By Summons filed on 14 March 2016, the Plaintiff, Ms Louise Carroll, seeks an order that a caveat in respect of certain land situated in Kara Crescent, Bayview be extended pending further order of the Court pursuant to s 74K of the Real Property Act 1900 (NSW). That section authorises the court, if satisfied that a caveator's claim has or may have substance, to make an order extending the caveat for such period as is specified in the order or until further order, or make such other order as it thinks fit and to dismiss the application if it is not so satisfied.
I will first refer to the terms of the caveat and an agreement that modifies it, then to the affidavit evidence and then to applicable legal principles.
By the caveat lodged by Ms Carroll on 24 January 2016, as to which a lapsing notice has since been issued, she claimed an interest in the Kara Crescent, Bayview property, which is currently listed for sale with expectations of a substantial sale price, in the following terms:
"1. An equitable interest in the property by way of proprietary estoppel arising from a written agreement entered into by the registered proprietor and caveator on or about December 2004 or January 2005.
2. The agreement entered into by the registered proprietor and the caveator provided for the registered proprietor to provide to the caveator a residence with a value determined by the Agreement in consideration of the caveator fulfilling her obligations under the Agreement and the registered proprietor has failed to provide such benefit.
The caveator acquired an interest in the property pursuant to the Agreement and the registered proprietor has failed to pay the caveator such an amount as provided for in the Agreement."
There is in turn a written agreement between Ms Carroll and the Defendant, Mr Carroll, although it is dated 8 August 2005 rather than December 2004 or January 2005 and has only recently become available to Ms Carroll when it was produced by Mr Carroll in these proceedings. It was prepared by the parties without legal representation and refers to arrangements under which Mr and Ms Carroll shared several residences after their divorce, although not as husband and wife, from about 2004 until 2013. Several properties were acquired in one or either of their names in that period. That agreement was prepared when the parties were residing at a property at Newport and refers to that property in particular. However, Ms Carroll has a claim of substance that that agreement is not confined to that property, and it does not have any provision by which it terminates on the sale of that property.
By cl 2 of that Agreement , Ms Carroll acknowledges that she has no interest or equitable claim on the Newport property other than, inter alia, in respect of the amount of $303,000 she has invested in the property as a "loan" to Mr Carroll, being her equity on the sale of an earlier property. Clause 5 in turn provides that Ms Carroll:
"agrees that she will not at any time in the future make any claim against [Mr Carroll] for any entitlement to any of his assets, as a result of these new arrangements, other than as in clause 7."
The reference to cl 7 appears to be intended to refer to cl 6 which provides that:
"Either party can discontinue these arrangements at any time with three months' notice. If this happens [Ms Carroll] will move out and [Mr Carroll] will provide some or all the finance to buy a house for [Ms Carroll] of her choice up to a value of $1.5 million plus inflation from July 2005. Both parties will own this new residence of [Ms Carroll] pro rata to their respective investment in it."
Clause 8 provided for Ms Carroll to share pro rata in any capital gain on the Newport property unless Mr Carroll elected to repay the loan, presumably that money owed to Ms Carroll and referred to in cl 2, under cl 10. Clause 10 allowed Mr Carroll, at his sole discretion if he could afford to pay that loan, to provide this "option" to Ms Carroll. The language of "option" suggests that she was not bound to accept such an arrangement. I should add that, in referring to these clauses, I have disregarded several handwritten amendments which appear on the copy of that agreement to which I was taken in evidence. There appears to be a substantial dispute as to whether those amendments were included on the document at the time it was signed, and it seems to me that Ms Carroll has a claim of substance that they are later interpolations.
It appears that a subsequent agreement was reached between the parties in August 2008 in respect of the subsequent purchase of a property at Church Point, which was to be held in Ms Carroll's name, which recorded that Mr Carroll was financing 90% of the purchase price and Ms Carroll had equity of $413,000 or 10% in the property, before any alterations, and that Ms Carroll could keep the property until 30 September 2013, or longer by mutual agreement, which it recorded was then considered unlikely, and the proceeds of sale would be split pro rata. In the event the proceeds of sale do not appear to have been split pro rata but instead applied to the subsequent purchase of the Kara Crescent property.
Both parties read affidavit evidence and Ms Carroll relied on a detailed chronology (MFI 1) and a bundle of supporting documents (Ex P1).
