Nguyen v Sage Consultant Group Pty Ltd; Dang v Nguyen

Structure of these reasons for judgment

1. As it will be necessary for the Court to determine a number of complex procedural and substantive questions, it will be convenient to set out in order the subjects that these reasons will address.
2. First, as mentioned, it will be necessary to examine the procedural history of the two proceedings as the background for explaining the different positions adopted by the parties as to the issues that the Court should determine.
3. Secondly, I will examine the parties' submissions concerning the issues that should be determined and explain my decision as to the proper course for the Court to take in determining the proceedings.
4. Thirdly, I will explain why I concluded during the course of preparing these reasons for judgment that the parties had omitted to formally tender much of the evidence relevant to the procedural and substantive disputes between them, and the steps that were taken to rectify the deficiencies in the evidence after I had formally reserved judgment.
5. Fourthly, I will determine Ms Dang's claims to have a proprietary interest in the Smithfield property as, for reasons that will be explained below, I concluded in answer to the procedural dispute between the parties that it was appropriate for the Court to determine that question.
6. Finally, I will consider the challenging question that arises in these proceedings concerning the relationship between caveators and judgment creditors who wish to enforce their judgments by causing the Sheriff to execute writs for the levy of property against properties of judgment debtors that are subject to caveats.

Procedural background

1. I will begin by describing in some detail the somewhat complex procedural history of these two proceedings.

Orders determining the 2017 proceedings

1. The parties accepted that it is sufficient to start with the orders made by Ward CJ in Eq that constitute the substantive orders in the 2017 proceedings, and by which those proceedings were otherwise dismissed.
2. None of the defendants in the 2017 proceedings took any serious steps in this Court to prosecute their defences after those defences were filed.
3. The Nguyens filed a notice of motion seeking orders striking out the defences and for summary judgment to be given in their favour. The notice of motion was dealt with by Ward CJ in Eq sitting as duty judge.
4. On 29 January 2018, her Honour made the following relevant orders: 3. Strike out the defence filed 12 July 2017 by [Mr Hoang] in these proceedings pursuant to UCPR 12.7(2). 4. Strike out the defence of [Ms Dang] filed 24 July 2017 in these proceedings pursuant to UCPR 12.7(2). 5. Judgment for the [Nguyens] in the amount of $103,380 jointly and severally as against [Mr Hoang] (pursuant to UCPR 13.1) and [Sage] (pursuant to UCPR 16.3). 6. Judgment for the [Nguyens] against [Mr Hoang] (pursuant to UCPR 13.1) in the sum of $136,526. 7. Order [Mr Hoang] to pay the [Nguyens] costs of the proceedings on an indemnity basis. 8. Otherwise dismiss the proceedings.
5. The total amount of the judgment entered against Mr Hoang was $239,906.
6. Ward CJ in Eq published her reasons for making these orders on 6 February 2018: Nguyen v Sage Consultant Group Pty Ltd [2018] NSWSC 65. Her Honour struck out the defences filed by Mr Hoang and Ms Dang for want of prosecution: [45]. Her Honour found that the evidence justified an order for summary judgment against Sage and Mr Hoang for breach of contract, or alternatively on the basis of a total failure of consideration: [47]. It was not necessary for her Honour to deal with the separate claims made for damages for misleading and deceptive conduct: [49]. In relation to Ms Dang, her Honour noted at [50] that the only allegation against her in the pleading was that she owed fiduciary obligations to the plaintiffs because she was a director of the company in question. Ward CJ in Eq did not accept that this claim was made out on the evidence before her.
7. I have not had the advantage of reading the transcript of the summary application dealt with by Ward CJ in Eq. It is not clear why her Honour made an order dismissing the proceedings, given that the application against Ms Dang was for summary relief. As mentioned above, her Honour noted at [50] that the only claim pleaded was for breach of fiduciary duty, and that a Barnes v Addy (1874) LR 9 Ch App 244 claim had not been pleaded. It may be that her Honour dismissed the proceedings because she was satisfied that the only basis of the claim pleaded against Ms Dang was unsound.

First writ

1. On 10 May 2018, this Court issued a writ authorising the Sheriff to levy on the property of Mr Hoang to the amount of $240,669 plus interest together with the reasonable costs of the execution of the writ. I will refer henceforth to writs for the levy of property simply as writs, and to this writ as the first writ.
2. NSW Land Registry Services issued a registration notice dated 7 June 2018 to the effect that the first writ had been registered against the title to the Smithfield property with dealing number AN402095.

Lodgement of Caveat

1. Ms Dang's solicitors, Gartree Thomson Lawyers, caused a caveat to be lodged against the title to the Smithfield property on behalf of Ms Dang on 26 June 2018 (the Caveat). The estate or interest claimed by Ms Dang in the property was described as follows: ACTION PROHIBITED BY THIS CAVEAT 1. The recording in the Register of any dealing other than a plan affecting the estate or interest claimed by the Caveator. … 7. The Recording in the Register of a Writ affecting the estate or interest claimed by the Caveator. ESTATE OR INTEREST CLAIMED Lien - By virtue of: Agreement Dated: 22/12/2014 Between [Ms Dang] And [Mr Hoang] Details Supporting The Claim: Funds advanced to registered proprietor for payment of outgoings with respect to the property

Applications in the 2017 proceedings

1. On 9 July 2018, the Sheriff sent a Notice of Non-Levy to the Nguyens' solicitors that explained that the Sheriff's officers attempted execution of the first writ on 25 June 2018 but were unable to locate the address as the street number could not be located. As it happens, the Smithfield property has two street addresses, and the number on the property when visited by the Sheriff's officers was not the number in the first writ, but the number of the other street address.
2. The Sheriff sent a further Notice of Non-Levy to the Nguyens' solicitors dated 28 August 2018. The notice stated that a levy under the first writ had not been made, notwithstanding an attempt on 20 August 2018, as access could not be gained to the Smithfield property due to a padlocked gate.
3. On 22 November 2018, the Nguyens filed a notice of motion in the 2017 proceedings seeking an order that the Caveat be removed on the ground that there was no caveatable interest pursuant to s 74F of the Real Property Act 1900 (NSW). They also sought an order prohibiting the lodgement of a further caveat, and an order that Ms Dang cease to reside at the Smithfield property. An order for costs was sought against Mr Hoang and Ms Dang, as well as against Gartree Thomson Lawyers.
4. The Nguyens reformulated their relief in an amended notice of motion filed on 24 January 2019, in which they discontinued their claim for costs against Gartree Thomson Lawyers (the Nguyens' amended motion).
5. As stated, the original notice of motion filed by the Nguyens sought, by prayer 2, an order that the Caveat be removed on the ground that Ms Dang had no caveatable interest pursuant to s 74F of the Real Property Act. While the notice of motion does not say so, that was probably an application for an order for the withdrawal of the Caveat under s 74MA(2) of the Real Property Act. The amended motion made that application explicitly in prayer 3. However, the amended motion went further, in prayer 2, by seeking a declaration that Ms Dang held no equitable lien over the Smithfield property and that the Caveat "was lodged for the collateral purpose of defeating the Judgment of this Court of 6 February 2018, without reasonable cause and is of no effect".
6. On 15 February 2019, Ms Dang filed a notice of motion in the 2017 proceedings, by which she sought an order that the Nguyens' amended notice of motion be summarily dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4, or otherwise pursuant to the Court's inherent jurisdiction (the Dang motion). Ms Dang also sought an order in the alternative for the Nguyens to provide security for her costs of the Nguyens' amended motion.
7. The affidavit of Ms Dang's solicitor in support of the Dang motion annexed a letter that he wrote to the Nguyens' solicitor dated 1 February 2019, which suggested that the basis for the application for security for costs was that at least one of the Nguyens was ordinarily resident outside Australia.
8. The affidavit annexed a further letter dated 13 February 2019 that set out the basis for Ms Dang's claim for summary dismissal of the Nguyens' amended motion. That was that the Nguyens did not have an interest in the Smithfield property, and a party can only make an application under s 74MA of the Real Property Act if the applicant is a "person who is or claims to be entitled to an estate or interest" in the subject land. Ms Dang therefore claimed that the Nguyens did not have standing to make the application.
9. The Nguyens' solicitor apparently made a further application for the Sheriff to sell the Smithfield property under the first writ as, on 27 March 2019, the Office of the Sheriff sent a letter to the Nguyens' solicitor that stated the requirements that the Nguyens had to satisfy before the Sheriff would act upon the request. Among other things, the Nguyens were required to supply a valuation of the Smithfield property by a licensed independent valuer (not an appraisal from a real estate agent). They were required to pay a land sale fee of $867 and also to deposit $10,000 to cover further costs. The letter also stated: "Please ensure you have minimum 6 months validity on the Writ for Levy of Property before the date of expiry".
10. On 2 April 2019, Ward CJ in Eq listed the Dang motion for hearing before Lindsay J on 24 May 2019, limited to the issue of the summary dismissal application.
11. The written submissions served by Ms Dang in anticipation of the hearing fixed before Lindsay J made clear in par 3 that there were two principal issues. The first was whether the Nguyens' amended motion should be summarily dismissed by reason that than the Nguyens had no standing to apply for the relief they claimed and because the Court would not otherwise grant that relief. The second was whether the notice of motion should be summarily dismissed because the relief claimed is not appropriately sought in proceedings which have been finally determined.
12. Ms Dang also submitted that the Nguyens did not have a right to a declaration that Ms Dang did not have any interest in the Smithfield property, because the relief claimed was not directed at the resolution of any controversy between the Nguyens and Ms Dang. Ms Dang submitted, at par 19: While the plaintiffs may have a financial interest in recovering their judgment, that gives rise to no controversy between Ms Dang and themselves. And that financial interest in recovery of judgment is a different thing altogether from an interest supporting the maintenance of a claim for a declaration as to interest in the land.
13. Ms Dang further submitted that the relief claimed in the Nguyens' amended notice was not available, relying upon the decision of McLelland J (as his Honour then was) in Phillips v Walsh (1990) 20 NSWLR 206 at 210, on the basis that the 2017 proceedings had been dismissed against Ms Dang, and the relief sought could not be described as the 'working out' of the orders made in the proceedings.

Second writ

1. The first writ issued on 10 May 2018 expired 12 months later on 10 May 2019 under UCPR r 39.20.
2. On 13 May 2019, after the first writ had expired, the Nguyens' solicitors filed a notice of motion seeking an order that the first writ "be renewed or extended for 12 months".
3. The Court made a new order for the issue of a writ on 22 May 2019, and on the same date that writ was issued (the second writ).

Further conduct of 2017 proceedings

1. On 24 May 2019, Lindsay J made an order giving the Nguyens liberty to file a notice of motion, returnable before his Honour on 19 June 2019, which joined the Sheriff as a respondent to the motion, and sought directions for the conduct by the Sheriff of a sale in execution of the first writ in respect of the Smithfield property.
2. Lindsay J also made a notation as to the questions that may arise for determination on such a notice of motion, in the following terms: 2) NOTE that questions which may arise for determination on such notice of motion are: a) first, whether a transferee from the Sheriff on a sale of the [Smithfield property] pursuant to [the first writ] is entitled to priority over any estate or interest in the land claimed by [Ms Dang] pursuant to [the Caveat] lodged against the title to the land after registration of the writ, such that the transferee is entitled to registration of a transfer free of any estate or interest claimed in the land by [Ms Dang] as caveator. b) secondly, whether the Sheriff should be directed to make an application for an order that [the Caveat] be withdrawn. c) thirdly, whether, upon a sale of the land in execution of the writ, any proceeds of the sale payable to [Mr Hoang] pursuant to rule 39.15(c) are charged with such, if any, entitlement [Ms Dang] may have under, or by reference to, her caveat.
3. It appears that it was not brought to Lindsay J's attention that the first writ had expired, and that the second writ had been issued.
4. Lindsay J also ordered that Ms Dang's claim in her notice of motion for an order summarily dismissing the Nguyens' notice of motion be adjourned to 19 June 2019 before his Honour for directions.
5. The Nguyens filed a further notice of motion on 4 June 2019 (the second Nguyens motion), to which the Sheriff was made a respondent. They claimed the following relief: 1. The Court directs the Sheriff of New South Wales, along with [Mr Hoang and Ms Dang] are joined as a Respondent to this motion. 2. The Court directs the Sheriff of New South Wales execute the [first writ for levy of property] on the title to the [Smithfield property] and put the said property to public auction. 3. Where it is determined by the Court that a transferee from the Sheriff on the sale of the land is not entitled to registration of a transfer free of any estate or interest claimed by [Ms Dang] pursuant to [the Caveat], the Court directs the Sheriff of New South Wales to make an application to the Court that [the Caveat] on the land be withdrawn.
6. The evidence provided to the Court during the procedural management of the proceedings established that the Sheriff declined to cause the Smithfield property to be sold in execution of the first writ because of the possibility that Ms Dang may have been entitled to the interest claimed in the Caveat. Further, the existence of the Caveat would likely prejudice the sale because potential purchasers might be dissuaded from offering a fair market price because of doubt as to whether the transfer to them by the Sheriff would take priority over the interest claimed in the Caveat. The Sheriff had required that issue to be resolved before steps were taken to sell the Smithfield property.
7. Lindsay J made case management orders on 19 June 2019. They included, by order 1, an order that Ms Dang's claim for an order that the Nguyens amended motion be summarily dismissed, and the Nguyens second motion, be heard together with evidence on the one application being evidence on the other. By order 2, his Honour noted that the questions that arise for determination on those applications include the questions noted in par 2 of the orders made on 24 May 2019. His Honour listed the proceedings for further directions on 3 July 2019.
8. The proceedings were then adjourned on a number of occasions and came before Lindsay J on 21 August 2019. His Honour made the following notations and orders: 1. ORDER that [Mr Hoang], in consultation with the National Australia Bank, inform the Sheriff no later than 23 August 2019, of the amount claimed by the Bank to be due to it under its mortgage over the subject property. 2. NOTE that the parties propose, in consultation with the Sheriff, to consider whether there can be any agreement between them to facilitate a sale of the property on the terms set forth in paragraphs 2 to 5 inclusive of MFI S5 or some variation thereof. 3. NOTE that it is agreed between the Sheriff and all parties that the Sheriff will be responsible for her own costs associated with her appearance before the Court in these proceedings, and that no party will seek costs against the Sheriff in relation to her appearance in the proceedings. 4. ORDER that the proceedings be listed before Lindsay J for directions at 9:30am on 4 February 2019.
9. The MFI referred to in note 2 consisted of consent orders proposed by the Sheriff. Those orders were never made. Paragraphs 2 to 5 consisted of a direction to the Sheriff from the Court under s 135 of the Civil Procedure Act 2005 (NSW) to sell the Smithfield property and pay the net proceeds of sale into court. For that purpose, Ms Dang would be directed to withdraw the Caveat and to give up possession of the Smithfield property.

Application for recording of second writ for levy of property

1. On 25 June 2019, the Nguyens' solicitor lodged a request for the registration of the second writ. The request was given dealing No AP330678R. The request was: "Writ AP330678R to be registered as the renewed writ for the extension of operation of writ AN402095 registered on the title of [the Smithfield property]".
2. There is no direct evidence of the Registrar-General's response to this application.

Application for issue of lapsing notice

1. On 31 July 2019, the Nguyens' solicitor lodged an application for the preparation of a lapsing notice in respect of the Caveat. The ground of the application stated was: (f) The applicant being the judgment creditor in [the 2017 proceedings] applies under SECTION 74I OF THE REAL PROPERTY ACT 1900 for the preparation of the notice referred to in that section. The above mentioned caveat prohibits the registration of THE RENEWED WRIT ISSUED ON 22/5/2019 AP330678R.
2. While the Nguyens' amended motion directly sought an order from the Court under s 74MA of the Real Property Act that Ms Dang withdraw the Caveat, by the application referred to in the preceding paragraph, the Nguyens sought to proceed by the alternative course of seeking the issue of a lapsing notice under s 74I of the Real Property Act.
3. On 4 September 2019, Lindsay J noted: "that the parties are presently engaged in discussions about whether a sale of the property can be arranged on terms sufficient to accommodate competing interests", and stood the proceedings over to 13 September 2019 for directions.
4. NSW Land Registry Services issued a Notice to Caveator of Proposed Lapsing of Caveat. Materially, the lapsing notice stated: Notice is hereby given that the following dealing affecting the above applicant and folio (sic) been lodged for registration. AP330678 REQUEST Accordingly, I hereby give notice that a recording will be made in the Register of the lapsing of your [Caveat] as regards the said dealing as to the applicant and folio referred to above, upon the expiration of 21 days after the date of service of this notice upon you, unless an order extending the operation of the Caveat is obtained from the Supreme Court of New South Wales and such order (or an office copy thereof) is lodged with me within that period. If your Caveat is lapsed the above dealing will be registered.
5. The Nguyens' solicitor served the lapsing notice on Ms Dang's solicitors under cover of a letter dated 9 September 2019.

Further conduct of the 2017 proceedings continued

1. The proceedings came before Lindsay J again on 18 September 2019. His Honour made the following notation: 1. NOTE that the parties inform the Court that: a) they have been unable to reach an agreement about whether a sale of the subject property can be arranged on terms sufficient to accommodate competing interests. b) on 13 May 2019, the plaintiffs filed a notice of motion seeking a renewal or extension of their writ for the levy of property. c) on 22 May 2019, a Registrar of the Court ordered that the writ continue in force for 12 months from that day. d) the Registrar-General has declined to register the renewed writ because of the presence on the title of the property of [the Caveat]. e) on 9 September 2019, at the instigation of [the Nguyens], [Ms Dang] was served with the lapsing notice relating to her Caveat. f) according to the terms of the lapsing notice, [Ms Dang's] caveat will lapse on 30 September 2019.
2. Note 1(c) recorded that the Registrar-General had declined to register the second writ because of the prohibition in the Caveat. This is the only indication that the Registrar-General actually declined to register the second writ for that reason. I infer that Lindsay J must have been satisfied by what he was told in court that it was appropriate for him to make that note.
3. Section 74H of the Real Property Act governs the effect of a caveat lodged under s 74F. Section 74H(5)(f) provides: "Except in so far as it otherwise specifies, a caveat lodged under section 74F to protect a particular legal or equitable estate or interest in land… does not prohibit the Registrar-General from recording in the Register with respect to the same land… (f) a writ or the cancellation of the recording of a writ in accordance with section 105D…" It appears that the Registrar-General declined to record the second writ in this case because the terms of the Caveat prohibited the registration of another writ.
4. The events recorded in these notations are the source of Ms Dang's continuing claim that the Nguyens do not have standing to challenge the validity of the Caveat. I will explore the legal basis of that position below, but for the moment it is sufficient to note that Ms Dang originally argued that the Nguyens' application for an order that she withdraw the Caveat under s 74MA of the Real Property Act was misconceived because the issue of the first writ did not give the Nguyens an interest in the Smithfield property, and the existence of such an interest is a pre-requisite to standing to seek the withdrawal order. In respect of the Nguyens' application under s 74I of the Real Property Act, Ms Dang's position is that, at the time that the Nguyens made their application for the issue of a lapsing notice under s 74I of the Real Property Act, the first writ had expired but it remained registered against the title. The Registrar-General did not have statutory power to register the second writ against the title while the first writ remained registered, because of the effect of s 105(5) of the Real Property Act. Consequently, Ms Dang seeks to argue that the Nguyens' standing to make the application cannot be based upon the failure of the second writ to be registered because of the prohibition in the Caveat.
5. His Honour made various orders for the service of affidavits and submissions. By order 4, he ordered that any application to be made by Ms Dang responsive to the lapsing notice be made by way of summons returnable before his Honour on 27 September 2019.
6. By order 7, Lindsay J ordered the Sheriff to file and serve any affidavits and written submissions the Sheriff proposed to file, including any response to the summons to be filed by Ms Dang.
7. The proceedings were then stood over to 27 September 2019 before his Honour for directions.

Commencement of the 2019 proceedings

1. Ms Dang filed the summons ordered by Lindsay J on 23 September 2019. The Nguyens were the first to third defendants. Mr Hoang was the fourth defendant. The Registrar-General was the fifth defendant.
2. The position of the Sheriff and the Registrar-General in these two proceedings may be a little unclear. The Sheriff became a party to a notice of motion in the 2017 proceedings. The Sheriff was not made a party and has not taken any steps formally in the 2019 proceedings. The Registrar-General was made a defendant to Ms Dang's 2019 proceedings. The Registrar-General has not taken any active part in the proceedings.
3. Ms Dang sought an interim order under s 74K(2) of the Real Property Act extending the operation of the Caveat until further order.
4. In so far as and the Nguyens were interested in the final relief claimed, that relief was as follows: 5. A declaration that the "Notice to Caveator of Proposed Lapsing of Caveat…" addressed to [Ms Dang]… is not a notice validly prepared and issued under Real Property Act 1900 (NSW), s 74I(1) and of no effect for the purpose of s 74I. 6. A declaration that [Mr Hoang] holds his interest in the Land on trust for [Ms Dang]. 7. A declaration that [Ms Dang] is entitled to an equitable lien over the Land. 8. In the alternative to paragraph 6, a declaration that [Ms Dang] is entitled to recoupment from [Mr Hoang] for funds contributed by [Ms Dang] in relation to the Land. 9. A declaration that the entitlement of [Ms Dang] as referred to in paragraph 8 above is secured by the equitable lien declared in paragraph 7 above. … 11. An order that [the Nguyens] withdraw their application or request under Real Property Act 1900 (NSW), s 105(2), to have recorded on the register for the Land the Writ for the Levy of Property of [Mr Hoang] issued by the Court on 22 May 2019.
5. Prayer 5 sought an order that would uphold Ms Dang's argument that the Nguyens did not have standing to apply for the issue of the lapsing notice.
6. However, by prayers 6 to 9, Ms Dang sought declarations to establish in a positive way that she had certain interests in the Smithfield property.
7. Furthermore, it is implicit in Ms Dang's application in prayer 11, that the Nguyens be ordered to withdraw their application for the second writ to be recorded on the title, that Ms Dang was specifically putting in issue the Nguyens' entitlement to enforce the writ. It may be that Ms Dang could only be entitled to such an order if she established that she had a prior beneficial interest in the Smithfield property that, so to speak, exhausted the equity of Mr Hoang, with the result that there was no interest of Mr Hoang against which the writ in practical terms could be executed. Prayer 11 may therefore have given the Nguyens a proper interest to resist Ms Dang's claims for the declarations in prayers 6 to 9, even if they otherwise did not have that standing.

