Woakwine Ind v Van Shaik Organic Soils & Bark Supplies P/L No. Scciv-01-419

WOAKWINE INDUSTRIES v VAN SCHAIK
[2002] SASC 176
Master’s Appeal

WILLIAMS J This is an appeal by the defendant Van Schaik Organic Soils and Bark Supplies Pty Ltd against the order of a Master dated 15 February 2002 whereby he ordered (i) that the defendant give the plaintiff (Woakwine) possession on or before 21 February 2002 of the land described in CT Vol 5630 Folio 901 and (ii) that the defendant pay the costs of the application and order.
1 The point at issue
Van Schaik as the occupier of the abovementioned land was given notice that Woakwine as registered proprietor required vacant possession. The hearing of the summons in ejectment (Action No 419 of 2001) - which was instituted by Woakwine under pt 17 of the Real Property Act 1886 (SA) - was adjourned upon Master’s order pending the outcome of proceedings (the caveat proceedings - Action No 1204 of 2000) taken by Van Schaik claiming an extension of time for removal of a caveat pursuant to Pt 16 of the Real Property Act. Van Schaik failed in its attempt to obtain an extension of time because it was unable (as a triable issue) to demonstrate that it had a caveatable interest in Woakwine’s land. It then sought to rely upon alleged personal equities in answer to Woakwine’s claim for summary relief in the ejectment proceedings; these equities were alleged to arise out of substantially the same circumstances in which Van Schaik had previously failed in its attempt to demonstrate an arguable case as to an interest in land.
The question at issue is whether the Master was correct in refusing to allow Van Schaik the opportunity to advance those further grounds of defence (including a claim for relief under the Trade Practices Act 1974) in light of the course of the proceedings.
The present appeal raises a question as to the application of the principles in Henderson v Henderson (1843) 3 Hare 100 (67 ER 313) when the court is faced with a claim in ejectment for summary relief under s 195 of the Real Property Act in circumstances where the occupier has already made an unsuccessful attempt to raise a triable issue upon a matter affecting its right to resist the registered proprietors’ claim for relief.
A special feature of this case is the jurisdiction conferred on the Supreme Court summarily to order possession upon the application of the registered proprietor (under s 195 of the Real Property Act) when no triable issue emerges at the hearing.
2 The Master’s order and grounds of appeal
The order for possession in the present action (No 419 of 2001) was made after the Master heard oral argument on 11 February 2002. The Master then gave short ex tempore reasons as recorded in the following file note:
“The pltf in this action seeks an order for possession against the deft. The deft has previously sought to sustain an interest in the land and proceedings were taken to remove the caveat pursuant to which the deft sought to protect its right. Those proceedings were based on an alleged contractual interest by means of a lease. Those proceedings were heard by myself, subsequently by Mr Justice Wicks and ultimately by the Full Court and determined adversely to the deft.
The pltf now seeks an order for possession but the deft seeks to challenge that on the basis that the deft has defenses to the order for possession relying on 1-estoppel, 2-constructive trust and 3-unjust enrichment. It is contended on behalf of the deft that the previous decision does not in fact in any way affect the deft’s defenses as now alleged. In my view, these matters could and should have been raised previously and the deft cannot now seek to delay the pltf’s application on these grounds. I am therefore prepared to make an order for possession. The deft has in the course of submissions in support of his contentions raised the question of the length of time which should be allowed for the vacation of the land but of course in the submissions this morning it has been put that this should be part of the material dealt with at the trial of the action. I am prepared to hear further submissions in relation to that but of course this will not be putting the matter of[sic] to trial on those issues.”
The Master then adjourned the matter to 15 February 2002, when he made the formal order (as abovementioned) which is the subject of this appeal.
