O'Connor & Ors v Griffis

Background

1. The following is a summary of the events giving rise to the lodgement of the Caveat and the present dispute between the parties which is taken from the affidavit evidence and submissions relied on by the parties.
2. The deceased was survived by the first plaintiff, Estelle O'Connor, Ronald Griffis and another son, Charles Griffis. The second plaintiff, June Griffis, is Charles' widow. The defendant, Marilyn Griffis, is the widow of Ronald Griffis. With no disrespect intended, in these reasons, I refer to the parties and to other members of the Griffis family by their first names.
3. The deceased's will provided that her solicitor, Philip Ford Davies, was to be the sole Executor and Trustee (cl 2). Clause 3 provided as follows: I GIVE the [Property] or such house in which I am residing at the date of my death UNTO my Trustee TO HOLD the same UPON TRUST for ESTELLE MAY O'CONNOR, CHARLES SIDNEY GRIFFIS and RONALD ALAN GRIFFIS in equal shares AND I GIVE the following directions to my Trustee concerning such house: My son RONALD ALAN GRIFFIS and my daughter-in-law MARILYN JOAN GRIFFIS shall have the right to reside in the house for their lives PROVIDED THAT: i) They pay all rates and taxes levied on the property; ii) They keep the house insured with a reputable insurance company and pay such premium as it becomes due and payable; iii) They keep the house in good repair and condition to the satisfaction of my Trustee.
4. The deceased's will also gifted any moneys in banks or other financial institutions to Estelle, Charles and Ronald in equal shares (cl 4) and the residue of her real and personal property to Ronald and Marilyn in equals shares (cl 5), and provided that Mr Davies was entitled to charge for business done by him or his firm in relation to the administration of her estate and the trusts "hereof" (cl 7).
5. On 23 September 1998, Mr Davies wrote to Charles, copied to Ronald and Estelle, advising that he had been appointed Executor, that the deceased had left money in the bank (approximately $31,200) and that the funeral account ($4,675) had been paid.
6. On about 1 June 1999, Ronald was granted Letters of Administration which record that the executor under the deceased's will (Mr Davies) had renounced probate and that administration was granted to Ronald who was a beneficiary under the deceased's will.
7. On 19 June 1999, Ronald executed a Transmission Application (dealing number 5936752C) in respect of the Property, to be registered as proprietor of the Property.
8. In evidence is a document that Marilyn located at the Property. It appears to have been prepared by Mr Davies in relation to the administration of the deceased's estate sometime in 1999. It is headed "Overall Statement" and refers to two matters, the first being the Property, which is noted as having "now been transferred to Ronald Alan Griffis as the Administrator of the Estate". The second matter is the moneys received and available for distribution. The statement identifies the amount of money held in two bank accounts, the amounts paid to Mr Davies' law firm and Marilyn for filing fees, and the net amount available for distribution, noting that such amount was the subject of cheques drawn in roughly equal amounts in favour of each of Ronald, Estelle and Charles (presumably as the beneficiaries under cl 4 of the deceased's will).
9. Marilyn deposes that, in about 1999, she recalled seeing the deceased's will after she died. While she cannot recall the details of the contents of the deceased's will, she believed it permitted her and Ronald to live in the Property for their lifetime with the Property to be passed to Vera's children or their estates when they died. She also deposes that she was unaware that Ronald became Administrator of the deceased's estate until late in 2021.
10. In about 2005, Ronald mortgaged the Property to First State Credit Union. There are no details of that loan in evidence, but it appears to have been paid out prior to 2011.
11. On or about 14 June 2011, Ronald executed Transfer AG365337W, which transferred the Property to himself and Marilyn as joint tenants.