Evidence provided on behalf of the Sheriff

1. On 26 September 2019, Mr David Dodds, Senior Assistant Sheriff, affirmed an affidavit in response to the orders made by Lindsay J. Mr Dodds explained the processes followed by the Sheriff in implementing writs and provided the following explanation concerning the consequences of a caveat being lodged against the title to the relevant land: 10. The Sheriff is required to take steps to sell the Property under the terms of the Uniform Civil Procedure Rules 2005, but is also mindful of the duty not to sacrifice the value of the Property as set out in those Rules. … 12. The Sheriff will take direction from the judgment creditor concerning the creditor's wishes in executing the writ. Where there is a caveat recorded on the title, the Sheriff will ask the creditor to take steps to ascertain the amount claimed under the caveat, and to reach an accommodation with the caveator to execute a withdrawal of the caveat and provide it on settlement in exchange for an amount sufficient to satisfy the caveator. 13. Where a caveat is on title and the creditor is unable to provide the Sheriff with information concerning the nature and value of the interest claimed by the caveator, the Sheriff is unlikely to proceed with the sale. 14. If the quantum of the interest claimed by the caveator cannot be ascertained, the Sheriff is not in any position to determine whether or not there will be sufficient equity in the property to ensure that there will be any surplus available for the judgment creditor. 15. A further reason for not proceeding to sell when the quantum of the interest of the caveator cannot ascertained (sic) is that any purchaser at a Sheriff's sale will then be required to take steps to deal with the interest of the caveator. The Sheriff considers that this potential blot on the title of the registered proprietor will have a significant deterrent effect on bidders at a sale by public auction, and may not achieve the approximate market value, or even a fair market value for the property. 16. If the Sheriff proceeded to a sale with a caveat on the title which was not to be removed on settlement the Sheriff takes the view that such a sale is likely to achieve an offer which is substantially below the fair market for the property, having regard to the uncertainty which a purchaser would face in addressing the issue of the caveat. 17. The Sheriff takes the view that a purchaser at a Sheriff's sale must deal with the caveator before becoming registered and that a caveat lodged against the subject property, and not removed, will prevent the purchaser from becoming registered a proprietor (sic).
2. This affidavit was not read at the hearing. I will not rely upon it to prove any contentious fact the subject of these reasons for judgment in so far as the fact is relevant to the dispute between Ms Dang and the Nguyens inter se.
3. I wish to express the gratitude of the Court for the assistance provided by the Sheriff in this matter, both by means of the affidavit made by Mr Dodds and by the helpful written submissions of Ms Patricia Lane of counsel dated 27 September 2019. The Sheriff did not appear at the final hearing but invited the Court to make such use of the affidavit of Mr Dodds and the submissions of Ms Lane as it thought appropriate. The submissions addressed, among other things, aspects of the questions noted by Lindsay J, and explained the statutory regime governing the office of the Sheriff, the issue and execution of writs, and the practical relationship between the lodgement of caveats against the title to land the subject of writs and the practice of the Sheriff in dealing with such writs, where a caveat has been lodged that will prevent the registration of a transfer of the land under a contract entered into by the Sheriff.
4. The Sheriff was invited by the Court to assist it by explaining the Sheriff's practice in executing writs in cases where a caveat was lodged against the title. The Sheriff responded to the invitation without opposition from the parties. The Court necessarily became aware of the Sheriff's response, and I will take it into account in a general way when I consider the operation of the statutory regime governing the relationship between writs and caveats.
5. It is sufficient to note that the lodgement of a caveat may sometimes frustrate the processes of the Court in respect of the enforcement of its judgments. That may occur in particular if the judgment creditor does not have standing to cause invalid caveats to be withdrawn, or even because the process of achieving withdrawal of the caveat may not be achievable within the six month protected period, which I will explain below.

Further steps in the two proceedings

1. After an intervening directions hearing, Lindsay J made further directions in the 2019 proceedings on 27 September 2019.
2. Relevantly, by orders 3 to 5, Lindsay J ordered that the proceedings proceed by way of pleadings and ordered that a statement of claim and defences and cross claims be filed by certain dates.
3. By order 8, his Honour made an order extending the operation of the Caveat up to and including 14 November 2019.
4. Ms Dang filed her statement of claim on 11 October 2019. It will be convenient to defer a consideration of the allegations made in the statement of claim until the merits of that claim are considered.
5. Ms Dang swore her primary affidavit in support of the relief claimed in the statement of claim on 11 October 2019.
6. The Nguyens filed their defence on 1 November 2019. In substance, they put Ms Dang to proof of her claim. The Nguyens did not avail themselves of Lindsay J's invitation to file a cross claim. However, in pars 42 to 48 of their defence, the Nguyens in effect pleaded a claim against Ms Dang that, as a result of Mr Hoang defrauding the paternal Nguyen of $238,705, Ms Dang received and retained for her own benefit the amount of $172,550, which the Nguyens claimed as money had and received by Ms Dang. They also claimed that those monies were held on constructive trust for them by Ms Dang.
7. It is necessary to be aware that the Nguyens pleaded this informal cross claim in their defence. However, on the last day of the hearing, they abandoned this claim. That will be relevant when the issue of the appropriate costs orders come to be considered.
8. It will be convenient, however, to note that in her statement of claim Ms Dang pleaded her claim that the lapsing notice was not validly issued under s 74I(1) of the Real Property Act as follows: 38. At the time of issue of the Purported Notice: a. s 105(5) of the Real Property Act 1900 (NSW) obliged [the Registrar-General] to not record the Second Writ in the Register unless the recording of the First Writ had been cancelled; and b. the recording of the First Writ had not been cancelled. 39. In the premises, at the time of issue of the Purported Notice: a. the Second Writ could not be recorded in the Register because of the operation of this 105(5) of the Real Property Act 1900 (NSW); b. the Judgment Creditors were not: i. judgment creditors under a writ that could not be recorded because of the Caveat; and ii. within the class of persons who could make application for the issue of a notice under s 74I(1) of the Real Property Act 1900 (NSW). 40. In the premises, the Purported Notice was not a notice validly prepared and issued under s 74I(1) of the Real Property Act 1900 (NSW) and is of no effect for the purpose of s 74I.
9. The Nguyens responded to this claim in par 39 of their defence by saying, in substance, that there is nothing in the Real Property Act that requires the cancellation of the first writ before the issue of the lapsing notice under s 74I and that the second writ may be recorded once the Registrar-General cancels the recording of the first writ.
10. They pleaded further in par 40: … and further say irrespective of the same any interest alleged in the Property by the Plaintiff is nothing more than a sham and the Court should decline to extend [the Caveat] recorded on the title of the Property as sought in the summons commencing these proceedings and order [the Registrar-General] to cancel the record of the same on the title of the Property.
11. It will be convenient to note at this point that I do not consider the Nguyens to have prosecuted their claim at the final hearing that the lodgement of the Caveat was a sham dishonestly intended to thwart the judgment of the Court. That serious claim was not directly put to Ms Dang in cross-examination. The Nguyens directed their forensic attention to establishing that Ms Dang did not have the interests in the Smithfield property that she claimed.
12. The principal affidavit in support of the Nguyens' defence was affirmed by their solicitor on 4 November 2019.
13. On 14 November 2019, Lindsay J made certain case management orders and further extended the Caveat up to and including 3 December 2019.
14. The Court Book contains at pages 853 to 887 an affidavit of Mr Hoang apparently prepared in November 2019. The affidavit was ultimately not affirmed and was not read at the final hearing.
15. Ms Dang affirmed a further substantial affidavit in support of her claim in the 2019 proceedings on 2 December 2019.
16. On 3 December 2019, Lindsay J made further orders in both the 2017 and the 2019 proceedings. Primarily, his Honour noted that the solicitor for Mr Hoang in both proceedings had filed a notice of ceasing to act.
17. Lindsay J also made an order further extending the caveat up to and including 6 February 2020.
18. His Honour then stood the proceedings over for further directions on 6 February 2020.
19. On 3 February 2020, the Nguyens' solicitor filed a further substantial affidavit affirmed by him on 31 January 2020 in the 2019 proceedings.
20. Lindsay J made further orders in both the 2017 and the 2019 proceedings on 6 February 2020. Relevantly, his Honour referred both proceedings to the Registrar "for the appointment of a date for the further hearing of the two proceedings (with an estimated duration of three days)".
21. By order 5 in the 2019 proceedings, Lindsay J extended the Caveat until further order.
22. On 12 February 2020, the Registrar in Equity made an order in each of the proceedings listing them to be heard on 26 October 2020 by me with an estimate of three days.

Application for renewal of second writ

1. On 26 May 2020, the Nguyens filed a further notice of motion in the 2017 proceedings seeking an order that the second writ be renewed for a further 12 months, as that writ expired on 22 May 2020.
2. The Principal Registrar of the Court, on 29 May 2020, made the following orders and notations: THE COURT NOTES THAT: 1. The matter is listed for hearing before the Honourable Justice Robb on 26 October 2020. THE COURT ORDERS THAT: 2. The notice of motion for writ for the levy of property is refused until the issues relating to the operation of the caveat on the subject property are resolved.
3. It will be noted that both proceedings were simply fixed to be heard by me commencing on 26 October 2020, without any separate orders being made as to how the various notices of motion that remained extant would be dealt with in relation to the merits of the substantive questions of whether Ms Dang had an interest in the Smithfield property, whether that interest was properly protected by the Caveat, and whether the Court should make an order that the Caveat be withdrawn.

Ms Dang's notice of motion in 2019 proceedings

1. Ms Dang filed a notice of motion in the 2019 proceedings on 28 September 2020 (second Dang motion). The notice of motion sought the following relief: 1. Pursuant to the orders of Her Honour Ward CJ in Eq. made on 2 April 2019, prayers 1 and 2 of the Notice of Motion filed by [Ms Dang] on 15 February 2019 in [the 2017 proceedings] be determined prior to any other matter before the Court. 2. The [Nguyens] are to pay [Ms Dang's] costs of the whole of these proceedings. IN THE ALTERNATIVE TO PARAGRAPH 1 AND 2 3. The Defence/Cross-Claim filed by [the Nguyens] on 1 November 2019 is struck out or summarily dismissed pursuant to Uniform Civil Procedure Rules 2005, rules 14.28 and 13.4 or otherwise pursuant to the Court's inherent jurisdiction. 4. The proceedings be otherwise dismissed. 5. The [Nguyens] are to pay [Ms Dang's] costs of the whole of these proceedings. FURTHER, IN THE ALTERNATIVE TO PARAGRAPHS 3, 4 AND 5 6. Pursuant to the Uniform Civil Procedure Rules 2005, rule 42.21(1), the [Nguyens] are to provide security for [Ms Dang's] costs of the Cross-Claim for such amount as the Court thinks fit and by way of payment into Court or unconditional and irrevocable bank guarantee from an Australian trading bank in favour of [Ms Dang]. 7. Any security ordered to be given by the [Nguyens] to be given within 28 days of this order or within such other time as the Court thinks fit. 8. Until security is given in accordance with paragraphs 7 and 8 above, the whole of the proceedings be stayed. 9. If security is not given in accordance with paragraphs 7 and 8 above, pursuant to Uniform Civil Procedure Rules 2005 r 42.21(3) the proceedings are dismissed. 10. The [Nguyens] to pay [Ms Dang's] costs of and incidental to this Notice of Motion. IN THE ALTERNATIVE TO ALL PARAGRAPHS ABOVE 11. The Hearing commencing 26 October 2020 is vacated 12. Such further orders as the Court thinks fit
2. Ms Dang was not given leave to file this notice of motion.

The parties' positions concerning the issues for determination

1. Before the hearing commenced on 26 October 2020, the Nguyens delivered a written outline of opening submissions on 23 October 2020 and Ms Dang responded on 26 October 2020.

The Nguyens' position

1. As foreshadowed above, by pars 9 and 10, the Nguyens set out what they described as the "only four real issues which require determination by the Court". Those issues were: (a) Are any of the moneys allegedly advanced to Dang [read Hoang] in relation to the Property subject to the presumption of advancement between Dang and her son Hoang and has Dang discharged her burden to displace the presumption? (b) Relatedly, if the moneys allegedly advanced to Hoang in relation to the Property are not by way of advancement, does Dang have a valid equitable interest in the Property that rises higher than a mere equity or loan and what is the extent of that equity and is the Caveat lodged on behalf of Dang on title therefore valid or a mere sham lodged with the improper purpose to defend a judgment of this Court? (c) Where the Court finds Dang's interest in the Property does not rise higher than a mere equity or loan and Dang is entitled to an equitable lien over the Property in respect of the "Agreement" of 12 December 2014; is a transferee from the Sheriff on the sale of the Property pursuant to registered Writ AN402095 entitled to priority over any estate or interest in the land claimed by Dang pursuant to Caveat AN448892 lodged against the title of the land after registration of the Writ, such that the transferee is entitled to registration of a transfer free of any estate or interest claimed in the land by Dang as caveator? (d) Relatedly, where the transferee is not entitled to registration of a transfer free of any estate or interest claimed in the land by Dang as caveator, upon the sale of the land in execution of the Writ, are any proceeds of the sale payable to Hoang pursuant to UCPR 39.15(c) charged with such, if any, entitlement Dang may have under, or by reference to, her caveat.
2. Issue (a) appears to begin with the assumption that Ms Dang may have paid money towards the acquisition of the Smithfield property that would cause a resulting trust to arise in her favour, subject to the issue of whether the presumption of advancement applies, with the effect that the payments would be treated as a gift to Mr Hoang.
3. Issue (b) assumes the presumption of advancement does not apply and asks whether the circumstances of any payment gave Ms Dang a valid equitable interest in the Smithfield property that the Caveat could validly protect. Alternatively, it asks whether any payment was only a loan or a mere equity.
4. Issue (c) is expressed in a manner that may involve a contradiction in terms. It assumes that the Court finds both that Ms Dang only has a mere equity or loan and also that she has an equitable lien, being a form of charge. If she does have a charge, that would give her an equitable interest in the property. On that basis, the question posed is whether a transferee under a sale by the Sheriff would have priority over the estate claimed by Ms Dang pursuant to the Caveat, so that the transferee would be entitled to registration as proprietor of the Smithfield property free of the interest claimed by Ms Dang.
5. This issue is partly based upon a misconception. The dealing number of the writ referred to is the number given to the first writ. That writ has expired. The Nguyens had since obtained the second writ. The Nguyens' problem is that the Registrar-General declined to register the second writ, apparently because of the prohibition contained in the Caveat. The question is whether that fact authorised the issue of the lapsing notice under s 74I of the Real Property Act, and whether that gives standing to the Nguyens to challenge the validity of the Caveat, and further, whether, as defendants to the summons, they have standing to challenge the existence of any equitable interest in the Smithfield property claimed by Ms Dang. If they have standing, and they succeed, the Caveat will be withdrawn, a third writ may then be issued and recorded, and the transferee under any contract of sale made by the Sheriff will not face the impediment of the Caveat preventing them from becoming the registered proprietor of the Smithfield property.
6. A footnote to the statement of issue (c) identifies the source of the issue as the notation in par 2 of the orders made by Lindsay J on 24 May 2019. However, those orders were made in the 2017 proceedings, without apparent knowledge of the fact that the first writ had expired, or that the second writ had been issued on 22 May 2019. This matter no longer raises questions about what happens if a caveat is lodged after a judgment creditor registers a writ. The question that is now raised is what happens when a caveat is lodged and the caveat prevents the subsequent registration of a writ issued on a judgment obtained before the lodgement of the caveat.
7. I do not see how issue (d) arises in reality. First, issue (d) does not arise if issue (c) is no longer relevant. Further, the evidence given by Mr Dodds on behalf of the Sheriff shows that, the Sheriff will not, for commercial and practical reasons, sell property of a judgment debtor in accordance with a writ where the presence of a caveat creates a blot on the title that has the result that she could not be satisfied that she would achieve a fair market value for that property. With respect to the question of whether a purchaser from the Sheriff will take the property subject to the interest claimed by the caveator, no determination made by this Court in the present proceedings will bind persons who are not party to these proceedings.
8. In any event, a caveat lodged against the title to land before the recording of a writ in the Register by the Registrar-General will, where the land is sold by the Sheriff in the exercise of the writ, prevent registration by the purchaser of the transfer executed by the Sheriff, unless the purchaser succeeds in an application to the Court for the withdrawal of the caveat: see Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 at [8], [43] and [52]-[53]. As the Caveat was lodged before the application to record the second writ in the Register, the reasoning of the majority of the High Court, to the effect that a party claiming an unregistered interest in land under the Real Property Act is not entitled to an injunction to prevent the registration of a transfer by the Sheriff to a purchaser under a contract for the sale of land under a writ that has been lodged for registration during the protected period, is not relevant. Nor is the suggestion made but not decided by Barrett JA, with the agreement of the other Judges of Appeal, in Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26; (2012) 16 BPR 30,397 at [66] that the reasoning of the majority in Black v Garnock might allow a caveat lodged after the recording of the writ in the Register to prohibit the registration of a transfer executed by the Sheriff. Further, the provisions of the Real Property Act that govern the effect of sales made by the Sheriff in execution of writs do not impinge on the effectiveness of a caveat lodged before the recording of the writ in the Register.
9. As the Caveat was lodged before the second writ was lodged for registration, from the perspective of the Nguyens' case, there are only two issues. First, do they have standing to challenge Ms Dang's claim to be entitled to an equitable interest in the Smithfield property that is protected by the Caveat, by reason of the combined effect of the lapsing notice being valid and their position as defendants to the summons filed by Ms Dang? If so, has Ms Dang established that she has an equitable interest in the Smithfield property? A subsidiary question may be whether the Caveat must be withdrawn, if Ms Dang establishes that she has an interest that is not the one protected by the Caveat. If it must be withdrawn, there will be a question as to whether Ms Dang should be permitted to lodge a further caveat to protect the interest that she does establish.
10. The continuation of any caveat will prevent the registration of the second writ, which has the effect that the Smithfield property will not be sold by the Sheriff. On the other hand, if the Nguyens succeed on the substantive issues concerning Ms Dang's interest in the Smithfield property, and establish that the Caveat must be withdrawn, the third writ may then be registered, and there will be no impediment to the Smithfield property being sold by the Sheriff.

Ms Dang's position

1. It will now be necessary to set out the issues as contended for by Ms Dang in par 8 of her written outline: There are numerous discrete issues that will require resolution during the conduct of these proceedings, with each one bearing an impact on the remainder of the proceedings that will follow: (a) Can the Nguyens bring a cause of action via an Amended Motion within the same 2017 Proceedings against Dang for whom the 2017 Proceedings have already been dismissed. (b) Do the Nguyens otherwise have standing to bring the 2017 Proceedings against Dang. (c) What is to happen to the Notice of Motion filed 4 June 2019 by the Nguyens. Is this Motion pressed or no longer pressed. Dang has incurred significant costs due to the filing of this Motion. (d) Do the Nguyens have standing to issue the lapsing Notice causing the 2019 Proceedings. (e) Should an order for Security for Costs be made against the Cross-Claimants, being the Nguyens in the 2019 Proceedings. (f) If no Security for Costs is ordered, only then does the court have to turn to the issue subject of the Summons and Defence/Cross-Claim in the 2019 Proceedings. (g) Are the Nguyens capable of bringing the Cross-Claim or Defence against Dang in it (sic) current form or at all, due to the principles of Res Judicata, Estoppel, Anshun Estoppel or otherwise barred from re-litigation. h) Should the 2019 Proceedings be adjourned to allow Dang the opportunity to travel to Vietnam to produce further evidence to rely upon not available electronically. (i) Does Dang have a caveatable interest, and if so, what is the quantum of the interest. (j) What utility would any orders sought by the Nguyen's serve. Would the Nguyens reap any benefit from the sheriff executing the Writ.
2. Issues (a) and (b) concern the issues raised by the Dang motion filed in the 2017 proceedings, being whether the Nguyens were not entitled to make an application under s 74MA of the Real Property Act, because the first writ did not give them a proprietary interest in the Smithfield property, and because they were not entitled to make an application in the 2017 proceedings after they had been dismissed.
3. Issue (c) refers to the second Nguyens motion in the 2017 proceedings, being the application to join the Sheriff and for orders directing the Sheriff to execute the first writ and to apply to the Court for an order that the Caveat be withdrawn.
4. I do not understand the Nguyens to have directly responded to the questions stated in issue (c). However, the Nguyens did not in fact press that notice of motion.
5. Issue (d) concerns the live question of whether the Nguyens did not have a right to cause the lapsing notice to be issued pursuant to s 74I of the Real Property Act because they had applied for the registration of the second writ while the first writ remained recorded against the title to the Smithfield property.
6. The application for security for costs the subject of issues (e) and (f) will only be of practical significance if the effect of the judgment in the two proceedings is that the controversy between the Nguyens and Ms Dang is not finally determined, and further proceedings are necessary in which the Nguyens are the effective plaintiffs. Even if the course that the proceedings have taken to date has unfairly deprived Ms Dang of the opportunity to pursue her claim for security for costs, there will be no point in determining an application for security for costs after all of the substantive issues have been decided.
7. As I understand it, issue (g), so far as it raises questions based upon res judicata, issue estoppel or Anshun estoppel, no longer arises. The Nguyens have abandoned their notional cross claim.
8. As to issue (h), I declined at the hearing to adjourn the proceedings. The Court had made the usual case management orders that required the parties to serve their evidence long before the date of the hearing. Ms Dang allowed the two proceedings to be set down for hearing without raising her need to obtain further evidence from Vietnam.
9. Furthermore, Ms Dang did not make a timely application on notice before the hearing for an adjournment, and did not support the application by proper evidence concerning the additional evidence that she hoped to obtain from Vietnam. In the circumstances, there was no proper basis for permitting the adjournment.
10. Issue (i) raises the substantive question concerning the existence of the interest in the Smithfield property claimed by Ms Dang and the validity of the Caveat.
11. Issue (j) was raised by Ms Dang during the course of the hearing. It concerned whether the evidence showed that the amount secured by first mortgage over the Smithfield property was such that either the Sheriff would decline to execute the third writ, or that the Court should decline to require the Sheriff to do so, because of a lack of utility.

