Plaintiff v Defendants

INTRODUCTION

1 The plaintiff Suwanee Dharmalingham is and has been since 24 January 2001 the registered proprietor of the land described in certificates of title volume 9871 Folios 166, 167 and 169 ("the land"). The land is comprised of an apartment in South Yarra in the State of Victoria and certain accessory titles.

2 The first defendant is the Registrar of Titles ("the Registrar") under the Transfer of Land Act 1958 (Vic) ("the Act"). As Registrar of Titles, the Registrar has, pursuant to s. 5(1) of the Act, the charge and control of the Office of Titles and is to carry out the duties and functions vested by or under the Act in the Registrar of Titles.

3 The second defendant Chantella Honeybee Sargon ("the caveator") is the wife of the plaintiff's brother Ananda Dharmalingham ("the husband").

4 Until 24 January 2001, the husband was the registered proprietor of the land.

5 On 18 December 2000, the husband executed a transfer of land in Malaysia ("the transfer of land"). By the transfer of land, the husband transferred the land to his sister, the plaintiff. The consideration in the transfer of land is stated as "in consideration of natural love and affection".

6 On 20 June 2001, the caveator lodged memorandum of caveat X5304455S with the Registrar ("the caveat"). In the caveat, the caveator claimed an estate in fee simple in the land and stated the grounds of her claim in the following terms:

"Grounds of claim: Matrimonial Property of Caveator And Husband (Ananda Dharmalingham) Fraudulently Transferred to Husband's sister, Suwanee Dharmalingham. Judicial Separation proceedings currently pending at Kuala Lumpur High Court Malaysia (KLHC DP NO.S4-33-837-2000 Between Husband And Caveator)."

7 In the caveat, the caveator stated that the extent of the caveat was to forbid or prohibit absolutely the registration of any person as proprietor of and of any instrument affecting the estate or interest in the land claimed by the caveator.

8 Upon lodgement of the caveat with the Registrar, it was recorded on the Register kept by the Registrar under the Act as affecting the land. The Registrar was obliged to make such a record by s. 89(2) of the Act.

9 Thereafter, as she was required to do by s. 89(3) of the Act, the Registrar gave notice to the plaintiff of the caveat. This notice was dated 9 September 2002.

10 On 9 December 2003, the plaintiff made application to the Registrar pursuant to s. 89A(1) of the Act for the service of a notice by the Registrar on the caveator pursuant to s. 89A(3) of the Act ("the s. 89A application").

11 The Registrar accepted the s. 89A application and gave notice dated 12 December 2003 to the caveator pursuant to s. 89A(3) of the Act ("the Registrar's notice").

12 The issue in the proceeding is whether the caveat has, by reason of the operation of s. 89A of the Act, lapsed or is still in force. In order to determine this issue, it is necessary to construe the provisions of s. 89A as a whole, in the context of the Act as a whole and in the light of the facts.

13 Before turning to the provisions of the Act, and to the facts consequent upon the service of the Registrar's notice, I note that the proceeding as originally constituted named only the Registrar as a defendant. In circumstances where the final relief claimed includes a declaration that the caveat has lapsed, I took the view that the caveator was a necessary party and that the proceeding ought not continue in her absence.[1] In response to my raising this issue, I was informed that the caveator was aware of this proceeding, had been provided with copies of the initiating process and had been informed of the trial date. Further, I was informed that the caveator has commenced proceedings in the Family Court of Australia against the husband and that, in those proceedings, an interim injunction has been obtained by the caveator against the plaintiff in this proceeding, restraining her from dealing with the land until 26 October 2005. The matter is due to return for further hearing in the Family Court on that day. A copy of the Family Court orders which include this injunction was tendered in evidence by consent.

14 Notwithstanding the above matters, I remained disinclined to proceed with the trial of the proceeding in the absence of the caveator. The hearing was stood down to enable contact to be made with the solicitor representing the caveator in the Family Court proceedings. Later in the day, the solicitor for the caveator in the Family Court proceedings appeared before me. The caveator's solicitor informed me that the caveator consented to being joined as a defendant to this proceeding but did not wish to incur any costs in respect of it. Accordingly, once joined as a defendant, the caveator intended to take no part in the trial of the proceeding. Instead, the caveator would adopt the submissions made on behalf of the Registrar. The solicitor for the caveator expressly informed me that the caveator accepted that she would be bound by the result in the proceeding and that she was aware that another caveat could not be lodged in respect of the interest claimed by her if I found that the caveat has lapsed[2].

15 Accordingly, I made an order by consent that the caveator be added as a defendant to the proceeding. The caveator took no further part in the proceeding.

16 I note that there is an agreement between the parties that neither the plaintiff nor the Registrar will seek any order for costs against the caveator in this proceeding.

APPLICABLE LEGISLATION

17 As I have said, the resolution of the issue in this proceeding requires a consideration of the legislative scheme relating to caveats and, in particular, relating to the lapsing of caveats pursuant to the operation of s. 89A of the Act.

18 Section 89 of the Act provides:

"(1) Any person claiming any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise or his agent may lodge with the Registrar a caveat in an appropriate approved form forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or conditionally and may, at any time, by lodging with the Registrar an instrument in an appropriate approved form, withdraw the caveat as to the whole or any part of the land.

(2) A recording of every caveat lodged under this section must be made in any relevant part of the Register.

(3) The Registrar shall give to the registered proprietor of the estate or interest concerned notice of the caveat together with a copy of the caveat or of such particulars thereof as the Registrar deems material to such person.

..."

19 As can be seen, the effect of the lodging and recording of a caveat is to prevent dealings in the land in respect of which an interest is claimed. The caveat procedure is a convenient and effective procedure to protect unregistered interests in land from dealings in land which are contrary to the unregistered interest. On the other hand, the recording of a caveat in respect of registered land has the effect of preventing the registered proprietor of land from dealing with that land. Accordingly, the Act provides the registered proprietor of land over which a caveat has been lodged and recorded, and any other person affected by a caveat, with a number of methods to achieve the result that a caveat ceases to have effect.

