2 The estate or interest claimed by the respondent to support the caveat was an "estate or interest in fee simple with the registered proprietor as tenants in common as the equitable owner of an undivided one half share in the land mentioned hereunder as trustee of the estate in bankruptcy of Charles Terrence Martin by virtue of the bankruptcy of the said Charles Terrence Martin pursuant to a sequestration order made on 4 March 1988 in the Supreme Court of Tasmania exercising Federal Jurisdiction in Bankruptcy, the transfer by Charles Terrence Martin to the registered proprietor of his one half share in the said land by registered transfer number B39831 being void as against the Caveator as his trustee in bankruptcy under the provisions of s120 of the Bankruptcy Act 1966 (C'th)".

3 Several affidavits have been filed and objection has been taken to the admissibility of some parts of them. During the course of hearing submissions upon the question of admissibility it became clear that the resolution of one matter raised by counsel for the applicant was not only relevant to the question of admissibility but was capable of determining the whole application irrespective of what evidence was admissible and both parties accept that it would be appropriate for me to determine that matter before I consider the evidentiary questions.

4 The applicant submits that the caveat should be removed on the ground that the interest in the subject land claimed by the respondent in the caveat is not an "estate or interest" within the meaning of s133(1)(b) of the Land Titles Act 1980. Section 133(1) reads as follows:

(a) a settlor transfers registered land to be held by the transferee as trustee; or

(b) a person claims an estate or interest in registered land under an unregistered dealing, or by devolution in law or otherwise,

that settlor or person may, by caveat in the prescribed form lodged with the Recorder, forbid the registration of any dealing affecting that land, estate, or interest."

5 Neither the bankrupt nor the respondent was registered as a proprietor of the land on the date of the bankruptcy or on the date of the lodging of the caveat. The sole basis upon which the respondent claims an estate or interest in the land is an allegation that the transfer from the bankrupt to the applicant was void under the provisions of s120 of the Bankruptcy Act 1966 (C'wealth). On 4th March 1988 no proceedings under s120 had been commenced.

6 Section 120(1) of the Bankruptcy Act 1966 (C'wealth) reads as follows: -

"A settlement of property, whether made before or after the commencement of this Act, not being -

(a) a settlement made before and in consideration of marriage, or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration; or

(b) a settlement made on or for the spouse or children of the settlor of property that has accrued to the settlor after marriage in right of the spouse of the settlor,

is, if the settlor becomes a bankrupt and the settlement came into operation after, or within 2 years before, the commencement of the bankruptcy, void as against the trustee in the bankruptcy."

7 The applicant's essential submission is that the right of action conferred upon the respondent by s120 does not confer any estate or interest in the land within the meaning of s133(1)(b) of the Land Titles Act 1980.

8 The phrase "estate or interest" appearing in s133(1)(b) of the Land Titles Act 1980 is not defined in that Act and no exhaustive definition of what is a caveatable interest can be derived from the cases. However I think that the following propositions do provide indications of some of the characteristics of a caveatable interest which are relevant for present purposes:

1 "It is only a person who has a legal or equitable interest in land, partaking of the character of an estate in it, or equitable claim to it, who can lodge a caveat "per Griffith CJ in Municipal District of Concord v Coles [1905] HCA 35; (1905) 3 CLR 96 at 107. That case involved a caveat against applications to bring land under the Act but the same principles apply to a caveat forbidding any dealing with the land: In re Caveat of Gamboola Cabonne Phosphates Limited (1919) 19 SR(NSW) 227. In my view it is not correct to say as was said in Ioppolo v Ioppolo (1978) 4 Fam LR 124 that the interest asserted by a caveator need not be an interest in the "technical land law sense - ie partaking of the nature of an estate". That statement conflicts with the passage from the judgment of Griffith CJ which I have just cited and an appeal against the decision in Ioppolo's case was upheld by the Full Court of the Supreme Court of Western Australia: see Ioppolo v Ioppolo (1978) 5 Fam LR Note 27.

2 It is not sufficient if the interest claimed is based upon an assertion of a purely personal right: it must be an interest in the land - see Woodberry v Gilbert [1907] Tas LR 7 at p10.

