Fang v Yang

Supreme Court of NSW|2021-07-21|Before: Henry J

JUDGMENT

These reasons deal with an application by Summons filed on 12 July 2021 for an order extending the operation of caveat AQ934702 (Caveat) in respect of the property comprised in folio identifier 3/154460 that is owned by the defendant (the No 82 property) until further order of the Court.
The proceedings were commenced by the plaintiff following service of a lapsing notice on or about 15 June 2021. The Summons also seeks final relief by way of a declaration that the defendant holds the plaintiff's interest in the No 82 property on trust for him.
On 12 July 2021, the Duty Judge granted an interim extension of the Caveat and adjourned the proceedings to enable the application to be heard on an interlocutory basis before the Duty Judge on 21 July 2021.
In support of his application for an extension of the Caveat, the plaintiff relies on two affidavits that he affirmed on 11 July 2021 and 20 July 2021. The defendant opposes any further extension of the Caveat. She relies on her affidavit affirmed on 19 July 2021, the documents exhibited to that affidavit and her written submissions. Both parties made further oral submissions at the hearing yesterday.
The main issue that arises for determination is whether the plaintiff has established that there is a serious question to be tried that he has a caveatable interest in the No 82 property and whether it should be extended in its current form. This is in the context where the plaintiff accepts that the Caveat does not accurately describe the facts giving rise to his claimed interest and the plaintiff's evidence about who paid the initial deposit for the No 82 property changed in the course of the proceedings.

Legislation and general approach

In an application to extend a caveat, the Court may, if satisfied that a caveator's claim has or may have substance, make an order extending the operation of the caveat for a specified period or until further order of the Court, or may make such other order as it thinks fit: Real Property Act 1900 (NSW), s 74K(2).
On such an application, a test substantially the same as that for an interlocutory injunction applies. What must be shown is that there is a serious question to be tried as to whether a caveatable interest exists and that the balance of convenience favours the extension of the caveat. The strength of the caveatable interest may be significant in assessing the balance of convenience: Abraham v Abraham [2012] NSWSC 254 at [8]; Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 (Hanson Construction Materials) at [79]; 1190 Pacific Highway Pty Limited v Link Start Pty Limited [2021] NSWSC 671 at [17].
As the party seeking an extension of the caveat, the plaintiff bears the onus of demonstrating that his claim has or may have substance: Hanson Construction Materials at [37].
Section 74F of the Real Property Act provides that caveats must be in the approved form and specify, amongst other things, the prescribed particulars of the legal or equitable estate or interest to which the caveator claims to be entitled: Real Property Act, ss 74F(5)(a) and 74F(5)(b)(v).
Clause 7 and Schedule 2 of the Real Property Regulation 2019 (NSW) set out the prescribed particulars, which relevantly require: 1. particulars of the nature of the estate or interest in land claimed by the caveator: sch 2(1); 2. the facts on which the claim is founded, including (if appropriate) a statement as to the manner in which the estate or interest claimed is derived from the registered proprietor of the estate or interest or the primary or possessory applicant against which the caveat is to operate: sch 2(2); and 3. if the caveator's claim is based (wholly or in part) on the terms of a written agreement or other instrument, particulars of the nature and date of that agreement or instrument and the parties to it: sch 2(3).
It is not necessary to specify whether the estate or interest claimed is legal or equitable, or the quantum of the estate or interest claimed (except as provided in Schedule 2): Real Property Regulation, sch 2(10).
Section 74L of the Real Property Act provides: If in any legal proceedings a question arises as to the validity of a caveat lodged under a provision of this Part, the court shall disregard any failure of the caveator to comply strictly with the requirements of this Part, and of any regulations or conveyancing rules made for the purposes of this Part, with respect to the form of the caveat.

