BETWEEN : COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Caveat - Application for removal under Transfer of Land Act s 138 - Caveatable interest - Form of caveat - Serious question to be tried - Balance of convenience

Transfer of Land Act 1893 s 138, s 40

Commercial Bank of Australia Ltd v Schierholter [1981] VicRp 32; [1981] VR 292

Custom Credit Corporation Ltd v Chellaston Pty Ltd & Anor, unreported; SCt of WA; Library No 930340; 10 June 1993

Duncan v Adriopoulos, unreported; SCt of VIC; BC9401231; 20 April 1994

Easton v Ardizzone [1978] 2 NSWLR 233

Eng Mee Yong v Letchumanan [1980] AC 331

George Bevan Pty Ltd v Robert Patrick Pty Ltd (1987) NSW ConvR 55

Heritage Properties (No3) Pty Ltd v Coles Supermarkets Australia Pty Ltd (1993) Q ConvR 54

Hooper v Australia & New Zealand Banking Group Ltd (1996) ANZ ConvR 400

Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

KT & T Developments Pty Ltd v Tay & Ors, unreported; SCt of WA; Library No 950020; 23 January 1995

Mason v Merrett, unreported; SCt of WA; Library No 7701; 12 June 1989

Mudgee Nursing Home Pty Ltd v T & A Investments Pty Ltd, unreported; SCt of QLD; 15 September 1986

R & I Bank of Western Australia Ltd v Lavery, unreported; SCt of WA; Library No 930636; 24 November 1993

Re Benmar Properties Pty Ltd; Makucha's Caveat, unreported; SCt of QLD; BC9102490; 24 October 1991

Re Clement's Caveat [1981] Qd R 341

Sindoro Pty Ltd v Koen, unreported; SCt of NSW; 11 June 1982

Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (Australia) Pty Ltd, unreported; SCt of NSW; 18 May 1990

Wildschut v Borg Warner Acceptance Corporation (Aust) Ltd (1987) NSW ConvR 55

Wright v Bridge Wholesale Acceptance Corporation (Australia) Pty Ltd [1993] VicRp 34; [1993] 1 VR 502

1 MILLER J: The defendants by summons dated 2 September 1999 seek an order pursuant to the provisions of s 138 of the Transfer of Land Act 1893 that caveat number G904121C lodged by the solicitors for the plaintiff and dated 17 September 1998, which caveat was lodged against the property known as 69 The Esplanade South Perth Western Australia (Lot 105 on Diagram 83064 V1947 F 345) be removed. In the alternative the defendants seek a mandatory injunction against the plaintiff compelling an immediate withdrawal of the caveat; and, by way of further alternative, that in return for the plaintiff's immediate withdrawal of its caveat, the defendants provide a second mortgage to the plaintiff to secure the sum of $1.5 million over any or all of the properties of the various defendants, but not including the property at 69 The Esplanade South Perth.

2 By affidavit sworn 6 September 1999 the first named second defendant deposed to the essential facts relevant to the matter. They are that the plaintiff has sued the defendants for the sum of $2,916,770.89, which sum is alleged to be secured by several securities including mortgages, equitable charges and interlocking guarantees provided by each of the defendants. The sixth defendant is alleged to have provided an equitable charge over all of its property including the property at 69 The Esplanade South Perth ("the property") in or about the month of November 1993 which charge secured the sum of $6,079,400. The plaintiff's caveat over the property is said by the first named second defendant to be "for the value of $6,079,000", although in point of fact the caveat claims an interest in the property by virtue of "an Equitable Mortgage made 24 November 1993 between the Caveator as mortgagee and the Registered Proprietor as mortgagor stamped to secure $6,079,400". The first named second defendant claims to have repaid to the plaintiff in excess of $4 million and contends that "the quantum claimed in the plaintiff's caveat is therefore incorrect". The validity of a number of equitable charges and mortgages, including the charge described as "the Selec Charge" is being challenged in the proceedings in this Court on the basis that they were procured under "economic duress and unconscionable conduct on the part of the plaintiff, and alternatively that they lacked corporate benefit".

