BELL, NETTLE, GORDON AND EDELMAN JJ. This is an appeal from a judgment of the Full Court of the Federal Court of Australia dismissing an appeal from the decision of the Supreme Court of New South Wales that the respondent, Mr Pascoe, did not act without "reasonable cause" within the meaning of s 74P(1) of the Real Property Act 1900 (NSW) in lodging and not withdrawing a caveat against dealings over land in respect of which the appellant, Mr Boensch, was the registered proprietor of an estate in fee simple ("the Rydalmere property").
Mr Boensch was granted special leave to appeal to this Court because the appeal raises a question of principle of general importance as to whether property held by a bankrupt on trust for another vests in the bankrupt's trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth). For the reasons which follow, the question should be answered that, provided the bankrupt has a valid beneficial interest in the trust property, the trust property will vest in the trustee in bankruptcy subject to the equities to which it is subject in the hands of the bankrupt. For these purposes, a valid beneficial interest means a vested or (subject to applicable laws as to remoteness of vesting) contingent right or power to obtain some personal benefit from the trust property.
Relevant statutory provisions
The word "property" is defined in s 5(1) of the Bankruptcy Act 1966 for the purposes of that Act as meaning "real or personal property of every description, whether situate in Australia or elsewhere", and including "any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property". The phrase "the property of the bankrupt" is also there defined, in relation to a bankrupt and except for the purposes of s 58(3) and (4) of the Act, as meaning "the property divisible among the bankrupt's creditors" and "any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt".
So far as is relevant, s 116(1) of the Bankruptcy Act 1966 provides that the property of a bankrupt divisible among his or her creditors includes "all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge". Perforce of s 116(2)(a), however, such property does not extend to "property held by the bankrupt in trust for another person".
In substance, s 58(1) of the Bankruptcy Act 1966 provides that, subject to the Act, where a debtor becomes a bankrupt, "the property of the bankrupt" vests in the Official Trustee or any registered trustee who has become the trustee of the bankrupt's estate under s 156A, either forthwith or as soon as the property is acquired by or devolves on the bankrupt. Nevertheless, s 58(2) of the Bankruptcy Act 1966 provides in substance that, where a Commonwealth, State or Territory law requires the transmission of property to be registered and enables the trustee of a bankrupt's estate to be registered as the owner of the property of the bankrupt, although in equity the property vests in the trustee by virtue of s 58, at law it does not so vest until the requirements of the law have been complied with.
Read with the Bankruptcy Act 1966, s 90 of the Real Property Act provides, in substance and so far as is relevant, that the Official Trustee, a trustee, or any other person claiming to be entitled to land subject to the Real Property Act by virtue of the operation of the Bankruptcy Act 1966, or of anything done thereunder, may apply in the approved form to the Registrar-General to be registered as proprietor of that land, and that, on being satisfied that such an applicant is entitled to be registered as proprietor of the land, the Registrar-General may record the applicant in the Register as proprietor.
Part 7A of the Real Property Act provides, inter alia, for the lodgement, lapse and withdrawal of caveats, including "caveats against dealings". In particular, s 74F(1) of the Act provides, so far as is relevant, that any person who, "by devolution of law or otherwise, claims to be entitled to a legal or equitable estate or interest in land" under the provisions of the Act "may lodge with the Registrar-General a caveat prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled". Section 74F(5) of the Real Property Act provides, inter alia, that a caveat against dealings must be in the approved form and specify "the prescribed particulars of the legal or equitable estate or interest ... to which the caveator claims to be entitled". Section 74L provides in substance, however, that failures strictly to comply with the formal requirements for caveats are to be disregarded by a court in determining the validity of a caveat.
Section 74J(1) of the Real Property Act provides in substance that, where a caveat lodged under s 74F remains in force, the Registrar-General shall, upon an application in the approved form by the registered proprietor of an estate or interest in the land described in the caveat, prepare for service on the caveator a notice that the caveat will lapse unless the caveator has, before the expiry of 21 days after the date of service, obtained from the Supreme Court an order extending the operation of the caveat for such further period as is specified in the order or until the further order of that Court, and lodged the order or an office copy of the order with the Registrar-General. Section 74J(2) provides in substance that the applicant must lodge evidence of the due service of the notice on the caveator. Section 74J(4) then provides in substance that, if such evidence is lodged in time and the caveator has not lodged the order of the Court or an office copy of the order with the Registrar-General in accordance with s 74J(1), the Registrar-General shall make a recording in the Register to the effect that the caveat has lapsed, and the caveat so lapses on the making of that recording.
Section 74M(1) of the Real Property Act provides, inter alia, that a caveator may withdraw a caveat. Section 74MA(1) of the Real Property Act provides, so far as is relevant, that any person who is or claims to be entitled to an estate or interest in the land described in a caveat lodged under s 74F may apply to the Supreme Court for an order that the caveat be withdrawn by the caveator.
Section 74P(1) of the Real Property Act provides, in substance and so far as is relevant, that any person who, "without reasonable cause", lodges a caveat with the Registrar-General under s 74F, or refuses or fails to withdraw such a caveat after being requested to do so, is liable to pay compensation to any person who sustains pecuniary loss attributable to the lodging of the caveat, or the refusal or failure to withdraw it.
The facts
At all relevant times, Mr Boensch and his former wife, Sabine Boensch, were registered as joint proprietors in fee simple of the Rydalmere property. Mr Boensch claimed that, in May 1999, he and Ms Boensch reached a matrimonial property settlement under which Ms Boensch agreed to transfer her interest in the Rydalmere property to him for a consideration of $50,000.
Mr Boensch also claimed that, on 23 August 1999, he and Ms Boensch executed a memorandum of trust ("the Memorandum of Trust") in the following terms:
"This is a memorandum of trust created for the benefit of Boensch family with the most important purpose to provide secure means of support to the children of the marriage ... after the divorce of their parents.
The trust property is the land and buildings at [the Rydalmere property].
Sabine Boensch will cause her share of ownership of that land to be transferred to Franz Boensch for him to hold the whole of land in trust as described above.
In due course Franz Boensch will arrange with a solicitor or accountant to prepare a detailed trust document, professionally drafted to give best protection to the children and to ensure favourable tax treatment of income earned by the trust."
The Memorandum of Trust was not stamped until 29 March 2004.
In the meantime, in October 2003, Mr Boensch was served with a bankruptcy notice demanding payment of a judgment debt due to one Michael Costin.
Mr Boensch claimed that, on 18 March 2004, he and Ms Boensch, as settlors, executed a deed of trust prepared by solicitors ("the Deed of Trust"). The recitals to the Deed of Trust stated that the settlors wished to confirm the settlement upon Mr Boensch as trustee in the Memorandum of Trust, constituting "the Boensch trust" (hereafter, "the Boensch Trust"). The First Group Beneficiaries of the Boensch Trust were defined as the children of Mr and Ms Boensch. Mr Boensch was nominated as the appointor.
On 21 March 2004, Mr and Ms Boensch executed a transfer of their estate in fee simple in the Rydalmere property to Mr Boensch. The first mortgagee of the property at the time would not, however, consent to registration of the transfer, and it was not registered.
On 12 July 2005, Mr Boensch lodged the Deed of Trust (with the Memorandum of Trust attached) with the Registrar-General and requested that the Registrar-General record a caveat over the Rydalmere property forbidding registration of any instrument not in accordance with the Boensch Trust. A caveat to that effect was recorded on the title on 17 August 2005.
By then, Mr Costin had filed a Creditor's Petition dated 15 July 2005 in the Federal Magistrates Court seeking a sequestration order against Mr Boensch. On 23 August 2005, the Federal Magistrates Court made that order and appointed Mr Pascoe as Mr Boensch's trustee in bankruptcy. Later that day, Mr Pascoe received advice from counsel that, in counsel's opinion, there were strong prospects of defeating the trust claim (presumably by demonstrating that the Boensch Trust was a sham) or, alternatively, of having any trust set aside (presumably under s 120 or s 121 of the Bankruptcy Act 1966 as a transfer of property made to defeat creditors).
On 24 August 2005, Mr Pascoe had a meeting with Mr Boensch at which Mr Boensch provided a number of documents. They included a copy of the Memorandum of Trust and at least the front page of the Deed of Trust. Mr Boensch told Mr Pascoe that Mr Boensch held the property on trust for his children. Mr Pascoe was not satisfied of the truth of Mr Boensch's claim, which he suspected might be a means of putting the Rydalmere property beyond the reach of his creditors.
Mr Pascoe's usual practice when appointed as a trustee in bankruptcy was to lodge a caveat against dealings at an early stage of the administration over any land held by the bankrupt. Mr Pascoe believed that whatever beneficial interest the bankrupt might have in such land would vest in him as trustee in bankruptcy and that that was enough to support a caveat. Usually, Mr Pascoe used a standard form of words to describe his interest as trustee in bankruptcy: "Legal Interest pursuant to the Bankruptcy Act 1966".
On 25 August 2005, Mr Pascoe lodged a caveat against dealings over the Rydalmere property. In accordance with his usual practice, he claimed a "Legal Interest pursuant to the Bankruptcy Act 1966". The caveat was certified by Mr Pascoe's solicitor, who declared that Mr Pascoe had a good and valid claim to the estate or interest claimed therein.
At the time of lodging the caveat, Mr Pascoe did not know, and could not tell, whether Mr Boensch was insolvent when the Boensch Trust was alleged to have been established in 1999, and there was no suggestion of any imminent transfer of the Rydalmere property. Mr Pascoe believed, however, that, as a trustee in bankruptcy, he needed to lodge his caveat without delay because of the risk of unknown circumstances that could affect title.
On 29 August 2005, Mr Pascoe sent a "Notice to Produce Books of an Associated Entity pursuant to s 77A of the Bankruptcy Act" to Mr Leong of Mr Boensch's solicitors at the time. The notice required the production of documents prior to 12 September 2005. Mr Leong received the letter on about 31 August 2005 but did nothing about it because, he later said, he considered that virtually all of his file relating to the trust was privileged. On 23 September 2005, Mr Pascoe sent a letter to Mr Leong stating that the period under the notice had expired and that he was referring the issue of non-compliance to the Insolvency and Trustee Service Australia ("ITSA") Fraud Investigation Unit for prosecution.
Mr Leong responded on 29 September 2005. He stated, incorrectly as it seems, that the notice had been complied with. He observed that, as Mr Boensch's trustee in bankruptcy, Mr Pascoe was "defacto [sic] trustee of the [Boensch Family] Trust", and he enquired whether Mr Pascoe was prepared to relinquish that position.
On 30 September 2005, Mr Leong provided Mr Pascoe with a photocopy of what he said was his entire file. He did not assert any claim to privilege over it. The documents so produced included a further copy of the Memorandum of Trust dated 23 August 1999 and a copy of an executed transfer of the Rydalmere property from Mr and Ms Boensch to Mr Boensch dated 21 March 2004. This copy of the Memorandum of Trust was differently formatted from that previously provided to Mr Pascoe, and it contained no notation that the execution had been witnessed by a Justice of the Peace. Mr Pascoe thought that to be unusual in the absence of an explanation. His scepticism was increased by another document - a letter from Mr Leong to Mr Boensch dated 17 March 2004 which referred to Mr Boensch wanting to be nominated as a beneficiary of the Boensch Trust. Mr Pascoe's suspicions were further aroused by affidavits affirmed by Mr and Ms Boensch in March 2004, which Mr Pascoe thought may have been prepared to support the claim that the Rydalmere property had been held on trust since 1999, and by the fact that the executed transfer of the Rydalmere property to Mr Boensch was dated 21 March 2004, some five years after the alleged formation of the trust and approximately five months after service of Mr Costin's bankruptcy notice. Mr Pascoe suspected an attempt by Mr Boensch to defeat his creditors.
Meanwhile, on 1 September 2005, ITSA had forwarded Mr Pascoe an email from Mr Boensch of the previous day, in which Mr Boensch referred to himself as being trustee of a trust of a property for his children and stated that the agreement for the trust was made with a memorandum of trust in 1999. The email also referred to a decision made in 2003 to establish a trading trust with Elise Capital Pty Ltd as trustee, and Mr Boensch and his children as beneficiaries. Mr Boensch was the sole director of Elise Capital Pty Ltd. The assertion of two different trusts, and the fact that the Deed of Trust for the Boensch Trust was not executed until 18 March 2004, after the establishment of the "trading trust" in 2003, in circumstances where Mr Costin was pursuing Mr Boensch for payment of the judgment debt, further increased Mr Pascoe's suspicions that Mr Boensch was making statements to defeat his creditors.
On 22 September 2005, Mr Pascoe had another meeting with Mr Boensch. Mr Boensch there produced his Statement of Affairs, in which he answered the question of when he had first experienced difficulty in paying his debts by writing "always". In identifying his secured creditors, he stated that, as trustee of the Boensch Trust, he considered himself to be a joint guarantor of a registered mortgage over the Rydalmere property in favour of the Commonwealth Bank of Australia, and that the loan repayments were made "by the Boensch Trust". In providing details of his company associations, he stated that Elise Capital Pty Ltd was the trustee of the "Boensch Family Trust No 1" and the "Boensch Family Trust No 2". Mr Pascoe was not persuaded by Mr Boensch's claims that he held the Rydalmere property on trust for the Boensch Trust and suggested to Mr Boensch that it would be sensible for him to make a proposal to creditors for the purposes of s 75 of the Bankruptcy Act 1966.
On 23 September 2005, Mr Pascoe received a telephone call from one Stephen Mullette of a firm of solicitors, who said that he was acting for Mr Boensch. Mr Mullette apparently sought to persuade Mr Pascoe to remove the caveat that Mr Pascoe had lodged over the Rydalmere property. On 27 September 2005, Mr Mullette sent a letter to Mr Pascoe which included the following:
"I note that following your appointment, and no doubt as a matter of course, a caveat was lodged on Property Registered in the name of Mr Boensch together with his former wife, Sabine Boensch ... ('the Property').
I am instructed that the Property is held on trust for Mr Boensch's children pursuant to the terms of a memorandum of trust created between Mr Boensch and his former wife on 23 August 1999, and confirmed by Deed of Trust dated 18 March 2004. A copy of these documents are [sic] enclosed.
No doubt you will need to review these documents for your own benefit. However, the terms of the trust are clear, such that the property does not fall within the divisible property in the bankruptcy, and the trustee's interest will not support the caveat lodged on the title.
My client requests that the caveat be withdrawn within 21 days from the date of this letter, in the absence of which he will need to consider his options, including whether to file a lapsing notice at the Department of Lands. I will notify you prior to filing the lapsing notice. If you require longer than the 21 days to form a view on my client's claim please advise how long and I will obtain instructions."
On 11 October 2005, a chartered accountant acting for Mr Boensch and for companies associated with Mr and Ms Boensch, including Elise Capital Pty Ltd and Boensch Pty Ltd, sent various records to an assistant of Mr Pascoe. They included trust deeds dated 18 November 2003 for the "Boensch Family Trust No 1" and "Boensch Family Trust No 2 - Rentals". Mr Pascoe reviewed the deeds but had difficulty identifying the trust assets. That reinforced his doubts as to whether the documents already provided by Mr Boensch were reflective of the true state of affairs.
On 12 October 2005, Mr Pascoe sent a letter to Mr Mullette asking that Mr Boensch provide, by 8 November 2005, any documentation on which he intended to rely to establish the existence of the Boensch Trust and originals of the trust documents. In a further letter to Mr Mullette of the same date, Mr Pascoe asked for 60 days in which to obtain documentation and advice and form a view about the validity of Mr Boensch's claims.
On 17 October 2005, Mr Pascoe, his assistant and his solicitor conferred with counsel. There was some discussion regarding the need to sight original documents. Following the conference, Mr Pascoe sent a letter to his solicitor outlining further action to be undertaken in relation to the "recovery process". At that stage, it was envisaged that, to begin with, they would obtain preliminary advice from counsel on the prospects of success, and it was contemplated that examinations of Mr and Ms Boensch may be necessary.
On 21 October 2005, Mr Pascoe made his first report to creditors. He advised that he was investigating the validity of the Boensch Trust for various reasons including the fact that no action in relation to the trust appeared to have been taken until the debt recovery proceedings taken by Mr Costin were well advanced. Mr Pascoe also referred to the fact that he could not obtain registration as proprietor of the Rydalmere property because of the caveat which Mr Boensch had lodged on the title to protect the interests of the Boensch Trust.
On 24 October 2005, Mr Pascoe sought information from the Commonwealth Bank of Australia concerning the mortgage over the Rydalmere property, and, on 28 October 2005, he sent a letter to Mr Boensch requiring him to produce the original Boensch Trust deed and declarations of trust.
On 31 October 2005, Mr Mullette wrote to Mr Pascoe in part as follows:
"I refer to your recent letters. My client relies upon the trust deed and declaration provided to you previously. If there is any reason not to accept these documents as sufficient to satisfy the trustee of the claim of my client, then please advise. Otherwise I will be advising my client to lodge an application for a lapsing notice on the caveat on the property. My client is not prepared to wait 60 days and does not understand why such a long period would be required.
I note that you have requested certain documents from my client, including original trust documentation. This is not property of the bankrupt estate, and is required for the administration of the trust. My client will provide a certified copy shortly, and is prepared to allow the inspection of the original trust deed at our offices by prior arrangement. ...
I look forward to your advice as to when the caveat will be withdrawn."
On 7 November 2005, Mr Boensch forwarded a certified copy of the Memorandum of Trust dated 23 August 1999 attached to a certified copy of the Deed of Trust dated 18 March 2004. On 9 November 2005, Mr Mullette advised that the original Deed of Trust was available for inspection at his office.
On 11 November 2005, Mr Leong sent a letter to Mr Pascoe advising that he now acted for Ms Boensch, maintaining that the Rydalmere property had vested in Mr Pascoe as Mr Boensch's trustee in bankruptcy, and asking Mr Pascoe to sign a deed providing for Ms Boensch to be appointed as trustee in Mr Pascoe's place.
On 15 November 2005, Mr Mullette sent a letter to Mr Pascoe in which he disputed concerns that Mr Pascoe had expressed in his report concerning the validity of the Boensch Trust. That letter included the following:
"In reality, it seems to us, the only basis upon which the trust may be questioned is if the Memorandum of Trust dated 23 August 1999 is some form of fraud or sham. There is simply no evidence or indication of this and we do not understand the trustee to seriously contest otherwise. If we are incorrect, please let us know.
In the circumstances, then, there can be no question of the entitlement of our client, as trustee of the Boensch Trust to hold the property clear of encumbrances including the caveat which you have caused to be lodged. Our client instructs us that he has given all such information as the trustee required in relation to the establishment of the trust, and yet the report to creditors and our previous communications have given no indication that the caveat will be withdrawn in the immediate future. In the circumstances, our client is no longer prepared to suffer the caveat to remain on title. We will be filing a Lapsing Notice after seven days from the date hereof unless the caveat is withdrawn by that time."
A meeting of creditors was held on 16 November 2005. It included discussion about the possibility of action to recover property from the Boensch Trust and the funding of the action. By that stage, Mr Pascoe had formed the view that, even if Mr Boensch's trust claims were valid, Mr Boensch was likely to have a trustee's right of indemnity out of the Boensch Trust assets.
On about 23 November 2005, Mr Pascoe's solicitor arranged with Mr Mullette for an inspection of the original trust documents. Mr Mullette agreed that no lapsing notice would be issued in the meantime.
On 30 November 2005, Mr Pascoe and his assistant attended at Mr Mullette's office to inspect the original trust documents. Mr Boensch was present and produced the original documents. He assured Mr Pascoe that there was only one original executed Memorandum of Trust. Given the existence of the second executed version of the Memorandum of Trust in Mr Leong's file, that caused Mr Pascoe to have further doubts about Mr Boensch's credibility.
On 5 December 2005, Mr Mullette sent an email to Mr Pascoe's solicitor, copied to Mr Pascoe, which included an attached statutory declaration of Mr Boensch to the effect that there was only one version of the Memorandum of Trust. The email also provided an address for the Justice of the Peace who was said to have witnessed the signatures on the Memorandum of Trust. And it included the following:
"On my instructions and from the documents I have seen, there can be no question that the trust is valid. My client intends filing a lapsing notice shortly. I will seek instructions and notify you beforehand. If you have any reason to suspect that the trust is not exactly what it says it is, I would be happy to take instructions regarding the trustee's concerns."
On 14 December 2005, Mr Leong sent a letter to Mr Pascoe calling for execution of the deed that he had earlier forwarded and stating that, if the deed were not executed and returned by 27 January 2006, proceedings would be instituted. Mr Pascoe did not respond to Mr Mullette's email of 5 December 2005 or to Mr Leong's letter of 14 December 2005. No lapsing notice was served, and no proceedings were instituted.
On 21 February 2006, Mr Boensch sent an email to Mr Pascoe which contained a signed statement of Mr Boensch that included the following:
"Most of the living expenses are provided for by the Trust. I live at the trusts [sic] will. At the moment I do not have any living expenses. My accommodation is at the mercy of the Trust as it is a mutually beneficial arrangement. I provide some form of security for the balance of the property."
On 22 February 2006, Mr Pascoe wrote to Mr Boensch seeking further information about various matters, including the "mutually beneficial arrangement" referred to in Mr Boensch's statement. Mr Boensch responded to the effect that the arrangement concerned only the room that he occupied in the Rydalmere property. He explained that the room was not of a standard that would enable it to be let and that the mutual benefit was that he had a roof over his head and the property appeared to be occupied.
It was arranged that Mr and Ms Boensch should be examined in the Federal Court on 3 May 2006. Ms Boensch attended and was examined on that date. Mr Boensch did not attend, reputedly for medical reasons, and was not examined until March 2009.
Following Ms Boensch's examination, Mr Pascoe received further advice from counsel, to the effect that the underlying transaction concerning the Boensch Trust appeared to have taken place on 23 August 1999 and, that being so, a claim under s 120 of the Bankruptcy Act 1966 would not be available. As to a claim under s 121, however, counsel advised that it was clear from the terms of the Memorandum of Trust of 23 August 1999 that no consideration was paid for the transfer and that it was apparent from the file notes obtained from Mr Leong's file that it was at all times the intention of the bankrupt to retain an equity in the Rydalmere property. In counsel's opinion, therefore, it could be inferred that the terms of the Memorandum of Trust were a "sham", or illusory - not truly reflective of the parties' legal relationship, at least until the Deed of Trust was executed. It followed, in counsel's opinion, that it was appropriate for Mr Pascoe to make an application for orders under s 121 of the Bankruptcy Act 1966 setting aside the Memorandum of Trust and the Deed of Trust. Based on that advice, Mr Pascoe concluded that such proceedings would have good prospects of success.
On 9 June 2006, Mr Pascoe conveyed the substance of counsel's advice to a second meeting of creditors, and, on 19 July 2006, he instituted proceedings in the Federal Magistrates Court for a declaration pursuant to s 121 of the Bankruptcy Act 1966 that the Memorandum of Trust was void as against Mr Pascoe, and for relief under s 120 or alternatively s 121 of the Bankruptcy Act 1966 in respect of the Deed of Trust and the transfer dated 21 March 2004.
On 29 August 2006, counsel sent an email to Mr Pascoe's solicitor advising that principles concerning voluntary assignments discussed in a then‑recent decision of the Federal Court were of relevance to the proceedings against Mr Boensch. Counsel also expressed the view that it was obvious that the Memorandum of Trust was an imperfect gift, and so not effective to convey any equity for the purposes stated, and that the Deed of Trust made on 18 March 2004 was, if anything, a declaration of trust that would clearly fall within the ambit of s 120 or s 121 of the Bankruptcy Act 1966.
Following numerous interlocutory skirmishes, on 6 September 2007 it was ordered that the question of whether the Memorandum of Trust constituted a valid declaration of trust or otherwise created a valid interest in the property be set down for determination as a preliminary question. On 6 December 2007, the Federal Magistrates Court (Federal Magistrate Raphael) concluded that the Memorandum of Trust was not a sham and that it manifested a sufficient intention to constitute a trust.
On 10 December 2007, Mr Boensch's then solicitors, Wright Commercial Lawyers, sent a letter to Mr Pascoe's solicitor formally requesting that Mr Pascoe withdraw his caveat. The letter stated that, if the caveat were not promptly removed, Mr Boensch would apply either for an order for removal under s 74MA of the Real Property Act or for a lapsing notice to be prepared under s 74J(1) of the Real Property Act. The request was expressed to be made without prejudice to Mr Boensch's rights to claim compensation under s 74P(1) of the Real Property Act.
Thereafter, Mr Pascoe received further advice from counsel: that it would be appropriate for him to seek leave to appeal from the orders of the Federal Magistrates Court and also that, even if the Boensch Trust were upheld as valid, Mr Boensch may still have a beneficial interest in the property as a beneficiary of the trust or by reason of his right of indemnity as trustee out of the trust assets, which interest would have vested in Mr Pascoe as Mr Boensch's trustee in bankruptcy. On that basis, Mr Pascoe determined to seek leave to appeal against the Federal Magistrates Court's decision and not to withdraw the caveat until that appeal had been determined.
Although leave to appeal was granted, the appeal was dismissed by the Full Court of the Federal Court (Finn, Dowsett and Edmonds JJ) on 18 August 2008. On the same day, Wright Commercial Lawyers again requested withdrawal of the caveat. Mr Pascoe, however, continued to believe that he had a basis for maintaining his caveat, relying on his applications under ss 120 and 121 of the Bankruptcy Act 1966 and the fact that he had not received any legal advice to the effect that he should now withdraw the caveat.
On 15 September 2008, Mr Pascoe filed an application for special leave to appeal to this Court. On 12 March 2009, Gummow and Kiefel JJ dismissed that application without oral argument, their Honours not being satisfied that any issue of principle could determine the matter or that an appeal would have sufficient prospects of success.
On 13 August 2009, the Federal Magistrates Court rejected an application by Mr Pascoe to amend his application to particularise his claim under s 121 of the Bankruptcy Act 1966, and allowed Mr Boensch's application pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 (Cth) for summary dismissal of the Federal Magistrates Court proceeding on the basis that Mr Pascoe did not have reasonable prospects of success in establishing Mr Boensch's insolvency at the time of the declaration of trust.
On 25 August 2009, Mr Pascoe's solicitor was served with a lapsing notice. She sent it to Mr Pascoe the same day. On 8 September 2009, she sought instructions from Mr Pascoe about whether to make an application to extend the operation of the caveat. Mr Pascoe responded on the same day in the following terms:
"I have thought about this overnight and think we should try to minimise the fronts we are fighting him on by letting the caveat lapse.
He still has the Reg Gen caveat and the mortgage on title. We know that he won't sell. His only option is refinance. It would take a very brave refinancer to lend against the property after doing a title search. I think this is a risk we can bare [sic]."
At that stage, Mr Pascoe considered that such interest as Mr Boensch may have in the Rydalmere property by virtue of his right of indemnity as trustee "would be of limited value", and Mr Pascoe did not want to be a party to another set of proceedings that might ultimately be of little value to creditors. The caveat lapsed on 15 September 2009.
Finally, on 3 November 2009, the Federal Court (Graham J) dismissed Mr Pascoe's application for leave to appeal against the Federal Magistrates Court's refusal of leave to amend and summary dismissal of the Federal Magistrates Court proceeding.
The proceedings at first instance
On 24 May 2012, Mr Boensch instituted proceedings in the Equity Division of the Supreme Court of New South Wales alleging that Mr Pascoe had lodged, and later refused or failed to withdraw, the caveat without reasonable cause, and claiming compensation therefor pursuant to s 74P(1) of the Real Property Act.
On 15 May 2015, Bergin CJ in Eq made orders by consent under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the separate determination of the following three questions:
(1) Did Mr Pascoe lodge Caveat AB721857 over the Rydalmere property without reasonable cause within the meaning of s 74P(1) of the Real Property Act?
(2) Did Mr Pascoe, without reasonable cause within the meaning of s 74P(1) of the Real Property Act, refuse or fail to withdraw the caveat after being requested to do so?
(3) If the answer to question 2 above is "yes", on what date should Mr Pascoe have withdrawn the caveat?
Following Official Trustee in Bankruptcy v Ritchie and Lewis v Condon, the primary judge (Darke J) held that, upon the making of a sequestration order against a bankrupt who holds property on trust, s 58(1)(a) of the Bankruptcy Act 1966 operates in equity to vest such property in the bankrupt's trustee in bankruptcy subject to the trust, and that the trustee in bankruptcy thereby acquires a caveatable interest in the property. It followed that, upon the making of the sequestration order against Mr Boensch, the Rydalmere property vested in equity in Mr Pascoe - thereby conferring a caveatable interest on Mr Pascoe. His Honour further held that, although Mr Pascoe's interest in the property was but equitable and would remain so unless and until Mr Pascoe obtained registration as proprietor of the property, the description of Mr Pascoe's interest in the property in the caveat as a "Legal Interest pursuant to the Bankruptcy Act 1966" was an adequate description for the purposes of s 74F(5) of the Real Property Act.
Applying the two-step test laid down in Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd and followed in Mahendran v Chase Enterprises Pty Ltd, the primary judge concluded that, because Mr Boensch had not proven that Mr Pascoe lacked a caveatable interest (the first step), it could not be said that Mr Pascoe had lodged or maintained the caveat without "reasonable cause" within the meaning of s 74P(1). As his Honour observed, so to conclude was sufficient to resolve the matter, but, in case that conclusion were wrong, his Honour then went on to determine whether, if Mr Pascoe did not have a caveatable interest, Mr Pascoe would nevertheless have had an honest belief based on reasonable grounds that he had a caveatable interest (the second step), and thus reasonable cause to lodge and maintain the caveat within the meaning of s 74P(1) of the Real Property Act.
As to Mr Pascoe's beliefs, the primary judge found as follows:
(1) At all relevant times, Mr Pascoe honestly believed in accordance with his usual practice that, by reason alone of the fact of being appointed the trustee in bankruptcy of the bankrupt Mr Boensch, who was the registered proprietor of the Rydalmere property, he acquired an interest in the Rydalmere property sufficient to support a caveat.
(2) At all relevant times up to 3 November 2009, when Mr Pascoe's application for leave to appeal against the orders of the Federal Magistrates Court was rejected, Mr Pascoe honestly believed on the basis of his investigations and legal advice that there were reasonable prospects that the trust or trusts alleged by Mr Boensch in respect of the Rydalmere property would be held invalid or alternatively declared void as against him under the Bankruptcy Act 1966.
(3) From at least the time of the first meeting of creditors in November 2005, Mr Pascoe honestly believed on the basis of his investigations and legal advice that, even if Mr Boensch held the Rydalmere property on trust for others, Mr Boensch may have a right of indemnity in relation to the Rydalmere property giving Mr Boensch a beneficial interest in the property that, upon the making of the sequestration order, had vested in Mr Pascoe as trustee in bankruptcy and so supported a caveat.
As to the grounds upon which those beliefs were based, the primary judge held as follows:
(1) Mr Pascoe did have reasonable grounds to believe that the alleged trust might not be valid or enforceable against him, and, therefore, that he had reasonable prospects of succeeding on that basis in the Federal Magistrates Court proceedings.
(2) It had not been shown that Mr Pascoe lacked reasonable grounds to believe, at least up to 13 August 2009, that his application under s 121 of the Bankruptcy Act 1966 had reasonable prospects of success.
(3) From May 2009 at the latest, Mr Pascoe had reasonable grounds to believe that Mr Boensch might have had a right of indemnity out of the Rydalmere property, albeit that it was likely to have little value.
It followed, as the primary judge concluded, that Mr Boensch had not established that Mr Pascoe lodged or maintained the caveat without reasonable cause within the meaning of s 74P(1) of the Real Property Act. In the result, the primary judge answered the questions earlier set out: (1) "No", (2) "No", and (3) "Does not arise"; and his Honour ordered that the proceeding be dismissed with costs.
The Full Court proceedings
Mr Boensch appealed to the Full Court of the Federal Court, after the Court of Appeal of the Supreme Court of New South Wales (Leeming JA) had dismissed an earlier appeal as incompetent for want of jurisdiction. The Full Court (Besanko, McKerracher and Gleeson JJ) held that, although the question of whether trust property vests in a trustee's trustee in bankruptcy is not free of difficulty, they, like the primary judge, should follow Official Trustee in Bankruptcy v Ritchie and Lewis v Condon, and, therefore, that, even if Mr Boensch held only a "bare legal interest" in the Rydalmere property (scil without any beneficial interest at all), the property vested in Mr Pascoe upon the making of the sequestration order and conferred on Mr Pascoe a caveatable interest in the property.
The Full Court further held that the primary judge was right to conclude that the description of Mr Pascoe's caveatable interest as "Legal Interest pursuant to the Bankruptcy Act 1966" was adequate. Their Honours considered that the description was apt to cover not only the interest identified by the primary judge (the "bare legal interest") but also a "full legal interest" in the event that any purported trust was held invalid or set aside under s 120 or s 121 of the Bankruptcy Act 1966.
Like the primary judge, too, the Full Court saw no reason to depart from the Beca Developments two-step test of reasonable cause, although their Honours cautioned that the rule may be subject to an exception where a caveator has acted from an ulterior or improper motive. But as their Honours observed, there was no suggestion that Mr Pascoe had acted out of any ulterior or improper motive, and, accordingly, the existence of Mr Pascoe's caveatable interest sufficed for Mr Boensch's claim under s 74P(1) of the Real Property Act to be dismissed.
On the alternative assumption that Mr Pascoe lacked a caveatable interest, the Full Court further held that there was no basis for challenging the primary judge's conclusion that Mr Pascoe had reasonable grounds for considering that he had reasonable prospects of succeeding in the Federal Magistrates Court, and, for that reason, that the primary judge did not err in concluding that Mr Pascoe would have had an honest belief based on reasonable grounds that he had a caveatable interest.
The Full Court stated that it was unnecessary to decide whether the primary judge erred in finding that Mr Pascoe had reasonable grounds from no later than May 2009 to believe that Mr Boensch might have a right of indemnity out of the Rydalmere property, or to decide whether such a right of indemnity comprised property which would have vested in Mr Pascoe sufficient to sustain a caveatable interest, because Mr Pascoe's honest belief based on reasonable grounds that the trust would be set aside or declared void made it difficult to see how a successful challenge to the primary judge's findings about the right of indemnity could affect the outcome of the case. Nonetheless, their Honours added that they saw no reason to interfere with the primary judge's finding that Mr Pascoe honestly believed that Mr Boensch might have a right of indemnity, given that it seemed clear that Mr Boensch had made mortgage payments on the Rydalmere property, and the so-called "mutually beneficial arrangement" was not documented.
On that basis, the Full Court dismissed Mr Boensch's appeal.
The appeal to this Court
By grant of special leave, Mr Boensch appeals to this Court on grounds, in substance, as follows:
(1) The Full Court erred in holding that, upon the making of the sequestration order, any interest in the Rydalmere property that was held by Mr Boensch as trustee of the Boensch Trust vested in Mr Pascoe as Mr Boensch's trustee in bankruptcy, and thus conferred on Mr Pascoe a caveatable interest in the Rydalmere property.
(2) The Full Court erred in holding that Mr Pascoe was entitled for the purposes of ss 74K(1) and 74P(1) of the Real Property Act to claim inconsistent caveatable interests, namely an interest acknowledging, as well as an interest denying, the existence of the Boensch Trust.
(3) The Full Court erred in holding that, because Mr Pascoe had a caveatable interest in the Rydalmere property, it was unnecessary for the purposes of s 74P(1) of the Real Property Act to consider whether Mr Pascoe had an honest belief on reasonable grounds that he held a caveatable interest in the property.
(4) The Full Court erred in holding that, notwithstanding that it may be found that a caveator did not have a caveatable interest in real property, it is sufficient for the purposes of s 74P(1) of the Real Property Act that the caveator had an honest belief based on reasonable grounds that the caveator was possessed of the claimed caveatable interest.
(5) The Full Court erred in finding that Mr Pascoe had an honest belief based on reasonable grounds that he had a caveatable interest in the Rydalmere property.
(6) The Full Court erred in concluding that the interest claimed in the caveat was adequately described.
In the course of oral argument, counsel for Mr Boensch restricted his submissions to a limited range of issues which are dealt with in greater detail in what follows.
As foreshadowed at the hearing on special leave, Mr Pascoe filed a notice of contention maintaining, in substance, that the Full Court ought to have found that Mr Boensch failed to discharge his onus of proving both that Mr Pascoe in fact had no caveatable interest by reason of Mr Boensch's right of indemnity and that Mr Pascoe held no honest belief on reasonable grounds to that effect.
The vesting of property held by a bankrupt on trust for another
In Official Trustee in Bankruptcy v Ritchie, Powell J rejected a contention that, although property held by a bankrupt as trustee for another is property within the meaning of the definition of "property" in s 5(1) of the Bankruptcy Act 1966, it is not property divisible among creditors within the meaning of s 116 of the Bankruptcy Act 1966, and, therefore, does not vest in the bankrupt's trustee in bankruptcy under s 58 of the Bankruptcy Act 1966. After referring to "authorities of long standing" for the "broad and general principle" that a "trustee in a bankruptcy takes only the property of the bankrupt, and takes it subject to all the liabilities and equities which affect it in the bankrupt's hands", Powell J stated:
"Although one cannot regard the matter as one which is completely free from doubt, it seems to me that the better view is that, even if the true position were that Mr Ritchie's [the bankrupt's] rights under the contract were held upon trust for Mrs Ritchie, those rights became vested in the Official Receiver upon the making of the sequestration order, but the benefit of those rights was to be regarded as held ... upon trust for Mrs Ritchie".
In Lewis v Condon, the Court of Appeal of the Supreme Court of New South Wales held that, where land subject to the Real Property Act had been held by a bankrupt on trust for others, a trustee in bankruptcy who was registered as proprietor under s 90 of the Real Property Act also held the land on trust. Leeming JA (with whom McColl JA and Sackville A‑JA agreed) stated:
"Upon the making of the sequestration order ..., s 58 of the Bankruptcy Act 1966 (Cth) applied. That had the effect that such interest as Colleen [the bankrupt] had in the Property vested forthwith in equity in Mr Condon [the trustee in bankruptcy]. Legal title did not vest forthwith in Mr Condon. (Section 90 of the Real Property Act establishes a procedure whereby a trustee in bankruptcy can obtain registration as proprietor of land pursuant to the vesting effected by s 58(2) of the Bankruptcy Act [1966].) Mr Condon ultimately took advantage of that procedure to become registered proprietor of the Property and thereby acquire legal title.
But it is clear law that those statutory vestings do not destroy any trust of which the bankrupt was a trustee. Section 116(2)(a) of the Bankruptcy Act [1966] excludes from the vesting property held by the bankrupt in trust for another person, and s 82 of the Real Property Act excludes notice of trusts on the register. It follows that neither the vesting effected by s 58(1) nor the title created by registration of a transfer of an 'estate in fee simple' to Mr Condon on which he relied destroyed any trusts in respect of the Property."
Subject to one qualification, what was stated by Powell J in Official Trustee in Bankruptcy v Ritchie and by Leeming JA in Lewis v Condon is substantially correct. The one qualification is that property held by a bankrupt on trust for another will not vest in the bankrupt's trustee in bankruptcy if the bankrupt does not have any interest in the property, whether vested or contingent, and no matter how remote (subject to applicable laws as to remoteness of vesting). But that is not to say that either Official Trustee in Bankruptcy v Ritchie or Lewis v Condon was wrongly decided. In each case, it appears that the ultimate decision might have been justified even on the assumption that the bankrupt had no beneficial interest in the trust property in issue.
