REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS
– REMOVAL – JURISDICTION – where the plaintiff
lodged a caveat
over property purchased by the defendant – where the plaintiff alleges
Source
Original judgment source is linked above.
Catchwords
REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS– REMOVAL – JURISDICTION – where the plaintifflodged a caveatover property purchased by the defendant – where the plaintiff allegesthat he has an equitable interest inthe property and that the defendant holdsthe property on trust for him – where the defendant applies for an orderthat thecaveat over the property be removed – where the defendant allegesthat the purchase price for the property was transferredto her not by thedefendant but by a third party – where the defendant submits thatQueensland is not the proper forum forthe proceeding – where thedefendant submits that the Court is precluded from deciding the proceeding byreason of issue estoppel– whether there is a serious issue to be tried– whether the balance of convenience favours the removal of thecaveatPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
COSTS – INTERLOCUTORY PROCEEDINGS – GENERALLY
– where the
successful plaintiff seeks costs to be awarded on an indemnity basis –
where the plaintiff submits that the
defendant’s conduct of the
application has unnecessarily prolonged the hearing – where the defendant
submits that costs
be in the cause – whether costs should be awarded in
favour of the plaintiff – whether indemnity costs should be awarded
Land Title Act 1994 (Qld), s. 127
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
(1990) 171 CLR 538,
applied
Judgment (10 paragraphs)
[1]
Harmony Legal & Associates for the plaintiff/respondent
[2]
Aitken Whyte for the defendant/applicant on 28 May 2025
[3]
Senior Legal for the defendant/applicant on 26 June 2025
[4]
[1] This is an application brought by the applicant/defendant for the removal of a caveat that has been filed on a property, of which she is the legal title holder, located at the Gold Coast. The property was purchased by the defendant in around May 2021. The price of the property, including associated expenses, was over $3 million, and settlement occurred on the 12th of July 2021.
[2] The plaintiff and the defendant are former partners of some description, wherein they have a child together who is now aged around five years. They are not, it seems now accepted, in any form of ongoing relationship.
[3] A number of months after the purchase of the property, the plaintiff lodged a caveat over the property in the Queensland Department of Natural Resources. That occurred on the 14th of December 2021. In response, the defendant gave a notice for the plaintiff to commence proceedings, and if that was not done, then the caveat would lapse. That notice was given on the 11th of February 2022.
[4] The underlying proceeding in this matter is the proceeding that was commenced by the plaintiff against the defendant on the 18th of February 2022 by way of originating application to support the caveat that had been lodged. Orders were made converting the originating application into a claim on the 16th of March 2022, and there followed a claim and statement of claim and a notice of intention to defend and defence.
[5] The claim and statement of claim, in terms, seek, in a brief way, the following: that the plaintiff has an equitable interest in the fee simple estate of the property; and that the defendant holds that property on trust for the plaintiff pursuant to a constructive and/or implied or resulting trust arising upon the financial and non-financial contributions of the plaintiff to the acquisition, conservation and/or improvement of the property. There is sought an order that the trust be performed and that the defendant transfer the plaintiff's interest in the property to the plaintiff.
[6] The pleaded interest in the property is a type of interest that can support a caveat.
[7] There are then alternative orders sought in relation to effectively the sale of the property and the distribution of the sale proceeds.
[8] The circumstances that underlie that claim are that sometime in the past - probably five to six years ago - it seems that the plaintiff and the defendant had a relationship of some sort. It appears that that relationship occurred in China where both of the parties previously lived.
[9] It is hard to describe without making any moral judgment, and I make no moral judgment, but the plaintiff has had a number of relationships with women over time, some of which have intersected, wherein he now apparently has some 16 children to 6 different women. What the evidence reveals is that the first three children were to the plaintiff's wife, and those children appear to now be adults. Then there are a number of other children to a number of different women, and it appears that the plaintiff has in the past provided financial support of significant amounts to certain of those women and children, and perhaps still is providing such support.