The Court's approach to the hearing

1. It will now be appropriate to explain how the Court, at the commencement of the hearing, resolved the dispute between the parties as to how the hearing should proceed.
2. I determined that the only practical course available for the Court was to receive the evidence relevant to all of the extant applications and then allow the parties to make the submissions that they thought were appropriate. The Court would then decide how the individual applications should be dealt with.
3. I took that course for a number of reasons. First, the two proceedings had been set down for final hearing together on 26 October 2020. Secondly, it was not practically possible for the Court to review the whole of the Court Book and the two files, in the manner that I have now done above, in order to be in a position to properly determine the order in which individual applications should be dealt with. Thirdly, it was not realistic to think that the Court could properly hear argument on preliminary questions and then give considered judgments before moving on to subsequent questions, in a manner that could be achieved in the time allotted for the hearing.
4. However, I did not accept the Nguyens' position that the Court should simply determine the substantive questions concerning Ms Dang's entitlement to an interest in the Smithfield property and the validity of the Caveat, and ignore the various notices of motion. That course would have permitted the Nguyens to sidestep potential liabilities for costs that have been incurred as a result of notices of motion filed by them in the 2017 proceedings and by reason of their notional cross claim in the 2019 proceedings.
5. I did not deal with the second Dang motion filed on 28 September 2020 in the 2019 proceedings as a separate application. It was not practicable to deal with that application separately at the commencement of a hearing that was fixed to determine all issues in the proceedings.
6. In any event, the Court will deal with the Nguyens' amended motion in the 2017 proceedings. The Court would not entertain an application for summary dismissal of the Nguyens defence in the 2019 proceedings at a hearing set down to deal with that issue finally on its merits. As explained above, it was too late for the Court to consider a security for costs application by Ms Dang, if the Court was able to finally determine all issues in the proceedings.
7. The result is that the Court in these reasons for judgment will determine the substantive question as to whether Ms Dang has an equitable interest in the Smithfield property of either of the alternative forms claimed in her statement of claim. If an equitable interest in the Smithfield property is established by Ms Dang, the question will then arise as to whether it is protected by the Caveat. Whether or not Ms Dang establishes that she has an equitable interest in the Smithfield property that is protected by the Caveat, it will remain necessary for the Nguyens to establish that they have a right to an order against Ms Dang that she withdraw the Caveat. It may be an unfortunate result of the procedural history of the two proceedings that the Nguyens might not succeed in obtaining an order that the Caveat be withdrawn even if they prove that Ms Dang does not have a caveatable interest in the Smithfield property.

Observations on the evidence tendered by the parties

1. The Court Book in this matter consisted of four lever arch folders full of documents.
2. Apparently, because the parties had not resolved the question of how the Court should deal with the various notices of motion and the claim raised by Ms Dang's summons and statement of claim, the Court Book was compiled by inserting in chronological order each of the notices of motion, the summons and the statement of claim together with the affidavits and exhibits served by the parties in respect of each initiating process. This had the result, particularly in relation to the exhibits, that there was significant duplication and that the structure of the Court Book was not conducive to its utility.
3. At the hearing, the parties were selective with respect to the evidence that they tendered from the Court Book.
4. Ms Dang read two of her own affidavits together with the exhibits to those affidavits, which became Exhibits D1, D2 and D3.
5. It appears that the material in those exhibits relates in some way to the merits of Ms Dang's claim, although ultimately Ms Dang's final submissions hardly referred to or explained the material in her exhibits.
6. So far as the Nguyens are concerned, I have explained above that they submitted that there was no need for the Court to deal with the notices of motion in either of the proceedings, and that it would instead be sufficient for the Court to determine the substantive issues of the validity of the Caveat and the existence of a proprietary interest in the Smithfield property claimed by Ms Dang.
7. The Nguyens chose not to read any affidavit evidence at the hearing. They relied on certain exhibits relating primarily to bank statements, and also on a list of documents that became Exhibit P2. That was the list of documents contained in the affidavit of their solicitor affirmed on 4 November 2019 apparently in response to Ms Dang's summons.
8. As far as I have been able to ascertain, the parties between them did not tender a search of the Smithfield property, the Caveat, the orders for the issue of writs and the writs themselves, any application to the Registrar-General, or any relevant documents issued by the Registrar-General. The parties did not even tender the documents behind tabs 68 to 70 in volume 4 of the Court Book, which plainly concern the issue and recording of the writs and a title search for the Smithfield property.
9. Notwithstanding this approach, the Court was left with the Court Book for the purpose of conducting the exercise that I have set out above in my treatment of the procedural background. That exercise necessarily brought to the Court's attention many relevant documents that were before the Court for the purpose of interlocutory hearings, even if not formally put into evidence in the course of those hearings.
10. By paragraphs 5 and 12 of the statement of claim, Ms Dang has alleged, and by the corresponding paragraphs of the defence the Nguyens have admitted, that Mr Hoang has been the registered proprietor of the Smithfield property since 3 June 2015, that the Nguyens obtained the Court's judgment against Mr Hoang on 29 January 2018, that the first writ was issued on 10 May 2018 and was later recorded in the Register, that the Caveat was lodged on 26 June 2018, that the second writ was issued on 22 May 2019, that the Nguyens applied to the Registrar-General for the recording of the second writ on 19 June 2019, and that a further such application was made by the Nguyens on 25 June 2019.
11. However, by their response to par 13 of the statement of claim, the Nguyens neither admitted nor denied that on 9 September 2019, the Registrar-General issued the lapsing notice to Ms Dang in relation to the Caveat under s 74I(1) of the Real Property Act. That response was justified by the Nguyens on the basis that par 13 of the statement of claim made no allegation against the Nguyens.
12. In addition to the failure of both parties to tender evidence relevant to the procedural and substantive issues upon which they had made submissions, it appeared from my reading of Ms Dang's final written submissions dated 27 November 2020 that she had put submissions that were clearly based upon evidence that was not tendered at the hearing.
13. As I understand it, the argument is based on the fact that s 74I of the Real Property Act requires the Registrar-General to issue a lapsing notice on application "by a judgment creditor under any writ that cannot be recorded because of the caveat". Ms Dang submitted that, at the time the lapsing notice was issued, a writ had in fact been registered by the Registrar-General. Accordingly, Ms Dang submitted, the lapsing notice was technically invalid.
14. Ms Dang relied upon a title search for the Smithfield property obtained on 5 November 2020 (after the completion of the hearing), which was annexure I to the affidavit of Ms Dang's solicitor affirmed on 5 November 2020. The contents of this affidavit were not in evidence.
15. I reviewed the affidavit only for the purpose of determining whether it contained any support for Ms Dang's claim in her submissions that the Nguyens had failed to inform the Court that a writ had been recorded on the Register, notwithstanding the prohibition in the Caveat.
16. The second schedule in the title search for the Smithfield property obtained on 5 November 2020 records the following relevant notification: 4 AN402095 WRIT BY [THE NGUYENS]. WRIT NO 2017/00060096 ISSUED ON 10/5/2018 AP330678 ORDER OF COURT 5 AN448892 CAVEAT BY [MS DANG]
17. The first part of notification 4 refers to the recording of the first writ in the Register. AP330678 is the dealing number of the Request lodged by the Nguyens' solicitor on 25 June 2019 that the second writ be recorded. I will explain below why the Request should not, as a matter of the Registrar-General's practice, have led to the cancellation of the recording of the first writ and the recording of the second writ. However, it is not clear why the Request was described as "order of court", and it is unclear what the effect of the notification is. It is unlikely that the Registrar-General would have issued the lapsing notice under s 74I of the Real Property Act if the second writ had been recorded in the Register.
18. However, as the parties between them had not tendered all of the documents relevant to the writs and the recording of the writs in the Register, or any related documents, I formed the view during the course of the preparation of these reasons that I should defer completing them, and that I should require the parties to complete the evidentiary record in so far as it concerns uncontroversial documents necessary to enable the Court to fully understand the chronology of events relevant to the issue and recording of writs.
19. The parties both agreed that it would be necessary for them to augment the evidence that they had tendered at the hearing. On 31 March 2021, my Associate was advised by email that the parties had agreed that the documents listed in an attachment to the email called "Evidence to be tendered" should be received into evidence. I have caused the list to be marked as Exhibit PD-1.
20. Although the course that the parties have taken introduces risks in the preparation of the Court's reasons for judgment, by way of introducing the possibility that the Court might misunderstand the evidence upon which the reasons should be based, I am satisfied that the reasons in this judgment are reasonably available on the basis of the evidence as completed.
21. In relation to the argument put by Ms Dang that is referred to above which relied upon the title search for the Smithfield property obtained on 5 November 2020, that search is not listed in Exhibit PD-1. However, item 31 is a title search conducted on 21 May 2020, which is found in the Court Book at page 1672. That search appears to record the same information on the Register as is set out above based upon the 5 November 2020 search. The omission of the search relied upon by Ms Dang is therefore immaterial.
22. It will be convenient to note at this point, however, that I do not see how the search establishes that the second writ was recorded on the Register at the time the Registrar-General issued the lapsing notice that is relevant to these proceedings. The only writ that is recorded is the writ that was issued to the Nguyens on 10 May 2018, which is the first writ. The next instrument recorded in the Register is the Caveat. Thereafter, the only notations in the Register are orders of the Court, which I infer are the orders by which the Caveat was extended.

Ms Dang's claim for an equitable interest in the Smithfield property

1. In her statement of claim, Ms Dang claimed in the alternative a number of equitable interests in the Smithfield property.
2. Her primary claim, in prayer 2, was that Mr Hoang holds his interest in the Smithfield property on trust for Ms Dang. As appears from pars 17 to 24 of the statement of claim, the trust asserted by Ms Dang arose out of an alleged oral agreement between her and Mr Hoang on or about 22 December 2014, that Mr Hoang would purchase the Smithfield property in his name for the benefit of Ms Dang, that Ms Dang would service the mortgage taken out by Mr Hoang to purchase the property, that she would pay for all utilities, and that she would use the property as her residence with Mr Hoang being free to live at the property if he desired to do so.
3. Alternatively, in prayers 3 to 5, Ms Dang sought declarations that she is entitled to an equitable lien over the Smithfield property for the recoupment from Mr Hoang of funds contributed by Ms Dang in relation to the acquisition of the Smithfield property.
4. In support of that alternative claim, Ms Dang sought in prayer 6 an order for any necessary accounts or inquiries to be taken in order to determine the respective interests of Ms Dang and Mr Hoang in the Smithfield property.

Evidence in support of constructive trust

1. Ms Dang gave evidence in pars 15 to 22 of her 11 October 2019 affidavit of a conversation with Mr Hoang on or about 22 December 2014 in which Ms Dang asked Mr Hoang to obtain a mortgage in order to purchase a home for Ms Dang in his name, because Ms Dang would not be able to borrow money in this country as she had no source of income here. Ms Dang's evidence was that Mr Hoang agreed to purchase a property chosen by Ms Dang in his name using a mortgage taken out by him. Ms Dang would provide the necessary funds and Mr Hoang would hold the property for Ms Dang. Ms Dang gave evidence of the process whereby she was the successful bidder at an auction for the Smithfield property and she provided the deposit and the balance of the purchase price.
2. I will consider the evidence concerning Ms Dang's claims that she provided all monies, other than the amount of the mortgage, for the purchase of the property, the servicing of the loan, and the payment of outgoings in more detail below.
3. Ms Dang gave consistent evidence on this subject in her cross-examination at T 67.42 - T 69.7 and T 71.9. She denied, at T 127.34, that she intended to make a gift to Mr Hoang. She acknowledged that she could not remember the details of the conversations with Mr Hoang, such as where they were both standing when the conversations took place, at T 117.23 -117.50. It would not be reasonable for the Court to expect Ms Dang to remember details of conversations of this nature from some six years ago.
4. In order to establish that she had the funds that she claimed were expended on the purchase of the Smithfield property, Ms Dang gave evidence in par 13 of her 11 October 2019 affidavit that, on or around 15 October 2013, she arranged for funds in Vietnamese dong to be exchanged for AUD 234,100 in cash and provided to her in Australia. She included in the exhibit to her affidavit an English translation of a receipt of AUD 234,100 dated 15 October 2013 that had apparently been translated from Vietnamese.
5. Ms Dang returned to this subject in par 8 of her 19 October 2020 affidavit, by stating that she had arranged for funds to be transferred from Vietnam to her Australian bank account. She supported this claim by reference to three receipts that were annexures A to C to the affidavit, which she said were for the exchange of Vietnamese dong into Australian dollars on 5 June 2009, 10 June 2009 and 15 October 2013. The annexures do not establish that any funds were paid into Ms Dang's bank account in Australia. This evidence is inconsistent with the evidence given by Ms Dang elsewhere that she received the money in cash and did not pay it into any bank account. The translations of the annexed receipts appear to show that Ms Dang received AUD 285,000 on 10 June 2009. Annexures A and B concerned the withdrawal of 4,200,000,000 Vietnamese dong on 5 June 2009 and its exchange into Australian dollars on 10 June 2009. Annexure C relates to the same receipt of AUD 234,100 that has been referred to in the previous paragraph of these reasons.
6. The Nguyens did not challenge this aspect of Ms Dang's evidence.
7. In pars 6 to 17 of her 2 December 2019 affidavit, Ms Dang gave further evidence concerning the properties that she owned in Vietnam, and that from time to time her Vietnamese agent transferred money to her in Australia. Ms Dang said that she never deposited these funds into a bank account and always kept them in cash at her home.
8. Ms Dang agreed in cross-examination that, as of April 2015, she had close to $975,000 in cash available to her: T 116.33. It is not entirely clear from the transcript, but this amount was apparently made up of the money transferred to Ms Dang from Vietnam and the $217,000 profit from the sale of a property in Sydney. Ms Dang was asked why it was necessary for Mr Hoang to borrow money on mortgage to purchase the Smithfield property if Ms Dang had that amount of cash. The following occurred in cross-examination, at T 116.32 -T 117.11: Q. So in total, you had close to $975,000 in cash available to you. A. INTERPRETER: Yes. Q. So could you just explain to the Court, if that's the case, why you would need your son to borrow money to purchase a house. A. INTERPRETER: First of all, I don't speak English. Second, and I trust my son wholeheartedly. He is my world. Q. But you had enough money to buy a house, didn't you? A. INTERPRETER: I have to do many other things. I have properties, other properties, in Vietnam. Q. But you've just admitted under cross-examination that you had close to $975,000 at your disposal, haven't you? A. INTERPRETER: Like, I bought property, I, like, do sharing, I do business, like, it's not very clear. Q. I think the question was very clear. I'm going to put to you, Ms Dang, that the conversation that you deposed to on 22 December 2014 is a story. It's just made up, isn't it? A. INTERPRETER: I don't need to prove that my - it's my son. I don't need to prove. Q. Well, I'm afraid you do, Ms Dang. Do you understand that? A. INTERPRETER: It's - now, it's up to the judge to judge it, because, like, I -- Q. I beg your pardon. Could you say that again, please? A. INTERPRETER: It's up - it's up to the judge to - to make the decision-- Q. I'm sorry, I still can't understand you.
9. In evaluating the credibility of Ms Dang's claim that Mr Hoang agreed to buy the Smithfield property in his name but to hold it on trust for Ms Dang, it is necessary to take into account the following matters.
10. First, there is no objective contemporaneous or subsequent evidence that corroborates Ms Dang's claim that Mr Hoang agreed to buy the Smithfield property on trust for Ms Dang.
11. Secondly, Ms Dang did not call Mr Hoang to give evidence in support of her claim. The fact that Mr Hoang was incarcerated at the time of the hearing did not prevent Ms Dang from taking the steps available to her under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) to have Mr Hoang give evidence.
12. There is force in that observation, even though, as the fourth defendant, Mr Hoang was nominally an adverse party to Ms Dang. There is no evidence that Mr Hoang is estranged from his mother or that he would not give evidence of the arrangement that he made with Ms Dang.
13. Whether or not the Court should draw any inference adverse to Ms Dang's case from the fact that she did not call Mr Hoang to give evidence, it is the case that Mr Hoang has not given evidence to support Ms Dang's claim in relation to the circumstances in which the alleged constructive trust was created.

Terms of the Caveat

1. The absence of corroborating evidence to Ms Dang's claim is significant because the first time any claim was made on behalf of Ms Dang that she had an equitable interest in the Smithfield property was in the terms of the Caveat lodged on 26 June 2018. It is clear from the wording of the Caveat that Ms Dang claimed a lien by virtue of an agreement dated 22 December 2014 to secure funds advanced by Ms Dang to Mr Hoang "for payment of outgoings with respect to the property".

Terms of Ms Dang's solicitors' letters

1. Furthermore, it is necessary to take into account the claims that were initially made by Ms Dang's lawyers, Gartree Thomson Lawyers, to the Nguyens' solicitors in response to the discovery that the Nguyens had lodged the first writ against the title to the Smithfield property.
2. In their letter dated 4 October 2018, Ms Dang's solicitors said: … For your clients' assistance, we advise that our client holds a Lien over the property by reason of making a number of advances between 2014 to present to Mr Hoang for the purchase and maintenance of the property. The funds advances were applied to, inter alia, mortgage repayments and payment of rates assessed. At all times, it was verbally agreed and understood by the parties that Mr Hoang would repay our client when he could (or otherwise on the sale of the property) - but excluding our client's gift of $99,000 to assist Mr Hoang to purchase the property which the parties understood was not repayable. At this time, the amount repayable is in the order of $357,400. This amount will likely continue (sic) increase should further funds be advanced for mortgage repayments which our client continues to make as required. We advise that in September 2018, our client formalised and reduced to writing her agreement with Mr Hoang. Our client's rights are reserved and we confirm that she will continue to enforce her equitable interest arising from a lien in the land.
3. In their further letter dated 19 October 2018, Ms Dang's solicitors said: … Acting for Ms Dang and Mr Hoang in Relation to Caveat When we received instructions concerning the amounts advanced by Ms Dang to Mr Hoang for the maintenance of the property and to lodge a Caveat to secure Ms Dang's equitable interest in the property pending registration of a Second Mortgage, we advise that Mr Hoang did not dispute the debt owing or the interest Ms Dang had in the property. Mr Hoang indicated that he freely consented to the Caveat and registration of a Second Mortgage and understood its effect. Whilst Ms Dang and Mr Hoang's instructions remain consistent and in the absence of any dispute between them, we do not see the existence of any conflict of interest. Should a dispute arise between them, our firm will cease acting for one or both parties on the grounds of a conflict of interest. … 'Rent' for Occupation by Ms Dang We have been instructed that Ms Dang moved into the property in about November 2015 (accordingly, all advances made prior to November 2015 cannot be properly categorised as rent). We are instructed that from November 2015, Ms Dang pays Mr Hoang 'rent' of $420.00 per week. This amount includes all utilities. We are instructed that there is no written residential tenancy agreement between the parties (which we note is not an uncommon situation within families). We are instructed that the weekly 'rent' paid by Ms Dang to Mr Hoang is in addition to all other amounts advanced by Ms Dang to Mr Hoang for the maintenance of the property. We confirm that the Caveat does not relate to weekly 'rent'. Ms Dang's Caveatable Interest Ms Dang holds an equitable lien over the property by reason of making numerous advances from 2014 to present date for repayment of the mortgage, rates and other amounts with respect to the property. The amounts advanced were separate and in addition to weekly 'rent' paid with respect to Ms Dang's occupation of the property. As the amounts advanced directly relate to the maintenance of the property (including payment of outgoings) and amount to an investment in the property, a caveatable interest in the form of an equitable lien arose. If you disagree with our assessment and believe that such payments do not amount to a caveatable interest, we would appreciate you advising the grounds on which you allege they do not, including citation of any relevant case law and legislation. Excepting an amount of $99,000.00 advanced to Mr Hoang in 2014 to purchase the property, it was understood by the parties that these amounts were not gifts or rental payments and would be repayable. …
4. The Court should infer that Ms Dang's solicitors would not have drawn the Caveat in the terms that they did, and would not have made the detailed statements that they made in the two letters to the Nguyens' solicitors, without having explicit instructions from Ms Dang authorising them to do so. As appears from the correspondence, the solicitors also had instructions from Mr Hoang at the time, so it is proper for the Court to infer that Mr Hoang gave instructions to the solicitors that authorised them to make the statements that they made on his behalf.
5. No attempt was made in Ms Dang's case to explain the circumstances in which the Caveat was lodged and her solicitors' letters were written that could justify Ms Dang propounding in her statement of claim, her evidence and her case at trial, that the true arrangement she had with Mr Hoang was that the Smithfield property would be acquired on trust for Ms Dang.
6. The terms of the Caveat and the two solicitors' letters are plainly inconsistent with the existence of any agreement between Ms Dang and Mr Hoang that he acquired the Smithfield property on trust for Ms Dang. The solicitors' statements also amount to an admission on Ms Dang's behalf that the $98,500 payment that Ms Dang said she made to cover the deposit for the purchase of the Smithfield property was a gift. Finally, the assertion made by the solicitors that Ms Dang had resided in the Smithfield property from November 2015 and that she paid to Mr Hoang the amount of $420 per week as rent, including all utilities, is implicitly inconsistent with Ms Dang being the beneficial owner of the Smithfield property. It also suggests that the amounts paid by Ms Dang as rent covered all utilities, which would therefore not be considered as part of any debt owed by Mr Hoang to Ms Dang.

