra). He also said that the principal issue in the appeal was the correctness of that decision.
Brooking J noted, at 675, that at common law a collusive sale by a mortgagee to a purchaser in breach of the mortgagee's duty to the mortgagor, does not extinguish the latter's equity of redemption. He also noted that under the Torrens system the mortgagor has no equity of redemption, but pursuant to the High Court decision of Latec Investments Ltd v Hotel Terrigal Pty Ltd (supra), equity would treat such a purchaser as taking a transfer of the mortgage, not a transfer of the land. Brooking J then spent the next few pages explaining his understanding of the three judgments in Latec and their relevance to the issues before the court.
In Latec, a mortgagee fraudulently sold land and, a considerable time later, the purchaser borrowed money, the repayment of which was secured by way of a floating charge over the land. The purchaser was involved in the fraudulent sale, but the security was taken bona fide and without notice of the prior fraudulent dealing. The security crystallised. The circumstances of the fraudulent sale were such that the provisions of the Real Property Act 1900 (NSW), ss42 and 43, operated so that indefeasibility of title did not defeat the mortgagor's right to have the sale set aside. At issue were the competing interests of the mortgagor and the trustee for the lenders. Consequently, in this context, the judgments considered the nature of the interest (if any) that the mortgagor had in the land after the transfer had been registered.
In Swanston, Brooking J discussed the distinction between equitable interests in land, mere equities and personal equities. He concluded that Trepan held a mere equity, not an equitable interest in land and followed Haupiri Courts, holding that there was no caveatable interest.
With great respect, it is difficult to see why Brooking J spent so much time analysing the judgments in Latec. What constituted a caveatable interest in the land was not mentioned in any of the High Court judgments. Brooking J said, at 676, that Kitto J drew a distinction in Latec between the mortgagor's mere equity, viz, a right to apply to a court for an order that the sale be set aside, and an equitable interest in land which would only arise if the application was successful. It is true that Kitto J did discuss this distinction in Latec, but not, as I have said, with respect to what amounts to a caveatable interest.
As I understand the judgment of Kitto J in Latec, his Honour said that because the mortgagor let a long period of time elapse before it asserted that it had this equitable interest, the trustee for the lenders was led into believing that the purchaser's title was unimpeachable and this postponed the mortgagor's equity to that of the trustee, thereby displacing the ordinary rule that priority in time determines the order when the equities are equal. In addition, Kitto J discussed a line of authority that began with the judgment of Lord Westbury LC in Phillips v Phillips (1864) 4 De G F & J 208: 45 ER 1164 to the effect that where an equity, for example, to set aside a transaction for fraud, was in competition with a legal or equitable title acquired for value and without notice, the ordinary equitable rule as to priorities was displaced and the latter prevailed over the former. Accordingly, Kitto J held that upon this basis the trustee's equity prevailed over that of the mortgagor.
The latter holding by Kitto J led Brooking J to observe in Swanston, at 677:
"On the approach of Kitto J, the mortgagor in the Latec Investments Case could not on any view be said to have had a caveatable interest."
This observation seems to be based upon an assumption that the classification of equities will be the same whether the issue is which competing equity has priority, or which equity creates an interest in land. With great respect, it seems to me that there is nothing in the judgment of Kitto J in Latec to support that assumption.
In his judgment in Latec, Menzies J referred to the line of authority commencing with Phillips v Phillips (supra) and said, at 288:
"… the appellants' contention is that this right is a mere equity and the maxim has no application when the contest is between such an equity and an equitable interest of the character held by MLC Nominees. This contention rests upon the line of authority based upon Phillips v Phillips (1861) 4 De GF & J 208 (45 ER 1164) . Lord Westbury there said: 'Hence grantees and incumbrancers claiming in equity take and are ranked according to the dates of their securities; and the maxim applies, "Qui prior est tempore potior est jure"'."
Menzies J went on to discuss another line of authority, commencing with Stump v Gaby (1852) 2 De G M & G 623: 42 ER 1015 to the effect that where there is an equity to have a voidable conveyance set aside, there remains with the conveyer an equitable estate which may be devised. Menzies J, suggested at 290 – 291:
"If there is a difference between the two lines of authority, that difference seems to me to arise from concentration upon different aspects of what follows from a voidable conveyance. Thus, Phillips v Phillips (1861) 4 De G F & J 208 (45 ER 1164) , in so far as it says that a person with the right to have a voidable conveyance set aside has but a mere equity, directs attention to the right to have the conveyance set aside as a right to sue which must be successfully exercised as a necessary condition of there being any relation back of the equitable interest established by the suit. Stump v Gaby (1852) 2 De G M & G 623 (42 ER 1015) directs attention to the result of the eventual avoidance of the conveyance upon the position ab initio and throughout of the persons by whom and to whom the conveyance of property was made and says that, in the event of a successful suit (which may be maintained by a devisee), the conveyor had an equitable estate capable of devise and that the conveyee holds, and has always held, as trustee."