[5]
[21] The application by the defendant to remove the caveat was filed on the 7th of May 2025, and it was returnable in the applications court on the 28th of May 2025, when I first heard argument in relation to it. The parties, at least at the first instance hearing, appeared agreed on what the relevant test to be applied is on the application to remove a caveat. There is no doubt that section 127 of the Land Title Act 1994 (Qld) (LTA) provides that a caveatee may apply at any time for an order that a caveat be removed, and there appears - or, at least, appeared - to be no dispute that it is the plaintiff as caveator who carries the onus of demonstrating that the claim to an interest in the property raises a serious question to be tried, in the sense of a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo, which is a caveat being in place. Then, it is for the plaintiff to show that on the balance of convenience it would be better to maintain the status quo - that is, a caveat in place until the trial of the action - thereby preventing the caveatee from disposing of the property.
[22] That is a well-known test. It is akin to that applied in respect of interlocutory injunctions - the onus being borne by the plaintiff in this case to demonstrate a serious question to be tried, and that the balance of convenience prefers the maintenance of the caveat.
[23] Today (25 June 2025), in oral argument and in supplementary submissions filed on behalf of the defendant, it appeared to be suggested that there was an additional part to that test, namely, that the caveator bore the onus of proving a caveatable interest. But I think, properly, whether there is a caveatable interest, unless it is something that can be determined summarily, which it is not this case - is something that actually just plays into that first issue of whether there is, in fact, a serious question to be tried. There is no additional part to the test to be applied.
[6]
[24] In this case, I do conclude that there is a serious question to be tried. I do not consider the strength of the serious question to be tried to be either so strong or so weak that it, in any real way, determines the outcome of the application.
[25] As to the serious question to be tried based on the evidence that is before me now - bearing in mind this is not a final determination of disputed issues - I think I can say these things.
[26] First, the purchase price for the property, either in whole or in very large part, appears to have been sourced from the plaintiff. Whilst it might have come from an account bearing someone else's name, and where the plaintiff asserts that name is actually still him, there is no realistic hypothesis or evidence put before the court which would suggest that there is some other person out there who has provided over $3 million in cash to the defendant for the purchase of the property. As I said, to suggest that has an air of unreality about it.
[27] Noting that the monies paid to the defendant used for the vast majority of the purchase price came from that account in China, which is not in the name of the plaintiff as it appears on the court header and on the caveat, the plaintiff has claimed, including in Chinese proceedings, that he is the same person as the owner of that account, and that has, apparently, been rejected by certain Chinese courts. But as I have said, there is no identification of any other person who may have had cause to provide those monies to the defendant. And the defendant's alternate case - if it can be an alternate case because it does seem very inconsistent with her primary case - is that the monies were a gift from the plaintiff, provided with the intention of gifting her and her child a home in Australia.
[28] Insofar as the deposit monies for the purchase of the property were paid, and there were some other property related expenses paid before the tranches that add up to the $3 million that came across from the Chinese account, the defendant says in her evidence that, like the balance of the purchase monies, those monies came from her bank account. But, of course, as I have just said, so did the purchase balance monies, and they plainly were not monies that she had available from her own means.
[29] The plaintiff says in his affidavit material that, even though it is not presently pleaded, he was the ultimate source of those initial funds as well. It was noted, during the hearing, that the pleading in that respect might be ultimately amended and, in fact, there was tendered a draft amended statement of claim, which reflects the position advanced in the affidavits. But, regardless, even as the pleadings presently stand, the plaintiff claims a beneficial interest in the whole of the property, not merely in some pro-rata part of it.
[7]
[35] The first concerns the proper forum of the proceeding. I do not accept the defendant's submission that this court is not a proper forum for the resolution of the proceeding or the present application. The relevant property purchased the subject of the dispute is located in Queensland. The plaintiff has lodged a caveat in Queensland over that property. The defendant has applied in Queensland for the removal of that caveat. I cannot see how any other jurisdiction would actually have the ability to deal with the caveat, and insofar as the defendant wants to contend that the underlying proceeding is in the wrong forum, whilst I would not accept that either, no application has been made to stay the proceeding on the basis that it is in an inappropriate forum.