Payment of $98,500 deposit

1. Ms Dang pleaded in pars 21 and 22 of her statement of claim that Mr Hoang signed the contract for sale of the Smithfield property on 25 March 2015 and presented a cheque for $98,500 as the deposit. Ms Dang is said in par 21 of her 11 October 2019 affidavit: "I funded the money to be paid by the cheque".
2. As was pointed out at T 129.1 - T 129.45 in the cross-examination of Ms Dang, she did not provide any evidence that she paid the $98,500 deposit. As I interpret Ms Dang's response at T 129.8, she said that she had already given Mr Hoang "a lump sum of money and then it's up to him to manage it".

Money paid to complete the purchase

1. In respect of the completion of the purchase of the Smithfield property, Ms Dang pleaded in par 25 of her statement of claim that, on or around 8 April 2015, she made two deposits totalling $49,500 into Mr Hoang's Commonwealth Bank of Australia (CBA) account; on 4 May 2015, she deposited the sum of $124,000 into the account; and later on 11 May 2015, she deposited the sum of $40,000 for the stamp duty of $39,815 payable in respect of the contract.
2. Ms Dang asserted that she had paid those amounts in par 23 of her 11 October 2019 affidavit. In respect of the $49,500, Ms Dang exhibited copies of the deposit receipts. The deposit receipts that are in evidence are not clearly legible. They do appear to record deposits of $45,500 and $4,000. The first of the deposits was made into the bank account identified by Ms Dang (final numbers 2592). The second payment was into a different bank account (final numbers 0395).
3. Ms Dang was cross-examined about the $45,500 payment at T 133.14 and T 138.22. Mr Hoang's CBA bank statement for his 2592 account showed that $45,500 was deposited on 8 April 2015 in cash and $45,530 was withdrawn on the same day.
4. As I understand Ms Dang's responses at T 138.24 and T 138.39, she said that she gave the money to Mr Hoang "and then, it's like, whatever he did with the money, it's his business".
5. As to the $4,000 payment, the account ending 0395 was a CBA account in the name of Mr Hoang and Mr KT Nguyen. There was a cash deposit into that account of $4,000 on 8 April 2015, which gave a total credit of $45,500.79. On the same day, the sum of $45,500 was withdrawn. Those two transactions happened at a CBA branch at 48 Martin Place Sydney.
6. It may be that the $45,500 that was withdrawn was paid into Mr Hoang's CBA account on the same day. If so, it would not be appropriate to add the sums of $4,000 and $45,500 together. Furthermore, the source of about $45,500 was the account of Mr Hoang and Mr Nguyen.
7. When it was put to Ms Dang that there was nothing in the transaction that identified her as the source of the money, she said at T 144.43: "My son did it, and I am the victim of whatever he did. Don't ask me anymore. I am the victim."
8. At this point, Ms Dang became upset and stood up in the witness box to give her answer. It was necessary for me to ask her to sit down.
9. At par 15(b) of her 19 October 2020 affidavit, Ms Dang said that, on or around 4 May 2015, she caused Mr Hoang's bank account to be credited with funds in the sum of approximately $124,000. The annexures to Ms Dang's affidavit, which became exhibit D4, included as Annexure G a copy of a CBA bank cheque that Ms Dang referred to at that paragraph of her affidavit. The copy of the cheque was apparently requested by Mr Hoang as the CBA's covering letter was addressed to him.
10. It was put to Ms Dang, at T 150.43, that she had not provided any evidence that the account on which the cheque was drawn was one of her bank accounts. Ms Dang responded by saying: "I really don't know what's happening in this, but Kwoi and Dung, they - they live together, and then - they live - they live in the city. Then, actually, they did this".
11. At T 153.3, Ms Dang agreed that there was no evidence identifying that she made the deposit on 4 May 2015.
12. On 7 May 2015, the amount of $120,000 was transferred from Mr Hoang's CBA 2592 account into his CBA 8398 account. By a number of subsequent withdrawals between 7 May 2015 and 22 May 2015, most of that money was paid back into the CBA 2592 account in round figures ranging from $40,000 to $2,000. The $40,000 transfer will be referred to again below.
13. It was put to Ms Dang in cross-examination at T 153.5 - T 154.35 that there was nothing to indicate that the money was used for the purchase of the Smithfield property. Ms Dang's response at T 153.14 - T 153.28 is telling: Q. Was this $120,000 used to purchase the house? A. INTERPRETER: I actually have much more money than just $120,000. Q. That wasn't my question. A. INTERPRETER: Yes, I have money more than just 120. Q. That wasn't my question. A. INTERPRETER: I gave to him some of my money. The interest that he - do what I told him, and he lived somewhere else. He lived with a guy somewhere else. Then they both doing things together. Q. Ms Dang, I haven't asked a question -- HIS HONOUR: Ms Dang, you have to be quiet. Please just answer the questions.
14. As to the sum of $40,000 that Ms Dang claimed she paid to Mr Hoang on around 11 May 2015 to enable stamp duty to be paid, it was pointed out to her at T 156.11 that, on 11 May 2015, $40,000 was transferred out of account 8398 and back into account 2592. Ms Dang confirmed, at T 156.30, that this is the sum that she claimed to have contributed to the payment of stamp duty.
15. It was then pointed out to Ms Dang, at T 156.32, that she was "double dipping, because all it is, is a transfer back of $40,000 from the $120,000 that was transferred out to Mr Hoang's" account 8398. Ms Dang's responses at T 156.35 and T 156.42 were: I've got no ideas about that, because I told him to do what I wanted him to do, and if he did it otherwise, how would I know? I really don't know what he's done behind my back, and all what I ask him to do is what I've told you…
16. In par 15(e) of her 19 October 2020 affidavit, Ms Dang made a claim that she made a payment to Mr Hoang in respect of the acquisition of the Smithfield property that was not mentioned in her statement of claim or her earlier affidavits. She said that, on or around 12 June 2015, she caused Mr Hoang's bank account to be credited with the sum of $110,000.
17. On 12 June 2015, $110,000 was paid into account 5246 with the caption "HOPE YOU WELL". This transaction occurred after settlement of the purchase of the Smithfield property on 25 May 2015. When it was put to Ms Dang, at T 158.5, that there was nothing in the bank statement relating to the payment that identified that it was Ms Dang who had paid the $110,000, she responded: He lied to me. How would I know? I am the victim and exactly - I am the victim.
18. The account into which the $110,000 was paid, CBA account 5246, was an account in the name of Ms Dang and not Mr Hoang.
19. On the same date that the $110,000 was paid into the account, it was transferred to an unidentified account with the caption "Capital Contribution". There was no evidence that the account into which the money was paid was an account of Mr Hoang, and there was no evidence of the meaning of the reference to a capital contribution.

Servicing of Mr Hoang's mortgage

1. Ms Dang pleaded in par 31 of her statement of claim that, since 25 May 2015, she had made 44 "payments for the service of the NAB Loan" set out in the table in the particulars. Ms Dang repeated the claim in par 27 of her affidavit sworn on 11 October 2019. At par 28 of her affidavit, Ms Dang supported her claim by reference to extracts from bank statements from her own NAB bank account and from the bank account in Mr Hoang's name that recorded transactions in respect of the NAB mortgage.
2. The schedule that I have set out below contains an analysis based upon Ms Dang's claim in par 31 of the statement of claim and the information in the bank statements upon which Ms Dang has relied. The individual alleged payments have been given item numbers for identification. The "N" or "D" signifies that the entry is taken either from the NAB mortgage statements or Ms Dang's personal statements. The information in the 'Comment' column sets out information extracted from the bank statements as well as my own comments. The comment "No NAB" signifies that the particular debit to Ms Dang's personal account is not recorded as a credit to Mr Hoang's NAB mortgage account. The comments 'In T' and 'I B' signify internet transfer and internet banking respectively. I have also included references to the dates of other relevant events considered elsewhere in these reasons. Date Amount Comment 26/05/15 Draw down of NAB mortgage 1 N 02/05/16 $3,331.77 No note on statement 2 N 03/05/16 $1,920.00 Cash deposit 3 N 16/05/16 $3,331.77 Home loan 4 D 20/05/16 $700.00 No NAB. "For you son" 5 D 07/06/16 $6,000.00 No NAB. Withdrawal 6 N 29/06/16 $4,000.00 Home loan 7 N 08/08/16 $4,500.00 In T. "For you son Mom" 8 D 08/08/16 $1,600.00 No NAB. "Cct pmt" 9 D 08/08/16 $4,500.00 NAB entry. "For you son" 10 N 22/08/16 $1,200.00 ATM "By Mom" 11 N 22/08/16 $1,500.00 ATM "By Mom" 12 N 13/09/16 $3,399.00 "From Mom" 13 D 28/09/16 $1,700.00 No NAB. 14 N 29/09/16 $2,450.00 ATM 15 N 29/09/16 $2,500.00 ATM 16 D 12/10/16 $5,000.00 No NAB. In T withdrawal 17 N 23/11/16 $500.00 Thuy Bich Phuong 18 N 28/11/16 $3,000.00 Thuy Bich Phuong 19 D 04/04/17 $1,700.00 No NAB. In T linked acc trans 20 D 04/04/17 $438.77 No NAB. In T supporting 21 D 13/04/17 $6,000.00 No NAB. In T linked acc trans 22 D 01/05/17 $5,000.00 No NAB. Withdrawal 23 N 14/06/17 $1,500.00 Cash deposit 24 D 03/07/17 $5,000.00 No NAB. Credit not debit. 25 D 04/07/17 $4,500.00 No NAB. I B withdrawal. End of Dang bank statements 26 N 07/07/17 $500.00 ATM 27 N 20/09/17 $500.00 Cash 28 N 29/09/17 $500.00 Error. No entry in mortgage statements One-year gap in payments 29/01/18 Judgment entered against Mr Hoang 10/05/18 First writ issued 07/06/18 First writ registered 26/06/18 Caveat lodged 29 N 14/08/18 $8,400.00 Thu Dang paid 30 N 14/08/18 $650.00 Thu Dang paid 31 N 14/08/18 $2,450.00 Thu Dang paid 32 N 14/08/18 $2,500.00 Thu Dang paid 33 N 14/08/18 $2,800.00 Thu Dang paid 34 N 21/08/18 $5,000.00 Thu Dang paid 35 N 21/08/18 $5,000.00 Thu Dang paid 36 N 21/08/18 $5,000.00 Thu Dang paid 37 N 21/08/18 $5,000.00 Thu Dang paid 38 N 21/08/18 $5,000.00 Thu Dang paid 39 N 22/08/18 $200.00 Thu Dang paid 40 N 13/09/18 $16,000.00 Thu Dang paid 41 N 28/09/18 $2,000.00 Thu Dang paid 42 N 03/10/18 $2,500.00 Thu Dang paid 43 N 03/10/18 $2,500.00 Thu Dang paid 44 N 29/10/18 $4,000.00 Thu Dang paid 22/11/18 Application for withdrawal of Caveat 20/08/19 Mr Hoang incarcerated: T 194.21

1. The following conclusions can be drawn based upon the information in the schedule and also other information taken from the bank statements that could not conveniently be included in the schedule: 1. Between the drawdown of the mortgage on 26 May 2015 and 30 October 2015 there are no debits of interest to the account. The statements refer to an offset account and I infer that the money in this account was sufficient to meet interest obligations during the period. 2. Starting on 9 November 2015, there was an interest fee reversal represented by a debit of $3,316.69. That suggests that sufficient money had not been paid into the offset account to meet continuing interest obligations. 3. The statements show credits of $12,558 and $6,279 on 11 January 2016 and 29 March 2016 that appear to be receipts from a mortgage insurance policy. 4. Of the 11 entries in Ms Dang's schedule that showed debits from Ms Dang's personal account, 10 are not matched by a corresponding credit to the NAB mortgage account: see items 4, 5, 8, 13, 16, 19 to 22, and 25. Only item 9 on 8 August 2016 for $4,500 is matched with a credit to the NAB mortgage account. Claimed item 24 for $5,000 on 3 July 2017 is a credit to Ms Dang's personal account and not a debit. 5. The caption for item 9 contains the message "For you son". There is a message to the same effect in the case of item 4, but that amount was not paid into the NAB mortgage account. 6. There is nothing on the face of Ms Dang's personal bank statements that tends to establish that the debits that are not matched with a credit in the NAB mortgage account were in fact paid by Ms Dang towards the mortgage. There do not appear to be credits to the mortgage account at other times that match these debits. 7. Apart from item 9, none of the credits to the NAB mortgage account included in Ms Dang's schedule are supported by statements from any other bank accounts that could establish that the credits reflect payments made by Ms Dang. There are credits that suggest cash deposits or ATM transactions: see items 2, 14, 15 and 23. 8. More significantly, there are credits to the NAB mortgage account, that are not matched by debits from Ms Dang's personal account, that are associated with messages that suggest that Ms Dang was the source of the credit: see "For you son Mom" (7); "By Mom" (10 and 11) and "From Mom" (12). 9. There was a gap in repayment of the mortgage between 29 September 2017 and 14 August 2018. 10. Starting on 14 August 2018, there were 16 payments credited to the NAB mortgage account together with the message "Thu Dang paid", or equivalent, which suggests that the payments were made by Ms Dang. The total amount paid was $69,000.
2. The NAB mortgage bank statements appear to establish that Ms Dang made additional payments against the mortgage after those that were included in her particulars, as follows: Date Amount Comment 45 N 20/12/18 $3,000.00 Mom pays Dang T 46 N 11/01/19 $4,000.00 Thu Dang Pays Dang 47 N 14/02/19 $2,300.00 For You Son Mom 48 N 15/03/19 $3,400.00 for your mortgage Mom 49 N 16/04/19 $3,500.00 Pay your mortgage Dang T 50 N 26/04/19 $500.00 Payment from Mom Dang T 51 N 02/05/19 $5,000.00 Mortgage Dang T

1. The total of the additional payments is $21,700, making the aggregate amount of payments by Ms Dang from 14 August 2018 $90,700.
2. Ms Dang was cross-examined about the entries in Mr Hoang's NAB mortgage account that contained notes such as "For you, son" beginning at T 191.32. The transcript relevantly reads: T 191.44 - T 192.27 Q. You made that payment, didn't you? A. INTERPRETER: All what he did it here is by himself. Please don't ask me anything prior to 2019, because I would not be able to explain to you any things within that. Q. Just give me a chance, Ms Dang-- A. INTERPRETER: I do have trouble remembering things, so-- Q. My question hasn't been asked, Ms Dang. Just hold on, all right? Hold on until I ask you a question. HIS HONOUR: Yes, Ms Dang, please wait for a question to be asked and then answer. LAMBERT Q. Are you telling the Court that when the Court reads an entry that says, "For you, son," that your son wrote that entry when he performed the transfer? Is that what you are telling the Court? A. INTERPRETER: All that I tried to say is, with my money, and he has my permission to do so, then he could report it to me and I agreed, but just not that - just a little amount. Q. You are saying that you didn't make that transfer or the two other transfers on 22 August directly below that one that read, "By Mum." A. INTERPRETER: Same thing, it's my money and he did it. He put it there and then he would report it to me. Q. He did it. You didn't do it. You didn't make those transfers. A. INTERPRETER: That was my money, and with my permission, he did it. Q. You didn't contribute that money to that account. A. INTERPRETER: My money, I gave to my son, but it wasn't myself physically went to the bank and get it.

Payment of utilities

1. Ms Dang gave evidence at par 51 of her 2 December 2019 affidavit of payments for utilities in respect of the Smithfield property. She said that she paid for all of the utilities, but that she did not have a complete record of all payments made. She provided evidence of four electricity payments, three payments of council rates, and one Sydney Water payment.
2. Ms Dang was not challenged about these payments in cross-examination, nor was her claim that she resided in the Smithfield property as her home over the relevant period.
3. As I have recorded above however, the second letter written by her solicitors to the solicitors for the Nguyens asserted that Ms Dang's payments for utilities were within the 'rent' that she claimed to have paid to Mr Hoang.

Payment for improvements

1. Finally, in par 33 of her statement of claim, Ms Dang pleaded that since 25 May 2015 she had made certain improvements to the Smithfield property. In par 52 of her 2 December 2019 affidavit, Ms Dang gave evidence of payments that she had made for improvements to the Smithfield property in respect of the renovation of the bathroom, the provision of security doors and locks and for renovations to the kitchen. The total amount that she said she paid was $47,704.93.
2. Ms Dang provided some substantiation for those payments, and her evidence was not challenged in cross-examination.

Observations on Ms Dang's creditworthiness

1. It will now be appropriate to make some general observations concerning the creditworthiness of the evidence given by Ms Dang.
2. It should be allowed in her favour that she is not an English speaker, and that it was necessary for her to be cross-examined through an interpreter. Additionally, it is clear that Ms Dang became emotional and upset as a result of what was a fair but a relatively long cross-examination.
3. However, it appeared to me that the primary reason why Ms Dang became upset was the realisation that most of the specific evidence that she gave of her contributions towards the purchase of the Smithfield property was not borne out by the relevant bank statements and other objective evidence, including the bank statements that she annexed to her own affidavits. She became upset because she simply could not justify her own evidence.
4. It may also be that she became upset because it became clear that, from Ms Dang's perspective, she had given money to Mr Hoang that he had not used in accordance with her instructions, and that he had lied to her. This is reflected in the multiple observations made by Ms Dang that she was the victim.
5. Nonetheless, Ms Dang was a very unsatisfactory witness in the manner in which she gave her evidence. While it may be disadvantageous for a witness to give evidence through an interpreter, experience shows that it is not usually a serious problem for witnesses who give their evidence carefully and honestly.
6. A great many of Ms Dang's responses in cross-examination were unresponsive and lengthy, and it appeared often to place a burden on the interpreter to try to compress Ms Dang's responses into intelligible answers.
7. It was necessary for the Court on a number of occasions to warn Ms Dang that she should give direct and responsive answers to questions: see for example T 87.29, T 88.45, T 90.1 and T 135.17. It was also necessary to request Ms Dang to sit down in the witness box when she stood up to give lengthy and emotional responses to questions: see T 144.50 and T 150.43.
8. I found it particularly significant that Ms Dang gave the following evidence in cross-examination at T 91.1 and T 91.16: HIS HONOUR: Now, Ms Dang, I have to ask you to just answer the question. And the answer was, "Yes" - one word; probably one word in Vietnamese, as well as in English. WITNESS (INTERPRETER): But I need to know the meanings of the - the - the story, the questions, before I would be able to answer yes or no. HIS HONOUR: Well, I have to say to you, Ms Dang, that that is exactly wrong. You have to answer each question - Ms Dang, listen to me. You have to answer each question, whether or not you know what the purpose of the question is. WITNESS (INTERPRETER) I need to know the purpose of that question for me to be able to say yes or to say no. LAMBERT: I'm almost about to move for contempt here.
9. It is unfortunate, but Ms Dang gave me the clear impression that she wanted to know where the questions were going before she would answer them, and frequently, instead of giving a direct yes no response to questions where a response of that nature was called for, she attempted to provide an explanation in support of her case.
10. In response to her inability to explain how she had made a substantial proportion of the payments that she claimed were contributions to the acquisition of the Smithfield property, or to explain how the funds were used for that purpose, Ms Dang continually fell back on the proposition that she had paid Mr Hoang substantial amounts of money in cash, and that it was the responsibility of Mr Hoang to use that money in accordance with her instructions: see for example T 128.25, T 129.10, T 138.40, T 153.5, T 156.35, T 188.33 and T 190.11. She said that she gave him cash from time to time in amounts of $100,000 or $200,000: see T 97.32 and T 164.16. Ms Dang also mentioned on a number of occasions, without elaboration, that the cash was received on the "black-market": see T 96.40 and T 116.18. I understood this evidence reflected the interpreter's understanding that Ms Dang was referring to the manner in which she received cash from her investments in Vietnam.
11. Lastly, I consider that the credibility of Ms Dang's evidence was sabotaged by her decision to change her case to one based on an alleged agreement with Mr Hoang that he would purchase the Smithfield property in his name but for her benefit, from a case based upon the instructions that she must have given to her solicitors that she was entitled to an equitable lien over the property to secure contributions that she made to the purchase of the property by Mr Hoang. There was no explanation in Ms Dang's case of the circumstances that led to such a fundamental change that could satisfactorily explain the claims made by her solicitors on her behalf.

Finding on constructive trust claim

1. The evidence does not justify a finding that Mr Hoang holds the title to the Smithfield property on a constructive trust for Ms Dang.
2. For the reasons that I have given above, I have not found that Ms Dang was a sufficiently reliable witness to accept her uncorroborated evidence of the alleged agreement that she made with Mr Hoang on about 22 December 2014.
3. The nature of the proprietary interest claimed by Ms Dang in the Caveat and asserted by her solicitors, being an equitable lien in the Smithfield property, is inconsistent with Ms Dang being the beneficial owner of the property by reason of the existence of the alleged constructive trust. The terms of the Caveat and the statements made by Ms Dang's solicitors constitute clear admissions that are adverse to her primary claim. As I have observed, Ms Dang made no attempt to explain how the admissions were made in error so that she should not be bound by them.
4. In particular, the acknowledgement made by Ms Dang's solicitors that the payment of the $98,500 for the deposit was a gift undermines Ms Dang's claim to be the beneficial owner of the Smithfield property.
5. While the examination of Ms Dang's claims concerning alleged payments to enable Mr Hoang to acquire the Smithfield property supports a finding that Ms Dang made substantial payments for that purpose, the evidence was inadequate in respect of a substantial number of the payments. The evidence fell short of supporting Ms Dang's claim that she had made all payments for the acquisition and maintenance of the property.
6. Ms Dang's ultimate position was that, except for payments described in captions in bank accounts that identified her as being responsible for the payments, Mr Hoang made the payments on her behalf out of substantial amounts of cash given to him by Ms Dang in circumstances that were not substantiated by the evidence.
7. The payments into the NAB mortgage account before the lodgement of the Caveat that contain the captions "For you son", "For you son Mom", or "By Mom" suggest that the payments were made for the benefit of Mr Hoang rather than Ms Dang. Ms Dang claimed that these payments must have been made by Mr Hoang, because Ms Dang did not learn how to use internet banking until after Mr Hoang was incarcerated. However, the wording of the captions appears to be incompatible with Mr Hoang having been their author.
8. The evidence that Ms Dang paid utilities is consistent with the fact that Ms Dang occupied the Smithfield property as her home. The evidence that Ms Dang paid for significant improvements to the property is consistent with her belief that she was the beneficial owner but is inconclusive given the other evidence that she made payments by way of gift to Mr Hoang.