Ms Carroll relies on her affidavits dated 13 March 2016 and the caveat proceedings which refer to her having commenced the substantive proceeding in January 2016 seeking a declaration that she holds an equitable interest in the Kara Crescent property and that Mr Carroll holds that property as constructive trustee or, alternatively, that she holds an equitable charge over the property to secure her interest. She identifies her claim that at the end of the cohabitation agreement, Mr Carroll was, first, to provide her a house, having one-and-a-half times the value of her earlier property, described as the Loquat Valley Road property. Although that claim is differently formulated, it seems to be substantially to the same effect as cl 6 of the August 2005 agreement if - as Mr Dubler, who appears for Ms Carroll, contends - the value of the Loquat Valley Road property was $1 million. Ms Carroll also refers to an agreement to reimburse her share of her contribution to the Newport property which she quantifies as $722,700 plus interest from September 2008, although I will refer below to an adjustment to that figure.
Ms Carroll refers to several acts which she says she took in reliance of that agreement, including allowing the Church Point property - which was, as I noted above, in her name, although subject to an agreement that recorded her as having a 10% interest in it - to be sold in November 2009 and for the proceeds to be applied to the Kara Crescent property. Her evidence, which is disputed, is that she left the Kara Crescent property following Mr Carroll's demand that she do so in August 2013 and that she was paid $158,000 of the money due to her under the agreement alleged in the Statement of Claim. She indicated that she did not object to the sale of the Kara Crescent property provided the proceeds were paid into Court and refers to her concern that Mr Carroll would dissipate the sale proceeds. As will emerge below and, as it seemed to me that Mr Dubler substantially conceded in the course of submissions, it does not seem to me that Ms Carroll's claim, at its highest, could extend to the whole of the sale proceeds of the Kara Crescent property.
Ms Carroll also relies on her further affidavit evidence in the substantive proceedings, including her affidavit dated 21 December 2015 setting out in some detail her account of the history of the arrangement between the parties and their purchase of the properties, including the property at Church Point purchased in September 2008 in her name and sold for $3.8 million which was applied to the purchase of the Kara Crescent property. That affidavit summarised Ms Carroll's claim as that, first, Mr Carroll provide her with an amount of $2,062,500, which is said to be the sale price of the Loquat Valley Road property at a later date, although that claim does not seem to be pursued in that amount in subsequent submissions, and a claim for $564,000 plus interest representing her interest in the sale proceeds of the Newport property.
Ms Carroll also read several other affidavits of third parties which provide some support for some aspects of her evidence in those proceedings, although they seem to me of tangential relevance to this application. She relies on an affidavit of her solicitor in the substantive proceedings which indicates that the Kara Crescent property is the only property owned by Mr Carroll in New South Wales and Mr Dubler referred to that matter to point to the risk of dissipation of sale proceeds if the property was sold.
Ms Carroll also relies on a lengthy affidavit dated 22 March 2016 in the caveat proceedings which seeks to supplement her first affidavit and respond to Mr Carroll's affidavit and also refers to her solicitor's calculation of the amount which would arise under cl 6 of the August 2005 agreement as $1.5 million. Ms Carroll there refers to her understanding that the agreement for Mr Carroll to buy her a house worth $1.5 million, as explained in her evidence, would still apply if Mr Carroll decided to end the arrangement and require her to leave the Kara Crescent property. She does not lead evidence of specific discussion of that matter but refers to a conversation, which she dates as having occurred in January 2011, after the purchase of the Kara Crescent property, in which Mr Carroll said he was no longer able to buy her such a property after Kara Crescent was sold because of a change in his financial circumstances. In her first affidavit she referred to a similar conversation which she then had dated in 2012, about the time she claims to have been asked to leave the Kara Crescent property.
Mr Carroll in turn relies on an affidavit dated 17 March 2016 sworn in the caveat proceedings, which seeks to characterise cl 6 of the August 2005 agreement as contemplating a loan of money to Ms Carroll to purchase a house and to treat it as directed to the purchase of the Newport property, and relies on a suggested absence of three months' notice of the discontinuation of cohabitation. Mr Carroll also leads evidence of the steps that he has taken for the sale of the Kara Crescent property, including incurring advertising expenditure, and identifies the risk of loss of potential offers to the property arising from the caveat. Mr Carroll also relies on his and his solicitor's further affidavits dated 23 March 2016, and on a letter from a real estate agent retained for the sale of the property that refers to the risk that the caveat will result in expressions of interest for the property not being lodged. There are significant differences of fact between the parties' affidavit evidence, which it would not be appropriate to seek to resolve in an application of this kind.
