Reindel v Confreight Pty Ltd (No 1)
[2022] VSC 163
•4 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2021 02659
BETWEEN:
| GLENN REINDEL & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| CONFREIGHT PTY LTD (ACN 005 729 457) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 October 2021, further written submissions filed by the First and Third Plaintiffs on 21 October 2021 |
DATE OF JUDGMENT: | 4 April 2022 |
CASE MAY BE CITED AS: | Reindel & Ors v Confreight Pty Ltd & Ors (No 1) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 163 |
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REAL PROPERTY – Caveats – Application to remove caveats – Whether there is a prima facie case that there is an equitable charge arising out of a loan agreement – Whether there is a common intention by the parties to immediately create an equitable charge - McMillan v Dunoon [2005] VSC 440 considered – Construction of a commercial agreement - Whether the loan agreement confers an equitable interest in property owned by a non-party to the agreement – Balance of convenience – Held that there is a prima facie case that the loan agreement evidenced an immediate intention to create an equitable charge – Held that the loan agreement does not confer an equitable interest in property owned by a non‑party – Held that the caveats lodged over the properties of a non‑party are to be removed - Balance of convenience otherwise favours the maintenance of the caveat over the property owned by the party to the loan agreement.
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| APPEARANCES | Counsel | Solicitors |
| For the First and Third Plaintiffs | Mr I R Jones QC with Mr J Lipinski | William Partners |
| For the Third Defendant | Mr J Kohn | Capstone Koroneos Legal |
HER HONOUR:
Introduction and background
These reasons concern one of a number of applications in two proceedings arising from disputes between participants in a multi‑unit residential development in Windsor, Victoria (‘Windsor development’), which was completed in 2020. The first proceeding (‘caveat proceeding’) is an application to, among other things, remove caveats lodged over the titles of five apartments constructed as part of the Windsor development (‘Windsor units’). The registered proprietors of the Windsor units are Mr Glenn Reindel (as to one of the Windsor units), and Blizzard Winds Pty Ltd (‘Blizzard Winds’), a company of which Mr Reindel, who is a property developer by profession, is the sole director and shareholder (as to four of the Windsor units). The second proceeding is a proceeding brought by the first and second defendants in the caveat proceeding, Confreight Pty Ltd and Supply Chain Logistics Pty Ltd (‘investors’).
A special purpose vehicle, Windsor Development Company Pty Ltd (‘WDC’) was incorporated to carry out the Windsor development, which involved the construction of 69 residential units and two restaurants. WDC was wound up in late 2020, and a liquidator is in control of its affairs. The return to the investors from the Windsor development was negligible, and the investors have now made a number of serious allegations against Mr Reindel with respect to the conduct of the affairs of WDC and the unit trust. ABPC is, among other things, the project manager of the Windsor development, and an unsecured creditor of WDC.
The Baker caveats and the Baker proceeding
On 31 March 2021, ABPC lodged caveats over each of the Windsor units claiming an interest as chargee (‘Baker caveats’), on the grounds of a charge referred to in an agreement said to have been made between ABPC and Mr Reindel on 11 September 2020 (‘2020 facility agreement’).
ABPC is controlled by Mr Anthony Baker, a citizen of the United Kingdom and a long time associate of Mr Reindel. Mr Reindel and Mr Baker met in the United Kingdom in late 2002, when Mr Reindel lived in the United Kingdom, and, for reasons which are not entirely clear, it seems that they lent each other substantial amounts of money from time to time. In 2018, Mr Baker emigrated to Australia, sponsored by Blizzard Winds, and became the Chief Operating Officer of Blizzard Winds. Mr Baker’s then fiancée, Ms Jasmine MacFarlane, is now the registered proprietor of two units in the Windsor development. It seems that a falling out between Mr Baker and Mr Reindel in late 2020 led to Mr Baker alerting the investors (and the liquidator) to alleged irregularities in the affairs of WDC.
The dispute between Mr Reindel and Mr Baker is the subject of a proceeding issued by Mr Reindel in the Commercial Court on 28 June 2021 (‘Baker proceeding’). In the Baker proceeding, Mr Reindel, Blizzard Winds, and Mondrian Developments Pty Ltd (‘Reindel interests’) claim that Mr Baker owes them the sum of $1,997,161.30 pursuant to a facility agreement dated 30 June 2014 (‘2014 facility agreement’), of which $620,652.01 represented amounts advanced by the Reindel interests to Mr Baker between September 2011 and October 2014 pursuant to the 2014 facility agreement, with the balance being accrued interest in accordance with the terms of the 2014 facility agreement.
On 17 August 2021, Mr Baker filed a defence in the Baker proceeding, alleging, in summary, as follows:
(a) in May 2008, Mr Baker and Mr Reindel entered into a loan agreement (‘2008 facility agreement’) in which Mr Baker agreed to lend Mr Reindel £1,250,000, of which only $235,532 has been repaid;
(b) in June 2016, Mr Baker and Mr Reindel signed three agreements, the first of which acknowledged the loan referred to in (a) above (‘2016 facility agreement’), the second of which purported to characterise the loan repayments made by Mr Reindel referred to in (a) above as a loan from Mr Reindel to Mr Baker (said by Mr Baker to be at the request of Mr Reindel), and the third being a written loan agreement acknowledging the net debt owed by Mr Reindel to Mr Baker;
(c) the third loan agreement referred to in (b) above also included terms regarding Mr Baker’s relocation to Australia and his employment as a project manager for property developments to be undertaken by the Reindel interests, and an acknowledgment by Mr Reindel that he owed Mr Baker $1.8 million;
(d) after Mr Baker’s arrival in Australia in 2018, he and Mr Reindel entered into an agreement whereby Mr Baker was granted options to purchase units in the Windsor development at a discount in part payment of the money owed by Mr Reindel to Mr Baker pursuant to the 2016 facility agreement. Those options were exercised by Mr Baker and his then fiancée, Ms Jasmine MacFarlane, and the balance of the debt owing by Mr Reindel to Mr Baker was reduced by $445,000;
(e) between June 2020 and August 2020 ABPC received bonus payments from WDC in the total sum of $679,546 pursuant to an advisory agreement between WDC and ABPC (‘advisory agreement’). Separately, Mr Baker and Mr Reindel agreed that these payments would be applied to reducing the debt owed by Mr Reindel to Mr Baker pursuant to the 2016 facility agreement; and
(f) Mr Baker claims that Mr Reindel owes him the sum of $6,671,735.83 pursuant to the 2016 facility agreement (as at 16 August 2021), being the balance due on 16 June 2016 of $1,800,000, plus accumulated interest of $5,996,281.83, less repayments of $1,124,546.
