Eric Bernard Bastian v Nellie Francis Haydon

LEGISLATION CITED : Real Property Act 1900, ss, K, 74 LA

CASES CITED : St Abanoub Properties Pty Ltd vRegistrar General & Anor [2002] NSWSC 615

PARTIES : Plaintiff-Eric Bernard Bastian Defendant-Nellie Francis Haydon

COUNSEL : Plaintiff- in person Defendant-G. Dilworth

SOLICITORS : Plaintiff- in person Defendant-Emillie Reynolds, Barwick Stevens Lawyers Dorrigo

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

2010/325157 ERIC BERNARD BASTIAN v NELLIE FRANCIS HAYDON EX TEMPORE JUDGMENT 1 HIS HONOUR: The principal issue in this case is whether the plaintiff can demonstrate an interest in the defendant's property in Hennessy's Lane, Bellingen, sufficient to sustain an order for the extension of a caveat. There are other issues to which I will come. 2 The plaintiff and the defendant are acquainted with one another. The plaintiff from time to time has been living at the defendant's Hennessy's Lane property a rural property with a current value in the order of $450,000. 3 During the 2009/2010 period Mr Bastian was involved in negotiations with the defendant about the possible development of the Hennessy's Lane property. These negotiations did not result in a signed agreement between the plaintiff and the defendant. Indeed, the defendant is currently negotiating with at least one other person about the possible development of the Hennessy's Lane property. 4 The plaintiff filed a caveat over the subject property claiming as the nature of the estate or interest in the land "money owed and losses incurred with respect to cancellation of a proposed development on the listed property."

5 On or about 8 September 2010 the defendant's solicitors served on the plaintiff a notice of lapsing of the caveat. The plaintiff then brought proceedings in this Court for extension of the caveat. These came before Pembroke J on 1 October 2010. At the hearing before Pembroke J it become apparent that the interest by Mr Bastian in the caveat was not one that fell within any established category of equitable interest. On that occasion his Honour granted leave to the plaintiff to amend the caveat to claim an equitable interest in the land to reflect the claim deposed to in Mr Bastian's affidavit of 29 September 2010. Mr Bastian took that leave up and filed an amended caveat. However the amended caveat does little more than recite a summary of the evidence in the affidavit of 29 September 2010, which summary I have now analysed and find does not establish a caveatable interest. 6 His Honour also made orders extending the amended caveat up until Friday 22 October 2010 and listing this matter before the duty judge on 25 October 2010. The matter came on for hearing before me yesterday and was adjourned to today due to the press of business in yesterday's duty list and to allow the defendant to take instructions about some supplementary evidence filed by the plaintiff. 7 Pembroke J's orders on 1 October 2010 were structured such that the caveat would run out just before the matter came back before the Court unless a further extension was sought. Mr Bastian could at any stage, had he been advised to do so, have sought to re list the proceedings so that the caveat could be extended to coincide with the adjourned date of the proceedings on Monday. Be that as it may, it is agreed on both sides the caveat lapsed on Friday last, 22 October. 8 When the matter was called on yesterday on 25 October at 10.00am, the defendant was represented by counsel, Mr Dilworth and the plaintiff was not present. I waited until about 10.30am so the plaintiff, if he were late, had an opportunity to arrive at Court. He was not at Court by then so I acceded to Mr Dilworth's application to dismiss the proceedings. I made orders dismissing the proceedings and ordering the plaintiff to pay the defendant's costs. 9 At about 11 o'clock yesterday Mr Bastian appeared at Court during the hearing of other matters in the duty list. He apologised for being late and asked what could be done with the matter. The Court provided him with Mr Dilworth's telephone number and suggested that as the Court orders had not been entered it may still be possible for the matter to be argued, notwithstanding the orders. After contact was made with him Mr Dilworth reappeared with the plaintiff later in the morning. At about 3pm yesterday I vacated the orders I had previously made by consent. I then dealt with the matter afresh. 10 I now deal in these reasons with the plaintiff's application to extend the caveat. There are two issues before the Court today, one technical and one substantive. The first issue is a technical one; the defendant submits that application of Real Property Act 1900, s 74LA means that the caveat lapses and cannot be further extended. The second issue raised by the defendant is that the plaintiff has not demonstrated an equitable interest sufficient for the Court to be satisfied under Real Property Act, s 74K(2) that the caveator's claim has or may have sufficient substance to extend the operation of the caveat. 11 I have reached the conclusion that the plaintiff's application should be dismissed on both these grounds. The caveat has lapsed and the plaintiff has not demonstrated an equitable interest in the property. My reasons for reaching these two conclusions are the following. 12 First, Real Property Act, s74 LA operates in this case to cause the subject caveat to lapse. Real Property Act, s 74LA provides: "74LA Caveat lapses when order ceases to have effect