I have referred above to s 74K of the Real Property Act, which establishes the test for extension of the caveat as whether the claim has or may have substance. In order to extend a caveat, the Court must be satisfied that the caveator's claim to an interest in property raises a seriously arguable case for final relief to justify maintenance of the caveat and that the balance of convenience favours extending the caveat. That test is similar to that applied in applications for an interlocutory injunction, namely whether there is a serious question to be tried as to final relief, and the Court will take into account the balance of convenience, although a caveat which has substance is less likely to be extinguished on balance of convenience grounds: Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222; Ruxan Pty Ltd v Peachme Pty Ltd [2004] NSWSC 1221 at [9]; Milstern Retirement Services Pty Ltd v The Owners Strata Plan No 22521 [2006] NSWSC 301; (2006) NSWConvR 56-151 at [19]; Syndication Capital Group Pty Ltd v MDR Cornish Investments Pty Ltd [2011] NSWSC 1289. In Gerard v Jacquin [2011] NSWSC 913 at [15], Slattery J noted, by reference to authority, that this test is not a very demanding test and that it may be satisfied if a caveator can show that there is an arguable case for final relief even though establishing that claim may not be without its difficulties.
Mr Dubler identifies Ms Carroll's claimed caveatable interest as arising, first, from the August 2005 agreement and refers to the terms to which I have referred above, and contends that that agreement continued in fact, or at least the parties understood it to continue, after the sale of the Newport and Church Point properties and the purchase of the Kara Crescent property. He also refers to monetary and non-monetary contributions made by Ms Carroll in the period from 2004 to 2013, relying on alleged representations of Mr Carroll, and submits that Ms Carroll has an equity which the Court will protect by way of an equitable charge or constructive trust over the Kara Crescent property. Mr Livingston, who appears for Mr Carroll, in turn provided a careful outline of the parties' dealings in the relevant properties, to which I have had regard but need not repeat, and addressed each of the bases on which Mr Dubler contended that a caveatable interest arose, together with the balance of convenience.
Mr Dubler, first, put Ms Carroll's case on the basis of proprietary estoppel, a claim which is consistent with the terms of the caveat, other than that the caveat refers to an agreement said to be dated December 2004 or January 2005 rather than the August 2005 agreement. Mr Livingston in turn refers to several authorities as to the scope of proprietary estoppel. In Heydon et al, Meagher Gummow & Lehane's Equity: Doctrines and Remedies, (5th ed 2015, LexisNexis Butterworths) the learned authors note (at [17-065]) that proprietary estoppel involves property of a defendant that is both the subject matter of the complaint and of the relief given, and that the form of estoppel descended from Ramsden v Dyson (1866) LR 1 HL 129 binds an owner of property who induces another to expect that an interest in the property will be conferred on that other. The authors refer to Milling v Hardie [2014] NSWCA 163 at [54]-[55], [104] where the Court of Appeal noted that, in a case of estoppel by encouragement, there need not be a representation of a specific interest in land. It does not follow that there need not be a representation of an interest in the land, so as to give a claim a character of proprietary estoppel rather than, for example, promissory estoppel. In Tadrous v Tadrous [2012] NSWCA 16 at [38]ff, the Court of Appeal in turn described estoppel in the form developing from Ramsden v Dyson above as involving an assurance or encouragement which creates an expectation that an interest, implicitly in the land, would be granted and conduct in reliance on that expectation. Mr Livingston also refers to the formulation of that principle in Sidhu v Van Dyke (2014) 251 CLR 505 at [80]ff, noting that relief may require performance of the defendant's promise or an expectation generated by the promise.
