Scott, A.G. v Butterfield, S.I

[1994] FCA 1008

JUDGMENT No. ........ .... , / o ~ ~ , ? Y - ..., ,,,,, -

CATCHWORDS

INTERLOCUTORY INJUNCTION - injunction restralnlng registered proprietors from dealing with property - whether caveat

satisfactory to protect asserted interests of the applicant

ALAN GEOFFREY SCOTT as trustee of the bankrupt estate of

PATRICK BUTTERFIELD v BUTTERFIELD & THE REGISTRAR-GENERAL

BRANSON J.

ADELAIDE

9 DECEMBER 1994

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SG 92 of 1994

)

GENERAL DIVISION	)
BETWEEN :
ALAN GEOFFREY SCOTT as trustee of the bankrupt estate of IAN PATRICK
BUTTERF IELD

Applicant

- and -

SHAWN IAN BUTTERFIELD

First Respondent

- and -

TON1 BUTTERFIELD

Second Respondent

- and -

THE REGISTRAR-GENERAL

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT RE INTERLOCUTORY RELIEF

CORAM : Branson J.

PLACE : Adelaide

DATE: 9 December 1994

The applicant in this matter is the trustee of the bankrupt estate of Ian Patrick Butterfield who I will refer to hereafter as the bankrupt. The applicant has instituted proceedings in this court seeking a declaration that certain property situated at Middleton in this State is property that belonged to the bankrupt and Jean Marle Butterfield as tenants-in-common at the commencement of their respective

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bankruptcies and is property divisible as to one-half amongst the creditors of the bankrupt. Certain further or alternative declarations are also sought as well as consequential orders. In the same proceedings the applicant seeks interlocutory relief restraining the first and second respondents, who are the registered proprietors of the Middleton property, from dealing with it. That is, the applicant seeks to maintain the status quo wlth respect to that property.

Dr Baxter, the counsel for the first and second respondents, concedes that there is a serious issue to be tried as to the applicant's entitlement to the Middleton property. He has argued, however, that the asserted interests of the applicant in the property could be satisfactorily protected by the lodging of an appropriate caveat with the Registrar-General. Consequently, he contends, the interlocutory injunction sought should not be granted. The authorities recognise that the ordinary ~urisdlction of the courts to protect rlghts of property are not excluded by the caveat provisions of real property legislation. I refer to Public Trustee v MUrrdy

( 1 9 2 2 ) 2 2 SR NSW 555 and Halaga Developments Pty Ltd v Grimle

( 1 9 8 6 ) 5 NSWLR 740, particularly at page 747. Plainly,

however, the availability of an alternative remedy is a matter which I should take lnto account in considering whether or not an interlocutory injunction should, in all of the circumstances, be granted.

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In this regard I also take into account that Dr Baxter has no instructions to concede that the applicant has a caveatable interest in the Middleton property or to undertake not to challenge any caveat lodged with the Registrar-General with respect to the property. Any challenge by the first and second respondents to any such caveat made pursuant to section

191 vi or v of the Real Property Act, 1986 would, prima facie,

require the institution of proceedings in the Supreme Court of South Australia. Although there may be room for debate on the issue, I am prepared to assume for present purposes that such proceedings could be instituted in, or alternatively transferred to, this court pursuant to the cross-vesting legislation. Even so, inconvenience and additional expense would result.

Dr Baxter has urged that there is only slight evidence of any intention in the first and second respondents, who are children of the bankrupt, to allow any deallng concerning the property. What the evidence does show is that the bankrupt has sought a report concerning the property from a firm of real estate agents and has made at least preliminary inquiries concerning the ralsing of finance with the property providing security. In my view, the applicant has shown a reasonable basis for an apprehension that the first and second respondents may allow dealings with the property adverse to the applicant's asserted interest.

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It has not been suggested that the first and second respondents will suffer any hardship if the interlocutory relief sought by the applicant is granted. If circumstances should change they would be at liberty to seek a variation of any such relief.

In the circumstances I consider that the balance of convenience favours the maklng of the interlocutory injunction sought agalnst the first and second respondents upon the applicant giving the usual undertaking as to damages. I am not satisfied that there is any reason in the exercise of my discretion to refuse to make the inlunction.

I understand that service of the notice of motion and

supporting affidavit of the applicant has not been effected against the third respondent, the Registrar-General. No order will be made against the thlrd respondent today. I am, however, willing to direct that notice of the inlunction be given to him.

Tl?e order of the court is as follows. Upon the undertaking of the applicant, given on his behalf by his counsel, to pay to any party adversely affected by this interlocutory injunction such compensation, if any, as the court thinks just, the court orders that:

1.   Until the hearing and determination or earlier termination of these proceedings or further order, the first respondent and the second respondent be restrained

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and an injunction be granted restraining each of them, whether by themselves individually or jointly, by solicitors, agents or servants from selling, transferring, charging, mortgaging, encumbering, securing, dlmlnishing, disposing of, parting with possession, making any declaration of trust in relation to, exercising any power to vary or modify any trust deed or any interest under any trust in relation to, dealing wlth or causing to be sold, transferred, charged, mortgaged, encumbered, secured, diminished or dlsposed of, the whole of the land comprised in certificate of title register book volume 2878 folio 60, being land situated at Middleton in the State of South Australia.

2.   That notice of this order be served upon the third respondent.

3. That each of the parties have liberty to apply upon 4 8 hours written notice to all other parties.

4. That the question of costs be reserved.

I certify that this and the true copy of the Ex Tempore 4 preceding pages are a

Reasons for Judgment Re Interlocutory Relief of

Justice ~ransy+. , f

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Dated: