[23] However, in this case, Branir has a statutory right to apply to the Court to have the caveat removed. Because the effect of a caveat is to operate similarly to an ex parte injunction, the burden of establishing that the caveat should continue rests upon Wallco. If Branir is successful in this application that will bring the proceedings based upon the originating motion to a conclusion and in the circumstances of this case, it is likely to raise either an issue stoppel or res judicata in the proceedings commenced by Wallco. If Branir is unsuccessful, the Court may nevertheless adjourn the originating motion until after it has heard and determined Wallco's action and it may then decide to order that the caveat be removed if Wallco is unsuccessful.
[24] It is not apparent to me that there is anything prejudicial or unfair to Wallco with the course that Branir is taking. Whilst I accept that possible varieties of abuse of process are only limited by human ingenuity (see Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279) and injustice in the context of abuse of process is not limited to the purpose for which the proceedings were brought, but includes a consideration of the consequences of the proceedings for the person invoking the court's power, what usually must be shown is that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious or unjustified trouble and harassment": see Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 at 502 per Deane and Gaudron JJ.
[25] Mr Reeves QC submitted that the commencement of separate proceedings rather than an application by interlocutory summons in Wallco's proceedings (which he acknowledged would not be an abuse of process) would cause embarrassment to Wallco because Branir would be taking control of the proceedings.
[26] I am unable to accept this submission. Branir's application does not have the effect intended for by Mr Reeves QC. It is in any event the Court which controls the proceedings and not the parties. Furthermore, in its proceedings Wallco does not seek to litigate the question of whether the caveat was properly registered over the property. It is questionable whether Branir's application could properly be brought by interlocutory application in Wallco's action.
[27] Moreover, as Mr Maurice QC pointed out, the procedure adopted by Branir is required by O 4.05(b) of the Supreme Court Rules which provides that a proceeding shall be commenced by originating motion where, by or under an Act, an application is authorised to be made to the Court.
[28] It is plain to me that whichever procedure is adopted, the question of the validity of the caveat will have to be determined first. If the caveat is ordered to be removed because Wallco is unable to establish an arguable case that there was a contract formed between the parties which complied with s 62 of the Law of Property Act, the practical consequence is likely to be that Wallco's action will founder. On the other hand, if the application to remove the caveat is unsuccessful, Wallco's action for specific performance will continue to trial.
[29] There are two other matters that I wish to mention. First, it is not uncommon where a caveat has been lodged for the caveatee to commence proceedings first. In those circumstances, it is not the usual practice for the caveator to attempt to seek specific performance by way of counterclaim to the originating motion. Such a course, I think, is not possible: see O 10.01. The usual practice in my experience is for the caveator to seek specific performance by issue of a writ. Secondly, I note that on at least two other occasions, one in this jurisdiction and another in Queensland, a caveatee applied by originating motion after the caveator had sought specific performance by a writ. The two authorities to which I refer are Schouten v Govard Pty Ltd; Govard Pty Ltd v Schouten and Anor [2003] QSC 259 and City Building Contractors (Hiring) Pty Ltd v Roadcon Pty Ltd (Action Nos 278 and 244 of 1987 in this Court). Whilst in neither of those cases was an application made for a stay, and therefore neither case is authority for the proposition that such proceedings are not vexatious, that is some indication that counsel in those cases did not feel that their clients' positions were embarrassed or vexed by the course then taken.
[30] In all the circumstances, I am satisfied that there is no proper basis for ordering that the proceedings be stayed and that the prima facie rule has been rebutted.
[31] I did raise with the parties whether an order ought to be made under O 9.12 for the consolidation of the two proceedings, but neither party sought an order for consolidation. In the circumstances, I do not consider that an order for consolidation is necessary.