(a) whether the estate or interest claimed is legal or equitable, or
(b) the quantum of the estate or interest claimed (except as provided in paragraphs 4 and 5), or
(c) how the estate or interest claimed ranks in priority with other estates and interests in the land.
19 Section 74H(1)(b) provides that a caveat does not prohibit the recording of dealings, etc., except to the extent that the recording of such a dealing, etc. "would affect the estate, interest or right claimed in the caveat."
20 Section 74K(2) requires that the court be satisfied that the caveator's claim has, or may have, substance before making an order.
21 These provisions, taken together, make clear that the characterisation and 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 relating to caveats, but goes to the heart and substance of the operation of those provisions. Without the estate interest or right claimed being described, neither the Registrar General nor a person reading the caveat can know, for purposes of s 74H(1)(b), whether a dealing would affect the estate claimed. Nor can the court know, for purposes of s 74K(2), whether the caveator's claim has, or may have, substance.
22 In Multi-Span Constructions No 1 Pty Limited v 14 Portland Street Pty Limited [2002] ANZ ConvR 85, Barrett J said that "[a] caveat is not an ambulatory or flexible means of maintaining a blocking position in aid of whatever interest, if any, the caveator may have from time to time." His Honour thought that it was central to s 74F that there was a notion of a party lodging a caveat asserting an entitlement to a particular estate or interest, with the caveat prohibiting the recording of any dealing affecting that estate or interest.
23 In Depsun Pty Limited v Tahore Pty Limited (1990) ANZConvR 334, McLelland J, as he then was, held that s 74L did not authorise orders amending the provision of a caveat defining the interest claimed, though it may authorise amendment of the prohibitions contained in a caveat.
24 In Jones v Baker [2002] NSWSC 89, Young CJ in Eq said:
Although s 74L of the Act now commands the Court "to disregard any failure of the caveator to comply strictly" with the requirements of the Act and regulation as to form of a caveat, there is a point after which the departure is so far removed that the Court cannot disregard the non-compliance.
25 His Honour thought that the purpose of s 74L was to overcome the effect of the cases cited and applied in Vandyke v Vandyke (1976) 12 ALR 621, that even small technical defects would operate to make a caveat ineffective, so that despite the breadth of its language, s 74L was aimed at curing that mischief and not to compelling the court to treat as valid caveats which completely disregard the provisions as to form contained in the Act and Regulation.
26 In Hanson v Vimwise, Campbell J thought that s 74L did not extend to allowing an expression of enormous generality such as "an equitable interest" to be treated as sufficient to enable some more precise interest which might be encompassed within it to be substituted when construing the caveat.
27 Those authorities, coupled with what I have said about the significance of the role of the description of the estate, interest or right claimed in the operation of Part 7A of the Real Property Act 1900, compel the conclusion that an inadequately described claim cannot sustain a caveat.
28 The insufficiency of a description such as "an equitable interest" is further illustrated by the sub-clause of the Regulation which provides that it is not necessary to state whether an interest is legal or equitable. It would follow, then, that if a caveat claiming "an equitable interest" were sufficient, then so would be one which merely claimed "an interest". But that does not at all describe the nature of the estate or interest claimed. The nature does not mean whether it is legal or equitable, but whether it is an interest as beneficial owner, joint tenant, tenant in common, lessee, chargee, mortgagee or the like.
29 I have given anxious consideration to whether the reference in the caveat, in the statement of additional facts, to the "charging clause", can save the caveat here. However, "charging clause" is capable of more than one meaning. It is true that it might be a clause imposing a charge in the nature of an encumbrance, but it might also be a clause which authorises certain charges or costs or fees to be imposed. A clause in a will, authorising a solicitor executor to charge costs, is often described as a charging clause. The reference to a "charging clause" does not enable "the nature" of the claimed estate to be ascertained.
30 Accordingly, in my opinion, the caveat does not sufficiently describe the nature of the estate or interest claimed, and that is not merely a failure to comply strictly with the requirements of the Act and Regulation relating to the form of caveats, but a substantial failure to comply with those requirements in an essential way, because it makes the Part unworkable in respect of that caveat.
31 In those circumstances, I cannot be satisfied that the caveator's claim has, or may have, substance, and I am bound by s 74K(2) to dismiss the application for an order extending the operation of the caveat.
32 However, the notice of motion includes a claim for such further or other order as the court may see fit. It follows from my conclusion that the relevant provisions of the guarantee and the lease are sufficient to give Circuit Finance an equitable (and caveatable) interest as chargee that Circuit Finance does, in fact, have a caveatable interest, though not one which it has at this stage effectively claimed. As has already been noted the caveat will not expire until 8 September 2005. Mr Redmond has indicated that, within the scope of par 6 of the notice of motion, he would seek leave, if it be required, pursuant to s 74O, to lodge a further caveat. Although express notice of that claim has not been given to Crown & Gleeson, the attitude evinced in the correspondence of 29 August 2005, to which I have referred, indicates that Crown & Gleeson has been prepared to abandon pursuit of the lapsing of the existing caveat. On that basis, Crown & Gleeson could not reasonably claim to be prejudiced by not having notice of an application for leave to lodge a further caveat. In any event, nothing would prevent Crown & Gleeson from serving a lapsing notice in respect of any such further caveat if so advised.
33 Accordingly, I make the following orders:
(1) Order, pursuant to Real Property Act , s 74O, that the plaintiff have leave to lodge a further caveat in respect of the land comprised in register folio 2/W/12958, claiming an interest as chargee pursuant to lease agreement between Jason David Campbell and the plaintiff dated 2 June 2004 and Guarantee of Lessee's Obligations between Jody-Lee Campbell and the plaintiff of the same date.