Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd [2017] VSC 682 (8 November 2017); Andrews Family Holdings Pty Ltd v Yellow Tractor Pty Ltd (No 2) [2017] VSC 695 (14 November 2017). Ginnane J.
Mr Annesley entered a contract to purchase land from the plaintiff (“Andrews”). In purported payment of the balance of price he tendered a document entitled ‘Promissory Note’ which was neither a permitted method of payment nor indeed in law a promissory note. Andrews rescinded the contract. The defendant (“the company”), of which Annesley was a director and which he had intended to nominate as purchaser, subsequently caveated, the caveatable interest being based on the rescinded contract. The company was subsequently deregistered. Andrews applied to remove this caveat under the TLA s. 90(3). Ginnane J:
- Found no serious question to be tried that the company, even if still registered, had a caveatable interest: it was not a party to the contract and had no legal or equitable interest in the property.
- Also enjoined Annesley from lodging further caveats in respect of the land without leave. He noted that there was both authority for this course in the caveat context, ie Maryvell Investments Pty Ltd v Velissaris [2008] VSC 19, and the general curial power to grant injunctions given by the Supreme Court Act 1986 s. 37. This case merited an injunction because Annesley had already lodged two caveats and did not foreswear lodging more.
Undaunted, on the day after this decision Annesley caveated in his own name claiming a purchaser’s lien. The Titles Office had a copy of the court order but accepted the caveat albeit apparently issuing a requisition requiring Annesley to establish within 14 days that he had the court’s leave. On an application for removal if this caveat Land Use Victoria argued that it had justifiably given Annesley ‘the benefit of the doubt’, the Registrar having a duty to accept a caveat for lodgment. Ginnane J:
- Held this practice of giving the benefit of the doubt inappropriate for caveators whose previous caveats had been removed or had lapsed or were now subject to injunction. The Registrar’s statutory obligations included giving effect to directions of the Supreme Court (TLA s. 103).
- Permanently enjoined Annesley from lodging caveats in respect of the property, with indemnity costs.
- Enjoined the Registrar of Titles so that must forthwith reject and not record any caveat by Annesley over the property.
Commentary: This case is a rare case of the Registrar registering a caveat after an injunction was granted. Otherwise, it succeeds previous cases such as where: the court orders the Registrar not to register any caveat without its leave or further order (Westpac Banking Corporation v Chilver [2008] VSC 587), or any caveat by any person other than a purchaser from the successful plaintiff without its leave for a certain period (Lettieri v Gajic [2008] VSC 378) or enjoins the lodging of further caveats (Marchesi v Vasiliou [2009] VSC 213; Wells v Rouse & Ors [2015] VSC 533).