Having suggested such possible reconciliation of the two lines of authority, Menzies J said, at 291, that if the mortgagor was a natural person and the issue was whether he had a devisable interest in the property by virtue of the equity to have the voidable conveyance to the purchaser set aside, Stump v Gaby would determine that the mortgagor had an equitable interest in land. He concluded by referring to the fact that at issue in the case at hand was the priority between an equity to set aside a voidable conveyance and an equitable interest in land acquired by a bona fide purchaser without notice, and held that Phillips v Phillips (supra) determined this issue in favour of the latter.
Menzies J said nothing about a caveatable interest in land, but the above analysis, if correct, demonstrates that had he been asked to do so, he might well have held that the mortgagor had such an interest, as the classification of the equity fell to be determined in accordance with Stump v Gaby.
In Swanston, Brooking J rather grudgingly conceded this when he said, at 677, "it is certainly arguable that one could, consistently with [Menzies J's] judgment, conclude that the mortgagor did in that case have a caveatable interest", but then said:
"Mindful of these criticisms, I nevertheless venture to express the opinion that on the approach of Menzies J the right of the mortgagor in that case should be regarded as a mere equity for the purposes of the right to caveat."
It is difficult to determine the basis for that opinion. In his judgment in Latec, Taylor J reached the same conclusion as Kitto J. He acknowledged the effect of Stump v Gaby and the cases that followed it, as did Menzies J, but held that the issue at hand concerned priorities and that Stump v Gaby said nothing about that. He went on to hold that although Stump v Gaby established that the mortgagor had an equitable interest in land, and not a mere equity, that interest had to be postponed because the mortgagor required the assistance of Court of Equity to remove the impediment to asserting its interest. As the trustee for the lenders was a bona fide purchaser without notice, a court of equity would not give the mortgagor that assistance. The judgment of Taylor J in Latec does not support Swanston.
With deference and respect, I have come to the conclusion that there is no warrant for assuming that in the case of a voidable conveyance the mortgagor's equity will be classified in the same way as the court classifies that equity in a priority dispute.
In his judgment in Swanston, Brooking J said at 677, that support for his approach was to be found in Re Pile's Caveat [1981] Qd R 81. In that case, a husband and wife owned separate property and subsequently jointly acquired other property, some of which was income earning. It was agreed between them to transfer the properties to the corporate trustees of two family trusts. The wife claimed that she was induced to do this by her husband's representation that all the real estate would be held by the trustees on their behalf as joint proprietors. The husband denied making any such representation. The parties separated and the wife lodged caveats. Upon a summons to remove the caveats, Dunn J held that the wife had a personal equity and that this was not an interest in land, nor consequently a caveatable interest. He said, at 83:
"It is established that, in order to maintain a caveat, a caveator must prove facts which indicate prima facie that he has an estate or interest in the land in respect of which his caveat is lodged. The Court will not, except perhaps in the plainest cases, resolve disputed questions of fact when it hears an application to remove a caveat. However, the existence of a prima facie equity to relief involving land is not necessarily the same as the prima facie existence of an interest in the land. In my opinion, this point has not been understood in this case.
The situation of the present caveator is not the same as, for instance, the situation of a person who claims to be the purchaser of land and so to be entitled in equity to the land. What the present caveator claims, as I understand her case, is a personal equity enforceable against her husband and the companies, to have the lands the subjects of the caveats re-conveyed to her because of the fraud of her husband."
Dunn J did not refer to any authority to support the proposition that the wife's equity would not support a caveat, nor did he refer to Latec or Swanston. It is not clear to me why he classified the wife's equity as personal and not a mere equity as was the case in Swanston. Further, it appears that In Re Pile's Caveat was not followed in later Queensland cases, Re McKean's Caveat (supra) and Cross v National Australia Bank Ltd (supra).