[36] The test that relied upon by the defendant is that referred to in Voth v Manildra Flour Mills Pty Ltd[1990] HCA 55; (1990) 171 CLR 538, and that test is whether Queensland is a clearly inappropriate forum, not whether Queensland is the natural forum, as is suggested in the defendant's submissions. The fact that there are some connecting features about where the money originated from that might make that China an appropriate forum does not preclude Queensland from also being an appropriate forum, and it is certainly not a clearly inappropriate forum. And regardless, as I said, in this interlocutory application, it is actually the defendant who is seeking to invoke the Court's jurisdiction. There is no application for a stay or a dismissal of the underlying proceeding. The defendant is seeking orders which necessarily invoke this Court's jurisdiction under the LTA.
[8]
[37] The next issue concerns issue estoppel. I think that I can pithily state the relevant doctrine of issue estoppel where there is a decision in a first set of proceedings and where issue estoppel might apply in respect to the second set of proceedings, as containing three elements. The first is that the same question has to have been decided. The second is that there has to have been a judicial decision which is said to create the estoppel, and it has to be a final decision. And the third is that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[38] It is not, to my mind, fatal to the plaintiff's proceeding if he is not the same person as the Ji Wan Li from whose account it appears the money was transferred to the defendant to be able to purchase the relevant property. If the plaintiff directed that non-person, whoever it might be, to make the payment to the defendant and the plaintiff has liability for that amount, that might be sufficient at the end of the day. But the reality is here that he claims that he is one and the same as that person, and the defendant says that that issue has already been determined in China and cannot be agitated here.
[39] It is not the same issue as was determined in the Chinese courts. The Chinese courts involved a claim by the plaintiff against the defendant's brother for a sum of money which, it looks like, allegedly needed to be repaid and was not repaid. The evidence seemed to suggest that the loan - if I describe it in that way - or the transfer of money again came from this account of this non or second entity. The plaintiff sued the defendant's brother for the amount, and the court, for reasons that are not clear from either the original decision or the appeal decision, joined the defendant to the proceeding as a third party, seemingly on the basis that her interests might be affected somehow, although it is far from clear to me as to why that would be the case on the material that I have before me.
[40] What the court in that case actually decided was whether the defendant's brother had a liability to the plaintiff for the sum allegedly loaned. It is true that in the original decision and the appeal decision, through some reasoning - which, at first glance, I think any Australian court would treat with some scepticism - suggesting that because of the use of certain citizen identification numbers that are relevant in mainland China versus Hong Kong and some administrative requirement that there not be two of those numbers at the same time for the one person, that because it appeared that two numbers existed, that one of them could not be the identity of the other (two numbers equals two people). It is far from compelling reasoning, and caution, of course, must be taken when one relies upon a foreign judgment for an issue estoppel claim.
[9]
[44] That then means that the matter turns, or strongly is influenced by, where the balance of convenience lies. And the balance of convenience generally lies where if the court is ultimately wrong in its decision on the interlocutory application, the least damage is likely to result. The competing positions appear to be these. The first is that if the caveat remains in place, then the defendant will be required to give an undertaking as to damages (a valuable undertaking as to damages) and the property will not be able to be sold.
[45] If one assumes then that the plaintiff's action is ultimately unsuccessful, then the proper position today should have been that the caveat be removed. The fact that it was not removed will deprive the defendant of her rights as an owner of the property to sell the property at a time of her choosing. It will result in the debts that she presently swears she has not been able pay still not being able to be paid as she wishes to.