Mr Baker and ABPC also filed a counterclaim in the Baker proceeding, which, in addition to the allegations made in Mr Baker’s defence, made the following allegations against Mr Reindel and Blizzard Winds:
(a) Blizzard Winds owes Mr Baker the sum of $350,000 payable to him on account of unpaid salary and superannuation pursuant to an employment agreement between Blizzard Winds and Mr Baker, and a performance payment agreement between Blizzard Winds and Mr Baker;
(b) in or around June 2020, ABPC agreed, at Mr Reindel’s request, to loan Mr Reindel the sum of $500,000, of which $498,956 was advanced between 1 June 2020 and 24 August 2020;
(c) Mr Reindel and Mr Baker agreed that this loan would be repayable the earlier of the date when Mr Reindel and/or Blizzard Winds were able to obtain a loan facility secured by the Windsor units, or 30 March 2021;
(d) on or about 15 September 2020, Mr Reindel and ABPC executed the 2020 facility agreement;
(e) Mr Reindel has failed to repay the loan made by ABPC pursuant to the 2020 facility agreement;
(f) as at 16 August 2021, Mr Reindel owed Mr Baker the sum of $6,671,735.83 pursuant to the 2016 facility agreement, Mr Reindel owed ABPC the sum of $563,966.77 pursuant to the 2020 facility agreement,[1] and as at 31 March 2021, Blizzard Winds owed Mr Baker the sum of $382,205 pursuant to the performance payment agreement; and
(g) ABPC claims to be entitled to an equitable mortgage or charge over the Windsor units, and the right to exercise its power to sell the Windsor units to discharge the debt owing to it under the 2020 facility agreement.
[1]During the course of the hearing on 18 October 2021, ABPC confirmed that it would seek to amend its counterclaim to make a claim for default interest, which would take the quantum of the debt said to be owed under the 2020 facility agreement to close to $2.5 million, although no further amended counterclaim has yet been filed.
In his reply and defence to counterclaim filed on 5 October 2021, Mr Reindel:
(a) denied the existence of the 2008 facility agreement;
(b) referred to the 2014 facility agreement, and various emails sent in 2012 in which Mr Baker was said to have acknowledged the debt owing by him to Mr Reindel;
(c) denied the existence of the 2016 facility agreement, and observed that no advances were said to have been made by Mr Baker pursuant to the 2016 facility agreement, nor were any demands made by Mr Baker pursuant to the 2016 facility agreement;
(d) referred to a written agreement between Mr Reindel and Mr Baker dated 16 June 2016 in which Mr Baker, among other things, acknowledged that Mr Reindel had provided Mr Baker with a short term loan facility of $620,652 pursuant to the 2014 facility agreement;
(e) denied that Mr Reindel signed the advisory agreement, and that he caused WDC to enter into the advisory agreement, but admitted that Blizzard Winds had issued an invoice to WDC dated 5 July 2020 which referred to “Performance Bonus $250,000”;
(f) denied that Mr Reindel signed the 2020 facility agreement;
(g) admitted receiving $498,956 from ABPC, but said that these payments were made in reduction of the amount owed by Mr Baker to the Reindel interests pursuant to the 2014 facility agreement; and
(h) said that, in the event that Mr Reindel is found to have entered into the 2020 facility agreement, the default interest rate specified in this agreement is an unenforceable penalty, and the terms of the 2020 facility agreement do not confer an equitable mortgage in favour of ABPC over the Windsor units.
As can be seen from the above, there are numerous factual disputes between Mr Baker and ABPC on the one hand and the Reindel interests on the other hand which can realistically only be resolved after a full trial.
The caveat proceeding
Mr Reindel and Blizzard Winds (‘plaintiffs’) issued the application to remove the Baker caveats on 28 July 2021. Initially, the plaintiffs sought an urgent hearing on the basis that Mr Reindel needed to use the Windsor units as security for a loan to pursue an investment opportunity in Queensland. However, that issue has fallen away.
Mr Reindel and Blizzard Winds relied upon the following affidavits in the caveat proceeding:
(a) affidavits of Mr Reindel affirmed on 28 July 2021, 5 August 2021, 12 August 2021, 3 September 2021, and 18 October 2021;
(b) an affidavit sworn by his solicitor, Mr George Papandreou, on 6 August 2021; and
(c) an affidavit affirmed by another solicitor, Ms Colette Chrzanowski, on 9 September 2021.
ABPC relied upon the following affidavits in opposition to the application by Mr Reindel and Blizzard Winds to remove the Baker caveats:
(a) affidavits sworn by its solicitor, Mr Mark Koroneos on 6 August 2021, 10 September 2021, and 15 October 2021; and
(b) affidavits sworn by Mr Baker on 16 August 2021 and 10 September 2021.
It is not necessary for the purposes of the current application to canvass the evidence relied upon by the parties in any detail. ABPC relied upon the 2020 facility agreement to support its claims for a charge over the Windsor units, and put into evidence email correspondence and other documents said to support the authenticity of the 2020 facility agreement. Mr Reindel denied signing the 2020 facility agreement, saying that Mr Baker must have affixed his electronic signature to the document without his authority.
One issue which arose during the course of the application to remove the Baker caveats was the relative paucity of evidence regarding the value of the Windsor units. While Mr Reindel and Blizzard Winds say that the 2020 facility agreement does not, on its face, confer an equitable interest in the Windsor units upon ABPC, they also say that, if that argument is unsuccessful, the scope of the Baker caveats should be limited to one unit owned by Mr Reindel personally, said by Mr Reindel to be valued at $1.2 million, on the basis that the interest component of ABPC’s claim under the 2020 facility agreement is based upon a term of the 2020 facility agreement which is an unenforceable penalty.[2] ABPC disputes Mr Reindel’s valuation, saying that the valuations of the Windsor units carried out by the Bank of Melbourne and the National Australia Bank fell well short of $1.2 million per unit. In the end, it was agreed that, should I uphold ABPC’s entitlement to maintain the Baker caveats over all of the Windsor units, the parties would have an opportunity to file further evidence and make further submissions regarding the scope of the Baker caveats: that is, whether all of the Baker caveats should remain in place, or whether a caveat over the unit owned by Mr Reindel personally would suffice to secure ABPC’s claims in the Baker proceeding.
[2]In an affidavit of 18 October 2021 (the first day of the hearing of the caveat proceeding and the injunction application) Mr Reindel gave evidence that a unit in the Windsor development similar in size and layout to two of the Windsor units owned by Blizzard Winds was sold in 2017 for $799,950, with settlement of the sale taking place on 20 August 2020.
Recent developments
A mediation was held in the Baker proceeding over the course of February and March 2022, which was unsuccessful. On 15 March 2022, the managing judge made pre-trial directions in the Baker proceeding, and listed the Baker proceeding for further directions on 26 August 2022. It seems unlikely that the trial of the Baker proceeding will be heard in 2022.
