shall be of no effect unless the Supreme Court has given permission and that permission is lodged with the caveat. No such permission was given in the instant case.
17 The second caveat clearly deals with the same interest in land, though differently expressed, and the question is whether it is based on "the same facts".
18 The facts are different in that if there was an inchoate right in October that right crystallised after October and before the lodging of the caveat on 25 March. The reason for that is that the alleged default in not securing the registration of the plan is said to have occurred after the council approved the plan in November and the expiry of the sunset clause.
19 In McCulloch v Fern [2000] NSWSC 729, Hamilton J considered the words "the same facts" in s 74 O and said that one must construe those words widely in view of the mischief that the section was designed to remedy.
20 Mr Aitken, for the plaintiff in the instant case, says that I should follow that authority and as the basal facts on which the defendant relies in both caveats are the same it was necessary for the defendant to have obtained the leave of the court before lodging the new caveat. I think that that argument is correct and, accordingly, the caveat is of no effect. However, there are various other reasons why the same result is almost inevitable.
21 If there is an agreement between two persons that one of those persons may lodge a caveat over the land of the other, then it is often loosely said that that gives an interest in the land to the person who has the right to lodge the caveat. That view comes about because of the decision of the Court of Appeal in Troncone v Aliperti (1994) 6 BPR 13,291. However, a careful reading of that case shows that the case does not go that far. What it appears to me to say is that in such a situation the court may infer that there is an equitable charge because if that inference is not made then the provision will be just so many empty words. Whether the court should in any particular case infer an equitable charge and what the nature of that equitable charge is depends on all the facts and circumstances of the agreement in question.
22 In the instant case, any charge resulting from cl 4.1.1 is clearly limited not to any money that may be due to the defendant under the marketing agreement, but solely to its fee. Its fee is only to be due when the contract becomes unconditional and it never became unconditional because the plan was never registered before it was rescinded.
23 Moreover, the contract clearly defined when the fee was to be payable, and how it was to be payable, and that was out of the settlement proceeds, so that if there were no settlement proceeds, because there had been a rescission, which the purchaser accepted, the fee could never be collected. That does not mean to say that the defendant was without remedy because, under cl 3.6.3 of the marketing agreement, there was a covenant by the vendor not to cause to frustrate the purchaser in the purchaser's attempt to make the contract for sale unconditional, and for its completion. It may be that there is an action for damages under that, or some other provision of the marketing agreement. Whether this be so or not, that is not what is secured under 4.1.1, which is only the fee.
24 It is alleged that cl 33.3 is a default, in that the vendor did not use all reasonable endeavours to have the draft plan registered.
25 It is questionable whether cl 33.3 is a covenant which is the basis of an action for damages, or whether it merely restricts the vendor's right to rescind under 33.2, and if it is the latter, as I suspect it is, though there has not been sufficient argument presented on the point for me to decide it, then non-compliance would not be a default within the meaning of that term.
26 However, what the point being made by Mr Michael J Walsh for the defendant appears to be is that the sunset clause expired in December; the vendor then waited until March before rescinding, after it was quite sure it had a subsequent purchaser, and it must have waived the right to rescind; and knowing that the plan was about to be registered committed a default in rescinding. That submission, with great respect, seems contrary to authority. In Treloar Nominees Pty Ltd v Buttrey (1977) 1 BPR 9672, Helsham CJ in Eq said that one did not readily infer waiver in this sort of situation. Further his Honour said that the principle in New South Wales was that laid down by Needham J in Gilbert v Healey Investment Pty Ltd [1975] 1 NSWLR 650, that once there has been a non-registration of the plan by the date referred to in the sunset clause, the vendor still remains entitled to terminate the contract, even after the strata plan has since been registered.
27 Accordingly, in my view, on the material before me no default has been made out under cl 4.1.1.
28 There is then the problem of s 211 of the Duties Act. If a charge was created under this instrument it would appear to me that it attracted mortgage duty under Chapter 7 of the Duties Act 1997.
29 I say "appears" because the point has not been fully argued. This meant that within three months of the charge being activated it was necessary for mortgage duty to be paid on the marketing agreement. The marketing agreement has been stamped with $10 as a deed, but has never been stamped with any mortgage duty.
30 Section 211 of the Duties Act provides:
"A mortgage on which duty is required by this Chapter to be paid is, while any duty remains unpaid on it, enforceable only to the extent of the amount secured by the mortgage on which duty has been paid under this Act."
31 No duty has been paid under the Act, therefore, the mortgage is not enforceable. I agree with the writers of the current edition of Hill on the Duties Legislation (LBC, Sydney, 2001) at [14.0390] that when one is dealing with mortgages it is s 211 that one applies rather than the general provisions of s 304, which gives way in the case of mortgages.
32 As the mortgage duty had not been paid at the date the caveat was lodged, it would seem to me that in any event the caveat could not be supported.
33 For all those reasons, whichever way one looks at the case, the caveat must fail and, accordingly, the plaintiff is entitled to some relief.
34 There is a cross-claim which seeks that the court give leave to the defendant to lodge a further caveat under s 74 O to protect the interests sought to be protected by the caveat. For the reasons that I have given, that would be a waste of time.
35 Accordingly, the court makes order 1 in the summons. I think that is the tidiest way to do it, rather than order 2.
36 The caveat is to be withdrawn by 10 am on 18 April 2002. The cross-claim is dismissed. The defendant is to pay the plaintiff's costs of the proceedings and the exhibits may be returned.