The grounds of appeal are as follows:
“1.The learned Master erred in refusing to consider the defences to the Plaintiff’s application for possession maintained by the Defendant namely;
1.1    misleading and deceptive conduct;
1.2    misrepresentation;
1.3    estoppel;
1.4    unjust enrichment;
1.5    constructive trust
(“the defences”)
2.The learned Master erred in making the Order for possession notwithstanding the defences raised by the Defendant.
3.The learned Master erred in finding that the Defendant would have, and should have raised the defences in earlier caveat proceedings between the parties in this Court in Action Number 1204 of 2000 (“the Caveat proceedings”).
4.The learned Master erred by failing to have regard or sufficient regard to the fact that the Plaintiff issued and prosecuted separate proceedings (“the within proceedings”) for possession and at no time brought a cross claim in the caveat proceedings for an order for possession nor sought to have the within proceedings and the caveat proceedings heard together or consecutively.”
3      The history of the litigation
The extensive material placed before me shows that the plaintiff Woakwine purchased from Cellulose Australia Ltd the relevant (and other) land which was then occupied by Van Schaik which was holding over. Arising out of negotiations with Woakwine, Van Schaik claimed that it had obtained an agreement to lease part of the plaintiff’s land and lodged a caveat on 8 March 2000 to protect that supposed interest. The plaintiff took steps to warn the caveat by application to the Registrar General on 26 October 2000 and the defendant on 30 November 2000 applied to the Court pursuant to s 191 VII of the Real Property Act for an order extending time for removal of the caveat. To obtain that extension the applicant (in accordance with practice) was required in the circumstances to show a triable issue that as lessee it had an equitable interest in the land. A Master dismissed this application in Action No 1204 of 2000 (the caveat proceedings). Wicks J dismissed Van Schaik’s appeal against the Master’s order by reasons given on 23 August 2001 (see [2001] SASC 297); Van Schaik then appealed to the Full Court (constituted by Debelle, Martin and Besanko JJ) who by reasons given on 3 December 2001 dismissed this further appeal (see [2001] SASC 421).
On 27 February 2001 the plaintiff commenced the present proceedings (Action No 419 of 2001) by filing a summons in ejectment pursuant to s 192 of the Real Property Act. Van Schaik was represented by solicitor at the first hearing of this summons on 14 March 2001 but the hearing was repeatedly adjourned; the Master’s file notes read as follows:
27 April 2001 “The appeal in the associated matter is listed for hearing in June and I am adjourning this matter to enable this to occur.”
5 Sept 2001“This matter is affected by another action in which an appeal to the Full Court is to be lodged. I am adjourning the matter pending the outcome.”
The plaintiff served a notice to quit on 15 August 2000 claiming thereby to terminate any right to possession which Van Schaik may have had. This notice was served before the caveat was warned. The plaintiff reinforced this notice by a letter dated 18 October 2000 from the respondent’s solicitor to the appellant’s solicitor:
“…On 21 August 2000, my client issued to your client a Notice to Quit (“the Notice”). The effect of this was to give your client one months notice that the lease would terminate on the 15 October 2000.
The monthly tenancy was terminated from the 15 October 2000 in accordance with the Notice. On the 16 October 2000, my client exercised its rights under the Notice, and re-entered and took possession of the premises.
On the morning of 17 October 2000, your client re-entered the premises. Your client’s actions in taking specific steps to change the locks and regain possession of the premises, in the absence of any legal right to do so, is an act of trespass. Your client has no entitlement to be on the premises and my client reserves all of its rights.
I have been instructed by my client to advise that an action in trespass will be pursued against your client, should your client fail to vacate the premises immediately upon receipt of this letter.
I further advise that, as your client no longer has any interest to protect under the caveat, an application for removal of caveat number 8849784 will be made.”
The combined effect of the notice to quit, the statutory warning of the caveat and the abovementioned letter was to place Van Schaik fairly upon notice that the registered proprietor was seeking to exercise possessory rights.