20 The first of these methods is an administrative one. Section 89A of the Act provides that any person affected by a caveat may apply to the Registrar for the service of a notice on the caveator pursuant to s. 89A(3). The service of a notice under s. 89A(3) may have the result that the caveat in question lapses and the Register is amended accordingly.

21 Section 89A provides:

"(1) Subject to the provisions of this section, where a recording of a caveat (not being a caveat lodged by the Registrar) has been made pursuant to section 89(2), any person interested in the land affected thereby or in any part thereof may make application in an appropriate approved form to the Registrar for the service of a notice pursuant to sub-section (3).

(a) specify the land and the estate or interest therein in respect of which it is made; and

(b) be supported by a certificate signed by a person for the time being engaged in legal practice in Victoria, referring to the caveat and stating his opinion that, as regards the land and the estate or interest therein in respect of which the application is made, the caveator does not have the estate or interest claimed by him.

(3) Upon receiving any such application and certificate and upon being satisfied that the applicant has an interest in the land in respect of which the application is made, the Registrar shall give notice to the caveator that the caveat will lapse as to the land and the estate or interest therein in respect of which the application is made on a day specified in the notice unless in the meantime either--

(a) the application is abandoned by notice in writing given to the Registrar by or on behalf of the applicant; or

(b) notice in writing is given to the Registrar that proceedings in a court of competent jurisdiction to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the application is made are on foot.

(4) The Registrar shall not cause a day to be specified in the notice that is less than 35 days after the day on which the notice is served or, if the notice is sent by post, the day on which it is introduced into the course of post.

(5) Upon the specified day, unless--

(a) the application has been abandoned as aforesaid; or

(b) notice in writing has been given to the Registrar that proceedings as aforesaid are on foot--

the caveat shall lapse as to the land and the estate or interest therein to which the application then relates, and the Registrar shall make all necessary amendments in the Register.

(6) An application under this section may be abandoned either wholly or as to part of the land or the estate or interest therein in respect of which it is made either before or after notice is given pursuant to sub-section (3), but where notice has been given, only with the consent of the caveator or his agent.

(7) Where notice in writing of the kind referred to in paragraph (b) of sub-section (3) is given to the Registrar--

(a) if in the proceedings in question the claim of the caveator is not substantiated to the satisfaction of the Court--the Court may make such order in relation to the caveat as the Court thinks fit and the Registrar shall give effect thereto;

(b) if there is subsequently served upon the Registrar a copy of any notice, or an office copy of any order of the Court, disclosing that the proceedings in question have been discontinued, withdrawn or struck out or evidence to the satisfaction of the Registrar that those proceedings have been dismissed--the caveat shall lapse as to the land and the estate or interest therein to which the application then relates, and the Registrar shall make all necessary amendments to the Register."

22 Secondly, a caveat may lapse, or be removed, pursuant to the provisions of s. 90 of the Act.

23 Section 90 of the Act provides:

"(1) Subject to this Act every such caveat except a caveat lodged by the Registrar shall lapse as to any land affected by any transfer or other dealing other than--

(a) a transmission under Division two of Part IV; or

(b) a transfer or dealing as to which the caveator or his agent has lodged with the Registrar his consent in writing; or

(c) in the case of a caveat lodged by or on behalf of a beneficiary claiming under a will or settlement--a transfer or dealing giving effect to the appointment of a new trustee or to any other transaction which in the opinion of the Registrar is not inimical to the interests of the beneficiaries; or

(d) a transfer or dealing which is expressed to be subject to the rights of the caveator; or

(e) a transfer or dealing the registration or entry of which is provided for in the caveat--

upon the expiration of thirty days after notice given by the Registrar to the caveator that a transfer or dealing has been lodged for registration, but in the case of a transfer or other dealing which does not dispose of the whole of the estate or interest of the registered proprietor in the land affected thereby the caveat shall lapse only to the extent necessary to permit the registration of the transfer or dealing.

(2) If before the expiration of the said period of thirty days or such further period as is specified in any order made under this sub-section the caveator or his agent appears before the Court and gives such undertaking or security or lodges such sum as the Court considers sufficient to indemnify every person against any damage that may be sustained by reason of any disposition of the property being delayed, the Court may direct the Registrar to delay registering any dealing with the land for a further period specified in the order, or may make such other order (and in either case such order as to costs) as is just.

(3) Any person who is adversely affected by any such caveat may bring proceedings in the Court against the caveator for the removal of the caveat and the Court may make such order as the Court thinks fit.

..."

24 As can be seen, the lodgement of a dealing by another party in respect of the land which is the subject of a caveat will cause the caveat to lapse, to the extent necessary to permit the registration of the transfer or dealing, unless the caveator obtains an order from "the Court" under s. 90(2) of the Act. Further, without any dealing being lodged, any person adversely affected by a caveat may bring proceedings in "the Court" against the caveator under s. 90(3) for removal of the caveat.

25 "Court" is defined in s. 4 of the Act in the following terms:

"'Court' means the Supreme Court and, in relation to land the value of which does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court."

THE S. 89A APPLICATION

26 As I have said, the plaintiff made the s. 89A application in December 2003. As a result, the Registrar's notice was served on the caveator.

27 The Registrar's notice is in the following terms:

"NOTICE PURSUANT TO SECTION 89A(3) OF THE TRANSFER OF LAND ACT 1958

Re: CAVEAT NO. X530445S

APPLICATION No. AC538139D has been made to me pursuant to Section 89A of the Transfer of Land Act 1958 to remove the Caveat.

