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[2010] NSWSC 283
plaintiff. Order under s 74K Real Property Act 1900 (NSW) that Caveat No. AE352871 be extended until further order of the Court; orders to be entered forthwith; notation of undertaking by first defendant not...
Slattery J extended a caveat lodged by a law firm over property owned by a company associated with the firm's debtor. On the interlocutory application the court found there was an arguable case that emails and the terms of the caveat evidenced an intention to create an equitable charge secured for a solicitor-client judgment, that promises to forbear provided consideration, and that the s 54A writing requirement was met by a signed Schedule. Because the caveator's claim "has or may have substance" the caveat was extended until trial and an undertaking was recorded preventing dealings with the property without notice (see [35], [41]-[42], [48]-[62], [65]).
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Rodd Peters Lawyers (the firm) acted for Anthony Wieland in prior litigation. After the firm ceased acting, a costs assessment resulted in a solicitor-client certificate for $182,236.91, and judgment in that sum was entered against Wieland on 25 August 2008 ([3]-[4]). Negotiations about payment followed. By September-November 2008 correspondence considered security being provided by a company associated with Wieland, Lithgow Forge Pty Ltd, with proposals that the firm be given a priority interest or that Lithgow Forge would permit a caveat to be lodged over the property at Mort Street, Lithgow (the Lithgow property) ([5], [10]-[12]).
3 cited instruments linked from this judgment.
On 25 November 2008 the firm lodged a caveat over the Lithgow property. Schedule 1 to that caveat described an "express agreement" that the registered proprietor would not register dealings without the caveator's written consent, which consent could be withheld until payment of the judgment sum ([21]-[23]). The caveat was lodged without an immediate contemporaneous execution by Wieland, though a scanned signed copy was later supplied and an original signed copy was said to have been posted but never arrived (see [25]-[26], [59]-[61]).
Later, after the discovery of a share transfer of Lithgow Forge to Wieland's wife, the firm commenced proceedings under s 37A Conveyancing Act alleging transactions intended to defeat creditors, and sought to maintain the caveat as security pending trial. The firm applied under s 74K Real Property Act 1900 (NSW) for extension of the caveat until trial; Wieland and Lithgow Forge sought removal ([27]-[31]). Slattery J heard the interlocutory application and, applying the "has or may have substance" standard, extended the caveat until further order, recording an undertaking preventing dealings with the property without 14 days notice to the plaintiff ([31], [35], [62], [65]).
Threshold test and approach: The court applied the standard under s 74K(2) Real Property Act: extension depends on the court being satisfied that "the caveator's claim has or may have substance". Slattery J observed this is "not a very demanding test" and likened it to that for interlocutory injunctions; the burden on defendants is to show there is not a serious question to be tried (see [35]-[36]).
Consideration: One of the defendants' main submissions was there was no consideration for any binding agreement to charge the Lithgow property. The judge relied on established principles that a promise not to enforce a valid claim, or to abandon a remedy, can be good consideration (The Leonidas D; Haigh v Brooks), and that forbearance may be inferred from conduct and correspondence (Re Wyvern). The court treated the firm's email of 19 November 2008, which indicated proceedings were in preparation and that the firm would not "do anything to halt that action until I have a caveat to my satisfaction or payment to my satisfaction", as at least arguably a promise to forbear taking further action in exchange for the caveat. That supplied arguable consideration ([39]-[42]).
Equitable charge and appropriation: The court then analysed whether the documentation and correspondence evidenced an intention to create an equitable charge (or other proprietary interest). It adopted the Swiss Bank formulation: an equitable charge arises where property is made liable or specially appropriated to discharge a debt, or where the owner does an act evidencing a binding intention to create security ([45]). Schedule 1 linked the registered proprietor's ability to register dealings to the caveator's consent "until payment". Slattery J concluded there was at least an arguable appropriation of the Lithgow property to secure the judgment debt; the linkage of control to payment was evidence from which an equitable charge could be inferred and that was a matter for trial ([46]-[49]).
Mere agreement to lodge caveat: The defendants argued the arrangement was only an agreement to lodge a caveat, insufficient in substance to create a proprietary interest. The judge rejected that characterisation as unsatisfactory in the context: firstly, lodging a caveat does not normally require the registered proprietor's consent; secondly, the emails contained stipulations and threats inconsistent with mere "goodwill" or procedural convenience. That made it more plausible the parties intended to create an interest rather than only to agree to lodge a caveat ([54]-[58]).