12. On 6 July 2011, Ronald and Marilyn, as joint tenants of the Property, executed Mortgage AG365338U over the Property in favour of Homesafe Solutions Pty Ltd (Homesafe Solutions) and a Contract for Sale to Homesafe Solutions, which was referred to by the parties as a "reverse mortgage" arrangement with the Sale Contract contemplating that completion would not occur until after the death of the survivor of Ronald or Marilyn. Also on 6 July 2011, Homesafe Solutions lodged caveat AG365339S over the Property, which records the nature of Homesafe Solution's interest in the Property as "Equitable interest as purchaser under Contract for Sale of Land dated 06/07/2011".
13. Ronald died in March 2020. Following Ronald's death, solicitors acting on Marilyn's behalf, executed a Notice of Death (dealing AQ272841) under which Marilyn, as surviving joint tenant, applied to be registered as proprietor of the Property.
14. Charles also died in March 2020. His wife, June, is the sole beneficiary and executor of Charles' estate.
15. On 12 January 2021, Bill Akhurst (the plaintiffs' solicitor on the record in these proceedings), of Stacks Law Firm, wrote to Mr Davies' law firm on behalf of Joann Austin, the daughter of Charles, and asked for confirmation that the Property (title of which was noted to be in Marilyn's name) was held on behalf of the estates of Charles and Ronald and on behalf of Estelle, who was still alive. Mr Akhurst was subsequently advised that Mr Davies' law firm no longer existed and that no records relating to the matter could be found.
16. On 18 January 2021, Mr Akhurst sent an email to Megan Johnson, of Adams & Partners Lawyers, (the solicitors that lodged the Notice of Death referred to at [21]) seeking advice that the Property was held by Marilyn as trustee to the extent of a two-third interest in favour of Estelle and Charles' estate.
17. On 19 January 2021, Mr Akhurst lodged a caveat on June's behalf on the title of the Property (dealing number AQ730240).
18. On 19 October 2021, Mr Akhurst sent a letter to Marilyn which, in summary, made allegations of breach of trust and fraud by reason of the transfer by Ronald of the half interest in the Property to Marilyn, the mortgage of the Property to Homesafe Solutions, and the subsequent registration of title of the Property in Marilyn's name only. The letter also asserted that, as a beneficiary of the breach of trust and fraud, and presumably as Ronald's legal personal representative, Marilyn was liable to a recovery action by June, Estelle and Charles' estate.
19. Further correspondence was exchanged between Stacks Law Firm and Adams & Partners Lawyers, in which Adams & Partners Lawyers (acting for Marilyn) rejected the allegations of fraud, denied that June had a caveatable interest in the Property and demanded that it be removed by 15 December 2021. Mr Akhurst contended that both Estelle and Charles (through his executor and beneficiary, June) had caveatable interests in the Property.
20. On 13 December 2021, Estelle lodged the Caveat the subject of the current application. On the same day, June and Estelle lodged another caveat (AR713538) in respect of the Property.
21. On 13 December 2021, Adams & Partners Lawyers sent an email to Stacks Law Firm advising that they had received correspondence from Homesafe Solutions (as mortgagor) that the notation of a caveat on the title of the Property is in breach of the mortgage terms and conditions and it would seek action to sell the Property and recover all costs and interest from the sale in the event that the breach was not rectified by 30 December 2021. I pause to note that Homesafe Solutions had sent an email to Adam & Partners Lawyers on 30 November 2021 to that effect, which email had also asserted that Marilyn, as vendor, had warranted that no other party had a claim against the Property and was required to ensure that the certificate of title was not encumbered by any instrument other than Homesafe Solutions' mortgage and caveat. Adams & Partners Lawyers noted that any sale would affect the Property and shares of Stacks Law Firm's clients and offered to provide an undertaking that no dealings would be made in relation to the Property until the respective clients resolved all issues, in return for which all caveats lodged by Estelle and June were required to be removed from the Property.
22. Further correspondence was exchanged between Stacks Law Firm and Adams & Partners Lawyers but the offer not to deal and to withdraw the caveats was not accepted. During the exchange of correspondence, Adams & Partners Lawyers provided to Stacks Law Firm a Homesafe Solutions completion calculation that referred to the Property having a value of $1,000,000 and the amount to discharge Homesafe Solution's sale interest as $391,765.