I HEREBY GIVE YOU NOTICE THAT the above mentioned Caveat will lapse on the 21/01/04 as to the land and the estate or interest therein in respect of which the Application is made unless before that date either:-

(a) The Application is abandoned by notice in writing given to me by or on behalf of the applicant with the consent of the caveator or his agent OR:

(b) You give me written notice which satisfies the requirements prescribed by Section 89A(3) of the Transfer of Land Act 1958.

YOUR NOTICE MUST STATE THE FOLLOWING

(1) That proceedings are on foot

(2) In a Court of competent jurisdiction

(3) To substantiate the claim of the caveator in relation to the land and the estate or interest in respect of which the above Application has been made; and

(4) The Court reference number of the proceedings.

NOTE: The Caveat will lapse on the FIRST MOMENT OF THE DAY of lapsing specified above. Notice must be given BEFORE that day to prevent the Caveat from lapsing.

PARTICULARS OF APPLICATION

LAND OR INSTRUMENT AFFECTED: 9781/166 9781/167 9781/169

ESTATE OR INTEREST AFFECTED: AN ESTATE IN FEE SIMPLE

APPLICANT(S) SUWANEE DHARMALINGAM

APPLICATION LODGED BY: KENNEDY WISEWOULDS

BARBARA FLEET

Registrar of Titles"

28 As can be seen, the Registrar's notice specified 21 January 2004 as the "specified day" for the purposes of ss. 89A(3), (4) and (5) of the Act. Before that "specified day" the caveator gave notice in writing to the Registrar ("the caveator's notice") in the following terms:

"Attn: Ms Barbara Fleet

Re: Notice Pursuant to Section 89A(3) of the Transfers of Land Act 1958 Caveat No. X 530445 S

I refer to your letter dated 12/12/2003.

I wish to notify you that my intention to maintain my caveat on the property particularised as follows:

LAND OR INSTRUMENT AFFECTED : 9781/166 9781/167 9781/169

ESTATE OR INTEREST AFFECTED : AN ESTATE IN FEE SIMPLE

APPLICANT(S) : SUWANEE DHARMALINGAM

APPLICATION LODGED BY : KENNEDY WISEWOULDS

The subject property is our matrimonial property and proceedings are currently on foot as follows:

Petition : Judicial Separation Petition No. S8(S4)-33-837-2000.

Petitioner : Amanda Dharmalingam

Respondent : Chantella Honeybee Sargon

Court : High Court of Malaya at Kuala Lumpur

The Claim : The subject property is our matrimonial property. On 9th August 2000, my husband (the Petitioner) filed in a Petition for Judicial Separation. I filed in my answer and sought, inter alia, for maintenance. Without my knowledge or consent the Petitioner attempted to transfer the property to his sister, Suwanee Dharmalingam, with the intention to dissipate our matrimonial property. I caused this caveat to be lodged for the preservation of our matrimonial property pending disposal of the Judicial Separation and or a Divorce Petition and division of matrimonial assets.

Yours faithfully,

CHANTELLA HONEYBEE SARGON"

29 The Registrar considered the caveator's notice and construed it as a notice which complied with the provisions of s. 89A(3)(b) of the Act. As a result, the Registrar wrote to the plaintiff on 2 February 2004, informing her that no further action would be taken by the Registrar in respect of the s. 89A application. Further, on 2 February 2004 the Registrar also notified the caveator that no further action would be taken in respect of the s. 89A application.

30 There followed some substantial correspondence between the solicitors representing the plaintiff and the Registrar. By letter dated 20 February 2004 from the solicitors for the plaintiff to the Registrar, the plaintiff alleged that the caveator's notice did not meet the requirements of s. 89A(3)(b) of the Act. It was contended on behalf of the plaintiff that:

(1) the High Court of Malaya at Kuala Lumpur was not a court of competent jurisdiction within the meaning of s. 89A(3)(b) of the Act;

(2) the proceedings in the High Court of Malaya were not to substantiate the claim of the caveator in relation to the land, but were for spousal maintenance; and

(3) in any event, the plaintiff was not joined as a party to the proceedings in the High Court of Malaya.

31 Accordingly, the solicitors for the plaintiff contended to the Registrar that the caveat had lapsed and that the Registrar was under a statutory duty to make the appropriate amendment to the Register pursuant to s. 89A(5). The Registrar was requested to exercise her statutory duty and amend the Register within seven days.

32 By letter dated 24 February 2004 from the Registrar to the solicitors for the plaintiff, the Registrar took issue with the assertion that the caveat had lapsed and that she was under a duty to amend the Register. The letter stated:

"Dear Sir

Marriage of Dharmalingam

Application AC538139D for removal of caveat X530445S

My ref AL04/02719

Your ref ICK:20020244

Thank you for your letter of 20 February 2004.

1. Section 89A of the Transfer of Land Act 1958 ('the Act') provides a cheap administrative procedure for removing caveats. The consequences of a successful section 89A application are potentially dire for a caveator, and my act of lapsing a caveat without proper justification could easily expose the State of Victoria to liability for financial indemnity under sections 110(1)(b), 110(1)(f) and/or 110(1)(g) of the Act.

2. On numerous prior occasions, I have accepted non-Victorian courts as courts of competent jurisdiction for the purposes of section 89A. A court exercising personal jurisdiction over a registered proprietor can order that proprietor to execute and hand to a caveator instrument(s) in registrable form and the Certificate of Title. What more is needed to substantiate the claim of a caveator?

3. Section 89A(3)(b) of the Act requires that notice in writing be given to the Registrar of Titles, not that there be a single notice in any particular form.

4. In the present case my legal officer named above had before him and considered the contents of transfer X279330F, registered caveat X530445S and the notice dated 7 January 2004 received from caveator Chantella Honeybee Sargon. Enclosed for your assistance is a copy of transfer X279330F. Copies of the other two documents would have been supplied with your instrument search of AC538139D.