As was recently demonstrated in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth, a proper understanding of the manner and extent of the vesting of a bankrupt's property under the Bankruptcy Act 1966 in the trustee in bankruptcy is informed by the long history of interaction between courts of law and equity in applying earlier bankruptcy legislation. Significantly for what follows, upon a petition under the Bankrupts Act 1571, commissioners appointed by the Lord Chancellor were empowered to assign all that a bankrupt could "lawfully depart withal" for the benefit of the bankrupt's creditors. Consistently with the requirement to construe bankruptcy statutes beneficially in favour of creditors, the property so assigned included even a "possibility" of right - a term commonly used in bankruptcy statutes, and consistently understood as referring to any contingent interest, as distinct from a mere expectancy. From the outset, however, courts of equity resolved that "the assignees in the commission", who "claimed under the bankrupt", "ought not to be in a better case than the bankrupt himself" and, therefore, that the property passed subject to equities in favour of third parties. Thus, where the bankrupt had no beneficial interest capable of being applied for the creditors' benefit, the assignees could be compelled in equity to settle the property upon trust for - or, in some circumstances, to convey the property to - the cestuis que trust.
Further, although courts of law had traditionally refused to take notice of trusts, during the latter half of the eighteenth century they began to consider the position in equity following assignments in bankruptcy (as well as other principles "established on the other side of the hall" of Westminster). In Scott v Surman, Willes LCJ appealed to "the rule concerning circuity of action" as supplying a rationale for why a trust might limit what vests in the assignees in bankruptcy "even at law": that "it would be very absurd to say that any thing shall vest in the assignees for no other purpose but in order that there may be a bill in equity brought against them by which they will be obliged to refund and account". In accordance with that rationale, the decision of the Court of King's Bench in Winch v Keeley established that property held by a bankrupt on trust for another would not pass at all to the bankrupt's trustee in bankruptcy if the bankrupt had no beneficial interest in the property whatsoever. But if, at the time of bankruptcy, the bankrupt had any form of valid beneficial interest in the property (whether vested or contingent), the whole of the property passed to the bankrupt's trustee, "subject to the rights and equities which would affect it in the hands of the bankrupt".
In some of the older authorities, the nature of the interest sufficient to have that effect was described in terms of the "most remote possibility of interest" or "any thing from which a benefit to the creditors would result" or "might result". Thus, as Littledale J summarised the position in Carvalho v Burn:
"It is quite clear that the assignment [in bankruptcy] vested in the assignees all the personal estate and effects in which the bankrupt was, at the time of the act of bankruptcy, beneficially interested (with the statutory exceptions, [6 Geo IV c 16, ss 81, 82, 86, 112]); but as the object of the assignment of the bankrupt's property is, that it may be applied to the payment of his debts, it is equally clear that nothing passed by it which the bankrupt then held in trust for others, or in which he had only a mere legal interest, Scott v Surman, Winch v Keeley, Carpenter v Marnel, Gladstone v Hadwen; but if, at the time of the act of bankruptcy, the bankrupt possessed a possibility of interest, from which a benefit to his creditors might result, if he had the legal interest in any property, and it was uncertain whether he would hold any part of that property, or if any, what part, as a trustee for others, the whole would pass by the assignment: it could not remain in the bankrupt subject to be transferred on a future contingency: and if it did pass to the assignees, it could not be divested out of them in whole or in part by the happening of events subsequent to the act of bankruptcy, which might make them hold the whole, or some specific part as trustees merely; for there is no provision in the statute which takes a right out of the assignees, that has once been vested in them."
It should be understood, however, that such terms bore a different meaning at that time. According to current acceptation, terms such as "the most remote possibility of interest", or anything from which a benefit to creditors "might result", might be thought to suggest the mere possibility that the bankrupt may have or acquire a beneficial interest in the property. But, consistently with the historical usage outlined above, they are properly to be understood as describing a contingent beneficial interest which is extant and valid; and as recognising that such an interest is capable of being immediately realised for the benefit of a bankrupt's creditors, even if it is likely to vest after the period of bankruptcy. Accordingly, where the bankrupt has such a contingent interest - or, a fortiori, a vested beneficial interest - in property, the property itself will pass in bankruptcy, subject to the equities in favour of third parties. By contrast, where the bankrupt has but a mere expectancy, or a "possibility of becoming entitled in the future to a proprietary right", no property can pass unless and until it is acquired by or devolves upon the bankrupt during the period of bankruptcy, as indeed this Court held in Caraher v Lloyd. As the Court of Exchequer in effect held in Parnham v Hurst, nothing passes where there is merely the forensic possibility of a beneficial interest in the bankrupt being established.
At the same time, it is also important to keep in mind that a bankrupt trustee's vested or contingent beneficial interest in trust property sufficient for the property to pass to the bankrupt's trustee in bankruptcy may arise either under the express terms of the trust or aliunde, including by reason of the bankrupt trustee's right to be indemnified out of the trust property for obligations incurred in the bankrupt's capacity as trustee. Farwell LJ in effect summarised the position in Governors of St Thomas's Hospital v Richardson, under provisions of the Bankruptcy Act 1883 which were relevantly no different from the applicable provisions of the Bankruptcy Act 1966, thus:
"[T]he property of the bankrupt does not include property held by the bankrupt on trust for any other person. But it does include property held by the bankrupt on any trust for his own benefit, and when ... he holds property to secure his own right of indemnity in priority to all claims of any cestui que trust, and the retention of such property is necessary to give full effect to such right, it follows that the property, ie, the legal estate, and right to possession vest in the trustee in bankruptcy to the extent to which they were vested in the bankrupt. The law is stated by Jessel MR in Morgan v Swansea Urban Sanitary Authority, where he says, 'Under the Bankruptcy Act[], where a trustee has no beneficial interest, the legal estate does not pass; but where he has it does pass,' ... The true test is, Can the trustee be compelled to convey the estate to the cestui que trust? If he can, then it does not pass to his trustee in bankruptcy, but if he cannot, then the property does pass."
Where, therefore, property is held by a bankrupt on trust for another, then, upon the making of a sequestration order, the property will pass to the bankrupt's trustee in bankruptcy (subject to the trust), unless the bankrupt has no valid beneficial interest in the property. And, ordinarily, the burden of proving the absence of such a beneficial interest is on the bankrupt.
As has been seen, the position is complicated where the property is subject to a statutory registration scheme, such as the Torrens system. Notwithstanding s 58(1) of the Bankruptcy Act 1966, a legal estate or interest in land subject to the Real Property Act cannot pass to the bankrupt's trustee in bankruptcy unless and until the trustee in bankruptcy applies under s 90 of the Real Property Act to be, and is, registered as proprietor of the land. Nevertheless, so long as the bankrupt has some beneficial interest in the property, then, upon the making of a sequestration order, the estate or interest of which the bankrupt is registered proprietor vests forthwith in equity in the trustee in bankruptcy, perforce of s 58(2) of the Bankruptcy Act 1966, and the trustee in bankruptcy may then apply to be registered as legal proprietor of that estate or interest in accordance with s 90 of the Real Property Act. But of course, just as before, so, too, after the trustee in bankruptcy is so registered as proprietor, he or she will hold the estate or interest subject to the equities to which it was subject in the hands of the bankrupt. And that is so notwithstanding the principle of indefeasibility embodied in s 42 of the Real Property Act because, plainly enough, the provision in that Act for a trustee in bankruptcy to become a registered proprietor cannot have been intended to supply a means to circumvent limitations on the property divisible among creditors under the Bankruptcy Act 1966.