It seems to me that with respect to the question of whether a registered proprietor can lodge a caveat merely because he is the registered proprietor, the reasoning in Haupiri Courts Limited and adopted in Sinclair and Swanston is to be preferred. The issue is one of statutory construction. The application of the ejusdem generis rule by Richmond J in Haupiri Courts Limited to the equivalent of the words "or otherwise" in the Act, s133(1)(b), was appropriate. The section is designed to protect unregistered interests, the estate of the registered proprietor being paramount. There is no authority to the contrary. Although I have referred to cases in which a registered proprietor has relied upon the interest created by the registration as a caveatable interest, in none of them does it appear that the issue was argued. The oblique obiter comment by Barwick CJ in J & H Just (Holdings) Pty Limited v Bank of New South Wales (supra) that I have set out earlier in these reasons, can hardly be regarded as undermining a statutory construction that, to me, seems reasonably clear on its face. This view of the Act, s133(1) was adopted in this Court by Slicer J in Shaw Excavations Pty Ltd v Portfolio Investments Pty Ltd (supra). His Honour said, at 454 – 455:
"The registered proprietor has an interest in land, but that is recognised by the title document itself. I prefer to follow the line of reasoning applied by Richmond J in Re an Application by Haupiri Courts Limited (No 2) [1969] NZLR 353, an approach followed in Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 and Swanston Mortgage Pty Ltd (supra), and determine that a registered proprietor must establish something over and above that status before it can be said that there exists a registrable interest."
The more difficult question is what other interest in land must a registered proprietor show in order to sustain a caveat? Is the equitable right of a registered proprietor to prevent completion of a voidable sale following the exercise of a mortgagee's power of sale a sufficient interest in land to create a caveatable interest? The decision of Swanston stands in the way of accepting that proposition, but is sustained by the reasoning in Sinclair, Re McKean's Caveat and Cross v National Australia Bank Ltd. Although Swanston is not binding on me, an appellate decision in another Australian jurisdiction commands the utmost respect and should be followed as a matter of comity unless I am of the view that the decision is clearly wrong. Authority for this proposition is R v Abbrederis [1981] 1 NSWLR 530 at 542 and R v Hookham (1993) 31 NSWLR 381 at 391.
Swanston was applied by Coldrey J in Commonwealth Bank of Australia Limited v Kyriackou [2003] V Conv R ¶54-543 and discussed in Byrne v St George Bank Ltd [1996] V Conv R ¶54-543. Swanston has been gently criticised by Ms Rodrick in The Response of Torrens Mortgagors to Improper Mortgage Sales (1996) 22 Mon ULR 289 at 336 et seq, and vigorously criticised by Mr David Wright in Does the Registered Proprietor Have a Caveatable Interest? The authors of Meagher, Gummow and Lehane's Equity Doctrines & Remedies have this to say about Swanston in the fourth edition at 151:
"Even if the competition were viewed as between the mortgagor entitled only to an equitable interest (his equity of redemption) and the purchaser asserting his equitable interest under the contract, the former must succeed on the ordinary rules as to priority. Before completion of the contract there was no conveyance to be set aside and thus no 'impediment' to the assertion of the mortgagor's equity of redemption; so, in contrast to Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265; [1966] ALR 775, the mortgagor's interests had not been degraded to a 'mere equity' and in a suit to restrain completion of the contract the earlier equitable interest was to prevail. These principles were applied by Needham J in Sinclair v Hope Investments Pty Ltd [1982] 2 NSWLR 870 and Ryan J in Re McKean's Caveat [1988] 1 Qd R 524. They were ignored in Swanston Mortgage Pty Ltd v Trepan Investments Pty Ltd [1994] 1 VR 672, where Brooking J was beguiled by the reasoning in Latec's case into holding that a registered proprietor whose mortgagee had entered into, but not completed, a contract in fraudulent exercise of its power of sale lacked an interest in the land sufficient to support a caveat. That decision has been rightly condemned by D Wright (1995) 69 ALJ 935."
For the reasons expressed earlier in this judgment, I have respectfully come to the conclusion that insofar as Swanston is authority for the proposition that the equitable interest of a mortgagor in the case of a voidable sale by a mortgagee, not yet completed, is insufficient to create an equitable interest in land, it should not be followed. Until the contract is completed there is no conveyance to set aside and thus no impediment to the mortgagor asserting an equity of redemption.
The respondent's caveat
The Act, s133(2), requires a caveat to 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 ¾
and shall be signed by the caveator or by his solicitor, attorney, or authorized agent."
