Tement v Launceston Workmen's Club Inc

[1987] TASSC 75

Serial No B5/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Tement v Launceston Workmen’s Club Inc [1987] TASSC 75; B5/1987

PARTIES:  TEMENT, DIANNE
  v
  LAUNCESTON WORKMEN’S CLUB INC

FILE NO/S:  62/1987
DELIVERED ON:  17 March 1987
JUDGMENT OF:  Wright J

Judgment Number:  B4/1985
Number of paragraphs:  9

Serial No B5/1987
List "B"
File No 62/1987

DIANNE TEMENT v LAUNCESTON WORKMEN’S CLUB INC

REASONS FOR JUDGMENT (Delivered Orally)  WRIGHT J

17 March 1985

1. The applicant seeks an order preserving a caveat lodged upon the respondents title. A 28 day notice issued by the Recorder of Titles and served upon the applicant pursuant to S.136 of the Land Titles Act 1980 will expire today unless I make an order in the applicant‘s favour.

1. The immediate effect of making an order would be to prevent the registration of a transfer of the respondent’s interest in Lot 3 on Sealed Plan No: 27058 to Mark Augustine O‘Brien and a mortgage by Mr. O’Brien to the National Australia Bank. Both Mr. O‘Brien and the Bank have been served with notice of this application. The respondent and Mr. O’Brien are represented by Mr. Zeeman but the Bank is unrepresented. Mr. Estcourt of counsel for the applicant submits that having regard to the urgency of the application it should proceed to determination forthwith even though the Bank‘s lack of representation is unexplained and service upon it has not been formally proved. The respondent and Mr. O’Brien oppose the application and submit that the provisions of S.133(1) and (2)(d) of the Land Titles Act have not been complied with in that the applicant‘s caveat does not state “the estate or interest” claimed by the caveator.

1. The relevant part of the caveat is in the following form:

“ To the Recorder of Titles, Tasmania TAKE NOTICE that DIANNE TEMENT of 100 Elizabeth Street, Launceston in Tasmania, Office Manageress claiming Estate or Interest as Purchaser by virtue of an Agreement for Sale dated the 26th September, 1985 between the Launceston Working Mens Club and myself for the Purchase of property situate at and known as 40 Frederick Street, Launceston in Tasmania and being Lot number 3 on Sealed Plan number 27058.”

1. Mr. Zeeman submits that the phrase “claiming Estate or Interest as Purchaser” is not a description of the estate or interest claimed but rather an assertion as to the status or character in which the applicant claims. To comply with the Act, it is submitted, the estate or interest must be shown as being “in fee simple” or some other similar description showing the legal or equitable nature and quantum of the claim.

1. Despite the criticism of this view expressed in the decision of Joske J. in Gasiunas v. Meinhold [1964] 6 F.L.R. 182, I regard the respondents’ submission as supported by a substantial body of authority including Cwalinski v. Cwalinski [1958] Tas.S.R. 56; Kerabee Park Pty. Ltd. v. Daley [1978] 2 N.S.W.L.R. 222 and Van Dyke v. Van Dyke [1976] 12 A.L.R. 621 at 644. Even if one accepts the criticism of Whalan (“The Torrens System in Australia”) at pp. 233–234 in respect of the lengths to which some courts have gone in requiring definition of the quantum of the estate claimed, the fact remains that in the present case neither the nature of the estate or interest nor its quantum have been specified.

1. If one accepts, as I do, that the prohibition on registration effected by a valid caveat, only applies in respect of the registration of instruments which may affect the particular estate or interest sought to be protected by the caveat, it becomes plain that the nature and extent of that estate or interest must be defined with some particularity. Similarly, if one accepts that a valid caveat operates, even in a limited way, in the nature of a “statutory injunction” rather than as a mere notice at large of a pending claim it becomes apparent that precision in definition of the protected interest is of paramount importance.

1. In my opinion even though one may guess, and accurately guess so far as the evidence in this case discloses, that a person claiming as “purchaser” is likely to be claiming as purchaser of the freehold, this is not a conclusion which may safely be reached without resort to evidence “dehors” the caveat and therefore it is not a sufficient description to comply with the requirements of Section 133. Consequently the caveat is inoperative to prevent the registration of the instruments now in issue and should not be preserved in my view. Accordingly, I decline to make the order sought by Mr. Estcourt.