Writing and s 54A: Finally, the court addressed s 54A Conveyancing Act requiring a memorandum in writing signed by the party to be charged. The judge observed that the memorandum may be created before proceedings (Re Holland; Lucas v Dixon), and accepted the presence of a signed Schedule 1 (scanned and later produced) as satisfying s 54A so as not to defeat the claim at interlocutory stage ([59]-[62]).
Conclusion: Taken together the correspondence, the terms of Schedule 1, and the signed document produced were sufficient to raise a serious question to be tried about the existence and enforceability of an equitable charge. Under the not-demanding s 74K threshold, the caveat was extended until further order ([35], [62], [65]).
Before: The legal landscape governing caveats, equitable charges and interlocutory relief was well established. Authorities recognised that caveats require a legal or equitable interest (Real Property Act s 74F(1)), that an equitable charge arises when property is appropriated to secure a debt (Swiss Bank), and that a promise to forbear can constitute consideration (The Leonidas D; Haigh v Brooks). Cases such as Troncone (Court of Appeal) and Coleman (Full Court application) had held that where a proprietor authorised a creditor to lodge a caveat, an implication of an equitable interest enabling that exercise could follow absent an intention to the contrary ([50]-[52]).
After: Slattery J’s decision applies these principles to the facts where correspondence and a caveat schedule linked property control to payment of a debt and where the creditor threatened to proceed unless the caveat in agreed form was lodged. The case reinforces that at interlocutory stage courts will extend caveats where there is an arguable case of appropriation/charge and that threats to proceed coupled with requirement for a particular caveat form can amount to consideration by forbearance. It also clarifies that a signed memorandum produced before proceedings can satisfy s 54A. This decision does not alter law but illustrates application in solicitors' fees and creditor-security contexts.
Paragraph 35: "The caveator's claim has or may have substance"; test is not very demanding. Plain English: The court only needs to be satisfied the caveator's claim is arguable, comparable to the standard for an interim injunction.
Paragraph 41: The 19 November email stating proceedings were prepared and the firm would not halt action until a caveat acceptable to it or payment was received. Plain English: The firm told Wieland they were about to sue and would not stop unless they received either the money owed or a caveat in a form the firm approved; the court treated that as an implied promise to hold off legal action if the security was provided.
Paragraph 48: Schedule 1 ties the registered proprietor's ability to deal with the land to the caveator's satisfaction about payment. Plain English: The caveat said the owner could not transfer the property without the firm's written consent until the firm's bill was paid, which looks like making the property security for the firm's debt.
Paragraph 60: s 54A's writing requirement can be satisfied by a document made before proceedings. Plain English: Even if the signed paper did not exist the instant the caveat was lodged, a later-signed document produced before the lawsuit is started can still meet the legal requirement for a written memorandum.
Paragraph 62: There is a serious question to be tried; caveat extended. Plain English: The court concluded the firm's claim deserved determination at trial and ordered the caveat to remain in place pending that hearing.
This decision is engaged where:
Practitioners should note the decision is interlocutory. It does not finally establish the existence of a charge, but indicates that similar documented linkages combined with threats to proceed can be sufficient to maintain caveats pending trial.
This is an ex tempore judgment from the Supreme Court of NSW in 2010. It applies and draws upon prior NSW and English authority (Swiss Bank, Troncone, Coleman, Re Wyvern, The Leonidas, Re Holland). The judgment itself distinguishes cases where courts found only a mere agreement to lodge a caveat (Express Loans, Surfers Paradise Coaches, Nguyen) on the particular factual texture here, namely, the presence of threats to proceed, explicit stipulations and a Schedule linking dealings in the land to payment ([55]-[58]). Any later courts considering this decision will treat it as a fact-specific application of the established principles: it is persuasive at interlocutory level as authority that correspondence and drafted caveat terms can together found an arguable equitable charge and satisfy s 54A where signed memoranda are produced before proceedings commence. Parties should review later cases for further development, particularly on the boundary between an agreement to lodge a caveat and an intention to create a proprietary interest.
Final characterisation of the arrangement at trial. Slattery J explicitly left open the substantive determination of whether an equitable charge was in fact created, stating the intention would be a matter for final decision at trial ([49]). The decision therefore does not settle whether similar fact patterns always result in an equitable charge.
The precise sufficiency of the firm’s email as a promise to forbear. The judge treated the email as "arguably" a promise to forbear, but whether that communication would amount to conclusive consideration on the facts is unresolved ([41]-[42]).