The grounds for a caveat
In this matter, the primary judge and, on appeal, the Full Court approached the matter on the basis that, even if Mr Boensch did not have any beneficial interest in the Rydalmere property, the fact that he was the registered proprietor of the property at the time of commencement of his bankruptcy was sufficient to confer a caveatable interest in the property on Mr Pascoe. To that extent, their Honours overstated the position. As has been seen, if the fact were that Mr Boensch did not have any valid beneficial interest in the Rydalmere property, no interest in the property could have vested in equity in Mr Pascoe. For the reasons that follow, however, that overstatement was devoid of relevant consequence.
Mr Pascoe's interest by reason of Mr Boensch's right of indemnity
As counsel for Mr Boensch accepted before this Court, the onus was on Mr Boensch to establish that he lacked any valid beneficial interest in the Rydalmere property. At first instance, Mr Pascoe pleaded that such an interest arose from Mr Boensch's right of indemnity, and Mr Pascoe referred to that right in his affidavit filed some 15 months before trial. Whether the right in fact existed was then squarely identified as an issue in Mr Pascoe's written opening submissions; it was described by the primary judge at the start of the trial as the "one issue that does leap out a little"; and the principles and evidence on which it depended were discussed at length in counsel for Mr Pascoe's closing address and Mr Pascoe's written closing submissions.
That evidence included Mr Boensch's own admission that he had incurred significant expenses in his capacity as trustee for the Boensch Trust, in the form of "bank payments, loan payments, the council rates, [and] every other cost ... required" for the trust. In the absence of any suggestion that they were not properly incurred, such expenses would ordinarily entitle Mr Boensch to be indemnified out of the trust property, as counsel for Mr Boensch acknowledged before this Court.
From the outset, Mr Boensch sought to neutralise the effect of the right of indemnity by relying on his so-called "mutually beneficial arrangement" with "the trust". It will be recalled that his letter of 22 February 2006 identified that arrangement as only, in effect, permitting him to occupy a room in the Rydalmere property which was described as unfit to be let. In his initial affidavit at trial, he deposed that that letter "fully explained" the arrangement. As will be apparent, however, much about the arrangement alleged was unexplained, including, most obviously, the person with whom, and in what form, it was made.
In turn, the legal basis upon which the arrangement is supposed to have prejudiced Mr Boensch's right of indemnity, either wholly or in part, was and remains almost entirely unexplained. Neither of the trust instruments purported to deprive Mr Boensch of his right of indemnity on the basis of any such arrangement. If, as was posited in submissions for Mr Boensch, the alleged arrangement was made with himself only (purporting to act in different capacities), then it would lack "intrinsic validity" in contract and be "of itself inoperative" as a waiver. Assent by Ms Boensch was also posited, but not supported by reference to evidence or any account of why her status as parent authorised her to deal with property held on trust for her children. The alleged arrangement was not said to be a civil act in which the infant beneficiaries themselves had participated for their own benefit. And Mr Boensch did not allege that his occupation of the trust property without paying rent constituted a breach of trust or fiduciary duty by him - the correctness of which might have depended on the scope of his power to allow rent‑free occupation by the infant beneficiaries.
In any event, Mr Boensch did not attempt to discharge his onus of proving that he had no right of indemnity because, after the taking of accounts, the value of benefits obtained under the alleged arrangement would be equal to or exceed the total of the trust expenses incurred by him. On Mr Boensch's evidence, the sole benefit obtained under the arrangement was occupation of a room incapable of being let, and, although presumably within his power and undoubtedly in his interest in these proceedings, Mr Boensch produced no accounts of his benefits and expenditure as trustee. In those circumstances, it cannot be said that a court of equity would have compelled Mr Boensch to transfer title to the property to the beneficiaries of the Boensch Trust, had they been sui juris and so required, at least unless and until there had been a final accounting. It follows that Mr Boensch's reliance on the alleged arrangement to controvert his right of indemnity is without merit.
We agree with the joint reasons of Kiefel CJ, Gageler and Keane JJ with respect to the responsibility of intermediate appellate courts when considering whether to deal with all grounds of appeal. We also agree with their Honours' conclusion that, in the circumstances of this litigation, there is no criticism of the Full Court for not addressing an issue which it did not consider to be dispositive of the controversy before it. This is a case in which "[n]o remitter will be necessary". Given that the issue was pleaded and at no point abandoned, its determination by this Court on the basis of the available evidence cannot involve any denial of procedural fairness.
On the basis of such evidence as was adduced at first instance, there was and is no reason to doubt that Mr Boensch had a beneficial interest in the Rydalmere property - to the extent of his right to retain the property as security for satisfaction of his right of indemnity as trustee. By reason of that beneficial interest, an estate in the property vested forthwith in equity in Mr Pascoe pursuant to s 58 of the Bankruptcy Act 1966, subject to a subtrust on the terms of the Boensch Trust but permitting Mr Pascoe to exercise the right of indemnity. On that basis, Mr Pascoe was entitled to be registered as proprietor of the Rydalmere property in accordance with s 90 of the Real Property Act, and that was a sufficient basis to sustain his caveat.
Mr Pascoe's beliefs about the validity of the trust
Regardless of the position in fact, it is also apparent that Mr Pascoe had good reason to believe, as he did, that the Boensch Trust was not validly constituted. Much that emerged from Mr Leong's file remained, and still remains, unexplained. Of course, had the Memorandum of Trust been a sham, or not manifested a sufficiently certain intention to constitute a trust, an estate in the Rydalmere property would necessarily have vested in equity in Mr Pascoe upon the making of the sequestration order.
Contrary to the Full Court's reasoning, however, the possibility that the trust might have been set aside under s 120 or s 121 of the Bankruptcy Act 1966 would not have been sufficient to sustain the caveat. In Amaca Enterprises Pty Ltd v Official Trustee in Bankruptcy, O'Bryan J held that an alleged right under s 121 of the Bankruptcy Act 1966 to bring an action to set aside a transfer of land justified declining to order the removal of a caveat by the trustee in bankruptcy. But that proposition was disapproved in Martin v Official Trustee in Bankruptcy, in which Green CJ noted observations in this Court that only a legal or equitable interest in land can sustain a caveat and that a mere statutory right to take steps to avoid a transaction does not confer such an interest, and concluded that rights under ss 120 and 121 of the Bankruptcy Act 1966 do not immediately confer a caveatable interest. As his Honour held:
"The interest asserted must be in existence at the time of the lodgment of the caveat. The assertion by a caveator who at the time of the lodgment of the caveat does not have an estate or interest in the land that he has commenced proceedings which may result in such an interest being vested in him does not disclose a sufficient caveatable interest".
That reasoning accords with principle and has since been followed in first-instance decisions in Tasmania, New South Wales, Western Australia and Victoria. There is no reason why it should not be adhered to.
That is not to say, however, that where, as here, there are reasonable grounds to conclude that a bankrupt has an extant beneficial interest in property held by the bankrupt on trust for another, the trustee in bankruptcy may not lodge a caveat to protect the interest of the trustee in bankruptcy pendente lite. For reasons later to be explained, provided the caveat is lodged on the basis of an honest belief on reasonable grounds that the bankrupt has an extant beneficial interest in the property (including a beneficial interest by way of right of indemnity), the trustee in bankruptcy will be warranted in lodging a caveat, as Mr Pascoe did in this case.
The interest claimed in the caveat
As was earlier noticed, the interest which Mr Pascoe claimed in the caveat (in accordance with his usual practice) was a "Legal Interest pursuant to the Bankruptcy Act 1966". The primary judge found that, read as a whole, the caveat thus claimed whatever interest in the land vested in Mr Pascoe by virtue of s 58(1)(a) of the Bankruptcy Act 1966. His Honour put the matter as follows:
"The expression 'legal interest pursuant to the Bankruptcy Act 1966' is apt to describe an interest that arises as a matter of law pursuant to statute. I would not read it as expressing an intention to confine the claim to only a legal interest in the property as opposed to an equitable interest in the property. The intention seems to be to claim whatever interest arises by virtue of s 58(1)(a). The claimed interest is, in my view, adequately described in the caveat. I note further that it is not necessary, in order to comply with the requirements for particularisation of the estate or interest claimed, to specify whether the estate or interest is legal or equitable (see clause 7 and Schedule 3 to the Real Property Regulation 2003 (NSW), in force when the caveat was lodged)."