5. Having regard to the information in my possession, my legal officer concluded:

(a) the caveator claimed an entitlement to the fee simple in the land in Volume 9781 Folios 166, 167 and 169 ('the land in dispute') via an interest in the nature of a constructive or resulting trust;

(b) the caveator asserted that the land in dispute was her matrimonial asset;

(c) the caveator asserted that she was seeking a division of matrimonial assets in the proceedings in Malaysia;

(d) the claim in the nature of a constructive or resulting trust was not implausible and therefore did not call for any further investigation;

(e) having regard to the fact that the husband signed transfer X279330F before a solicitor in Kuala Lumpur, and that caveat X530445S was signed by a solicitor in Kuala Lumpur, there was no reason to doubt that the High Court of Malaya had jurisdiction over the marriage of the parties;

(f) if the alleged facts underlying the claim in the nature of a constructive or resulting trust were proven, there was no reason to doubt that the High Court of Malaya would exercise personal jurisdiction to deal effectively with the ownership of the land in dispute;

(g) accordingly, the requirements of section 89A(3)(b) were satisfied and caveat X530445S should not lapse.

Yours faithfully

BARBARA FLETT

Registrar of Titles."

33 About a year passed and then, by letter dated 25 January 2005 from the solicitors for the plaintiff to the Registrar, the solicitors for the plaintiff took issue with the reasons given in the Registrar's letter of 24 February 2004. Further, they repeated the request of the plaintiff that the Registrar amend the Register to show the caveat as having lapsed. The Registrar was informed that, if she did not exercise her alleged statutory duty by close of business on 1 February 2005, proceedings would be issued in this Court compelling her to make the necessary amendments to the Register.

34 The Registrar replied by letter dated 31 January 2005. In her letter, the Registrar gave further reasons as to why she had decided to accept the caveator's notice. Further, the Registrar added the following comments of general application to the interpretation of s. 89A, as follows:

(1) The Registrar stated that, in her view, s. 89A does not require her to "go behind an answering notice to assess the intrinsic merit of the proceedings".

(2) As to the requirement in s. 89(3)(b) that proceedings be issued in a "court of competent jurisdiction", the Registrar noted that she had a general practice of assuming the validity of the jurisdiction of courts other than the Supreme Court of Victoria. With respect to matrimonial property proceedings, the Registrar noted that the Family Court effectively exercised jurisdiction over the title to property on the Register by ordering parties to sign documents for lodgement with her. If parties do not cooperate and sign documents as ordered, the Registrar noted that it is common for her officers to accept for registration instruments signed by Deputy Registrars of the Family Court on their behalf pursuant to court orders.

(3) With respect to foreign courts, the Registrar noted that the general principle that they do not have jurisdiction over land in Victoria is subject to exceptions. The Registrar referred to Dagi v The Broken Hill Proprietary Company Ltd (No.2)[3].

(4) The Registrar drew attention to the "most common" criticism of s. 89A that it does not require service nor prosecution of the proceedings which are the subject of a caveator's notice.

(5) The Registrar stated that, in her view, she was not obliged to take "an ultra-literal approach" to her interpretation of a caveator's notice, especially in circumstances where the notice appears on its face to be an "informal notice prepared by a lay person".

(6) The Registrar noted that there had been no comprehensive judicial review in Victoria of a number of the elements of s. 89A, including the meaning of "court of competent jurisdiction", the consequences of non-service or non-prosecution of the proceedings of which notice is given in a caveator's notice and the content of the Registrar's function in reviewing a caveator's notice - in particular as to whether the Registrar has any duty or power to "go behind an answering notice".

35 The Registrar stated in her letter of 31 January 2005 that she would be happy to cooperate with a full judicial review of s. 89A and informed the plaintiff's solicitors that the procedure for such a review is contained in s. 116 of the Act. However, in respect of any such judicial review, the Registrar noted that, even if successful, the plaintiff might not recover all her costs.[4] Further, the Registrar noted that if the plaintiff brought proceedings under s. 90(3) of the Act to remove the caveat, the burden of justifying the caveat would fall on the caveator.[5] In these circumstances, the Registrar suggested to the solicitors for the plaintiff that "you may find it preferable in your client's interests to proceed directly to challenge the caveator via section 90 of the Act".

36 The plaintiff did not adopt the Registrar's suggestion to bring proceedings under s. 90(3) against the caveator to remove the caveat. Instead, the plaintiff commenced proceedings pursuant to s. 116 of the Act against the Registrar seeking to challenge the Registrar's failure to amend the Register to record the caveat as having lapsed. In this proceeding, the plaintiff claims a declaration that the caveat has lapsed and an order that the Registrar amend the Register accordingly. I have already commented on the failure of the plaintiff to join the caveator as a party to this proceeding when it was issued. Having regard to the relief which was sought, this was clearly an inappropriate course to take.

SCOPE OF REVIEW UNDER S. 116 OF THE ACT.

37 The plaintiff and the Registrar joined in the submission that s. 116 of the Act was the appropriate means of challenging the Registrar's decision to accept the caveator's notice as complying with the requirements of s. 89(3)(b). I accept that this is so. In my view, by the correspondence from the plaintiff's solicitors to which I have referred, the plaintiff applied to the Registrar to have her perform her duty under s. 89A(5) to make all necessary amendments to the Register consequent upon the plaintiff's allegation that the caveat had lapsed. The Registrar refused to do so. Accordingly, the jurisdiction of the Court under s. 116 of the Act was properly invoked.