3 The interest asserted must be in existence at the time of the lodgment of the caveat. The assertion by a caveator who at the time of the lodgment of the caveat does not have an estate or interest in the land that he has commenced proceedings which may result in such an interest being vested in him does not disclose a sufficient caveatable interest: Iappolo v Iappolo (supra), Ex parte Goodlet & Smith Investments Pty Ltd [1983] 2 Qd R 792, Bethian Pty Ltd v Green [1978] HCA 4; (1977) 3 Fam LR 11, 579 at 11, 583, Re Haupiri Courts' application [1969] N.Z.L.R. 348 at 351, Re Pile's Caveats [1981] Qd R 81, re Week's caveat [1971] W.N. 6.

9 I turn now to consider the situation in this case. On 8 April 1986 Charles Terrence Martin divested himself of the whole of his interest in the land, so that the respondent did not have any interest in the land either on the date of the sequestration order or on the date of the lodging of the caveat. The word "void" in s120 of the Bankruptcy Act means "voidable". Section 120 confers upon the respondent the statutory right to take steps to avoid the settlement but does not confer any estate or interest in the land on the respondent. As Kitto J observed in NA Kratzmann Pty Ltd v Tucker (N. 1) [1966] HCA 72; (1969) 123 CLR 257 at pp291 & 292:

"Just as there was a need to remember, in dealing with the submission of Kratzmann Building concerning the use which the liquidator of Developments made of the bill of mortgage in the lien proceedings before Hart J, that when The Companies Act makes a preference void as against the liquidator it does no more than require that the preference be treated as void for the purposes of the liquidation, so there is need to remember it in the present connexion, when the question that arises is whether the liquidator's statutory right to avoid a preference consisting of a security over land is an 'encumbrance, lien, estate or interest' over or in that security. In my opinion it is not. The assumption of the preference sections of The Companies Act and the Bankruptcy Act is that the preference has been validly given, and that save so far as may be necessary for due payment of the debts and the costs and expenses of the winding up or the bankruptcy it will continue to be valid as between the parties to it. No encumbrance or lien is placed upon it; no estate or interest is carved out of it."

10 Thus it has been held that the right of an official assignee to take proceedings to have a voluntary settlement avoided was a personal right which did not pass to the purchaser of the whole of the official assignee's right title and interest in the bankrupt's estate Re Carey ex parte The Official Assignee (1893) 14 NSWR (B & P) 66.

11 Counsel for the respondent relied upon an unreported decision of the Supreme Court of Victoria in Amaca Enterprises Pty Ltd v Official Trustee in Bankruptcy dated 30 September 1983 in which the Court declined to order the removal of a caveat lodged by the Official Trustee in Bankruptcy who claimed an equitable estate or interest in land which he alleged had been transferred by the bankrupt by an instrument which was void by virtue of s121 of the Bankruptcy Act 1966. Although O'Bryan J held that as there was no more than an allegation of a fraudulent dealing with the land the Official Trustee could only assert "an equity to bring an action to set aside the transfer to the applicant" and could not assert that he had an equitable interest in the land his Honour nevertheless concluded that as the Court had the power to make such order as is just he should decline to order the removal of the caveat. With great respect I do not feel able to apply that decision to this case. If his Honour was of the view that the Official Trustee's "equity to bring an action to set aside the transfer" constituted a sufficient caveatable interest then for the reasons which I have given and because I think it is contrary to the thrust of the authorities which I have cited I do not feel able to agree. If his Honour was of the view that it was unnecessary to find that the interest asserted by the Official Trustee was a caveatable interest then with respect I would also disagree because in my view whatever may be thought to be the justice of the case a caveat may only remain on a title if it is based upon a claim that at the time when the caveat was lodged the caveator had a sufficient caveatable interest.

12 Applying the general propositions which I have set out above and for the foregoing reasons I hold that the interest claimed by the respondent in the caveat is not a caveatable interest.

13 I therefore do not find it necessary to consider the affidavit evidence to which objection has been taken.

14 I order that caveat No B313254 lodged by the respondent on 19 October 1989 be removed.