Wickham Developments Ltd v Parker

[1995] QCA 281

IN THE COURT OF APPEAL	[1995] QCA 281
SUPREME COURT OF QUEENSLAND	Appeal No. 212 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Pincus J.A.

[Wickham Developments Ltd v. Parker]

BETWEEN:

WICKHAM DEVELOPMENTS LIMITED Applicant

AND:

DEBRA SHARON PARKER Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20/06/1995

As appears from the detailed joint reasons prepared by McPherson and Pincus JJ.A., the principal issue is whether or not the appellant has caveatable interests in respect of three improved blocks of land of which the respondent is the registered proprietor; subject to discretionary considerations, and to questions related to the form of the caveat, it is sufficient for the appellant's present purposes if its evidence would establish an arguable case.

The respondent contends that the appellant is indebted to her in respect of moneys which she earned under a contract between the parties which entitled her to payment in respect of sales which she effected of property then owned by the appellant. Whether or not that is so - and it is disputed by the appellant - cannot be determined at this juncture, and it must be assumed in favour of the appellant that it does not owe any money to the respondent; as McPherson and Pincus JJ.A. point out, her evidence on that subject is vague and unparticularised. Consistently with that course, the respondent's contention that disputed moneys and benefits she has obtained from the appellant were received in part payment of its indebtedness to her must also be rejected.

The appellant's evidence in relation to the respondent's receipt from it of moneys and benefits is also less than satisfactory. As McPherson and Pincus JJ.A. point out, the evidence presently indicates that only a very small amount can be traced from the appellant into the respondent's Ashgrove property. I agree with their Honours, and the primary judge, that, in the circumstances, the appellant's caveat in respect of that property should be removed.

On the other hand, on the appellant's material, a significant amount can be traced from the appellant into the respondent's Norman Park property, and I agree with McPherson and Pincus JJ.A. that the appellant prima facie has a caveatable interest in respect of that property. I also agree that the interest currently specified in the caveat is too widely expressed. I would order its removal pursuant to s. 127 of the Land Title Act 1994, but grant leave to lodge another caveat, claiming the correct interest, pursuant to s. 129 of that Act.

As McPherson and Pincus JJ.A. say, the caveat in respect of the Loganholme unit raises different questions. Their Honours have approached the matter generally on the basis that the appellant is a partially unpaid vendor, which is factually correct if the material assumptions be made in favour of the appellant at this point. However, I prefer to consider the question whether the appellant has a caveatable interest initially on the footing that the respondent was a knowing party to a transfer of the property to her at an undervalue in breach of fiduciary duties owed to the appellant; I do not think it necessary for present purposes to analyse further the nature of these fiduciary duties or the identity of the fiduciaries.

A transfer to the respondent in the circumstances described would give the appellant a sufficient claim to an equitable interest in the Loganholme unit to justify refusal of removal of a suitably worded caveat at this point, subject to two matters discussed by McPherson and Pincus JJ.A., the first by reference to a passage in the judgment of Brennan J. (as his Honour then was) in Daly v. Sydney Stock Exchange Ltd (1986) 160 C.L.R. 371 at pp. 389-390. Shortly stated, the proposition attributed to Brennan J. is that the appellant has no equitable interest in the property because the transaction under which it was transferred to the respondent has not been rescinded and action has not been taken to rescind it. Although Brennan J.'s judgment in Daly was agreed with by Wilson J. and not disagreed with by other members of the Court, it did not have majority support: Wilson J. also agreed with Gibbs C.J., who decided the case on a different basis, and Dawson J. also agreed with Gibbs C.J. Nonetheless, Brennan J.'s opinion obviously merits the greatest respect.

At p. 387 of his judgment in Daly, his Honour referred to Armstrong v. Jackson [1917] 2 K.B. 822, 825-826, for the proposition that a transferor may set aside a transaction if the fiduciary-transferee has breached his fiduciary duty, but does not suggest that that case establishes that, unless the contract is set aside, the transferor has no equitable remedy. Insofar as his Honour expressed that conclusion he based it on statements by Harman J. in In re Sherman (dec'd) [1954] 1 Ch. 653 at p. 658 and Kitto J. in Latec Investments Ltd v. Hotel Terrigal Pty Ltd (In Liquidation) (1965) 113 C.L.R. 265 at pp. 277-278.