(1) If the operation of a caveat is extended for a specified period by an order of the Supreme Court under this Part and no further order is made by the Court extending the operation of the caveat before the expiration of the period specified in the order, the caveat lapses on the expiration of that period.

(2) If the operation of a caveat is extended until the further order of the Court by an order of the Supreme Court under this Part, the caveat lapses if the Registrar-General, on being satisfied that the proceedings in which the order was obtained have been finalised and that no further order is likely to be sought, makes a recording in the Register to the effect that the caveat has lapsed." 13 The operation of this caveat was extended by Pembroke J on 1 October 2010 for a period until 22 October 2010. No further order was made by the Court extending the operation of the caveat before the expiration of the period specified by Pembroke J. The period Pembroke J set expired on 22 October 2010. For that reason Real Property Act, s74LA(1) causes the caveat to lapse. 14 In St Abanoub Properties Pty Ltd v Registrar General & Another [2002] NSWSC 615, a case principally concerned with the operation of the lapsing mechanism in Real Property Act, s 74J, Barrett J said at [15] the following: "[15] ' Lapse' is an event that marks the end of the period during which a caveat, in the words of s74H, "remains in force" in such a way as to provide protection to the caveator by way of notice of the estate or interest asserted. Lapse entails termination of the command addressed to the Registrar-General by s74H that he not take certain defined actions which he would otherwise be able and required to take in relation to the relevant title but which appear to him to be prohibited by the caveat. A caveat that has lapsed is no longer of any efficacy to achieve the legal results that caveats produce. It has no continuing existence (Wilson v McIntosh [1894] AC 129) and is to all intents and purposes dead. And this is so whether or not the recording in relation to it remains on the title in unqualified form." 15 The caveat does not exist for any purpose. There is nothing upon which a Real Property Act, s 74K(2) order "extending the operation of the caveat" can now act. This means, in my opinion that the caveat is incapable of further extension. This is the effect of Real Property Act, s 74LA (1) in the present case. As the plaintiff's caveat has lapsed the Court cannot now extend it. 16 In my view on this ground alone the plaintiff's application fails. 17 I am mindful of the fact that the plaintiff is a litigant in person who appears not to have access to legal advice leading to legal representation at the time that orders were made on 1 October or during the intervening period right up until today. For that reason it is appropriate to deal with the substantive issue argued by the plaintiff rather than just disposing of the case on the technical ground under Real Property Act, s 74LA. 18 On the substantive issue, the plaintiff has not demonstrated any equitable interest in the property. Nor has he satisfied the Court that his claim "has or may have substance" within Real Property Act, s74K(2). A short narrative is required to demonstrate why this is so. 19 Whilst living at the defendant's Hennessy's Lane property the plaintiff has advanced a number of proposals to her for its redevelopment. Although there is disagreement between the plaintiff and the defendant about what they have discussed, it is common ground that discussion and negotiations did take place between them about the subject of redevelopment. The plaintiff has described those negotiations in some detail in his affidavit. The plaintiff's account on these conversations is detailed, orderly, chronological and professionally put together. This has assisted the Court greatly in understanding the course of negotiations. 20 The defendant's property is an attractive rural property in the Bellingen area which the plaintiff thought could be redeveloped as a multiple occupancy and ecotourist educational development. With the consent of the defendant, the plaintiff took up occupation in the property during 2009, whilst he was caring for his elderly mother in the area. The plaintiff says that he occupied the property partly to facilitate the negotiations. The defendant says that it was an act of generosity on her part. Which of these two is correct need not be decided today. 21 The course of negotiations between the plaintiff and the defendant was complicated by the fact that another person in the area, a Mr Nick Denshire also put a proposal to the defendant to redevelop the property. 22 The course of negotiations between the plaintiff and the defendant involved the advance of proposal and counter proposal, interrupted only by the plaintiff's mother's untimely death in January this year. Negotiations resumed and there were further proposals discussed between April and July this year. It is not necessary on an application like this for me to detail these proposals other than to say that heads of agreement were created by the plaintiff and discussed. The evidence shows disagreement by the defendant with some of the plaintiff's ideas and an invitation by the plaintiff for the defendant to put an acceptable proposal back to the plaintiff. The heads of agreement were never signed. 