Consideration and determination

In Schedule 1 of the Caveat, the particulars of the estate or interest claimed by the plaintiff are stated as: "Beneficial interest arising under a resulting, or alternatively, a constructive trust". The claimed interest is said to arise by virtue of a Development Agreement dated 11 July 2014 and the following facts: The caveator claims a beneficial interest arising under a resulting, or alternatively, constructive trust arising from the development agreement pursuant to which the registered proprietor would jointly develop the property with the caveator.
At the start of the hearing, the plaintiff accepted that the interest which he seeks to protect by the Caveat is based on him having paid the deposit monies of $17,500 in connection with the purchase of the No 82 property and that the wording of the Caveat referencing the Development Agreement does not support the factual basis for his claimed interest.
The plaintiff submits that this misdescription can be overcome by s 74L of the Real Property Act. He also submits that he has demonstrated a seriously arguable case that his claimed interest may have substance. He points to the evidence in his second affidavit to the effect that the plaintiff now recalls he paid the deposit, the bank statements that show he withdrew significant amounts of money around the time of the initial exchange of contracts and the acceptance by the defendant that an amount of $17,500 was paid by Mr Shen or the plaintiff towards the purchase initially. He also submits that the balance of convenience is in his favour in circumstances where the Caveat is not impacting any sale of the No 82 property and the plaintiff has not been offered any substitute security.
The plaintiff contends that the Caveat can be amended to reflect that his claimed interest is based on the extent of payment of the deposit by the plaintiff, namely the amount of $17,500, and extended on that basis. Alternatively, if the Court concludes that there is an insufficient nexus between the wording of the Caveat and the claimed interest, the plaintiff seeks that leave be granted to enable him to lodge a fresh caveat under s 74O of the Real Property Act.
The defendant submits that the misdescription of the factual basis of the claimed interest means that the Caveat is defective and cannot be extended. She also submits that, even when looking behind the Caveat, the evidence does not establish that there is a serious question to be tried that any interest arose from the provision of money by the plaintiff toward a deposit. She contends that, even if it did, the weakness of the claim and the plaintiff's delay of seven years in asserting any such interest indicates that the balance of convenience is against extending the operation of the caveat.
In determining an application such as this one, the Court does not undertake a preliminary trial or seek to resolve conflict between the evidence of the parties. Nor does it grant or refuse such application upon the basis of such findings or a forecast as to the ultimate result of the case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622; [1968] HCA 1; Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 (Shercliff) at 734D (Mahoney JA).
However, the Court should assess the whole of the evidence. As Graham J stated in Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 3) [2009] FCA 335 at [20], referring to Shercliff at 734: Where there is a conflict of evidence, the use which may be made of the defendant's evidence in determining whether the plaintiff has made out a prima facie case is a limited one. For example, the plaintiff's evidence, considered alone, may be such as to constitute a prima facie case which would be acceptable if it were to be submitted to a jury in a trial. But, when considered in the light of the defendant's evidence, it may be explained away so as no longer to be such. Or, the defendant's evidence when juxtaposed to that of the plaintiff may show that there is, in reality, no such case, no real question between the parties, appropriate to warrant a preservation of the status quo until the hearing.
Based on the evidence before the Court, I am not satisfied that the plaintiff has demonstrated that there is a serious question to be tried that he paid the deposit of $17,500, that it has not been accounted for by the defendant and, as a consequence, that he has a prima facie claim to a purchase money resulting trust over the No 82 property to the extent of his respective contribution to the 5% deposit. I have come to this conclusion for the following reasons.