In the absence of any interest in the land on the part of Van Schaik (as determined in the caveat proceedings - Action 1204 of 2000) the plaintiff contends that the defendant is a trespasser. However, the defendant seeks to raise in the present proceedings a number of defences to the claim for possession as set out in an affidavit of Mr JA Van Schaik (a director of the appellant) sworn on 31 January 2002. He claims that the present appellant has arguable defences to the claim for possession and relies upon conversations with and the conduct of the present respondent (represented by Mr McCourt) late in 1998.
The proceedings in ejectment should not have taken Van Schaik by surprise. In view of the three notices which it had been given (as abovementioned) Van Schaik should have recognised that the warning of the caveat was only a step in determining the wider question as to whether Van Schaik had a case in answer to the demand of the registered proprietor for possession.
4The case raised in the caveat proceedings compared with the case now raised
Mr Van Schaik in an affidavit has outlined the case which the appellant now wishes to advance. He seeks to rely upon assurances given to him or representations made at the time when Woakwine was taking steps to acquire the relevant land from Cellulose. Extracts from this affidavit are as follows:
“In a series of conversations with Cellulose representatives at which on some occasions McCourt and or his employee Mr Gregory Rees were present, the Cellulose employees told me the [appellant’s] lease and right to occupy the land would be protected in contractual arrangements with McCourt. McCourt also represented to Cellulose that the [appellant’s] right to occupy, and the arrangements with McCourt for a five year lease with option to purchase to be exercised within a three year period, would also be protected and honoured by McCourt.
Relying on the representations of both Cellulose and its representatives and McCourt and his employees, the [appellant] withdrew from the tendering process and did not lodge a tender for purchase of the land.”
(This affidavit was prepared for filing in Action 1204 of 2000 although eventually filed in Action 419 of 2001. For convenience and to avoid confusion I have used the term “appellant” to describe Van Schaik Organic Soils. The affidavit refers to an earlier affidavit “sworn on 28 November 2000 and filed herein.” This is a reference to a document filed in Action 1204 of 2000).
The affidavit sworn 31 January 2002 is to be compared with the affidavit of Mr Van Schaik sworn on 28 November 2000 in the proceedings 1204 of 2000; extracts from the earlier document read as follows:
“On behalf of the Company, I expressed an interest in purchasing the land from Cellulose Limited but eventually withdrew from the Sale/Tender process on the understanding that Cellulose Limited would ensure long term leasing arrangements would be guaranteed with the new purchaser.
I indicated an intention to Cellulose Limited that the Company would prefer to buy the whole of the Area marked “A” on The Plan and move all of its operations from the Areas marked “F”, “D”, “C” and “H” on The Plan to Area “A”. Cellulose Limited indicated that they were not prepared to sub-divide the land themselves, but that Cellulose Limited had made enquiries with the local Millicent District Council, ascertaining that there would be no impediments to sub-division.
Cellulose Limited sold the land to …, Woakwine Industries Pty Ltd (“Woakwine”) in 1998.
Prior to settlement occurring in relation to the sale and purchase of the land a meeting was held between me, Mr Michael McCourt representing Woakwine, Mr Tony Joyce of Cellulose Limited. I believe Mr Ian Chapman of Cellulose Limited was also present. As a result of this meeting, Mr McCourt gave an undertaking to Cellulose Limited and to the Company that he would continue to provide a Lease of the areas currently let to the Company for a period of five (5) years. It was also agreed between Mr McCourt, representing Woakwine, and me representing the Company that the Company was to be given an Option to Purchase the Area marked “A” on The Plan (and also known as “the cricket pitch area”) which option was to be exercised towards the expiration of the first lease term of five (5) years. (“The Option.”) It was further agreed between Mr McCourt representing Woakwine and me representing the Company, that upon execution of a Lease which provided an Option to Purchase the Area marked “A” on The Plan that the Company would progressively move all of its operations then being conducted on the Areas marked “F”, “D” and “H” on The Plan to Area “C” and upon exercise of The Option to Purchase Area “A” the Company’s operations would be removed from Area “C” and be relocated to Area “A”.”