3 The property is presently encumbered by a mortgage granted in favour of St George Bank Ltd ("the St George Bank Mortgage") which mortgage was registered on 22 October 1997. Because of its imminent expiration the first named second defendant sought to re-finance the property in or about December 1998 and thereupon discovered the plaintiff's caveat, which through his solicitor he invited the plaintiff to withdraw by reason of various objections which were set out in correspondence. That invitation was rejected and various negotiations took place between the parties in an attempt to resolve the matter, but without success. The St George Bank Mortgage expired on 22 February 1999 requiring a payment of $2,042,000.82 to discharge it. Judgment was entered for the St George Bank against the defendants or some of them on 25 August 1999 by reason of the inability of the first named second defendant to re-finance the property, and the result is that unless the defendants between them and/or the first named second defendant are able to re-finance the property before 17 September 1999 the second defendants will be forced to vacate the property which is the private residence of them. The first named second defendant deposes to the fact that unless the plaintiff's caveat is removed from the property and he is able to re-finance that property many of his developments and projects will be jeopardised and he will lose great sums of money. He deposes that the plaintiff will, on the other hand, suffer no prejudice from the caveat being lifted, as it has more than sufficient security in properties of the various defendants which security is valued at $6,150,000. Further, the property is said to have a recent sworn valuation of $4 million, so that with the discharge of the St George Bank Mortgage there would be an equity of $1.8 million in the property. If (it is said) the plaintiff was allowed to retain the caveat over the property it will be holding a total equity security of approximately $8 million.

4 The first named second defendant complains that the plaintiff did not lodge the caveat in question until six years after the claimed basis for the caveat arose and shortly after the issue of a writ in these proceedings. He contends that because of this fact he was led to believe that the plaintiff had abandoned its rights over the property and he points out that he was allowed to freely deal with the property allowing third parties to take interests in it. It is said that the property has been mortgaged four times since the Selec Charge was signed. It is contended that the caveat was lodged without reasonable cause and for an ulterior purpose, namely, to gain an advantage for the plaintiff in the proceedings in this Court by causing to the defendants "immense financial difficulties".

5 The affidavit of the first name second defendant is answered by an affidavit of Leon Paul Chapple sworn 9 September 1999. Mr Chapple is the senior manager employed by the plaintiff in the credit management unit of the plaintiff at 150 St Georges Terrace Perth. He has deposed to the fact that the plaintiff commenced proceedings in this Court on or about 17 August 1998 claiming $2,916,770.89 in terms of certain securities which the defendants had provided to the plaintiff to secure the first defendants indebtedness to the plaintiff. Amongst those securities was an equitable mortgage dated 24 November 1993 ("the Selec Mortgage") whereby the fifth defendant charged and mortgaged all its assets and property in favour of the plaintiff. On 5 May 1998 and 3 July 1998 the plaintiff made demand of the fifth defendant for payment of moneys owing pursuant to the Selec Mortgage and various other securities and on 5 May 1998 and 3 July 1998 demands were made on the first defendant. All attempts to resolve the matter were unsuccessful and it is claimed for the plaintiff that if the caveat over the property is removed the plaintiff will lose any priority that it might have over the property and the Registrar of Titles will be able freely to register dealings with the land to the prejudice of the plaintiff and in breach of the Selec Mortgage. Mr Chapple contests the valuation for security purposes of the land of the defendants valued at some $4 million and contends that on its own valuations the value of the security property is far less than the first named second defendant claims. It is further contested that the plaintiff allowed the defendants freely to deal with the property and for third parties to take interests in the property, reference being made to cl 9.1(g) of the Selec Mortgage which would make that conduct an act of default rendering the secured moneys immediately payable without demand or notice. The plaintiff further denies that the caveat was lodged for any ulterior purpose, contending that the plaintiff lodged the caveat early in the proceedings with no knowledge of the defendants liability to St George Bank and without them knowing the defendants current financial position. It contends that the first time the plaintiff became aware of the extent of the defendants involvement with the St George Bank was not until 24 December 1998.