23. On 10 January 2022, Adams & Partners Lawyers served a lapsing notice in respect of the Caveat, as well as the two other caveats lodged on behalf of June on 19 January 2021 and by Estelle and June together on 13 December 2021 (Other Caveats).
24. On 27 January 2022, Stacks Law Firm gave notice that they would make an application to extend one or all of the caveats lodged by June and Estelle on the basis that the caveats were necessary to protect their claimed beneficial interests in the Property. The letter also offered an interim agreement which required Marilyn to undertake not to deal with the Property until the final determination of Estelle and June's claims to a beneficial interest in the Property or until 27 January 2024 (whichever is later in time), to consent to the lodgement of a further caveat under s 74O(b) of the RP Act if any action was taken by Homesafe Solutions in respect of the Property or another event occurred that might reasonably result in some encumbrance or dealing with the Property, and not to apply to court to dissolve the undertaking. This offer was not accepted by Marilyn prior to or during the course of the hearing.
25. At the hearing, the plaintiffs accepted that the Other Caveats had lapsed and confirmed that the only interlocutory relief being sought was an order extending the operation of the Caveat lodged by Estelle.

Consideration and determination

1. The Court may, if it is satisfied that a caveator's claim has or may have substance, make an order extending the operation of the caveat for a specified period or until further order of the Court, or may make such other order as it thinks fit: RP Act s 74K(2).
2. On such an application, the applicable test is substantially the same as that for an interlocutory injunction. What must be shown is that there is a serious question to be tried as to whether a caveatable interest exists and that the balance of convenience favours the extension of the caveat: 1190 Pacific Highway Pty Ltd v Link Start Pty Ltd [2021] NSWSC 671 at [17]; Hanson Construction Materials Pty Ltd v Roberts (2016) 93 NSWLR 1; [2016] NSWCA 240 at [77] (Hanson Construction Materials); Smith v Smith [2016] NSWSC 1287 at [11].
3. The strength of the caveatable interest may be significant in assessing the balance of convenience: Hanson Construction Materials at [79].
4. As the party seeking an extension of the Caveat, Estelle bore the onus of demonstrating that her claim to a legal or equitable estate or interest in the Property has or may have substance: Hanson Construction Materials at [77].
5. At the hearing, the plaintiffs accepted that the Other Caveats had lapsed and confined their claim for interlocutory relief to an order extending the operation of the Caveat lodged by Estelle. I should record that the plaintiffs' summons commencing the proceedings did not include any other final relief. However, the plaintiffs' submissions and a draft amended summons provided to the court in advance of the hearing indicated that as final relief against Marilyn, Estelle (and June) will seek declaratory relief that the Property is held by the defendant on constructive trust for the first plaintiff and either the estate of Charles or the second plaintiff, equitable compensation, accounts of profits and restitution, and the hearing proceeded on that basis.