In Sherman, a fiduciary, an executrix under a will, sold the deceased's house property to a nominee as trustee for herself. The legal title was held by the nominee, against whom the executrix had the equitable interest. Harman J. held that both those interests were subject to the entitlement of the deceased's beneficiaries to set aside the transaction between the executrix and her nominee, adding at p. 658: "They were not bound to do it - they might confirm it. Also, they might lose their rights by acquiescence".

However, in that case there was no basis upon which the beneficiaries might have claimed any equitable right or remedy other than avoidance of the contract and re-transfer of the property; for example, there was no issue as to whether or not the beneficiaries might permit the transfer to stand but claim an equitable interest commensurate with the difference between what the executrix paid and the true value of the property because there was no suggestion of under-value.

Latec was also an all-or-nothing case, at least in the sense in which it was presented. A mortgagee fraudulently exercised its power to sale; the mortgagor did not want the purchaser from the mortgagee to pay more for the property, but to have the sale set aside and the property re- transferred to it; the mortgagor did not claim an equitable interest referable to the under-value paid by the mortgagee; the only equitable interest, or equity, claimed by the mortgagor in relation to the property concerned the entire fee simple. The presently material effect of the passage from Kitto J.'s judgment in Latec at pp. 277-278 cited by Brennan J. in Daly at pp. 389-390 was that such a claim to the entire equitable interest was dependent upon avoidance of the sale from the mortgagee to the purchaser although the interest would exist retrospectively if the sale was avoided.

Daly was also an all-or-nothing-case in the sense that the only alternatives on the facts did not leave open the possibility that the transaction might stand, with the lender having a limited equitable interest in the money lent.

In these circumstances, I do not consider that Brennan J.'s judgment in Daly means that the appellant's claim to an equitable interest in the Loganholme unit is not sufficiently arguable to justify refusal to remove the caveat at this point in the parties' dispute. In my opinion, that conclusion would follow only if, in Daly, Brennan J. had proceeded on a basis which required it to be held that the continued existence of the contract under which the transfer of the Loganholme unit was effected is inconsistent with the appellant having retained or obtained an equitable interest upon the transfer of the property to the respondent. I am unable to comprehend why that would be so when an aspect of that transaction, the undervalue, is one of the considerations which underpins the equitable interest claimed. I can identify no reason why it would be unconscionable for the appellant not to require re-transfer of the property but to look to equity to protect its right to payment of the full value of the property. Indeed, it was equity which developed the principles relative to the unpaid vendor's lien, and although such liens do not arise in Queensland (Land Transfer Act, s. 176), the proposition that a transferor who has not acted to rescind the contract under which property was transferred can have no equitable interest in the property cannot be reconciled with the equitable principles related to such liens.

However, s. 176 of the Land Title Act is inconsistent with the appellant's claim to an equitable interest in the Loganholme unit, at least where, as here, the under-value is not involved in the contract price but in the performance of the contract by a transfer of the property at less than the price agreed. Section 176 provides:

"176. A vendor of a lot does not have an equitable lien on the lot because of the purchaser's failure to pay all or part of the purchase price for the lot."

In the circumstances of this matter, I cannot perceive any basis upon which the equitable interest claimed by the appellant in relation to the Loganholme unit can be placed outside the description "equitable lien".

Subject to the variation which I would make to the orders made below in relation to the Norman Park property, I agree with the orders proposed by McPherson and Pincus JJ.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 212 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[Wickham Developments Ltd. v. Parker]

BETWEEN

WICKHAM DEVELOPMENTS LIMITED

(ARBN 010 918 027)

(Respondent) Appellant

AND

DEBRA SHARON PARKER

(Applicant) Respondent

REASONS FOR JUDGMENT - McPHERSON & PINCUS JJ.A.

Judgment delivered the 20th day of June 1995

This is an appeal by the caveator Wickham Developments Limited ("WDL") against orders dismissing applications that two caveats lodged by it against separate parcels of land registered in the name of the caveatee Ms. D.S. Parker be removed from the register. There is also a cross-appeal by Ms. Parker, or, as it is entitled, a notice of contention, which seeks to reverse another order, made on the same originating summons, that another caveat in respect of other land owned by Ms. Parker be removed.