The scope of implied interests where a proprietor authorises another to lodge a caveat. Troncone and Coleman suggest implication of necessary proprietary interest absent contrary intention, but the limits of that implication in diverse commercial arrangements remain fact-sensitive and not exhaustively defined ([50]-[52]).
The evidentiary value and timing of signed memoranda for s 54A compliance. Slattery J accepted that a signed Schedule produced before proceedings can satisfy s 54A, but how courts will handle borderline or disputed signature evidence remains unsettled ([59]-[62]).
Interaction with insolvency or fraud-on-creditors allegations. The underlying proceedings included allegations under s 37A Conveyancing Act (fraudulent disposition). How findings in that substantive context interact with the existence or enforceability of an equitable charge will depend on trial findings and is not determined by this interim ruling ([27]-[29]).
Practitioners working with caveats and creditor security should treat Peters v Lithgow Forge as a useful interlocutory authority emphasising that clear documentary linkages between restriction on dealings and payment, coupled with contemporaneous communications indicating forbearance, can satisfy the threshold for extension of a caveat. However, they should also recognise the decision does not displace the need for careful drafting, contemporaneous signed documentation and prompt commencement of proceedings where reliance on s 54A and equitable interests is intended.
CITATION : Peters v Lithgow Forge Pty Ltd & Ors [2010] NSWSC 283
HEARING DATE(S) : 12 April 2010 JURISDICTION : Equity
ORDERS: 1. An order under s 74K of the Real Property Act 1900 (NSW) that Caveat No. AE352871 be extended until further order of the Court. DECISION : 2. That these orders be entered forthwith. The Court further notes: 3. The undertaking of the first defendant that it will not transfer, sell dispose or, encumber, create any interest in or charge over, or otherwise deal with the property situated at 227 Mort Street, Lithgow in the State of New South Wales also known as Lot 5 of DP930738, without first providing to the plaintiff at least 14 days notice in writing of such intention.
CATCHWORDS : REAL PROPERTY - torrens title - caveats against dealings - plaintiff's caveat over first defendant's property - debt owed by second defendant to plaintiff - whether plaintiff's caveat should be extended - question whether caveator's claim "has or may have substance" - arguably sufficient consideration provided by the plaintiff for the grant of caveat over first defendant's property through a promise to forbear taking further action against second defendant - equitable charge arguably created in first defendant's property to secure payment of money from second defendant to plaintiff - arguably an intention to create a caveatable interest rather than a mere agreement to lodge a caveat - arguably agreement for caveat complies with s 54A of Conveyancing Act 1919 - caveat has or may have substance - caveat extended
Legal Profession Act 2004 (NSW) LEGISLATION CITED : Conveyancing Act 1919 (NSW) ss 37A, 54A Real Property Act 1900 (NSW) s 74K
Coleman v Bone (1996) 9 BPR 16,233 Dowdle v Inverell SC (1998) 9 BPR 17,349 Express Loans and Finance Pty Limited v Hunter [2004] NSWSC 142 Queanbeyan Leagues Club v Poldune Pty Limited (1996) 7 BPR 15,078 Haigh v Brooks (1839) 113 E.R. 119 Lucas v Dixon (1889) 22 QBD 357 CASES CITED : Nguyen v Kaha [2008] NSWSC 794 Re Holland: Gregg V Holland (1902) 2 Ch 360 Re Wyvern Developments Ltd (1974) 1 WLR 1097 Surfers Paradise Coaches (Qld) Pty Limited v Tsu Chan Lin [2007] NSWSC 475 Swiss Bank Corporation v Lloyds Bank Limited & Ors [1982] AC 584 Troncone & Ors v Aliperti & Ors (1994) 6 BPR 13,291 The Leonidas D (1985) 1 WLR 925
Plaintiff: Rodd Andrew Peters T/As Rodd Peters Lawyers First Defendant: Lithgow Forge Pty Limited PARTIES : Second Defendant: Anthony John Wieland Third Defendant: Rachel Allen Fourth Defendant: Nicholine Wieland
Plaintiff: Mr M P Cleary COUNSEL : First and Second Defendants: Mr S B Loughnan (Ms L Young on 13 April 2010) Third and Fourth Defendants: Ms S Daly (Ms L Young on 13 April 2010)
Plaintiff: Rodd Peters Lawyers SOLICITORS : First and Second Defendants: Gibson Howlin Lawyers Third and Fourth Defendants: Watkins Tapsell
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
290828/09 RODD ANDREW PETERS T/AS RODD PETERS LAWYERS v LITHGOW FORGE PTY LIMITED (ACN 120 451 309); ANTHONY JOHN WIELAND; RACHEL ALLEN; AND NICHOLINE WIELAND JUDGMENT (Ex Tempore) 1 HIS HONOUR: Background 2 Rodd Andrew Peters trading as "Rodd Peters Lawyers" is a firm of solicitors that acted for Anthony Wieland in litigation in this Court in 2006 and 2007. Differences developed between the firm and the client about the amount and payment of the firm's memoranda of fees. In January 2008 the firm ceased acting for Mr Wieland.