His Honour added that, if he were not correct about that, the assertion of a legal, as opposed to an equitable, interest could properly be regarded as a technical deficiency, and that it would not necessarily follow that the caveat was lodged or maintained without reasonable cause.
Generally speaking, it is to be doubted that the expression "Legal Interest pursuant to the Bankruptcy Act 1966" in a caveat is adequate to describe an equitable estate vested in a trustee in bankruptcy pursuant to s 58(2) of the Bankruptcy Act 1966 by reason of the bankrupt's right of indemnity. Although a caveat against dealings is not required to specify whether the interest claimed is legal or equitable, and although, semasiologically, the word "legal" may be capable of extending to rights recognised only in equity, use of that word in this context is apt to mislead someone reading the caveat; even accepting that he or she is not bereft of powers of inference or access to legal advice. More to the point, the expression as a whole does not afford the Registrar-General, or anyone else, sufficient information to determine whether any other dealing with the property would adversely affect the interest claimed. For that reason, as Brereton J observed in Sutherland v Vale, the "description of the nature of the estate, interest or right claimed by a caveator is more than a mere formal requirement of the provisions of the Act, but goes to the heart and substance of their operation". It may be accepted that a court would not ordinarily make an order under s 74K(2) of the Real Property Act extending the operation of a caveat which employed that description.
It does not follow, however, that Mr Boensch was entitled to compensation under s 74P(1) of the Real Property Act because of the terms of Mr Pascoe's caveat. For, as Clarke JA concluded in Beca Developments, a mere technical deficiency in the statement of the interest claimed does not of itself demonstrate the absence of a "reasonable cause" to lodge and not withdraw the caveat, at least where the caveat does not "overstate the interest sought to be protected". Here, if anything, the description used in Mr Pascoe's caveat understated the extent of his interest - an estate in fee simple albeit in equity - and any prejudice to Mr Boensch from the inadequate description of that interest might have been remedied by the prompt service of a lapsing notice.
The Beca Developments test of reasonable cause
In Beca Developments, a majority of the Court of Appeal of the Supreme Court of New South Wales embraced Wootten J's conclusion in Bedford Properties Pty Ltd v Surgo Pty Ltd concerning the former s 98 of the Real Property Act that:
"the foundation for reasonable cause must be, not the actual possession of a caveatable interest, but an honest belief based on reasonable grounds that the caveator has such an interest".
Clarke JA, who delivered the leading judgment in Beca Developments, with which Kirby P relevantly agreed, noted that "a caveat operates in much the same manner as does an injunction" and that this analogy supported the view that "in enacting s 98 the legislature intended to set up machinery for compensating persons who suffered as a consequence of a caveator, in effect, abusing the statutory power to lodge a caveat". It followed, in his Honour's view, that "Wootten J was correct to give to the phrase 'without reasonable cause' the same meaning as had been attributed to the like phrase in the tort of malicious prosecution", albeit that tort, unlike an award under s 98, also depended on proof of malice. Clarke JA proceeded to observe that, while s 74P(1) of the Real Property Act extended compensation to cases where a person procures the lapsing of a caveat or refuses or fails to withdraw a caveat upon request, as then drafted it also added another pre-condition by the word "wrongfully", which his Honour construed as in effect requiring an abuse of the statutory procedure "for oppressive and other reasons". Accordingly, his Honour concluded that, in order to sustain a claim for compensation under s 74P(1)(a), the claimant must establish that the caveator had neither a caveatable interest nor an honest belief based on reasonable grounds that the caveator had a caveatable interest (and thus "without reasonable cause"), and that the caveator acted deliberately, knowing that he or she had no interest in the land (and thus "wrongfully").
Although s 74P(1)(a) was amended to remove the word "wrongfully", the former requirement - described in these proceedings as the "two-step" Beca Developments test - has continued to be applied. This continued approach is consistent with Parliament's aim to preserve the existing law although removing the word "wrongfully". As was observed in the Explanatory Note, the goal of the amendments was to have "the effect of reinstating the law that applied before 1986 when certain amendments to the Act relating to caveats were enacted". That earlier law, on "reasonable cause", was what had been explained and clarified in Beca Developments.
Before the Full Court, Mr Boensch accepted that he had to satisfy that two-step Beca Developments test. Before this Court, he sought to argue that Beca Developments was wrongly decided; that the test under s 74P(1) of the Real Property Act is whether lodging and maintaining a caveat was objectively reasonable in all the circumstances, including the consequences of the caveat in preventing dealings with the property; and, accordingly, that whether the caveator in fact has a caveatable interest is not dispositive and whether the caveator had an honest belief in what was claimed in the caveat is irrelevant.
The argument should be rejected. The starting point is the text of s 74P(1) of the Real Property Act, which in terms directs attention to whether the "cause", not consequence, of an act or omission is "reasonable", not necessarily right upon a proper application of the law to the facts. Moreover, a caveat against dealings has long been conceived of as "a statutory injunction to keep the property in statu quo until [the caveator's] title shall have been fully investigated", and, although that conception has been criticised, it serves only to emphasise that a person may reasonably lodge and maintain a caveat although investigation reveals that he or she lacked an interest. True it is that, ordinarily, the price of a quia timet injunction is an undertaking as to damages, and that such an undertaking is ordinarily enforceable regardless of whether the claimant had an honest belief on the basis of reasonable grounds in the strength of his or her cause. But the more limited protection afforded by s 74P(1) of the Real Property Act against the financial consequences of a misdirected caveat may readily be explained on the basis that the holder of an unregistered interest in land under the Torrens system is more vulnerable to inconsistent dealings, and so permitted reasonably to lodge and maintain a caveat without incurring liability to pay compensation, at least unless and until a lapsing notice is served and extension sought under ss 74J and 74K of the Real Property Act. As Kirby P observed in effect in Beca Developments, if it were otherwise, s 74P(1) would have an undesirable chilling effect on the proper lodgement of caveats that are honestly and reasonably believed to be necessary to protect legitimate interests; and, given the ready capacity of a claimant to have an unwarranted caveat discharged pursuant to s 74J or s 74MA of the Real Property Act, it is unlikely that Parliament intended that s 74P(1) should prevent the lodgement of caveats honestly and reasonably believed to be valid. Furthermore, the fact that the New South Wales Parliament enacted s 74P(1) in relevantly the same terms as the former s 98 of the Real Property Act, after s 98 had been construed in Bedford Properties as requiring no more than an honest belief based on reasonable grounds, provides "a valuable presumption as to the meaning of the language employed".
The Beca Developments test has been substantially followed in New South Wales and by intermediate appellate courts in other States, and nothing which Mr Boensch has submitted in this matter gives cause to depart from it. It is, however, unnecessary to determine whether, if that test is not satisfied, a person may ever be liable under s 74P(1) of the Real Property Act by reason of acting with an ulterior motive or where the only interest supporting a caveat is de minimis in terms of legal content or economic value. It was neither suggested that Mr Pascoe acted for an ulterior purpose nor demonstrated that his equitable estate was de minimis, even after accounting for the rights under the Boensch Trust.
Finally, contrary to Mr Boensch's suggestion, Mr Pascoe did not "claim" any "inconsistent interests" by justifying his lodgement and maintenance of the caveat on the basis of his alternative beliefs that the Boensch Trust was void and that, were it not, Mr Boensch would enjoy a right of indemnity.
Conclusion and orders
For the reasons earlier stated, there is no reason to doubt that, upon the making of the sequestration order, the Rydalmere property vested in equity in Mr Pascoe by reason of Mr Boensch's right of indemnity and, therefore, that Mr Pascoe had a caveatable interest in the property. Nor is there any reason to doubt that Mr Pascoe honestly believed on reasonable grounds that the property so vested, either on the basis that the trust was void or on the basis of Mr Boensch's right of indemnity. On the facts as found, Mr Pascoe did not lodge or refuse to withdraw the caveat without reasonable cause.
It follows that the appeal should be dismissed with costs.