The three caveats may be described by reference to the properties in respect of which they were lodged. The first of the caveats, which is no. 700030763, was lodged in respect of land at Acacia Drive, Ashgrove. The second caveat no. 700030766 is in respect of land at Bennett's Road, Norman Park. The third caveat no. 700041012 was lodged against land consisting of a townhouse identified as unit 18, "Huntingdale", at Loganholme.

It was the first and third caveats that were ordered to be removed. The second, in respect of the land at Norman Park, was allowed to remain. It is nevertheless convenient to deal with the first and second caveats in conjunction. As between those two caveats, the difference in the outcomes of the applications to remove them turned primarily on the strength or weakness of the evidence in support of WDL's claim to maintain them on the register.

The interest claimed in both the first and second caveats is stated to be "an equitable estate in fee simple as beneficiary of a constructive trust". In each case the grounds of claim, which are the same for both caveats, are as follows:

"the constructive trust arises by virtue of the misappropriation or use of the Caveator's monies, equipment, supplies of material and services by the Registered Proprietor for the construction of improvements on the subject land such that the Caveator is entitled to an interest in the subject land to the extent of the improvements so constructed."

The circumstances giving rise to the interest claimed in each case are as follows. WDL is a company incorporated in New Zealand, which has been carrying on the business of developing and selling land in Queensland on which it has built townhouse units. Ms. Parker was employed by WDL as a selling agent under a written contract dated 1 May 1991, in terms of which she was entitled to commission in the form of a "success fee" on sales effected by her of units in Huntingdale. According to the contract, the amount of the fee payable was to be the difference between the price at which she succeeded in selling the unit and the amount specified as the "list price" in the first schedule to her agency contract with WDL. Her employment by WDL ended at some time early in 1993, but she claims that by then she had earned, and was entitled to be credited with, substantial sums in fees from selling units in Huntingdale and other WDL properties. In an action brought by WDL in the District Court to recover money claimed to be owing to her on a loan account with WDL, Ms. Parker has pleaded a defence of set off based on her claim (which is disputed) to be paid those fees allegedly due to her.

At relevant times the manager of the operations of WDL in Australia was Mark Middleton. There is evidence that at one time he and Ms. Parker were "in a relationship" and living together in the house at the Ashgrove property. WDL has instituted a series of actions in the Supreme Court against Middleton and other former employees to recover large sums of money which it claims they misappropriated from WDL. As against Ms. Parker, it asserts the right to trace some of that money into the Ashgrove and Norman Park properties in her name.

It is convenient to begin with the cross-appeal in respect of the Norman Park caveat, which was allowed to remain. Ms. Parker bought the property in December 1992, paying for it, as she claims, partly out of funds of her own and partly by means of a loan from her bank secured by a mortgage over her property. After she acquired it, substantial renovation work was carried out on it, and materials were supplied to and incorporated in the property or the building on it. She does not dispute that the work and materials, or much of it, were supplied by contractors who were regularly engaged by WDL, nor that many of their accounts were paid out of WDL's funds.

The amount of Ms Parker's indebtedness to those suppliers and contractors that was satisfied by WDL in this way is substantial. There is documentary evidence, in the form of invoices for work done and materials supplied, showing debts amounting to some $42,000. Little of it appears to have been debited to her loan account or reimbursed to WDL. As against that, she asserts that the arrangement made with Middleton was that her liability would be met by setting off the amounts due to her by way of commission or "success fees" earned in selling properties for WDL. Her claim to be paid those amounts is disputed, and the sworn evidence on which she relied in these proceedings is vague. It does not condescend to details of amounts or to particulars of any other kind.

In these circumstances the caveat on the Norman Park property should, as the primary judge held, be allowed to remain. There is, on present material, at least an arguable case that money or its equivalent belonging to WDL has been misappropriated or misapplied in making improvements to the Norman Park property in circumstances giving rise to a claim on the part of WDL to trace or follow it and assert an equitable charge over or in respect of that land to the extent of the expenditure involved. See Black v. S. Freedman & Co. (1910) 12 C.L.R. 105; Spedding v. Spedding (1913) 30 W.N. (N.S.W.) 81; Scott v. Scott (1962) 109 C.L.R. 649.