[46] Exactly what financial impact that will have on the defendant is not known, but at the least, it would be expected that the defendant might become liable for further interest, and perhaps enforcement costs relating to those debts. It will result in there not being free cash available to her to fund this litigation, or any other litigation, or otherwise spend as she sees fit. It will limit her right to sell the property and move to a different property, the address of which is not known to the plaintiff. The defendant says that is important to her in the circumstances where she alleges that historical act of domestic violence against her by the plaintiff which has resulted in there being in place a domestic violence order, with no admissions. And it also potentially results in a loss of capital gains in the future if the property was to suffer a loss of market value from now moving forward - so if the property market depressed and she does not get to sell it now there is a possibility, at least, that she might lose some capital gains. That is somewhat speculative, but it is least a possibility.
[47] Insofar as those are financial losses actually suffered, the plaintiff in this scenario will have given an undertaking as to damages. I have already remarked that, whilst he is, on the face of the documents, a man of some wealth, much of that wealth is located in China. And insofar as some of the wealth is located in Australia it seems to all be in the names of other people, although he claims a beneficial interest in such property. I would not tend to the view generally that wealth in China would result in an undertaking as to damages being a valuable undertaking in the sense required by a Queensland court because there is not with China the sort of reciprocal enforcement arrangements that exist with some other jurisdictions like New Zealand.
[10]
[66] I have decided an application in respect of an application for the removal of a caveat. I have dismissed that application on the giving of certain undertakings which will be recorded and are still to be received, in one respect, in an affidavit to be filed. The position of the successful plaintiff/respondent is that he seeks costs. He seeks costs on the basis that costs ought follow the event. He seeks some of those costs, in particular, costs that have been incurred post the 12th of June 2025 be awarded on an indemnity basis on the basis, effectively, that the steps that have been taken by the defendant/applicant since that time have been unnecessary and have prolonged the hearing in a way which ought result in a compensatory type order of a higher recovery of costs.
[67] The plaintiff, as an alternative, suggests that I might consider, for reasons I have already raised during submissions, that if I was to give the costs of the first part of the application as costs in the cause on the basis that one does not ultimately know in these type of matters where the true merits of the matter lie until the end of the case, but I would still consider an indemnity costs order in respect of those costs incurred since the 12th of June 2025. The plaintiff concedes that the order might, because of the personal circumstances of the defendant, be formulated in a way that those costs not be payable until the conclusion of the proceeding.
[68] On the other hand, for the defendant, the submission is made that the defendant has acted in good faith in the arguments it has presented, that it, given a change in legal representation, wanted to be sure that certain points were emphasised to the court, which the court did allow in granting leave to reopen argument, and that in the circumstances, the preferable orders that the court would make are no order as to costs or costs in the cause.
[69] The starting position does have to be as the rules provide that costs should follow the event, but there is something to be said in applications which are akin to applications for injunctive relief that the true merits of the case are not known with any certainty until the matter is finally resolved. That does not mean, of course, that there cannot ever be interlocutory costs orders - they are made all the time - but it is a balancing of the relevant factors.
[70] I do think in this case there is justification for thinking about the costs in two different lots. It does seem to me that what has occurred since the 12th of June 2025 has really not been in accordance with what the intention was of what was to occur and has not really advanced matters any further than would have otherwise been the case if we had just, in a brief way, addressed the three issues that remained to be addressed after the 28th of May 2025. So I think there is some proper justification for costs to be treated in a different way in respect of those things.
Parties
Applicant/Plaintiff:
Li
Respondent/Defendant:
Yang [2025] QSC 233
Legislation Cited (1)
Title Act 1994
Cases Cited (1)
(1990) 171 CLR 538
[10] There are pages of WeChat communications between the plaintiff and the defendant which reveal that in around late 2019, early 2020, the defendant expressed a desire to move to Australia and study with her child that she has with the plaintiff and, I think, an older child, and that she wanted the plaintiff to buy her a property in Australia. Ultimately, a property was purchased, with settlement occurring around July 2021.
[11] This is where, on the facts, the parties start to part ways. The plaintiff's position is that he provided approximately $3 million to the defendant for her to purchase a property, a property that had been agreed, with the intention that he would supply all of the moneys for the property. Whilst the property would be in her name, he would retain the beneficial interest in the property, he would have the property as an investment property, he would permit the defendant and her children to reside at the property until such time as he chose to realise his investment. That is the basis upon which he says he has an equitable interest in the property and claims that the property is held on trust for him.