6 The defendants argue under a number of heads why the plaintiffs caveat should be removed. Firstly, it is said that the caveat is legally defective because it fails to correctly disclose the quantum claimed, specifying the interest claimed at $6,079,400 when in fact the plaintiff's statement of claim against the defendants seeks only $2,916,770.89 as at 2 July 1998. It is argued that as the defendants have paid in excess of $4 million of the $6,079,400 which was the subject of the Selec Charge, the caveat is defective for mis-stating the quantum of the amount claimed and should therefore be removed. The plaintiff counters this argument by contending that there is no requirement for the caveat to state the quantum of the plaintiff's claim at all: the only requirements being it should state the name and address of the person by whom or on whose behalf it is lodged and that it should be signed by the caveator or his agent: Transfer of Land Act s 137. It is said that the caveat complies with the requirements of this section and is in no way misleading as the plaintiff accurately claims an estate or interest by view of an equitable mortgage "stamped to secure $6,079,400". That mortgage (the Selec Mortgage) was in fact stamped to that sum. Reference was made by the plaintiff to the decision in Jandric v Jandric & Anor [1999] WASC 22 where it was pointed out that a claim using the words "an equitable interest" would be insufficient and would render a caveat defective as it would not specify the nature or extent of the interest, which is different to the statement of the plaintiff's interests in the caveat in question in this matter.

7 I am of the view that there is no defect in the caveat lodged by the plaintiff. It clearly specifies the nature and extent of the interest claimed.

8 The second contention of the defendants is that the plaintiff by its conduct abandoned its rights over the property and is now estopped from denying so. It is contended that because the plaintiff allowed the defendants to freely deal with the property including/allowing third parties to take interests in the property, and because the property was mortgaged four times after the Selec Charge was signed, the plaintiff by its inaction and silence engendered in the defendants a belief that the plaintiff did not rely on the property as security. In the result (it is claimed) the plaintiff is estopped from asserting its rights/entitlements to lodge and maintain the caveat. Essentially it is the plaintiff's inactivity which is relied upon.

9 The plaintiff makes reference however to the provisions of the Selec Charge, and in particular to the enforcement provisions thereof included in which is cl 9.1(g)(h) in the following terms:

"9.1 Events giving Mortgagee Right to Immediate Payment

The secured moneys shall at the option of the Mortgagee and notwithstanding any delay or previous waiver of the right to exercise such option immediately become payable without any demand or notice in each or any of the following events:-

(g) If the Mortgagor without the consent in writing of the Mortgagee creates or purports or attempts to create any mortgage lien charge or encumbrance over and affecting the mortgaged property or any part thereof in favour of any person other than the Mortgagee;

(h) If the Mortgagor or the Debtor without the consent in writing of the Mortgagee charges or assigns or purports or attempts to charge or assign any moneys owing or payable or to become owing or payable to the Mortgagor or the Debtor by the Mortgagee or any execution or other process of any court or authority or any distress is sued out against or levied upon any such moneys;"

10 Pursuant to the provisions of cl 9.3 of the Selec Charge, the security is to become immediately enforceable without any demand or notice in each or any of the events listed in cl 9.1. Further, the provisions of cl 12.12-12.14 are in the following terms:

The Mortgagee is under no obligation to hold or take any other or further security or guarantee for the payment of the secured moneys and this security shall be in addition to and independent of and shall not affect or be affected by:-

(d) any act forbearance or omission by the Mortgagee; or

12.13 No Obligation to Resort to other Security

The Mortgagee shall not be under any obligation to resort to any other security or guarantee it may hold for payment of the secured moneys in priority to this or any other security.

The Mortgagee may at any time and from time to time:-

(a) grant to the Debtor or to any other person any time or other indulgence or consideration;"

11 In my view the defendants have failed to make out that the plaintiff is estopped from asserting its rights/entitlement to lodge and maintain the caveat over the property, as the provisions of the Selec Mortgage clearly authorised the plaintiff to grant to the defendants such indulgences or considerations as it thought fit and its entitlement to lodge the caveat was clearly unaffected by any act of forbearance or omission on its part.