In ‘Other Matters’ accompanying the orders made on 15 March 2022, the managing judge referred to a proceeding issued by the liquidator in this Court on 18 January 2022 (‘liquidator’s proceeding’),[3] whereby the liquidator seeks, among other things, the approval of the Court to enter into an agreement with Mr Baker to assign certain causes of action to him.
[3]S ECI 2022 00106.
The substantive applications in the liquidator’s proceeding have not yet been listed for hearing, and may not be listed for many months given disputes concerning preliminary matters. If the application for Court approval of the agreement to assign certain causes of action to Mr Baker is successful, Mr Baker has indicated that he may apply to amend his counterclaim in the Baker proceeding to join the claims assigned to him by the liquidator. However, at this stage, these developments have no bearing upon the current application, save that it appears unlikely that the underlying dispute between the Reindel interests and Mr Baker and ABPC will be resolved quickly.
Relevant legal principles
There was no dispute between the parties as to the applicable legal test in applications to remove caveats, and I do not propose to canvass the relevant authorities at any length in these reasons.
In its written outline of submissions, ABPC referred to the summary of the relevant principles by Derham AsJ in BCA Asset Management Group Pty Ltd v Sand Solutions (Vic) Pty Ltd,[4] as follows:
(iv)the Court’s power under s 90(3) of the [Transfer of Land Act 1958 (Vic)] is discretionary;
(v)the Caveator bears the onus of establishing that there is a prima facie case to be tried that it does have the estate or interest in land as claimed;
(vi) if the Caveator establishes a prima facie case to be tried in relation to the estate or interest claimed, the Caveator must further establish that the balance of convenience favours the maintenance of the caveat until trial; and
(vii) there is a relationship between the strength of the case in establishing a prima facie case to be tried and the extent to which the Caveator must establish the balance of convenience favours the Caveator; the stronger the prima facie case, the more readily the balance of convenience might be satisfied. It is sufficient that the Caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the Land in question in accordance with its normal proprietary rights.[5]
[4][2021] VSC 177.
[5]Ibid [9].
His Honour observed that the authorities refer to both the “prima facie case“ test and the ”serious question to be tried“ test. He preferred the former, saying that:
That does not mean that the Caveator must show that it is more probable than not that at trial the plaintiff will succeed. The Caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial ...[6]
[6]Ibid.
I agree with Derham AsJ that the “prima facie case“ test is to be preferred,[7] and while the difference between the tests is one of degree, the difference is material, and recognises the potentially adverse consequences to a registered proprietor of a property of being constrained from dealing with their property, in circumstances where a caveator is generally not required, in the absence of an express order of the Court to the contrary, to provide an undertaking for damages.
[7]That the “prima facie case” test is to be preferred is consistent with the language used by the Court of Appeal in AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 235 [25], although in that decision there was no discussion of any difference between the stringency of the tests.
Finally, Derham AsJ referred to the two stage process to be undertaken in applications of the current kind, as follows:
First, the Caveator must establish that there is a prima facie case — that there is a probability on the evidence before the Court that the Caveator will be found to have the asserted legal or equitable rights or interest in the land. Second, having done so, the Caveator must establish that the balance of convenience favours the maintenance of the Caveat on the title until trial and that the probability of success is sufficient to justify the practical effect which the caveat has on the ability of the registered proprietor to deal with the property in question in accordance with their normal proprietary rights ...[8]
[8][2021] VSC 177, [9].
The issues in the application
Mr Reindel and Blizzard Winds seek the removal of the Baker caveats on the basis that the document relied upon by ABPC to support the Baker caveats, being the 2020 facility agreement, does not in its terms confer an equitable interest in the Windsor units in favour of ABPC. They observed that Mr Reindel denies having executed the 2020 facility agreement, and say, that, even if I was to hold that ABPC was entitled to lodge the Baker caveats, ABPC should only be entitled to maintain a caveat over one of the Windsor units, as Blizzard Winds (the registered proprietor of four of the Windsor units) was not a party to the 2020 facility agreement, and, in any event, the major component of ABPC’s claim in the Baker proceeding (in terms of quantum) represents interest calculated at ten per cent per month pursuant to an unenforceable penalty clause.
Taking the last issue first, as previously noted, the parties have agreed to postpone the consideration of the scope of the Baker caveats until after the determination of the question of ABPC’s entitlement to lodge the Baker caveats. As for the second issue, while I note that Mr Reindel strenuously denies having executed the 2020 facility agreement, and the existence of any debt owing by him to ABPC, the nature of the disputed factual issues in the Baker proceeding are such that it is impossible to resolve these disputes in an application of the current kind, or even comment upon the strengths and weaknesses of the parties’ positions, prior to a full trial, where the issue of the parties’ creditworthiness is likely to loom large.
Accordingly, the question in the current application is whether ABPC has established a prima facie entitlement to an equitable interest in the Windsor units (or any of them) on the proper construction of the terms of the 2020 facility agreement.[9] If the better view is that the 2020 facility agreement is ineffective to charge the Windsor units to secure the funds said to have been advanced by ABPC to Mr Reindel pursuant to the 2020 facility agreement, then all of the Baker caveats should be removed. A further issue is, given that four of the five Windsor units are owned by Blizzard Winds, which was not a party to the 2020 facility agreement, whether the caveats lodged over those units should be removed.
[9]While on one view it is open to finally determine the proper construction of the 2020 facility agreement in the course of the current application, given the nature of the task, I do not propose to do so. First, it is not necessary to do so for present purposes, given the test applicable to applications of the current kind. Secondly, the question of the proper construction of the 2020 facility agreement is a live issue on the pleadings in the Baker proceeding. Thirdly, it was only at the end of the business day prior to the hearing of the application that Mr Reindel and Blizzard Winds withdrew their concession to the effect that the 2020 facility agreement was effective to confer a charge over the Windsor units in favour of ABPC, at least with respect to the unit owned by Mr Reindel personally. Accordingly, the parties only had a short period of time to identify and consider any relevant authorities concerning when an agreement can give rise to a security interest in property, with the only relevant decision canvassed during the course of the hearing being the decision of Gillard J in McMillan v Dunoon [2005] VSC 440 (‘McMillan’). In particular, I expect that no careful consideration was given to the question of whether it was appropriate or permissible to adduce and/or rely upon extrinsic evidence as an aid to the construction of the 2020 facility agreement.
ABPC resisted the application to remove the Baker caveats on the basis that, on the proper construction of the 2020 facility agreement, the 2020 facility agreement confers an equitable charge over each of the Windsor units in favour of ABPC, noting that Mr Reindel controls Blizzard Winds, and the Windsor units owned by Blizzard Winds are enumerated in Schedule A of the 2020 facility agreement. ABPC relied upon the decision of Gillard J in McMillan v Dunoon[10] as being on all fours with the facts in the caveat proceeding insofar as it concerns the Baker caveats.[11]
[10][2005] VSC 440.