[12] On the other hand, the defendant's position is a little bit more complex. On the face of it, one can see that she contends that if - and I will come back to the "if" - the $3 million that was used to purchase the property originated from the plaintiff, that it was effectively a gift and that therefore there can be no equitable interest held by the plaintiff in the property and no trust. The "if" concerns the fact that she alleges - and it appears undisputed - that the $3 million, which came across from China in about five tranches, actually originated from an account that is not in the name of the plaintiff as is described in the court header of this proceeding, but is in a different name.
[13] The plaintiff says that that different named account is in fact still his, and there is some explanation that has been provided about that based on cultural norms where sometimes Chinese people are assigned second names that are used. Whilst the plaintiff claims the funds in this account in China which were used to purchase the property are his funds, one of the positions submission by the defendant is that the account from which the funds originated belongs to some other person who is not the plaintiff. But there is no explanation from the defendant as to who this other person is or why this other person - if it is in fact another person - would give $3 million to the defendant to purchase a property, so the position advanced by the defendant has an air of unreality about it.
[14] The application to remove the caveat then is made in circumstances where, first of all, there is an underlying allegation made by the defendant that because the money for the property purchase did not in fact originate from the plaintiff but from this other identity, that there is no caveatable interest and, therefore, the caveat ought be removed. The second issue concerns that even if it did come from the plaintiff, it was a gift, and again, there is no caveatable interest and the caveat ought be removed.
[15] The defendant says that it is presently important to her to be able to sell the property and move for a number of different reasons. One is that, she says, she has certain debts that she wishes to pay. It appears there are some credit card debts and amounts that look like, if they are not already due to lawyers, will shortly become due to lawyers, that she would like to pay. She otherwise has limited financial resources available to her and wishes to get some of the equity out of the property.
[16] The other reason that she has expressed that she is concerned to sell the property is that there was an alleged assault by the plaintiff on the defendant on the 3rd of December 2021 which resulted in her obtaining a domestic violence order against the plaintiff, and she says that she wishes to be able to sell the property so that she can move to an address that is not known by him. Important to note in that respect is that the domestic violence order was made without admission, and there is no suggestion on the material that there has been any further conduct of the plaintiff that would be a breach of the DVO since 2021, and in fact there is some evidence that the plaintiff and defendant have since met for meetings whilst in China.
[17] The removal of the caveat is opposed by the plaintiff on the basis that, he says, if the property is sold, even if some of the sale proceeds are paid into court, that would detract from the interest that he claims which is an equitable interest over the whole of the property.
[18] There are a number of other proceedings that ought be mentioned at the outset. There is some evidence that the plaintiff also sued the defendant in China in relation to funds advanced in early 2022. There, in fact, appears to be two proceedings, but those proceedings do not appear to have progressed because of an injunction that was made in the Federal Circuit and Family Court of Australia, which I am going to refer to as the Family Court.
[19] There is, then, the Family Court proceedings. They are proceedings that were commenced by the plaintiff against the defendant on the 17th of November 2023, wherein the plaintiff, amongst other things, sought a declaration that he and the defendant were de facto partners. That matter was initially set for final hearing in July 2025, but it settled on the 27th of May 2025, with the plaintiff withdrawing his application for a declaration that the parties are de facto partners.
[20] In that Family Court proceeding, though, it seems to have been contemplated that the proceedings that were in China and the proceedings in this court could potentially be determined as part of the Family Court proceedings, so neither of the proceedings either by the plaintiff to support the caveat - or any in China - progressed because of what looks to be an agreed stay of those various proceedings. There were orders in that respect in that Court on the 6th of March 2024. That explains why there has not been any significant progression in respect of this proceeding - the underlying proceeding - for a good couple of years.