Alternative claim for equitable lien

1. As mentioned, Ms Dang makes an alternative claim that she is entitled to an equitable lien over the Smithfield property to secure recoupment from Mr Hoang of funds contributed by Ms Dang in relation to the property. She also seeks an order for an account in order to determine the respective interests of Ms Dang and Mr Hoang in the property.
2. Ms Dang has not, however, pleaded in her statement of claim any alternative factual basis for the existence of the equitable lien than the basis for her claim to be the beneficial owner of the Smithfield property by reason of a constructive trust imposed on Mr Hoang. Further, Ms Dang did not explain in her submissions how the equitable lien came into existence if her claim to be the beneficial owner of the property failed.
3. On the other hand, Ms Dang clearly claimed, by means of the Caveat, that she did have an equitable lien over the Smithfield property. That equitable lien was said to arise out of an agreement made between Ms Dang and Mr Hoang on 22 December 2014.
4. The evidence has not established that Ms Dang and Mr Hoang made any express agreement that the Smithfield property was charged to secure any obligation by Mr Hoang to repay to Ms Dang any payments that she made towards the acquisition of the property, or the servicing of the mortgage, or the payment of utilities, or for improvements to the property. The evidence given by Ms Dang, even if accepted, does not establish any agreement by Mr Hoang to grant a charge over the Smithfield property.
5. A question therefore arises as to whether the Court should simply find that Ms Dang has not established that she has any interest in the Smithfield property at all, and consequently consider whether an order should be made for the withdrawal of the Caveat at the suit of the Nguyens on that basis.
6. Doubt exists about the proper answer to that question because of the evidence that appears to establish that Ms Dang made a considerable number of payments to the NAB account in reduction of Mr Hoang's mortgage. The evidence is also consistent with Ms Dang being possibly able to establish, in an accounting between herself and Mr Hoang, that she made other such payments. It is possible that Ms Dang is therefore entitled, as against Mr Hoang, to claim a charge over the Smithfield property by reason that she is subrogated to the NAB mortgage. The existence of such an interest in the Smithfield property may be consistent with Ms Dang's claim in the Caveat that she was entitled to an equitable lien, although it may only be distantly related to the claim that the equitable lien arose out of an agreement made on 22 December 2014.
7. The answer to the question is complicated by the fact that Mr Hoang is the registered proprietor of the Smithfield property against whom both Ms Dang and the Nguyens make competing claims. Mr Hoang has not filed a defence or contested Ms Dang's claims against him. Ms Dang may be entitled to default judgment against Mr Hoang under UCPR r 16.3. The contest in the present proceedings thus far has only been between competing claimants to entitlements in respect of the Smithfield property.
8. The evidence does not establish the market value of the Smithfield property or the amount currently secured by the NAB mortgage. The Court cannot know whether Mr Hoang's 'equity' in the property after payment of the mortgage will be sufficient to discharge the obligations that it may be established he owes to both Ms Dang and the Nguyens. Accordingly, it is not yet clear whether it will become necessary for the Court to determine any question of competing priorities between Ms Dang and the Nguyens.
9. In the circumstances, I consider that it will be proper for the Court to examine the question of whether Ms Dang may have a right of subrogation in respect of the NAB mortgage over the Smithfield property. I am mindful of the Court's duty under s 63 of the Supreme Court Act 1970 (NSW) to grant all such remedies as any party may appear to be entitled to in respect of any claim brought forward in the proceedings. This power may extend to relief not specifically claimed in the proceedings and may be exercised to avoid a multiplicity of proceedings: see Ritchie's Uniform Civil Procedure NSW LexisNexis Butterworths (Ritchie's) at [SCA s 63.5].
10. It must be borne in mind that Ms Dang has sought an order for an accounting as between herself and Mr Hoang, so it will not be conclusive against Ms Dang that the evidence at the hearing may not have been sufficient to prove on a final basis the amount that Ms Dang might be entitled to recover, by way of subrogation to the NAB mortgage, from the Smithfield property. All that Ms Dang was required to establish was that Mr Hoang is an accountable party and potentially liable for some (though inherently uncertain) amount: see for example Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 at [338].
11. I recognise that the Nguyens may be entitled to argue that Ms Dang is not entitled in these proceedings to any relief founded upon an entitlement to subrogation to the NAB mortgage because such an entitlement was not explicitly claimed in the statement of claim or supported by Ms Dang's submissions. I consider that I should nonetheless deal with the issue and make appropriate orders in due course to enable the Nguyens to put to the Court any argument that they may have concerning Ms Dang's right to claim any interest in the Smithfield property on the basis of subrogation.
12. It will be convenient to take this course because the immediate issue between Ms Dang and the Nguyens is whether the Nguyens have standing to require Ms Dang to withdraw the Caveat. It would be preferable for the Court to consider all issues that realistically affect that question. The Nguyens will not gain satisfaction through these proceedings unless and until steps are taken that lead to the Sheriff successfully selling the Smithfield property in execution of a writ issued to the Nguyens. The rights of the claimants to the Smithfield property will only crystallise when the net proceeds of sale of the property have been realised after repayment of the NAB mortgage. Any dispute between Ms Dang and the Nguyens concerning their respective entitlements to the 'equity' in the Smithfield property and any priority issues may be determined at a convenient future time.

Principles governing subrogation to prior securities

1. I take the principles to be as stated by Gleeson JA, with the agreement of Meagher and Leeming JJA, in Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393, which are relevantly as follows: [47] There was general agreement between the parties as to the relevant legal principles governing the equitable doctrine of subrogation. The main area of disagreement concerned the significance of the intention of the third party who pays out the secured creditor. [48] For the purposes of the appeal, it is sufficient to note the following principles. [49] First, in a general sense, subrogation is the "process by which one party is substituted for another so that he may enforce that other's rights against a third party for his own benefit" [sic]: C Mitchell, The Law of Subrogation (1994, Oxford, Clarendon Press) at 3 cited with approval in Highland v Exception Holdings Pty Ltd (in liq) [2006] NSWCA 318; (2007) 60 ACSR 223 per Santow JA at [90]. … [51] Thirdly, one well recognised area of subrogation is where there has been payment out by a third party of a prior security: see Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed, 2002, Butterworths) at [9-060]-[9-075]. [52] Thus, where a third party has paid off a mortgage, he or she is presumed, unless the contrary appears, to intend that "the mortgage shall be kept alive for his own benefit": see Ghana Commercial Bank v Chandiram [1960] AC 732 at 745; see also Filby v Mortgage Express (No 2) Ltd [2004] EWCA Civ 759 at [53]; Butler v Rice [1910] 2 Ch 277; Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177 at 202 per Windeyer J, who dissented on the facts. [53] Fourthly, the expression "kept alive" means in this context, that the legal relations between the third party and the debtor are regulated as if the benefit of the security had been assigned to the third party: Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221 at 236F per Lord Hoffmann. [54] In Cochrane v Cochrane (1985) 3 NSWLR 403 at 405, Kearney J accepted that the principle emerging from Ghana Commercial Bank applies, unless it is shown that the circumstances are such as to displace the presumption. His Honour observed that: "This principle is based on equity's concern to prevent one party obtaining an advantage at the expense of another which in the circumstances of the case is unconscionable. Hence, there is a common thread running through the relevant cases to the effect that the conscience of the mortgagor should be affected so as to cause the mortgage to be kept alive. This is illustrated in the text book examples first, of a third party not being entitled to a right by way of subrogation where he simply lends the money on an unsecured basis to the mortgagor who then uses such funds to pay off the mortgage; and secondly, of a third party being so entitled where he advances the money to pay out the mortgage on the understanding that security would be provided for such advance upon the mortgage being paid out." (Emphasis added) [55] Subsequently, in Challenger Managed Investments Ltd v Direct Money Corporation Pty Ltd [2003] NSWSC 1072 (not reproduced in the report (2003) 59 NSWLR 452) at [48]-[50], Bryson J expressed the view that an explanation of the doctrine in terms of intention or the presumed intention of the payer, did not yield a clear or readily understood basis of the right of subrogation. However, his Honour accepted that intention may be significant where it is for some reason clear that the payer did not intend to be secured at all. … [57] More recently, Re Dalma No 1 Pty Ltd (in liq) [2013] NSWSC 1335; (2013) 279 FLR 80, a decision handed down after this appeal was argued, Brereton J at [32] expressed his agreement with the view expressed by Bryson J at [48]-[50] in Challenger Managed Investments Ltd, subject only to the caveat that his Honour considered that the role of the payer's actual or presumed intention could not be disregarded entirely. Brereton J went on to observe at [32], in relation to the classification of the mortgagor's conduct as unconscionable, that: "[32] … the explanation is no more than that sufficient unconscionability to engage the doctrine is to be found in the mortgagor insisting that the effect of the third party's payment is to discharge it from the encumbrance, unless that was the basis on which the third party made the payment. In other words, the position of a mortgagor who claims to be discharged as a result of the third party's payment, rather than that the mortgage subsists for the benefit of the third party, is prima facie unconscionable, even if that characterisation is somewhat 'attenuated'; but that prima facie position is displaced if it is shown that the third party intended otherwise." … [59] Although each case will necessarily turn on its own facts, in Cheltenham & Gloucester plc v Appleyard [2004] EWCA Civ 291, Neuberger LJ stated 13 propositions regarding subrogation at [32]-[44]. In Highland v Exception Holdings at [106], Santow JA (with whom Giles and Hodgson JJA agreed on the question of subrogation) cited with approval Neuberger LJ's propositions 4 to 11, which deal with the issue of failed security. It is sufficient for present purposes, to note propositions 4, 7, 9 and 10: "… [40] Ninthly, the absence of a common intention on the part of the borrower and the lender that the lender should have security is by no means fatal to a lender's subsequent claim for subrogation: see Banque Financiere at 232B-234C. However, the intention of the parties to the arrangement which is said to give rise to a claim for subrogation may be 'highly relevant': ibid at 234D. It would seem that the intention of the lender is particularly important (see for example Banque Financiere at 235A-B and Boscawen at 339H-340A). …"
2. See also the consideration of the principle of subrogation by Rees J in In the matter of Harmon International Holdings Pty Ltd [2019] NSWSC 413 at [41]-[42] and in Gandel Metals Pty Ltd, in the matter of Centennial Mining Limited (Subject to Deed of Company Arrangement) v Centennial Mining Limited (No 2) [2020] FCA 633 at [44]-[63] (Gandel Metals).
3. A review of the table set out above of the payments that Ms Dang claimed that she made to service the NAB mortgage is inconclusive as to Ms Dang's intention at the time that she made the payments, before the Caveat was lodged on 26 June 2018. However, the captions beside the payments totalling $69,000 made after the lodgement of the Caveat, being "Thu Dang paid", do not suggest that Ms Dang intended to make a gift or an unsecured loan to Mr Hoang. As the payments were made after the lodgement of the Caveat and the articulation of Ms Dang's claim to have an equitable lien over the Smithfield property, the evidence does not in my view negate the prima facie presumption that Ms Dang intended that, if she made a payment in reduction of the NAB mortgage, she intended that the mortgage would remain alive to secure her payment. The evidence is not so clear concerning the additional payments totalling $21,700, because at least some of the captions in relation to those payments are more easily construed as evidencing an intention to benefit Mr Hoang. However, in the absence of a contest from Mr Hoang, I consider that on balance the evidence justifies a finding that Ms Dang made payments in the total sum of $90,700 that may be secured by means of subrogation to the NAB mortgage over the Smithfield property. As noted above, it remains possible that on an accounting, Ms Dang may be able to establish that she made additional payments in reduction of the NAB mortgage.
4. The conclusion stated in the preceding paragraph is the subject of the issue as to whether a right of subrogation can arise if the party who claims the right of subrogation has not paid out the whole of the mortgage debt. The learned editors of Meagher, Gummow and Lehane's Equity Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [9-075] say: "It appears clear that there can be no subrogation, in general, unless the whole of the secured debt has been paid off".
5. For the reasons that follow, I take this statement not to mean that a third party cannot be entitled to subrogation to an existing mortgage unless that party personally pays the whole of the mortgage debt; but rather, that no right of subrogation can actually be exercised as against the existing mortgagee unless the whole of the mortgage debt has been repaid, by one means or another.
6. The learned editors cited, as the authority for the proposition that they stated, the decision of the Supreme Court of Georgia in Wilkins v Gibson (1901) 38 S.E. 374. In that case, Cobb J said on behalf of the Court at 383: … In order, however, to entitle the junior mortgagee to subrogation, the general rule is that the whole debt must be paid, and the senior creditor satisfied. Equity will not generally permit a junior incumbrancer to interfere with a senior lien so long as the lien creditor remains unsatisfied… It seems, however, that if the debt be actually discharged the junior incumbrancer would be entitled to subrogation to the extent of the amount he contributed, though the balance of the debt was paid by the debtor or by a third person…
7. In State Bank of New South Wales v Geeport Developments Pty Ltd (1991) 5 BPR 11,947, Cohen J said at 11,953-11,954: If the proper view of the facts is that the underpayment is in respect of both the Loc-tex and the Geeport and Rosechurch mortgages a question arises as to whether there is subrogation on a pro rata basis. … In Patten v Bond (1889) 60 LT 583 the plaintiffs advanced £600 to pay off part of a mortgage of £1000. It was held by Kay J that the mortgage would not be discharged even though the balance of the debt was paid. He pointed out that it was an equitable doctrine that the person who pays, though there is no written agreement, has a right to have the mortgage kept alive for his benefit. The payment of £600 was a discharge of the mortgage to that extent, as regards the mortgagee, but it was not a discharge as between the mortgagor and the person who paid that amount of money. In effect there was a pro rata subrogation. That principle was applied in Chetwynd v Allen [1899] 1 Ch 353 where half of the mortgage debt was paid and it was held that there was no release of the prior charge but that it continue to the extent of the payment made in favour of the person so paying it. That principle was also accepted by Walton J in Burston Finance Ltd v Speirway Ltd (in liq) [1974] 1 WLR 1648 where it was said at 1652 that where one person advances money on the understanding that he is to have certain security and he does not receive that security, he is nevertheless subrogated to the rights of any security already held for which his money was used to obtain a discharge. It was said that "in such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged, in whole or in part, by the money so provided by him, but of course only to the extent to which his money has, in fact, discharged their claims". In those circumstances it seems to me that there is authority which supports the claim of Loc-tex that it has a right to subrogation which arises from its payment of part of the debt of Geeport and Rosechurch to the extent of that payment. This is contrary to the view expressed by the learned authors of Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 2nd ed, para 913 where it is stated that it appears clear that there can be no subrogation, in general, unless the whole of the secured debt has been paid off. Authority for that is said to be Wilkins v Gibson (1901) 38 SE 374 . On the other hand at para 944 the learned authors, when dealing with a surety's right of subrogation, say that it appears that subrogation pro tanto in this sense will still be available where the balance of the debt has been paid by a third party with some real interest in doing so. Again, authority for this is said to be Wilkins v Gibson and two other American decisions. In my opinion the authorities I have referred to above, and in particular the most recent one of 1974, seem to make it clear that there will be a subrogation of a proportionate part of the security. It may well be that the right to exercise that subrogation may not come into existence until the whole of the debt has been paid, whether by the principal debtor or another person so that the right until then remains dormant. This however seems more a matter of enforcement rather than a question of the rights which exist.
8. It may be, with respect, that Cohen J took the statement in the second edition of Meagher, Gummow and Lehane, which is to the same effect as the extract set out above, too literally. Black J, however, approved the observation by Cohen J that "a right of subrogation can arise from payment of part of a debt to the extent of the payment" in Padovan v MGG Group Pty Ltd (in liq) [2011] NSWSC 1080 at [30]. The same conclusion was reached by Middleton J in Gandel Metals at [76]-[82].
9. It is established principle that no right of subrogation can be exercised by any party who pays some or all of the mortgage debt until the whole of the debt has been repaid. No such third party can exercise or interfere with the right of exercise of the original mortgagee's security rights until that mortgagee has entirely been repaid.
10. Consequently, Ms Dang will not be able to exercise any right of subrogation until the NAB debt has been repaid, and that is an event, in the circumstances of the present case, that is not likely to occur until the Smithfield property has been sold. That will only occur by the choice of Mr Hoang, or by the NAB mortgagee exercising a right of sale, or by the Sheriff selling the property under a writ issued to the Nguyens.
11. There is a question as to the nature of Ms Dang's interest in the Smithfield property. She appears to have an equity that may only mature into a proprietary interest by way of subrogation to the NAB's mortgage if and when the mortgage debt is repaid. It is not necessary for the purpose of these reasons to form a concluded view as to the nature of Ms Dang's present interest, if any, in the Smithfield property.
12. If it is correct to conclude that any equity that Ms Dang may have will only mature into an equitable interest by way of subrogation to the NAB mortgage after the mortgage has been fully repaid, it may be that Ms Dang will be able to assert that claim in separate proceedings in the future irrespective of whether or not any relief in respect of the claim is given in these proceedings. This possibility of multiple proceedings is the underlying reason for my raising of the possibility above that appropriate relief should be given in these proceedings in respect of the claim to avoid that possibility.

Continuation of Caveat

1. Putting aside for the moment the question of whether the Nguyens have standing to seek an order that the Caveat be withdrawn, it is now possible to state a conclusion that in principle the Caveat is not maintainable.
2. First, Ms Dang has not established that she is the beneficial owner of the Smithfield property in accordance with her primary claim, so she does not have that proprietary interest in the property. Of course, the Caveat did not seek to protect that form of interest.
3. Secondly, although the Caveat claimed that Ms Dang has an equitable lien over the Smithfield property, she has not established the existence of an interest of the nature claimed, and although the evidence establishes that she may be entitled in the future to be subrogated to the NAB mortgage, that may not constitute a present proprietary interest in the property.
4. Those circumstances would ordinarily justify the Court in ordering that the Caveat be withdrawn.
5. It would not follow from that consequence however that Ms Dang would have no protection in relation to her potential right to be subrogated to the NAB mortgage. The Court has jurisdiction to protect Ms Dang by granting an injunction in suitable terms in relation to the sale of the Smithfield property and the dealing with the proceeds of sale after payment of the NAB debt. That is a subject that may require further consideration after the publication of these reasons for judgment.

Consideration of issues concerning the writs and lapsing of the Caveat

1. It is now necessary for the Court to consider Ms Dang's claims that the Court should not make an order that Ms Dang withdraw the Caveat irrespective of whether or not it finds that Ms Dang does not have an interest in the Smithfield property as she claims, or that the Caveat does not properly support whatever interest it is that the Court finds that Ms Dang has.

Ms Dang's submissions

1. Ms Dang ultimately put two arguments to the Court in her final written submissions. The first submission was that the Nguyens, as writ holders, have no standing to apply for an order that the Caveat be withdrawn, because the issue of the writ did not give the Nguyens an estate or interest in the Smithfield property. The second argument was that the lapsing notice issued by the Registrar-General was improperly issued and is invalid because the lapsing notice could only be issued if the Caveat had prevented the recording of the second writ in the Register, when in fact the second writ had been so recorded.
2. As I understand it, these two arguments flow out of the Dang motion filed in the 2017 proceedings on 15 February 2019, in which Ms Dang sought an order that the Nguyens' amended notice of motion be summarily dismissed.
3. Ms Dang did not ultimately refer in her final submissions to prayer 11 of her summons filed on 23 September 2019, by which she commenced the 2019 proceedings. That prayer sought a positive order that the Nguyens withdraw their application or request under s 105(2) of the Real Property Act to have the second writ recorded on the Register. The claim in prayer 11 is nonetheless relevant to the determination of these proceedings as it was a live issue at the hearing. Ms Dang's claim for an order requiring the Nguyens to withdraw their application to register the second writ must have been based upon her assertion that she had an estate or interest in the Smithfield property that was inconsistent with the Nguyens having a right to execute a writ against the property.
4. Ms Dang put the submission that the procedural course that these proceedings have taken has unjustly deprived Ms Dang of her entitlement to have the Nguyens' application by their amended notice of motion in the 2017 proceedings dismissed, without having to deal with the substantive question of whether she has a caveatable interest in the Smithfield property.
5. Although I have determined that the manner in which the two proceedings were set down for hearing required the Court to determine all questions that arose in them, Ms Dang remains entitled to a ruling on the question of whether the Nguyens' application should simply be dismissed.
6. In this respect, Ms Dang submitted that it is immaterial that the Court has found in the 2019 proceedings that Ms Dang is not entitled to either of the proprietary interests in the Smithfield property that she has claimed. According to Ms Dang, that is a matter between her and Mr Hoang, who is the registered proprietor of the property. Ms Dang submitted that there is simply no legal mechanism available to the Nguyens to require Ms Dang to withdraw the Caveat.