The respondent's caveat was lodged over the whole of the land, notwithstanding that he had contracted to sell lot 2 to the applicants. However, it seems that he had no alternative, as at the time of lodgement, there was no separate title for lot 2. On its face, the caveat complied with s133(2). With respect to the estate claimed, the respondent wrote that he was "claiming [an] estate or interest as registered proprietor by virtue of an estate in fee simple" and forbad the registration of any dealing, "including transfer by power of S" affecting the land until the caveat be withdrawn or the Court otherwise orders.
For the foregoing reasons, that caveat cannot be sustained. It does not claim an equitable interest in the registered land. An order should be made to remove it. However, at the close of argument, an application was made to amend the caveat. The application was supported and opposed by written submissions. The application was expressed to be in five alternatives. They are that the caveat should be amended as follows:
(1)"… claiming estate or interest as unpaid vendor of part of the land by virtue of a contract between William Gary Patmore and Glynis May Smith and myself entered 15 November 2002 …".
(2)"… claiming estate or interest as mortgagor of the land pursuant to registered mortgage B929135 to Tasmanian Trustees Ltd as mortgagee, by virtue of the mortgage being void, invalid and unenforceable because of the failure of the initial registered mortgagees to comply with the Lending of Money Act 1915 …".
(3)"… claiming estate or interest as mortgagor of the land pursuant to registered mortgage B929135 to Tasmanian Trustees Ltd as mortgagee by virtue of the mortgage being void, invalid and unenforceable because, contrary to section 86(1) of the Conveyancing and Law of Property Act 1884, no written notice of assignment of the mortgage from the initial registered mortgagees to Tasmanian Trustees Ltd was given to me prior to the alleged transfer ..."
(4)"… claiming estate or interest as registered proprietor of the land, or alternatively mortgagor of the land pursuant to registered mortgage B929135 to Tasmanian Trustees Pty Ltd as mortgagee, by virtue of the mortgagee's failure to exercise the power of sale contained in the mortgage in good faith …".
(5)"Claiming estate or interest as mortgagor of the land pursuant to registered mortgage B929135 to Tasmanian Perpetual Trustees Ltd as mortgagee by virtue of the mortgagee failing to transfer the mortgage upon request to do so in conjunction with tender of the sum secured under the mortgage on 4 August 2003 …".
On behalf of the respondent, it was contended that the Act, s135(2), provided the power to order the amendment of the caveat. It provides:
"(2) The Supreme Court, on proof that the caveator has been summoned, may make such order, either ex parte or otherwise, as it considers necessary and may determine by whom the costs of, and incidental to, the summons and the proceedings on the summons, and the entering and removal of the caveat shall be borne."
In Nichols Constructions Pty Ltd v Henry & Law A91/1994, Cox J (as he then was) doubted that the Act conferred a power to amend a caveat. His Honour referred to a Victorian case and a Queensland case, in each of which an amendment had been ordered, and observed that the statutory power in Victoria to make such order as "it may seem fit" had no equivalent in the Tasmanian legislation. His Honour did not refer to s135(2).
In Hooper v Australia and New Zealand Banking Group Limited (1996) 5 Tas R 398, Wright J did not refer to Cox J's obiter dicta in Nichols Construction, but said, at 404:
"In my opinion, the nature and purpose of a caveat is such that technical deficiencies in its form and content should not be allowed to deprive a bona fide claimant from obtaining the advantage and breathing space that prompt notification of his claim to the Registrar should, in principle, permit him to achieve. This does not mean that a fallacious claim should be allowed to clog the title or that imprecision or obfuscation should be rewarded, but if Stout CJ was correct in Plimmer v St Maur (1907) 26 NZLR 294 when he said:
'In my opinion the caveat cannot be set aside unless the claim to the estate appears to be without any validity. If there is a reasonable question to argue the court should not remove the caveat, but permit the matter to be litigated'
(and, with respect, I think he was) the Court should not destroy or impede a bona fide claim either by declining to amend an arguably deficient caveat or by removing it from the Register."
Wright J returned to this issue again in Dean v Dean [1999] TASSC 15. In his reasons for judgment his Honour said that he had been referred to Cox J's decision in Nichols Construction, but made no other comment on it. His Honour then said, at par4:
"In the first place, I propose to adhere to what I said in Hooper's case. In my opinion a caveat can be amended and leave to amend should be granted in an appropriate case."
At first sight, it might appear that there is substantial support for Wright J's widely expressed view. In Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Limited [1969] Qd R 150, the Full Court of the Supreme Court in Queensland held that a statutory power to make such order as "shall seem fit" did confer a power to amend a caveat. The amendment permitted in that case altered the extent of the prohibition imposed by the caveat.
