(This appears as footnote (f) on page 48 of the original edition of 1921 and footnote (e) on page 52 of the version reprinted in "Sir Frederick Jordan: Select Legal Papers", 1983).
19 The approaches taken by the High Court in the various cases decided in the 1980's were at the centre of reasoning applied by Brownie J in the Jessica Holdings case in declining to follow a series of Queensland first instance decisions on caveatable interests which had based themselves on the availability of what I might term full and traditional specific performance. Such a departure had been foreshadowed in C M Group Pty Ltd's Caveat [1986] 1 QdR 381, but Dowsett J had refrained from making the departure in deference to the established line of Queensland cases. In Jessica Holdings, however, Brownie J stated his conclusion thus:
"It seems to me that I should do what Dowsett J had regarded himself as unable to do in C M Group , namely, hold that where a purchaser of land under a contract which contains a condition requiring some stranger to the contract to give some consent or take some other step before the contract can be regarded as unconditional, the purchaser in the appropriate circumstances should be treated as having "an interest" within the meaning of s74F of the Real Property Act or its analogues; and in the present case, since the defendant has an interest which, for the reasons already stated, ought to be protected by an injunction, it follows that the defendant has an interest which may be protected by a caveat. Of course, the injunction goes not directly to compelling the plaintiff to take the necessary steps to register the deposited plan originally contracted for, but rather to the earlier step of preventing the plaintiff from registering a different deposited plan but this distinction does not seem to me to be of any practical significance."
20 The condition to which the contract in Jessica Holdings was subject was that a plan of subdivision in the form annexed be registered within twelve months. That was a subdivision of the surface, of course, not as here, a strata subdivision.
21 A similar approach to a similar kind of contract was taken by the Court of Appeal in Queensland in Re Henderson's Caveat (decided in 1993 but not reported until 1998), thus laying to rest in Queensland the line of first instance decisions which Brownie J had declined to follow. After referring to the High Court developments already mentioned, Macrossan CJ and Demack J said:
"With an expanded view of what can constitute an equitable interest in land, a correspondingly wider view of a caveatable interest under s.98 of the Real Property Act can apply."
22 A note by Associate Professor Butt at (1993) 67 ALJ 295 sees the decision in Jessica Holdings as consistent with the more recent High Court statements, although Meagher JA, in an article entitled "Sir Frederick Jordan's Footnote" (1999) 15 Journal of Contract Law 1, says of the view "that if one were, actually or potentially, entitled in equity to any form of remedy in relation to an asset, one has, by virtue of that entitlement, an equitable interest in that asset" that it simply "cannot be correct".
23 It is true, of course, that none of the cases so far mentioned concerned a lot in a proposed strata plan and, as Mr Hodges has put to me, there is much more to be done in bringing a strata plan to fruition than there usually is with a surface subdivision. For that reason, a purchaser or option holder in relation to a strata lot yet to be created stands in a more tenuous relationship to the land.
24 In that connection, however, it is necessary to refer to the decision of the Full Court of the Supreme Court of Western Australia in Kuper v Keywest Constructions Pty Ltd [1993] WAR 419. That case concerned two contracts by the same purchaser to purchase lots in a proposed strata plan relating to a building which was in the course of construction when the contracts were made. At the date of contract, local government approval of the proposed strata subdivision had not been obtained and no strata plan had been registered. The purchaser under the uncompleted contracts lodged a caveat and a question arose as to whether the purchaser had an interest sufficient to support those caveats.
25 Malcolm CJ with whom Pidgeon and Seaman JJ agreed, held that the purchasers did have a caveatable interest. The learned Chief Justice began with McWilliam v McWilliams Wines and Brown v Heffer and then proceeded via Legione v Hately, KLDE Pty Ltd, Stern v McArthur and the other more recent High Court authorities to the position that Dowsett J would have preferred to adopt in C M Group but felt constrained by comity to reject. Malcolm CJ then continued:
"In my opinion, in appropriate circumstances, a court would be prepared to protect a purchaser's interest under a contract such as that in the present case, at the so-called inchoate stage, both by granting specific performance in the sense of requiring the vendor to do all things necessary to be done to procure registration of the strata plan as well as restraining the vendor by injunction from dealing with the land inconsistently with the purchaser's right to specific performance of the contract, both in the special sense and, subject to fulfilment of a condition, in the ordinary sense: cf Pakenham Upper Fruit Co Ltd v Crosby (9124) 35 CLR 386 at 396-399, per Isaacs and Rich JJ.
In my opinion the estate or interest claimed by the purchasers under the contracts was sufficient to ground a caveatable equitable interest in the relevant land, notwithstanding the conditional nature of the contracts".
As I said earlier, the conditional nature of the contracts there was such that not only were local government and titles office actions still to come, but indeed there was not yet any completed building to which the strata plan lots could be physically related.
26 In the present case, Mr Forder has, by virtue of the deed and, in particular, the call option provision in clause 4.1 (as supplemented by the machinery provisions which follow it), a right to bring into existence at any time a contract in the form of the annexure "A" to the deed. Although registration of the exhibited strata plan is a condition precedent to completion, neither the deed nor the form of contract appears to impose upon Cemcorp an explicit obligation to proceed to obtain that registration and, if such a term cannot be implied, it may be that there is no basis on which Mr Forder can require Cemcorp to do everything necessary to effect the registration. But Mr Forder can, in any event, and by virtue of the deed, call upon the assistance of equity in two relevant ways: first, as secondly described by Malcolm CJ in Kuper, that is to restrain Cemcorp by injunction from dealing with the site as a whole inconsistently with his rights under the deed; and, second, as described by Brownie J in Jessica Holdings, to restrain Cemcorp from registering a strata plan which does not accord with the deed.
27 To my mind, the decision of an intermediate court of appeal in Western Australia in Kuper involving a contract relating to a lot in an unapproved and unregistered strata plan, coupled with the decision of an intermediate court of appeal in Queensland in Henderson's case, albeit relating to a surface subdivision rather than a strata situation, provides a firm basis on which I may follow in this case of a proposed strata subdivision the approach which Brownie J took in the Jessica Holdings case in relation to a proposed surface subdivision.
28 I am satisfied that the effect of the deed of 6 October 2000 between Cemcorp and Mr Forder is such as to cause Mr Forder to have, in relation to Lots 49 and 50 in Deposited Plan 7413 (that is, the development site), an interest which may properly be the subject of a caveat under the Real Property Act. He is therefore entitled to maintain his existing caveat.
29 In conclusion, let me quote what I consider to be apposite and sensible words from an article by Assistant Professor K L Liew in an article entitled "Conditional Contracts and Caveatable Interests" (1995) 14 UTasLR 63:
"The caveat system is supposedly designed to preserve the status quo pending resolution of the claim underlying the caveat. If this is the case, it does not seem logical to give a narrow interpretation to the word 'interest' in the provision dealing with the lodgment of caveats. If a vendor in breach of a conditional contract seeks to sell the land to another purchaser, even the availability of an injunction to the purchaser under the first contract of sale is of no assistance if he or she was not aware of the actions of the vendor (and there is a need to seek an injunction). The presence of a caveat on the register will at least give notice to a third party that there is an existence to someone who has had prior deals the property and is claiming an interest in it. At least until the contingency is determined this will give the purchaser a degree of protection prior to the fulfilment of the contingency and the opportunity of testing the claim in court.