Conveyancing - Land titles under the Torrens System - Caveats against dealings - Amendment - Whether the Court has power to amend.

Land Titles Act 1980 (Tas).

Nichols Constructions Pty Ltd v Henry & Law A91/1994; Hooper v ANZ Banking Group Ltd (1995) 5 Tas R 398; Re Piles Caveats [1981] Qd R 81; Rasmussen v Rasmussen [1995] VicRp 38; [1995] 1 VR 613, considered.

Judgment ID Number: [1999] TASSC 15

ALEC WINTER DEAN v IVAN NOEL DEAN, BERNARD ROSS DEAN and

ROGER NORMAN DEAN (IN THE MATTER of an application pursuant to

Section 135 of the LAND TITLES ACT 1980)

1 The applicant, Alec Winter Dean, has applied for an order that the respondents (his brothers) show cause why a caveat registered against his titles to two blocks of land known as Holy Marsh, comprising about 190 hectares in total, should not be removed. The respondents, having been served with the application, appeared to show cause.

2 In its present form the caveat claims an estate or interest on behalf of the respondents "as owners in equity of all the timber and trees on the land" by virtue of "a verbal bequest by our father Bernard Winter Dean". Counsel for the respondents, Mr Williams, did not seek to sustain the caveat in this form, but applied to amend the same to claim an "estate or interest as owners in equity of all timber and trees on the land or alternatively an equitable profit a prendre in respect of the timber or alternatively an interest in the timber on the said property" by virtue of:

"(a) in respect of the caveators Ivan Noel Dean, estate of Bernard Ross Dean, and Roger Norman Dean by virtue [sic] the intention of and [sic] of a promise made by Bernard Winter Dean, the then owner in equity of the property, in or about 1975 to Ivan Noel Dean, Bernard Ross Dean and Roger Norman Dean to the effect that the timber on the caveated land would belong to them pursuant to which the said caveators entered into a joint venture or partnership to develop a mill and in reliance on such promise acted to their detriment, which circumstances created:

(i) an inter vivos gift to the caveators of the said profit a prendre or equitable right to the timber by Bernard Winter Dean; or

(ii) an inter vivos trust created by the said Bernard Winter Dean whereby he held the said profit a prendre or equitable right to the timber in trust for the caveators; or

(iii) a trust arising by mutual intention of the creator of the trust and the caveators in favour of the caveators arising by virtue of the timber rights in respect of the said land being held in equity in trust for the participants of the joint venture or partnership; or

(iv) a constructive trust in favour of the caveators in respect of the said profit a prendre or equitable right to the timber arising out of the reliance (to the knowledge of the said Bernard Winter Dean) by the caveators to their detriment on a promise by the said Bernard Winter Dean that all millable timber on the said real property would belong to the caveators; or

(v) in respect of the said profit or equitable right an equitable estoppel based on mistake or unjust enrichment arising from the mistaken failure by the said Bernard Winter Dean to reserve from the transfer in 1978 to the current registered proprietor a profit a prendre or equitable right in favour of the caveators (the intention to reserve the timber rights being known to the transferee Alec Winter Dean the current registered proprietor;

(vi) a charge on the timber rights commensurate with the detriment as suffered by the caveators in reliance on statements to the effect that the timber would belong to them and that it did belong to them.

(b) in respect of the caveator Ivan Noel Dean as personal representative of the estate of the late Bernard Winter Dean:

(i) by virtue of a resulting or other trust in respect of a profit a prendre in the timber or equitable right in respect of the timber arising from the intention of the donor of the land Bernard Winter Dean (communicated to the present registered proprietor Alec Winter Dean prior to the said transfer by way of gift to him) to only gift to him the real property not including the right to the timber.

(ii) in respect of the said profit or equitable right an equitable estoppel based on mistake or unjust enrichment arising from the mistaken failure by the said Bernard Winter Dean to reserve from the transfer in 1978 to the current registered proprietor a profit a prendre or equitable right in favour of the caveators (the intention to reserve the timber rights being known to the transferee Alec Winter Dean the current registered proprietor."

3 Counsel for the applicant, Mr Sealy, declined to concede that the Court had jurisdiction to amend a caveat once it had been lodged with the Recorder of Titles and, in support of his opposition to my allowing the amendment, referred to the decision of Cox J (as he then was) in Nichols Constructions Pty Ltd v Henry & Law A91/1994. In that case his Honour said he entertained "considerable doubts" that a power to amend exists in Tasmania. However, presumably in recognition of the fact that I had expressed a contrary view to this in Hooper v ANZ Banking Group Ltd (1995) 5 Tas R 398, Mr Sealy's argument as to this issue was somewhat restrained and his resistance to the proposed amendment lacked his customary vigour. That vigour was reserved for the alternative argument that the proposed amendment would introduce a fresh party into the proceedings, viz, Ivan Noel Dean as executor of the estate of Bernard Winter Dean which could, and probably would, bring Ivan Dean's personal interests into conflict with those which he was obliged to pursue as personal representative of his late father's estate.

