9 Mr Ashhurst, counsel for Global, argued first that Valerica had no caveatable interest because the charge was not registrable in any event. That argument was not strongly pressed and could not be sustained in the light of the decision in Composite Buyers Ltd v Soong (1995) 38 NSWLR 286. Next he relied on Re Pile's Caveat [1981] QdR 81. That was a case of a wife claiming that her one half interest in a property had been transferred to trustees of a trust as a result of a fraudulent representation of her husband. Dunn J held that "a prima facie equity to relief involving land is not necessarily the same as the prima facie existence of an interest in land" and that the claim was not an interest in land protectable by caveat so that the only way to secure the rights of the wife in that case was by injunction. Ryan J is said to have come to a different conclusion in Re McKean's Caveat [1988] 1 QdR 524 when Re Pile's Caveat does not appear to have been cited to him. In that case he concluded that a mortgagor claiming breach of duty by a mortgagee in exercise of power of sale and seeking to set aside a contract of sale had a caveatable interest in spite of the completion of the mortgagee sale. I do not understand that these decisions are necessarily in conflict. It seems clear the transfer by the mortgagee under power of sale to the purchasers had not been registered or it seems, lodged for registration, prior to lodgement of the caveat. Thus there could have been, in the absence of a section equivalent to s43A of the Act, competing equitable interests. The references in McKean to Forsyth v Blundell (1973) 129 CLR 477 support this, but this latter case was not concerned with the question of caveatable interests, but rather the circumstances in which the court could, by injunction, restrain completion of a mortgagee sale, albeit that at page 495 Walsh J said:
…If a mortgagee has acted in breach of his duty, it may become necessary to decide whether the available relief is limited to making him liable to make good to the mortgagor such loss as has been caused by that breach of duty or includes the obtaining of an order to set aside a conveyance or transfer by which a sale had been carried into effect or, in cases in which the contract of sale has not been completed, an injunction to restrain the mortgagee from completing it.
10 That statement does not carry the finding that a possible right to obtain an order to set aside a transfer gives rise to an interest in land which can be properly protected by caveat. I should probably complete this by noting the decision in Andel Pty Ltd v Century Car Care Pty Ltd [1989] ANZConvR 252 where Pincus J said that he would follow McKean in preference to Pile if it had been necessary to deal with the point, which it was not. In the case in question he was dealing with a claimed interest, made as a claim for re-conveyance as a result of fraudulent misrepresentation. That claim is not the same as a claim to set aside a contract prior to registration of a transfer, but I appreciate the view expressed, although not necessary to the decision, is contrary to the conclusion to which I have come.
11 It is my view that as a matter of principle a claim to set aside a transfer on the ground of fraud, is a claim in personam which may result in a proprietary interest in land, but is not a claim for such an interest. I consider that conforms with the decision in Composite Buyers. In that case Hodgson J stated the test for determining whether a claim gave rise to an interest in land protectable by caveat to be as follows:
…what is necessary is that there be an interest in respect of which equity will give specific relief against the land itself, whether this relief be by way of requiring the provision of a registrable instrument, or in some other way satisfaction of the interest claimed by the caveator out of land itself, for example by ordering the sale of the land and payment out of the proceedings of an amount in respect of which the caveator has a charge.
There he held a charge under a guarantee not in registrable form over "all freehold and leasehold interests in land which we or any of us now have or during the currency of this instrument may acquire" was capable of giving an equitable interest in land. He did not hold that it did, but rather that it would, if equity would grant specific relief against the defendant's land on the basis of the instrument. There was, I consider, no doubt that there was a discretion in the court to make orders for the sale of the land to give effect to the charge, so that specific relief might have been given against the land itself. That decision is one I should follow and it seems to me with respect to be clearly correct. However, I do not think that it assists Valerica in this action. I agree with the decision in Re Pile's Caveat .
12 It is proper to deal with the second argument by Global. It is that as Ostabridge had not obtained any relief in respect of the land, the most that Valerica can do as chargee is to appoint a receiver who could, in the name of Ostabridge, seek orders (1) to have the transfer set aside; (2) to have the transfer to Ostabridge registered; and (3) to give effect to the charge by an order for sale of the charged property. This entitlement to such relief was characterised by counsel for Global as a possible potential interest in land rather than a present interest and therefore not capable of protection by caveat.