[30] The next thing to note is that if the purchase monies did come from the plaintiff or were paid to the defendant at the plaintiff's direction - even through some other named account - then the real issue is going to be whether that was intended to be a gift or merely a transfer to allow the defendant to purchase a property, albeit in her name, for the plaintiff as an investment, albeit an investment in which the defendant and her children would be permitted to reside, and there is evidence going both ways on that issue.
[31] In that respect, first, whilst it appears that the plaintiff is a relatively wealthy man, he is not of the wealth of someone like Elon Musk - who was mentioned during the submissions - who could afford to benefit each of the mothers of his children with a $3 million home. There is no particular reason disclosed in the material why the plaintiff might prefer the defendant over all of the other mothers of his children if that is in fact what has occurred. On the other hand, one can see why the plaintiff might gift the mother of one of his children a home even if there no longer be a romantic relationship between them, to give his child some security where the mother does not otherwise appear to be of any significant means, as distinct from some of the other mothers that are mentioned in the affidavit material who do seem to have independent financial means.
[32] I am not persuaded that any presumption of advancement will be particularly relevant to this case. That is, first of all, because, ordinarily, a presumption of advancement in this type of relationship would only arise if there was a marriage relationship, which there is not. But even if there was a presumption of advancement, it would be rebuttable in any event and it is very hard to see that the presumption of advancement in its ordinary form has any particular application to the very peculiar personal circumstances and arrangements that exist between the plaintiff and the defendant in this case.
[33] The next observation, in terms of why there is evidence going both ways on the gift issue, is that the parties, in the evidence, have vastly different views about what was discussed and agreed, and insofar as some of the discussions are recorded in writing - in particular, in extensive WeChat exchanges - I consider the position they reveal to be equivocal. The defendant submits a recorded conversation supports the proposition that the plaintiff promised to advance money to her so that she could purchase a property. Even if that were true, such a promise is not asserted to be supported by consideration and is not, of itself, enforceable. That could be nothing more than a broken promise. So, in my view, there is a serious question to be tried.
[34] Before I turn to the balance of convenience, though, I think that there are some other arguments put by the defendant potentially relevant to the serious question to be tried and at least otherwise relevant to the discretion to be exercised that I should address.
[41] Here, I think there is also some query that exists as to whether the judgment is, in fact, purely judicial in nature or is, in fact, more of an administrative nature, so that requirement does not appear yet satisfied, and the same issue has not been decided, and there is a real issue about whether even the issue estoppel operates where the Chinese proceedings did not involve the defendant as a party in the usual sense but as a third party for some not properly identified reason.
[42] Insofar as the defendant's written submissions of the 11th of June 2025 seem to suggest that there is an issue estoppel statutory provision under the Evidence Act 1977 (Qld) that is relevant, that is now conceded not to be the case and so does not need to be dealt with further.
[43] There is then in the supplementary written submissions an argument about tracing, which I have remarked in a decision I made earlier today in the proceeding, does not actually appear to be part of the plaintiff's claim and it was not advanced orally. It is not a ground to conclude that there is not a serious question to be tried.
[48] I could take judicial notice of the fact that it would be near impossible for someone with an Australian judgment to enforce it in China.
[49] However, this matter has been discussed during the hearing and the plaintiff is prepared to do better than just offer a blanket usual undertaking as to damages. Instead, what the supplementary evidence reveals is that one of the properties in particular located in Australia appears to be a valuable property. It appears that it has a fairly modest mortgage on it at the moment so that there is sufficient equity in it which could support an undertaking, and insofar as the legal title of the property is in the plaintiff's son's name, the son confirms with an affidavit that whilst he holds the legal title to the property, the beneficial ownership lies with his father.
[50] The plaintiff's son has, in the affidavit, indicated willingness to give an undertaking effectively not to interfere with the equity available in that property. But, I think, in these circumstances where the court is trying to protect against the position that might exist in a year's time, in addition to the plaintiff's undertaking as to damages, the son should give the usual undertaking as to damages but limited to the equity available in that property, so that he is not on the hook in some general wide sense. It is really just ensuring that both the legal title holder and the alleged beneficial owner of that equity has made that equity available, should it need to be called upon in the event of a call on the undertaking as to damages. And I do think it is appropriate, also, that the undertaking be given by both of the parties to maintain the equity in that property so that it is available. That, in my view, would be a sufficient valuable undertaking as to damages.
