Mr Allen, of counsel for the defendants, takes the objection that the second caveat arises "in respect of the same estate, interest or right and purporting to be based on the same facts as the first caveat" within the meaning of s 74O(1) of the Real Property Act 1900 and by virtue of subs (2) of that section has no effect.
6 There is no doubt in my view that the second caveat purports to be based on the same facts as the first. In the second caveat the person to whom the $93,325 was paid was described as the first mortgagee rather than as the vendor (and this is in accordance with the facts as they now appear). However, it was the same payment of $93,325 and there was only one such payment between the same parties. It seems to me that the first caveat and the second caveat should be regarded as based on the same facts within the meaning of the section. However, a more vexed question arises as to whether the claim is in respect of the same "estate, interest or right". The ambit of this expression has not been explored by the Courts and remains somewhat unclear: see per Young J in Taylor v Commonwealth Development Bank of Australia [1992] ANZ ConvR 161. On the one hand, what was originally claimed was clearly a resulting trust arising from payment to the vendor on purchase of the land, but it is now plain that the payment, although made to the person who was historically the vendor, was made to him after the sale and in his guise as mortgagee, rather than in satisfaction of the payment of the purchase price: see Calverley v Green (1984) 155 CLR 242 at 257. The trust interest now claimed is of the nature of an implied or constructive trust, which in equity arises or is declared in circumstances different from those which give rise to a resulting trust. It may not matter much in this case what ruling I make, since if I hold that it is a different interest the result will be that the existing caveat may remain on the title, whereas if it is in respect of the same interest it must be declared to be of no effect pursuant to s 74O, but I propose in any event, for reasons which I shall hereafter give, to give leave to lodge a fresh caveat.
7 It does seem plain to me from the terms of s 74O(2) that I should have to follow this course, because the wording of the section appears to me plainly to indicate that such leave cannot be granted after the lodgment of the caveat. I agree in this regard with the decision of Sperling J in Hanover Investments v Registrar-General [1999] NSWSC 21. In that case his Honour also took the view that the words in s 74O(1) should be given a wide meaning. Again, I think his Honour is right in taking that view. The aim of the provisions of the Act is to restrict the use in an obstructive way of successive caveats based upon essentially the same subject matter; to construe the words "the same" broadly will assist that objective, whereas to construe them narrowly and take the view that interests defined in a legalistically or technically different fashion will escape the section appears to me to be inimical to the legislative intent.
8 In those circumstances, whilst the same payment is specified in the one caveat as a resulting trust and in the other caveat as an implied or constructive trust, I take the view that the second caveat is in respect of the same estate as well as being based upon the same facts as in the first caveat within the meaning of s 74O. In those circumstances, I propose to declare that the second caveat has no effect by virtue of that section.
9 However, Young J has made it plain in Bell v Mainbarder Pty Ltd 7 November 1991 NSWSC unreported that one of the grounds upon which leave may be given to lodge a second caveat is that the caveator would be entitled to an injunction to restrain transactions, and it is preferable in the public interest to keep a caveat on the title rather than restrain by injunction the registered proprietors from dealing with the title. This in my view is such a case.
10 It flows from the reasons that I have already given that, in my view, an interlocutory injunction would be appropriate in the circumstances, and I think the publicity provided by a caveat, so that the world may be warned of the claimed interest, is a more satisfactory way of maintaining the status quo than simply granting an injunction inter partes. In those circumstances I propose to grant leave to file a fresh caveat. A fresh caveat has been brought forward this morning by Mr Sergi, of counsel for the plaintiff. After discussion with counsel I have made one alteration to that. That caveat is Exhibit A3 in the proceedings. I propose to order that the plaintiff have leave to lodge a fresh caveat in terms of Exhibit A3, a copy of which ought be attached to the order when entered.
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11 The question of costs has been argued before me. The plaintiff has succeeded upon an interlocutory application for relief in the form of a fresh caveat. In my view, the ordinary order in such a case, analogous to a successful application for an interlocutory injunction, would be that the costs of the application be the plaintiff's costs in the proceedings. However, Mr Allen points out to me two significant matters. One is that, by a letter from his solicitors to the plaintiff's solicitors dated 15 June 2000, an offer was made of undertakings to the Court in lieu of injunctions that would have given to the plaintiff a great deal of the protection which he has pressed for. Perhaps this alone might not avoid the usual order, in that the plaintiff did press for and obtain greater relief by way of a further caveat. However, the second matter of which Mr Allen reminded me was that the plaintiff did press for an extension of the existing caveat. On the question as to whether or not the existing caveat could be justified and extended the plaintiff has lost and that caveat has been ruled as of no effect under s 74O(2). What he has obtained in lieu is leave to lodge a fresh caveat, which is in essence by way of an indulgence. In all the circumstances the appropriate order for the costs of this motion is that there be no order as to the costs of the motion.
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