6. The plaintiffs' submissions that Estelle has an equitable interest in the Property can be summarised as follows: 1. by cl 3, the deceased's will created an express trust over the Property in favour of each of her children, with the trustee directed to hold the Property on trust for them subject to Ronald and Marilyn having a right to reside for their lives subject to certain conditions; 2. following transmission of the Property to Ronald in 1999, the administration of the deceased's will in respect of the Property had concluded, and Ronald's role shifted from administrator to trustee. At that point, Estelle, Charles and Robert became owners of equitable interests in the Property: Pagels v MacDonald (1936) 54 CLR 519 at 526 (Pagels v MacDonald). It was also submitted that, having utilised s 93 of the RP Act for the transmission, Ronald was obliged by s 96 of the RP Act to hold the Property on trust for Estelle and the other beneficiaries; 3. as trustee, Ronald was required to preserve the rights of each of Estelle and Charles as beneficiaries under the trust created by the deceased's will. In breach of this, Ronald mortgaged the property to First State Credit Union, transferred his estate in fee simple to himself and Marilyn (as registered joint tenants), and sold all or part of, and mortgaged, the Property to Homesafe Solutions. This, the plaintiffs allege, was a fraudulent breach of trust as it constituted a misappropriation of the entirety of the trust Property, and an exception to indefeasibility under s 42(1) of the RP Act; 4. Marilyn was on notice of Estelle's interest in the Property as a beneficiary under the deceased's will. Her interest in the Property, in so far as she derived it from or through Ronald (through the registration as joint tenant in 2011 and survivorship in 2020) is not protected by indefeasibility of title as she is not a transferee bona fide for valuable consideration: RP Act s 118(1)(d)(ii) ; Cassegrain v Gerard Cassegrain & Co Pty Limited (2015) 254 CLR 425; [2015] HCA 2 at [61]-[62]; and 5. Marilyn's interest in the Property is, therefore, subject to Estelle's beneficial equitable interest. Further, Estelle's claim that Marilyn holds the Property, to the extent of Estelle's interest, on constructive trust can constitute an estate or interest claimed under a caveat: Mayrin DM Pty Limited v Kaiyu Deng [2019] NSWSC 1552 at [42] (Mayrin DM Pty Limited).
7. Marilyn's contention that Estelle does not have a caveatable interest in the Property was premised on the deceased's estate not having been fully administered by Ronald as the Property had not been conveyed to Estelle and the estates of Ronald and Charles. It was submitted that Estelle's only right as a beneficiary under the deceased's will of an unadministered estate was to have the estate duly administered: Deane and Westham Holdings Pty Limited v Lloyd (1991) 3 WAR 235 at [257] per Malcolm CJ citing Commissioner of Stamp Duties (Queensland) v Livingstone (1964) 112 CLR 12; Official Receiver in Bankruptcy v Schutz (1990) 170 CLR 306; [1990] HCA 45 at 311-315; Stokes v Churchill & Ors (1994) NSW ConvR 55-694 at 59,969 (Santow J); Gangemi v Gangemi [2009] WASC 195 at [51].
8. Marilyn submitted that the interest claimed by Estelle, as founded on alleged breaches of trust by Ronald, is a mere equity and does not give rise to any quantifiable part or proprietary interest in the Property. Reference was made to an extract from Peter Butt, Land Law (6th ed, 2010, Law Book Co) at [7 32.1] (which is replicated in Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) as follows: "…equity enables a potential beneficiary in an as-yet-unadministered estate to compel the executor to carry out the terms of the will. But in neither case does equity's willingness to assist elevate their remedy into a quantifiable, presently-existing equitable interest in the land that is the subject of the trust." (citations omitted)
9. Marilyn further submitted that a possible right to have a transfer set aside was a mere equity which fell short of an equitable interest in land, referring to Re Pile's Caveats [1981] Qd R 81 at 83 (Re Pile's Caveats), which was applied in Global Minerals Australia Pty Ltd v Valerica Pty Ltd [2000] NSWSC 1143 at [9]-[11], [14]-[15] (Valerica). It was submitted that a caveat cannot be lodged to protect a mere equity: Valerica at [15].
10. It was also submitted that, in order for Estelle to have a caveatable interest in the Property, the deceased's estate must be duly administered, which would require a claim to have the transfers to Ronald, and then Ronald and Marilyn, set aside: Valerica at [14]. It was submitted that until the Property was returned to the deceased's estate and the estate was fully administered, Estelle (and June) had no interest in the Property and could not obtain relief against the Property itself.