Applying the principles in Whallin v Bailbart Investments (1987) 47 SASR 198 the Full Court disposed of the appeal in the caveat proceedings upon the footing that “Van Schaik as plaintiff had to establish sufficient grounds to warrant the ordering of an interim injunction that is to say that there was a serious question to be tried and that on the balance of convenience the caveat should be extended.” The only evidence before the Court was in the affidavit of Mr Van Schaik. The Full Court upheld the view of Wicks J that there was no serious question to be tried as to whether the appellant had an interest in the land so as to support a caveat which was claimed in the following circumstances:
“(a)firstly as lessee pursuant to an agreement partly in writing and partly oral between the caveator as lessee and the caveatee as lessor being evidence by an undated document headed ‘Memorandum of Lease’ for a term of five years commencing on 5 November 1998 and ending on 4 November 2003 pursuant to which the caveator had been in occupation and paid rental, which had been accepted by the caveatee, from 5 November 1998;
(b)secondly, as grantee of an option to purchase pursuant to cl 6.2 of the Memorandum of Lease detailed above, granting the caveator an option to purchase portion of the within land which option is to be exercised by the caveator between 20 October 2003 and 3 November 2003. The caveat was duly registered and given the serial number 8849734.”
Debelle J referred to the reasons of Wicks J and then expressed himself as follows:
“After reviewing negotiations between the parties and the correspondence exchanged between them or their solicitors, the judge held the parties had not reached a concluded agreement. In his view, the negotiations were incomplete. He also held that there had been no part performance of the contract within the meaning of s26(2) of the Law of Property Act. He further held that even if, contrary to his view, there was a concluded lease or agreement to lease, that lease or agreement to lease was invalid by reason of s32 of the Development Act 1993. It appears that the judge had concluded that there was no serious question to be tried.
The plaintiff appeals against the judge’s conclusion. I agree with the substance of the reasons of the learned judge. I agree with his conclusion that the parties had not reached a concluded agreement. In my view, it is unnecessary to deal with the other matters.
It is also unnecessary to recapitulate the reasoning of the learned judge. It is sufficient to state that the judge’s review of the original facts is complete and it has not been shown that it was wrong. That review demonstrates that the parties did not agree the terms and conditions of the lease. A number of outstanding issues as important as the area of the land the subject of the lease, the terms upon which there should be rent reviews, and whether the directors should guarantee all payments due under the lease remained to be agreed. I adopt the reasons of the learned trial judge.
I add that the correspondence between the parties is couched in the language of negotiation as opposed to language of offer and counter offer for which the plaintiff contends. I agree with the learned judge that at no stage were the parties ad idem and that they had not reached a concluded agreement. It, therefore, follows that the parties did not agree either the terms and conditions of a lease or an agreement to lease. It might be possible also to point to other issues, such as the extent to which an option to purchase was to form part of the concluded agreement. It is unnecessary for the reasons already given to deal with that issue.
In the course of his argument, Mr Ross-Smith, who appeared for the plaintiff, relied on para 18 of the affidavit of Mr Van Schaik to which I have already referred. He contended that the evidence demonstrated there was a concluded agreement between the parties. However, it is apparent that Mr Van Schaik was aware that the decision whether the defendant company would agree to the terms and conditions he had proposed in his letter of 11 March 1999 turned on a decision of the board of directors of the defendant company. A letter dated 16 August 1999 written by Mr Van Schaik demonstrates that fact. There is no evidence that the board did agree the terms of the lease. Later negotiations indicate that it did not.
In my view, the judge was therefore correct in concluding that there was no concluded lease or agreement for lease between the parties. That is sufficient to dispose of this appeal. It is, therefore, unnecessary to deal with the other issues.”
The other members of the Court agreed.