Against this, counsel for Ms. Parker argued that the caveat should nevertheless be removed because the interest claimed in it is too widely expressed. It speaks not simply of an equitable charge on the land for expenditure in improving it, but of "an equitable estate in fee simple" as beneficiary of a constructive trust. Technically, the interest claimed may be too widely stated because an equitable charge would leave at least some particle of the equitable fee simple outstanding in the registered owner. The test adopted in Queensland Estates Pty. Ltd. v. Co-Ownership Land Development Pty. Limited [1969] Qd.R. 150, 153-156, on which Ms. Parker's contention relies, is, however, concerned primarily with the practical consequences of lodging a caveat drawn in terms that are too wide. It looks to the restriction on the proprietor's power to deal freely with the land that results from overstating the interest in the caveat. Here the overstatement would have little or no additional impact on her freedom to deal with the land. Until the amount, if any, secured by the equitable charge is ascertained and quantified, there can be no question of its being redeemed or paid out and discharged. Describing it as an equitable fee simple rather than an equitable charge is not likely to afford a more serious deterrent to an intending purchaser of the land. As it is, anyone who knows enough about equitable estates and interests to be able to appreciate the distinction would, on reading the grounds of the claim in the caveat in conjunction with the interest claimed, almost certainly also realise that the interest claimed had been overstated.

The cross-appeal by Ms. Parker to reverse the order dismissing her application to remove caveat no. 70003076 therefore fails and must be dismissed. For evidentiary reasons which are similar, but in this instance lead to the opposite result, WDL's appeal against the order dismissing its application should also be dismissed. The Ashgrove land was acquired by Ms. Parker late in 1992 by means of funds, so she says, of her own. Again, there is some evidence that renovations were carried out on the property using suppliers or contractors regularly employed by WDL in the course of its business. However, virtually all of the work was done after her employment by WDL had come to an end. There is some general evidence in hearsay form suggesting that those involved in doing the work were instructed to charge it to WDL. Unlike the Norman Park property, however, the documentary evidence available to WDL does not appear to bear this out. The only invoices so far identified show at most an expenditure from WDL funds amounting to only $275. The primary judge considered that, in these circumstances, even if there was a serious question to be tried, the balance of convenience did not require the caveat to be maintained. He might as an alternative perhaps have ordered that, as a condition of leaving the caveat in place, the amount of $275 be paid into court. But the sum is so small that it would hardly have justified the effort and cost involved. It does not seem just that the registered proprietor's right to deal with her property should be completely inhibited by a caveat designed to protect a claim of that dimension. In the result, we are not satisfied that the discretion under s.127 of the Land Title Act 1994, which the judge exercised in ordering the caveat to be removed, has miscarried in this instance. The appeal by WDL against the order that the caveat be removed should therefore be dismissed.

The caveat against the Huntingdon unit at Loganholme raises questions of a different kind. It was sold to Ms. Parker under a written contract dated 16 October 1992 executed by Middleton on behalf of WDL. The purchase price is stated to be $130,000, which corresponds to the list price in the first schedule to Ms. Parker's contract of employment or agency. The contract requires a deposit of only $50, which may or may not have been paid. In any event, the sale was in the course of time completed by transfer of the unit to Ms. Parker. At settlement WDL apparently gave her a "rent guarantee" guaranteeing rent for three years at $150 per week. Whether or not this was out of the ordinary does not appear from the material; but the property is let at present and the guarantee has so far not been called up. WDL also paid the stamp duty, in some unspecified amount, on the transfer of the unit to Ms. Parker.