[11]ABPC also relied upon the decision of the New South Wales Supreme Court in Beneficial Finance Corporation Ltd v Multiplex Construction Pty Ltd (1995) 36 NSWLR 510, and the Federal Court in Ipandco (Australia) Pty Ltd v Australian Technology Park Precinct Management Ltd [2003] FCA 1322, which was also concerned with a caveat registered in New South Wales. However, I do not consider that these decisions are of any real assistance in the current case. The principle relied upon by ABPC derived from those cases (to the effect that the Court will allow caveats to be maintained in borderline cases, albeit at the price of the caveator providing an undertaking for damages) seems to be one peculiar to New South Wales, arising out of provisions in the Real Property Act 1900 (NSW) which are not relevant to applications of the current kind in this jurisdiction.
In McMillan,[12] a clause in the relevant loan agreement provided that it was “a precondition of the loan advanced that the borrower provide the lender with the security particularised in … the schedule”.[13] The relevant item in the schedule referred to the “security” as being a deed of charge over the borrower’s land, with particulars of the title of the land having been reproduced in the loan agreement. No deed of charge was executed prior to the loan being advanced, or at all.
[12][2005] VSC 440.
[13]Ibid [7].
Gillard J noted that it was common ground that an equitable charge over real estate creates a proprietary interest capable of supporting a caveat over the title of the relevant property. His Honour observed that the critical question is whether the Court could infer from the terms of the loan agreement an intention to constitute a security. He concluded that, in the case before him, such a common intention could be inferred, in part from the reference in the loan agreement to the execution of a deed of charge being a pre-condition to the making of the advance, and the borrower’s provision of the title details for inclusion in the loan agreement. Gillard J also referred to the equitable maxim that “equity looks on that as done which ought to be done” observing that he had “little doubt that it would have been open to [the lender], if he so thought fit, to seek specific performance of the obligation requiring the execution of a deed”.[14]
[14]Ibid [34].
Accordingly, his Honour rejected the borrower’s submission that no equitable interest in the relevant property arose until after the execution of the deed contemplated by the loan agreement, and refused the borrower’s application to remove the caveat.
Mr Reindel and Blizzard Winds submitted that the reference to “Security” and “Security Document” in clause 8 of the 2020 facility agreement is clearly intended to refer to a separate instrument capable of registration, and as such, the 2020 facility agreement does not of itself give rise to an equitable charge in favour of ABPC.
Mr Reindel and Blizzard Winds (in their supplementary written submissions filed after the hearing) sought to distinguish the salient terms of the 2020 facility agreement from the terms of the loan agreement considered by Gillard J in McMillan.[15] They submitted, in summary, as follows:
[15][2005] VSC 440.
(a) the loan agreement in McMillan[16] clearly stated that a deed of charge would be given, and the loan agreement only came into effect upon the provision of a deed of charge;
[16]Ibid.
(b) in contrast, there is no provision in the 2020 facility agreement which refers to the Windsor units as already being charged;
(c) rather, properly construed, the 2020 facility agreement provides that, upon the borrower’s default, the lender may charge the Windsor units, but taking that step would be dependent upon Mr Reindel executing a document creating that charge;
(d) accordingly, as at the date of the execution of the 2020 facility agreement, the security referred to in Schedule A of the 2020 facility agreement was not valid, legally binding, and enforceable. An equitable interest in the Windsor units would only be created once a security document was “entered into” after a default by the borrower. Accordingly, clause 8.1 and Schedule A of the 2020 facility agreement require a step to be taken by the lender prior to the creation of a security interest, and do not create specifically enforceable obligations on the part of the borrower;
(e) unlike the agreement in McMillan,[17] where the borrower must have provided the particulars of title of the relevant property to the lender prior to the making of the loan agreement, the Windsor units are referred to in the 2020 facility agreement in colloquial terms, and it appears that ABPC was completely unaware of which of the Windsor units was held by Mr Reindel, and which units were held by Blizzard Winds; and
[17]Ibid.
(f) Mr Reindel and Blizzard Winds concluded as follows:
Accordingly, unlike McMillan, it cannot be inferred from the [2020 facility agreement] that there was a common intention of the parties that as a pre-condition to the loan, a charge would be given.
ABPC submitted that the terms of the 2020 facility agreement make it clear that the security interest held by ABPC in the Windsor units was conferred by the 2020 facility agreement itself, separately from any document created for the purpose of the registration of any security interest. Further, Schedule A evinces a clear intention on the part of the parties to bind Blizzard Winds.
Mr Reindel and Blizzard Winds submitted that the 2020 facility agreement cannot bind Blizzard Winds, as Blizzard Winds was not a party to the 2020 facility agreement. Mr Reindel and Blizzard Winds submitted further that:
(a) Blizzard Winds was not a party to the 2020 facility agreement, and there was no execution clause to allow Blizzard Winds to sign the 2020 facility agreement;
(b) no application has been brought by ABPC to rectify the 2020 facility agreement to add Blizzard Winds as a party to the agreement; and
(c) given that Blizzard Winds was not a party to the 2020 facility agreement, it could not be said that there was a common intention of the parties that Blizzard Winds would execute a charge in favour of ABPC, and there was nothing in the 2020 facility agreement to suggest that Mr Reindel was acting on behalf of Blizzard Winds.
Discussion
In McMillan,[18] Gillard J referred to a number of relevant principles which are of relevance to the current application.
[18]Ibid.
In Cradock v Scottish Provident Institution,[19] Romer J said:
To constitute a charge in equity by deed or writing it is not necessary that any general words of charge should be used. It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security.[20]
[19](1893) 69 LT 380.
[20]Ibid 382.
After referring to the statement above, Gillard J went on to say as follows:
It is noted that the issue comes down to whether the Court can fairly gather from the words of the agreement an intention by the parties that the property referred to in the agreement was to be charged with payment of the debt. In other words, did it constitute a security?[21]
[21]McMillan [2005] VSC 440, [30].
His Honour also referred to the statement of the learned authors of Equity, Doctrines and Remedies,[22] regarding the equitable maxim referred to in paragraph 28 above, as follows:
the maxim means that often equity treats a contract to do a thing as if the thing were already done. Thus often equity will treat a person who for valuable consideration has agreed to take a lease as if he were a lessee: this is the doctrine of Walsh v Lonsdale [1882] 21 Ch D9 discussed in the previous chapter. Thus also is the doctrine of an equitable mortgage explicable. Any contract to give a mortgage creates not a hyperfication but an equitable mortgage conferring a right to foreclose.[23]
[22]Ibid [31]-[33].
[23]RP Meagher, WMC Gummow and JRF Lehane, Equity, Doctrines and Remedies (Butterworths, 2nd ed, 1984) [339].