I draw particular attention to those matters of which Mr Van Schaik was “aware” in terms of the remarks of Debelle J. The extent of Mr Van Schaik’s knowledge would be critical with respect to any alternative claim which the appellant might now seek to develop that he or his company was misled. That fact and its legal implications is an example of elements which can be found in the decision of the Full Court which may provide embarrassment to the appellant’s present submissions.
5 What “belonged” to the first case - the principle
The respondent contends that the matters which the appellant is now seeking to raise by way of defence in the present proceedings properly “belonged” to a subject of litigation which ought to have been identified and disposed of “at the one time” in the course of the caveat proceedings.
In Pertsinidis & Anor v Aust Central Credit Union Ltd [2001] SASC 244 I reviewed the principles relating to a party’s obligation to bring forward its “whole case” and the Court’s power to refuse to allow the same subject of litigation to be pursued in different proceedings and at different times. In Henderson v Henderson (1843) 3 Hare 100 at 115 (67 ER 313 at 319) the principle is expressed as follows:
“…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

I enquired of counsel whether the appellant wished to provide evidence as to its reasons for not bringing forward earlier the issues which the appellant now seeks to ventilate. However, no such additional material was forthcoming so as to support an argument of “special circumstances” as discussed by the Full Supreme Court of Victoria in Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 at 89-90. The appellant drew my attention to the factors mentioned in State Bank of New South Wales v Alexander Stenhouse (1997) Aust Torts Rep 81-423 at 64089 and argued the matter by reference only to the facts which were patent upon the face of the file.
For the purpose of identifying what properly “belonged” to the caveat proceedings there are two ways of applying principle to the facts of this case. Upon a narrow view the case which Van Schaik propounded in the caveat proceedings did not go beyond matters relevant to the maintenance of a caveat or as affecting an extension of time under s 191 VII of the Real Property Act. Upon a broad (or contrary) view, Van Schaik’s case should have included all bases upon which Van Schaik might be able to claim interlocutory injunctive relief to protect the rights of occupancy which it was asserting and arising out of the events to which Mr Van Schaik deposes. The question may therefore be posed - Was it the duty of Van Schaik (having regard to the letter of 18 October 2000) to raise at the one time all points which appeared to emerge from the evidence filed in support of the application? Was Van Schaik bound then to deal with points which went beyond the terms of the application made under s 191 VII of the Real Property Act?
6 The appellant’s argument in summary
The appellant seeks to justify the procedure which it has adopted upon grounds which it has conveniently summarised in outline as follows:
1.“The caveat proceedings are defensive and respond to the caveat being warned, and were brought under the statutory regime contained in s 191 of the Real Property Act.
In addition, at least the misleading and deceptive conduct and misrepresentations defences could not be dealt with under the legislative scheme for caveatable interests pursuant to Part XVI of the Real Property Act because, unquestionably, those interests are not caveatable.
2.The caveat proceedings, by the conduct of both parties, were restricted to the lease contract issue.
Woakwine brought separate proceedings for possession, and (1) did not join the enforcement issues and the possession issues and (2) did not apply for those issues to be heard or decided together or concurrently and (3) did not cross-apply for a possession order in the caveat proceedings, and (4) did not consolidate the two lots of proceedings.
3.…Woakwine has co-operated in having the issues dealt with separately.”
The appellant Van Schaik contends that unlike the issue in the caveat proceedings, the defences upon which it now wishes to rely do not give rise to an interest in land so as to support a caveat. Although the appellants’ proposed defences in the ejectment proceedings have not been precisely formulated I understand that the appellant will seek to attribute to the respondent misleading conduct during the course of negotiations for the disposal of the Cellulose land; arguably, according to the appellant, this has led the appellant to act to its detriment and resulted in a windfall gain to the respondent. (It is contended by Van Schaik that the price paid by the respondent to Cellulose was reduced to take account of the acknowledged possessory rights of the appellant).