12 The defendants third contention is that the caveat was lodged for an improper purpose, it being contended that there was no need for the caveat to have been lodged by reason of the fact that the plaintiff was amply otherwise secured, holding security in various properties of the defendants to the value of $6,150,000 at the time the caveat was lodged. This (it was said) was more than double the amount being sought in the plaintiff's writ of summons, and if the plaintiff was able to retain its caveat it would have a total equity interest in the property of the defendants of approximately $8,650,000. It claimed therefore that the plaintiff acted without reasonable cause and unconscionably in lodging the caveat and/or (in the alternative) the caveat was lodged solely to place on the defendants pressure unrelated to a genuine need to protect the caveator's interest. It was contended that for this reason the Court should exercise its discretion to remove the caveat, reliance being placed upon the decision in Kingstone Constructions Pty Ltd v Crispel Pty Ltd, unreported; SCt of NSW; BC9102243; 12 March 1991 (at 10) where reference was made in the context of consideration of the balance of convenience to the need for the Court to ensure that caveats are not used "as a blackmailing device so that a caveat can legitimately be lodged in respect of relatively small claim and force the registered proprietor to pay out such a claim even though it is bitterly contested". The plaintiff contests the claim that it has acted for any ulterior motive, relying upon the contentions of Mr Chapple to which I have referred in summarising his affidavit. That is, the plaintiff claims to have acted properly to protect its security and in the absence of any knowledge of the defendants liability to St George Bank at the time the caveat was lodged.

13 I am satisfied that the caveat lodged by the plaintiff was not lodged for any improper purpose as contended for by the defendants. It is far from a case of lodgement "as a blackmailing device" and prima facie the indications are that the plaintiff lodged the caveat purely for the purpose of protecting its position under the securities in question and for none other.

14 The fifth contention for the defendants is that the balance of convenience favours the removal of the caveat for the following reasons:

(a) The caveat prevents the fifth defendant and the first named second defendant from the legitimate exercise of a right in respect of the land, namely, the ability to discharge the St George Bank mortgage over the land and re-finance it.

(b) The St George Bank mortgage is superior to the caveat and failure to remove the caveat would result in its prohibition being applied against St George Bank.

(c) The plaintiff already has more than adequate security in relation to its contested claim with the defendants, holding several first mortgages over the various lands of the defendants, with the result that the caveat does not properly protect the plaintiff's rights and is used solely to enlarge those rights.

(d) There is an existing mortgage over the property which is superior in rank and title to the plaintiff's mortgage with the result that the caveat's removal will have no effect on the plaintiff's interests.

(e) Notwithstanding that the rights of the plaintiff are already more than adequately protected by various first mortgages and securities over the properties of the defendants, those rights can be protected by the imposition of further conditions upon the defendants who are willing to offer second mortgage securities to the value of $1.5 million to secure the plaintiff's contested claim in return for the caveat being lifted in order that re-financing may occur.

(f) The defendants, and particularly the first named second defendant, will suffer immense damage if the caveat is allowed to remain for the reasons which I have summarised earlier by reference to the first named second defendant's affidavit.

(g) The claim of the plaintiff (even assuming that it can show a serious question to be tried) as to the validity of the Selec Charge is "in serious doubt and the subject of pending litigation".

(h) There has been considerable delay on the part of the plaintiff from the time its interest (if any) in the land arose to the time the caveat was lodged, the plaintiff having waited for almost six years before lodging that caveat and thus making it inequitable for the Court to allow the caveat to remain.

15 Each of these contentions is contested by the plaintiff which says that the balance of convenience is in favour of the retention of the caveat for these reasons:

(a) If the defendants were to succeed in their application the practical effect would be the destruction of the benefit of the plaintiff's proprietary interest in the land which is the subject of the charge.

(b) The weight of authority is that the Court should not order the removal of the caveat on an interlocutory basis for the very reason that it is inappropriate for the Court to attempt to resolve conflicts of interest on affidavit.