Mr Livingston relies on the Statement of Claim to characterise Ms Carroll's claim in proprietary estoppel, or in estoppel, as a claim for a house worth 1.5 times the value of the earlier Loquat Valley Road property owned by her. However, the caveat is not framed in those terms, but by reference to the value as determined by the relevant agreement, which is $1.5 million plus inflation. Little may turn on the different formulation if, as Mr Dubler contends, the two values are equivalent, and Ms Carroll could readily amend her Statement of Claim or seek to have the substantive proceedings determined by reference to the evidence of the terms of the August 2005 agreement which has subsequently emerged.
Second, Mr Livingston submits that Ms Carroll does not, and cannot, allege that, by reason of Mr Carroll's conduct, she expected to obtain an interest in the property which is the subject of the caveat, namely the Kara Crescent property. He submits, by reference to the authorities to which I have referred above, that the essential requirement for proprietary estoppel is that it binds the owner of a property who induces the plaintiff to expect an interest in that property will be conferred on the plaintiff; and that the Plaintiff relies on the assumption that, at the end of the agreement, the Defendant would purchase a house of a specified value for her. Mr Livingston submits that the Kara Crescent property is not alleged to be that property, nor would Ms Carroll be entitled to have that property conferred on her, if she were otherwise successful, and the relief to which she would be entitled, if successful (which Mr Carroll denies she will be) is equitable compensation not a proprietary remedy against the Kara Crescent property.
It may be that Ms Carroll could establish some form of estoppel, arising from the August 2005 agreement and the alleged failure of Mr Carroll to disclose, prior to the completion of the purchase of the Kara Crescent property, that he no longer proposed to, or was no longer able to, purchase a house of specified value on termination of the arrangement for Ms Carroll. I am, however, unable to see the basis on which Ms Carroll can establish any representation that she would have had an interest in the Kara Crescent property, or any assumption on her part to that effect, even if that agreement was breached, so as to give rise to an interest in that property. It does not seem to me that the claim for a caveat has sufficient substance, as to proprietary estoppel, to support the caveatable interest on that basis.
Ms Carroll also identifies an alternative claim for proprietary estoppel, or possibly for an equitable interest in the property, arising from her contribution to the purchase of the Kara Crescent property. Mr Dubler refers to her interest in the Newport property, which appears to have partly funded the acquisition of the Kara Crescent property, and which her affidavit evidence calculates as $772,700. Mr Livingston contends that claim is not sustainable, first, because the amount originally advanced by Ms Carroll is characterised in cl 2 of the August 2005 agreement as a loan, and second, because the Loquat Valley Road property was not sold until after the purchase of the Newport property. It does not seem to me that either submission, although they may cause difficulty for Ms Carroll at a final hearing, is sufficient to deprive her of a claim that may have substance. Although cl 2 of the August 2005 agreement refers to a loan, cl 10 of that agreement contemplates an "option" to Ms Carroll for repayment, and the subsequent agreement as to the Church Point property expressly recognised that Ms Carroll had a ten per cent interest in it, and the proceeds of the sale of that property appear to in turn have been applied to the purchase of the Kara Crescent property. It seems to me that Ms Carroll has a claim that may have substance to an equitable interest, at least on that basis, whether or not it is properly characterised as a proprietary estoppel claim. I will return below to the question of the description of the interest in the caveat.
Mr Livingston also submits that Mr Carroll has offered to pay that amount, less the amounts he has repaid, into a solicitor's trust account. That, however, is a matter that goes not to the existence of a caveatable interest, but to the balance of convenience, and must there be assessed by reference to other matters to which I will refer below.
Next, Mr Dubler sought to support the caveat by reference to a constructive trust arising under the principles in Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137. I can deal with that submission briefly. First, that is not the interest claimed in the caveat and cannot support the caveat. Second, as explained by White J in Choi v Kim [2013] NSWSC 1774 at [5], a constructive trust of that kind would not be imposed until the point of the court's orders and does not support a prior caveatable interest. Accordingly, it does not seem to me that a caveat can be supported on that basis.
Mr Dubler also submitted that a caveatable interest arose from an equitable charge, although he fairly accepted in the course of submissions that the terms of the caveat do not, to put it neutrally, disclose that claim with particular clarity. Mr Dubler relied on the decision in Coast Reo Pty Ltd v O'Brien [2006] NSWSC 613 as authority that such a charge may support a caveat. That much is clear, but, as Mr Livingston points out, that case is distinguishable since it turned on a clause that plainly created an agreement to charge the relevant assets.