11. In Pagels v MacDonald, Latham CJ at 526, observed that when an executor has performed all their executorial functions they may become a trustee in various ways, one of which is by merely continuing to hold property after their functions as executor have been performed. His Honour went on to state at 526: "When the executor becomes a trustee of ascertained property, the beneficiaries then become owners of the equitable interests in that property. Thus a beneficiary under a will does not, by reason of the will alone obtain any title, legal or equitable, to any asset forming part of the testator's estate. When he does obtain such a title, he obtains it as a result of the administration of the estate by the testator according to law and in accordance with the dispositions of the will."
12. In Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (Commissioner of Stamp Duties (Qld) v Livingston), Viscount Radcliffe, in delivering the opinion of the Privy Council, referred (at 17) to the status of the executor for the purposes of carrying out their duties of administration. His Honour held that, generally speaking, whatever property came to an executor was "in full ownership, without distinction between legal and equitable interests", and the property was held "for the purpose of carrying out the functions and duties of administration, not for his own benefit": at 17. While the executor is also treated as a trustee during administration, those trusts are to preserve, deal and apply the assets in the due course of the administration of the estate: at 17. During that time, a beneficiary has a right to compel the personal representative to administer the estate correctly, which gives rise to a chose in action for the beneficiary to compel administration, but equity does not recognise or create for residuary legatees a beneficial interest in the assets in the executor's hands during the course of administration: at 27.
13. In Porteous v Rinehart (1998) 19 WAR 495, White J observed (at 503) that, if a testator appoints a person as their executor and trustee, then that person acts as an executor when they perform executorial duties and thereafter, while they continue to hold the property, they are a trustee although they remain an executor in so far as they may be called upon in the future to act in that role.
14. As the learned authors of Jacob's Law of Trusts in Australia (8th ed, 2016, LexisNexis Australia) (Jacob's Law of Trusts in Australia) observed at [2-44], in practice, it is not easy to determine exactly when a person ceases to act as executor and commences to hold property as trustee. However, as they state at [2-44], the test is clear - it is whether the person's executorial duties in respect of the property has ended.
15. The principal duties of an executor are to get in the assets of the deceased, to pay debts and legacies given under the will and to distribute the assets. Further, if an executor carries out an instruction to set aside a fund (or property) and hold it on trust for certain beneficiaries, they become a trustee in respect of that property: Jacob's Law of Trusts in Australia at [2-40].
16. Based on the evidence and the terms of the deceased's will, in this case, I was satisfied that it was seriously arguable that following Mr Davies' renunciation as executor and transmission of the Property, Ronald became the trustee of the Property, rather than as executor and trustee of the Property in respect of the deceased's unadministered estate.
17. Prima facie, the evidence referred to at [13] - [16] indicated that Mr Davies, as executor and trustee, had performed all his executorial duties in respect of the deceased's estate. The assets had been gathered, the debts had been paid and the moneys in the bank distributed to the named beneficiaries. According deceased's will, the sole remaining asset (namely the Property the subject of the Caveat) was to be held by the trustee upon the trust expressed in cl 3 for Estelle, Charles and Ronald, subject to the right reside for life in favour of Ronald and Marilyn. The transmission of the Property to Ronald in 1999 (referred to at [15]) was presumably for that very purpose and because, by that time, Mr Davies had completed his executorial duties.
18. I was not persuaded by Marilyn's submission that cl 3 of the deceased's will must be construed as an implicit direction to the trustee to convey title to the Property to Estelle, Charles and Ronald in equal shares, with a notation regarding Ronald and Marilyn's right to reside there for life and that, until that occurred, the executorial functions were not completed and the estate remained unadministered. In my view, the wording of cl 3, which provided for the Property to be given "unto my Trustee to hold… upon trust", made it seriously arguable that the deceased's will created an express trust with the Property to be held for the three children by Mr Davies and then Ronald after the remainder of the estate was cleared in their capacity of trustee.
19. Nor was I persuaded that the identification of Ronald in the Transmission Application as administrator of the estate meant that Ronald did not hold the Property as trustee in the sense referred to in Pagels v Macdonald at 526. In my view, it was seriously arguable that the trust in respect of the Property had come into effect and that Ronald had accepted his appointment as trustee when the Property was vested in his name: In the Will of Orloff (Deceased) (2010) 24 VR 603 at [27]-[31].
