Kang v Kwan & 2 Ors

INTRODUCTION 1 Before me is an application by Notice of Motion by the Plaintiff to extend the operation of a caveat in relation to what I will call the "Castle Cove property" belonging to the First Defendant. 2 It arises in the context of litigation presently part heard before me. The First Defendant presses upon me that it is relevant that that litigation is brought by a legally assisted Plaintiff; that among the discretionary matters I ought to consider, if otherwise the First Defendant fails in demonstrating no caveatable interest, that such Notice of Motion will give rise to no separate action of the kind allowing for a fresh capacity to permit of a cost order against the Plaintiff. This is because, if the Plaintiff suffers a cost order in the main proceedings, it would use up the $15,000 cost recovery limit for legally assisted parties. 3 The issues start with whether the Plaintiff has a caveatable interest of the kind necessary to ground a caveat, that is to say, an equitable interest in land. Related to that issue is whether the caveat correctly identifies such a caveatable interest. That leaves open the possibility that the Court might permit amendment of the caveat where there is under s74L of the Real Property Act a merely technical deficiency in the description of the interest claimed. 4 In that regard, I should also note s74K of the Real Property Act, not relied upon by the Plaintiff, in his Originating Process or written submissions. In Beca Developments Pty Ltd v Idameneo (No. 92) Pty Ltd (1990) 21 FamLR 459 at 471-2 Clarke JA eschewed an excessively technical approach, following the introduction of ss74K and 74L. Subsequently in The Marriage of Stevens (1991) 15 FamLR 51 at 52-3 Cohen J expressed the view that the power to extend may permit an extension wherever the caveator's claim may have substance; moreover the Court "probably" has power to amend the caveat "to permit it to claim any caveatable interest which the Court is satisfied the caveator holds", though it not be that originally delineated in the caveat. 5 That decision was at odds with an earlier decision of McLelland J in Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) ANZConvRep 334 where it was doubted that there was power to allow amendment of the estate claimed in the caveat. 6 All of this however falls by the wayside when it is appreciated that the only amendment the Plaintiff seeks is a more apposite description of the estate or interest claimed, so as to add to "orders made" the words "including agreement made". This is so as to encompass a supposed agreement said to have been acknowledged by both parties either explicitly or implicitly. That agreement was said to have been of an at least sufficiently arguable entitlement to an interest in the nature of an equitable lien over a fund there identified derived from the sale of other property. This was said somehow to have transmogrified into an acknowledgment that there was some kind of interest in the Castle Cove property itself. It will be apparent from the orders that what the Judge at the end "noted" falls far short of any acknowledgment by the First Defendant of any equitable interest in the Castle Cove property. 7 I quote below what was noted by the Judge: "The agreement between the Plaintiff and First Defendant that: (a) the Orders and agreements embodied herein are made in resolution of the Plaintiff's claim (which the First Defendant disputes) to an entitlement to orders in the nature of Mareva injunctions or orders and/or asset preservation orders against the First Defendant in and in connection with these proceedings, (b) the Plaintiff acknowledges that, as and from 5 pm today, the First Defendant shall be at liberty to apply to and for his own purposes or as he may direct the monies (the "Fund") (or any part thereof) representing or forming part of the monies paid to him at the direction of the Defendant Kate Woowin in July 1999, the subject of Orders made by Herron DCJ in August 1999 and by Simos J on 28 October 1999, (c) neither the acknowledgment in (b) nor any other provision hereof shall, or shall be taken to, prejudice the Plaintiff's right to contend that he acquired an entitlement to an interest in the nature of an equitable lien over the Fund which entitlement the First Defendant denies), or an entitlement enforceable against the First Defendant in person in equity to the extent that the Plaintiff may establish an entitlement to such a lien, (d) the orders and agreements embodied in these Short Minutes are made upon the basis that the First Defendant represents and warrants to the Plaintiff that he is presently entitled at law and in equity to a 55/100 share in the Property and that his interest in the Property is unencumbered. (e) the Plaintiff consents to a copy of these Short Minutes, and the orders made by reference to these Short Minutes, being communicated to Hang Seng Bank (Bahamas) Limited with a view to moneys in the account numbered 401-01-2273 with that company being released to the First Defendant or as he may direct;"