F & F Holdings Pty Ltd v Ridge Lane Pty Ltd [1998] VSCA 72

F & F Holdings Pty Ltd v Ridge Lane Pty Ltd [1998] VSCA 72 - VSCA 1998 case summary — Zoe

The judge below took the view that it would not have been possible for Ridge Lane to lodge a caveat whilst it was registered as proprietor of the Aspendale land and that while Serry delayed in registering the transfer (and mortgage), Ridge Lane was unable to protect its interest. If that was the concern of Ridge Lane, it should have taken steps to precipitate registration of the transfer. Perhaps it suffices to say that the law is unclear as to whether (and, if so, in what circumstances) it is open to a registered proprietor to lodge a caveat over the land of which he is the proprietor. It has been suggested in some cases that a registered proprietor is not prevented from lodging a caveat merely because he is the registered proprietor: see, e.g., J.& H. Just (Holdings) Pty. Ltd. v. Bank of New South Wales [1971] HCA 57; (1971) 125 C.L.R. 546, at 553 per Barwick C.J. (McTiernan and Owen JJ. concurring) and Barry v. Heider [1914] HCA 79; (1914) 19 C.L.R. 197. It has been said that a registered proprietor may lodge a caveat over the land of which he is proprietor where there is "some set of circumstances over and above his status as registered proprietor which affirmatively gives rise to a distinct [caveatable] interest in the land": see Re An Application by Haupiri Courts Ltd (No.2) [1969] N.Z.L.R. 353, at 357. If correct, that principle might cover this case. The point was, however, left open in Swanston Mortgage Pty. Ltd. v. Trepan Investments Pty. Ltd. [1994] VicRp 47; [1994] 1 V.R. 672, at 682 and I need not decide it in this case. Whilst I am inclined to think that there is much merit in the approach favoured in Haupiri Courts, it is enough that in this case the parties to the consultancy agreements, Ridge Lane and Daleford Glen, were of the view that Ridge Lane's interest as chargee was capable of being protected by a caveat at any time after Daleford Glen made default under the agreements (even default under the first consultancy agreement, which in terms of that agreement may well have occurred long before the contract of sale was settled). If F&F were indeed party to the alleged fraud, it too can be taken to have been of the view that Ridge Lane had an entitlement to lodge a caveat, alternatively, to have been cognisant of the fact that Ridge Lane thought it had such an entitlement and there was a real risk that Ridge Lane would succeed in any attempt to exercise what it believed was its right. Put another way, it seems inherently improbable that, had Serry and Freeman known of the terms of the agreements, they would have delayed registering the mortgage in order to secure for F&F such benefit as might perhaps flow to F&F so long as Ridge Lane failed to lodge a caveat when, in contrast, to register the mortgage as early as possible must surely have secured the greater benefit of obtaining priority for the mortgage over any interest capable of being protected by a caveat.

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