Issue, effect and enforcement of writs

1. It is appropriate to begin by setting out the legislative and procedural background to the enforcement of orders for the payment of money by the issue of writs by the Court to judgment creditors, the effect of the writs while in force, the manner in which those writs may be enforced, and the relationship between the effect of writs and the possible existence of prior interests in the land of the judgment debtor that are the subject of caveats lodged against the title to the land.
2. Section 106(1)(a) of the Civil Procedure Act authorises the enforcement of a judgment debt by means of a writ for the levy of property.
3. Uniform Civil Procedure Rules r 39.20 provides that a writ of execution has effect for 12 months but may, subject to the rules, be renewed by the Court. As noted in Ritchie's at [39.20.5], applications for extension are usually only made where it is desired to preserve the priority of the original writ, and the application may be made even after the writ has expired.
4. It is nonetheless relevant to the exercise of the Sheriff's duty in executing writs that they have a term of 12 months, and that the Sheriff may not have grounds for confidence that any particular writ that the Sheriff takes steps to execute will be renewed by the judgment creditor.
5. Section 112 of the Civil Procedure Act provides: (1) A writ of execution against land binds the land, as from the time the writ is delivered to the Sheriff, in the same way as a writ of execution against goods binds the property in the goods. (2) Despite subsection (1), a writ of execution does not affect the title to land acquired by a person in good faith and for valuable consideration unless, when the person acquires title, he or she has notice that such a writ has been delivered to the Sheriff and remains unexecuted. (3) A judgment in any action at law does not of itself bind or affect any land.
6. Thus, the judgment itself does not affect the title to the judgment debtor's land or the transactions that the judgment debtor is entitled to effect.
7. The statement in subsection (1) that the writ binds the land from the time the writ is delivered to the Sheriff is explained in the following extract from the judgment of Kitto J (with whom Dixon CJ and Windeyer J expressly agreed) in Hall v Richards (1961) 108 CLR 84 at 91-92 (footnotes omitted): In the meantime the Courts had been examining more closely than had been done in Holmes v. Tutton the nature of the "binding" effect produced, on the one hand, by the delivery of a fi. fa. to the sheriff and, on the other hand, by an actual seizure of goods by the sheriff. This they had done in such cases as Slater v. Pinder; Ex parte Rocke; In re Hall; and Ex parte Williams; In re Davies; and as a result the position had been reached which may be stated shortly as follows. A fi. fa."binds" the execution debtor's goods - it did so at common law from the date of the teste and since the Statute of Frauds it binds them (as between the creditor and third parties) from delivery of the writ to the sheriff (see now Sale of Goods Act, 1896 (Tas.), s. 31); but this means only that no dealing with any of the goods which belong to the debtor when the writ becomes binding can alter the fact that they are goods which the writ requires the sheriff to seize and sell. It gives the creditor neither property in the goods nor possession of them (and consequently no lien in the sense of the Bankruptcy Acts), and as against an assignee in bankruptcy of the debtor it gives the creditor no right at all with respect to the goods: all the creditor has as against the assignee is his judgment; and it was early enacted, by s. 9 of 21 Jac. c. 19, that that, though called a security, should gain him no greater right to get more than a ratable portion of his debt. But seizure by the sheriff under the fi. fa. is different. Though it does not give the execution creditor any property in the goods seized, it places those goods in custodia legis, the sheriff having the special property in them which is necessary for their safe custody and "to render the execution of his public duty useful to the judgment-creditor", as Tindal C.J. put it in Giles v. Grover. By the seizure the creditor acquires a legal right to have the sheriff's duty performed in respect of the particular goods: that is, a right to have them sold and to be paid out of the proceeds of sale; and a "binding" effect which goes as far as that is enough to constitute a "charge" and make the creditor a "secured creditor" within the definition, so that if it were not for such provisions as those of s. 92 of the Australian Act he might realize his security (under s. 60 (3)) by completion of the execution (McQuarrie v. Jaques)…
8. In the earlier case in the Supreme Court of Victoria, In re Shears and Alder (1891) 17 VLR 316, Higinbotham CJ said at 320-321 (footnotes omitted): … The word "bound," which appears in all three Acts, and describes the legal effect of the act to be done by the judgment creditor, first appears in the Statute of Frauds in connection with goods liable to be seized in execution. The meaning of the expression that the property in land or goods is bound is not that the property in them is altered or divested, but that the judgment debtor cannot dispose of them so as to prevent their being taken in execution, nor except as subject to the claims of the execution creditor: Woodhouse v Fuller. It is the effect of sec. 139 that the judgment debtor is prevented from doing any act prejudicial to the claim of the judgment creditor between the service of the copy writ on the Registrar and the sale by the sheriff. …
9. Webb J added at 322: … The section makes the fi. fa. a charge upon the land, and the Registrar, having notice of that charge, could not properly issue a clean certificate as to the land, ignoring the charge. A person who has a bona fide interest antecedent to the service of the copy fi. fa. can protect himself by a caveat, and then when a purchaser from the sheriff lodges a transfer for registration the Registrar would give notice to the caveator, who would take steps to enforce his claim as against the purchaser, and prevent the transfer from the sheriff being registered. …
10. The binding of the writ to the land will give the judgment creditor some practical priority during the period when the judgment debtor is prohibited from dealing with the land, but that will not affect interests in the land created before the writ binds the land.
11. The binding of the writ to the land effected by s 112(1) occurs when the writ is delivered to the Sheriff, not when the writ is registered. As such, any part of the 12-month life of the writ that passes before delivery to the Sheriff will be wasted, subject to the right to renew the writ.
12. As s 112(2) provides that the writ does not affect the title to land acquired by a person in good faith and for valuable consideration where the person had no notice that the writ had been delivered to the Sheriff and remained unexecuted, as a practical matter it will be important for the judgment creditor to have the writ recorded in the Register as soon as possible so that the risk that the benefit of the writ will be lost to the judgment creditor by the conduct of the judgment debtor will be minimised.
13. The restriction on the judgment debtor's dealing with the debtor's land is found in s 113 of the Civil Procedure Act, which relevantly provides: (1) This section applies to land the subject of a writ for the levy of property - (a) that is registered, in the Register kept under the Real Property Act 1900, pursuant to section 105 of that Act, or … (2) During the period - (a) that begins when the writ is registered in the relevant register, and (b) that ends at the expiration of 6 months after the writ is registered in the relevant register, or on the expiration of the writ, whichever first occurs, land the subject of the writ may not be sold or mortgaged by the judgment debtor otherwise than in accordance with this section.
14. The judgment creditor does not become entitled to this protection until the writ is recorded in the Register, so a caveat that prohibits the recording of the writ will deny the judgment creditor that protection so long as the prohibition is effective.
15. As noted above, the writ is effective for 12 months after issue, subject to renewal. Some of that time may be lost obtaining registration of the writ, particularly if the judgment creditor is required to deal with a prohibition in a caveat. However, the restriction on the judgment debtor dealing with the land will be limited to the six-month period after registration.
16. It will be appropriate to note a number of aspects of the rules that affect the time that passes after the issue of the writ in respect of the steps that may effectively be taken in the execution of the writ.
17. Under UCPR r 39.22(1)(a), land may not be sold under a writ until the judgment creditor has filed an affidavit of service of a judgment creditor's notice under r 39.21. A judgment creditor's notice cannot be issued under r 39.21(2) until after the judgment creditor has filed the affidavit referred to in r 39.21(1). That affidavit must, relevantly, verify the registration of the writ in the Register, and that the judgment creditor has received advice from the Sheriff to the effect that the Sheriff cannot obtain satisfaction of the writ by proceeding further against the goods of the judgment debtor. The judgment creditor cannot obtain execution of the writ until these steps have been taken after the registration of the writ.
18. Of the many steps listed in UCPR r 39.22(1), one of those steps required by par (e) is that the Sheriff has fixed a date for the sale of the land being a date occurring not less than four weeks after the date on which the judgment creditor's notice was served on the judgment debtor. This procedural aspect is not directly relevant and is but one of the procedural matters that is likely to expend part of the 12-month life of the writ.
19. Uniform Civil Procedure Rules r 39.5 requires that any property to be sold under a writ must be put up for sale as soon as practicable, having due regard to the interests of each of the parties and to the need to avoid the sacrifice of the reasonable value of the property. Rule 39.6(2) refers to the desirability of "the speedy satisfaction of the judgment without undue expense". However, a number of rules impose obligations on the Sheriff that in practical terms require the Sheriff to try to obtain a price as close as possible to the reasonable market value and to avoid a sacrifice of that value: see UCPR rr 39.5, 39.7, 39.10 and 39.11. The duty imposed upon the Sheriff to try to ensure that the sale under the writ is for a price that is reasonable in the circumstances is not otherwise relevant to the present issue, save to the extent that there may be a tension between the need to sell quickly and to obtain a reasonable price that may require the Sheriff to take a course that makes it difficult for the judgment creditor to obtain execution of the writ and payment of the judgment debt during the life of the writ.

Registration and effect of writs

1. I will now return to the provisions of the Real Property Act that govern the registration and effect of writs.
2. Section 105(2) authorises the Registrar-General to record a writ in the Register pursuant to an application that provides specified information. Subsection (6) has the effect that the writ shall not be registered if there is some dealing for valuable consideration affecting the land that has already been lodged at the time of the application for registration of the writ, save in specified circumstances.
3. Section 105A(2) provides: (2) Where a writ is recorded under section 105 and a dealing (other than a dealing to which, by the operation of subsection (1), this subsection does not apply) that affects the land to which the recording relates is lodged for registration within the protected period, the Registrar-General shall not, during the protected period, register the dealing unless the writ is referred to in the dealing as if it were a prior encumbrance.
4. The "protected period" is defined in s 105A(9) as follows: (9) In this section, protected period, in relation to a writ, means the period - (a) that begins when the writ is recorded in the Register, and (b) that ends at the expiration of 6 months after the writ is recorded in the Register, or on the expiration of the writ, whichever first occurs.
5. Thus, subject to the earlier expiration of the writ, the prohibition of the registration of other dealings after the writ is recorded in the Register lasts for six months.
6. Section 105A(6) provides: (6) Where a writ recorded under section 105 has not, within the protected period, been executed by sale of the land to which the recording relates, a dealing with that land lodged for registration before the writ is so executed may be registered notwithstanding the recording of the writ.
7. This provision gives rise to the possibility that, if the writ cannot be executed quickly enough and the judgment debtor becomes entitled to deal with the land, a dealing may become eligible to be registered in favour of some third-party that defeats the writ.
8. Finally, s 105B of the Real Property Act relevantly provides: (1) A transfer pursuant to a sale under a writ is registered when it is recorded in the Register and the Registrar-General may make a like recording on the relevant certificate of title or duplicate registered dealing when it becomes available to the Registrar-General. (2) Upon the registration of a transfer referred to in subsection (1), the transferee holds the land transferred free from all estates and interests except such as - (a) are recorded in the relevant folio of the Register or on the relevant registered dealing, (b) are preserved by section 42, and …
9. If the statutory provisions that impose a bar on the judgment debtor dealing with the land and the Registrar-General registering dealings that would defeat the rights of the judgment creditor have the effect that the Sheriff is able to sell the land in execution of the writ within the protected period, then the purchaser from the sheriff will have the protection provided by s 105B(2).
10. In respect of any unregistered interest in the land created before the registration of the writ, the party entitled to that interest will be entitled to priority under s 105(6) of the Real Property Act if a dealing for valuable consideration has been lodged before the lodgement of the application for the recording of a writ. The parties dealing with the judgment debtor may also be protected by s 112(2) of the Civil Procedure Act if they do so in good faith and for valuable consideration without notice that the writ has been delivered to the Sheriff and remains unexecuted. In other cases, unregistered interests created before the time when the writ binds the land will only be protected if they are the subject of a caveat lodged against the title to the land: see In re Shears and Alder per Webb J at 322.
11. The judgment creditor can have no complaint where a genuine unregistered pre-existing interest in the land is protected by a caveat. However, it is problematic that the rights of the judgment creditor may in practical terms be defeated by the existence of a caveat that may claim an interest in the land that does not exist, and may as a separate matter prohibit the Registrar-General from recording the writ in the Register. The judgment creditor may be prevented from realising the fruits of the judgment by reason of the legal and practical impediments to achieving registration of the writ, the withdrawal of the caveat, and the execution of the writ by the Sheriff in a timeframe compatible with the protected period or the life of the writ.
12. It is pertinent to consider the following appellate authorities, even though they do not deal with the present situation where the caveat has been lodged before the application for the registration of the writ to protect an interest claimed to have been created before that application, and where the question is what a judgment creditor can do to avoid the execution of the writ being thwarted by an unsustainable caveat.
13. In Black v Garnock (supra), a judgment debtor had entered into a contract to sell land before the date a writ, issued in respect of the judgment debt, was recorded against the title to the land. Completion of the contract took place two hours after the writ was recorded against the land by the Registrar-General. The purchaser sought an injunction restraining the sale of the land to any other party in execution of the writ. The purchaser obtained a beneficial interest in the land on the basis of an entitlement to specific performance of the contract. This interest could not be registered until after completion of the contract and the delivery of a transfer by the judgment debtor. The interest was not protected by a caveat.
14. By majority, the High Court held that the purchasers were not entitled to an injunction to prevent the sale of the land by means of the execution of the writ. Instead, during the protected period, effect was to be given to ss 105A and 105B of the Real Property Act.
15. Gummow and Hayne JJ, who formed part of the majority, said (footnotes omitted): [42] The other questions debated in argument are of more direct assistance in resolving the question of construction that must be decided. If, before the writ was recorded on the register, the purchasers had lodged caveats on the titles to the land, claiming an interest as purchasers of the land, how would relevant provisions of the RP Act have operated? [43] The first point to notice is that the lodging of caveats and entry of particulars of caveats on the register would not have prevented the Registrar-General from recording the writ with respect to the land (s 74H(5)(f)). The second and more directly relevant point is that, if caveats had been lodged and particulars of the caveats entered on the register, and if the sheriff then sought to sell the land in execution of the writ, a purchaser at the sheriff's sale would not have been able to obtain registration of a transfer of the land so long as those caveats remained in force. It is necessary to explain the basis for this conclusion. [44] While a caveat lodged under s 74F remained in force, s 74H precluded the Registrar-General, except with the written consent of the caveator, from recording any dealing in the register, if it appeared that the recording of the dealing was prohibited by the caveat. It would follow from s 74H, considered in isolation from the provisions of the RP Act which dealt with the recording of a writ (s 105A) and the registration of a transfer given pursuant to a sale under the writ (s 105B) that, if the purchasers in the present matter had lodged caveats over the land, before the writ was recorded, a purchaser at any sale by the sheriff in execution of the writ could not have obtained a transfer that would be registered. Section 74H would have prohibited registration of a transfer tendered by a person who purchased the land at the sheriff's sale. [45] The provisions of ss 105A and 105B neither required nor permitted a different outcome. [46] The prohibition in s 105A(2) focused upon a dealing that affects the land to which the recording of the writ related. As noted earlier, s 105A(2) was subject to various exceptions. But a transfer by the judgment debtor to a purchaser who had lodged a caveat and who had agreed to buy the land from the judgment debtor was not excepted from the general prohibition of s 105A(2). A transfer giving effect to a sale under the writ was excepted (s 105A(1)(a)). But the exception made by s 105A(1)(a) for a transfer giving effect to a sale under the writ was an exception to a prohibition: the prohibition directed by s 105A(2) to the Registrar-General against registering, during the protected period, a dealing that affected the land. The temporal duration of that limitation is not immediately significant. What is important is that neither s 105A(1)(a) nor s 105A(2) required the Registrar-General to register a transfer giving effect to a sale under the writ. Both subs (1) and subs (2) of s 105A (and the other provisions of that section) were consistent with effect being given to the separate and distinct prohibition contained in s 74H. [47] Nor does any aspect of s 105B require some different conclusion. That section was cast in terms that, first, fixed when a transfer pursuant to a sale is registered (it is registered when recorded) and, second, fixed the consequences of registration (the transferee holds the land free from all estates and interests except those specified in s 105B(2)). But nothing in s 105B cut down the applicability of a prohibition against registration that would arise if the provisions of s 74H were engaged. [48] It therefore follows that if caveats had been lodged, and if the sheriff had then sought to sell the land in execution of a writ recorded after the caveats had been lodged, a purchaser at the sheriff's sale could not have obtained registration of a transfer so long as the caveats remained in force. [49] When this intersection of the provisions of the RP Act dealing with caveats and those dealing with the recording of writs is observed, much of the difficulty apparently presented by the circumstances of this case is resolved. In particular, the purchasers under the contract of sale made with the judgment debtor had steps available under the RP Act which, if taken, would have prevented a purchaser at a subsequent sale made in execution of the writ obtaining registration as owner of the land. In addition, of course, a search of the register conducted immediately before settlement would have revealed the recording of the writ. [50] It also follows from this examination of the provisions of the RP Act that the bare fact that the purchasers made their contract of sale with the judgment debtor before the writ was recorded did not constitute any sufficient reason to intercept what otherwise would have been the operation of the RP Act. And, as noted earlier, it was the bare fact of making the contract before the writ was recorded that was treated as determinative by the majority in the Court of Appeal. Neither in the Court of Appeal nor on appeal to this court did the purchasers seek to make some alternative case. In particular, it was not said that the judgment creditors' procuring of the recording of the writ was unconscientious and it was not said that the purchasers' completion of their contract with the judgment debtor put them in any better position than their making of the contract. Nor was anything said to turn on the provisions of s 43 of the RP Act.
16. The majority thus held that a party claiming an estate or interest in land created before the recording of a writ may protect itself by the lodgement of an appropriately worded caveat. In the absence of such a caveat being lodged, the provisions of the Real Property Act that prohibit the recording of dealings that impede the execution of a writ will take effect.
17. It may be noted that the observation by Gummow and Hayne JJ at [43] that the lodging of caveats would not have prevented the Registrar-General from recording the writ with respect to the land, by reference to s 74H(5)(f) of the Real Property Act, has now been superseded because that provision has subsequently been amended to permit a caveat to prohibit the registration of a writ that is subsequently lodged. I will refer to the amended provision below.
18. In Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26; (2012) 16 BPR 30,397, Barrett JA, with whom Campbell JA and Sackville AJA agreed, said as follows: [64] Once the writ has been recorded, no injunction will lie at the suit of the trustee to restrain execution of the writ by sale of the land. This is for the reasons explained by the majority (Gummow J, Hayne J and Callinan J: Gleeson CJ and Crennan J dissenting) in Black v Garnock [2007] HCA 31 ; (2007) 230 CLR 438, a case concerning not the preferred beneficial interest of a trustee but the equitable interest of a purchaser under an uncompleted contract for sale by the registered proprietor. The statutory scheme based on the recording of a writ in the register proceeds on the basis that a purchaser from the Sheriff obtains, through registration of the resultant transfer, a title that is unencumbered except by estates and interests actually recorded in the register or preserved by s 42. The grant of an injunction to protect an unregistered and unregistrable interest (such as the preferred beneficial interest of a trustee) by restraining the process culminating in registration of the transfer by the Sheriff would therefore be inconsistent with the scheme of the legislation. An estate or interest of a kind that is not to encumber the registered title of the transferee from the Sheriff would otherwise be accorded a force and status that the Act denied it. [65] This unavailability of injunctive relief will continue, however, only during the "protected period" or until effectuation (by registration of a transfer) of any sale made by the Sheriff during that period. Thereafter, the Real Property Act provisions no longer have any part to play with respect to the writ. [66] The members of the High Court did not deal explicitly with the alternative course that a person with an unregistered and unregistrable interest might adopt after recording of the writ, that is, lodgment of a caveat under s 74F forbidding the registration of any transfer. Gummow J and Hayne J were of the view that a caveat lodged by the holder of the equitable interest before the recording of the writ would have operated, after such recording, to prevent registration of the Sheriff's transfer; and that this was so despite the operation of ss 105, 105A and 105B. Nothing in those sections requires or compels registration of a transfer giving effect to a sale by the Sheriff. Section 105A(2) imposes a prohibition on the registration of transfers during the "protected period". Section 105A(1)(a) excepts from the prohibition a transfer giving effect to a sale by the Sheriff. But nowhere is there a positive requirement that the Registrar-General act as allowed by the exception. The prohibition on registration that arises from s 74H through lodgment of a caveat under s 74F is therefore left to operate without any constraint created by the provisions concerning writs. [67] Given this analysis, there is no apparent reason why the same should not be so in relation to a caveat lodged by the holder of an equitable interest after the recording of a writ, with the result that a trustee with a beneficial interest arising from the trustee's right of indemnity may lodge an effective s 74F caveat despite the recording of a writ and the currency of the "protected period". However, this question does not require resolution here and I say no more about it.
19. Barrett JA at [67] suggested, without deciding, that there is no apparent reason, given the reasoning of the majority in Black v Garnock, why a party claiming an estate or interest in land cannot lodge a caveat after a writ has been lodged for recording in the Register. If the caveat is lodged to protect an estate or interest claimed to have been created after the issue of the writ, then the terms of ss 112 and 113 of the Civil Procedure Act will become relevant. However, if, as in Ms Dang's case, the estate or interest was created before the issue of the writ, then the Caveat should take effect as provided for in s 74H of the Real Property Act.
20. The only significance of this decision for present purposes is that it demonstrates the practical importance of there being a mechanism for judgment creditors, who have the benefit of writs, to be able to deal in some effective manner with caveats, given that a caveat may be lodged after the registration of the writ to protect an unregistered interest claimed by the caveator to have been created before the registration.