Apart from stamp duty, the vice of this transaction is said to lie not so much in the contract of sale itself, but in the manner in which it was settled. The unit in question was subject to a mortgage from WDL to AGC, which the mortgagee released at settlement on receiving $117,000, which was the amount owing or apportioned to that particular unit. The sum of $117,000 was paid by Ms. Parker out of funds she borrowed from Beneficial Finance Ltd. for that purpose. So far, there seems to be little to complain about. However, the amount of $117,000 appears to be the only consideration she gave in return for title to the unit, whereas the contract price was $130,000. There is also a letter or memorandum on behalf of WDL, in which the following statement appears:

"There will be a rebate of $10,670 on unit 18 Huntingdale Villas which represents the difference between the purchase price you paid and the average purchase price of the last 3 units sold, as previously agreed and noted in a meeting between yourself, myself and Michael Williams."

On behalf of WDL it was contended on appeal that, in taking transfer of title to unit 18, Ms. Parker underpaid WDL by that further sum of $10,670, in addition to the sum of $13,000 left unpaid on the purchase price of $130,000. The context in which the rebate is described in ex. RNG 7 suggests that there may have been an arrangement to credit Ms. Parker with a success fee or commission which she would have been entitled to receive if she had sold the unit to an outsider rather than bought it herself as she did. It may in fact represent part of the amount of $13,000 by which the price was reduced from $130,000 rather than an addition to that amount. However, nothing like that is suggested by Ms. Parker in either of her two affidavits, except in the very general form already mentioned that fees due to her were to be set off against money she owed to WDL. The contention on behalf of WDL therefore is that she underpaid the agreed contract price of $130,000 for unit 18 by the sum of the two amounts of $13,000 and $10,670 totalling $23,560, as well as the amount of stamp duty paid by WDL.

Assuming this to be so, WDL claims to be entitled, in respect of the whole of Ms. Parker's interest in the unit, to a constructive trust to secure the sum of $23,670 and stamp duty which have not been paid by her. In this instance the grounds of claim are stated in the caveat as follows:

"The constructive trust arises in respect of the whole of the registered owner's interest by virtue of the acquisition of the lot from the caveator without payment (or any payment in effect) and as a result of the registered owner's breaches of fiduciary duties owed by her to the caveator when acting as its agent in the sale of real estate."

In our view the right of WDL to assert a constructive trust in its favour over unit 18 raises questions of some difficulty. On appeal, it was submitted that the contract was entered into, or the transfer made, in circumstances involving a breach of fiduciary duty on the part of Middleton as manager of WDL; and that, because Ms. Parker knew of that breach of duty and participated in it by entering into the contract and taking the transfer, she became a trustee de son tort according to the principle laid down in Barnes v. Addy (1874) 9 Ch.App. 244 and adopted in Consul Development Pty. Ltd. v. DPC Estates Pty. Ltd. (1975) 132 C.L.R. 373, 397. Reliance was placed on Ravinder Rohini Pty. Ltd. v. Krizaic (1991) 30 F.C.R. 300, 313, as an instance of the application of that principle. Strictly speaking, however, the decision in Ravinder seems to be distinguishable from the present case. It involved a claim for a share of the profit realised on resale of joint venture property, which was intercepted by the corporate first defendant with the knowledge that in equity it belonged in equal shares to the two promoters of the joint venture formed to generate it. It was trust property in the sense that it "belonged in equity" to the joint venture associates because, from the beginning, there was a duty resting on each of them to earn and account for it to the joint venture: cf. Cook v. Deeks [1916] 1 A.C. 554; Regal Hastings Ltd. v. Gulliver [1967] 2 A.C. 134 (note), at 144, 149, 154, 156, 159.

In the present case the duty of Middleton as manager of WDL was, as with any other unit in Huntingdon, to sell unit no. 18 which was owned by WDL and which it was the business of the company to dispose of. It was also his duty to ensure that the purchaser paid the full or a proper price for it; but his failure to do so does not automatically have the effect of converting the amount unpaid by Ms. Parker into trust property capable of being traced or followed into unit 18 after its transfer to Ms. Parker. After the transfer to her, the unpaid amount of $23,560 and stamp duty remained precisely what it was before, which on the evidence as far as it goes was a debt due and owing by her to WDL. Under the general law, WDL as vendor would have had an equitable lien over the property for that debt as unpaid purchase moneys. However, in Queensland the vendor's lien was abolished by s.97 of the Real Property Act 1861, which has been recently re-enacted in similar form in s.176 of the Land Title Act 1994.