The appellant argues that the issue before the court upon the caveat proceedings was necessarily narrow - namely whether the caveator could demonstrate an arguable case showing an interest in land as described in the caveat. The appellant argues that it would be beyond the ambit of the caveat proceedings to agitate questions arising (for example) under the Trade Practices Act 1974 or the Fair Trading Act (SA) 1987 or questions arising with respect to mere personal rights. In support of its argument the appellant draws attention to the procedure provided in s 191 of the Real Property Act the relevant extract of which reads as follows:
“Persons interested may summon caveator
IVThe registered proprietor or any other person claiming estate or interest in the land may, by summons, call upon any caveator, including the Registrar-General, to attend before the Court to show cause why the caveat should not be removed; and the Court may, upon proof that the caveator has been summoned, and upon such evidence as the Court may require, make such order in the premises, either ex parte or otherwise, as shall seem just:
“Caveatee may apply to have caveat removed
VThe caveatee may, except when the caveat is lodged by a settlor, or by a beneficiary under a will or settlement, or by the Registrar-General under Part 19 of this Act, make application in writing to the Registrar-General to remove the caveat, and shall in such application give an address in South Australia to which notices or proceedings relating to the caveat may be sent, and the Registrar-General shall thereupon give twenty-one days’ notice in writing to the caveator, requiring that the caveat be withdrawn:
Mode of removing or discharging caveat
VIThe Registrar-General shall, after the lapse of twenty-one days from the posting of such notice to the address mentioned in the caveat, or of such extended time as may be ordered by the Court, remove the caveat from the Register book by entering therein a memorandum that the same is discharged:
Caveator may apply to Court for order to extend time
VIIThe caveator may apply to the Court, by motion or summons, for an order to extend the time beyond the twenty-one days mentioned in such notice, and notice of such motion or such summons may be served at the address given in the application of the caveatee; and the Court may, upon proof of the service of such notice of motion or summons, and upon such evidence as the Court may require, make such order in the premises, either ex parte or otherwise, as shall seem just:”
(I have included the reference to s 191 IV only to draw attention to an alternative procedure which is available to the registered proprietor).
The appellant now argues that in deciding whether to extend time (as sought in the caveat proceedings) it was irrelevant for the Court to be concerned with questions beyond those authorised by s 191 VII.
7 Discussion of the appellant’s submissions
In my opinion the appellant’s submission does not dispose of the point arising under the Henderson principle. In my opinion orders (assuming the same to be available) which alter the rights of the parties (by the operation of the Trade Practices Act or otherwise) will have the potential to create inconsistency with the decision of the Full Court (having regard to the manner in which it was expressed). Moreover, the rights which the appellant identifies as personal have the potential to give rise (arguably) to interests in land. To my mind it would be (at the least) an embarrassment for the court now to be called upon to adjudicate upon these claims and yet be required to “steer around” matters which have already been the subject of a determination. If the establishment of an estoppel could arguably give rise to an interest which was proprietary in nature then I consider that such an issue properly should have been litigated when the attempted identification of a claim to an interest in land arising out of a contract was before the court at the time of the caveat proceedings.
Van Schaik contends that upon Woakwine’s application for possession, a triable issue by way of defence should now be recognised based upon the conduct and conversations referred to in the affidavits. I disagree with this submission. That view of the evidence should have been put forward (if at all) as an alternative to the claimed interest in the land. I consider that in seeking to extend time for removal of caveat (effectively an application for an interim injunction) it was incumbent upon the caveator to adopt a procedure which would enable the court to deal with all issues arising from the conversations and associated conduct - at least insofar as those rights might bear upon the interlocutory relief available to the caveator (in that capacity or otherwise) as occupier of land.