38 The affidavit evidence which was filed, and the submissions which were made, indicate that the parties both proceeded on the basis that the role of the Court was in the nature of a re-hearing de novo, in which the Court is to decide the application of s. 89A to the facts of the case, as if the Court were acting as the Registrar. A review of s. 116 demonstrates that the parties proceeded on the correct assumption as to the role of the Court. In particular, the provisions of s. 116(3) support such an approach. Section 116(3) provides:

"(3) Upon the hearing the Registrar or his counsel shall have the right of reply; and the Court may, if any question of fact is involved, direct an issue to be tried to decide such fact; and thereafter the Court shall make such order in the matter as the circumstances of the case require, and the Registrar shall obey such order."

39 In my view, the terms of s. 116(3) of the Act indicate that Parliament intended that the Court, when acting under s. 116, should conduct a re-hearing and, if the Court disagrees with the decision of the Registrar, substitute its own decision for that of the Registrar.[6]

INTERPRETATION OF S. 89A

40 Section 89A appears in Part IV, Division 1 of the Act. That division contains the provisions of the Act concerning caveats. Section 89A must be read in the context of the Act as a whole and, in particular, Division 1 of Part IV as a whole.

41 The Registrar is not given any discretion under s. 89A. Upon the occurrence of specified events, the Registrar is obliged to act as required by the section. Section 89A(3) states that "the Registrar shall give notice to the caveator" in the form set out. Section 89A(5) requires that, if a caveat lapses by reason of non-compliance with a notice by the Registrar under s. 89A(3), "the Registrar shall make all necessary amendments in the Register". Section 89A(7)(a) provides that "the Registrar shall give effect" to any order of the Court. Section 89A(7)(b) provides another means by which a caveat may lapse and states that "the Registrar shall make all necessary amendments to the Register".

42 However, there is an element of judgment involved in the performance by the Registrar of her obligations under s. 89A(5)(b). It was submitted on behalf of the plaintiff, and accepted by the Registrar that, if a caveator serves a notice on the Registrar before the specified day which purports to be a notice satisfying the requirements of s. 89A(3)(b), the Registrar must consider whether the notice by the caveator in fact complies with s. 89A(3)(b). If the Registrar considers that the notice by the caveator does not comply with s. 89A(3)(b), the Registrar is obliged to treat the caveat as having lapsed and to make the necessary amendments in the Register to record the lapsing of the caveat. On the other hand, if the Registrar is satisfied that the notice by the caveator meets the requirements of s. 89A(3)(b), the Registrar is entitled to treat the caveat as continuing to have effect and no further action is required by the Registrar.

43 The role of the Registrar under s. 89A(5)(b), as described above, is in accordance with both the plain words of s. 89A and with authority. In The Perpetual Executors and Trustees Association of Australia Ltd v Hosken[7], Isaacs J said, in respect of the Registrar of Titles in Victoria under the Transfer of Land Act 1890 (Vic):

"Now of course the Registrar is not an automaton; he has a high and responsible public duty to discharge, and he has an obligation to see that the purpose of the Act is neither destroyed nor prejudicially affected. He has the right and the duty to preserve his entries and records from confusion, and to prevent the intrusion of anything calculated to obscure or mislead, or even to impede the ordinary and practical working of his department. He has also in certain cases a necessary discretion, though forms are complied with, to act so as not by undue haste or too facile compliance with any application to do what appears to him may be wrong to another person, or bring a claim upon the assurance fund. But he has no discretion to declare that an instrument is not in statutory form which in fact and in law is in statutory form..."

44 In Templeton v The Leviathan Pty Ltd[8], Higgins J stated that:

"The Registrar has to discharge not merely ministerial but also judicial duties... It is not his duty to require proofs negativing any fraud or improper dealing where there is nothing on the face of the documents submitted to suggest it..." (Citations omitted.)

45 The question which arises for determination in this proceeding is whether the Registrar's decision to accept the caveator's notice as complying with s. 89A(3)(b) of the Act was correct. Given the form of the caveator's notice, which may not strictly comply with the requirements of s. 89A(3)(b), an anterior question arises. Does the Act require that a caveator's notice under s. 89A(3)(b) should be construed strictly, or is substantial compliance with the requirements of a notice by the Registrar under s. 89A(3)(b) sufficient? In other words, what is the role of the Registrar when she receives an ambiguous notice from a caveator in response to a s. 89A(3) notice issued by her?

46 It was submitted on behalf of the Registrar that:

(1) Parliament did not intend that a caveat should lapse if a caveator's notice, in response to a s. 89A(3) notice from the Registrar, does not strictly comply with all of the requirements of s. 89A(3)(b).

(2) The Registrar is entitled to take a broad view of a caveator's notice and not a narrow or pedantic view. Substantial compliance is enough.

(3) There are a number of factors, or policy considerations, which support this approach to the interpretation of s. 89A.

I accept these submissions.

47 In the first place, the purpose of the caveat provisions must be considered. The obvious purpose of the caveat provisions is to enable any person claiming an estate or interest in land to protect that estate or interest pending an entry in the Register recording that interest[9]. Having given the holders of such interests the power to lodge a caveat, Parliament ought not to be taken to have intended that the protection afforded by such a caveat should be lost by administrative decision in respect of an ambiguous notice. This is especially so in circumstances where the mere giving of a caveator's notice conveys an intention on the part of the caveator to maintain the caveat. The consequences of a caveat lapsing may be catastrophic for the caveator in a particular case.

48 Secondly, s. 89A does not contain any provision requiring the Registrar to give a caveator a right to be heard if a question arises as to the sufficiency of a caveator's notice. Although the Registrar may make enquiries of the caveator in respect of an ambiguous notice if there is time to do so, there will often be no time. This is because it is common experience that, where a time is specified for something to be done, it is often not done until the specified day or shortly beforehand. In such circumstances, there will be no time to enable the Registrar to hear the caveator in respect of an ambiguous notice. Section 89A(5) requires the Registrar to treat the caveat as having lapsed "Upon the specified day". The Registrar's consideration of a caveator's notice is obviously not intended to be a lengthy process involving consultation with, or giving a hearing to, the caveator.