20. The position in this case is also different to that in Dean and Westham Holdings Pty Ltd v Lloyd (1991) 3 WAR 235. In that case, the beneficiary had lodged a caveat over property claiming an interest in land pursuant to a codicil to a will. The Full Court of the Western Australian Supreme Court held that the beneficiary had no interest in the land sufficient to support a caveat in circumstances where the will remained subject to the due administration of the deceased's estate, which required the executor to deal with the testator's legal obligations arising under a deed that took effect as a covenant to transfer the land, breach of which would give rise to a liability in damages: at 256-257. In that context the Full Court observed that, as a beneficiary of specific property, the claimant was in no better position than a beneficiary with an interest in residue (at 257), citing Commissioner of Stamp Duties (Qld) v Livingston. In this case, there were no outstanding debts or liabilities of the estate identified, Estelle was not a residuary legatee, the Property was expressed to be held on trust in accordance with the terms of the deceased's will, and the executorial functions appeared to have been completed prior to the transmission of the Property to Ronald.
21. Accordingly, I was satisfied that it was seriously arguable that Estelle had become an owner of an equitable interest to one-third of the Property following transmission of the Property to Ronald and not merely a beneficiary with a right to seek due administration of the deceased's estate, and that her equitable interest was sufficient to support a caveat.
22. Turning to Marilyn's submission and reliance on Re Pile's Caveats and Valerica, I was also persuaded that it was seriously arguable that Estelle's claimed interest in this case was more than a mere equity for relief involving land.
23. Unlike the position in Re Pile's Caveats and Valerica, Estelle's claimed interest did not depend on having the transfers to Ronald, and then to Ronald and Marilyn, set aside and the Property re-conveyed to Estelle because of Ronald's alleged fraud. As was submitted, Estelle's primary claim is as the owner of an equitable interest as a beneficiary of an express trust created by the deceased's will, and an additional claim that Marilyn holds the Property, to the extent of Estelle's interest, on constructive trust for Estelle.
24. In Mayrin DM Pty Ltd at [42], Rein J observed that there is some uncertainty around the extent to which a claim for a constructive trust can found a caveat. After a review of relevant authorities, His Honour held that it can. In reaching that conclusion, His Honour followed cases where the court has accepted that the right to obtain relief as a beneficiary of a constructive trust of land can give that beneficiary a caveatable interest in that land, rather than a mere equity: see, for example, Mijo Developments Pty Limited v Royal Agnes Waters Pty Limited [2007] NSWSC 199 at [39]-[30] (Hammerschlag J) (Mijo Developments); Surfers Paradise Investments Pty Limited v United Investments Pty Limited [1997] QSC 179 at 10, a case in which Ambrose J considered Re Pile's Caveats.
25. In this case, I was satisfied that there is a serious question to be tried that Ronald's actions, by transferring the Property to himself and Marilyn as joint tenants and selling and mortgaging the Property to Homesafe Solutions, amounted to a fraudulent breach of trust, and that Marilyn's interest in the Property is not protected by indefeasibility of title as she was not a transferee for bona fide valuable consideration and was on notice of the trust created by cl 3 of the deceased's will. It followed, in my view, that there is a serious question to be tried that Estelle will be entitled to a declaration that Marilyn holds the Property on constructive trust for Estelle. As Rein J observed in Mayrin DM Pty Ltd at [43], the lodgement of a caveat does not require the claimant to prove that they must succeed on their claim for a constructive trust but rather that they claim to be entitled to an interest in land, and where there is a serious issue to be tried as to whether a person has breached fiduciary duties owed to another, this must include an issue as to the remedy to which they will be entitled.