Relationship between writs and caveats

1. With this background in mind, it will be appropriate to turn to the provisions of the Real Property Act that govern the relationship between writs and caveats that prohibit dealings prohibit either the registration of a writ, or the registration of dealings recording transactions made in execution of a writ.
2. It will be appropriate to start the consideration of the validity of Ms Dang's submissions by referring to the provisions of the Real Property Act that govern the lodgement and effect of caveats.
3. Section 74F(1) of the Real Property Act authorises any person who on any basis "claims to be entitled to a legal or equitable estate or interest in land under the provisions of" the Act to lodge a caveat with the Registrar-General. It is therefore sufficient that the caveator has a claim, and it is not necessary for the validity of the caveat at the time of lodgement that the claim itself be valid or substantiated: see also ss 74G and 74Q. Caveators may therefore cause inconvenience to other persons by means of the lodgement of a caveat even though their claim is not in fact good.
4. However, s 74F(1) provides for the purpose of the lodgement of the caveat to be one of "prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled". Thus, the caveator should not attempt by means of the prohibitions stated in the caveat to prohibit the recording of any dealings to the extent that they do not affect the estate or interest claimed.
5. The effect of a caveat while it remains in force is materially as stated in the following provisions in s 74H of the Real Property Act: (1) Subject to this section, while a caveat lodged under section 74F remains in force - (a) the Registrar-General must not, except with the written consent of the caveator - : (i) record in the Register any dealing, or (ii) grant any possessory application, or (iii) register any delimitation plan, or (iv) cancel the recording of any easement, or (v) extinguish any restrictive covenant, if it appears to the Registrar-General that the recording of the dealing, the granting of the possessory application, the registration of the delimitation plan, the cancellation of the recording of the easement or the extinguishment of the restrictive covenant is prohibited by the caveat, and (b) the caveat does not have the effect of prohibiting - (i) the recording in the Register of a dealing, or (ii) the granting of a possessory application, or (iii) the registration of a delimitation plan, or (iv) the cancellation of the recording of an easement, or (v) the extinguishment of a restrictive covenant, except to the extent that the recording of such a dealing, the granting of such an application, the registration of such a plan, the cancellation of the recording of such an easement or the extinguishment of such a restrictive covenant would affect the estate, interest or right claimed in the caveat.
6. Subsection 74H(5) provides that the lodgement of a caveat under s 74F to protect a particular legal or equitable estate or interest in land does not prohibit the Registrar-General from recording certain dealings in the Register "[e]xcept in so far as it otherwise specifies". Sub-paragraph (f) of that subsection is: "a writ or the cancellation of the recording of a writ in accordance with section 105D".
7. Section 105 of the Real Property Act relevantly provides: (1) A writ, whether or not it is recorded in the Register, does not create any interest in land under the provisions of this Act. … (2) Subject to subsections (3), (5) and (6), the Registrar-General may record a writ in the Register pursuant to an application in the approved form ...
8. Subsection (1) is significant in so far as it has the effect that the issue by a court of a writ to a judgment creditor does not create any interest in land owned by the judgment debtor under the provisions of the Real Property Act. That is so whether or not the writ is recorded in the Register.
9. Section 105(1) was considered by Leeming JA in Boyd v Thorn (2017) 96 NSWLR 390; [2017] NSWCA 210, where his Honour said: [80] The distinction between a judgment which itself creates a proprietary interest, and a money judgment capable of being executed against the judgment debtor's land, is a crisp one in New South Wales. It was analysed by Dr Sykes in "The effect of judgments on land in Australia" (1953) 27 Australian Law Journal 226 and 306 and by Kitto J (with whom Dixon CJ and Windeyer J agreed) in Hall v Richards (1961) 108 CLR 84 at 93-94; [1961] HCA 34. Both Dr Sykes and Kitto J referred to the fact that Tasmania and Western Australia had enacted local equivalents to s 13 of the Judgments Act 1838 1 & 2 Vict c 110 which provided that a judgment, once registered, operated as an equitable charge on land, but no such law was ever enacted in New South Wales. Dr Sykes noted at 229 that: "It is a matter of cardinal import here to remember that the English Act of 1838 by which the Legislature made the entry of judgment confer a specific security interest was not copied in New South Wales." [81] To the contrary, the New South Wales position was reflected in s 13(1) of the Judgment Creditors' Remedies Act 1901 (NSW), and is now reflected in s 112(3) of the Civil Procedure Act: "A judgment in any action at law does not of itself bind or affect any land." The position is all the stronger in the case of Torrens land: see Black v Garnock (2007) 230 CLR 438; [2007] HCA 31 at [18]-[23]. It has an important consequence when a defendant in civil proceedings is a joint owner of property (including, by way of very common example, the case where a spouse who is a joint owner of a family home borrows funds without security). The plaintiff who sues the spouse can obtain judgment and may be able to levy execution upon the spouse's aliquot share of the family home without having joined the borrower's spouse to the litigation, although the spouse will necessarily be involved when the judgment is executed.
10. Subsection 105(2) of the Real Property Act is the provision that grants authority to the Registrar-General to register a writ. Section 105D deals with the cancellation of the recording of a writ in the Register.
11. The terms of the Caveat that have been set out above relevantly prohibit the recording of all dealings and writs in the Register.
12. The collective effect of these provisions is that Ms Dang's claims to an interest in the Smithfield property was sufficient authority to entitle her to lodge the Caveat containing a prohibition on the Registrar-General from recording the second writ in the Register.
13. In the manner that I have explained above, in the discussion of the practice of the Sheriff in exercising her power to sell properties owned by judgment debtors in accordance with writs issued by courts, the effect of ss 74F and 74H of the Real Property Act have been to give Ms Dang a power to neutralise the ability of the Nguyens to satisfy the judgment entered by this Court against Mr Hoang by means of the execution of the second writ, or some later writ now that the second writ has expired.
14. As a practical matter, it will not avail the Nguyens if they are able to achieve no more than the recording of a new writ in the Register in respect of the Smithfield property. That will still leave the Caveat on the title. The only way that a writ holder can cause the process of the execution of a writ issued by the Court to operate efficiently, without the prejudice caused by the writ holder having to negotiate an outcome satisfactory to the caveator, is if the writ holder has a means of obtaining an order for the withdrawal of the caveat by proceedings that establish that the caveator does not have the interest in the property that is claimed, or that for some other reason the caveat should be ordered to be withdrawn or varied.
15. This outcome is recognised in Stilianou, Land Titling Law and Practice in NSW (2013, Lawbook Co) at [10.50]. Written before s 74I of the Real Property Act was amended to permit the holders of writs the registration of which was prohibited by a caveat to apply for a lapsing notice under that section, the learned author said: "… A Judgment Creditor who has an issued Writ from a court based on a judgment debt may be left without an enforcement remedy against the Judgment Debtor's land if there is a lodged Caveat… but a Caveat that has had the ambit of its prohibition increased by otherwise specifying that the recording of a Writ in the Register is an action prohibited by the Caveat will deny a Judgment Creditor the benefit of recording the Writ, a necessary precondition for a sale of the land by the Sheriff…". Now, the judgment creditor may be able to force the registration of the writ by the use of the lapsing notice process, but if the caveat otherwise remains on the title, the process of the execution of the writ may be stultified by the continuing prohibition of the registration of a transfer executed by the Sheriff in favour of a purchaser.

Standing of the Nguyens to apply for the withdrawal of the caveat

1. Ms Dang's argument that the Nguyens have no standing to seek an order from the Court for the withdrawal of the Caveat depends upon the terms of ss 74MA and 105 of the Real Property Act. Subsection (1) of the former section authorises "any person who is or claims to be entitled to an estate or interest in the land described in a caveat lodged" under s 74F to apply to this Court for an order that the caveat be withdrawn. Subsection (2) vests power in the Court to make an order for the withdrawal of the caveat or such further order as it thinks fit. Subsection (3) provides that, if the caveat is not withdrawn in accordance with an order for withdrawal, "the caveat lapses when an office copy of the order is lodged with the Registrar-General after that time expires". Section 105 has the effect that the issue of the writ to the Nguyens did not give them the estate or interest in the land required to give them standing to make an application under s 74MA.
2. Ms Dang correctly submitted that the Nguyens are not entitled to make an application under s 74MA, because the issue of the writ to them did not entitle them to an estate or interest in the Smithfield property.
3. However, for reasons that will become apparent below, it is important to understand that the test that the Court applies when deciding whether or not to make an order under s 74MA that a caveat be withdrawn is essentially interlocutory in nature, even though, if the order is made, it will have the final effect that the caveat is withdrawn. As Ball J said in Abraham v Abraham [2012] NSWSC 254: [8] The principles to be applied by the court in determining whether to order removal of a caveat under s 74MA are the same as those the court applies in determining whether a caveat should be extended under s 74K. In each case, the question is whether an interlocutory injunction would be granted to protect the interest claimed in the caveat. That, in turn, raises two questions. The first is whether there is a serious question to be tried concerning the interest claimed in the property that is sought to be protected. The second is whether the balance of convenience is in favour of maintaining the caveat: see Buchanan v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465 at [6] per Brereton J; Lew v Bluescope Distribution Pty Ltd [2010] NSWSC 794 at [5] per Pembroke J; Bayblu Holdings Pty Ltd v Capital Finance Australia Ltd [2011] NSWCA 39 at [19] per Campbell JA. Although the application is brought by the party seeking to remove the caveat, it is the caveator who bears the onus of proving that there is a serious question to be tried and that the balance of convenience favours a continuation of the caveat: Buchanan v Crown & Gleeson Business Finance Pty Ltd [2006] NSWSC 1465 at [6] per Brereton J.
4. The point of this extract for present purposes is to demonstrate that the Court applies principles equivalent to those that are applicable to the grant of an interlocutory injunction in deciding whether or not to order that a caveat be withdrawn under s 74MA of the Real Property Act. That is so even though the section might appear to the reader to be the sole source of the Court's power to order the withdrawal of a caveat after a final hearing to determine whether or not the caveator is entitled to the interest in the land claimed in the caveat.
5. Although, where an application is made for an order for the withdrawal of the caveat under s 74MA, the Court may make orders extending the caveat on an interlocutory basis, and then ultimately, after the final hearing, make an order for the withdrawal of the caveat, the section is primarily directed at empowering the Court to order the removal of a caveat in interlocutory proceedings. The question arises in these proceedings as to whether s 74MA is the only source of power for the Court to order the withdrawal of the caveat after the Court has determined at a final hearing that the caveator does not have an estate or interest in the land.
6. For completeness, s 74J(1) of the Real Property Act obliges the Registrar-General to prepare for service on a caveator a notice, commonly called a lapsing notice, to the effect that, unless the caveator has, within 21 days of service of the notice, obtained from this Court an order extending the operation of the caveat, and a copy of that order is lodged with the Registrar-General, the caveat will lapse in accordance with subsection (4). However, that application can only be made "by the registered proprietor of an estate or interest in the land described in the caveat".
7. Although the Registrar-General was not asked to prepare a lapsing notice under s 74J of the Real Property Act, the Nguyens would not have been entitled to apply for the issue of a lapsing notice under that section because the writ does not give them an estate or interest in the Smithfield property.
8. It is important to note that the effect of s 74J(4) is that, if the caveator does not take the steps required by subsection (1) within the 21 day period, upon appropriate evidence of that fact being given "the Registrar-General is to make a recording in the Register to the effect that the caveat has lapsed, and the caveat so lapses on the making of that recording".
9. The significant aspect of this provision is that, where s 74J of the Real Property Act causes a caveat to lapse, the caveat lapses completely and for all purposes.
10. The true structural relationship between the two sections is that s 74J empowers a party who is the registered proprietor of an estate or interest in land under the Real Property Act to place a procedural onus on a caveator to obtain an interlocutory extension of the caveat by the simple procedure of having a lapsing notice issued by the Registrar-General and served on the caveator. Section 74MA permits any person who claims an estate or interest in the land to take a more proactive course by seeking an order for the withdrawal of the caveat on an interlocutory basis.
11. Section 74I of the Real Property Act is a separate provision that authorises the Registrar-General to prepare for service on a caveator a lapsing notice. In this case, an application need not be made by a person who is or claims to be entitled to an estate or interest in the land. Rather, the application can be made, "by the registered proprietor, by a judgment creditor under any writ that cannot be recorded because of the caveat or by any person who is or claims to be entitled to an estate or interest in the land to which the dealing or plan relates".
12. Prior to the commencement of the Real Property Amendment (Electronic Conveyancing) Act 2014 (NSW) (RP Amendment Act), the Real Property Act contained no provision purporting to empower judgment creditors with the benefit of a writ to take any step to cause the lapsing of a caveat that frustrated the operation of the provisions of the Civil Procedure Act and the Real Property Act.
13. The RP Amendment Act amended s 3(1)(a) of the Real Property Act by inserting the following definition of "Dealing": Dealing - Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument - (a) that is registrable or capable of being made registrable under the provisions of this Act, or (b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made.
14. The same provision also inserted the following definition of "Instrument": Instrument - Any grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land.
15. Consequently, from the time of the amendment, any instrument in respect of which any recording in the Register is required or permitted to be made by the Real Property Act is a dealing. A writ comes within "or any other document in writing" within the definition of "Instrument".
16. As noted above, s 105(2) of the Real Property Act permits the Registrar-General to record a writ in the Register.
17. The RP Amendment Act, by Schedule 1 [13], also made an amendment to s 74I of the Real Property Act as follows: Insert ", by a judgment creditor under any writ that cannot be recorded because of the caveat" after "registered proprietor" in section 74I (1).
18. It may be noted that the Explanatory Note to the Real Property Amendment (Electronic Conveyancing) Bill 2013 (RP Amendment Bill) contains the following statement in relation to these amendments: Schedule 1 [13] provides that a judgment creditor under a writ relating to land may apply to have a caveat (which would otherwise prevent the recording of the writ) lapsed in so far as necessary to allow the recording of the creditor's writ on title. This makes it clear that judgment creditors, who do not have an interest in land, are afforded the same rights as others to have a caveat lapsed to allow the writ to be recorded and so allow the sheriff, where appropriate, to sell the land to satisfy debts recognised by the Court through the issue of a writ. (Emphasis added)
19. The final sentence in this paragraph of the Explanatory Note clearly suggests that the purpose of the amendment was not just to create a mechanism whereby judgment creditors could secure the registration of the writ notwithstanding a prohibition in an existing caveat. The purpose went further, in that the effect of registration of the writ would be that the judgment debt would then be satisfied by the execution of the writ by the Sheriff. For the legal and practical reasons that I will consider, this legislative aspiration may have miscarried.
20. I will assume for the purposes of Ms Dang's first argument that the Nguyens qualified for the right to make an application under s 74I of the Real Property Act. I will explain below why Ms Dang's second argument involves a challenge to the validity of this assumption.
21. The lapsing notice, in accordance with s 74I(1), informed Ms Dang that the Caveat would "lapse in accordance with subsection (5) and the dealing or plan will be registered".
22. For the purpose of this provision, a writ is taken to be a dealing because the definition of "dealing" in s 3(1)(a) of the Real Property Act includes any instrument in respect of which any recording in the Register is required or permitted to be made. As stated above, s 105(2) permits the Registrar-General to record writs in the Register.
23. Section 74I(5) of the Real Property Act provides: (5) If - (a) the evidence required by subsection (3) is lodged within the time permitted by this section, and (b) the caveator has not lodged with the Registrar-General the order or office copy of the order referred to in subsection (1) or (2) (as the case may require) in accordance with the relevant subsection, the Registrar-General is to make a recording in the Register to the effect that the caveat has, to the extent that it would prohibit the recording of the dealing or the registration of the delimitation plan, or the granting of the possessory application, lapsed, and the caveat so lapses on the making of that recording.
24. Consequently, if Ms Dang had not responded to the lapsing notice served upon her by applying to the Court for an extension of the Caveat, or if on the hearing of such an application the Court declined to make an order extending the Caveat, the effect would not be that the Caveat lapsed entirely. It would only lapse to the extent necessary to enable the Registrar-General to record a writ issued to the Nguyens in the Register. That would solve the Nguyens' problem of being unable to register their writ, but it would not lead to the complete withdrawal of the Caveat and would leave the Nguyens with the practical difficulties in enforcing their writ that have been considered above.
25. These are the reasons that support Ms Dang's claim that, whether or not she establishes that she has an interest in the Smithfield property, there is no mechanism in the Real Property Act that entitles the Nguyens to an order that Ms Dang withdraw the Caveat.
26. Where the application for a lapsing notice under s 74I is made by a person who claims an estate or interest in the land and seeks to have a dealing in respect of that estate or interest registered, the effect of the caveat lapsing only to the extent necessary to enable the dealing to be registered will be an effective mechanism, because once the dealing is registered the person will become entitled to an indefeasible interest with the priority accorded by the order of registration of dealings against the title to the land. It will not matter that the caveat continues in effect to prevent the registration of subsequent dealings. This mechanism may not be effective when the application is made by a judgment creditor under a writ that cannot be recorded because of the caveat. The partial lapsing of the caveat will permit the writ to be recorded. However, that by itself will not avail the judgment creditor because registration of the writ is just a step in the process of the Sheriff being able to execute the writ. The continuing effect of the caveat will prohibit the registration of any transfer executed by the Sheriff. It will be necessary for the purchaser to make a new application for a lapsing notice under s 74I or to commence proceedings for an order for the withdrawal of the caveat under s 74MA of the Real Property Act. As neither the Sheriff nor potential purchasers can know the outcome of these applications in advance, the process of the execution of the writ may be stymied in the manner discussed above.
27. In Black v Garnock, Callinan J at [78] said, after setting out the provisions of the Real Property Act to which reference has been made above: "It can be seen from those provisions that the Act contains a complete code for the lodgment, recording, maintenance, removal, renewal and lapsing of caveats". Schmidt J accepted this statement of principle in New South Wales Crime Commission v Lee (2010) 79 NSWLR 410; [2010] NSWSC 1012 at [13]-[16], although her Honour distinguished the statement of principle having regard to the particular legislation under consideration.
28. I respectfully accept the correctness of this statement in so far as it has the effect that the provisions of the Real Property Act concerning the lapsing and withdrawal of caveats is a complete code, but in my view that statement must be understood in the context that the provisions of the Act governing the lapsing and withdrawal of caveats are, when properly understood, inherently interlocutory. A caveat is a form of statutory injunction created by the action of the caveator, and the provisions in the Real Property Act dealing with the lapsing and withdrawal of caveats are concerned with the Court's power to extend, vary or terminate the interlocutory injunctive effect of the caveat. For reasons that I will explain below, the provisions of the Real Property Act, and in particular s 74MA, are not the sole source of the Court's power to order the withdrawal of the caveat in cases where the Court determines, at a final hearing between interested parties, that the caveator does not have the interest that is claimed by the caveat in the land.
29. However, I will first consider the question of whether a judgment creditor to whom a writ has been issued and whose writ is prohibited from registration by the terms of a caveat cannot use the lapsing notice procedure in s 74I of the Real Property Act to procure both the registration of the writ and also the withdrawal or complete lapsing of the caveat on an interlocutory basis.
30. Section 74K of the Real Property Act is the provision that governs the Court's powers where applications are made by caveators following the service of lapsing notices. The section provides: (1) Where a caveator is served with a notice prepared under section 74I (1) or (2), 74J (1) or 74JA (3), the caveator may prepare, in the manner prescribed by rules of Court, an application to the Supreme Court for an order extending the operation of the caveat. (2) Subject to subsection (3), on the hearing of an application made under subsection (1), the Supreme Court may, if satisfied that the caveator's claim has or may have substance, make an order extending the operation of the caveat concerned for such period as is specified in the order or until the further order of that Court, or may make such other orders as it thinks fit, but, if that Court is not so satisfied, it shall dismiss the application. … (5) When making an order under subsection (2), the Supreme Court may make such ancillary orders as it thinks fit. …
31. Subsection (1) has the effect that this Court has the powers granted by subsections (2) and (5) irrespective of whether the lapsing notice is prepared by the Registrar-General under s 74I or s 74J. The specific powers granted by the first of the subsections are powers either to make an order extending the operation of the caveat or to dismiss the application.
32. The Court is also authorised to make such other orders as it thinks fit, but that power is only exercisable if the Court is satisfied that the caveator's claim has or may have substance. The Court cannot make such order as it thinks fit under subsection (2) in this case, as it has decided that Ms Dang's claim does not have substance.
33. Perhaps strangely, s 74I may have been effective in the present case if the Court had found that Ms Dang was entitled to the equitable lien that the Caveat sought to protect. In that case, the Court would have found that the caveator's claim "has or may have substance", so the power in the Court to make such other orders as it thinks fit would have been enlivened. It is established by authority that this power extends to restricting the prohibitory effect of the caveat so that it is not wider than is necessary to protect the true interest of the caveator: see for example Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Ltd [1969] Qd R 150. The Court could have made an order that the Caveat be varied so that it only prohibited the registration of a dealing that affected Ms Dang's right to recover a specified amount by way of charge over the Smithfield property. That right could have been realised by the payment of the amount due to Ms Dang out of the sale price of the property after repayment of the outstanding NAB mortgage. There would have been certainty and the Sheriff could have made a judgment as to whether to sell the property in execution of the writ based upon the expected sale price. Further, potential purchasers would not be deterred provided that the purchase price exceeded the total amount charged on the property.
34. The problem arises where the Court finds that the caveator's claim does not have substance, because then the Court does not have the wide discretion granted to it by subsection (2).
35. The power in subsection (5) in the Court to make such ancillary orders as it thinks fit is available whether the Court is satisfied that the caveator's claim has substance or it determines to dismiss the caveator's application.
36. In the present case, the Court's conclusion on Ms Dang's application for an extension of the Caveat is that the claim should be dismissed. Consequently, an order should be made that terminates the continuing operation of the order made by Lindsay J on 6 February 2020 that the operation of the Caveat be extended until further order.
37. That being the case, does the Court have power under s 74K(5) of the Real Property Act to make an order that the Caveat be withdrawn?
38. The meaning of the term "ancillary" was considered by Giles JA, with whom Meagher and Beazley JJA agreed, in Woodcroft v Director of Public Prosecutions [2000] NSWCA 128; (2000) 174 ALR 60 at [72], where his Honour said: [72] An ancillary order must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it. The range of paragraphs in s 48(1), which I have not set out other than para (a), shows that a narrow view of what is incidental or supplemental should not be taken: for example, enforcing an undertaking as to damages given when a restraining order is made: para (d). There is no point in attempting an exhaustive description of the situations in which an ancillary order varying the property the subject of a restraining order may be made. In the situation presented to Simpson J, was the order an ancillary order?
39. Further, in Chubs Constructions Pty Ltd v Chamma (No 2) (2010) 78 NSWLR 679; [2010] NSWCA 225, the Court said: [22] The term "ancillary" is not defined in the Workplace Injury Management and Workers Compensation Act, the co-ordinate Workers Compensation Act 1987, or the Workers Compensation Regulation. The appellant referred to a number of synonyms of the term: viz, subservient or subordinate, accessory or auxiliary, incidental. These synonyms are consistent with the Macquarie Concise Dictionary (1996) definitions of accessory and auxiliary (when used as an adjective), and an accessory, subsidiary, or helping thing or person (when used as a noun).
40. It is not, in my view, helpful to attempt to interpret a statutory provision granting the Court an ancillary power in one context by analysing the reasoning in judgments that have carried out the exercise in entirely different statutory contexts.
41. The question is whether the making of an order for the withdrawal of a caveat that has been found by the Court on an interlocutory hearing not to have substance, with the result that the caveator's application under s 74K of the Real Property Act must be dismissed, is ancillary to the Court's power to make that order.
42. With some hesitation, because of the inherent elasticity of the word "ancillary", I have come to the conclusion that s 74K(5) does not empower the Court to make an interlocutory order for the withdrawal of a caveat, even where it decides to dismiss the application for the extension of the caveat because of a finding that the caveat does not have substance. First, an order for the withdrawal of the caveat is more consequential than an order dismissing an application that it be extended. The former is not truly ancillary to the latter. Secondly, the contrary view would lead to different outcomes depending upon whether the caveator responded to service of the lapsing notice by making an application for the extension of the caveat under s 74K or not. In the former case, the caveat will lapse sufficiently to permit registration of the writ but there will be no mechanism to compel the withdrawal of the caveat. An order for the withdrawal of the caveat could only be made where the caveator failed in an application for an order extending the caveat.
43. There are, however, in my view countervailing considerations. As I have recorded above, the Explanatory Note to the RP Amendment Bill clearly states that the objective of the amendments to the Real Property Act that made the lapsing notice process available to judgment creditors in respect of writs was to "allow the sheriff, where appropriate, to sell the land to satisfy debts recognised by the Court through the issue of a writ". Section 34(2)(e) of the Interpretation Act 1987 (NSW) includes the Explanatory Note to the RP Amendment Bill within the material that may be considered in the interpretation of a provision of an Act. Section 34(1) relevantly provides: (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material - … (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
44. In my view, it is in the present context legitimate to say that the effect of s 74K(5) of the Real Property Act is obscure in relation to whether an order, to the effect that a caveat that has been found to be without substance should be withdrawn, is ancillary to a power to dismiss an application for the extension of the caveat. More significantly, however, I consider that it is arguably unreasonable to give s 74K an interpretation that has the result that the lapsing notice process, that has been extended to judgment creditors whose writs cannot be registered because of prohibitions in caveats, can only lead to the registration of the writ in circumstances where the continued effect of the caveat is that the achievement of registration of the writ is, for practical purposes, useless. The saga that is the background of the present case that I have related above demonstrates the truth of this proposition. It may be that the contrary result is not manifestly absurd, but in my view it would be perverse.
45. While I have found it tempting to rely upon the statement of purpose in the Explanatory Note to give the word "ancillary" in s 74K(5) an expansive or liberal interpretation in order to achieve what I consider would be the effective operation of the statutory provisions, on balance I consider that would be an incorrect approach. Sections 74F to 74K of the Real Property Act have been in force in their present terms for a period that has long predated the legislative attempt to improve the fortunes of the holders of writs who cannot procure registration. Notwithstanding the clarity of the Explanatory Note and the licence given by s 34 of the Interpretation Act, it would go too far for the Court to use the stated purpose for the introduction into s 74I of a right given to the holder of a writ to institute the lapsing notice process as a lever to expand the ambit of what may be accepted as an ancillary order for the purposes of s 74K(5) of the Real Property Act.
46. If that conclusion is correct, it has the unfortunate consequence that the provisions of the Real Property Act that govern how judgment creditors may achieve execution of writs that are issued to them by the courts, in the face of caveats lodged against the title to land owned by judgment debtors, are not fit for purpose. The objective of the RP Amendment Act has not effectively been achieved. It will often not avail a judgment creditor to secure the registration of a writ if the caveat remains on the title to prohibit the registration of a transfer from the Sheriff to a purchaser. The circumstances may justify the Sheriff in deciding that her duties do not permit her to execute the writ. The judgment creditor may then have to negotiate to obtain the caveator's consent from a position of abject weakness. The Court has not been given the power to make appropriate interlocutory orders at the suit of the judgment creditor.
47. There is a question of whether the terms of s 74LA of the Real Property Act may ameliorate this outcome. It is not necessary to decide this question, as it involves a question as to how the Registrar-General should implement the Act. I would hesitate to determine the effect of the provision without giving the Registrar-General an opportunity to make submissions to the Court on the issue. As noted above, the Registrar-General was made a party to the 2019 proceedings, but has not taken part and has had no reason to think that this question would arise in the proceedings.
48. Section 74LA provides: (1) If the operation of a caveat is extended for a specified period by an order of the Supreme Court under this Part and no further order is made by the Court extending the operation of the caveat before the expiration of the period specified in the order, the caveat lapses on the expiration of that period. (2) If the operation of a caveat is extended until the further order of the Court by an order of the Supreme Court under this Part, the caveat lapses if the Registrar-General, on being satisfied that the proceedings in which the order was obtained have been finalised and that no further order is likely to be sought, makes a recording in the Register to the effect that the caveat has lapsed.
49. As explained above, in the present case, the Court had made an order extending the Caveat. When final orders are made, there will be no further order extending the Caveat, and whether or not an order for the withdrawal of the Caveat is made, an order will be made dismissing the application by Ms Dang for an order extending the Caveat. Consequently, the order extending the Caveat until further order would have to be discharged.
50. It may be arguable that these events would cause the Caveat to lapse or would cause the Registrar-General to make a recording in the Register to the effect that the Caveat has lapsed.
51. Section 74LA speaks simply in terms of the caveat lapsing. It does not say that, in cases where the lapsing notice has been issued under s 74J, the caveat lapses entirely, but where it has been issued under s 74I the caveat should lapse only to the extent necessary to permit the registration of the dealing. It may be arguable that s 74LA should be interpreted as if these different results are to be implied. However, it remains possible that the legal effect of the Court vacating the order for the extension of the Caveat until further order will have the effect that the Caveat will lapse entirely.