3 In the first half of 2008 the firm applied for assessment under the Legal Profession Act 2004 (NSW) of legal costs as between the firm and Mr Wieland. That assessment was completed on 25 July 2008 when the costs assessor issued a certificate of determination of costs of $182,236.91 as between solicitor and client. The amount of the certificate and the timing of payment became the subject of correspondence between the firm and Mr Wieland.
4 At the time of this correspondence Mr Wieland was in the United States as he had been since July 2006. The correspondence about the certificate of determination of costs did not reach resolution. The firm entered judgment against Mr Wieland on 25 August 2008 in the sum of $182,236.91.
5 After the entry of judgment emails passed between Mr Wieland and the firm about the judgment sum and plans for its payment. By September 2008 the idea emerged that Mr Wieland might authorise Lithgow Forge Pty Ltd to give a caveat over title to certain property held by the company in Mort Street Lithgow in relation to the payment of the fees.
6 This Court has a policy of protecting parties against the risk of identity theft through its published judgments. For that reason the full address of the property at Mort Street Lithgow will not be identified in this judgment other than by the description "the Lithgow property".
7 Lithgow Forge was a company with which Mr Wieland was associated at least in July 2006. The precise timing and form of that association is one of the issues which may ultimately have to be determined in these proceedings.
8 The course of correspondence between the firm and Mr Wieland resulted in a caveat being placed on the title of the Lithgow property in November 2008. The issue before the Court is whether that caveat should be extended further pending trial of these proceedings. The Course of Correspondence Leading to the Caveat
9 The parties commenced negotiating their final agreement in relation to the lodging of the caveat commencing shortly after the entry of judgment on 25 July 2008. The principal steps in those negotiations were the following emails.
10 Mr Wieland appeared quickly to acknowledge responsibility for paying the judgment debt and indicated to Mr Peters in September 2008 how he was going to finance payment. By email dated 5 September 2008 Mr Peters said to Mr Wieland. "Dear Rodd, As I said in my previous eMail (sic), We do want to cooperate and get you paid. Nicky has agreed to let St. George Bank have a priority first mortgage, she has also agreed to withdraw her mortgage in the event that St. George Bank wants a clear title.
If for some reason the loan doesn't work out then we will give your firm a first mortgage on the Lithgow property."
11 In response to this Mr Peters responded on 6 September 2008, making clear that, encouraged though he was, he wanted what he described as a "caveatable interest" in the property. "Dear Anthony,
Can you let me know by Tuesday mid-morning (our time) whether you agree to giving us a caveatable interest - we would of course release the caveat on the earlier of payment and it will not interfere with your attempts to refinance the property to enable you to pay us. If you are not willing please let me know why not. You might let me know who your lawyer is so that I can liaise with him regarding the caveat."
12 The matter did not progress much further during the rest of September and October. Mr Peters returned to the subject in an email addressed to Mr Wieland's lawyer, Ms Sophia Haikalis, on 13 November 2008. " I refer to our various telephone discussions regarding this matter and note that while you were expecting to be in a position to make some payment proposal to use some weeks ago including the granting of a caveat in our favour, we have not heard anything further from you. We are becoming increasingly concerned about Mr Wieland's goodwill. We see he is attempting to sell the property and has granted a mortgage to his sister who is a solo mother an (sic) unlikely to have any means to lend your client such monies. If indeed Ms Wieland did advance real funds to your client he will no doubt be in apposition to pay the judgment?…
Absent you advising us that your client consents to this firm lodging a caveat over the real estate at Lithgow by close of business tomorrow Friday 14 November 2008, we will approach the court for the appropriate relief to secure the status quo in respect of the assets without further notice."
13 This email prompted a response from Ms Haikalis on 17 November 2008 which took issue with the drafting of the form of a proposed caveat which the firm had by that time already forwarded to Ms Haikalis.