And further:
the applicability of the maxim is limited to circumstances where that which ought to be done can be done; the maxim does not require one to believe that equity will regard as done that which no court of law or equity would ever order to be done. Therefore it can be availed of not by everybody but only by those who would have the right to seek in equity the enforcement of the contract. This is often expressed by saying with approximate accuracy that in cases of contract the maxim depends on a specific enforceability of the contract.[24]
[24]Ibid [340].
Finally, Gillard J referred to the following statement of Turner LJ in Re Strand Hall Music Co:[25]
There can, I think, be no doubt that it was intended by these agreements to create a charge upon the property of the company, but it was said on the part of the official liquidator that his intention was not well carried into effect. I apprehend, however, that where this Court is satisfied that it was intended to create a charge, and that the parties who intended to create it had the power to do so, it will give effect to the intention, notwithstanding any mistake which may have occurred in the attempt to effect it. The case in this respect is, I think, governed by the passage cited from Lord Redesdale’s treatise, and by the cases to which he refers, cases which, as I concede, rest on the analogous principle, universally prevailing in this Court, that what is agreed to be done is to be considered as done.[26]
[25](1865) 46 ER 594.
[26]Ibid 598.
His Honour concluded as follows:
As was said in the Re Strand-Music Hall Company case, once a Court is satisfied that there was an intention to create a charge, although the parties did not through some reason or mistake actually effect it by the execution of some other document, nevertheless the Court will reach the conclusion that what was done, even though not according to the strict letter of the agreement, constituted what the parties intended. This, in my view is a common sense approach, and the Latin maxim, “equity looks on that as done which ought to be done”, gives effect to the common sense approach.[27]
[27][2005] VSC 440, [37].
In McMillan, Gillard J also referred to the decision in AVCO Financial Services Ltd v White (‘AVCO’),[28] where (Oliver) Gillard J held that the relevant loan contract disclosed an intention by the parties that the property owned by the borrowers constituted security for the loan, notwithstanding the fact that the relevant agreement referred to the loan being advanced “on the security of mortgage upon real property to be executed and given by the abovenamed borrower(s) mortgagor, a copy of which is annexed hereto if such there be”.[29] No such mortgage was annexed. However, his Honour found that a clause providing that “As further security for the payment of the loan and interest I agree … to charge (as beneficial owner) all freehold and leasehold interest in the land which I may now have or during the currency of the loan may acquire”,[30] including a specified property in Moonee Ponds, clearly indicated the nature and the purpose of the agreement.
[28][1997] VR 561.
[29]Ibid 564.
[30]Ibid 562-3.
Further, the principles relied upon in McMillan[31] and AVCO[32] are consistent with the decision of the New South Wales Court of Appeal in Roberts v Investwell Pty Ltd (in liq),[33] where Bathurst CJ stated that, in order to create an equitable charge over real property:
What … is necessary is that property of the chargor is appropriated to the chargee for payment of a debt and the chargee has a present right to have it made available for the payment of its debt. The availability of equitable remedies to enforce that right gives the chargee a proprietary interest by way of security in the property charged.[34]
[31][2005] VSC 440.
[32][1997] VR 651.
[33](2012) 88 ACSR 689 (‘Roberts’). While it is necessary to treat with some caution New South Wales decisions concerning what amounts to a caveatable interest in land, in particular, where the caveat concerned is said to be supported by an equitable charge, given the continuing relevance in that jurisdiction of the decision of Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489, in Roberts, Bathurst CJ refers to principles of general application consistent with the authorities referred to in McMillan and AVCO.
[34]Ibid [26].
His Honour referred to[35] the following dictum of Atkin LJ in National Provincial and Union Bank of England v Charnley:[36]
I think there can be no doubt that where in a transaction for value both parties evince an intention that property, existing or future, shall be made available as security for the payment of a debt, and that the creditor shall have a present right to have it made available, there is a charge, even though the present legal right which is contemplated can only be enforced at some future date, and though the creditor gets no legal right of property, either absolute or special, or any legal right to possession, but only gets a right to have the security made available by an order of the Court.[37]
[35]Ibid [27].
[36][1924] 1 KB 431.
[37]Ibid 449-50, approved by the High Court in Associated Alloys Pty ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588 [6].
His Honour then went on to refer to with apparent approval a number of decisions which suggested that “an agreement to create in favour of a creditor a mortgage or a charge on request does not create a mortgage or equitable charge because no immediate proprietary interest or right to recourse to a particular asset was conferred on the creditor”,[38] on the basis that until there has been a request, no property has been identified. Applying this principle to the case before the Court, it was held that a clause where the obligation to grant a mortgage was “on request”, and in a form acceptable to the lender, or where the lender could require alternative security, was insufficient to establish an intention to grant an immediate equitable interest or charge over the property in question.
[38](2012) 88 ACSR 689 [30].
It is apparent from my review of other relevant authorities in this jurisdiction concerning the question of when the terms of an agreement evidence a common intention to immediately confer a proprietary interest in real property that the principles referred to and relied upon in AVCO,[39] McMillan[40] and Roberts[41] are uncontroversial, and remain good law.[42] Given that the resolution of any dispute involves the construction of the relevant agreement, the relevant authorities are generally useful as illustrations only of the application of the relevant principles. Ultimately, the resolution of the dispute turns upon the ascertainment of the common intention of the parties to the particular instrument before the Court.
[39][1997] VR 651.
[40][2005] VSC 440.
[41](2012) 88 ACSR 689.
[42]See, for example, Crampton v French (1995) V ConvR 54-529; Dominion Lifestyle Tower Apartment Pty Ltd v Global Capital Corp Pty Ltd (2005) V ConvR 54-696; Porter v Bonarrigo [2009] VSC 500; Evans v Advertising Deptartment Pty Ltd [2009] VSC 587; McGarry v 14 Hiscock Street Pty Ltd [2012] VSC 573; Melbourne Property Group Pty Ltd v SC Australia Pty Ltd [2013] VSC 701; and Down Town Visuals v Panorama Investments (No 2) [2018] VSC 584.
When ascertaining the intentions of the parties from the text of the 2020 facility agreement, it must be kept in mind that the 2020 facility agreement is a commercial contract, and, while there is a long standing personal association between Mr Baker and Mr Reindel, the 2020 facility agreement was entered (if it was) in an inherently commercial context. Accordingly, the terms of the 2020 facility agreement are to be construed by reference to what a reasonable business person with knowledge of the context and purpose of the transaction would have understood those terms to mean.[43] In Lake v Simmons,[44] Viscount Sumner said:
commercial contracts are to be interpreted with regard to the circumstances of commerce with which they deal, the language used by those who are parties to them, and the objects they are intended to secure.[45]
[43]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, [47].
[44][1927] AC 487.
[45]Ibid 509.