(c) In any event, a person aggrieved by the lodging or maintenance of a caveat which has been improperly lodged or maintained can seek compensation if the caveatable interest is eventually found not to have existed or the caveat had been lodged or maintained for an ulterior purpose: Transfer of Land Act 1893 s 140; Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42 at 40-48.

(d) There is nothing exceptional about the present case which justifies the relief sought by the defendants, there being serious issues to be tried which go to the very basis of the validity of the plaintiff's security.

(e) The defendants are themselves responsible for the difficulties in which they presently find themselves, as since at least December 1998 they have known of the existence of the caveat, but have taken no effective action when all that was required was the lodgement of a notice under the provisions of s 138B(1) of the Transfer of Land Act.

(f) The defendants on our about 10 August 1999 signed consent orders in favour of St George Bank in the full knowledge of the existence of the caveat and until approximately 11 days before the order for vacant possession was to take effect they took no steps to seek removal of the caveat.

16 The decision in Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (supra) sets out clearly the difficulties which confront an applicant, such as the defendants in this case, seeking the removal of a caveat where there are serious issues to be tried in relation to the question whether a valid caveatable interest exists. In that case Malcolm CJ (at 44-45) made reference to the concept of a caveat as a form of statutory injunction:

"I have read the reasons to be published by Owen J and I agree with them. I would only add that the concept of a caveat as a form of statutory injunction was clearly stated by Barwick CJ (with whom McTiernan and Owen JJ agreed) in J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546 at 552. The then Chief Justice said of a caveat:

'Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title, it may operate to give such notice.'

'... the primary purpose of a caveat against dealings is not to give notice to the world of an interest. It is to warn the Registrar-General of a claim. The word caveat has long been used in law to describe a notice given to an official not to take some step without giving the caveator an opportunity to oppose it.'

It is in the sense stated by Barwick CJ and Windeyer J that a caveat is a form of statutory injunction of an interlocutory character."

17 Owen J (at 48 et seq) set out the basic principles applicable to applications for removal of caveats in the following terms:

"Although the grounds of appeal suggest to the contrary, the appellant appears to have accepted in argument before this Court that the onus lies on a caveator in proceedings under s 138 to demonstrate that there is a valid caveatable interest or, more correctly, that there is a serious question to be tried on the issue. That is what his Honour found and, in my opinion, it is a correct statement of the law.

In Eng Mee Yong v Letchumanan [1980] AC 331, Lord Diplock, in delivering the advice of the Privy Council, said:

'This is the nature of the onus that lies upon the caveator in an application by the caveatee under s 327 for the removal of a caveat: he must first satisfy the court that on the evidence presented to it his claim for an interest in the property does raise a serious question to be tried, and having done so, he must go on to show that on the balance of convenience it would be better to maintain the status quo until the trial of the action by preventing the caveatee from disposing of his land to some third party.'

This pronouncement is clearly correct in so far as it deals with the onus of demonstrating the existence of a caveatable interest. The reference to the balance of convenience requires further comment.

In Porter v McDonald [1984] WAR 271, this Court considered the approach to be taken to an application for removal of a caveat. Rowland J, with whom Burt CJ agreed, said (at 276):

'The practice with respect to the removal of caveats is one of long standing. The caveat will not be removed unless the claim to an estate or interest in the land appears to be without foundation. The courts will not, except in the most exceptional case, decide the matter on summons ... It is also true that in more recent cases courts have indicated that in the exercise of discretion they will have regard to matters that would be relevant to an application for an interim injunction: see Martyn v Glennan [1979] 2 NSWLR 234; Re Clement's Caveat [1981] Qd R 341; Re Jorss' Caveat [1982] Qd R 458. In all those cases the issue is whether the plaintiff or the caveator had an enforceable or existing interest in the land. The Privy Council recently in Eng Mee Yong v Letchumanan [1980] AC 331 said (at 335):

"The caveat under the Torrens System has often been believed to be a statutory injunction of an interlocutory nature restraining the caveatee from dealing with the land pending the determination by the court of the caveator's claim to title to the land in an ordinary action brought by the caveator against the caveatee for that purpose. Their Lordships accept this as an apt analogy with its corollary that caveats are available in appropriate cases for the interim protection of rights to title to or registrable interest in land that are alleged by the caveator but not proved."