[51] That is the first scenario. The other scenario is the caveat is removed. The defendant, in that case, has expressed an intention to sell the property. The value of the property seems to be at least $4 million. It might be possibly significantly higher - there are values in the 5 million mark mentioned in the material, and it is an unencumbered property. The defendant's primary position is that the caveat should simply be removed, and she be at liberty to do as she pleases with the property regardless of the plaintiff's ongoing claim. That is pretty undesirable in terms of a balance of convenience consideration.
[52] But the alternative that is offered is that if the caveat is removed and the property sold, the defendant would effectively put $3 million of the net sale proceeds into court so that that amount would be protected and could ultimately be claimed against by the plaintiff if he succeed in his action, but that it frees up funds for the defendant to achieve the things she is attempting to achieve by selling the property: that is, paying off other debts, funding litigation, moving to a different property. The application because of that issue and two others was part heard only on the 28th of May 2025.
[53] As the orders made on that day in paragraph 1(c) reveal, the court effectively ordered the defendant to put in details of that alternate position because a concern had been raised during argument that where a sale is permitted but the defendant is required to pay some sum of money into court, that there is a limited opportunity when the sale proceeds are received that the money could be potentially dissipated by the defendant. It was discussed during the hearing that there could be ways to overcome that. One of the ways that I mentioned was the possibility of an irrevocable undertaking. Another way, and certainly the most safe way, for those moneys to be protected was the idea that the Court could in fact appoint a receiver to sell the property and then give directions to the receiver about where the sale proceeds were to go so that there was no risk of dissipation.
[54] The defendant did not comply with order 1(c) of my orders of the 28th of May 2025, and so the alternative - if I put it that way - that is presently before the court is no more advanced than it was as at the 28th of May 2025, which is simply that the caveat be removed and there be just a personal undertaking by the defendant to put $3 million of the net sale proceeds in court. That is the basis upon which I assess the alternatives.
[55] Certainly, I was of the view that if I was to allow the property to be sold, in the circumstances, the preferable course would be for the Court to appoint a receiver to the property so the Court could have confidence that the sale proceeds would be dealt with in the way that the Court requires.
[56] In that scenario of the caveat being lifted, I understood it to be the position that the defendant would give an undertaking as to damages. If that is not the position, that is something that would be important to take into account, but, in any event, even if it does remain on the table, it is, perhaps, not of all that much weight given the evidence suggests that the defendant is not otherwise a person of any real means, and appears unlikely to be able to readily satisfy any call made upon an undertaking as to damages proffered.
[57] Assume that in this scenario, the property is sold, $3 million is paid into court and the defendant retains the balance of the sale proceeds. Assume, then, that the plaintiff's action ultimately succeeds so that the proper position, today, should have been that the caveat not be removed so the title and the property could, ultimately, be transferred to the plaintiff upon the success in the proceeding.
[58] In terms of the convenience, that then would deprive the plaintiff of the ownership of an investment property that he does not wish to sell at the present time. It would deprive the plaintiff of the possibility of further capital gains on the property in circumstances where the plaintiff asserts that he identified this area as a particularly good area for strong capital gains over the longer term. It would deprive the plaintiff of the possibility of over a million dollars in net sale proceeds going to the defendant after the sale, which will, at least, in part, be dispersed to satisfy debts. Where the rest of it goes is unknown. And because of either a lack of an undertaking as to damages or the lack of worth of any undertaking as to damages that could be given by the defendant, any financial loss, in that respect, is unlikely to be recovered from the defendant.