The appellant was on notice that the respondent was not only seeking the removal of a caveat but was seeking to exercise fully the rights of a registered proprietor entitled to possession. As a result of the letter written by Woakwine’s solicitor on 18 October 2000 and the notices as abovementioned, Van Schaik knew that the registered proprietor was demanding possession and that the warning of the caveat on 26 October 2000 was a step in enforcement of that right. In my opinion the appellant (acting reasonably) should have anticipated how the issues would develop. The appellant was not excusably ignorant of anything material to the course which it ought to adopt (cf Spencer Bower Turner and Handley - Res Judicata 3^rd ed at par 196.)
Upon the facts disclosed in the affidavits, Van Schaik must have known that it had two cards to play - firstly an argument that Woakwine had agreed to a lease and secondly an argument that Woakwine’s conduct gave rise to an estoppel or was misleading. In my opinion Van Schaik (acting reasonably) should have sought an extension of time for removal of caveat and in the alternative should have sought a declaration of its rights of occupation and an interim injunction quia timet against being dispossessed pending a full hearing of its claims. Upon each leg of the application the court would have then been able to apply the same test as to whether or not there was a “serious question to be tried” as to the appellant’s right of occupancy (whether arising from an interest in the land or otherwise arising from the representations allegedly made by the registered proprietor).
In Whallin v Bailbart Investments (1987) 47 SASR 198 at 203 Cox J said:
“…It would be appropriate to apply the test for the grant of an interlocutory injunction to any such application by a caveator who preferred to have the removal time thus extended instead of - conceivably, I suppose, in addition to - seeking an actual interlocutory injunction. Such a caveator would, therefore, have to satisfy the established test for the grant of an interlocutory injunction - namely, whether there is a serious question to be tried and, if there is, whether the order should be made on the balance of convenience (Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425,…”
In my opinion upon the facts of this case it would be vexatious for Van Schaik to keep one of its cards up its sleeve until it had tested before the Full Court one view of the facts - namely that there was an agreement for a lease. An extension of the analysis which enabled the Full Court to dispose of that submission arguably could be applied (mutatis mutandis) to the estoppel claim.
I consider that Van Schaik should have anticipated that by reason of the manner in which the Court chose to mould its reasons in the caveat proceedings, the caveator was at risk of facing inconsistency between the outcome of the caveat proceedings and any other proceedings affecting Van Schaik’s claimed right of occupancy. Clearly, any statutory relief (whether under the Trade Practices Act or otherwise) for anything beyond monetary compensation had the capacity to conflict with the Court’s refusal to recognise Van Schaik’s claimed interest in the land. (The respondent intimated during the hearing that it would not complain about a monetary claim being separately pursued).
The case which Van Schaik propounded in the caveat proceedings involves the same general matrix of facts as has led to the defences which Van Schaik now puts forward. Undoubtedly these defences would have also included a claim to an interest under a lease if that had not been disposed of in the caveat proceedings.
I consider that upon receipt of the letter of 18 October 2000 and the warning to the caveat the present appellant was required to consider how s 191 and s 195 of the Real Property Act might operate. The registered proprietor was forcing the pace by the caveat warning so as to require the occupier to show its hand.
I have already quoted an extract from s 191 (pt 16 of the Real Property Act) as to the procedure for warning a caveat and seeking an order for extension of time for removal of caveat. That procedure should be considered together with the operation of s 195. Part 17 of the Real Property Act (which includes s 195) makes available to the registered proprietor a summary procedure to obtain possession but without prejudice to other proceedings if the application be dismissed. Together with the procedure for warning a caveat in accordance with pt 16, pt 17 provides the registered proprietor with a powerful procedural weapon with which to test the position. The relevant provisions read as follows:
“192Any of the following persons (in the following sections called “the claimant”) may cause any person in possession of land under the provisions of this Act to be summoned to appear before the Court to show cause why the person summoned should not give up possession to the claimant-
I. The registered proprietor of a freehold estate in possession:”
…
“195If the person summoned shall appear, the Court shall hear the summons, and may make such order thereon and impose such terms as it may think fit: Provided that in the case of a lessor against a lessee, if the lessee before or at the hearing pay or tender all rent due, and all costs incurred by the lessor, the Court may dismiss the summons.”