Treating Ms. Parker as a trustee de son tort, or active participant in Middleton's breach of fiduciary duty to WDL is, as it happens, not the way in which the grounds of claim are stated in the caveat. Instead, they approach the matter on the simpler footing that she acted in breach of a fiduciary duty which she herself owed to WDL. Ms. Parker was WDL's agent whose duty it was to sell her employer's property. In these circumstances she was under a fiduciary obligation not to place herself in a position in which her private interest conflicted with that obligation to her principal by purchasing the property herself, much less purchasing it at an undervalue. Halsbury's Laws of England (4th ed.), vol. 1(2) §103, at 73; Finn :Fiduciary Obligations §§402, 403, at 173-174. She could discharge her obligation in that regard only by making full disclosure of her interest to her principal WDL, which for this purpose would not have been satisfied merely by disclosing it to her confederate Middleton. If she failed to disclose her interest, the ensuing contract to buy the property was rendered voidable and liable to be rescinded by the vendor WDL.

It does not necessarily follow that, having acted in breach of her fiduciary duty to WDL by buying the unit herself, Ms. Parker now holds title to it on a constructive trust enabling WDL to claim the property beneficially, or to assert a charge over it for amounts left unpaid under the contract of sale. Breach of fiduciary duty gives rise to a liability to account which is "personal": see Warman International Limited v. Dwyer (H.C.A. Mar. 23, 1995), citing Consul Developments Pty. Ltd. v. DPC Estates Pty. Ltd. (1975) 132 C.L.R. 373, 395. A constructive trust is "nothing more than a formula for equitable relief. The court of equity says that the defendant shall be liable in equity, as though he were a trustee": Selangor United Rubber Estates v. Cradock (No. 3) [1968] 1 W.L.R. 1555, 1582. It is for the court to determine whether in such a case a proprietary remedy should be imposed in addition to the personal liability to account. It does not follow that, because the fiduciary may for some purposes be treated as a constructive trustee, all the equitable remedies, including the proprietary remedy of tracing or following into assets, will be imposed for breach of fiduciary duty. The decision whether or not to afford proprietary remedies in such a case is influenced by the consideration that, if the fiduciary becomes insolvent, conferring proprietary rights on the fiduciary will necessarily remove the assets in question from the reach of general creditors of the fiduciary in an administration in insolvency. See Parker & Mellows: The Modern Law of Trusts (6th ed., by A.J. Oakley) at 214-215. It is by no means obvious that Ms. Parker's indebtedness in this case for unpaid amounts of purchase price calls for the imposition in favour of WDL of an equitable charge on the unit which she acquired without disclosing her personal interest in the transaction.

Whether an equitable proprietary remedy would be imposed in respect of unit 18, so as to secure in favour of WDL the amount of purchase money left unpaid by Ms. Parker, is a question which need not be resolved here. There is another reason why, in our opinion, the caveat lodged against the title to that unit cannot be sustained. It is that WDL has not elected to exercise the power to rescind which arose in its favour as a result of the purchase by and transfer to Ms. Parker in breach of her fiduciary duty as selling agent. In Daly v. Sydney Stock Exchange Ltd. (1986) 160 C.L.R. 371, Daly was advised by a firm of stockbrokers Patrick Partners to deposit money with them in circumstances giving rise to a fiduciary duty on their part (which they did not fulfil) to disclose their deteriorating financial position from which their insolvency followed soon afterwards. In holding that there had been no "defalcation" by the firm conferring a right to compensation from the stock exchange fidelity fund for loss of the money, Brennan J. held that there would have been no right in Daly or his assignee to trace or follow the money deposited with the firm. Until, his Honour said, the contract of loan of the money so deposited was rescinded, the relationship between Daly and the firm remained that of creditor and debtor. The breach of fiduciary duty in that case gave rise to a right to rescind which, when exercised, would revest in the lender an equitable title to the money, and with it the right to trace or follow it in equity. But, his Honour went on (at 389-390):