[59] I should mention - although it has not played out in the final submissions - there were a few other variations on those two options that were discussed between myself and counsel, particularly back on the 28th of May 2025. And there are some other relevant matters that might be considered, too. There was raised the possibility of allowing a sale but releasing some lesser money to the defendant initially, or the possibility of putting all of the sale proceeds into Court and having the defendant have to actually make an application for release of the funds, but that would be on the implicit basis that there would be some release of funds, with the precise amounts to be determined on better evidence as to the amounts actually required, because the present evidence about that was quite loose.
[60] There was also discussion about the idea of the release of a percentage of the net proceeds of funds on the basis that as presently pleaded, the plaintiff does not claim that all of the purchase funds came from him, and so it was thought some pro-rata amount of the net sale proceeds might be able to flow to the defendant without too much scrutiny. But as I have mentioned, that is not the position advanced in the plaintiff's affidavit material, nor the proposed amended statement of claim.
[61] But none of those propositions seem particularly attractive to me. It seems, in all of those scenarios, to just leave for another day issues that ought to be resolved on this application now. The parties have had more than adequate opportunity to put on whatever evidence they want before the Court, and I think I should just make a decision.
[62] There was also discussed during the hearing, the possibility of the defendant achieving her aim of moving to a property location not known to the plaintiff by possibly renting out the current property and renting herself somewhere whilst this litigation progresses and concludes. That, on the face of the material I have before me, does not seem likely to be permitted by the present conditions of her ownership of the property under the FIRB conditions, but nor does there appear that there has been any application made to change those conditions, so I do not think I should give too much weight to that. But without wishing to denigrate the defendant's aim to move to a property that the address is not known by the plaintiff, it cannot be ignored that the domestic violence incident is historical and, on the evidence before me, was a one-off. It has not been repeated in the number of years since. There is a DV order in place which has been complied with. The defendant has apparently had personal contact with the plaintiff in China since without incident, and at the moment, the plaintiff has no right to enter the country. In such circumstances, then, that aim about wanting to live somewhere else should be, in my view, given lesser weight by me.
[63] Another factor I should mention is that the proceeding is now about three years old, and the Court would ordinarily expect a proceeding of this nature to have proceeded to resolution much more expeditiously than it has so far. The delay in the plaintiff seeking to finalise the proceeding might have been relevant, but what the evidence discloses is the parties appear to have mutually agreed to stay this proceeding to allow the issues raised by it and others to be agitated in the Family Court jurisdiction. That Family Court proceeding, I am now informed, has come to a mutual end, and really, if the caveat is to remain in place - and even if it does not - it is my intention to make some directions in the matter to get this matter moving expeditiously, and that of course is done not just because of what the UCPR contemplate, but also to minimise any damage that might be suffered by either party as a consequence of the decision on this application.
[64] In the end, in looking at those competing balance of convenience issues, I think that the balance of convenience clearly favours the retention of the caveat, and I am otherwise persuaded that the caveat ought to remain in place.
[65] As for the price of the retention of the caveat, I will require the usual undertaking as to damages, and an undertaking to not take any steps to decrease the equity in the Ransome property and to proceed expeditiously in the prosecution of the proceeding. I will also require an undertaking from the plaintiff's son in the terms that are discussed in his affidavit, again, effectively not to dissipate the equity in the Ransome property, and a personal undertaking as to damages limited to the value in the Ransome property. They are the orders that I am intending to make, but I will need the undertakings to be given before I formally make the orders.
[71] Costs are ultimately discretionary. I do think that I would accede to the defendant's submission not to make a costs order that is immediately payable given the evidence that I have about her particular circumstances, but it does seem to me that based on the evidence that was before the court, that the case for the defendant on the application as a whole did fall in the category of a case where indemnity costs can be ordered, and that has just been emphasised, I think, by what has occurred since the 12th of June 2025.
[72] The orders I am going to make are that the defendant/applicant is to pay the plaintiff/respondent's costs of the application up to and including the 12th of June 2025 on the standard basis, and from the 12th of June 2025 on the indemnity basis, but such costs are not recoverable until the conclusion of the proceeding.