In Cradock v Scottish Provident Institution (1893) 69 LT 380 at 392, aff'd (1894) 70 LT 718, Romer J in turn noted that an equitable charge does not require the use of the words of charge, and that:
"It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security."
Mr Dubler in turn relied on the definition of the elements of an equitable charge in Swiss Bank Corporation v Lloyds Bank Ltd [1982] 2 AC 584 at 594-595 as follows:
"An equitable charge may, it is said, take the form either of an equitable mortgage or of an equitable charge not by way of mortgage. An equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal estate or title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee, or in other words evidences a contract to do so: see Fisher and Lightwood's Law of Mortgage, 9th ed. (1977), p. 13. An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale: see Fisher and Lightwood, p. 14."
The earlier part of this formulation was quoted with approval in Peters v Lithgow Forge Pty Ltd [2010] NSWSC 283 per Slattery J at [45]; see also the helpful discussion of the authorities in PW Young et al, On Equity (2009, Lawbook Co) at [9.180]ff.
Whether a question of substance is established as to the existence of an equitable charge turns on the construction of cll 5 and 6 of the August 2005 agreement, to which I referred above. It seems to me that Ms Carroll has a case that may have substance that cl 6 creates an obligation, that would arguably be specifically enforceable, for Mr Carroll to "finance" her choice of property up to the specified value, which was not limited to the position following the purchase of the Newport property and has not been terminated. It seems to me that she also has a claim that has substance that the obligation to finance is there not directed to a loan of funds, and that a handwritten notation to that effect on which Mr Carroll relies is a later interpolation. The last sentence of that clause indicating that the parties will own the property pro rata to their investment, seems to me to be likely consistent with that meaning and inconsistent with any suggestion that funding was to be by way of a loan at interest. It seems to me that the last words of cl 5 of the August 2005 agreement in turn expressly preserve Ms Carroll's ability to enforce that clause, notwithstanding her acknowledgment that she has no other claim against Mr Carroll's assets. Mr Livingston suggested, at one point, that reservation applied only after such a house was purchased. It would be odd, to say the least, if the agreement had been drafted to preserve Ms Carroll's right in that regard if the obligation was complied with, but not a right to have it to be complied with; I am not persuaded that submission deprives Ms Carroll of a claim of substance under cl 6 of the August 2005 agreement.
However, with all respect to Mr Dubler's submissions, I am unable to see that the preservation of that right, or its terms, provides any indication of intention that Mr Carroll's assets, whether generally or as to particular after acquired assets including the Kara Crescent property, should be security for performance of that obligation. For that reason, a claim of substance is not established on the basis of an equitable charge to support the caveat, quite apart from the fact that the caveat does not clearly identify a claim on that basis.
It follows that I have found that an interest supporting the caveat is established, in respect of Ms Carroll's claim of substance for an equitable interest arising from her contribution to purchase the Kara Crescent property, reflecting her interest in the Newport and Church Point properties. There is a real question, which was identified but not fully addressed in submissions, as to whether that interest is adequately described in the caveat, and whether any failure of Ms Carroll adequately to describe that interest can be cured by s 74L of the Real Property Act; cf Jones v Baker [2002] NSWSC 89; (2002) 10 BPR 19,115 at [31]; Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 871. I will need to hear the parties as to that matter, unless the need to do so is displaced by Ms Carroll's foreshadowed application for a freezing order, which may ultimately raise rather simpler issues than the caveat application has raised.
It remains to deal with the question of balance of convenience. Mr Dubler submits that the balance of convenience favours Ms Carroll because, if the caveat is lifted and the property sold, her claim for a charge (which I have held not to have sufficient foundation to support a caveat) will be rendered futile and, more widely, she may be left to a hollow judgment. The latter submission plainly overlaps with issues that would be relevant to the foreshadowed application for a freezing order. Mr Dubler submits that a delay in the sale process "for a few months" will not cause loss; that depends, partly, on market movements in that period, and partly on steps which Mr Carroll could readily take to avoid such a delay. Mr Dubler notes, possibly significantly, that the sale process was instituted after the proceedings commenced and submits that an early hearing can be fixed. However, as Mr Livingston points out, the latter proposition was not raised before the Expedition Judge when the matter was last before him, at least to the point of obtaining such an early hearing.