First and foremost, the plaintiff's claim to a caveatable interest is now said to arise from a purchase money resulting trust based on the evidence in the plaintiff's second affidavit that he believes he paid the $17,500 deposit monies, rather than his earlier evidence that Mr Shen paid the deposit as a joint payment for both of them. The plaintiff's claim represents a significant change, both in the nature of the claimed interest as well as his evidence supporting that interest. It is also seemingly based on a refreshed memory following a very recent telephone discussion with Mr Shen. The plaintiff's evidence is clearly contradictory and the evidence given in his second affidavit is inconsistent with aspects of his first affidavit beyond who paid the deposit, such as the difference in the evidence about whether the deposit was paid to the solicitor or the real estate agent.
While the timing and amount of the withdrawals from the plaintiff's bank accounts might suggest that the plaintiff was funding the deposit, it is, in my view, telling that the total withdrawals of $71,000 do not match the deposit amount of $97,500. No explanation is given nor is there any apparent reason for why three withdrawals were made by the plaintiff on three consecutive days in order to pay the deposit. The plaintiff's bank records also do not align with his initial evidence or his evidence of what Mr Shen told him on 15 July 2021, which evidence is to the effect that a bank cheque was drawn by the plaintiff for the deposit amount of $97,500 on a particular day.
In that context, the plaintiff's bank statements are not, in my view, significant or strong evidence as the plaintiff submits but are equivocal on the issue of whether the plaintiff paid the initial deposit on 29 November 2013. Further, other than the bank statements, the plaintiff has adduced no documentary evidence that refers to or evidences him paying the initial deposit as he now claims to have done.
The plaintiff's evidence that he paid the initial deposit is also inconsistent with the claims made in caveats lodged by Mr Shen in 2020 and the letters sent by Mr Shen's lawyers to the defendant and Mr Yin to the effect that Mr Shen, and not the plaintiff, paid the deposit of $17,500. It is also contradicted by the plaintiff's first affidavit in which he deposes to a conversation with Mr Shen to the same effect (see the discussion at [8]).
The above matters lead me to doubt the reliability of the plaintiff's evidence. This is particularly as it relies on hearsay evidence from Mr Shen. Having regard to the evidence which indicates that Mr Shen had previously lodged a caveat in respect of the defendant's property, claimed to have paid the initial deposit and unsuccessfully sought to obtain money from the defendant, there is also a question in my mind as to whether what Mr Shen told the plaintiff could be considered to be reliable evidence from a disinterested party.
When regard is had to the defendant's evidence, the plaintiff's claim to an existing interest in the No 82 property arising under a purchase money resulting trust is, in my view, further undermined. Unlike the plaintiff's evidence, most of the defendant's evidence is corroborated by contemporaneous documents. For example, the payment by the defendant of the penalty interest in the amount of $12,000 and the $5,500 to Mr Shen are supported by bank statements, the settlement checklist and the letter from Mr Shen's lawyer in February 2020.
The effect of the defendant's evidence is that Mr Shen paid the $17,500 deposit on behalf of himself and the plaintiff, consistent with the plaintiff's first affidavit. The defendant's evidence also provides a credible explanation that the defendant has fully accounted for and settled up payment of the $17,500 deposit, irrespective of whether that amount was paid by Mr Shen or by the plaintiff. Significantly, the conversations deposed to by the defendant (referred to at [20] and [21]) which go to establishing that the plaintiff agreed to, or at least acquiesced in and had knowledge of, the agreement between the plaintiff, Mr Shen and the defendant for the defendant to pay the $12,000 penalty interest and the $5,500 cash to Mr Shen on account of the $17,500 deposit are not refuted or even commented on by the plaintiff in his reply affidavit. In that context, and while not determinative, the Court can have regard to that evidence in assessing whether the plaintiff has made out a serious question to be tried that he paid the initial deposit of $17,500 which remains owing to him and Mr Shen by the defendant.
It is also significant that the plaintiff's affidavit evidence does not address whether the penalty interest amount of $12,000 and the remaining $5,500 have been paid by the defendant but is silent about those amounts. Indeed, the plaintiff's affidavit evidence does not even identify what amount he says he paid as a contribution to the deposit of the No 82 property or the amount he says that the defendant owes him, as distinct from Mr Shen. Rather, he simply asserts that "I now believe that the deposit money for the purchase of [the Wollongong properties] was withdrawn by me from my CBA Cash Management Call Account" and refers to what Mr Shen said to him, namely that "Mr Xu … paid only about $50,000, which means Mr Xu … owe[s] you about $15,000". I pause here to observe that Mr Shen's assertion that Mr Xu paid about $50,000 and owes $15,000 is inconsistent with statements made in correspondence by Mr Shen's lawyers, to which I have already referred.