14 The firm appeared disappointed with this approach. Mr Peters on behalf of the firm emailed Mr Whelan directly on 17 November 2008 and spoke plainly. "I was disappointed to receive correspondence from your lawyer attempting to score some technical points about the caveat. You need to put up a caveat to my satisfaction or I must proceed Anthony. Enough is enough."
15 Such plain speaking had its effect. Mr Wieland emailed back two days later. "Rodd, I will instruct my lawyers to proceed. Anthony"
16 The same day, 19 November 2008, Mr Peters forwarded his correspondence with Mr Wieland to Mr Wieland's solicitor, Ms Haikalis. "Dear Sofia,
Below is an email exchange with Anthony Wieland for your information.
We are currently preparing court processes against Anthony as you would appreciate in the circumstances. Barristers and lawyers in both jurisdictions are briefed and acting and I will not do anything to halt that action until I have a caveat to my satisfaction or payment to my satisfaction."
17 This statement was equally as firm as the letter Mr Peters had sent directly to Ms Haikalis. The time for diplomacy and expressions of goodwill appeared to have passed. This approach led to Ms Haikalis later the same day, 19 November 2009, to request a duly completed and amended caveat to be forwarded for execution. On 24 November 2008 Mr Peters forwarded the amended caveat together with its annexure. In this transmission Mr Peters explained the procedure that he had in mind. "I now attach a revised caveat together with annexure. In the first instance I require immediate email confirmation that your client agrees to the granting of the caveat. If your client agrees I shall then lodge the caveat without it being executed by your client, but would ask that he execute same as soon as reasonably possible and return same to our offices. Written email confirmation by your firm will be used as the basis of the express agreement referred to in the caveat.
Please confirm by close of business today that your client will proceed this way."
18 Ms Hakailis received the amended caveat and forwarded it to her client. The "immediate email confirmation" that Mr Peters had in mind did not come back. The matter unfolded differently. Ms Haikalis informed Mr Peters that she could not obtain immediate instructions. Signalling a softer stance Mr Peters responded. "Dear Sofia
That is my suggestion. Hopefully you can get a telephone or email response this afternoon from Anthony so that I can lodge the caveat first thing tomorrow and then Anthony's signed version of the document can follow up after that and we can otherwise deal with things on a more amiable basis.
19 Mr Wieland did receive the amended caveat over the Thanksgiving long weekend. His email back to Ms Haikalis acknowledged receipt and promised further action. "We received the email with Caveat etc. tonight. (Your Tuesday Lunchtime). We will return all to you via PDF and hard copy via FEDEX on our Monday 1st."
20 Ms Hakailis sent her client's email to Mr Peters on the afternoon of 25 November 2008, indicating, "As suggested therein, the earliest we expect to receive the signed document is Monday 1 December 2008." Mr Peters also expected a signed document and apparently believed that his terms had been met. His reply to her email suggests this. "OK Sofia
I take it that is an acceptance of the terms of the caveat. I will go ahead and register it in anticipation of receiving the signed document."
21 He lodged the caveat in what he thought was the agreed form but the signed version did not arrive for some time. 22 The form of caveat that he lodged over the Lithgow property described the estate or interest claimed in the property by reference to Annexure "A" to the caveat, in the following terms: "Schedule 1 - Estate or Interest Claimed
An express agreement that the registered proprietor shall not register any dealing in respect of the Land unless and until it has the written consent of the Caveator, which consent may be withheld until payment to the Caveator of the amount due under New South Wales Supreme Court Judgment dated 25 August 2008 (14330/2008), or such other sum which may be agreed between the parties.
23 Mr Peters signed the caveat and dated it 25 November 2008. Mr Wieland did not sign the form of caveat that Mr Peters lodged. Mr Peters' expectations that he would receive the signed version of the caveat in the short-term were not met. This led to further correspondence between the parties.
24 On 14 December 2008 Mr Peters sent an email to both Mr Wieland and Ms Haikalis. "Dear Anthony and Sofia
I have not received the signed caveat which I was expecting from you now 14 days ago. Further I have received no response to my request for a response last week on this matter.
I have no option other to now commence the appropriate action." (sic)
25 It is unclear what the "appropriate action" was that Mr Peters had in mind. Whatever it was, Ms Haikalis responded on 15 December 2008 supplying a scanned copy of the caveat. "Dear Rodd,
I refer to the string of emails appearing below and advise that we are now instructed that the original, signed form of Caveat has been posted and is en route to Australia. Hopefully the US snow falls and the holiday season don't delay its arrival any more than is expected.
In the meantime, attached is a scanned copy of the said signed form of Caveat.