49 Thirdly, it must be kept in mind that the s. 89A procedure is only one way in which a caveat can cease to have force and effect. Under s. 90, a caveat may lapse following the lodgement for registration of a dealing, and the consequent service of a Registrar's notice under s. 90(1). The service of such a notice casts the obligation upon the caveator to approach "the Court" and seek an order to protect their interests. Under s. 90(3) any person adversely affected by a caveat may bring proceedings in "the Court" for removal of the caveat.

50 Fourthly, there is no prescribed form in the Act for a caveator's notice. The lack of any prescription of the form of a caveator's notice indicates that Parliament did not intend that a caveator's notice should be strictly construed to see whether it complies with the provisions of s. 89A(3)(b).

51 Finally, in my view, Parliament should not be taken to have intended that the Registrar should decide borderline cases as to whether or not a caveator's notice complies with s. 89A(3)(b). Under s. 110(1)(b), a person sustaining loss or damage by reason of any amendment of the Register is entitled to be indemnified from public monies in respect of such loss and damage. The amount of loss and damage could be very substantial. It is unreasonable to suppose that Parliament intended to expose the Registrar to liability, to be met from the public purse, as a result of a wrong decision as to whether a caveator's notice satisfies the requirements of s. 89A(3)(b) in a particular case. This is especially so in circumstances where the registered proprietor, or any other person adversely affected, may bring proceedings to remove a caveat or may lodge a dealing for registration which will have the effect of requiring the caveator to obtain relief from "the Court" within a specified period. In my view, Parliament intended that disputes about the validity of caveatable interests should be fought out between the various persons claiming an estate or interest in the subject land, and not determined by the decision of the Registrar as to whether to treat an ambiguous caveator's notice as being compliant or non-compliant with the strict requirements of s. 89A(3)(b).

52 My view that the Registrar is entitled to take a broad view of a caveator's notice in determining whether or not to accept it as complying with the requirements of s. 89A(3)(b) is, in my opinion, consistent with authority. In Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd[10], the Court of Appeal in England considered the requirement of the Warsaw Convention that an air consignment note "shall contain the following particulars". It was contended on behalf of the plaintiffs that the air consignment note in issue did not strictly comply with this requirement. Lord Denning MR delivered the principal judgment of the Court of Appeal. Lord Denning dealt with the argument that strict compliance with the prescribed form of particulars was required in the following way:

"I do not think we should give a strict interpretation to Article 8(q) in the Convention. We should not give it so rigid an interpretation as to hamper the conduct of business. I do not interpret the article as meaning that the waybill must contain the statement verbatim. It is sufficient if it contains a statement to the like effect...

Any other result would lead to great inconvenience." [11]

53 In Nichol v Thompson[12] Forster J, in the Supreme Court of the Northern Territory, considered a defence to a drink driving charge. The basis of the defence was that the breath testing device did not bear the exact mark which was prescribed by the applicable legislation. The applicable legislation required that a breath test could only be conducted with a device stamped with or to which there was affixed a prescribed mark, in the following terms:

In fact, the device in question was stamped "Breathalyzer U.S. Pat. No. 2824789".

54 The only difference was that "Pat." was used instead of "Patent".

55 It was held that, although it was mandatory that the device bear the prescribed mark, exact compliance with the statutory prescription was not intended by the legislature. Foster J said:

"It is plain that the device which was intended is that which complied with U.S. Patent No. 2824789. 'Pat.' is an abbreviation very commonly used for patent and the sense and meaning of the mark is the same whether 'Patent' as prescribed is used or 'Pat'. If the patent number were incorrect different considerations might apply, but I cannot think that the legislature intended such an absurdity that the substitution of 'Pat.' for 'Patent' would invalidate the analysis."[13]

56 In Minister for Health v Thompson[14] the Full Court of the Federal Court of Australia considered whether a reference to a committee complied with s. 82 of the Health Insurance Act 1973 (Cth). The terms of the reference did not strictly comply with the words of the statute. Notwithstanding this, the Full Court held that the reference was a valid one as, on a proper construction of the statute, strict compliance with the prescribed form of reference was not required.

57 Each of the members of the Full Court expressed their views in different language. However, the effect was the same. On a proper construction of the Health Insurance Act, substantial compliance with the prescribed terms of a valid reference was sufficient. Beaumont J put the matter this way:

"In short, in my view, it was open to the Minister to frame his reference to the Committee in any language which was fairly capable of the construction that the subject matter of the reference was services deemed to be excessive by the definition in s. 79(1b)(a). It could hardly be suggested that it was not open to the Minister to paraphrase the provisions of that definition when indicating his terms of reference. In other words, I do not think that a literal reproduction of the terms of the statutory definition is essential to the validity of a reference under s. 82(b); it would suffice if the substantial effect of the provision were stated: see Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Nichol v Thompson (1976) 12 ALR 528; Pearce: Statutory Interpretation in Australia 2nd ed, (1981) p 174."[15]

58 The above cases demonstrate that, in determining whether a strict interpretation is required or whether substantial compliance is sufficient, the primary approach of courts is to look at the consequences which flow from requiring strict compliance. This approach is supported by the learned authors of Pearce and Geddes, Statutory Interpretation in Australia, 5th ed at paras. [11.18] and following.

DID THE CAVEATOR'S NOTICE COMPLY WITH S. 89A(3)(B)?

59 To comply with s. 89A(3)(b), a caveator's notice must give notice of three things:

(1) that proceedings are on foot;

(2) that the proceedings are in "a court of competent jurisdiction"; and

(3) that the proceedings are to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the s. 89A application is made.

Requirements (2) and (3) will often overlap. For example, whether or not the court in which the proceedings are on foot is one of competent jurisdiction may be determined by the nature of the claim made by the caveator.