I accept that the requirement that a caveat "has or may have substance" has been described as not a very demanding test. However, the gaps and inconsistencies between the plaintiff's affidavit evidence and the documentary evidence together with those parts of the defendant's evidence that are corroborated by contemporaneous documents and unchallenged by the plaintiff lead me to conclude that the plaintiff has not adduced sufficiently persuasive evidence to establish that there is a serious question to be tried in this case that he has a caveatable interest of the nature now asserted.
I should also record that I do not consider that the balance of convenience weighs heavily in favour of the defendant in this case. There is no evidence that she is being prevented by the Caveat from a legitimate exercise of her rights in respect of the No 82 property such as engaging in a sale or a refinance of the mortgage on title. That said, the plaintiff's delay in asserting his claimed interest in the property, the limited extent and nature of the interest which he now claims and the weakness of his claim are matters that would be relevant to the exercise of my discretion if I was satisfied that he had established a serious question to be tried.
Even if the plaintiff had established a seriously arguable claim to an interest in the No 82 property based on his payment of the $17,500 initial deposit, the other difficulty he has is that the estate or interest claimed in the Caveat is based on the Development Agreement which is clearly different to the factual basis of the claimed interest which he now seeks to assert.
In contending that this issue could be overcome by s 74L, the plaintiff referred to the decision of Cohen J in In the Marriage of Stevens (1991) 105 FLR 459, a case in which His Honour expressed the view, at 461, that: It is no longer the case that a caveat will be struck down for technical fault if the caveator has any caveatable interest. The Court has power to extend the operation of any caveat lodged, and this extension can be in relation to both time and substance.
The plaintiff also referred to Beca Developments v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459. In that case, Clarke JA referred, at 472, to s 74L of the Real Property Act as a "clear direction to the court to disregard technical deficiencies in a caveat".
In my view, this is not a case in which it would be appropriate to extend the operation of the Caveat in reliance on s 74L of the Real Property Act.
In Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997, Brereton J (as his Honour then was) reviewed a number of cases that have considered the operation of s 74L. His Honour observed that the role of the description of the estate, interest or right claimed in a caveat was to enable the Registrar-General and a person reading a caveat to know whether their dealing would affect the estate claimed. His Honour was of the view that the significance of that role and the approach in the authorities compel the conclusion that an inadequately described claim cannot sustain a caveat: at [21], [27].
In Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880, Campbell J (as his Honour then was) noted, at [28], that whether a caveat adequately describes the estate or interest is to be decided from the point of view of a person examining the caveat, who need not necessarily be the registered proprietor. In that case, the caveat identified the nature of the estate or interest in the land as an "equitable interest". His Honour considered that description to be too vague and imprecise to properly describe the claimed interest; an "equitable interest" could mean any one of a multitude of interests. The failure to specify the nature of the interest in such a fundamental way was more than a defect of form and could not be ignored in reliance on s 74L.
In Ron Medich Properties Pty Ltd v McGurk [2010] NSWSC 552, Palmer J declined an application to extend a caveat claiming an "equitable interest pursuant to a constructive trust" where the facts relied on were the "use of the caveator's funds to acquire an interest in the property". The caveator's real claim to an interest in the property was as a mortgagee through the operation of the equitable doctrine of subrogation. Palmer J observed that a person, not being the registered proprietor, reading the caveat would have no idea of the nature and extent of the interest actually claimed: at [8]. See also Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696 at [130] and Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 at 423; [1992] HCA 22.