In Elliott v Blanchard (1970) 17 FLR 7, Blackburn J held that a statutory power to make such order "as shall seem just" was wide enough to include a power to permit the caveat to be amended. The amendment mooted concerned the description of the land to which the caveat related. The amendment was not allowed upon the basis that it would not cure the defect. With respect to the power to make such amendment, Blackburn J relied upon Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Limited (supra) and In Re The Victorian Farmers' Loan and Agency Co Limited (1897) 22 VLR 629. In the latter, the amendment allowed concerned (inter alia) the extent of the dealings that the caveat sought to forbid.
In Veloudos v Young (1981) 56 FLR 182, the Federal Court held that a statutory power in the relevant ACT Ordinance which conferred on the court or judge a power to make such order as seems fit, encompassed a power to amend a caveat. Reliance was placed upon the decisions to which I have just referred. In the circumstances of that case however, the amendment sought was not allowed.
In Porter v McDonald [1984] WAR 271, Rowland J, sitting as a member of the Full Court of Western Australia, held that the relevant statutory power to make "such order in the premises … as to such judge may seem fit" included a power to order that the caveat be amended. His observation was obiter dicta as it related to a ground of appeal that was not pursued.
However, more recent authority shows that the power to amend may well not be completely unrestricted. In Midwarren Estates Pty Ltd v Retek [1975] VR 575, Menhennit J referred to the Victorian Farmers' Loan and Agency case and the Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Limited case, and said, at 577:
"In my view, however, it is significant that in both that case [the Victorian case] and in the Queensland Full Court decision what was held to be capable of amendment was the protection given and not the estate claimed."
The relevant statutory power considered by Menhennit J was the Transfer of Land Act 1958 (Vic), s90(3), which conferred a power to "make such order as the court thinks fit". With respect to the extent of that power, Menhennit J said, at 577:
"In my view, the provisions of s90(3) of the Transfer of Land Act do not authorize the making of an amendment to the estate claimed. I am not to be taken as deciding that there may not be some inherent power to make amendments to the estate claimed not on the basis of s90(3), but having regard to some inherent power that may reside in the Court. However, in my view, neither the provisions of s90(3) nor an other inherent power authorizes an amendment which would result in the substitution of an entirely inconsistent estate or interest."
In Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv R 334, McLelland J held that the power to make "such further or other orders as it thinks fit" included a power to amend a caveat with respect to the ambit of its prohibition. His Honour relied upon the cases to which I have referred, including Midwarren Estates.
The statutory regime presently governing the removal of caveats in New South Wales is the Real Property Act 1900 (NSW), Pt7A. Although expressed in terms quite different from the Act, PtIX, there is a common underlying philosophy. This is apparent from the decision of Multi-Span v Portland [2001] NSWSC 696. In that case, Barrett J said, at par127:
"A caveat is not an ambulatory or flexible means of maintaining a blocking position in aid of whatever interest, if any, the caveator may have from time to time. Central to s.74F of the Real Property Act 1900 is the notion that the party lodging a caveat asserts an entitlement to a particular estate or interest and that the caveat prohibits 'the recording of any dealing affecting the estate or interest to which the person claims to be entitled'. The prohibition is effected through s.74H. The ineffectiveness of a caveat to do more than provide protection, by way of notice, commensurate with the extent of the notified estate or interest is emphasised in decided cases many of which are of long standing and are discussed by John Baalman in 'The Drafting of Caveats', (1957) 31 ALJ 17. It is beside the point that the caveator may have some estate or interest capable of supporting a caveat which is not itself claimed in the caveat. This is borne out by the following statement in Ruptash v Zawick (1956) 2 DLR 145 quoted by Baalman:
'The purpose of filing a caveat is to give notice of what is claimed by the caveat against the land described. If an unregistered document in fact gives a party thereto more rights than one in a parcel of land and such a party sees fit to file a caveat claiming one only of such rights, it appears to me that any person proposing to deal with the land is entitled to assume that the claim expressed is the only one made. Expressio unius est exclusio alterius'."
His Honour said, at par132:
"The view of these matters I prefer is that stated by McLelland J in Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZ Conv Rep 334, by reference to Re Spencer (1904) 4 SR (NSW) 471 and Midwarren Estates Pty Ltd v Retek & Stivic [1975] VR 575, that the court has no jurisdiction to make an order for the amendment of the provisions of a caveat defining the interest claimed. If a person who has lodged a caveat claiming a particular estate or interest afterwards comes to enjoy (or, for that matter, already enjoys) some new or different estate or interest in the same land, that person may simply lodge a new caveat based on the separate estate or interest. The effective prohibition upon successive caveats arising under s74O only operates if the later caveat is in respect of the same estate or interest as is claimed in the earlier caveat and purports to be based on the same facts as that earlier caveat. The conditions are cumulative."