At 341 they reiterated the old rule 'in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit'.'

In Southern Rolled Oats Pty Ltd v Bride (unreported, Supreme Court, WA, Library No 7552, 9 March 1989), Malcolm CJ quoted this passage, with approval, and went on to say:

'As a result of the analogy to which their Lordships [in Eng Mee Yong] referred, in the exercise of the discretion whether or not to cause the caveat to be removed or to remain pending resolution by proceedings, the courts have taken into account those matters that would be relevant to an application for an interlocutory injunction ...'

Porter v McDonald (supra) was a case where the caveatee did not dispute the validity of the interest in the land which the caveator claimed. The caveatee contended that he had an independent claim for damages and could raise an equitable set off which would extinguish the caveator's claim. Removal of the caveat was refused. In Southern Rolled Oats Pty Ltd v Bride (supra) the court decided that the caveator had not raised "a vestige of an arguable case" to support the existence of a caveatable interest. Eng Mee Yong v Letchumanan (supra) was also decided on the non-existence of a caveatable interest."

18 In dealing with the question of what is "the balance of convenience" Owen J (at 50) said:

"In my opinion, the balance of convenience is a factor to be considered in an application under s 138. However, it seems to me that interlocutory removal of a caveat where an arguable case as to the existence of the caveatable interest has been demonstrated, will be unusual. It is important to bear in mind the nature and purpose of a caveat under the Torrens System. By its very nature, a caveatable interest must be a proprietary interest in land. The purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the incidents attaching to the proprietary interest until the respective rights of the parties have been honoured (if there is agreement) or determined (if there is disagreement). In many cases, removal of the caveat will have the effect of destroying for all practical purposes, the benefit of the proprietary interest. For example, a creditor, having a specific security interest in land, will rank as an unsecured creditor once the property, the subject of the specific security, no longer exists. This will often be the result of removal of a caveat which permits the registered proprietor to sell the property free from any practical obligation to account to the secured creditor for the proceeds of sale.

This analysis is consistent with the approach taken by Rowland J in Porter v McDonald. In my opinion it would be wrong to confine Rowland J's approach to situations where the caveatee concedes that a caveatable interest exists.

There is another important factor. The Torrens System recognises the difficulty which might confront a registered proprietor in these situations. Section 140 of the Act provides a mechanism whereby a person aggrieved by the lodging or maintenance of a caveat which has been improperly lodged or maintained can seek compensation. The right to compensation exists whether the caveatable interest is eventually found not to have existed or where, for example, the caveat had been lodged or maintained for an ulterior purpose: see Deputy Commissioner of Taxation (Cth) v Corwest Management Pty Ltd [1978] WAR 129; Hooke v Holland [1984] WAR 16."

19 In my opinion, the plaintiff has established on the evidence presented that its claim for an interest in the property raises a serious question to be tried. Further, I am unable to resolve questions of fact which arise from the affidavits of the parties and I cannot say from the material before me that the claim of the plaintiff to an interest in the property appears to be without foundation. Because there is an arguable case that the existence of a caveatable interest has been demonstrated it would be an unusual case for the interlocutory removal of the caveat. This, in my opinion, is not such an unusual case. The purpose of the caveat is to restrain the registered proprietor of the property from dealing with it in a way which will defeat or derogate from the incidents attaching to that proprietary interest until the respective rights of the parties have been determined, and to remove the caveat would have the effect of destroying for all practical purposes the benefit of that proprietary interest. Further, the provisions of s 140 of the Transfer of Land Act provide a mechanism whereby the defendants, if able to establish at trial that the caveat was improperly lodged, can seek compensation.

20 For these reasons I dismiss the application for removal of the caveat and/or other relief sought by the defendants.