In Schibaia v Elias [2013] NSWSC 1485, McDougall J stated at [25]: The whole purpose of the Real Property Act is to try and prevent the need for people to go behind the Register, in particular to go behind the documents that have been recorded or lodged, to see what estates or interests there are in land that is subject to the provision of the Real Property Act.
In my view, the observations and reasoning in the above cases are apt in this case. The description in the Caveat would indicate to a reader that the plaintiff was claiming a beneficial interest by way of a resulting or, alternatively, a constructive trust arising from the fact that the defendant had agreed to jointly develop the No 82 property with the plaintiff as provided for in the referenced Development Agreement.
The issue with the plaintiff's reliance on s 74L is that he accepts that his interest is not founded on the Development Agreement, an agreement to which the defendant was not a party and which also does not make any mention of any deposit monies being paid by or on behalf of the plaintiff in relation to the purchase of the No 82 property. While reference is made in Schedule 1 of the Caveat to a beneficial interest pursuant to a resulting trust, no particulars are provided of the facts on which the claim is actually founded, being the alleged payment of a $17,500 deposit by the plaintiff toward the purchase of the No 82 property.
This is not a case where the Caveat simply overstates the quantum of the plaintiff's asserted beneficial interest by way of a resulting trust in the No 82 property, as in Warner v Andrews [2011] NSWSC 956 at [9], or involves an obvious and indisputable mistake, like the name of the chargee in Allen Taylor & Co Pty Ltd t/as Boral Timber v Harrison [2010] NSWSC 1021 at [19]-[23]. Rather, the claimed interest is based on an incorrect factual foundation. In my view, that misdescription is not a matter of form but a matter of substance. Based on the current description of a beneficial interest by way of a resulting or constructive trust and the incorrect particulars that refer to the Development Agreement, the nature and extent of the plaintiff's claimed interest in the No 82 property is left unexplained.
Thus, I am not persuaded that the defects in the Caveat can be overlooked by s 74L of the Real Property Act. Nor do I consider that they can they be overcome by orders permitting an amendment. This is because an amendment would need to substitute an entirely different factual basis for the claimed interest and change the nature of the interest to one that arises under a purchase monies resulting trust and not a constructive trust. It follows, in my view, that the Caveat is defective. Even if the plaintiff may have a caveatable interest, it would not be appropriate to make an order that the operation of the Caveat in this case, which is based on a different interest, be extended under s 74K of the Real Property Act.
As to the plaintiff's alternative application to lodge a further caveat under s 74O of the Real Property Act, that section applies to successive caveats that claim the same estate, interest or right and purport to be based on the same facts: Woodsman Pty Ltd v Jozic [2018] NSWSC 1311 at [18].
The wording in the old and new caveat as to the interest claimed or the supporting facts do not have to be identical to engage s 74O of the Real Property Act. However, what is necessary is for it to be clear from a comparison of the old and new caveat forms that the same facts are being relied upon to support both claims for the same estate or interest: FTFS Holdings Pty Ltd v Business Acquisitions Australia Pty Ltd [2006] NSWSC 846 at [12].
The issue with the plaintiff's claim for an order under s 74O is that, even if a fresh caveat claiming a beneficial interest arising under a resulting trust could be said to be one purporting to be in respect of the same interest, it could not be one that purports to be based on the same facts. Specifically, the fresh caveat would not be based on the Development Agreement, but based on a separate and different set of facts, namely the alleged payment by the plaintiff of the initial 5% deposit.
Accordingly, the plaintiff's application for an extension of the Caveat is refused, as is his alternative application for leave to lodge a new Caveat under s 74O.
Given the outcome, I see no reason why the plaintiff should not be ordered to pay the defendant's costs of this contested application. No submission was advanced to the contrary.
For these reasons, I make the following orders: 1. The plaintiff's application for an order extending the operation of caveat No AQ934702 is dismissed with costs. 2. The plaintiff to pay the defendant's costs of the application on an ordinary basis. 3. List the proceedings before the Equity Registrar on 5 August 2021 for directions in relation to the plaintiff's claim for final relief.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2021

Real Property Act 1990(NSW)

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