Mr Livingston in turn relies on Ms Carroll's delay in commencing proceedings, which were substantial, but Mr Dubler points to matters explaining that delay, including, importantly, that she did not have access to the August 2005 agreement throughout that period or, indeed, until after the proceedings commenced.
Mr Livingston in turn submits that, at most, Ms Carroll's equitable interest is limited to $564,000 and Mr Carroll has offered to pay that amount into a solicitor's trust account. He submits, correctly, that that amount is a small proportion of the estimated value of the property. He also submits that payment of that amount into Court is "more than sufficient" to protect Ms Carroll's interest. I do not accept the latter submission, because it follows above from my conclusion that Ms Carroll has a claim of substance under cl 6 of the August 2005 agreement that the payment of an amount less than that claim into Court would protect her proprietary interest of a lesser amount, but not her interest in preserving her wider claims in the proceedings.
Mr Carroll submits that he would suffer detriment if the caveat extended until the determination of the proceedings, where he has incurred advertising expenditure and a sale may be lost, or, as his real estate agent's evidence suggests, purchasers may be deterred from submitting expressions of interest. He notes, and I accept that it is possible that, a final hearing will not or may not occur until the second half of 2016, although that may depend on the extent of expedition that is ultimately available. He refers to Ms Carroll's delay in commencing proceedings to which I have also referred above.
It seems to me that the balance of convenience does favour the extension of the caveat, subject to the questions of the proper description of the interest to which I have referred, since there is a real risk that Ms Carroll's interests, which include but are not limited to her proprietary interest in the property, would be defeated if the property was sold, in a sale initiated after the proceedings were commenced, and the suggested payment into Court is not sufficient to protect Ms Carroll's wider claims.
In making that observation, I should make clear that I proceed on the basis that, in assessing the balance of convenience, I may have regard to all relevant matters and all of Ms Carroll's claims, and I am not limited to assessing that matter by reference to the fate of the proprietary interest she claims alone. It seems to me that any detriment which will be incurred by Mr Carroll by reason of the caveat, and the risk that the sale will be impeded or frustrated, could readily be avoided by Mr Carroll, where it will be open to him to offer an undertaking that he will not deal with or dissipate his assets in New South Wales so as to reduce them below the amount of Ms Carroll's claim, or at least an amount that fairly preserves Ms Carroll's interests in that claim. It seems to me that the Court might well accept such an undertaking if it were put at a level of $2 million, or thereabouts, referable to the amount claimed under cl 6 of the August 2005 agreement, notwithstanding that Ms Carroll advances a larger claim based on the value of the Church Point property which was, as noted above, in her name, which may face some difficulties by reason of the parties' agreement as to their respective interests in that property. Such an undertaking would also, of course, address the issues which would be likely to arise in the foreshadowed claim for a freezing order.
I emphasise this matter because I find it difficult to see any detriment which Mr Carroll would suffer by the offer of such an undertaking so as to secure the release of the caveat, other than a restriction to his autonomy. I assume, of course, that Mr Carroll does not wish to dispose of all his assets in New South Wales so as to frustrate Ms Carroll's claim; if he did, of course, the loss of the opportunity to do so would not amount to a relevant prejudice. Such an undertaking would not prevent the purchase of new properties at fair value in New South Wales since that would not constitute a dissipation of his assets. I therefore do not see any substantial detriment to Mr Carroll from the continuation of the caveat, or a consequential frustration of the sale of the property, so far as steps are readily open to him to avoid that result. It will, of course, also be open to Mr Carroll to take steps to lift the caveat to permit a sale of the property, likely on condition that an amount sufficient to preserve Ms Carroll's claim be paid into Court at the relevant time.
I will, therefore, stand over the proceedings to a date that has already been agreed with Counsel, at which time issues which may be addressed can include the question as to the definition of interest in the caveat; whether Mr Carroll may wish to offer such an undertaking not to dissipate or dispose of his assets to a specified figure, to avoid the caveat continuing beyond that date, if it is otherwise in proper form; and, third, the Plaintiff's application for a freezing order, although that may only arise if Mr Carroll does not choose to offer an undertaking of the kind to which I have referred above, which would ordinarily be sufficient to avoid a freezing order.
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Decision last updated: 13 April 2016