In the current case, while neither Mr Reindel or Mr Baker are lawyers, and the 2020 facility agreement appears to be a “cut and paste” version of previous loan agreements, the evidence shows that both are experienced businessmen active in the property development sector, and both are undoubtedly well familiar with secured lending transactions.
Other relevant principles concerning the construction of commercial contracts are that the courts will strive to construe commercial contracts in a way which avoids commercial absurdity, and avoids commercial inconvenience, as far as the language of the relevant agreement allows.[46] Further, a court will endeavour to enforce, rather than destroy a bargain, unless the terms of the agreement are so vague and confusing that it is not possible to ascertain the common intention of the parties.
[46]Zhu v Treasurer of New South Wales (2004) 218 CLR 530 [82].
While the question of whether the 2020 facility agreement confers an equitable charge over the Windsor units turns upon the construction of the terms of the agreement itself, such that no perfect analogy can be drawn from other decisions, my review of other decisions in Victoria and New South Wales indicates that the courts will, consistent with the principles governing the construction of commercial contracts, adopt a liberal approach to the construction of such instruments, and will generally strive to give effect to a clause purporting to confer a security interest in property, even if ambiguously or inelegantly expressed. By way of example, in Re Carter Holt Harvey Woodproducts (Australia) Pty Ltd (No 1),[47] which concerned the question of whether a contract of guarantee was effective to create a security interest over the property of a guarantor, a liquidator contended that the purported charging clause in the relevant agreement was ineffective, on the basis that the guarantor merely covenanted to create a charge by executing a further document, or by doing another act in the future.
[47][2017] VSC 499.
Robson J held that the statement in the relevant clause to the effect that the guarantor “will charge” the property conveyed the manifestation by the guarantor of an immediate intention to charge the property.
Similarly, in Re AZMAC Pty Ltd (in liq),[48] the following clause of an agreement was said to be sufficient to signify an intention to create an equitable charge over real estate:
Security to be provided to Stylequity on the total outstanding debt as follows: third ranking over the land and buildings after the NAB or new funder and [another shareholder] or second ranking if [another shareholder] no longer has security …[49]
[48](2020) 146 ACSR 113.
[49]Ibid [16].
That the implementation of the agreement as to the priority to be afforded to the lender would probably require the execution of a further document, such as a deed of priority, and possibly the consent of a bank was not a barrier to a finding that the clause above was sufficient to grant an equitable interest in the property concerned.
In Down Town Visuals v Panorama Investments (No 2),[50] Digby J held that a loan agreement which identified specific properties owned by the borrower, referred to those properties as “secured properties” and empowered the lender to lodge caveats over and foreclose upon those properties in the event of default conferred an equitable charge in favour of the lender, notwithstanding a clause to the effect that a separate charge would be executed to ”further secure” the advance.
[50][2018] VSC 584.
In Dominion Lifestyle Tower Apartment Pty Ltd v Global Capital Corporation Pty Ltd,[51] Habersberger J found that there was a serious question to be tried that an equitable interest was created by a clause entitling a lender to register a caveat over what was described as the “security property”.
[51][2004] VSC 307.
In Melbourne Property Group Pty Ltd v S C Australia Pty Ltd,[52] Derham AsJ found a charging clause which required, among other things, the borrower to provide to the lender caveats and registered mortgages was sufficient to appropriate the property concerned to the satisfaction of the debt owed by the borrower, despite the “awkward” language of the relevant clause.[53]
[52][2013] VSC 701.
[53]Ibid [65]. See also Murphy v Wright (1992) 5 BPR 11, 734; Re Cosslett (Contractors) Ltd [1998] Ch 495.
Other relevant decisions in this jurisdiction include the following:
(a) Decorrado v Manoukian,[54] where Vickery J held that a clause which included the particulars of title of one property, but only address details for the other properties, was insufficient to create a charge over one of the latter properties, which, in any event, was owned by the borrower’s wife, not the borrower personally;
(b) Evans v Advertising Department Pty Ltd,[55] where Vickery J found that a charging clause not dissimilar to Schedule A of the 2020 facility agreement was not void for uncertainty, and gave rise to an equitable interest in the borrower’s property, but the clause was ineffective to create a charge over property where the full beneficial interest in the property was almost certainly held by the borrower’s wife; and
(c) Porter v Bonarrigo,[56] where Vickery J held that the evidence did not establish a common intention to the effect that a lender (who was a family member) would hold a charge over the relevant property, or an equitable lien over the proceeds of sale of the property, in circumstances where there was no agreement in writing to that effect, or any caveat lodged over the property. Rather, a term whereby the loan was due to be repaid upon the sale of the property was said to specify the time for repayment, rather than create an equitable interest in the property or the proceeds of sale.
[54][2009] VSC 451.
[55][2009] VSC 587.
[56][2009] VSC 500.
Turning now to the terms of the 2020 facility agreement, the relevant clauses of the 2020 facility agreement are as follows:
(a) in the recitals, the parties are identified as Mr Reindel as the borrower and ABPC as the lender, and the recitals stated that:
The Lender has agreed to provide the Borrower with a secured term loan facility of AUS $498,956 ...
(b) in the “Definitions” clause:
(i) “Finance Document” is defined as “this agreement, the Security Document and any other document designated as such by the Lender and the Borrower”;
(ii) “Security” is defined as “any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect”; and
(iii) “Security Document” is defined as ”the right to take an assignment or a legal charge in the agreed form, executed or to be executed by the Borrower or by”;[57]
[57]This clause was incomplete in the 2020 facility agreement.
(c) clause 3 of the 2020 facility agreement provides as follows:
PURPOSE
3.1The Borrower shall use all money borrowed under this agreement to fund personal lifestyle activities, whilst the borrower goes about obtaining a line of credit against the recent properties acquired by the borrower and his respective entities following the assignment of five lots in the property developments known as Southside House and Whitestreet House, located at 2-14 James Street and 1-14 White Street Windsor 3181.
(d) clause 8 of the 2020 facility agreement provides as follows:
SECURITY
8.1The Borrower confirms the Security outlined in schedule A (or once entered into, will create):
(a)valid, legally binding and enforceable Security for the obligations expressed to be secured by it; and
(b)subject to registration, perfected Security over the assets expressed to be subject to security in it.