26 The scanned copy of the caveat was in identical terms to the one lodged except for the form of Mr Wieland's signature. The original signed version never arrived. The Proceedings
27 The immediate origins of these proceedings was an event unrelated to the discussions about the placing of a caveat on the title to the Lithgow property. In early 2009 it emerged that very shortly after incorporation Mr Wieland transferred 100 percent of the share capital of Lithgow Forge to his wife Rachel Allen. Mr Wieland held all the share capital at the time of incorporation in July 2006. A form of transfer of these shares as at 2 July 2006 emerged after the entry of the Supreme Court judgment.
28 The firm suspected that the execution of this document might be part of a fraud upon Mr Wieland's creditors. It brought these proceedings on 2 October 2009 seeking to set the share transfer aside under s 37A Conveyancing Act 1919 (NSW).
29 The proceedings had not reached the stage of hearing when they were overtaken by other events concerning the Lithgow property.
30 The caveat was lodged in late November 2008. A lapsing notice was served on the caveator, the firm, on 8 December 2009. In December 2009 in the duty list before McDougall J the firm sought and obtained an extension of the caveat until further order. The proceedings have been set down for trial in early June in this division. The Issues 31 This application is made pending that trial. In substance the application seeks a determination whether or not the caveat should be further extended before trial. The firm seeks further extension of the caveat under s 74K Real Property Act 1900 (NSW); Mr Wieland and Lithgow Forge oppose that course and seek the removal of the caveat. The firm says in the alternative that if the caveat is not extended, that it is entitled to a Mareva injunction because of the conduct of Mr Wieland since about the time of entry of the judgment debt.
32 The arguments on behalf of the first and second defendants have been advanced by Mr Loughnan of counsel. The first defendant is Lithgow Forge and the second defendant, Mr Wieland. Ms Daly represented both the third defendant Rachel Allen, the wife of Mr Wieland, and the fourth defendant, Nicholine Wieland, his sister. 33 The role of the third and fourth defendants on this motion is limited. Rachel Allen is the transferee of the share capital of Lithgow Forge from Mr Wieland, one of the transactions challenged in the proceeding under s 37A Conveyancing Act. Nicholine Wieland is said to be a party to a mortgage of the assets of Lithgow Forge, another transaction challenged in the proceedings. The merits of the firm's case against the third and fourth defendant is not relevant to the issues on the motion.
34 Through counsel Mr Wieland advances four arguments to oppose the further extension of the caveat before hearing: first, that there was no consideration given for the granting of the caveat or for any agreement to charge the Lithgow property; second, that the caveat instrument does not constitute a valid agreement to charge the Lithgow property; third, that on their proper construction the form of the charge and the email correspondence preceding it, merely express an agreement to lodge a caveat rather than an agreement to create an interest by way of equitable charge; fourth, that even if the caveat is to be construed as arguably creating an equitable charge over the Lithgow property, the interest so created is not enforceable as it does not meet the requirements of s 54A of the Conveyancing Act. Mr Cleary leading Mr Reynolds on behalf of the firm sought to answer these arguments. I will deal with each of these arguments in turn.
35 The test which must be applied at this stage is similar to that that applies to an interlocutory injunction. The burden that the first and second defendants bear on this application is the burden of showing that in substance there is not a serious question to be tried on the issue of the existence of an equitable interest in the property. The power to extend operation of the caveat under s 74K(2) Real Property Act depends upon the Court's satisfaction that "the caveator's claim has or may have substance". This had been described as "not a very demanding test": Dowdle v Inverell SC (1999) ANZ ConvR 429; (1998) 9 BPR 17,349 per Bryson J at 17,350. The test may be satisfied if the caveator can show an arguable case for final relief even though establishing the claim may not be without difficulties: Queanbeyan Leagues Club v Poldune Pty Limited (1996) 7 BPR 15,078.
36 It is not the role of the Court to decide these questions finally now. It is undesirable for judges on interlocutory applications of this kind to give an opinion about a final view of the issues in the proceedings. I will limit myself accordingly to deciding whether or not there is a serious question to be tried.
37 The four arguments in question were advanced with both precision and ingenuity by Mr Loughnan. Lack of Consideration 38 Mr Loughnan argued that any agreement to create an equitable interest in the property, is not supported by any consideration and is accordingly not binding. 39 A promise not to enforce a valid claim, including a promise to abandon a particular remedy is good consideration for a promise given in return: The Leonidas D (1985) 1 WLR 925 at 933. Even the promise to abandon a doubtful claim may be good consideration: Haigh v Brooks (1839) 10 A & E 309; 113 ER 119. In the present case there do not appear to be any difficulties about the doubtfulness of the claim because of the judgment. In the last few months of 2008 there was actual forbearance from enforcement of the claim, from which an implied promise to forbear may often be inferred: Re Wyvern Developments Ltd (1974) 1 WLR 1097.