23 The evidence does not demonstrate that any binding agreement was ever reached between the plaintiff and the defendant. Nor does it demonstrate any clear representation by the defendant to the plaintiff sufficient to found a case for the plaintiff that there was an expectation on his part that in particular assumed circumstances he would obtain an interest in the property. The material exchanged both orally and in writing falls well short of that. 24 The plaintiff candidly acknowledged there was no written agreement between the parties. He said accurately and with insight into his case that: "there is nothing in writing from the defendant, which has been the whole problem all along." The first way the plaintiff could put a case for an interest in the Hennessy's Lane property is to prove some agreement or acknowledgment in writing signed by the defendant granting an interest in the property. But he agrees there is no such document. 25 The alternative way a case could be put, one the plaintiff indeed advanced, is a representation by the defendant that the plaintiff would in future in certain events be entitled to an interest in the property. I asked the plaintiff in the course of his submissions to go to his best evidence of such a representation. In response he took the Court to annexure I to his affidavit of 29 September 2010. Annexure I is an email from the plaintiff to the defendant dated 27 June 2010. The email records what is said to be an agreement "From tonight's discussion". But it is an agreement that is described in the letter thus: "Your proposal would be based on the agreed understanding that I would be responsible for all costs of the proposed development in return for receiving any improved value in the property above the agreed market value of $450,000 and that you will have first option to take up one of the five proposed occupancy shares for the agreed price of $150,000 and receive a cash payment of $300,000 for the remainder of the $450,000 currently agreed value of the property." 26 It is not entirely surprising that the defendant was reluctant to agree to a proposal which appears to give most of the upside of the increased value of the development of the Hennessy's Lane property to the plaintiff but much of the risk to the defendant. However the fundamental objective of the letter is expressed in Mr Bastian's further words "that in lieu of the proposal I presented to you on Sunday 1 June 2010 you will present a written proposal defining how you propose the reward for the work agreed to be carried out by myself in respect to the development of the property will be assured". This passage demonstrates that the letter is really an invitation to further negotiations and nothing more. 27 But the negotiations came to an end very shortly afterwards. On 28 July 2010 after more intervening correspondence, the defendant wrote to the plaintiff saying, "Eric, I acknowledge your correspondence handed to me Saturday evening 24 July 2010. My answer is 'NO'". The letter then goes on in quite direct terms: "Would you please leave my property and accept the fact that I am not prepared to enter into any agreement re the development that has not and cannot eventuate. Please leave as soon as possible but not later than your intended departure to Gympie. Thank you for your cooperation. Yours sincerely, Nell." 28 Whatever representations the plaintiff might establish seem to have been wholly withdrawn by 28 July this year. Nothing else in the material the plaintiff advances shows the defendant making a clear representation the plaintiff would have an interest or future interest in the Hennessy's Lane property nor a basis for the plaintiff to assume he had such an interest. 29 The plaintiff pointed to a number of other matters. These included the fact that he has a shipping container on the property, that he has invited other proposals from the defendant, and that he has asked the defendant for a first right of refusal over the sale of the property. None of these matters seem to me to overcome the deficiency in the plaintiff's case. 30 The plaintiff has not made out a case sufficient to satisfy the Court that his claim "has or may have substance" sufficient to extend the caveat: Real Property Act, s 74K(2). 31 The plaintiff's claim fails on both grounds. I should observe that I would not have permitted an extension of the caveat without the plaintiff claiming some definite form of final relief, which does not appear in the summons. 32 Accordingly, I reject the plaintiff's claim for extension of the caveat and dismiss the summons. 33 I order the plaintiff to pay the defendant's costs of these proceedings. **********

11/11/2010 - 'Type of judgment changed from separate question to principal judgment. - Paragraph(s) type of judgment

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