3. Principles applicable to application to remove caveat under s. 90(3) of TLA

  • Absolute prohibition

  • Circumstances in which entitlement to payment for work on land caveatable

  • Injunction against future caveat

  • Amendment of caveat

  • Costs

  • Interest claimed being “implied, resulting or constructive trust”

  • Commentary

Yamine v Mazloum [2017] VSC 601 (3 October 2017) John Dixon J.

The timeline was –

Undated                         Plaintiff registered proprietor asks caveator to assist him to prepare property for sale.  Caveator subsequently alleges that in substance: the plaintiff asked him to work to finish his house and prepare it for auction; the caveator replied that a tremendous amount of work was involved which he could not even put a figure on, asked how he would be paid, and said that he would not help unless assured he could be paid; the plaintiff replied that he would be paid for his work from the proceeds of sale. 

March – 23 June 2017  Caveator moves into the property and allegedly fixes it for sale. 

8 July                               Property sold, settlement date 6 September, rescission notice served in September. 

26 July                             Caveat lodged, grounds of claim “implied, resulting or constructive trust”, estate or

interest claimed is a “freehold estate”, all dealings prohibited.

18 September                Following provision of information by caveator’s solicitors and inconclusive negotiations plaintiff foreshadows application to remove caveat, caveator offers withdrawal in return for $45,000 to be held in caveator’s solicitor’s trust account pending resolution of the dispute.

The plaintiff applied for removal of the caveat under the Transfer of Land Act 1958 s. 90(3). John Dixon J ordered removal of the caveat with costs. His Honour reasoned –

1. His Honour first recited certain standard principles, namely –

(1) The power under s. 90(3) was discretionary.

(2) Section 90(3) was in the nature of a summary procedure and analogous to the determination of interlocutory injunctions.

(3) The caveator bore the onus of establishing a serious question to be tried that the caveator had the estate or interest claimed. The caveator must show at least some probability on the evidence of being found to have the equitable rights or interest asserted in the caveat.

(4) The caveator must further establish that the balance of convenience favoured maintenance of the caveat until trial.

(5) As to the balance of convenience generally the court should take the course appearing to carry the lower risk of injustice if the court should turn out to have been wrong in the sense of declining to order summary removal where the caveator fails to establish its right at trial or in failing to order summary removal where the registered proprietor succeeds at trial.

(6) The stronger the case that there was a serious question to be tried, the more readily the balance of convenience might be satisfied. It was sufficient that the caveator showed a sufficient likelihood of success that in the circumstances justified the practical effect of the caveat on the registered proprietor’s ability to exercise normal proprietary rights. [15]

2. His Honour also noted authority for the proposition that “a caveat may only be lodged in a form commensurate to the interest it is designed to protect”. [16]

3. The argument that the caveator’s entitlement to be paid for his work on a quantum meruit was enforceable in equity by a constructive trust was invalid. The plaintiff did not accept any intention to charge or secure the land with the obligation to repay the cost of the work or to create any beneficial interest in it. The concept of salvage, deriving from Re Universal Distributing Co Ltd (1933) 48 CLR 171 at 174 – 5 per Dixon J, was inapplicable: the current case concerned property rights, not rights in insolvency and the property was preexisting and not converted into a fund for the benefit of claimants. There was only an oral agreement for services on a quantum meruit. [19], [24], [26] – [32]

4. If the caveator now evinced an intention to lodge a further caveat claiming an interest as chargee, an injunction would likely lie. [33]

5. No application to amend the caveat was made, and the discretion to amend would not have been exercised because:

(1) The application would have been to amend the interest claimed ie to chargee or equitable lienee, an amendment of interest claimed “not usually be[ing] permitted”, not merely to amend the grounds of claim or scope of protection. [35]

(2) The circumstances the grounds or interest claimed were erroneously stated was were relevant: the caveat was lodged not by an unrepresented person but by a solicitor certifying that he had taken reasonable steps to verify the identity of the caveator and had retained the evidence supporting the claim. [36]

(3) The court should not encourage the belief that caveats could be imprecisely formulated and then fixed up later: a caveat was in effect an interlocutory injunction by administrative act with possible serious consequences. Wrongly formulated caveats should not easily be tolerated. Caveats should not be used as bargaining chips. [37]-[38]

(4) The court should have regard to all of the considerations that arise on applying for removal of the caveat in the terms of the amendment sought. If this caveat was amended the caveatable interest claimed would still lack merit because even if the caveator’s version of the oral agreement was proved it would not create a charge or an equitable lien. [39] – [40]

6. His Honour not merely awarded costs but also reserved liberty to the plaintiff to make any application pursuant to r 63.23 as it may be advised against the first defendant’s solicitors. [44]

7. His Honour noted in passing that use of the phrase “implied, resulting or constructive trust”, which identified three different forms of trust, was “usually evidence of a degree of loose thinking”. [20]

Commentary –

1. His Honour deals with the principles applicable to s. 90(3) and amendment of caveats at length and touches on other interesting points now expanded on.

2. The stress on a caveat not imposing an absolute prohibition if inappropriate is expanded on in Lawrence & Hanson Group Pty Ltd v Young [2017] VSCA 172 to be the subject of a future Blog.