26. In relation to the balance of convenience, the submissions focused on whether removal of the Caveat would ensure that no action would be taken by Homesafe Solutions to sell the Property and the impact of a further undertaking proffered by Marilyn during the course of the hearing not to deal with the Property until the final determination the proceedings and to notify the plaintiffs within 24 hours of becoming aware of any action by Homesafe Solutions or any other event that could result in the sale or alienation or transfer of the Property.
27. As to the first matter, the email from Homesafe Solutions in evidence (referred to at [29]) asserts that the caveat lodged by June was in breach of the Sale Contract, that Marilyn had warranted that no other party had a claim against the Property and that she was required to ensure the Certificate of Title was not encumbered by any instrument. However, the email does not state that action would be taken by Homesafe Solutions to sell the Property if the caveat was not removed, as asserted in the email from Marilyn's solicitors on 13 December 2021. Rather, the threat made by Homesafe Solutions was to refer the matter to their solicitors to take the appropriate action to remove the caveat and add the legal costs to the amount Homesafe Solutions would receive at settlement of its interest in the Property. In that regard, I note that Homesafe Solutions' email had earlier referred to the prospect of Marilyn deciding "to sell her home", rather than Homesafe Solutions taking action to do so.
28. As to the second point, I accepted that Marilyn's revised undertaking should go some way to protecting Estelle's position pending determination of the plaintiffs' substantive claims in these proceedings. That said, the undertaking could not bind Homesafe Solutions and there was some force to the plaintiffs' submissions that they should not have to come back to court and make a new application to lodge another caveat to protect their position (or seek some other relief) if notified that some action was to be taken by Homesafe Solutions in relation to the Property, whether relying on Marilyn's existing defaults or not. It would, of course, be a matter for Homesafe Solutions as to whether it takes action in relation to the Caveat but, in circumstances where the plaintiffs had given the usual undertaking as to damages, it was not apparent what real prejudice or inconvenience Marilyn would suffer if the Caveat remained on title compared to the possible inconvenience to the plaintiffs if it was allowed to lapse.
29. Having regard to the above, and as the plaintiffs had given the usual undertaking as to damages (cf Mijo Developments at [52]), I concluded that the balance of convenience on this application was in favour of the plaintiffs, although not heavily so.
30. Finally, and as to the form of the Caveat, I considered that the description was sufficient to put the Registrar-General or a person searching the Register on notice of the nature and basis of the interest claimed: Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd (2006) NSW ConvR 56-143; [2005] NSWSC 997 at [21], [27]. While the basis of Estelle's claim may have been made clearer (for example, by referring to an equitable interest to a one-third share of the Property and a constructive trust), the Caveat identifies the nature of the interest claimed as a beneficial interest in the Property and provides particulars of the date and nature of the written instrument on which the caveator's interest is based: RP Act s 74F(5); Real Property Regulation 2019 (NSW) Sch 2 cl 1, 3. In any event, it seemed to me that any failure to comply strictly with the requirements could be overlooked by s 74L of the RP Act given the primary basis for the claim is identified.
31. For these reasons, I was satisfied that the plaintiffs had established that the Caveat has or may have substance and that it was appropriate to exercise my statutory discretion under s 74K(2) of the RP Act to extend the operation of the Caveat until further order.
32. Accordingly, I made orders extending the Caveat and for the next steps in the proceedings in the terms agreed by the parties as follows: 1. On the undertaking proffered by the plaintiffs as to damages, order pursuant to section 74K of the Real Property Act 1900 (NSW) that the operation of caveat No AR713537 be extended until further order. 2. The plaintiffs to file and serve a statement of claim in the proceeding by 7 March 2022. 3. The defendant to file and serve her defence and any cross claim by 4 April 2022. 4. The proceeding be listed for directions before the Equity Registrar at 9.30 am on 11 April 2022. 5. Liberty to apply on 24 hours' notice. 6. These orders be entered forthwith. 7. Parties to bear their own costs. 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: 04 March 2022