See also per Deane J at 663.
39 Ashburner's Concise Treatise on Mortgages, Pledges & Liens, 2nd ed, 1911, lists in its chapter on Equitable Liens, vendor's lien, purchaser's lien, partner's lien and similar liens, lien of beneficiaries under a trust, liens arising from right of indemnity and liens for expenditure on another's property.
40 The respondent accepts that the lien she asserts bears little or no analogy to well-known categories. She points out that liens are not confined to the outworking of contractual relationships. A lien may also arise to secure rights that have their origins in the principles of equity and unjust enrichment, for example, where the lien secures the right to money stemming from the operation of the principles of subrogation or where money is expended on another person's property (see generally Tyler, Young and Croft, Fisher and Lightwood's Law of Mortgage, 2nd Aust ed, pp58-66).
41 The respondent submits that it was an implied term of the contract embodied in the consent order that possession was not to be surrendered unless and until the judgment sum was paid. Alternatively, it was unconscionable for the appellant to have stood by allowing the proceedings in which it had an indirect interest to be settled on those terms and then to assert an unqualified right as owner to possession of the premises.
42 In my view, neither proposition is established in the present case. The respondent did not acquire any right against the appellant arising out of or in connection with the settlement of the Equity proceedings, let alone one secured by way of lien over the property. The only right acquired from the proceedings was the money judgment against Mr Clee.
43 It is, in my view, unnecessary to decide whether the case is analogous with any existing category of equitable lien or such as to engage the principles lying behind those categories. My strong feeling is that there is no such analogy and that equitable principles do not support a lien whose incident is no more than the right to stay in possession until a debt owing by a third party is paid. But, as indicated, the respondent's case fails at a prior stage. The common law principles as to implied terms in contracts and the equitable principles as to unconscionable conduct are simply not engaged on the facts.
44 In the Equity proceedings the respondent claimed rights against Mr Clee arising under the 1996 cohabitation agreement and under the Property Relationships Act. She did not assert any present interest in the subject property. At its highest, she sought an order in the nature of specific performance designed to compel Mr Clee to do what he promised under the Deed. This was to spend money and exercise powers said to stem from his control of the appellant the effect of which would have been to procure the transfer of the property to the respondent (presumably consistently with the law of trusts). The respondent also claimed damages in the alternative.
45 Mr Clee strongly resisted these claims. He sought to have the Deed set aside on various grounds. He claimed to be destitute. The respondent says that at the time of consenting to the judgment she did not know his financial status (CB 47). It was common ground on the pleadings in the Equity proceedings that the subject property was mortgaged to the hilt.
46 I have indicated my reservations about the assertion that quantification of the judgment sum ($750,000) was the product of valuing the property and no more. The agreement noted by Windeyer J on the previous day suggests otherwise. There was a live claim on the pleadings (based on a clause in the deed) for a valuable motor vehicle and that matter is referred to by Windeyer J in his notes of 4 June 2002.
47 It is not known whether there was an imminent threat to evict the respondent from the former matrimonial home. It may well have been implicit. It is, however, clear that the Equity proceedings were prosecuted by the respondent with the aim of obtaining ownership of the home. The respondent however elected to take a money judgment against Mr Clee along with the dismissal of his cross-claim. All of the asserted rights passed into the judgment (Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507-8, 512).
48 There is no evidence of anything being communicated between the present parties or even between the respondent and Mr Clee to the effect that the respondent would remain in possession until the money was paid. That may have been her intention or hope, but nothing was said on the topic. The respondent's affidavit is silent as to what she and her legal advisers really thought about her prospects of obtaining an order against Mr Clee compelling the transfer of the house in the Equity litigation. The ANZ mortgage was a present reality and Mr Clee was crying poor in his vigorous defence of the proceedings. The failure to discuss any arrangement along the lines of the asserted lien could have been due to oversight or the realisation that Mr Clee was not in a position to compel the transfer of the property at that stage.
49 The respondent felt betrayed when Mr Clee subsequently defaulted and went bankrupt. If the agreement with Mr Clee was a sham or device then the respondent has rights under the law of bankruptcy. She does not appear to have pursued them.
50 The suggested implied term fails for at least three reasons. First, the appellant was not a party to the agreement negotiated and entered into between the respondent and Mr Clee. Secondly, the term is not necessary to give business efficacy to the contract embodied in the consent orders. It would be a pleasant beneficial extra, but that is not the same thing. Thirdly, the term is not something that the officious bystander would be told that it went without saying.
51 The hypothetical bystander would have observed that the appellant was not a party to the proceedings or the consent order. If officious interrogation had commenced, he or she might well have asked embarrassing questions about how the asserted lien could operate consistently with the prior rights of the ANZ Bank as the registered mortgagee.
52 No claim based on unconscionable or unconscientious conduct was pleaded in the Amended Defence, a point squarely taken at trial (CB 30-1).
53 In Hewett , Deane J said (at 668, citations omitted):
[It] is difficult, if not impossible, to formulate any satisfactory statement of the necessary or sufficient circumstances for the implication of an equitable lien which is applicable to any relationship at all (eg the trustee's lien over trust assets; the solicitor's lien over the proceeds of an action). I do not propose to essay that task here. It is adequate for present purposes that I identify what I consider to be the circumstances which are sufficient for the implication, independently of agreement, of an equitable lien between parties in a contractual relationship. Those circumstances have, to some extent, been indicated in what has been said above. They are: (i) that there be an actual or potential indebtedness on the part of the party who is the owner of the property to the other party arising from a payment or promise of payment either of consideration in relation to the acquisition of the property or of an expense incurred in relation to it; (ii) that that property (or arguably property including that property) be specifically identified and appropriated to the performance of the contract; and (iii) that the relationship between the actual or potential indebtedness and the identified and appropriated property be such that the owner would be acting unconscientiously or unfairly if he were to dispose of the property (or, if it be appropriate, more than a particular portion thereof) to a stranger without the consent of the other party or without the actual or potential liability having been discharged.