Charges giving rise to caveatable interests.
The indirect ability of the Court of Appeal to remove a caveat.
A competition between cash in a solicitor’s bank account and a caveat supporting a charge for potentially a greater amount.
Sim Development Pty Ltd v Greenvale Property Group Pty Ltd  VSC 335 (16 June 2017) Sifris J.
Sim Development Pty Ltd v Greenvale Property Group Pty Ltd  VSCA 345 (17 November 2017) Tate and McLeish JJA.
The plaintiff/appellant (“Sim”) provided services under a consultancy and management agreement for a proposed development on land of which the defendant/respondent (“Greenvale”) was registered proprietor. Greenvale notified Sim of its intention to terminate the agreement at a specified date. Sim caveated to secure moneys allegedly owed under the agreement and sued to recover $380,280 and for other relief. Greenvale counterclaimed and commenced a separate proceeding under the TLA s. 90(3) seeking removal of the caveat.
Sifris J held Sim to be entitled to payment of $152,600.03 and Greenvale to be entitled to some payment on the counterclaim. His Honour dismissed the caveat proceeding on the ground of a clause providing that on termination of the agreement before completion of the project Greenvale gave Sim “the right to register a charge over the property … and any other property owned by [Greenvale] and such charge is to be applied to the payment in full of any money owed to [Sim Development]”. Sifris J held that the contractual right to register a charge, in the event of termination, supported the existence of a caveatable interest; and while the clause did not specifically adopt the language of lodging a caveat, its reference to the concept of registration, and lack of sufficient indication to the contrary, supported the conclusion that it gave rise to a caveatable interest.
Sim applied for leave to appeal, seeking orders in substance as sought at first instance. Greenvale did not seek leave to appeal against the caveat proceeding order. However, desiring to be rid of the caveat, it made an interlocutory application in the application by Sim for leave to appeal, seeking an order directing Sim to withdraw its caveat on Greenvale paying $152,600.03 into an interest-bearing account of Greenvale’s solicitors and undertaking not to sell the land pending determination of the application for leave to appeal and any appeal.
Tate and McLeish JJA held:
- The application by Greenvale was competent, being permitted by s. 10(3) of the Supreme Court Act 1986.
- Sim would not be ordered to withdraw its caveat, because:
- the caveat was supported by its right under the agreement to a charge over the land. The withdrawal of the caveat would in effect remove the protection of the security interest the parties provided for in the agreement;
- if Sim succeeded in any appeal Greenvale may be ordered to pay $380,280. In those circumstances, the amount offered, $152,600.03, would be inadequate and Sim would have lost the protection of the caveat supporting its entitlement to monies owed. This could render any appeal effectively nugatory;
- Greenvale had not adequately specified how the caveat would impede the development’s progress. Accordingly, applying a test of balance of convenience, Sim had discharged its onus of establishing that the prejudice that would flow to it from an order directing it to withdraw the caveat outweighed any demonstrable prejudice to Greenvale.
Commentary: A novel case of a creative attempt to get rid of a caveat pending an appeal. As to caveats supporting charges see also: Evans v Advertising Department Pty Ltd  VSC 587; West Coast Developments Pty Ltd v Lehmann  VSC 617, also  VSC 293.