Presently, the powers of the court under the Transfer of Land Act 1893 (WA), s138C, are also different from the Act, PtIX. Relevantly, the court is given a power "if satisfied that the caveator's claim has or may have substance" to (inter alia) "make such other orders as it thinks fit concerning the caveat or the land in respect of which the caveat was lodged". With respect to that power, Le Miere J observed in Professional Services of Australia Pty Ltd v Mila Properties Pty Ltd [2004] WASC 30, at par17:
"The power conferred by s 138C(1)(a)(iii) is conditioned by the requirement that the Court be satisfied that the caveator's claim has or may have substance. In my view 'the caveator's claim' refers to the estate or interest claimed in the caveat. If the caveator's claim in the caveat has no substance then the Court does not have power under s 138C(1)(a)(iii) to amend the caveat to claim a different estate. The plaintiff's claim in the caveat has no substance. The interest that justified the lodging of the caveat no longer exists."
In Queensland, Atkinson J recently observed in Goodwin v Gilbert [2000] QSC 309, at par30:
"The Court has the power under s 127 of the Land Title Act to amend a caveat in any order it makes when the caveatee has applied for the caveat to be removed. In Queensland Estates Pty Ltd v Co-ownership Land Development Pty Limited [1969] (supra) at 158 the Full Court so held with regard to s 99 of the Real Property Act 1861. As I have observed, the slight change in wording of the equivalent section has not affected this power. Significantly there is no need to amend the interest being claimed, that is an estate in fee simple, but merely to add a ground for the claim. Land Title Act s 121(2)(g); cf Midwarren Estates v Retek [1975] VR 575 at 577. The caveat which is to be amended is not invalid without the amendment so as to warrant its removal. cf Re Moore's Caveat [1985] 1 Qd R 310. Neither is the claim to a right to freehold title by adverse possession inconsistent with the other claims made: Shaw v Garbutt (supra) at 12. If my view as to the power of the Court to order the amendment of a caveat were not correct, then I would certainly have ordered under s 129 of the Land Title Act 1994 that the respondents have leave to lodge another caveat on similar grounds to that lodged together with the ground of adverse possession. Jackson, S, 'Second Caveats and the Land Title Act 1994' (1995) 25 QLSJ 337 at 345." [Emphasis added.]
Finally, in New Zealand Mortgage Guarantee Co Ltd v Pye [1979] 2 NZLR 188, it was held that a wide discretionary power should not be exercised to permit an amendment to be made to the estate or interest claimed.
Application of the principles gleaned from the foregoing authorities leads me to conclude that the application for an amendment should be refused. A caveat is a statutory injunction to preserve the status quo until the Court can determine the competing claims. It "operates as notice to all the world that the registered proprietor's title is subject to the equitable interest alleged in the caveat", per Griffith CJ in Butler v Fairclough (1917) 23 CLR 78. The estate is claimed by the respondent as "registered proprietor". That estate is said to be claimed by virtue of "an estate in fee simple". There is no hint of the basis upon which that estate is claimed, apart from the assertion that the respondent is the registered proprietor. There is no word in the caveat about a mortgage (apart from the oblique inclusion of "including transfer of power of S" in the dealings it seeks to forbid), nor any word about an unpaid vendor. To permit an amendment in any one of the five alternative terms proposed would be to entirely change the whole of the caveat and create an entirely new caveat. Whilst I am prepared to accept that the Act, s133(2), empowers amendment of a caveat, that power does not extend to entirely re-drafting the caveat to create a document that was not registered in the Office of the Recorder of Titles. Even if one or more of the amendments sought were made, that would not be sufficient for there would need to be consequential amendments, in one case to the part of land affected by the caveat, and in the others with respect to the dealings that are forbidden. A caveat is not, as Barrett J said in Multi-Span, "ambulatory or flexible means of maintaining a blocking position in aid of whatever interest, if any, the caveator may have from time to time", nor, I might add, whatever interest he might be able to argue that he has when he is forced to go to court to retain his caveat. Finally, I would add that in any event, proposed amentments (2) and (3) should not be allowed because there is no arguable case to sustain the interests claimed for the reasons given at the beginning of this judgment.
There will be an order that Caveat number C448820 registered on certificate of title volume 116236, folio 1 be removed.
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