60 When viewed against these requirements for a valid caveator's notice, the caveator's notice is obviously an ambiguous one. However, I am of the view that the caveator's notice constituted sufficient, or substantial, compliance with the provisions of s. 89A(3)(b) so as to prevent the caveat from lapsing under s. 89A(5).

61 In reaching my conclusion as to the sufficiency of the caveator's notice, I have considered only the evidence which was before the Registrar on the specified day. It was on that day that the caveat either did or did not lapse. In my view, the reliance by the plaintiff upon evidence as to the actual subject matter of the proceedings commenced by the caveator in the High Court of Malaya is irrelevant to the sufficiency of the caveator's notice.

62 The evidence which was before the Registrar on the specified day comprised:

(1) the transfer of land;

(2) the caveat;

(3) the s. 89 application;

(4) the Registrar's notice; and

(5) the caveator's notice.

63 When these documents are read together, the caveator's notice can be seen as giving notice to the Registrar of the following matters:

(1) The caveator's notice is given in response to the s. 89A notice.

(2) The caveator intends to maintain the caveat.

(3) The caveator makes a claim in relation to the estate or interest of the plaintiff in the land.

(4) The caveator contends that the land is part of "matrimonial property" of the caveator and her husband.

(5) The caveator claims an estate in fee simple in the land, on the basis that it was fraudulently transferred by her husband to the plaintiff "with the intention to dissipate our matrimonial property". Although not expressly stated, this claim implies an allegation that the plaintiff holds the land on a constructive trust for the caveator. It is implicit that such a trust is alleged to have arisen from the plaintiff's receipt of the land for less than full consideration when she knew, or was on notice, that the land was being transferred to her by the husband in breach of trust or fiduciary duty.

(6) Proceedings are on foot in the High Court of Malaya to substantiate the claim of the caveator in relation to the land and the estate or interest of the plaintiff in the land. Those proceedings were commenced by the caveator's husband for Judicial Separation, and the caveator's claims in relation to the land were raised by her in her "answer" to the husband's petition, in which the caveator seeks "inter alia, for maintenance."

(7) The caveator lodged the caveat in order to protect her interest in the land "pending disposal of the Judicial Separation and or Divorce Petition and division of matrimonial assets". This was clearly a reference to the caveat being lodged pending resolution of the proceedings which were on foot in the High Court of Malaya.

64 There is no doubt that the caveator's notice gives notice that proceedings are on foot. Further, in my view, the notice adequately states that the proceedings are to substantiate the claim of the caveator in relation to the land and the estate or interest of the plaintiff in respect of which the plaintiff made the s. 89A application. As I have said, the caveator's notice expressly refers to the caveator's claim to the land and, in addition, states in express terms that the caveator's claim to the land is made in relation to the estate or interest of the plaintiff in the land.

65 The issue is whether the caveator's notice gives sufficient notice that the proceedings in the High Court of Malaya are proceedings in a court of competent jurisdiction. In my view, the caveator's notice satisfies the requirements of s. 89A(3)(b) in this regard. Although the High Court of Malaya does not have jurisdiction to order the Registrar to make any amendment to the Register, as it is not a "Court" within the meaning of the Act, there is no reason to doubt that the High Court of Malaya has the power to make orders in personam requiring the parties before it to execute one or more instruments dealing with the land. For example, the High Court of Malaya could order the plaintiff to transfer the land, or a part thereof, to or for the benefit of the caveator.

66 On behalf of the plaintiff, it was submitted that the High Court of Malaya does not have in personam jurisdiction of the kind which I have referred to above. It was submitted that this was so because it is settled law in Malaysia that the rule in British South Africa Company v Companhia de Mocambique[16] (known commonly as the rule in Mocambique) applies in Malaysia. Stated generally, the rule in Mocambique prevents a court from adjudicating upon the title to land in a foreign jurisdiction. Accordingly, it was submitted on behalf of the plaintiff that the High Court of Malaya has no jurisdiction to adjudicate upon the claim by the caveator in relation to the land, unless the caveator's claim falls within one of the exceptions to the rule in Mocambique. In this regard, reference was made to Dagi v The Broken Hill Proprietary Company Ltd (No.2)[17] and to Deschamps v Miller[18].

67 In my view, it is not necessary for me to determine whether the caveator's claim in relation to the land falls within one of the exceptions to the rule in Mocambique. This is because it was not necessary for the Registrar, and in my view it is not necessary for me, to "go behind" the caveator's notice and examine in detail the extent of the jurisdiction of the High Court of Malaya. On the face of the caveator's notice, reference is made to specific proceedings in the High Court of Malaya. In my view, the Registrar was entitled, and I am entitled, to assume that the High Court of Malaya has in personam jurisdiction over those parties before it. Even if this were not so, the expert evidence of a Malaysian solicitor, Christopher Foo Kah Foong, confirms that the High Court of Malaya has jurisdiction to order in personam relief in relation to land situated in a foreign country where the jurisdiction of the High Court is otherwise attracted.

68 As to jurisdiction of the High Court of Malaya, Mr Foong gave evidence that s. 23(1) of the Courts of Judicature Act 1964 (Malaysia) was, relevantly, determinative. Under s. 23(1) of that Act it is provided:

"Subject to the limitations contained in Article 128 of the Constitution every High Court shall have jurisdiction to try all civil proceedings where -

(a) the cause of action arose; or

(b) the defendant or one of several defendants resides or has his place of business; or

(c) the facts on which the proceedings are based, exist or are alleged to have occurred; or

(d) any land the ownership of which is disputed is situated;

within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing to the local jurisdiction of the High Court."