8.2The security will be held by the appointed representative in favour of the Lender, until the loan has been repaid in full
8.3It is agreed the Lender has the priority and ranking expressed to be created in the Security Document and ranking ahead of all (if any) Security and rights of third parties except those preferred by law
(e) Schedule A to the 2020 facility agreement provides as follows:
SECURITY
THE APARTMENTS LISTED BELOW ARE REGISTERED IN THE NAME OF THE BORROWER AND/OR BLIZZARD WINDS PTY LTD (AN ENTITY 100% OWNED AND CONTROLLED BY THE BORROWER). AT THE DATE OF ENTERING THIS AGREEMENT EACH OF THESE PROPERTIES ARE UNENCUMBERED. IT IS THEREFORE AGREED THAT IN THE EVENT OF DEFAULT, THE LENDER CAN IMMEDIATELY REGISTER A SECURED CHARGE AGAINST EACH OR ANY OF THE FOLLOWING APARTMENTS. TO THE MAXIMUM VALUE OF THE CAPITALIZED LOAN AMOUNT PLUS ACCRUED INTEREST
LOT 203, 204, AND 205 JAMES STREET WINDSOR 3181
LOT 502 AND G12 WHITE STRET WINDSOR 3181
(f) Schedule B to the 2020 facility agreement is a schedule of payments said to have been made by ABPC to Mr Reindel between 1 June 2020 to 24 August 2020, totalling $498,596; and
(g) on the same page at Schedule B, the agreement is signed (in the case of Mr Reindel, using what appears to be an electronic signature) by Mr Reindel and Mr Baker on behalf of ABPC on 11 September 2020.
Reference is made in Schedule A to ABPC being entitled to immediately register a “secured charge” over the Windsor units “in the event of default”. It is common ground that Mr Reindel has failed to pay ABPC the sum said to be due under the 2020 facility agreement by the last date due (being 30 March 2021), given that Mr Reindel denies having entered into the 2020 facility agreement. However, ABPC has not taken any steps to “register” any charge, save for the lodgement of the Baker caveats, and by making its claims in the amended defence and counterclaim in the Baker proceeding for declarations to the effect that it has an equitable mortgage or charge over the Windsor units.
In my view (subject to my observations below regarding the question of whether Blizzard Winds was bound by the terms of the 2020 facility agreement), the terms of the 2020 facility agreement evidence a common intention on the part of Mr Reindel and ABPC that any sums advanced pursuant to the 2020 facility agreement were secured by the Windsor units upon any default by Mr Reindel, and that, upon default, ABPC would be entitled to register a “charge” over the Windsor units. However, I agree that the 2020 facility agreement is ineffective to secure the Windsor units owned by Blizzard Winds.
I accept that the relevant clauses of the 2020 facility agreement are inelegantly expressed, but in my view, there is at least a prima facie case that the 2020 facility agreement evidences an immediate intention that ABPC hold an equitable charge over the Windsor units. First, the reference in the recitals to the provision of a “secured term loan facility” evidences the purpose of the transaction, and provides a guide to the construction of the 2020 facility agreement where the relevant clauses of the 2020 facility agreement are, to say the least, somewhat ambiguous. The term “Security” is defined expansively, and consistently with what a person engaged in the business of property development would understand a security to be. The definition of “Security Document” is best understood, in my view, as referring to an instrument to give effect to the agreement between the parties, rather than of itself creating a legal or equitable interest in property.
The language of clause 8.1 is clumsy, in that the chapeau appears to be missing some words, and the process of capitalisation of the word “Security” in clause 8 appears to have gone astray. However, read together with Schedule A, there seems to me to be a prima facie case that the parties intended that the “Security” referred to in Schedule A was the borrower’s unencumbered interest in the Windsor units (which are enumerated in Schedule A) at the time of the entry into the 2020 facility agreement, with the reference to the ability of the lender to immediately register a “secured charge” upon default being merely a machinery provision in aid of enforcement of the charge in the event of default, rather than signifying an agreement to provide future security which would need to be supported by further consideration.
Mr Reindel and Blizzard Winds submitted that the 2020 facility agreement differed in material respects from the loan agreement considered by Gillard J in McMillan.[58] In particular, they submitted that the creation of any charge over the Windsor units was dependent upon Mr Reindel and/or Blizzard Winds executing a further document capable of registration upon the title of the Windsor units.
[58][2005] VSC 440.
This submission ignores the fact that Part IV of the Transfer of Land Act 1958 (Vic) (‘TLA’) makes no provision for the registration of a charge over Torrens system land, save where the charge secures the payment of an annuity.[59] While the TLA recognises the existence and legal effect of a charge, it does not provide for the registration of a charge.[60] Accordingly, while the terms of the 2020 facility agreement appear to contemplate something further to be done to register the charge, there is in fact nothing that can be done, practically speaking, save for the lodgement of a caveat, which is of course an action which can be (and in fact was) unilaterally done by ABPC.
[59]Section 74(1)(b) of the TLA.
[60]Section 77 of the TLA. See also Re S & D International (in liq) (rec & mgr apptd) [2009] VSC 225 [159]‑[160].
The obligation found to be specifically enforceable by Gillard J in McMillan[61] was the execution of a mortgage, which is of course an interest in land capable of registration. Accordingly, while the principles in McMillan[62] identify the principles relevant to the current application, the facts are materially different, as in the current case there is no obligation imposed upon Mr Reindel which is capable of attracting the remedy of specific performance.
[61][2005] VSC 440.
[62]Ibid.
A similar clause to Schedule A of the 2020 facility agreement was considered by Sifris J in Sim Development Pty Ltd v Greenvale Property Group Pty Ltd,[63] where a consultancy agreement provided that:
… if the termination is prior to the Completion of the Project the Client gives Consultant the right to register a charge over [a specified property] and any other property owned by the Client and such charge is to be applied to the payment in full of any money owed to the Consultant.
[63][2017] VSC 335.
The property owner submitted that the clause above was ineffective to create a charge over property, but merely a right to register a charge. His Honour referred to the absence of any entitlement to register a charge over land in Victoria, along with the statement of Romer J in Cradock[64] to the effect to constitute a charge in equity there is no required form of words which must be used. His Honour stated as follows:
It is tolerably clear that Clause 16(c) discloses a common intention of the parties that the Property should constitute a security with respect to any unpaid monies owed to the Consultant, in the event of termination prior to completion of the proposed development. Moreover, whilst Clause 16(c) does not specifically adopt the language of lodging a caveat, its reference to the concept of registration, and lack of sufficient indication to the contrary, would support the conclusion that Clause 16(c) does give rise to a caveatable interest.[65]
[64](1893) 69 LT 380, 382.
[65][2017] VSC 335 [112].
Similarly, in the current case, the only step that could be taken by ABPC to protect its security interest in the Windsor units was the registration of the Baker caveats, which did not require any steps to be taken by Mr Reindel and/or Blizzard Winds.
As for the submission that, as at the time of the purported entry into the 2020 facility agreement, there was no valid, legally binding and enforceable security over the Windsor units, that is correct. The entitlement to a charge arose only on default. However, the language of Schedule A to the 2020 facility agreement (“… in the event of default, [ABPC] can immediately register a charge”), combined with the operation of the Torrens system of registration (where the only practical means of securing the payment of a debt other than by registration of a mortgage is to lodge a caveat) means that there was no necessity for Mr Reindel and/or Blizzard Winds to take any further step to perfect the charge. Rather, the 2020 facility agreement evidences a common intention that the creation of ABPC’s equitable interest in the Windsor units would be triggered by an event (being an event of default) not the execution of a further document.