40 Mr Loughnan indicated in his submission that here there was no promise to forebear that might come within this principle. But I do not agree with this submission.
41 The analysis of the email correspondence of the 19 November 2008 and the correspondence consequent upon it shows the contrary. The firm says through Mr Peters on 19 November: "Below is an email exchange with Anthony Wieland for your information.
We are currently preparing court processes against Anthony as you would appreciate in the circumstances. Barristers and lawyers in both jurisdictions are briefed and acting and I will not do anything to halt that action until I have a caveat to my satisfaction or payment to my satisfaction." 42 This is arguably a promise to forbear taking further action provided a caveat in the form required is executed and forwarded for filing. Although the precise action is unspecified the email infers that specific remedies are in preparation. Accordingly, I reject the first of the arguments advanced on behalf of the first and second defendants. Was an Equitable Charge Created?
43 Mr Loughnan's second argument is that a caveatable interest is not disclosed on the documents in this case. Specifically he submits is that that the correspondence does not demonstrate that the parties intended to create an equitable charge upon completion of the correspondence and the filing of the form of caveat.
44 To analyse the merits of this argument it is necessary to go back to the legal definition of an equitable charge.
45 A concise modern statement of the elements of an equitable charge appears in Swiss Bank Corporation v Lloyds Bank Limited & Ors [1982] AC 584 at 594-595: "An equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal estate or title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee, or in other words evidences a contract to do so: see Fisher and Lightwood's Law of Mortgage , 9th ed. (1977), p. 13. An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale: see Fisher and Lightwood , p. 14." 46 An equitable charge may take the form either of an equitable mortgage or of an equitable charge other than by way of mortgage. The claimed equitable charge in this case does not purport to be an equitable mortgage. No words of mortgage are used. But the Lithgow property may be expressly or constructively made liable or specifically appropriated to the discharge of the judgment debt.
47 Typically equity looks to the substance of the underlying transaction. A key element in the definition in the Swiss Bank Corporation Case is the special appropriation of the property to the discharge of a debt or other obligation. It is possible to argue here that the form of words in Schedule 1 to the caveat are a specific appropriation of the Lithgow property to the discharge of the debt. This will be determined at final hearing.
48 The control over the Lithgow property expressly agreed in Schedule 1, that the, "Registered proprietor shall not register any dealing in respect of the land unless and until it has the written consent of the caveator," is connected with the caveator's satisfaction, as to payment of the judgment sum.
49 There is at least arguably here an appropriation through the linkage of control of the Lithgow property to the payment of the judgment sum. Although a little diffuse, the intention is relatively clear. Exactly what is intended will be a matter for final decision at trial.
50 Another way of reaching the same conclusion as to what may be arguable by the caveator has also been put. Mr Cleary has helpfully referred the Court to Troncone & Ors v Aliperti & Ors (1994) 6 BPR 13,291; (1994) NSW ConvR 55-703, a decision of the Court of Appeal, and the Full Court and in particular to the following passage in the judgment of Mahoney JA: "A caveat cannot be entered against land unless the caveator has the relevant proprietary interest in the land: see Real Property Act 1900, s 74F(1) ("a legal or equitable estate or interest in land"). Therefore, unless there be evident an intention to the contrary, the grant to the creditors of an authority to lodge a caveat on the relevant property carried with it by implication such an estate or interest in land as was necessary to enable that authority to be exercised. There was, in the present case, no intention to the contrary. Indeed, it might be thought to involve deception or worse if Mr Aliperti had intended to authorise the lodgment of a caveat but to withhold the creation of the interest in the land necessary for that to be done."
51 This principle was applied by McLelland CJ in Eq in Coleman v Bone (1996) 9 BPR 16,233. His Honour summarised the principle as being: that where A grants to B an authority to lodge a caveat in respect of a property of A, that grant carries with it by implication such estate or interest in the property as is necessary to enable that authority to be exercised. In the absence of sufficient indications to the contrary, the implication is that the estate or interest granted is an equitable charge to secure payment to B of that money.