Final nature of hearing

1. To this point, the operation of the provisions of the Real Property Act concerning the effect of the issue of lapsing notices has been considered in the context of the determination of an interlocutory application for the extension of a caveat. The present proceedings have, however, involved more than the determination of an interlocutory application.
2. Ms Dang did seek interlocutory relief in prayer 2 of her summons, being an interim order under s 74K(2) of the Real Property Act extending the operation of the Caveat until further order.
3. There has been no hearing of that interlocutory application, as the Court, apparently by consent of the Nguyens, made orders extending the Caveat on 27 September 2019, 14 November 2019, and 3 December 2019, and on 6 February 2020, the Court extended the Caveat until further order.
4. In the meantime, all of the parties' claims for substantive relief have been heard by the Court and part of the purpose of these reasons for judgment is to determine those claims on a final basis. While some of the issues arise under the various notices of motion filed by the parties, including Ms Dang's claim for the summary dismissal of the Nguyens' amended notice of motion in the 2017 proceedings, the Court also has before it Ms Dang's claims for declarations in prayers 2 to 5 of her summons establishing her estate or interest in the Smithfield property, as well as her claim in prayer 11 for an order that the Nguyens withdraw their application under s 105(2) of the Real Property Act to have the second writ recorded on the Register.
5. For the reasons I have given above, I have found that Ms Dang is not the beneficial owner of the Smithfield property on the basis that it is held on her behalf by Mr Hoang as a constructive trustee. I have also found that Ms Dang is not entitled to an equitable lien or charge on the basis of an oral agreement made by her with Mr Hoang on 22 December 2014.
6. While I have held that it may be that Ms Dang is entitled to be subrogated to the NAB mortgage over the Smithfield property to recover payments that she has made on behalf of Mr Hoang against the mortgage, that equitable right will not be exercised by her until the mortgage has been entirely repaid. That is an event that may not occur until the Smithfield property has been sold. In those circumstances, it is probably correct to describe Ms Dang's interest in the Smithfield property, if it exists, as a "mere equity" that falls short at this stage of an equitable interest. A caveat cannot be lodged to protect such a mere equity: see for example Chetcuti v Scarf [2000] NSWSC 637; (2000) 10 BPR 18,193 and Global Minerals Australia Pty Ltd v Valerica Pty Ltd [2000] NSWSC 1143; (2000) 10 BPR 18,463.
7. Notwithstanding that the Nguyens lack standing to bring an interlocutory application under s 74MA of the Real Property Act for an order that the Caveat be withdrawn, they have established in final proceedings that Ms Dang does not presently have an estate or interest in the Smithfield property. As the second writ has expired, it will now be necessary for the Nguyens to be issued with a new writ. Ms Dang can no longer prevent them from obtaining registration of the new writ. However, the continuation of the Caveat with its residual effect will deprive the Nguyens of the benefit of their statutory entitlement to recover their judgment debt by means of the execution of the new writ by the Sheriff. If Ms Dang does not withdraw her baseless Caveat of her own accord, her conduct will deprive the Nguyens of the enjoyment of their lawful entitlement without legitimate cause.
8. In Iaconis v Lazar [2007] NSWSC 1103, Young CJ in Eq (as his Honour then was) said, at [22]: "A caveat should only remain on the title pending the application by the person claiming the equitable or other interest to commence a suit for specific performance or otherwise to vindicate that equitable interest". As White J (as his Honour then was) noted with apparent approval in Summit Acceptance Pty Ltd v Wild [2011] NSWSC 659 at [19], Young CJ in Eq "expressed general agreement with the submission of counsel in that case that the scheme of the Real Property Act is that caveats are temporary". As Hallen AsJ (as his Honour then was) said in Abou-Hamad v Darwish [2012] NSWSC 231: [48] In Break Fast Investments Pty Ltd v C & O Voukidis Pty Ltd [2011] NSWSC 871, Black J after referring to Iaconis v Lazar and Wu v Dardaneliotou at [3], said: [4] I do not regard those cases as necessarily requiring that the application for substantive relief be made in the same proceedings as those in which orders extending the caveat are sought. [49] However, his Honour continued at [4]: The policy underlying those decisions, namely that a caveat should only remain on the title pending an application for substantive relief, is satisfied where other proceedings exist which will determine the caveator's entitlement to that relief. [50] I respectfully agree with his Honour's statements.
9. I also respectfully agree with these judicial explanations of the essential nature of caveats under the Real Property Act. Undue focus on the explicit terms of Pt 7A Div 3 of the Real Property Act dealing primarily with caveats against dealings may create the false impression that no order can be made in respect of a caveat unless authorised by the provisions. However, that impression misjudges both the essentially interlocutory administrative and judicial processes created by the provisions and the essential nature of caveats, as being temporary statutory creations intended to exist only until the time that a final determination is made as to the existence of the estate or interest in the land claimed by the caveator. In my view, the proposition that the relevant provisions of the Real Property Act constitute a complete code is correct in relation to the operation of caveats in respect of their essential existence as temporary creations. It does not follow that caveators can maintain baseless caveats after a party in final proceedings against the caveator has established that the protected estate or interest does not exist, just because the successful party was not entitled to commence an interlocutory application for the withdrawal of the caveat under s 74MA of the Real Property Act.
10. On the contrary, successful parties in the position of the Nguyens are entitled to an injunction requiring Ms Dang to withdraw the Caveat. As explained above, the continuing recording of the Caveat in the Register will deprive the Nguyens of their entitlement to cause the new writ to be executed without lawful cause. This result gives the Nguyens an entitlement to the issue of an injunction to remove the impediment on the execution of the new writ, within the principle annunciated by Lord Brandon of Oakbrook, with the agreement of the other Law Lords, in South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24 at 40, being "when one party to an action can show that the other party has either invaded, or threatens to invade a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court". Although the Nguyens, as parties entitled to the issue of a new writ, do not have an interest in the Smithfield property that would conventionally be described as a proprietary interest, they do have a right to be issued and to register a writ on the title to the land, which will give them the special rights described by Kitto J in Hall v Richards in the extract from his Honour's judgment that is set out above. I consider that those rights are capable of being protected by injunction, and that the Court is not powerless to protect the Nguyens from the consequences of the maintenance of the invalid Caveat: see the discussion by the learned editors of Meagher, Gummow and Lehane's Equity Doctrines & Remedies (supra) at [21-330] and [21-335] of the question of whether it remains necessary for the interest sought to be protected by an injunction to be in the nature of a proprietary interest.
11. Consequently, the Nguyens are entitled to an injunction requiring Ms Dang to withdraw the Caveat and to not lodge another caveat that interferes with the entitlement of the Nguyens to register a new writ on the title to the Smithfield property or the ability of the Sheriff to execute the writ in accordance with her usual practice.

Validity of lapsing notice

1. The second argument put by Ms Dang is that the Registrar-General improperly issued the lapsing notice under s 74I of the Real Property Act because the second writ had in fact been registered, so it was not the case that registration of that writ was prohibited by the Caveat.
2. I reject this argument, because I am not satisfied that Ms Dang has established the factual basis to support it. It is doubtful, in any event, whether a finding that the lapsing notice had been wrongly issued by the Registrar-General would have the effect for which Ms Dang contends. Ms Dang did not take proceedings to challenge the validity of the lapsing notice before she commenced the 2019 proceedings. Although she sought an order in her summons that the lapsing notice was wrongly issued, she nonetheless made an application under s 74K of the Real Property Act as if it had been validly issued. She therefore commenced proceedings in this Court that could only be commenced if there was a valid lapsing notice. It is at least doubtful that the Court should in the circumstances contemplate the making of an order predicated on the conclusion that a precondition to the commencement of the proceedings had not been satisfied.
3. However, the parties did not address this question and, for the reasons that follow, it is not necessary that it be considered further by the Court.
4. In the present case, the issue by the Registrar-General of the lapsing notice is based upon the Nguyens' application for the recording on the Register of the second writ. In form, the second writ appears to be a new writ rather than a renewal of the first writ.
5. Baalman and Wells, Land Titles Office Practice (Lawbook Co, 1998, 5th ed., looseleaf) says at [570.300]: … In order for the Registrar-General to record a renewal of a writ, an Application to Record Writ (Form 09W) must be lodged together with the renewed writ (or a copy of the renewed writ certified by the Sheriff to be a true copy). If a Request (Form 11R) is lodged together with a copy of an order of court renewing the writ, this will not be sufficient. Only an Application to Record Writ (Form 09W) will result in the renewed writ being recorded.
6. I have referred above, when setting out the history of these proceedings, to the application made by the Nguyens' solicitor on 25 June 2019 for the registration of the second writ. That application was made by Request (Form 11R). There is no evidence that the Nguyens lodged an Application to Cancel Recording of Writ (Form 09WW) or an Application to Record Writ (Form 09W).
7. The statement of the Registrar-General's practice referred to above would suggest that the Registrar-General may have issued a Requisition to the Nguyens' solicitor, before the Registrar-General would record the second writ in the Register (putting aside the fact that the Caveat prohibited the recording of the second writ).
8. As I have already mentioned, there is no evidence of the response of the Registrar-General to the Nguyens' application.
9. There is also no evidence that the Registrar-General actually recorded the second writ in the Register in breach of s 105(5) of the Real Property Act. It is improbable that the Registrar-General would have taken that step.
10. For the reasons that I have given above when discussing the entries in the title search for the Smithfield property, I do not interpret them as meaning that the Registrar-General recorded the second writ in the Register before the lapsing notice was issued.
11. Consequently, Ms Dang is not entitled to the declaration that she seeks in prayer 5 of the summons and statement of claim.

The Nguyens' 9 December 2020 notice of motion

1. On 9 December 2020, the Nguyens filed a notice of motion without the leave of the Court. The respondents to the notice of motion are the Sheriff and a firm of solicitors by the name of Daniela Fazio Lawyers Pty Ltd (Daniela Fazio). The notice of motion stated that it was listed for determination at the same time and date as I delivered judgment in these proceedings, but no such listing was made by the Court.
2. The notice of motion appears to assume that the Court would find that Ms Dang had no interest in the Smithfield property, and by prayer 1 sought various orders to effect the removal of the Caveat. The notice of motion also sought orders for the renewal of the second writ and that it be deemed to have the same force and effect as the first writ. An order was sought against the Registrar-General that the first writ be cancelled and the renewed second writ be registered "in the same position and with the same priority as that of the [first writ]".
3. Orders were then sought against Daniela Fazio. These orders related to a caveat that Daniela Fazio had apparently lodged against the title to the Smithfield property to protect an unregistered charge over that property that Mr Hoang had granted to Daniela Fazio to secure an obligation that he owed for the payment of legal fees. The Nguyens sought an order that Daniela Fazio withdraw its caveat within seven days.
4. The Nguyens then sought orders against the Sheriff under UCPR r 39.5 and ss 114 and 135 of the Civil Procedure Act (NSW) 2005 that authorised and required the Sheriff to sell the Smithfield property in the execution of the renewed writ, and to pay the net proceeds of sale, after payment of all proper fees and disbursements and the discharge of the registered mortgage over the Smithfield property, first to the paternal Nguyen, secondly to Daniela Fazio, and thirdly to Mr Hoang.
5. In order to ensure that the notice of motion was dealt with properly, I arranged for it to be listed for directions before me on 4 March 2021. On that occasion, Daniela Fazio was represented by counsel. I made directions that required the Nguyens to advise Daniela Fazio of the basis of their claim against it in the notice of motion and stood the notice of motion over for further directions on 1 April 2021.
6. On that date, there was no appearance for Daniela Fazio, but counsel for the Nguyens informed the Court that consent short minutes of order had been agreed between the Nguyens and Daniela Fazio. Those orders, if made, would have involved the withdrawal of the notice of motion, the notation of a consent by Daniela Fazio to the recording of the renewed writ against the title to the Smithfield property, and also the notation of an agreement between the Nguyens and Daniela Fazio that, if the Nguyens succeeded in these proceedings and the Court ordered the Registrar-General to renew the writ and the Sheriff to sell the Smithfield property, a specified amount would first be paid out of the net proceeds of sale to Daniela Fazio, the legal costs of the Nguyens in enforcing the judgment in the 2017 proceedings would then be paid, and any residual amount would be applied in accordance with the final orders of the Court in these proceedings.
7. After some consideration of the consent short minutes of order, it became apparent that the solicitor for Ms Dang had not been given adequate notice of the agreement between the Nguyens and Daniela Fazio, and that Ms Dang was entitled to make submissions as to whether the orders should be made as they may affect her interests. I made a direction that permitted Ms Dang to advise my Associate as to whether she objected to the orders being made, in which event I would relist the notice of motion to deal with any dispute.
8. On 8 April 2021, my Associate was advised by the solicitor for Ms Dang that Ms Dang did have objections to some of the orders in the consent short minutes of order, and wished to submit that if some orders were made then they should be made on a particular basis.
9. In my view, the publication of these reasons for judgment will have the effect that it is no longer necessary for the Court to deal with the notice of motion in its present form or to resolve the issues raised on behalf of Ms Dang, without all issues being considered in the light of the conclusions reached in these reasons.
10. It will be appropriate, however, for the Court to make a number of observations concerning the notice of motion. First, the Court cannot make any order concerning the caveat lodged by Daniela Fazio in the absence of Mr Hoang. He has an obvious interest in any order made concerning the fate of that caveat. The Court should also not note any agreement between the Nguyens and Daniela Fazio concerning the priority of payments from the net proceeds of sale of the Smithfield property. Such an agreement will be of no effect if it does not bind Mr Hoang and the Sheriff, and give the Sheriff proper protection if she complies with it.
11. Furthermore, there is a serious question about the appropriateness of the Court making the types of orders sought in the notice of motion against the Registrar-General and the Sheriff. Ordinarily, the appropriate course would be for the parties to consider the effect of these reasons, and if it appeared to be convenient to do so, to discuss with the Registrar-General and the Sheriff the consequences of the orders that may be made and to explore whether they are prepared to consent to orders that may be appropriate. The Court is unlikely to usurp the right of the Registrar-General and the Sheriff to decide how they should perform their duties.
12. Neither the Nguyens nor Ms Dang have been completely successful in these proceedings. Complicated questions may remain to be resolved. The practical outcome of the proceedings is likely to depend in large part on the market value of the Smithfield property and the amount of the outstanding debt owed to the registered mortgagee. The Court can only urge the parties to approach the future conduct of these proceedings on a commercially sensible basis, with the object of minimising the risk of the multiplication of expensive and futile disputes.

Orders

1. It will be necessary for the parties to consider these reasons for judgment for the purpose of making submissions to the Court as to the orders that are appropriate to give effect to the reasons, remembering that it will now be necessary for the Court to make an order for the issue of a new writ or for the renewal of some earlier writ. The parties' legal representatives should discuss the orders to be made and submit agreed or contending short minutes of order to my Associate. That should be done within 21 days of the publication of these reasons for judgment.
2. It will also be necessary for the Court to hear the parties on the issue of the costs of the two proceedings. The parties should submit outline of submissions on this issue within the same 21 days.
3. I will then decide whether it is necessary for a further oral hearing to take place, and if so, a time will be fixed by arrangement between my Associate and the legal representatives of the parties.
4. I direct the Nguyens to cause these reasons for judgment to be served on the Sheriff and the Registrar-General within 7 days. Both are invited, but not required, to deliver to my Associate and to serve on the parties any submissions that they may wish to make concerning the orders that it will be appropriate for the Court to make to give effect to the judgment. Such submissions should be provided within the 21 day period referred to above.
5. I also direct the Nguyens to cause these reasons for judgment to be served on Daniela Fazio within 7 days. Although Daniela Fazio has probably not properly been joined as a party to these proceedings, it has a sufficient interest, given what I have said about the Nguyens' 9 December notice of motion, to be given a copy of the judgment for the purpose of proper steps being taken to deal with the caveat lodged by Daniela Fazio, as well as the enforcement of any rights claimed by that company. For that purpose, Daniela Fazio is invited to provide to my Associate brief submissions concerning the future course of these proceedings within the 21 day period to which I have referred.

Endnote

1. The pleadings were not included in the Court Book and could not be found in the file. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2021