It seems to me that the terms of the 2020 facility agreement are somewhat analogous with the relevant clause referred to in the decision of the New South Wales Court of Appeal in Murphy v Wright (No 2).[66] In that decision, the Court held that the following clause in a loan agreement was sufficient to attach a debt to a particular property at the option of the lender:
Twelfthly - In the event of default by the Borrowers in payment of moneys due under the Security Documents or in performance or observance of any covenants therein then the Lender shall in addition to the rights set out herein or in the Security Documents be entitled to attach the debt due to any of the assets of the Guarantor or Guarantors whether such assets be real or personal and further the parties hereto agree that in the event of such default the Lender may register a caveat against any property registered in the name of any or all of the Guarantors until the Moneys Secured are repaid.
[66][1992] NSWCA 168.
Handley JA stated as follows:
The language is not felicitous because the voluntary attaching of a debt to property requires some act by its owner but the clause contemplates that an act of the Lender will have this effect. However the Guarantor has agreed that the Lender may do this act. In my opinion the clause should be construed as an attempt to confer on the Lender an option which can be exercised on default. The Guarantor has agreed that in that event the Lender may attach the debt to any of her assets. The attachment of a debt to property by agreement is apt to create an equitable charge.[67]
[67]Ibid [5]-[6].
Despite the different syntax of the clause referred to in paragraph 69 above and the term in Schedule A of the 2020 facility agreement, both clauses essentially say the same thing: that is, upon default, the lender may unilaterally take any necessary further steps to attach the debt to the specified property, and thus the relevant clause is “apt to create an equitable charge”.
Further, I do not see that the absence of any of the particulars of title for the Windsor units in the 2020 facility agreement is fatal to ABPC’s claim to an equitable charge over the Windsor units. While the inclusion of those particulars would have reinforced ABPC’s claim to a secured interest in the Windsor units, the Windsor units are sufficiently identified in the 2020 facility agreement. Indeed, for what other purpose could they have been identified save for evidencing the parties’ intention that they be available to secure the loan advanced pursuant to the 2020 facility agreement? As observed by Vickery J in Evans v Advertising Department Pty Ltd,[68] “… precise definition of the property to be attached is not an invariable requirement for an equitable charge”.[69]
[68][2009] VSC 587.
[69]Ibid [30].
Finally, contrary to the submissions advanced by Mr Reindel and Blizzard Winds, I do not see how the definitions of “Security Document” and “Finance Document” in the 2020 facility agreement detract from my conclusion that the terms of the 2020 facility agreement confer an immediate equitable interest in the Windsor units upon ABPC. First, the definition of “Security Document” in clause 3 of the 2020 facility agreement is incomplete, and, frankly, unintelligible, in that it seems to equate a document with a proprietary interest in property. Secondly, the term “Security Document” is not referred to in Schedule A. Thirdly, while the term “Security Document” is referred to in clause 8.3 of the 2020 facility agreement, this clause is concerned only with the issue of the priority to be granted to ABPC’s security interest, not whether such an interest exists or is created. Finally, the term “Finance Document” is not referred to in either clause 8.1 or Schedule A, but only in those clauses of the 2020 facility agreement which concern the parties’ liability for duties and taxes, and what constitutes an event of default.
However, while I agree that there is a prima facie case that the 2020 facility agreement is effective to confer an equitable charge over the Windsor units in favour of ABPC, I agree that, given that Blizzard Winds is not a party to the agreement, the 2020 facility agreement does not confer any equitable interest in the Windsor units owned by Blizzard Winds. Mr Reindel did not execute the 2020 facility agreement (if he did in fact sign it, or authorise its execution) on behalf of Blizzard Winds, and it would have been a simple matter for him to do so. There was otherwise no evidence he executed the 2020 facility agreement as agent for Blizzard Winds, or that Blizzard Winds expressly consented to the Windsor units owned by it to be used as security for advances made by ABPC to Mr Reindel, even if it can be inferred that such consent would be readily forthcoming given Mr Reindel’s control of Blizzard Winds.
Accordingly, ABPC is entitled to maintain its caveat over the Windsor unit owned by Mr Reindel personally, but the remainder of the Baker caveats should be removed. In the case of the caveat over the Windsor unit owned by Mr Reindel, the balance of convenience favours the maintenance of the caveat, almost overwhelmingly.[70] While the question of whether Mr Reindel signed or authorised the signing of the 2020 facility agreement, and the characterisation of the payments made by Mr Baker and/or ABPC to Mr Reindel in late 2020 are clearly matters for trial, the evidence before me at this stage is that there is an executed agreement, there is evidence of funds having been advanced in the months prior to the (apparent) execution of the 2020 facility agreement, no payment has been made by Mr Reindel, and a proceeding supporting ABPC’s claims is on foot and well underway. There is no countervailing evidence of any pressing need on the part of Mr Reindel to sell or encumber the Windsor unit owned by him, and, in circumstances where other parties (including, possibly, the liquidator) have laid claims to the Windsor units, there is significant value to ABPC in those other parties having notice of ABPC’s claims.
[70]In their written submissions filed prior to the hearing on 18 October 2021, Mr Reindel and Blizzard Winds conceded that the balance of convenience favoured the maintenance of the Baker caveats, or at least the caveat of the unit owned personally by Mr Reindel. However, that concession appeared to have been implicitly withdrawn during the course of the hearing on 18 October 2021, given their submissions to the effect that ABPC’s claim for an equitable charge was weak.
Finally, given my findings that the 2020 facility agreement is ineffective to confer an equitable charge over the Windsor units owned by Blizzard Winds, it is not necessary for present purposes to address the issues raised by Mr Reindel and Blizzard Winds regarding the scope of the Baker caveats, in particular the valuation of the Windsor units, and their assertion that the default interest clause in the 2020 facility agreement is an unenforceable penalty.
If necessary, I shall hear further from the parties on the question of costs.
SCHEDULE OF PARTIES
| S ECI 2021 02659 | |
| BETWEEN: | |
| GLENN REINDEL | First Plaintiff |
| ANNE MARGOT RUNHARDT | Second Plaintiff |
| BLIZZARD WINDS PTY LTD (ACN 163 663 885) | Third Plaintiff |
| - v - | |
| CONFREIGHT PTY LTD (ACN 005 729 457) | First Defendant |
| SUPPLY CHAIN LOGISTICS PTY LTD (ACN 118 543 196) | Second Defendant |
| AB PROPERTY CONSULTANCY PTY LTD (ACN 627 122 801) | Third Defendant |
| REGISTRAR OF TITLES | Fourth Defendant |
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