52 One can analyse Schedule 1 of the caveat and the email correspondence by reference to this principle as arguably founding an inference that caveatable interest in the nature of a charge was implied. This is so even if one characterises the correspondence as a grant of authority to lodge a caveat in respect of property A.
53 Mr Loughnan sought to distinguish Troncone on the basis of a number of authorities which are more aptly considered in relation to the next argument. Mere Agreement to Lodge a Caveat?
54 We now turn to the third argument that the true characterisation of the rights of the parties arising from the email correspondence and from the form of caveat is that of a mere agreement to lodge a caveat.
55 In this connection Mr Loughnan referred the Court to cases such as the Express Loans and Finance Pty Limited v Hunter [2004] NSWSC 142 decision of Bryson J, the Surfers Paradise Coaches (Qld) Pty Limited v Tsu Chan Lin [2007] NSWSC 475 decision of White J and the Nguyen v Kaha [2008] NSWSC 794 decision of Austin J. But these cases are arguably distinguishable on the form of the correspondence in this case.
56 Mr Loughnan took me to emails of 5 September 2008 and 13 November 2008. He submits that the motivation for the agreement being made at that time is expressed by the parties to be mere "goodwill". 57 Expressions of "goodwill" do appear in the correspondence. However, in my view there is more than just that in the correspondence, especially in the correspondence close to the time of the final agreement. The email correspondence on 19 November and 25 November contains requests for action, stipulations and the intimation of consequences that will follow if agreement to lodge a caveat does not occur that are inconsistent with mere expressions of goodwill.
58 The correspondence is arguably inconsistent with a mere agreement to lodge caveat. A difficulty for an argument that this correspondence is merely to be characterised as an agreement to lodge a caveat is that it makes little sense to make such an agreement when the caveator did not need the consent of Lithgow Forge to lodge a caveat. Under s 74F(6) Real Property Act the registered proprietor may give consent to dispense with the requirement to serve notice of the caveat on the registered proprietor. But consent is not otherwise necessary for a caveator to file a caveat. The correspondence is arguably better explained by an intention to create a caveatable interest rather than the mere agreement to lodge a caveat. Section 54A of the Conveyancing Act
59 Finally, there is the question of writing. s 54A Conveyancing Act requires "some memorandum or note" of the agreement "in writing and signed by the party to be charged." Mr Loughnan submits that the actual form of the caveat which the firm lodged arising from the email correspondence was not signed on behalf of Lithgow Forge. He says that makes it non-compliant with s 54A. However it is clear from the email exchanges which occurred at the time that a final signed form of the caveat was forwarded to the firm and signed by Mr Wieland.
60 Compliance with s 54A may be achieved by documents which are created not at the time of the transaction in question but which were nevertheless created before the commencement of proceedings. The memorandum may be made at any time before the relevant proceedings are instituted (Re Holland: Gregg V Holland (1902) 2 Ch 360 at 386-387; and Lucas v Dixon (1889) 22 QBD 357 at 363). 61 There is in this case a signed document evidencing the agreement the firm relies upon. What Mr Wieland signed in this case was Schedule 1 of the caveat, which is the very source of the argument that an equitable charge is created in this case.
62 Accordingly, I also reject this last argument. There is in my view a serious question to be tried in relation to the existence of an enforceable equitable charge in the Lithgow property. I will exercise the Court's discretion to extend the caveat until further order.
63 Given the way the case was argued it becomes unnecessary to determine the issues of the Mareva injunction now that I have extended the caveat. If however the parties wish me to determine that question contrary to the understanding that I have just announced I will do so in a separate judgment. The parties should co-operate in reducing the effect of these reasons into short minutes of order. 64 [A short period was given for the parties to agree on short minutes. Directions for trial were made that are not published in this judgment].
65 The Court makes the following orders and notation relevant to the motion: 1. An order under s 74K of the Real Property Act 1900 (NSW) that Caveat No. AE352871 be extended until further order of the Court. 2. That these orders be entered forthwith. The Court further notes: 3. The undertaking of the first defendant that it will not transfer, sell dispose or, encumber, create any interest in or charge over, or otherwise deal with the property situated at 227 Mort Street, Lithgow in the State of New South Wales also known as Lot 5 of DP930738, without first providing to the plaintiff at least 14 days notice in writing of such intention.
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Peters
Lithgow Forge Pty Ltd & Ors
Order under s 74K Real Property Act 1900 (NSW) that Caveat No. AE352871 be extended until further order of the Court; orders to be entered forthwith; notation of undertaking by first defendant not to deal with the property without 14 days notice to the plaintiff (see [65]).