69 On the face of the documents before the Registrar on the specified day, it was apparent that a number of these jurisdictional requirements had been met. First, the transfer of land, which the caveator alleges is fraudulent, was signed by the caveator's husband in Kuala Lumpur, Malaysia. This is apparent on the face of the transfer of land. Accordingly, the caveator's claim in relation to the land is based upon facts which are alleged to have occurred, or her cause of action is alleged to have arisen, within the local jurisdiction of the High Court of Malaya at Kuala Lumpur.

70 Second, having regard to the fact that the transfer of land was signed in Kuala Lumpur, and the fact that the caveator's husband has commenced proceedings in the High Court of Malaya at Kuala Lumpur, it is reasonable to infer that the husband resides or has a place of business within the local jurisdiction of the High Court of Malaya at Kuala Lumpur. Although the caveator's husband is the petitioner in the Malaysian proceedings, the caveator's notice refers to a claim by the caveator against the husband. This claim is constituted by her "answer" to the petition, in which the caveator seeks "inter alia, for maintenance". On the face of the caveator's notice, it is open to conclude that the caveator's claim in relation to the land forms part of the caveator's claim for maintenance. In this sense, the caveator's husband is a "defendant" residing within the jurisdiction of the High Court of Malaya at Kuala Lumpur. As a result, the High Court of Malaya has in personam jurisdiction on this ground.

71 It was next argued on behalf of the plaintiff that the High Court of Malaya at Kuala Lumpur was not a court of competent jurisdiction because the plaintiff was not a party to the Malaysian proceedings. I reject this argument. There is no requirement in s. 89A(3)(b) that a caveator's notice give notice of proceedings which are on foot against the proprietor of the estate or interest in respect of which the s. 89A application it made. Although it may be expected that a court of competent jurisdiction would be reluctant to make an order affecting the rights of a registered proprietor to land in the absence of the registered proprietor as a party, in the same way that I refused to hear this case in the absence of the caveator as a party, that does not mean that there may not be proceedings which meet the description in s. 89A(3)(b) but which do not join the registered proprietor as a party. If this were not the case, it would mean that a caveator who made a mistake, and neglected to join the proprietor of the estate or interest in the land in respect of which the s. 89A application is made as a party to the proceedings, would thereby suffer the result that the caveat lapsed by reason of the non-joinder of a necessary party to the proceedings referred to in the caveator's notice under s. 89A(3)(b). This would be so notwithstanding that there is ample power in courts to join all necessary parties after the commencement of proceedings. Indeed, as noted above, I made orders of this kind in this proceeding.

72 It follows that, in my view, the caveator's notice gives notice of proceedings in a court of competent jurisdiction to substantiate the claim of the caveator in relation to the land and the estate or interest therein in respect of which the plaintiff made the s. 89A application.

CONCLUSION

73 I conclude that the caveator's notice did satisfy the requirements of s. 89A(3)(b). Accordingly, the Registrar was right to accept it on this basis and treat the caveat as remaining in force. The caveat did not lapse on the specified day or at any other time.

74 In these circumstances, the proceeding must be dismissed with costs.

RECOMMENDATIONS FOR REFORM OF S. 89A

75 In my view, it is appropriate that Parliament give consideration to reviewing the provisions of s. 89A of the Act. As presently structured, the section gives rise to the possibility of abuse by caveators. For example, a caveator in receipt of a s. 89A notice from the Registrar may issue proceedings in a court of competent jurisdiction, give a s. 89A(3)(b) notice, but then either refrain from serving the proceedings in a timely manner or fail to prosecute the proceedings with any reasonable degree of diligence.

76 Further, as I have said, it is undesirable that the Registrar be exposed to claims of the kind made in this case. This is especially so in the context of possible claims for indemnity under s. 110(1)(b) of the Act.

77 A procedure whereby a caveator in receipt of a s. 89A notice from the Registrar is obliged to approach the "Court" in order to maintain the caveat would, in my respectful opinion, be preferable to the current procedure under s. 89A. This would avoid the possibility of caveators being deprived of valuable rights protected by their caveats by administrative action. It would also avoid claims for indemnity under s. 110(1)(b) of the Act. However, such a procedure would continue to provide a simple administrative procedure for the lapsing of unsustainable caveats, or caveats which are no longer required to protect the interests of the caveator, in many cases.

[1] See News Limited v Australian Ruby League [1996] FCA 870; (1996) 64 FCR 410 at 523-7.

[2] Section 91(4) of the Act.

[3] [1997] 1 VR 428 at 433.

[4] The Registrar referred to Walker and Sopov v Registrar of Titles [2001] VSC 354.

[5] The Registrar referred to Lewenberg & Pryles v Direct Acceptance Corporation Ltd [1981] VicRp 36; [1981] VR 344.

[6] See, for example, Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620-2; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [9]- [18].

[7] [1912] HCA 31; (1912) 14 CLR 286 at 295. See also, to like effect, Gibb v The Registrar of Titles (Vic) [1940] HCA 15; (1940) 63 CLR 503 at 513; Bando Trading Co Ltd v Registrar of Titles [1975] VicRp 33; [1975] VR 353 at 354; Walker v Registrar of Titles [2001] VSC 354; (2001) 8 VR 618 at [136].

[8] [1921] HCA 55; (1921) 30 CLR 34 at 64.

[9] J&H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546 at 554-6.

[10] [1966] 2 QB 306.

[11] [1966] 2 QB 306 at 314; see also, Salmon LJ at 316.

[12] (1976) 12 ALR 528.

[13] Nichol v Thompson (1976) 12 ALR 528 at 531.

[14] [1985] FCA 208; (1985) 8 FCR 213

[15] Minister for Health v Thompson [1985] FCA 208; (1985) 8 FCR 213 at 222-3.

[16] [1893] AC 602.

[17] [1997] 1 VR 428 at 433-4, per Byrne J.

[18] [1908] 1 Ch 856 at 863-4, per Parker J.