“196The dismissal of any such summons shall not prejudice the right of the claimant to take any other proceedings against the person summoned to which he may be entitled.”
The operation of s 192 and the following sections were the subject of comment by the High Court of Australia in Rodgers v Moonta Town Council [1981] 37 ALR 49 at 52:
“Mr Justice Zelling said that it was the inveterate practice in South Australia that the court hearing an application under s 195 “will not make orders where disputed questions of fact and law can only be resolved by remedies available in the ordinary jurisdiction of the court”. He held that the issues in the present case could only be satisfactorily resolved by proceedings in the ordinary jurisdiction in which the issues are explored after the delivery of proper pleadings.
…
The provisions of s 192 and the following sections of the Real Property Act do not, in terms, limit the power of the court to make an ejectment order to cases in which no triable issue has emerged. However, assuming that the court has a discretion to decline to proceed with the determination of disputed questions of fact and law, it is apparent that it would not be right to refuse to make an order for possession if the relevant issues before the court had been fully explored and the evidence revealed that the applicant had a right to possession.”
It therefore seems clear that the court has power to make an order summarily where no triable case has emerged and the defendant has exhausted all rights to further explore the issues.
In the present case the appellant opposed the determination of the ejectment proceedings until its rights of appeal in the caveat proceedings had been exhausted. That course was appropriate but I consider that in the circumstances the appellant should have taken steps to bring forward all its arguments in a manner which would have allowed the appeal judges to deal with the points comprehensively.
When the application for possession eventually came to be dealt with on 11 February 2002 after the Full Court’s disposal of the caveat proceedings, the Master treated the matter in a summary way, without directing the trial of issues. In my opinion upon being satisfied as to formal matters - the proof of title of the registered proprietor, proof of service of proceedings and proof of notice to quit and after establishing who might be affected by the order - the Master was entitled to conclude that in the circumstances nothing further remained which ought to be recognised as an issue. The defendant must be taken to have exhausted its rights. Accordingly grounds Nos 1, 2 and 3 in the Notice of Appeal are not made out.
The appellant has submitted that the respondent acquiesced in the course adopted by the appellants; alternatively the appellant contends that by the manner of proceeding the respondent elected to “co-operate” with the appellant or make no protest when it might have been expected. In my opinion no factual basis has been demonstrated for this submission and I reject it. Van Schaik relies upon its solicitors’ letter to Woakwine’s solicitor as follows:
“3We do not accept the proposition that if we do not have a caveatal (sic) interest then you will necessarily be (sic) unsuccessful in ejectment proceedings.”
I do not read into this letter notice of the defences which Van Schaik was apparently keeping up its sleeve.
In my opinion it was for Van Schaik to identify and bring forward the whole of its intended case. Woakwine could not be expected to anticipate the further defences which Van Schaik eventually sought to advance. Ground 4 of the Notice of Appeal has not been made out.
In my opinion upon the warning of the caveat it would be inconvenient that a caveator in every case should be required to pursue concurrently every available point affecting rights of occupancy as against the registered proprietor. Whether in the absence of the respondent’s notice to quit and the subsequent solicitor’s letter of 18 October 2000 the appellant could have established “special circumstances” within the Henderson principle does not now require decision.
The appellant has argued on this appeal that it was inhibited by the requirements of s 191 VII when responding to the warning of the caveat. I disagree with the appellant’s contention that it could not have brought forward its personal claims when seeking to establish an arguable case with respect to an interest in land. The procedures available to litigants are sufficiently flexible to provide fair and workable procedures which may be adjusted to meet the exigencies. I refer to the discussion of the authorities in Whallin v Bailbart at 199-203.
This appeal will be dismissed. I will hear the parties as to consequential orders.

[2002] SASC 176

6 June 2002