3. Other cases related to whether works on land will create a caveatable interest are –

• Walter v Registrar of Titles [2003] VSCA 122 at [18] – mere work and labour done not caveatable;

• Depas Pty Ltd v Dimitriou [2006] VSC 281 – a builder was found to have at most a contractual right to, and perhaps even an equitable interest in, half a joint venture’s net profit, but not a half interest in the land;

• An equitable lien will give rise to a proprietary and so caveatable interest, a foundational statement on equitable liens being that of Deane J in Hewett v Court (1983) 149 CLR 639 at 668. Caveat cases where no lien was established are: Western Pacific Developments Pty Ltd (in liq) v Murray [2000] VSC 436 and HG & R Nominees Pty Ltd v Caulson Pty Ltd [2000] VSC 126;

• In Popescu v A & B Castle Pty Ltd [2016] VSC 175 Ginnane J held that the only Romalpa clause conferring an equitable interest in land was one entitling the holder to enter upon the land to sever and remove the fixtures, and accordingly removed a caveat based on a clause simply providing that all materials used in a contract remained the supplier’s property until paid in full.

4. As to injunctions against future caveats, or the similar order that the Registrar not register any caveat without its leave or further order see also Westpac Banking Corporation v Chilver [2008] VSC 587, Lettieri v Gajic [2008] VSC 378, Marchesi v Vasiliou [2009] VSC 213; Wells v Rouse & Ors [2015] VSC 533.

  1. 5. The reservation of liberty to apply for costs against the solicitors ties in with an increasing judicial tendency to so order, eg Gatto Corporate Solutions Pty Ltd v Mountney [2016] VSC 752.

1. Caveats in Victoria – the basic requirements

On the evening of 5 July, I gave a paper entitled “Questionable Caveats – To lodge or not to lodge?” at Leo Cussen Centre for Law.  Over 50 persons attended in weather mildly reminiscent of that described in Love’s Labour’s Lost in words commencing “When icicles hang by the wall”.  This indicated the concern in the Victorian profession about this topic.  I intend to deal with Victorian cases as they are decided, but commence with the basic tests under the Transfer of Land Act 1958 s. 90(3).

1.                  Power to lodge a caveat over land is given by s. 89(1) which materially provides –

“(1)  Any person claiming any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise or his agent may lodge with the Registrar a caveat in an appropriate approved form forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or conditionally ….”

A caveat as a “statutory injunction to keep the property in statu quo until the court has an opportunity of discovering what are the rights of the parties” (Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222 at 228).  A caveat or failure to caveat may well also affect priorities between unregistered interests: eg Mimi v Millennium Developments Pty Ltd [2003] VSC 260 at [39].

2.                  The methods of instigating removal of caveats: to lodge certain transfers or dealings for registration (ss. 90(1), (2)); to apply to the Registrar for a notice requiring the caveator to commence proceedings (s. 89A); or to proceed in the Supreme Court or County Court against the caveator for removal, the Court being empowered to make such order as it thinks fit.  This blog will deal with s. 90(3) as cases under s. 89A tend to resolve into full trials in which the caveat issue recedes.

3.                  In Nicholas Olandezos v Bhatha [2017] VSC 234 at [16] Derham AsJ sets out the summary of principles by Elliott J in Sylina v Solanki [2014] VSC 2 at [43].  These with embellishment are:

(1) The court’s power under s. 90(3) is discretionary.

(2) A caveator bears the onus of establishing a serious question to be tried that it has the “estate or interest in land” claimed (Elliott J).  Derham AsJ expands this [17] by noting that the “serious question to be tried test” was often used interchangeably with the “prima facie case test” and that the latter was preferable: this did not mean that caveators must show that it was more probable than not that at trial they would succeed, but must show a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat and the preservation of the status quo pending trial.  As to the interplay between serious question and prima facie case see further Nicholas Olandezos at [18] and the foundational case of Piroshenko v Grojsman [2010] VSC 240 at [22] (Warren CJ).   Ordinarily the final determination of disputed factual issues or of the claimed interest is unnecessary and inappropriate; but that an exception may be where there is no substantial issue of fact: Nicholas Olandezos at [19].

(3) The caveator must also establish that the balance of convenience favours the maintenance of the caveat until trial (Elliott J).  The court (as in an interlocutory injunction case) takes whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”, in the sense of maintaining the caveat in favour of a party who fails to establish his right at trial, or in removing the caveat of a party who succeeds at trial: Piroshenko.

(4) The stronger the case in establishing a serious question/prima facie case, the more readily the balance of convenience might be satisfied.  It is sufficient that the caveator show a sufficient likelihood of success that, in the circumstances, justifies the practical effect which the caveat will have on the ability of the registered proprietor to deal with the property in question in accordance with its normal proprietary rights (Elliott J).

Finally, in Saafin Constructions Pty Ltd v Vidak & Anor [2015] VSC 441 at [21] Warren CJ stated that the two-stage test (ie in (2) and (3) above) “informs, but does not subsume, the exercise of the Court’s discretion”.

Philip. H. Barton

Owen Dixon Chambers West

Wednesday, September 20, 2017