4 I can dispose of these objections quite briefly. In the first place, I propose to adhere to what I said in Hooper's case. In my opinion a caveat can be amended and leave to amend should be granted in an appropriate case. Secondly, the claimed likelihood of conflict between Ivan Dean's personal and representative interests cannot be determined on the material before me and, in any event, such a question is inappropriate to determine on an application of this kind. If such conflict exists, it will, no doubt, have to be resolved at some stage before the proposed litigation concludes. The test which I have to consider before determining whether or not to order removal of the caveat is whether or not the respondents have shown an arguable case. In Re Piles Caveats [1981] Qd R 81 at 83, Dunn J said:

"It is established that, in order to maintain a caveat, a caveator must prove facts which indicate prima facie that he has an estate or interest in the land in respect of which his caveat is lodged. The Court will not, except perhaps in the plainest case, resolve disputed questions of fact when it hears an application to remove a caveat."

In the absence of consent, the Court will not usually determine questions of title upon an application of this kind. Such matters must be resolved by Supreme Court action. In my opinion, the proposed amendment to the caveat should be allowed.

5 Whether that enables the respondents to maintain their caveat must now be considered. I agree in principle with Mr Sealy's submission that an amendment which seeks to add a new caveator to an existing caveat may so change the fundamental nature of the caveat that it ought not be allowed, but in the present circumstances it seems to me that allowing Ivan Dean to state a claim in the caveat in the additional role of personal representative of his late father's estate has no significant practical effect upon any relevant rights or procedures.

6 Mr Sealy also submitted that the material before me showed that at the time of the creation of the alleged equitable interests contended for by the caveators, Bernard Winter Dean had no proprietary or beneficial interest in the smaller of the two blocks of land now in question. He submitted that it was clear that, at the relevant time, Ruby Dean, now also deceased, the sister of Bernard Winter Dean, was beneficially entitled to that property, pursuant to a Purchase Contract under the Crown Lands Act 1935, and that it was also clear that she transferred her interest in that property, not to Bernard Winter Dean, but to Alec Winter Dean, the present applicant. These arguments were supported to some considerable extent by the memoranda made by Mr Hewer, Bernard Winter Dean's accountant, which were included in the judge's papers at 23 - 42 inclusive. Mr Hewer is now also deceased. However, I cannot reject the contrary arguments presented by Mr Williams out of hand. There is the curious fact that Ruby Dean's transfer to Alec Dean purports to have been signed by her on 25 July 1966, ie, at a time before the creation of any of the alleged equitable interests in favour of the caveators, whereas Alec Dean's statutory declaration accepting that transfer and giving the usual undertakings to observe the conditions of the purchase contract, is dated 2 October 1978, more than twelve years later. Furthermore, the letter from Henry Wherrett and Benjamin, his then solicitors, to Alec Dean dated 5 February 1988 (Exhibit D1) records that they had been instructed by Alec Dean that "approximately 8 years ago your late father, Mr Bernard Winter Dean, transferred to you by way of gift the property at Stonehenge known as Holy Marsh comprising 194.2 ha or thereabouts". These considerations tend to support Mr Williams' submission that Ruby Dean had divested herself of any beneficial interest that she may have had in the land in favour of Bernard Winter Dean prior to the creation of the equitable interests alleged by the caveators. Additionally, Mr Williams submitted that the evidence of proprietary behaviour exhibited by Bernard Winter Dean and described in the various affidavits filed and read on this application, made it clear that he had acquired a good possessory title by adverse possession by that time.

7 It is not for me to resolve this conflict in these proceedings. It is sufficient that I acknowledge that Mr Williams' contentions are capable of being resolved in his client's favour if litigated in an appropriate action.

8 Mr Sealy also presented able and comprehensive arguments against the likelihood of judicial findings in favour of any of the caveators' claims as enumerated in the proposed amendments to the caveat.

9 There is much to be said for the view that most of the claims are unlikely to succeed and that the claim with the best prospect of success is that encapsulated in par(a)(iv) of the proposed amendment. Mr Sealy submits that if this is an accurate prognostication of the outcome of litigation, the caveat should still be removed because a constructive trust is only a remedial solution which comes into existence, if at all, upon a declaration of the Court and is therefore not an "interest in land" which can support a caveat. I do not consider this proposition to be supported by the authorities which Mr Sealy cited and I did not intend by anything which I said in Gangell v Airlie B16/1993 to indicate that I held such a view. It seems to me that if the Court of trial finds that the relevant dealings with the land by Bernard Winter Dean and his sons were such as to give rise to a constructive trust in favour of the caveators, this will enable the Court to make appropriate orders affecting the title (see Rasmussen v Rasmussen [1995] VicRp 38; [1995] 1 VR 613).

10 The caveat was lodged against the applicant's titles on 13 May 1987 and no satisfactory explanation has been given by the caveators as to their failure to take civil action to establish the claims which they now seek to pursue. Whilst the Court will not order a caveat to be summarily removed unless it is satisfied that the caveat is irremediably defective or the caveator will not be able to make out a case for relief (see Gangell v Airlie (supra) and Hooper & Anor v ANZ Bank (supra)), where serious delay of this kind has occurred the Court should take appropriate steps to ensure that a speedy resolution of the impending dispute is achieved (see Hooper & Anor v ANZ Bank (supra)).

1 That Caveat No B113521 registered on folios of the Register, Vol 238376, Fol 1 and Vol 238377, Fol 1 be amended in accordance with the terms of the proposed amendment set forth on pages 1 and 2 of these reasons.

2 That the said amended caveat be removed unless within seven days the caveators commence proceedings against the applicant to determine the validity of the claims to an estate or interest contained therein.