"... where property has been sold and conveyed, the purchaser's beneficial title must be ascertained by reference to the sale so long as it stands; the vendor cannot insist on an equitable interest in the property if he does not choose to enforce his equity to avoid the sale; see per Kitto J. in Latec Investments ((1965) 113 C.L.R., at pp. 277-278); and In re Sherman dec'd. ([1954] 1 Ch. 653, at p.658. Similarly, until the lender elects to avoid the contract of loan, he cannot assert an equitable title to the money lent. He cannot at once leave the contract on foot and deny the borrowers the title to the money which the contract confers. When, as in the present case, a borrower acquires title to money paid to him under and pursuant to a contact of loan, the borrower cannot be made a trustee of the money without his consent so long as the contract stands. There is no analogy between the present case and one in which a constructive trust is imposed on money or other property which is acquired by a fiduciary in breach of his duty but not pursuant to a voidable contract. In such a case there is no question of avoiding the contract before the constructive trust is imposed."

In Daly v. Sydney Stock Exchange Ltd. Gibbs C.J., with whom Wilson and Dawson JJ. agreed, also decided that the relationship between the firm and Daly remained that of debtor and creditor notwithstanding that the firm owed to Daly a fiduciary duty which they had breached. The learned Chief Justice reached the same conclusion by reasoning which differed from that of Brennan J. Nevertheless, although the reasoning of Brennan J. (with which Wilson J. also agreed) thus did not form the ratio decidendi of the other members of the High Court in that case, we are, with respect, persuaded that it is correct.

In the present case WDL has not exercised the right, which it has or had in consequence of Ms. Parker's breach of fiduciary duty, of rescinding the contract for sale and transfer to her of unit 18. The relationship between them consequently remains one of debtor and creditor. As such it confers on WDL no "interest" in that land, within the meaning of s.121(1)(a) of the Land Title Act, sufficient to sustain caveat no. 700041012. It follows that the judge below was correct in refusing to remove that caveat.

Accordingly, in our opinion, the appeal and cross- appeal should both be dismissed with costs in each case.

After these reasons had been prepared, the Court received from junior counsel for the appellant WDL an additional submission in writing seeking leave, if necessary, to lodge further caveats over the Ashgrove property and the unit property at Loganholme. The only reason offered for making such an order is that, under s.129 of the Land Title Act, leave of the Supreme Court is needed in order to enable another caveat to be lodged on the same or substantially the same ground as a caveat ordered to be removed. Had the existing caveat been removed because of a defect in the statement of the interest claimed or the grounds of claim, it might perhaps have been appropriate for this Court to consider an application for leave under s.129.

However, it is not for that reason that the appeal in this case is being dismissed. For this Court now to give the leave sought by junior counsel would, on the material before us, deprive s.129 as well as the order dismissing the appeal of their intended effect. If the appellant believes it can, on fresh material, establish a case under s.129 for leave to lodge a further caveat, then the proper course is to make an application to a Judge in Chambers for such an order. We will therefore not entertain the application foreshadowed in the further submission received from junior counsel for the appellant WDL.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 212 of 1994

Brisbane
[Wickham Developments Ltd. v. Parker]

BETWEEN

WICKHAM DEVELOPMENTS LIMITED

(ARBN 010 918 027)

(Respondent) Appellant

AND

DEBRA SHARON PARKER

(Applicant) Respondent

Fitzgerald P.
McPherson J.A.

Pincus J.A.

Judgment delivered 20/06/95

Joint reasons for judgment by McPherson & Pincus JJ.A.
Separate reasons for judgment by Fitzgerald P. concurring as

to the orders.

APPEAL AND CROSS-APPEAL DISMISSED WITH COSTS.

CATCHWORDS CIVIL - Removal of caveats - Whether a constructive trust arose by misappropriation of caveators monies, equipment, supplies of material and services - Whether caveat should be removed if interest is overstated - Queensland Estates Pty. ltd. v. Co-Ownership Land Development Pty. Limited [1969] Qd.R. 150 - Whether a fiduciary who breaches duties should be treated as a constructive trustee - Daly v. Sydney Stock Exchange Ltd. (1986) 160 C.L.R. 371.

Counsel:	P. Lyons Q.C., with him R. Morgan, for the appellant
N.E. Ulrick for the respondent
Solicitors:	Halletts for the appellant Bartels for the respondent

Hearing Date: 28 March 1995